6 9 8; 2i 0! 8! UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY UNIVERSITY of CALIFORNIA LOS ANGELES LIBRARY THE SPECIAL LAW GOVERNING AND ALL OTHERS ENGAGED IN PUBLIC EMPLOYMENT BY BRUCE WYMAN, A.M., LL.B. PROFESSOR OF LAW IN HARVARD UNIVERSITY VOLUME I NEW YORK BAKER, VOORHIS & CO. 1921 153828 T v: COPYRIGHT, 1911, BY BRUCE WYMAN TO JOSEPH HENRY BEALE, A.M., LL.B., LL.D. CARTER PROFESSOR OF GENERAL JURISPRUDENCE IN HARVARD UNIVERSITY Since with characteristic generosity he will not permit his name to be upon the TITLE-PAGE With deep gratitude I inscribe THIS DEDICATION PREFACE I have felt for many years that the distinction between the private callings the rule and the public callings the exception was the most striking feature of the law governing business relations. The causes of the division are economic rather than strictly legal. Free competition, &the very basis of the modern social organization, super- seded almost completely mediaeval restrictions, but it has ^just come to be recognized that the process of free com- petition fails in some cases to secure the public good, and 3 it has been at last admitted that some control is necessary ^over such lines of industry as are affected with a public 7 interest. At this point the problem of public callings be- (i? comes a legal one. r From the earliest times some restraint has been exer- Jcised over such lines of industry as are of vital interest to ^the public. The establishment of the peace, the protec- ;tion of the weak against the physical violence of the ^strong, is a fundamental function of government; but of equal importance and of almost equal antiquity is the protection of the common people against the greed and oppression of the powerful. In matters not vital to the life and well-being of mankind the laws of society may be left free to operate, without limitation by the sovereign power; but in all that has to do with the necessaries of life the protection of the sovereign is extended. The mod- ern State protects equally against physical violence and against oppression that affects the means of living. As a result of that economic evolution from mediaeval [v] PREFACE times to the present day which I have sketched in my first chapter, there have come into being in the last generation a considerable number of employments which have gained, if not a legal monopoly, at any rate, as a result of circum- stances, a virtual monopoly in matters of public necessity. The positive law of the public calling is the only protection that the public have in a situation such as this, where there is no competition among the sellers to operate in its favor. So much has our law been permeated with the theory of laissez faire, which was but lately so prominent in the policy of our State, that the admission has been made with much hesitation that State control is ever nec- essary. But the modern conclusion, after some bitter experience, is that freedom can be allowed only where conditions of virtual competition prevail, for in conditions of virtual monopoly, without stern restrictions, there is always great mischief. The spirit of our present age demands that the great business enterprises shall be conducted in accordance with the requirements of society. The present programme of organized society is to see to it that those who have gained a substantial control of their market shall not be left free to exploit those who look to them to supply their needs. Men now see clearly that freedom of action may, even in the industrial world, work injuriously for the public, and it must then be restrained in the public interest. We have seen the results of unrestrained power; and we no longer wish those who have control over our destinies left free to do with us as they please. Liberty does not mean to men at the beginning of the twentieth century what it meant to men at the beginning of the nineteenth century. While State regulation is the prevailing philosophy of the people at the beginning of the twentieth century, it must be borne in mind that this has been the result of a gradual progress of thought, and that this progress has not [vi] PREFACE affected all men equally. Now, as at all times, there are conservatives and radicals, the former as far behind the prevailing spirit of the time as the latter go beyond it. In every change of popular thought there have been those who have been unable to appreciate the change; and in every such change there have been those who are unable justly to estimate the true meaning of the change. We have, therefore, three general types of thought at every time: the conservatives, the moderates and the radicals. And this is as true of legal as of economic thought. Many lawyers still hold conservative views as to the application of the law of public callings to modern conditions. They believe that the conductors of every business, however necessary to public welfare, should do whatever seems good in their own eyes. It has been remarked many times that the common law may be relied upon to meet, by the continual develop- ment of its fundamental principles, the complex condi- tions created by the constant evolution in the industrial organization. One of the most striking of modern in- stances of this capacity of growth in the common law is the astonishing progress in the working out of the detail of the exceptional law governing the conduct of public callings. In recent times there undoubtedly is an in- creasing need of this stricter regulation of all employments which appear to be affected with a public interest. The most of men appreciate that the law has already taken control of the situation for all time. It is hardly too much to say that the efficient regulation of the public employ- ments by sufficient law is the most pressing problem con- fronting this nation; and it must be met without further hesitation. Great power brings as its consequence the need of control of that power for the good of the whole people. In this crisis of affairs the people must be assured that [vii] PREFACE the law is adequate to deal with the situation, that it has not only elaborated detail to meet obvious wrongs seldom defended, but also enlightened comprehension to deal with the large policies openly justified, which are truly incon- sistent with public duty. That those who profess a public employment owe the utmost public service should be gen- erally accepted as the fundamental principle upon which the law governing public employment is to be based. It is not agreed, however, how far this principle should be pressed; there is a clash of interests here, and there is an inclination on the part of those who conduct the public services to contest every issue. This is not even an en- lightened selfishness. The time has come when extension of the law and en- forcement of it should be the avowed attitude of all con- servative persons who wish the perpetuation of present conditions. It would be well, therefore, if the restless and the doubting who see many abuses and many wrongs in the conduct of our public services without prompt remedy or adequate redress, might be relieved and heartened by being shown that the common law is adequate to deal with all real industrial wrongs, and that with the aid of reme- dial statutes the administration of the law can be relied upon. The proprietors of the public services should be told sharply that they may not adopt to the prejudice of their public various profitable policies, and then justify them as inherent rights which other men in ordinary busi- ness may use in the advancement of their interests. This principle of State control does not lead one to socialism; indeed, it saves one from socialism if truly un- derstood. It is only in those few businesses where the conditions are monopolistic that dangerous power over their public has been attained by those who have the con- trol. In most businesses the virtual competition which prevails puts the distributors at the mercy of their public. [ viii ] PEEFACE In current opinion the recognition of this distinction is manifest. Men are as eager for an open market as ever; but they wish the control of monopoly to insure it. The demand is for freer trade where competition prevails and stricter regulation where monopoly is found. So long as virtual competition prevails there is no necessity for coercive law since there is then no power over the pur- chasing public. But where in any business virtual mo- nopoly is permanently established the people will not be denied in their deliberate policy of effectual regulation of such public services for the common good. Only to this extent the individualistic ideal of society gives place to the collectivist policy. It is with true ap- preciation of the real issue that we are contending for State control to gam individual liberty. It may once have been the ideal of industrial freedom that a man might do as he pleased with his own; in any event that is no longer our notion of social justice. It is believed now that with increase in power over the particular market comes increase in responsibility to the dependent public. Socialism would destroy all private interests in the name of the public; regulation would preserve private interests by reconciling them with public right. Socialism attacks all capital to whatever business it is devoted; regulation grapples with monopoly only when it is convinced that there is no other way to safeguard the interests of the public. There is now fortunately almost general assent to State control of the public service companies. Two ways only can be found to exercise such control. One way, that ad- vocated by the most radical statesmen, is the government ownership and operation of these services. The other way, which is in fact the conservative method of dealing with the problem, is the control of the rates and practices of the utilities for the public good. One or the other of these [ix] PREFACE methods must be finally adopted. The conservative method is now on trial. It behooves the lawyers to see to it that it be so intelligently tried, and that the law ap- plicable to the case be so accurately enforced, that we may not be driven perforce to the radical alternative ot public ownership. The belief that this duty has, almost without warning, been thrust upon the profession, and that the lawyer has not been at all prepared by his train- ing to solve the difficult questions that may arise, has led the author to publish this treatise, with the hope that it may help the profession to meet its new and perplexing problems. No one can carefully study the authorities on this sub- ject without feeling that we are just entering upon a great and important development of the common law. What branches of industry will eventually be of such public importance as to be included in the category of public callings, and to what extent the control of the courts will be carried in the effort to solve by law the modern eco- nomic problems, it would be rash to predict. Enormous business combinations, virtual monopolization of the nec- essaries of life, the strife of labor and capital, now the concern of the economist and the statesman, may prove susceptible of legal control through the doctrines of the law of public callings. These doctrines are not yet clearly denned. General rules, to be sure, have been established, but details have not been worked out by the courts; and upon the successful working out of these details depends to a large extent the future economic organization of the country. Only if the courts can adequately control the public service companies in all contingencies may the business of these companies be left in private hands. All businesses both public and private are subject, to be sure, to that general police power of the State whereby in any civilized society the effort is made to so order things [x] PREFACE that one may not use his own so as to injure another. But the comparison of the large amount of regulation which it is considered proper for the State to impose in regard to public services with the small amount of regulation which it is considered proper for the State to enforce in regard to private business is in itself significant enough. The dif- ference which is shown is more than one of degree, it be- comes one in kind. It is only in public business that the law imposes affirmative duties; generally speaking the duties imposed upon those in private business are nega- tive. The law says to those in public business you must do this for this applicant, and you must do it thus. To those in private business it says you must not do this, or if you do this you must do it thus. This is the chief dis- tinction between public calling and private calling. It is in the firm belief that the law governing the public services will prove upon analysis to be a unified body that the author has been at work for many years, and this first treatise upon the subject has been written. General principles will be developed throughout the work and corrollaries to them established by the use and with the co-ordination of cases from a variety of public employ- ments. Not only are the fundamental principles true as to all public employments that all must be served, ade- quate facilities must be provided, reasonable rates must be charged, and no discriminations must be made. But also in dealing with the minor detail of these principles, cases from one service will be found in point in another as to what conditions there are precedent to service, what will excuse failure in provision of facilities, what is a proper basis for calculating rates and what differences constitute discrimination. This is the way our law grows, by break- ing down the partitions between departments of the law which have been built up separately. The public service law has at length reached a stage of [xi] PREFACE development in which it may be possible to state its principles with some degree of confidence. It is only within the last few years that it would have been within the range of possibility to do this. Twenty-five years ago the public services that were recognized were still few, and the law as to them imperfectly realized. It was known from olden times that those who professed a public em- ployment must serve all at a reasonable rate. As to the duty to serve, it was recognized that there were certain excuses. As to the restriction to reasonable rates, there was no standard unless, indeed, the customary charge. But the important duty to provide adequate facilities had hardly advanced beyond the general law as to negligence. And the duty not to discriminate, which according to present ideas is the most important of all, was denied altogether by the weight of authority. Even ten years ago when these four obligations had become generally recognized, the details as to them in re- gard to any particular employment had been worked out only in very fragmentary manner; but at the present day it is just being appreciated that rapid progress may be made by the general recognition of the unity of the public service law, whereby cases as to one calling may be used to show the law in all. This treatise is based upon this method. But it is only in our present day that the at- tempt to treat the public service law as a consistent body of law could be made with any hope of success. As it is the law of public service is not much further developed than that of sales was two centuries ago. As time goes on, I am finding myself almost among the conservatives in standing by the original program for State control. It is still my belief that the State should as far as possible confine itself to regulation, leaving the companies to work out their own problems of manage- ment. State control need seldom go further than regula- [xii] PREFACE tion in this sense. Whatever the companies may do should be subject to immediate revision by the constituted au- thorities. There should be swift reparation provided for any individual who has suffered harm in the meantime. And that should be the full extent of governmental regu- lation, generally speaking. When the State goes further, and attempts to dictate as to the policies which the com- panies shall adopt, it usually goes too far. Legislation going to this extent really crosses the line which divides State control from State operation. The next step would be government ownership with its unknowable conse- quences. I feel, therefore, that the restriction which the Federal Government has thus far put upon itself in regu- lating interstate carriage is well advised. The Interstate Commerce Commission still has virtually only the power of revision. In some of the States, however, the Commis- sions are virtually given the power to determine of their own motion what the carrier shall do for the public. This imposes government operation, without relieving the railroad from its responsibilities in any way. This does not mean that everything shall be left to the discretion of the companies, as the conservatives claim. Discretion should be left to the companies, but it should be made clear that this discretion may be abused. Although the companies should be left as free as possible to work out their own problems within the law, they should be warned that they must not go outside the limits which the law is fixing. For example, the railroad people once claimed the right to make such rates as it seemed to them would be for the best interests of all concerned. But so long as this power is left in the hands of the railway man- agement without power of review by any authority upon any fundamental principle, it is in the hands of the rail- road officials to build up an artificial market where the natural conditions are adverse, or to turn an industrious [xiii] PREFACE city into a wilderness again. It is believed that these are too great powers to intrust to private hands without governmental control based upon some recognized stand- ards. Indeed the public law in this, as in the other cases, should put sufficient limitations upon any business policy, however profitable, which comes in conflict with the fundamental principle of equal service to all. The whole problem of the regulation of public utilities has been seen more steadily of late years. It has been appreciated that in dealing with a public service com- pany the State is really dealing with a private business concern, however many the obligations may be which it owes to the public. The risks its proprietors run are such that their financial management should be left to them, unless they be shown to be taking profit with outrageous disregard of their public obligations. With these broader views, it would be surprising if more consideration were not paid to the rights of the owners of public services. Perhaps for the moment there is danger that in emphasiz- ing their duties, their rights may be forgotten. Except in the most highly developed communities public service has certain risks even as compared with private business, be- sides its obvious advantages. Public services must run whatever the tunes; and their fate is linked with that of the community. They are engaged in a business with the ordinary incidents of a business, with some of the hopes and hazards of a business. That the courts are approaching this great issue of State control with the enlightened policy of fair com- promise of conflicting interests is plain. Regulation of public service corporations, which perform their duties under conditions of necessary monopoly, will occur with greater and greater frequency as tune goes on. It is a delicate and dangerous function, and ought to be exer- cised with great caution. The courts ought not to bear [xiv] PREFACE the whole burden of saving property from confiscation. The legislative bodies ought to do their part. Our social system rests largely upon the basis of private property, and that community which seeks to alter this will soon discover its error in the disaster which follows. The slight gain to the consumer, which he would obtain from a reduction in the rates charged by public service corpora- tions is as nothing compared with his share in the ruin of which would be brought about by denying to private property its just reward, thus unsettling values and de- stroying confidence. With these the views of the United States Supreme Court it would seem that the present crisis may be faced with confidence. Much that I have just written I have said in this book and elsewhere; but I thought it might make clearer my point of view to my readers if I brought the argument to a focus here, at the outset. Personally I have no inclina- tion to paraphrase what I have said formerly in one place when I wish to say the same thing in another connection, for fear that the repetition may be pointed out. As it happens, many topics in this book could be identified in other writings of mine upon this general subject. But in reality this treatise was largely written before these publications not since. I wrote out the general scheme of this treatise about ten years ago and I have been using it as the basis for class discussion since, so that I have had the incalculable advantage of discussing this scheme with thousands of fellow students. From time to tune I have finished off various chapters as contributions to various magazines, and here again I have had the great advantage of intelligent criticism. I should not in this preface have pointed this out, had it not been that I felt that I owed it to myself to explain why certain portions of this treatise have been in print before. In particular I thought it was only fair to say that most of what has been [xv] PREFACE apparently taken from Beale and Wyman on Railroad Rate Regulation was the part I contributed to that work from my draft for this treatise, which I had already in hand five years ago at the tune we were writing that book. In the next edition of the Railroad Rate Regulation we shall omit most of this matter, confining ourselves to commentary upon the current legislation, Federal and State. The general principles of the public service law are now well enough understood, so that the inclusion of this general matter will be unnecessary. For my general scheme, which I have been working over so long I can, therefore, offer no apology; indeed, I am not ashamed of the general analysis of this new division of the law. For the detailed execution, however, I must offer the usual excuses; for I have been too busied in my profes- sion to give to this work all the tune I could have wished. Some portions of the subject have perhaps interested me more and got in consequence greater care. I have had a policy of a sort in writing the text, however. Where I have been dealing, as in the first third and the last third of the treatise, with the new law of public service, I have cited all the cases I could find and given constant quota- tions from the decisions, so as to show that I was stating the law as it was, not as I was imagining it to be. In the middle third of the treatise I have dealt with much more familiar law, which I have summarized as briefly as I could, citing only such cases of the thousands I have handled as I thought would be of the greatest use. In the last few months I have hurried the whole work to conclu- sion as one will, feeling that I wanted to have what I had to say read while the law was in the making. For those who can realize by experience the labor of writing and put- ting through the press a work of this size and scope its er- rors and omissions will appear not unnatural or altogether inexcusable. I feel, however, that nothing of the sort will [xvi] PREFACE be so serious as to obscure the meaning of the text, and that the practical usefulness of the book will not be af- fected. In regard to the revision of the citations I have been fortunate in having this painstaking work done, with the exception of a few chapters when the printer was press- ing us, by Miss Helen Thompson, the expert assistant to the Faculty of the Law School in the writing of our books. Not only has she taken charge of that very difficult part of modern bookmaking, the extension of the citations, but she has been of great assistance to me in many things out- side of this feature of the work. Further I should acknowl- edge considerable aid in writing certain chapters from my brother-in-law, Albin L. Richards, Esq., of the Boston Bar. But most of all I would express my great gratitude to my colleague, Professor Joseph H. Beale, whose wise counsel has been my constant inspiration. B. W. CAMBRIDGE, January, 1911. [xvii] TABLE OF CONTENTS CHAPTER I HISTORICAL INTRODUCTION 1. Public callings and private business. Topic A. The Mediaeval Policy of Regulation 2. The mediaeval theory of State control. 3. The regulation of business in the middle ages. 4. Early differentiation of the public service law. 5. Examination of the early public employments. 6. The surgeon. 7. The tailor. 8. The smith. 9. The victualler. 10. The baker. 11. The miller. 12. The innkeeper. 13. The carrier. 14. The ferryman. 15. The wharfinger. Topic B. Persistence of this Police Power 16. Continuance of State regulation. 17. Parliamentary regulation of rates. 18. Restriction of prices in the colonies. 19. Persistence of the legislative power. 20. Survival of the common law. 21. Callings connected with transportation. 22. Introduction of improved highways. 23. Toll bridges. 24. Turnpikes. 25. Canals. 26. Railways. [xix] TABLE OF CONTENTS Topic C. The Period of Laissez Fain 27. Alteration in economic conditions. 28. Development in the common law. 29. Freedom of business from State control. 30. Special restrictions in early charters. 31. Gas supply. 32. Water supply. 33. The struggle against encroaching monopoly. 34. Conservative and radical views of regulation. Topic D. Present Control of Public Employment 35. Economic conditions at the present time. 36. Control of the public services necessary. 37. Variety of the public services. 38. Differentiation of the public service law. 39. Unity of the public service law. 40. Present development of the public service law. 41. Imperative need of effective regulation. 42. Ultimate limitations upon public employment. BOOK I. ESTABLISHMENT OF PUBLIC CALLING PART I. PUBLIC EMPLOYMENT CHAPTER H MONOPOLY DUE TO LEGAL PRIVILEGE 50. Legal privileges accompanying public employment. Topic A. Exclusive Franchise 51. Exclusive franchise for public purposes. 52. Ferries. 53. Bridges. 54. Bonded warehouses. 55. Log driving. Topic B. Eminent Domain 56. Eminent domain for public purposes. 57. Tramways. [XX] TABLE OP CONTENTS 58. Railways. 59. Pipe lines. 60. Transmission lines. 61. Elevated conveyors. 62. Lumber flumes. 63. Mining tunnels. Topic C. Aid from Taxation 64. Public purposes of taxation. 65. Gristmills. 66. Sawmills. 67. Drainage. 68. Sewerage. 69. Cemeteries. 70. Hospitals. Topic D. Use of Public Highways 71. Public purposes in highway use. 72. River improvements. 73. Booms. 74. Sluices. 75. Turnpikes. 76. Street railways. 77. Subways. 78. Wire conduits. 79. Pole lines. 80. Constitutional situation as to special privileges. CHAPTER III NATURAL MONOPOLY 90. Natural limitation creates public employment. Topic A. Restriction of Supply 91. Limitation of the sources of supply. 92. Waterworks. 93. Irrigation systems. 94. Natural gas. 95. Water powers. Topic B. Scarcity of Sites 96. Scarcity of advantageous sites. 97. Grain elevators. [xxi] TABLE OF CONTENTS 98. Mechanical conveyors. 99. Cotton presses. 100. Stock yards. 101. Freight sheds. 107. Docks. 103. Basins. 104. Dry docks. Topic C. Limitation of Time 105. Instant need creates monopoly. 106. Innkeepers. 107. Hackmen. 108. Messenger service. 109. Call boxes. Topic D. Difficulty of Distribution 110. Inherent limitation upon competition. 111. Gas works. 112. Fuel gas. 113. Electric plants. 114. Electric power. 115. Steam heat. 116. Refrigeration. 117. Public need creates public interest. CHAPTER IV VIRTUAL MONOPOLY 120. Economic limitations create public employment. Topic A. Cost of the Plant 121. Financial limitations upon potential competition. 122. Canals. 123. Channels. 124. Railroads. 125. Railway terminals. 126. Railway bridges. 127. Car ferries. 128. Railway tunnels. 129. Union railways. 130. Belt lines. Topic B. Service on a Large Scale 131. Disadvantages of the individual. 132. Signal service. [ xxii 1 TABLE OF CONTENTS 133. Telegraph lines. 134. Wireless telegraph. 135. Submarine cables. 136. Telephone systems. 137. Ticker service. 138. Associated press. Topic C. Inadequacy of Available Substitute* } 139. Insufficient substitutes for service. 140. Public stores. 141. Grain storage. 142. Tobacco warehouses. 143. Cold storage. 144. Safe deposit vaults. 145. Market places. 146. Stock exchanges. Topic D. Subordinate Services 147. Dependent position. 148. Port lighters. 149. Floating elevators. 150. Tugboats. 151. Switching engines. 152. Parlor cars. 153. Sleeping cars. 154. Refrigerator cars. 155. Tank cars. 156. Necessary regulation of virtual monopoly. CHAPTER V COMMON CARRIAGE AS A PUBLIC EMPLOYMENT 160. Who are common carriers. Topic A. Carriers of Goods 161. Pack carriers. 162. Wagoners. 163. Porters. 164. Hoymen. 165. Shipmasters. 166. Canal boats. 167. River craft. 168. Draymen. [xxiii] TABLE OF CONTENTS 169. Truckmen. 170. Furniture movers. 171. Baggage transfer. 172. Steamboats. 173. Towing lines. 174. Wagon trains. 175. Automobile lines. 176. Railways. 177. Industrial railways. 178. Express companies. 179. Pneumatic tubes. 180. Dispatch companies. 181. Fast freight lines. Topic B. Carriers of Passengers 182. Ferries. 183. Ships. 184. Stagecoaches. 185. Omnibus lines. 186. Hacks. 187. Taxicabs. 188. Passenger railways. 189. Street railways. 190. Elevated railways. 191. Underground railways. 192. Interurban railways. 193. Passenger elevators. 194. Moving platforms. 195. Pleasure railways. 196. Common carriage as a public employment. PART II. PUBLIC PROFESSION CHAPTER VI EXPRESS UNDERTAKING OF PUBLIC EMPLOYMENT 200. Public profession an essential element. Topic A . Explicit Profession of Public Service 201. Early assumpsit associated with public calling. 202. Express assumption of a public trust. [xxiv] TABLE OF CONTENTS 203. Displaying signs. 204. Public advertisement. 205. General solicitation. 206. Express disclaimer. 207. Service before business begun. 208. Profession made without authority. 209. Service undertaken beyond obligation. 210. Service undertaken in unusual manner. Topic B. Implicit Undertaking of Public Employment 211. Charter stipulation. 212. Permissive charter. 213. Taking out public license. 214. Exercise of eminent domain. 215. Acceptance of municipal franchises. 216. Entering into municipal contract. 217. Aid from taxation. 218. Governmental participation. CHAPTER VH IMPLIED PROFESSION OF PUBLIC EMPLOYMENT 220. Conduct evidencing public employment. Topic A. Public Employments and Private Enterprises 221. Potential use by the public. 222. Public access held indispensable. 223. Industrial railroads. 224. Lateral branches. 225. Public spur. 226. Private siding. Topic B. Characteristics of Public Business 227. Public service in regular course. 228. Public employment carter. 229. Regular service shipmaster. A 230. Established charge expressmen. 231. Indiscriminate service irrigation. 232. Public profession warehousing. Topic C. Characteristics of Private Business 233. Private contract as the basis. 234. Occasional business householders. [xxv] TABLE OF CONTENTS 235. Casual employment shipowners. 236. Intermittent employment teamsters. 237. Limited undertaking ferries. 238. Incidental service merchants. Topic D. Particular Illustrations of the Distinction 239. Public and private carriers in general. 240. Public inn and private house. 241. Public and private highways of every sort. 242. Public and private waterworks. 243. Public and private gas and electricity. 244. Public and private telephone and telegraph. CHAPTER VIII EXTENT OF SERVICE PROFESSED 250. Limitations upon the profession. Topic A. Kinds of Service Undertaken 251. Extent to which limitations may be imposed. 252. Businesses of limited scope. 253. Obligation in respect to the usual class. 254. No obligation to undertake different services. 255. Carriage of valuables separable. 256. Carriage of live stock. 257. Carriage of rolling stock. 258. Profession limited to car service. 259. Extraordinary service in transporting freight. 260. Extraordinary service in delivering freight. Topic B. Separable Services for Different Purposes 261. Separable services in general. 262. Carriers of passengers and goods. 263. Divisibility of the innkeeper's undertaking. 264. Purposes for which water is supplied. 265. Gas for illuminating and for fuel. 266. Distinct kinds of telephone service. Topic C. Profession Defined by its Physical Limitations 267. Profession to devote facilities. 268. Profession to render service. 269. Obligation limited to existing premises. [ xxvi ] TABLE OF CONTENTS $ 270. Profession limited to original plant. 271. Profession limited to natural supply. 272. Carriage confined to established route. Topic D. Territorial Limits upon the Service Professed 273. General problem of community service. 274. Territorial limits fixed by franchise. 275. Change in municipal boundaries. 276. Obligation beyond the profession. 277. Establishment of delivery limits. 278. What limits are reasonable. 279. Individual installation within the territory. 280. Rights of abutting owners. 281. Obligation to the community. 282. Reasonable limitation upon expansion. CHAPTER IX WITHDRAWAL FROM PUBLIC EMPLOYMENT 290. Elements of the problem. Topic A. Possibility of Total Withdrawal 5 291. Closing an inn. 292. Discontinuing a ferry. 293. Making a warehouse private. 294. Withdrawing a wharf from public use. 295. Giving up common carriage. 296. Taking up a railway. 297. Shutting off water supply. 298. Discontinuing further gas supply. 299. Duty devolved upon municipality. 300. No excuse for default in charter obligation. 301. Effect of absolute insolvency. 302. Obligation persists so long as franchise retained. Topic B. Abandonment of a Certain District 303. Right to withdraw from particular district. 304. Doctrine applies only to constructed portions. 305. Discontinuance by public permission. 306. System constructed under permissive charter. 307. Cases permitting partial withdrawal. 308. Abandoned service must be separable. [ xxvii ] TABLE OP CONTENTS Topic C. Abandonment of a Particular Service 309. Right to withdraw from a particular service. 310. Service demanded by charter. 311. Partial withdrawal generally permitted. 312. Temporary withdrawal not permissible. 313. Service abandoned must be separable. Topic D. Reasonable Notice of Withdrawal 314. Notice of withdrawal necessary. 315. Colorable withdrawal. 316. Situation requires reasonable notice. 317. What constitutes reasonable notice. 318. Substituting one service for another. 319. Results of consolidating services. 320. Division of territory served. BOOK II. OBLIGATIONS OF PUBLIC DUTY PART III. DUTY TO THE PUBLIC CHAPTER X NATURE OP PUBLIC DUTY 330. Public obligation the fundamental principle. Topic A. Essential Character of the Obligation 331. Nature of the public duty. 332. Obligations of the subsequent relationship. 333. The original obligation is sui generis. 334. Nature of the obligation after acceptance. 335. Chief reliance upon tort. 336. No dependence upon contract. 337. Essential elements in contract not necessary. 338. Contract cannot be required. 339. Applicant need not have the capacity to contract. 340. Incapacity of the proprietor to contract no excuse. 341. Relationship established although another pays. 342. Statutory provisions for public service. 343. Franchise provisions for public service. [ xxviii ] TABLE OF CONTENTS Topic B. To Whom the Obligation Is Owed 344. The duty is owed to a particular public. 345. What constitutes a default to an individual. 346. Applicants must be desirous of service. 347. Application to test rights. 348. Liability to sendee of telegram. 349. Discussion of the conflicting theories. 350. Individual rights to fire protection. 351. Common-law basis for individual rights. 352. Extent of public interest. 353. Personal character of the individual right. 354. Statutory requirements for service. 355. Statutory penalties for default. CHAPTER XI OBLIGATION LIMITED TO CERTAIN CLASSES 360. Inherent limitation of the public service duty. Topic A. Duty Limited to Travelers 361. Special need of travelers. 362. Carriers' obligation limited to travelers. 363. Innkeepers' duty owed only to travelers. 364. Who is a traveler? 365. How long one remains a traveler. 366. When one ceases to be a traveler. Topic B. Obligations Incidental to the Service 367. Persons properly upon the premises. 368. Persons desiring shelter merely. 369. Persons assisting or meeting passengers. 370. Convenience of the patron the test. 371. Right involved is that of the person served. 372. Extent of the duty to such persons. Topic C. Duty Limited to Occupiers 373. Special need of occupiers. 374. Obligation limited to supply at premises. 375. Necessity of telephone service at residence. 376. Duty owed to occupiers. 377. Certain consequences of this doctrine. [xxix ] TABLE OF CONTENTS 378. Supply to incumbered premises. 379. Services to separate premises. 380. Supply to buildings divided into tenements. Topic D. Other Limitations to Particular Classes 381. When special limitations are justifiable. 382. Sleeping and parlor car service. 383. Rights in a public conduit. 384. Irrigation in accordance with water rights. 385. Basis of the public duty. CHAPTER XH CONDITIONS PRECEDENT TO SERVICE 390. Nature of the conditions precedent. Topic A. Service Must Be Asked at Proper Tim* 391. Whether carrier must receive goods in advance. 392. How long in advance goods must be received. 393. Acceptance long in advance. 394. Goods tendered too late. 395. Passengers must come at proper time. 396. Services which may be demanded at any time. 397. Time-tables. 398. Office hours. Topic B. Service Must Be Demanded at Proper Place 399. Tender of goods to the carrier. 400. Placing goods in proper position not delivery. 401. Passengers must be upon the premises. 402. When passengers are accepted. 403. Establishment of regular stations. 404. Service at private sidings. 405. Service only obligatory within proper territory. 406. Services to abutting owners. Topic C. There Must Be Application in Proper Form 407. Applicant must give notice. 408. Requisitions made in advance. 409. Effect of mere notification. 410. Signal to passenger carrier. 411. Formal application for supply. 412. Use of telegraph blanks. [ XXX ] TABLE OF CONTENTS Topic D. Service Must Be Demanded in Proper Manner 413. Goods must be tendered properly packed. 414. Freight loaded by shipper. 415. Special freight may require special tender. 416. Service upon fungible basis. 417. Proper conditions imposed upon installation. 418. Premises must be properly prepared. 419. Conditions imposed must be reasonable. 420. Improper conditions cannot be imposed. CHAPTER PREPAYMENT AS A CONDITION 430. Payment as a condition. Topic A. Prepayment May Be Required 431. Prepayment made a condition. 432. Compensation due upon acceptance. 433. Service partially completed before demand. 434. Deposit required when charges are undetermined. 435. Whether different treatment constitutes discrimination. 436. Security required for reply telegram. 437. Security for additional charges. Topic B. Sufficiency of Tender 438. What is proper tender. 439. Denomination of money tendered. 440. Reasonable time to produce payment. 441. Tender must be in proper currency, 442. Waiver of prepayment. 443. Conduct dispensing with tender. Topic C. The Unit of Service 444. Public service upon a unit basis. 445. Company cannot insist upon more than one unit. 446. The journey as a single unit. 447. Forfeiture of right to original journey. 448. Effect of outright repudiation. 449. Present unit distinguished from past unit. Topic D. Payment of Arrearages Demanded 450. Payment for previous carriage not required. 451. Payment of arrearages not generally required. [ xxxi ] TABLE OF CONTENTS 452. Cases requiring payment of arrearages. 453. Applicant in default at other premises. 454. Payment of collateral claims cannot be demanded. 455. Cannot urge another's default. 456. No requirement to pay arrears of predecessors. 457. Assumption of predecessor's arrears. 458. Cannot shut off service for disputed arrearages. 459. Character of the dispute. 460. Waiver of right to refuse. CHAPTER XIV PUBLIC DUTY AS TO DEPENDENT SERVICES 5 470. Nature of the problem. Topic A. Public Duty Involved 471. The argument is close. 472. No direct duty to the dependent service. 473. Real duty is to patrons themselves. 474. Conservative view of the duty involved. 475. Progressive view of the duty involved. 476. Necessity for the public service law. Topic B. Transportation Services in Particular 477. Express companies: conservative view. 478. Comment thereon. 479. Express companies: radical view. 480. Discussion thereof. 481. Exclusive contracts with private car lines. 482. Arrangements for hauling sleeping cars. 483. Hack service: conservative view. 484. Objections thereto. 485. Hack service: radical view. 486. Argument therefor. 487. Access to connecting steamboats. 488. No access owed except at wharf stations. 489. Treatment of baggage transfer men. 490. Rights of competing draymen. 491. Arrangements with stock yards. 492. Contracts with grain elevators. [ xxxii ] TABLE OF CONTENTS Topic C. Public Services in General S 493. Exclusive arrangements by innkeepers. 494. Equal facilities for ticker service. 495. Canal company giving monopoly of towage. 496. Arrangement for sprinkling service. 497. Telephone installation in public premises. Topic D. No Public Duty Involved 498. Special concessions when no public duty involved. 499. Special concessions for private business. 500. Whether service provided is necessary. 501. Additional favors beyond obligation. 502. Exclusive contracts in private capacity. 503. Private activities often held ultra vires. CHAPTER XV OBLIGATION AS TO CONNECTING SERVICES 510. Public duty as to connecting services. Topic A. Basis on Which Through Service Is Undertaken 511. Through service may be undertaken. 512. English presumption of through carriage. 513. American presumption of successive service. 514. What constitutes connecting service. Topic B. Mutual Obligations in Successive Service 515. Obligation of initial service to take to connection. 516. Special law applicable thereto. 517. Special duty to make delivery to connection. 518. Further duties of the initial service. 519. Obligation of second service to accept. 520. Peculiar rules relating thereto. 521. Observance of patron's directions. 522. Results of any disobedience. 523. Discrimination permissible in granting favors. 524. Discrimination forbidden where public duty involved. Topic C. Facilities for the Interchange of Business 525. Construction of physical connections not obligatory. 526. Statutory requirements go further. 527. Obligation to have transfer facilities at junction points. 3 [ xxxiii ] TABLE OF CONTENTS 528. Whether freight must be taken in original cars. 529. Such transportation now usually held obligatory. 530. Qualifications of the doctrine. 531. Provision of care for further service. 532. Statutory requirement of through facilities. Topic D. Joint Through Routing and Rating 533. Through arrangements not obligatory. 534. Initial company may select connecting line. 535. Limitations upon joint rates. 536. Statutory provision for through routes. 537. Constitutionality of such statutes. 538. Application of these statutes. 539. Statutory regulation of connecting services. 540. Policy of such legislation. PART IV. JUSTIFICATION FOR REFUSING SERVICE CHAPTER XVI INEXCUSABLE BREACHES OF PUBLIC DUTY 550. Refusal illegal without proper justification. Topic A. Distasteful Service 551. Malicious motives. 552. Malice as a factor. 553. Refusal dictated by favoritism. 554. Discrimination for its own ends. 555. Disagreeable persons. 556. Unmannerly persons. 557. Slight misbehavior. 558. Personal objections. 559. Immoral persons. 560. Undesirable persons. 561. Supposed interest of patron. 562. Wiser course for patron. 563. Unwelcome service. 564. Wrongful refusal. Topic B. Disadvantageous Service I 565. Race prejudice. 566. Separation of the races. [ xxxiv ] 567. Class distinctions. 568. Social differences. 569. Unpopular organizations. 570. Labor demands. 571. Assumption of peculiar risks. 572. Service involving unusual care. 573. Indirect advantage in refusing. 674. Ultimate advantage in refusing. 575. Particular service peculiarly expensive. 576. Extensions limited by profitableness. 577. Service in unprofitable ways. 578. Unprofitableness seldom an excuse. 579. Particular service not indispensable. 580. Substitute for service available. CHAPTER XVH REFUSAL BECAUSE OF ILLEGALITY INVOLVED 590. Illegality involved in performing service. Topic A. Subservience to Governmental Authority 591. Obedience to executive orders'. 592. Subservience to military necessity. 593. Prohibitions in administrative regulations. 594. Obedience to legal processes. 595. Contravention of charter limitations. 596. Situation at expiration of franchise. Topic B. Contravention of Statutory Provisions 597. Statutes expressly controlling service. 598. The criminal law generally. 599. Sunday laws. 600. Liquor laws. 601. Game laws. 602. Health regulations. 603. Gaming statutes. Topic C. Service Promoting Illegal Transaction 604. Participation in the illegality. 605. Implication in illegality. 606. Service aiding immoral business. 607. Service indispensable to illegal business. 608. Reasonable rejection usually justified. 609. Cases holding that rejection is at peril. [ XXXV ] TABLE OF CONTENTS Topic D. Proximity to the Illegality 610. Service promoting the illegality. 611. Illegality prior to service. 612. Illegality subsequent to service. 613. Public policy the explanation. CHAPTER XVIII REJECTION FOR PERSONAL DISQUALIFICATION 620. Right of protection the basis of the defense. Topic A. Self-Protection 621. Dangerous service. 622. Risk of possible liability. 623. Fraudulent customers. 624. Abuse of privileges. 625. Interference with the service. 626. Persons bringing dangerous things. Topic B. Protection of Others Served 627. Dangerous persons. 628. Suspected criminals. 629. Violent passengers. 630. Disorderly guests. 631. Persons having contagious disease. 632. Intoxicated persons. 633. Profane patrons. 634. Ejection governed by same general principles as rejection. Topic C. Applicant Under Disability 635. Disabled persons in general. 636. Persons subject to an incapacity. 637. Blind persons. 638. Sick persons. 639. Insane persons. 640. Arrested persons. Topic D. Basis for Rejection 641. Rejection for present misconduct. 642. Rejection for past misconduct. [ xxxvi ] TABLE OF CONTENTS 643. Rejection upon probable cause. 644. Ejection before actual misconduct. 645. Whether refusal should be at peril. 646. Rejection for misconduct of companion. CHAPTER XIX JUSTIFICATION FOR SUSPENDING SERVICE 650. General situations justifying suspension. Topic A. Natural Conditions 651. Failure of water supply. 652. Exhaustion of irrigation supply. 653. Division of natural gas. 654. Service dependent on water power. Topic B. Inevitable Accidents 655. Convulsions of nature. 656. Storms and floods. 657. Electrical disturbance. 658. Normal conditions. 659. Unavoidable accidents. Topic C. Insufficient Facilities 660. When accommodations offered are exhausted. 661. Limitations upon the carrier's obligation. 662. Extended obligation of the railroads. 663. Facilities unexpectedly become outgrown. 664. Normal fluctuations of business. 665. Division of facilities among applicants. Topic D. Human Obstacles 666. Enemy forces. 667. Domestic violence. 668. Refusal to receive because of strike. 669. Refusal to receive because of violent strike. 670. Situation when sympathetic strike. 671. How employe's of the carriers are affected. [ xxxvii ] TABLE OF CONTENTS CHAPTER XX PROMOTION OF ITS BUSINESS INTERESTS 680. Business policies inconsistent with public employment. Topic A. Unfair Competition 681. Exclusive custom cannot be demanded. 682. Partial service already rendered by rival carrier. 683. Telephone companies cannot forbid rival installation. 684. Exclusive regulations by the associated press. 685. Status of exclusive contracts. 686. Refusal to take another's customers. Topic B. Contracts Opposed to Public Service 687. Contract not to deal with other applicants. 688. Special contract for priority. 689. Contract to exclude others from simultaneous service. 690. Exclusive contracts with an intermediate service. 691. Effect of restrictive covenants in conveyances. 692. Contract limitations upon licensees. 693. Contract for division of territory. 694. Pooling agreements usually void. Topic C. Refusal of the Demands of a Rival 695. Shipments made by a rival. 696. No obligation to carry packed parcels. 697. Competitor must be taken as a passenger. 698. Railroad not compelled to give running rights. 699. Obligation to give trackage. 700. Connections with another telephone system. 701. Utilization of the waterworks of another. 702. Gas works not bound to supply rivals. Topic D. Promotion of a Collateral Business 703. Right to engage in a collateral business. 704. Telephone company favoring its messenger service. 705. Municipality promoting its water service. 706. Electric company favoring its wiring department. 707. Railroad cutting its own rates for itself. 708. Grain elevators storing their own grain. 709. Constitutionality of statutory prohibition. 710. Argument for radical law. [ xxxviii ] TABLE OF CONTENTS BOOK III. PART V. COMMENCEMENT OF SERVICE CHAPTER XXI BEGINNING OF THE UNDERTAKING 9 720. Commencement of the relation. Topic A. When Public Service is Begun j 721. Position of prospective customers. 722. Requisitions made for service. 723. Actual agreement must be shown. 724. Acceptance as common carrier. 725. Reception as a guest. 726. Goods withheld from transportation. 727. Goods at carrier's disposal. 728. Conditional acceptance. Topic B. How the Relationship is Established 729. Evidence of actual acceptance necessary. 730. Notice not enough in itself. 731. When acceptance takes place. 732. Where acceptance takes place. 733. Consent to delivery implied. 734. Customary acceptance of goods. 735. Acceptance of passengers at stations. 736. Boarding a moving vehicle. 737. Carriage of goods secured by fraud. 738. Stealing a ride. Topic C. Whether Acceptance is Authorized 5 739. Who is the real proprietor. 740. Situation after railroad leases. 741. Dealings with unauthorized persons. 742. For whom a servant acts. 743. Independent service by servant. 744. Private arrangements with employe 1 . 745. Guests invited by servants. [ xxxix ] 746. Service obtained by connivance. 747. Bill of lading issued without goods. 748. Jurisdictions holding carrier liable. PART VI. MANAGEMENT OF THE BUSINESS CHAPTER XXH BASIS OF THE UNDERTAKING 750. Whether the transaction is public or private. Topic A. Service Rendered upon a Special Basis 751. Boarders at an inn. 752. Special acceptance as guest. 753. Chartered accommodations. 754. Special passenger trains. 755. Special freight trains. 756. Regular train established upon special guaranty. 757. Excursion trains. 758. Chartered train. Topic B. Unusual Methods of Service 759. Passengers traveling in an unusual place. 760. Whether there is acceptance in such cases. 761. Vehicle not intended for passengers. 762. Carriage on construction trains. 763. Passenger carriage on freight trains. 764. Such transportation often upon a private basis. 765. Special services in telephoning. 766. Unrepeated telegrams. Topic C. Peculiar Conditions of Service 767. Owner accompanying his goods. 768. Carrier in general control. 769. Luggage carried by passengers. 770. Special arrangements with innkeepers. 771. Goods taken across a ferry. 772. Owner going with his freight. 773. Switching cars. 774. Towing vessels. [Xl] TABLE OP CONTENTS 775. Responsibility for through cars. 776. Relations with the dependent services. Topic D. Special Arrangements with Particular Classes 777. Mail clerks. 778. Express messengers. 779. Employe's of car companies. 780. Owners accompanying their shipments. 781. Employe's of contracting shippers. 782. Concessionaires in general. 783. Employe's while on duty. 784. Employe's receiving independent service. 785. Full liability in gratuitous service. 786. Explicit limitation to private basis. CHAPTER XXm PROVISION OF ADEQUATE FACILITIES 790. Basis of the duty to supply equipment. Topic A. Provision of Proper Facilities 791. Profession limited to original facilities. 792. Adherence to the original scope. 793. Proper equipment must be provided. 794. Ultimate responsibility for proper equipment. 795. Improvement of present facilities. 796. Provision of special equipment. Topic B. Obligation to Increase Facilities 797. Facilities which the service requires. 798. The obligation is not absolute. 799. Equipment sufficient for expected business. 800. Expected business not provided for. 801. Demand foreseen although unusual. 802. Reasonable time to increase facilities. 803. Pressure for short periods. 804. Equipment beyond its control. Topic C. Establishment of Stalional Facilities 805. Establishment of stations by legislation. 806. Requirement of stations by commissions. 807. Requirement of stations by the courts, conservative view. 808. Progressive view of the question of stations. [xli] TABLE OF CONTENTS 809. Where stations are required. 810. Closing stations. 811. Exact location of stations. 812. Proper facilities at stations. 813. Establishment of freight stations. 814. Establishing offices in other services. Topic D. Provision of Private Installation 815. No right to private sidings generally. 816. Rights of the railroad paramount. 817. When private switches must be granted. 818. The problem of stock yards. 819. Constitutionality of further legislation. 820. Railroad never obliged to construct siding. 821. Duty confined to permitting connection. 822. Obligation to receive upon spurs. 823. The company need only provide requisite facilities. 824. Provision of service pipes and feed wires. 825. Provision of transformers and meters. 826. Dictation as to fittings. CHAPTER XXIV DISTRIBUTION OF FACILITIES AVAILABLE 830. Proper management. Topic A. Arrangements Made for Facilitiea 831. Notice necessary for special requirements. 832. Reservation of accommodations granted. 833. Contract obligation to supply facilities. 834. New business accepted without notification. 835. Statutory definition of these obligations. 836. Constitutionality of legislative regulation. Topic B. Proper Priorities in Service 837. Imperative need of the company itself. 838. Emergency calls given precedence. 839. Personal requirements. 840. Perishable freight. 841. Business needs of the country. 842. Priority of accepted business. [xlii] TABLE OF CONTENTS Topic C. Assignment of Available Facilities 843. Right to assign facilities. 844. Separate accommodations. 845. Changing accommodations. 846. Insistence upon the unit of service. 847. Choice of facilities. 848. Separation based upon race. 849. Nor is discrimination permissible. Topic D. Fair Apportionment of Service 850. Duty not to discriminate. 851. Serving applicants in rotation. 852. Proration of limited supply. 853. Distribution of cars to stations. 854. No part of the system given preference. 855. Apportionment of cars to shippers. 856. Basis of prorating cars. 857. Private facilities considered in the apportionment. CHAPTER XXV REGULATION OF THE SERVICE 860. The function of regulations. Topic A. Establishment of Regulations 861. Who may make regulations. 862. Publication of regulations. 863. Changing regulations. 864. Waiver of regulations. 865. Essential elements of valid regulations. 866. Proper enforcement of regulations. Topic B. Regulations Governing the Service 867. Regulations for limiting the service. 868. Regulations relating to acceptance. 869. Reasonable conditions of performing service. 870. Establishment of stopping places. 871. Delivery districts. 872. Time-tables. 873. Waiting rooms. 874. Office hours. 875. Proper baggage. 876. Unusual baggage. [ xliii ] TABLE OF CONTENTS Topic C. Regulation of Patron's Conduct 877. Regulations requiring prepayment. 878. Regulations to prevent escape from payment. 879. Personal behavior of patron. 880. Bringing dangerous things prohibited. 881. Restriction of patron's position. 882. Passengers forbidden upon platforms. 883. Regulations governing the supply. 884. Use made of equipment. Topic D. Regulations Relating to Tickets 885. Ticket may be made indispensable. 886. Failure to produce ticket. 887. Extra charge when fare is paid on train. 888. No opportunity to obtain ticket. 889. Ticket agent's mistake. 890. Mistakes of the conductors. 891. Argument for the passenger. 892. Argument for the carrier. PART VII. LIABILITY FOR DEFAULT CHAPTER XXVI CONDUCT OF THE UNDERTAKING 900. Proper conduct of the undertaking. Topic A. Delay in Performing Service 901. Duty to act promptly. 902. Reasonable time allowed for performance. 903. Special circumstances calling for haste. 904. Adherence to schedule time. Topic B. Deviation from the Undertaking 905. Usual course of performing service. 906. Performance in unauthorized manner. 907. Transportation over wrong route. 908. Essential change by deviation. Topic C. Excuses for Default in Performing Service 909. Natural forces. 910. Governmental authority. [ xliv ] TABLE OF CONTENTS 911. Violent intervention. 912. Interruption by strike. 913. Interference of patron. 914. Press of business. Topic D. Liability Consequent upon Default 915. Delay must be negligent. 916. Loss directly caused by delay. 917. Loss merely concurrent with delay. 918. Extreme liability according to other authorities. 919. Negligence contributing to the catastrophe. 920. Negligence in not avoiding the catastrophe. 921. Absolute liability the result of deviation. 922. Absolute liability of special contract. CHAPTER XXVII PROTECTION OWED DURING PERFORMANCE 930. Extent of duty to protect. Topic A. Duty to Care for Patrons 931. Duty to care for patrons. 932. Extent of duty to care for patrons. 933. Special care in particular cases. 934. Disposition of dangerous persons. Topic B. Liability for Injuries Caused by Its Own Servant 935. Duty to protect passenger. 936. Obligation to protect guest. 937. Blameworthiness must be shown. 938. Basis of liability for unauthorized injury. 939. Action outside of the employment. 940. Cumulative liability where two services involved. Topic C. Protection Against Injury by Third Parties 941. Limited extent of the duty. 942. Protection against fellow passengers. 943. Injuries from negligent conduct. 944. Liability for injuries by outsiders. 945. Injuries resulting from overcrowding. 946. Proper extent of the duty. [xlv] TABLE OF CONTENTS 947. Duty of innkeepers to protect from third parties. 948. Special protection in sleeping cars. Topic D. Duty to Act in Emergencies 949. Duty to meet emergencies. 950. Duty to repair damage. 951. Duty to stop performance. 952. Duty to take appropriate action. CHAPTER XXVHI FAILURE IN THE UNDERTAKING 960. General theory of the liability. Topic A. Abnormal Liability as an Insurer 5 961. Early liability in common calling. 962. Subsequent development of the carrier's liability. 963. Absolute liability of the common carrier. 964. Subsequent development of innkeeper's liability. 965. Conflict in the American authorities. 966. Insurance liability not extended to persons. 967. Responsibility for animate chattels. Topic B. Abnormal Liability Rigidly Confined 968. The service must be public. 969. The service must be upon a public basis. 970. Service undertaken gratuitously. 971. Compensation included in the whole transaction. 972. The business must be carriage. 973. Carrier's liability not extended to other similar employments. 974. The business must be innkeeping. 975. The innkeeper's liability not extended to other employments. Topic C. Extent of Normal Liability 976. Absolute and relative liability contrasted. 977. Development of the rule requiring blameworthiness. 978. Liability of the carrier of passengers. 979. Liability of innkeepers for guests personally. 980. Liability of telegraph companies. 981. Liability of water companies. 982. Liability of gas companies. 983. Liability of electric companies. [xlvi] TABLE OF CONTENTS Topic D. Established Excuses from Att Liability 984. What constitutes act of God. 985. Act of God merely contributory. 986. Damage by public enemies. 987. How far the defense extends. 988. Vice of the property. 989. Natural propensities of animals. 990. Interference by patron. 991. Assumption by patron. CHAPTER XXIX LIMITATION OF LIABILITY 1000. Limitation upon liability possible. Topic A. Methods of Making Limitations 1001. Mere notice not sufficient. 1002. Special contract necessary. 1003. Acceptance of an instrument. 1004. Such acceptance not conclusive. 1005. Where consideration is found. 1006. Certain authorities more easily satisfied. Topic B. Limitation of Exceptional Liability as Insurer 1007. Such limitation not inconsistent with public duty. 1008. Statutory regulation of such contracts. 1009. Construction of the contract. 1010. Conflict of laws. Topic C. Stipulations against Liability for Negligence 1011. Such stipulation inconsistent with public duty. 1012. Authorities permitting such limitation. 1013. Such stipulations invalid in other services. 1014. Difficulties in the telegraph cases. 1015. Services outside of the profession. 1016. Services in course of business. 1017. Arrangements with connecting services. 1018. Stipulations in gratuitous arrangements. Topic D. Validity of Special Stipulations 1019. Limitation of valuation generally permitted. 1020. Qualification of this statement. [ xlvii ] TABLE OF CONTENTS 1021. Liability limited to set amount. 1022. Authorities opposed to such limitation. 1023. Stipulation for notification of loss. 1024. Little qualification of this doctrine. 1025. Similar stipulations in telegraph blanks. 1026. What time is reasonable. PART VIII. TERMINATION OF SERVICE CHAPTER XXX END OF THE UNDERTAKING 1030. When the undertaking is completed. Topic A. How Long Service Continues 1031. Interruption in transit. 1032. Temporary absence from an inn. 1033. Transfer to connecting service. 1034. End of innkeeper's liability as such. 1035. Termination of the carrier's liability as such. 1036. End of transportation. 1037. Reasonable time for removal. 1038. Whether notification is necessary. Topic B. How the Service Is Terminated 1039. Extent of obligation to deliver. 1040. Delivery by express companies. 1041. Delivery by telegraph companies. 1042. Delivery of goods by railroad companies. 1043. Delivery of bulky freight. 1044. Setting down passengers. Topic C. Whether Delivery Is Properly Made 1045. Performance according to instructions. 1046. Legal excuse for withholding delivery. 1047. Delivery to true owner. 1048. Delivery to wrong person. 1049. Delivery to the designated person. 1050. Demurrage charges. 1051. Full completion of performance. f xlviii 1 TABLE OF CONTENTS BOOK IV. REGULATION OF PUBLIC SERVICE PART IX. RESTRICTION OF CHARGES CHAPTER XXXI GENERAL THEORY OF RATE REGULATION 1060. General principles governing reasonableness. Topic A. The Schedule as a Whole 1061. Reasonableness of the schedule as a whole. 1062. Many elements to be taken into account. 1063. Reduction of particular rates leaving sufficient total earnings. 1064. Rule of proportionality in sharing costs. 1065. Rates must be fair to all concerned. 1066. Interests of the companies to be considered. 1067. Interests of the public to be considered. 1068. Accommodation of both sought. 1069. Enlightened policy in rate regulation. Topic B. The Particular Rale 1070. Reasonableness of the separate rate. 1071. Relation of the particular rate to the whole schedule. 1072. Rates unreasonable in themselves. 1073. Value of the service. 1074. What the traffic will bear. 1075. Making rates compared with levying taxes. 1076. Service of unusual value. 1077. Service not worth usual amount. 1078. Average cost always modified. CHAPTER XXXH PROPER BASIS OF CAPITALIZATION 1080. Various theories as to proper capitalization. Topic A. The Original Cost as the Common-law Basis 1081. Actual investment entitled to return. 4 [ xlix ] TABLE OF CONTENTS 1082. Argument for the rule of total investment. 1083. What is the actual cost. 1084. Cost enhanced by fraudulent contract. 1085. Plant built unnecessarily large. 1086. Plant adapted for a larger population. 1087. Construction now thought unwise. 1088. Proportion of plant not now utilized. 1089. Equipment long since superseded. 1090. Capital sunk in past operations. Topic B. Outstanding Capitalization 1091. Normal capitalization outstanding unconclusive. 1092. The problem of watered stock. 1093. Abandonment of par values. 1094. Bonded indebtedness beyond actual value. 1095. Stock issues based upon surplus earnings. 1096. Securities issued upon reorganization. 1097. State scrutiny of the issue of securities. 1098. Existing capitalization hardly excessive. Topic C. Present Value as the Constitutional Basis 1099. Protection of present values. 1100. Original cost as affecting present value. 1101. Value as a going concern. 1102. Whether return allowed on such value. 1103. Franchise value upon purchase. 1104. Franchise values not considered in rate regulation. 1105. Values returned for taxation inconclusive. 1106. Tax valuation does not estop the State. Topic D. Cost of Reproduction as the Basis 1107. The Minnesota rule. 1108. The Federal courts opposed. 1109. Explanation of the California decisions. 1110. Factors disregarded by the reproduction rule. 1111. Abandonment of the investment test impolitic. 1112. Two principles still persist. CHAPTER XXXm RATE OF RETURN 1120. Elements in determining a fair return. Topic A. Establishment of the Doctrine 1121. Establishment of the power to restrict charges. [1] TABLE OF CONTENTS 1122. Rates fixed must not produce a deficit. 1123. Adequate return must be left. 1124. Reduction leaving reasonable return. Topic B. Extent to Which Return Is Protected 1125. Reasonableness of return now judicial question. 1126. Fair return generally conceded. 1127. Reasonable rates not necessarily profitable. 1128. Reduction ruinous only to certain companies. 1129. Possibility of increase of business at the lowered rates. 1130. Reasonable profit upon each transaction. Topic C. Fair Rate of Return 1131. Interest upon bonds protected. 1132. Dividends upon stock protected. 1133. Current rate of return. 1134. Reasonable profits sufficiently safe. 1135. Unreasonable profits not protected. 1136. Business profit now recognized. 1137. Greater profit for better service. Topic D. Character of the Enterprise 1138. Larger returns in risky enterprises. 1139. Public service has its peculiar risks. 1140. Special hazards of the business considered. 1141. Commercial conditions affecting dividends. CHAPTER XXXIV OPERATING EXPENSES * 1150. Real cost of operation. Topic A. Cost of Performing Service 1151. Cost of rendering service. 1152. Salaries paid to officials. 1153. Expenditures to get business. 1154. Current taxes. 1155. Outstanding loans. 1156. Interest payable. 1157. Dividends declared. Topic B. Expenditures on the Plant 1158. Expense of maintaining equipment. 1159. Losses due to accident. TABLE OF CONTENTS 1160. Betterments considered as maintenance. 1161. Replacement considered as repair. 1162. Renewal of equipment to offset depreciation. 1163. Permanent improvements should not be annual charge. 1164. New construction should be charged to capital account. 1165. A liberal policy desirable. Topic C. Amortization Requirements 1166. Depreciation now generally allowed. 1167. Full allowance still begrudged. 1168. Refusal to allow depreciation. 1169. Fund .to repair depreciation. 1170. Capitalization of past depreciation. 1171. Payments into sinking fund. 1172. Sinking fund for municipal bonds. 1173. Amortization of franchise rights. Topic D. Operations of Consolidated Properties 1174. Complications in case of systems. 1175. System generally taken as a whole. 1176. Unprofitable portions of the line not considered. 1177. Expenditures for different parts apportioned. 1178. Constituent companies operated under separate charters. 1179. Rent of leased portions. 1180. If rental becomes unjustifiable. CHAPTER XXXV V DETERMINATION OF PARTICULAR RATES 1190. Various theories as to rate making. Topic A. Cost of the Service as the Basis 1191. Proper proportion of total costs. 1192. Apportionment of separate costs to different services. 1193. Alloration of joint costs. 1194. Apportionment between interstate and intrastate business 1195. Apportionment of total expense. 1196. Basis of the distribution. 1197. Proportionate share of different classes. 1198. Average rate per unit of service. 1199. Recognition of the ton-mile cost basis. 1200. Ton-mile cost basis not oppressive. [Hi] TABLE OF CONTENTS 1201. Authorities permitting disproportionate rates. 1202. Authorities opposed to disproportion. Topic B. Factors Modifying Average Cost 1203. Cost of service insufficient in itself. 1204. Current theories as to relative rates. 1205. Amount of service asked as a factor. 1206. Local business peculiarly expensive. 1207. Special conditions affecting cost. 1208. Circumstances of particular service. 1209. Proportionate rates always legal. 1210. Full extent of the doctrine. Topic C. Value of Service as the Basis 1211. What the traffic will bear. 1212. Necessity of legal limitation. 1213. Worth of the service to the individuals taken as a whole. 1214. Cost of obtaining a substitute for the service. 1215. External standards of value 1216. Rates reasonable per se. 1217. The Kansas City Stock Yards Case. 1218. The Niagara Bridge Case. 1219. These cases apparently distinguishable. Topic D. Economic Principles Affecting Rate Making 1220. Law of decreasing costs. 1221. Exceptions to law of decreasing cost. 1222. Competition as a factor. 1223. Policy for permitting competitive rates. 1224. Necessary limitation upon these principles. 1225. Equalization of commercial advantage. 1226. Argument against preferential rates. 1227. Conclusion as to proportional rate. 1228. Conflicting theories still persist. CHAPTER XXXVI CHARACTERISTICS OF THE RATE 1230. Fixing the particular rate. Topic A. Classification in Rate Schedules 1231. Prevelance of classification. 1232. History of railroad classification. TABLE OF CONTENTS 5 1233. Usual division into classes. 1234. Distribution of the burden by classification. 1235. Reasonableness of classification requisite. 1236. Influences determining proper classification. 1237. Like classification for similar goods. 1238. Different classification for dissimilar goods. 1239. Business expensive to handle. 1240. Service performed at lower cost. Topic B. Method of Fixing Rates 1241. Basis upon which charges may be made. 1242. Establishment of the unit of charge. 1243. Methods of computing freights. 1244. Different basis in supply services. 1245. Requiring metering not discrimination. 1246. Query as to the flat rate. 1247. Justification of the minimum charge. 1248. Principle applicable in all public service. 1249. Unit must be reasonable. 1250. Reasonableness of the period fixed. 1251. Minimum rate distinguished from equipment charge. 1252. Initial unit distinguished from repeat unit. Topic C. The Journey the Unit 1253. The journey is a single entire unit. 1254. Ticket good only for through transportation. 1255. Passenger cannot take two journeys for a single fare. 1256. Two partial fares for a single journey. 1257. Part of journey completed before fare collection. 1258. Resumption of journey by ejected passenger. 1259. Passenger expelled at a regular station. 1260. Change of destination during the journey. 1261. Second journey on same train. 1262. No separate charge for a part of the transit. Topic D. The Shipment the Unit 1263. Maritime freight. 1264. Right to freight on land. 1265. Effect of carriage over a portion of the journey. 1266. No freight without delivery. 1267. Effect of partial delivery. 1268. Freight indivisible as a rule. 1269. Entire freight when goods arrive damaged. 1270. General principles as to additional charges. [Hv] TABLE OF CONTENTS PART X. PREVENTION OF DISCRIM- INATION CHAPTER XXXVH PROHIBITION OF DISCRIMINATION 1280. The rule against discrimination. Topic A. Development of the Ride 1281. Evolution of the rule. 1282. No law originally against discrimination as such. 1283. Later rule against unreasonable differences. 1284. Special rates may not be discriminatory. 1285. Exclusiveness once held indispensable. 1286. Discrimination as evidence of unreasonable rates. 1287. Complainant charged more than regular rates. 1288. Others charged less than regular rates. 1289. Outright discrimination universally condemned. 1290. Modern law against all discrimination. 1291. Necessity for the rule against discrimination. 1292. Discrimination inconsistent with public duty. Topic B. What Constitutes Illegal Discrimination 1293. What amounts to a rebate. 1294. Sanctity of the schedule rate. 1295. Explanation of this policy. 1296. Decisions inconsistent with this policy. 1297. Continuing contracts no justification. 1298. Executed contracts on a different basis. 1299. Rule not limited to discrimination between competitors. 1300. Rule universal in public service. 1301. Giving free passes discrimination. 1302. Statutory exceptions usually made. 1303. Reductions for charitable purposes. 1304. Concessions for government business. 1305. Reductions for general classes. 1306. No obligation to grant such concession. CHAPTER XXXVHI ILLEGAL DISCRIMINATION 1310. What constitutes illegal discrimination. TABLE OF CONTENTS Topic A. Concessions to get Competitive Business 1311. Concessions once allowed in competition. 1312. Competitive conditions no justification. 1313. Concessions to get outside business. 1314. Rebating to get business illegal. 1315. Competitive rates for through business. 1316. Additional services performed for certain customers. 1317. Customers induced to make expensive preparations. Topic B. Concessions to Large Customers 1318. Whether concessions may be made to large customers. 1319. Unreasonable differences universally forbidden. 1320. Reasonable differences sometimes permitted. 1321. Authority for such differentials. 1322. Prevelant doctrine against such concessions. 1323. Services to large and small customers practically identical. 1324. Company need never grant such reductions. Topic C. Rebates to Exclusive Customers 1325. Whether exclusive policies may be adopted. 1326. Such discriminations foster monopolies. 1327. Those who use rival line charged more than usual. 1328. Lower rates to exclusive customers sometimes permitted. 1329. Comparison of these decisions. 1330. Customers contracting for large amounts. 1331. Customers under exclusive contract to give business. Topic D. Concessions for Special Kinds of Business 1332. Different rates for service differently employed. 1333. Such rates allowed by some cases. 1334. Repudiation of this doctrine. 1335. Supply put to different uses. 1336. Discrimination in such supply. 1337. Commodities carried of different character. 1338. Supply under different conditions. CHAPTER XXXIX JUSTIFIABLE DIFFERENCES 1340. Propriety of proportionate rates. Topic A. Actual Differences in Total Costs 1341. Extent of the rule against discrimination. 1342. Differences in the cost. TABLE OF CONTENTS 1343. Economies in passenger transportation. 1344. Economies in freight transportation. 1345. Different charges for different service. 1346. Difference in the nature of the service. 1347. Both rates must be open to all. Topic B. Service in Mare Convenient Units 1348. Shipment in carloads. 1349. Shipments made in bulk. 1350. Comparison of bulk and package rates. 1351. Shipments in train loads. 1352. Regular shipments in large units. 1353. Units in passenger service. 1354. Operating units in supplying service. 1355. Such reductions apparently discriminatory. Topic C. Facilities Furnished by Customers 1356. Terminal facilities furnished by shippers. 1357. Transportation expenses paid by shipper. 1358. Rental paid for shipper's cars. 1359. Allowances for facilities closely scrutinized. 1360. Allowances for facilities still permissible. Topic D. Independent Consideration for Reductions 1361. When consideration is given for reduction. 1362. Indefinite considerations considered dangerous. 1363. Reductions for services rendered. 1364. Continuing obligations for past consideration. 1365. Concessions to those with whom it deals. 1366. Rates adopted to foster its interests. CHAPTER XL RELATIVE DISCRIMINATION 1370. Essential illegality of relative discrimination. Topic A. Discrimination Between Localities Served 1371. Unjust rates between localities. 1372. Evidence of disproportionate charging. 1373. Railroad rates not upon a mileage basis. 1374. Various systems of making distance rates. 1375. Long and short haul. 1376. The similar circumstances proviso. [Ivii] TABLE OF CONTENTS 1377. Competition as a justification for disproportion. 1378. Undue preference. 1379. Argument for competitive rates. 1380. Competitive rates must not be ruinous. 1381. Reconsignment arrangements. 1382. Back freights. 1383. Equalization of economic advantage. 1384. Law against commercial equalization. 1385. No obligation to make preferential rates. 1386. Due consideration of true differences. Topic B. Discrimination Between Services Rendered 1387. Disproportionate rates for different services. 1388. Charging what the traffic will bear. 1389. Difference in rate between freight classes. 1390. Differences should not be grossly disproportionate. 1391. Comparison the basis of the differential. 1392. Difference in commodity rates. 1393. Rates vary with values. 1394. Improper to equalize values. 1395. Policy against all discrimination. 1396. Relative discrimination inconsistent with public duty. CHAPTER XLI CONSTITUTIONAL SUMMARY 1400. Control of public employment. Topic A. Character of the Power to Regulate 1401. Nature of the power to regulate. 1402. Power to regulate not a judicial power. 1403. Power to regulate not strictly legislative. 1404. Power to regulate is administrative. 1405. Regulating body presumably reasonable. 1406. Duty of the courts to decide reasonableness. Topic B. Method of Exercising the Power to Regulate 1407. Fixing rules by legislation. 1408. Delegation of regulating power. 1409. Functions of administrative commissions. 1410. Action by municipal, or other local government. 1411. Function of the courts in declaring regulation void. 1412. When suit is against State official. [ Iviii ] TABLE OF CONTENTS Topic C. Division Between Federal and State Jurisdiction 1413. What constitutes interstate commerce. 1414. Continuous carriage under common control. 1415. Continuity of interstate shipment. 1416. Carriage wholly within the State. 1417. State legislation burdening interstate commerce. 1418. Scope for State police power. 1419. Effect of action by Congress. 1420. Power of Congress to regulate. Topic D. Impairing Obligation of Contract 1421. Contract character of charter privileges. 1422. Express contractual provision necessary. 1423. Conferring powers does not create contract. 1424. Contracts made by municipal ordinance. 1425. Loss of the privilege. 1426. Assignment of the privilege. Topic E. Confiscation of Property 1427. The doctrine of the "Granger" cases. 1428. Early modification of the doctrine. 1429. Fair return finally protected. 1430. When rates are confiscatory. 1431. When fair net earnings left. 1432. Reasonable rates not necessarily profitable. Topic F. Due Process of Law 1433. Imposition of absolute liability. 1434. Requiring service outside employment. 1435. Police power unusually extensive. 1436. Regulation must not be discriminatory. 1437. New limitations upon industrial liberty. 1438. Differentiation of the public services. 1439. Ultimate regulation of all monopoly. 1440. State control not socialism. APPENDIX A THE INTERSTATE COMMERCE ACT 1. Regulation of transportation. 2. Unjust discrimination defined and forbidden. 3. Undue or unreasonable preference or advantage forbidden. 4. Long and short hand provision. [lix] TABLE OF CONTENTS 5. Pooling of freights and division of earnings forbidden. 6. Printing and posting of schedules. 7. Continuous carriage of freights. 8. Liability of common carriers for damages. 9. Election whether to complain to the commission or bring suit. 10. Penalties for violations of act by carriers. 11. The Interstate Commerce Commission. 12. Powers and duties of the commission. 13. Complaints to commission. 14. Commission must make reports. 15. Commission may prescribe rates and classifications. 16. Award of damages by commission. 16a. Commission may grant rehearings. 17. Form of procedure. 18. Organization of the commission. 19. Office of the commission. 20. Annual reports to commission. 21. Annual reports of the commission. 22. Persons and property that may be carried free or at reduced rates. 23. Jurisdiction of United States courts. 24. Constitution of the commission. APPENDIX B THE COMMEECE COURT ACT 1. Creation and jurisdiction of Commerce Court. 2. Appeals to Supreme Court. 3. Suits to enjoin orders of commission. 4. Suits to be brought by or against United States. 5. Control of such suits. 6. Pending and other proceedings. 7. Pending cases. 8. Special commission to investigate securities. 9. Interlocutory injunctions restraining enforcement of State statutes. 10. When act effective. APPENDIX C THE ELKINS ACT 1. Carrier corporation as well as officer liable to conviction. 2. Persons interested may be made parties. fix! TABLE OF CONTENTS 3. Proceedings to enjoin departures from published rates. 4. Conflicting laws repealed. APPENDIX D THE EXPEDITING ACT 1. Expedition of cases. 2. Appeal to Supreme Court. APPENDIX E FORMS FOR PROCEEDINGS BEFORE COMMISSIONS 1. Complaint of unreasonable charges. 2. Complaint of wrong classification. 3. Answer on the merits. 4. Answer denying the jurisdiction. APPENDIX F FORMS FOR PROCEEDINGS INVOLVING COMMISSIONS 1. Bill to enforce order of the Commission. 2. Abstract of answer to above complaint. 3. Bill to enjoin order of the Commission. 4. Abstract of answer to this bill. [bd] TABLE OF CASES CITED [References are to sections] Abbey v. Steamboat Stevens, 22 How. Pr. 78 (1861), 173, 774. Abbot v. Oregon Ry. & Nav. Co., 46 Oreg. 549 (1905), 398, 873. Abbott v. Bradstreet, 55 Me. 530 (1868), 769. Abraham v. Western Union Tel- egraph Co., 23 Fed. 315 (1885), 980, 1014. Abrams v. Platt, 23 N. Y. Misc. 637 (1898), 741. Adams v. Clem, 41 Ga. 65 (1870), 1034. Adams v. Freeman, 12 Johns. 408, 7 Am. Dec. 327 (1815), 106. Adams v. Union R. R. Co., 21 R. I. 134 (1899), 347. Adams Express Co. v. Bratton, 106 111. App. 563 (1902), 902. Adams Express Co. v. Carnahan, 29 Ind. App. 606 (1902), 1003, 1021. Adams Express Co. v. Common- wealth, 33 Ky. L. Rep. 967 (1908), 600. Adams Express Co. v. Common- wealth, 29 Ky. L. Rep. 224 (1906), 600. Adams Express Co. v. Cressap, 6 Bush, 572 (1869), 970. Adams Express Co. v. Darnell, 31 Ind. 20 (1869), 1040. Adams Express Co. v. Harris, 120 Ind. 73 (1889), 1005, 1022. Adams Express Co. v. Kentucky, 206 U. S. 129 (1907), 1418. Adams Express Co. v. Kentucky, 214 U. S. 218 (1910), 1418. Adams Express Co. v. McCon- nell, 27 Kans. 238 (1882), 178, 776. Adams Express Co. v. Nock, 2 Duv. 562 (1866), 1003. Adams Express Co. v. Reagan, 29 Ind. 21 (1867), 1026. Adams Express Co. v. State, 161 Ind. 328 (1903), 178. Adams Express Co. v. Stettaners, 61 111. 184 (1871), 1020. Adams & Co. v. Blankenstein, 2 Cal. 413 (1852), 1048. Agee & Co. v. Louisville & N. R. Co., 142 Ala. 344 (1904), 224, 225, 822. Agnew v. Steamer Contra Costa, 27 Cal. 425 (1865), 963. Ahern v. Minn. St. Ry. Co., 102 Minn. 435 (1907), 754. Aiken & Co. v. Eager & Co., 35 La. Ann. 567 (1883), 102, 232. Aiken v. Western Union Tele- graph Co., 5 S. C. 358 (1874), 348, 1014. Airey v. Pullman Palace Car Co., 50 La. Ann. 648 (1898), 776. Akron v. East Ohio Gas Co., 53 Oh. L. Bull. 441 (1908), 305. [Ixiii] TABLE OF CASES CITED [References are to sections] Alabama & V. Ry. Co. v. Bri- chett, 72 Miss. 891 (1895), 952. Alabama & V. Ry. Co. v. Missis- sippi R. R. Comm., 203 U. S. 496 (1906), 1385. Alabama & V. R. R. Co. v. Rail- road Comm., 86 Miss. 667 (1905), 682, 1132, 1315, 1381. Alabama & V. Ry. Co. v. Tirelli Bros., 93 Miss. 797 (1909), 1046. Alabama Gt. So. Ry. Co. v. Ar- nold, 84 Ala. 159 (1888), 398, 873. Alabama Gt. So. Ry. Co. v. Mt. Vernon Co., 84 Ala. 173 (1887), 726. Alabama Gt. So. Ry. Co. v. Quarles & C., 145 Ala. 436 (1906), 902, 918. Alabama Gt. So. Ry. Co. v. Thomas, 89 Ala. 294 (1889), 525. Alair v. Northern Pacific Ry. Co., 53 Minn. 160 (1893), 1021. Albany Tel. Co. v. Terry (Tex. Civ. App.), 127 S. W. 567 (1910), 533. Albers v. Western Union Tel. Co., 98 Iowa, 51 (1896), 1025, 1026. Albert v. Davis, 49 Neb. 579 (1896), 825. Albin v. Chicago, R. I. & P. Ry. Co., 103 Mo. App. 308 (1903), 735. Albin v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.), 95 S. W. 589 (1906), 872. Albion Lumber Co. v. De Nobra, 72 Fed. 739 (1896), 207, 223, 340. [ Ixiv ] Albright v. Perm, 14 Tex. 290 (1855), 182. Alden v. New York C. R. R. Co., 26 N. Y. 102 (1862), 977. Aldrich C. S. Mfg. Co. v. Amer- ican Exp. Co., 117 Mich. 32 (1898), 1048. Alexander v. Green, 3 Hill, 9 (1842), 7 Ibid. 533 (1844), 150, 160, 173, 774, 972. Alexander v. Nanticoke Light Co., 209 Pa. St. 571 (1904), 983. Alexandria Bay Stb. Co. v. New York C. & H. R. R. R. Co., 18 N. Y. App. Div. 527 (1897), 102, 488. Alexandria Bay Stb. Co. v. New York C. & H. R. R. R. Co., 45 N. Y. Supp. 1091 (1897), 811. Alexandria, The City of, 28 Fed. 202 (1886), 732, 741. Aliso Water Co. v. Baker, 95 Cal. 268 (1892), 221, 242. Allam v. Pennsylvania R. R. Co., 183 Pa. St. 174 (1897), 1007, 1042. Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185 (1872), 64. Allen v. Lake Shore & Mich. S. Ry. Co., 57 Ohio St. 79 (1897), 763, 870. Allen v. Maine Central R. R. Co., 79 Me. 327 (1887), 1046. Allen v. Oregon Ry. & Nav. Co., 98 Fed. 16 (1899), 534. Allen v. Sackrider, 37 N. Y. 341 (1867), 235, 239. Allen v. Sewell, 2 Wend. (N. Y.) 327 (1829), 255. Allen v. Smith, 12 C. B. (N. S.) 638 Eng. (1862), 1032. Allen v. Somers, 73 Conn. 355, (1900), 143. TABLE OF CASES CITED [References are to sections] Allen v. Texas & P. Ry. Co., 100 Tex. 525 (1907), 798, 835, 836, 1433. Allen Mfg. Co. v. Shreveport Wa- terworks Co., 113 La. 1091 (1905), 350. Allen & G. R. Co. v. Can. Pac. Ry. Co., 42 Wash. 64 (1906), 512. Allender v. Chicago, R. I. & P. R. R. Co., 37 la. 264 (1873), 401. Allis v. Voigt, 90 Mich. 125 (1892), 238, 239, 968. Allnutt v. Inglis, 12 East, 527 (1810), 54. Alpena Electric Co. v. Alpena, 130 Mich. 413 (1902), 1123, 1430. Alsop v. Southern Exp. Co., 104 N. C. 278 (1889), 178, 392, 477, 868. Altoona v. Shellenberger, 6 Pa. Dist. Rep. 544 (1897), 456. Alvord v. Syracuse, 103 N. Y. 158 (1900), 824. American Banana Co. v. United Fruit Co., 160 Fed. 184 (1908), 695, 707. American Dist. Tel. Co. v. Walker, 72 Md. 454 (1890), 108. American Express Co. v. Com- monwealth, 30 Ky. L. Rep. 207 (1906), 600. American Express Co. v. Green- halgh, 80 111. 68 (1875), 1047. American Express Co. v. Hag- gard, 37 111. 465 (1865), 1040. American Express Co. v. Hockett, 30 Ind. 250 (1868), 776, 1040. American Express Co. v. Ken- tucky, 206 U. S. 139 (1907), 600. American Express Co. v. Ogles (Tex. Civ. App.), 81 S. W. 1023 (1904), 758. American Express Co. v. Perkins, 42 111. 458 (1867), 991. American Express Co. v. Second Nat. Bank, 69 Pa. St. 394 (1871), 1003. American Express Co. v. Smith, 33 Ohio St. 511 (1878), 178, 776, 903, 909, 951, 952. American Express Co. v. Southern Indiana Exp. Co., 167 Ind. 292 (1906), 523, 682, 871. American Express Co. v. United States, 212 U. S. 522 (1909), 1290, 1302. American Grocery Co. v. Staten Island R. T. Ry. Co., 51 N. Y. Supp. 307 (1898), 1023. American Lighting Co. v. Public Service Corporation, 132 Fed. 794 (1904), 374, 702. American L. & T. Co. v. General Electric Co., 71 N. H. 192 (1901), 113. American L. S. Commission Co. v. Chicago L. S. Exchange, 143 111. 210 (1892), 146. American Merch. Union Exp. Co. v. Milk, 73 111. 224 (1874), 1048. American Merch. Union Exp. Co. v. Phillips, 29 Mich. 515 (1874), 256. American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352 (1881), 136, 692. American St. Ship Co. v. Bryan, 83 Pa. St. 446 (1877), 769. American Tie & Timber Co. v. Kansas City S. Ry. Co., 175 Fed. 28 (1909), 850, 1365. [Ixv] TABLE OF CASES CITED [References are to sections] American Union Coal Co. v. Pennsylvania R. R. Co., 159 Fed. 278 (1908), 1294. American Waterworks Co. v. State, 46 Neb. 194 (1895), 92, 215, 451, 690, 866. Ames v. Fargo, 114 N. Y. App. Div. 666 (1906), 393, 414, 727, 989, 991. Ammons v. Railroad, 138 N. C. 555 (1905), 878. Anchor Line v. Dater, 68 111. 369 (1873), 1004. Ancrum v. Camden Water, L. & I. Co., 82 S. C. 284 (1908), 350. Anderson v. Citizens' St. R. R. Co., 12 Ind. App. 194 (1894), 1044. Anderson v. Louisville & N. R. R. Co., 62 Fed. 46 (1894), 848. Anderson v. Louisville & N. R. Co., 134 Ky. 343 (1909), 440, 886. Anderson v. Mobile & 0. R. R. Co. (Miss.), 38 So. 661 (1905), 409, 730. Anderson v. St. Cloud, 79 Minn. 88 (1900), 795. Anderson v. Village of Berwyn, 135 111. App. 8 (1907), 825. Anderson v. Western Union Tele- graph Co., 84 Tex. 17 (1892), 412, 437. Andrews v. North River Electric Co., 53 N. Y. Supp. 810 (1898), 411. Andrus v. Columbia & 0. Stb. Co., 47 Wash. 333 (1907), 520, 521,907,952. Annas v. Milwaukee & N. R. R. Co., 67 Wis. 46 (1886), 785, 786, 1018. [Ixvi] Anniston Cordage Co. v. Western Union Telegraph Co., 161 Ala. 216 (1909), 348. Annon, Matter of, 50 Hun, 413 (1888), 149. Anonymous, F. N. B. 948, 961. Anonymous, Y. B. 11 Ed. IV, 6, pi. 10, 6. Anonymous, Y. B. 22 Ed. IV, 49, pi. 15, 7, 8, 12. Anonymous, Y. B. 42 Ed. Ill, 11, pi. 13 (1367), 770. Anonymous, Y. B. 42 Ed. Ill, 3, pi. 11, 961. Anonymous, Y. B. 43 Ed. Ill, 6, pi. 11, 6. Anonymous, Y. B. 43 Ed. Ill, 33, pi. 38, 961. Anonymous, Y. B. 46 Ed. Ill, 19, pi. 19, 8, 201. Anonymous, Y. B. 11 Hen. IV, 45, pi. 18 (1410), 12, 770. Anonymous, Y. B. 3 Hen. VI, 36, pi. 33, 6. Anonymous, Y. B. 10 Hen. VII, 8, pi. 14 (1494), 9, 12, 430. Anonymous, Y. B. 14 Hen. VII, 22, pi. 4, 12. Anonymous, Y. B. 14 Hen. VII, Rast. Ent. 2, 6, 1, 201. Anonymous, Y. B. 19 Hen. VI, 49, pi. 5, 6, 201. Anonymous, Y. B. 21 Hen. VI, 55, pi. 12, 8. Anonymous, Y. B. 27 Lib. Assis. 138, pi. 44, 10. Anonymous, Y. B. 39 Hen. VI, 18, pi. 24, 9, 430. Anonymous, Godbolt, 345, pi. 440 (1623), 12, 203, 315. Anonymous, Keilway, 50, pi. 4, 8, 12. Anonymous, Y. B. 22 Lib. Assis. 94, pi. 41, 14, 201. TABLE OF CASES CITED [References are to sections] Anonymous,"Dall. 8, Y. B. 42 Lib. Assis. 260, pi. 17, 961. Anonymous, 12 Mod. 3 (1702), 255. Anonymous, 1 Roll. Abr. 10, pi. 5,6. Apex Transportation Co. v. Gar- bade, 32 Oreg. 582 (1898), 222. Apollon, The, 9 Wheat. 362 (1824), 1050. Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32 (1886), 970. Archambault v. Gt. North West- ern Telegraph Co., 14 Que- bec, 8 (1886), 605, 633. Archer v. Union Pacific Ry. Co., 110 Mo. App. 349 (1905), 395, 873. Arctic Fire Ins. Co. v. Austin, 54 Barb. 559 (1869), 173, 774. Arkansas & L. R. R. Co. v. Sain, 90 Ark. 278 (1909), 371. Arkansas Railroad Rates, 163 Fed. 141 (1908), 1129, 1195, 1196, 1220. Arkansas R. R. Rates, 168 Fed. 920 (1909), 1086, 1127, 1152, 1159, 1201. Arkansas Southern Ry. Co. v. German Nat. Bank, 77 Ark. 482 (1906), 1045. Armfield v. Humphrey, 12 111. App. 90 (1882), 170, 236, 238. Armour v. Michigan Central Ry. Co., 65 N. Y. Ill (1875), 748. Armour Packing Co. v. Edison Electric Illuminating Co., 115 N. Y. App. Div. 51 (1906), 113, 214, 215, 243, 605, 1290, 1300. Amour Packing Co. v. United States, 209 U. S. 56, 1297. Armstrong v. Chicago, M. & St. P. Ry. Co., 53 Minn. 183 (1893), 1023, 1026. Armstrong, Admx., v. Montgom- ery St. Ry. Co., 123 Ala. 233 (1898), 865. Arnold v. Cov. & Cin. Bridge Co., 1 Duval, 372 (1864), 53, 241. Arnold v. Pennsylvania R. R. Co., 115 Pa. St. 135 (1887), 738. Arnold v. Rhode Island Co., 28 R. I. 118 (1907), 890. Arrowsmith v. Nashville & D. Ry. Co. (C. C.), 57 Fed. 165 (1893), 777. Arthur v. Texas & P. Ry. Co., 204 U. S. 505 (1907), 399, 727 732. Arthur et al. v. St. Paul & D. Ry. Co., 38 Minn. 95 (1887), 1036. Asher v. Hutchinson Water, L. & P. Co., 66 Kan. 496 (1903), 92, 242, 297, 306, 307. Ashley v. Rocky Mountain Bell Telephone Co., 25 Mont. 286 (1901), 431, 443. Ashmore v. Penn. Steam Towing Trans. Co., 28 N. J. 180 (1860), 173, 774, 1011. Astor v. Arcade Ry. Co., 113 N. Y. 93 (1888), 179. Atchison & Neb. R. R. Co. v. Miller, 16 Neb. 661 (1884), 1002. Atchison & N. R. R. Co. v. Wash- burn, 5 Neb. 117 (1876), 256. Atchison, T. & S. F. R. R. Co. v. Denver & N. 0. R. R. Co., 110 U. S. 667 (1884), 527, 533, 805, 807, 811. Atchison, T. & S. F. R. R. Co. v. Dill, 48 Kan. 210 (1892), 1003, 1005. [ Ixvii ] TABLE OF CASES CITED [References are to sections] Atchison, T. & S. F. R. R. Co. v. Ditmars, 3 Kan. App. 459 (1896), 772. Atchison, T. & S. F. R. R. Co. v. Gants, 38 Kan. 008 (1888), 865, 870, 872. Atchison, T. & S. F. R. R. Co. v. Jandera, 24 Okla. 106 (1909), 367. Atchison, T. & S. F. R. R. Co. v. Headland, 18 Colo. 477 (1893), 745, 746. Atchison, T. & S. F. R. R. Co. v. Holmes, 18 Okla. 92 (1907), 1294. Atchison, T. & S. F. R. R. Co. v. Morris, 65 Kan. 532 (1902), 1023. Atchison, T. & S. F. R. R. Co. v. Roberts, 3 Tex. Civ. App. 370 (1893), 438. Atchison, T. & S. F. R. R. Co. v. Schriver, 72 Kan. 550 (1906), 1045. Atchison, T. & S. F. R. R. Co. v. Weber, 33 Kan. 543 (1885), 629, 639, 933, 934. Atchison, T. & S. F. R. R. Co. v. Wood (Tex. Civ. App.), 77 S. W. 964 (1903), 629, 633. Atkinson v. Sellers, 5 C. B. (N. S.) 442 (1858), 364. Atlanta Baggage Cab Co. v. Mizo, 4 Ga. App. 407 (1908), 171. Atlanta, City of, v. Burton, 90 Ga. 486 (1892), 456. Atlanta Consol. St. Ry. Co. v. Keeny, 99 Ga. 266 (1896), 441. Atlanta Terminal Co. v. American Baggage & T. Co., 125 Ga. 677 (1906), 390, 391, 501. [ Ixviii ] Atlantic & P. Ry. Co. v. United States, 76 Fed. 186 (1896), 1099, 1175, 1407. Atlantic & Pac. Tel. Co. v. West- ern Union Telegraph Co., 4 Daly (N. Y.), 527 (1873), 516, 520. Atlantic City v. Dehn, 69 N. J. L. 233 (1903), 107, 185, 213. Atlantic City v. Fansler, 70 N. J. L. 491 (1904), 205. Atlantic C. L. Ry. Co. v. Com- monwealth, 102 Va. 599 (1904), 1409. Atlantic C. L. Ry. Co. v. Florida, 203 U. S. 256 (1906), 1071, 1078, 1198, 1199. Atlantic C. L. Ry. Co. v. Geraty, 166 Fed. 10 (1908), 399, 795, 801. Atlantic C. L. Ry. Co. v. Mazur- sky, 216 U. S. 122 (1910), 1418. Atlantic C. L. Ry. Co. v. North Carolina Corp. Comm., 206 U. S. 1 (1907), 211, 540, 836, 1434. Atlantic C. L. Ry. Co. v. Rice (Ala.), 52 So. 918 (1910), 413, 414, 991. Atlantic C. L. Ry. Co. v. Whar- ton, 207 U. S. 328 (1907), 797, 1417. Atlantic Express Co. v. Wilming- ton & W. R. R. Co., Ill N. C. 463 (1892), 477. Attorney General, In re, 113 Wis. 623 (1902), 305. Attorney General of New Bruns- wick, Ex parte, 1 Pug. & Bur. 667, 211. Attorney General v. City of Bos- ton, 123 Mass. 460 (1877), 299. TABLE OF CASES CITED [References are to sections] Attorney General v. Detroit & Erie Plank Road Co., 2 Mich. 138 (1851), 75, 241. Attorney General v. Great North- ern R. R. Co., 29 L. J. Eq. (N. S.) 794 (1860), 503, 703. Attorney General v. Pingree, 120 Mich. 550 (1899), 64. Atwater v. Delaware, L. & W. R. R. Co., 48 N. J. L. 55 (1886), 449, 450, 642. Atwater v. Sawyer, 76 Me. 539 (1884), 106, 213, 569, 646. Audenried v. Philadelphia & R. R. R. Co., 68 Pa. St. 370 (1871), 232, 501, 1282. Auerbach v. New York C. & H. R. R. R. Co., 89 N. Y. 281 (1882), 446, 1254. Augusta Ry. & El. Co. v. Smith, 121 Ga. 29 (1904), 864. Augusta S. R. Co. v. Wrightsville & T. R. Co., 74 Fed. 522 (1896), 534, 1373, 1414. Aurora, City of, v. West, 9 Ind. 74 (1857), 217. Aurora v. Elgin Traction Co., 227 111. 485 (1907), 192. Aurora Water Co. v. Aurora, 129 Mo. 540 (1895), 981. Austin v. Great W. Ry., L. R. 2 Q. B. 442 (1867), 341. Austin v. St. Louis & S. F. R. Co. (Mo. App.), 130 S. W. 385 (1910), 1031. Averill v. Southern Ry. Co., 75 Fed. 736 (1896), 694. Avery v. Vermont Electric Co., 75 Vt. 235 (1902), 60, 95, 113, 114, 243. Avinger v. South Carolina Ry. Co., 29 S. C. 265 (1888), 224, 225, 551, 822, 1282, 1311. Ayer v. Western Union Telegraph Co., 79 Me. 493 (1887), 244, 766, 1014, 1025. Ayers v. Western Union Tel. Co., 72 N. Y. S. 634 (1901), 1041. Aymar v. Astor, 6 Cow. (N. Y.) 266 (1826), 235. Ayres v. Chicago & Northwestern Ry. Co., 71 Wis. 372 (1888), 256, 345, 408, 662, 663, 664, 665, 722, 799, 800, 831, 834, 853, 854, 914. Ayres v. Delaware, L. & W. R. R. Co., 28 N. Y. Supp. 789 (1894), 943. B Babcock v. Herbert, 3 Ala. 392 (1842), 160, 182, 213, 239. Babcock v. Lake Shore & M. S. Ry. Co., 49 N. Y. 491 (1872), 515, 531. Bachant v. Boston & M. R. R. Co., 187 Mass. 392 (1905), 1042. Bacon v. Casco Bay Steamboat Co., 90 Me. 46 (1897), 1017. Bacon v. Pullman Co., 159 Fed. 1 (1908), 769. Baehr v. Downey, 133 Mich. 163 (1903) 1034. Baggett v. Baltimore & O. R. R. Co., 3 D. C. App. Gas. 522 (1894), 889. Bailey v. Damon, 3 Gray (Mass.), 92 (1854), 1263. Baillie v. Larson, 138 Fed. 177 (1905), 63, 222. Baily v. Fayette Gas Co., 193 Pa. St. 175 (1899), 265, 705, 1336. Baird v. Supervisors, 138 N. Y. 95 (1893), 299. [Ixix] TABLE OF CASES CITED [References are to sections] Baker v. Boston & Maine R. R. Co., 74 N. H. 100 (1906), 481, 781, 796, 1016. Baker v. Dessaner, 49 Ind. 28 (1874), 965. Baker v. San Francisco Gas Co., 141 Cal. 710 (1904), 438. Bald Eagle Valley Ry. Co. v. Nittany Valley Ry. Co., 171 Pa. St. 284 (1895), 685, 1325. Baldwin v. American Express Co., 23 111. 197 (1859), 1040. Baldwin v. Railroad Co., 50 la. 680 (1879), 529. Baldwin v. Seaboard Air Line Ry. Co., 128 Ga. 567 (1907), 602. Baldwinsville Telephone Ca, Matter of, 24 N. Y. Misc. 221 (1898), 526, 700. Ball v. Beck, Fed. Cas. No. 1,161, 968. Ball v. Mobile Light & R. R. Co., 146 Ala. 309 (1905), 341. Ball v. New Jersey Stb. Co., 1 Daly, 491 (1865), 730. Ball v. Rutland R. R. Co., 93 Fed. 513 (1889), 1124, 1407, 1421, 1426, 1430. Ballentine v. North Missouri R. R. Co., 40 Mo. 491 (1867), 79, 256, 664, 665, 800, 909, 914. Ballou v. Earle, 17 R. I. 441 (1891), 1003, 1021. Baltimore & 0. R. R. Co. v. Adams Exp. Co., 22 Fed. 32 (1884), 523, 682. Baltimore & 0. R. R. Co. v. Barger, 80 Md. 23 (1894), 935, 937, 938. Baltimore & 0. R. R. Co. v. Blocher, 27 Md. 277 (1867), 935. [Ixx] Baltimore & 0. R. R. Co. v. Brady, 32 Md. 333 (1869), 1002, 1011. Baltimore & Ohio R. R. Co. v. Campbell, 36 Ohio St. 647 (1881), 512. Baltimore & 0. R. R. Co. v. Diamond Coal Co., 61 Ohio St. 242 (1899), 1290. Baltimore & 0. R. R. Co. v. Gray's Ferry Abattoir Co., 27 Pa. Super. Ct. 511 (1905), 1050. Baltimore & 0. R. R. Co. v. Hubbard, 72 Ohio St. 302 (1905), 1026. Baltimore & 0. R. R. Co. v. Norris, 17 Ind. App. 189 (1896), 341, 438. Baltimore & 0. R. R. Co. v. Pitcairn Coal Co., 215 U. S. 481 (1910), 665, 857. Baltimore & 0. R. R. Co. v. Pumphrey, 59 Md. 390 (1882), 1046. Baltimore & 0. R. R. Co. v. Rathbone, 1 W. Va. 87 (1865), 1012. Baltimore & 0. R. R. Co. v. Shumacher, 29 Md. 168 (1868), 518, 1033. Baltimore & 0. R. R. Co. v. State, 72 Md. 36 (1890), 777. Baltimore & 0. S. W. R. R. Co. v. Voigt, 176 U. S. 498 (1899), 777, 1015. Baltimore & 0. R. R. Co. v. Whitehill, 104 Md. 295 (1906), 662, 831. Baltimore & O. R. R. Co. v. Wil- kens, 44 Md. 11 (1875), 747. Baltimore & P. Ry. Co. v. Mackey, 157 U. S. 72 (1895), 53(X TABLE OF CASES CITED [References are to sections] Baltimore & P. Steamboat Co. v. Brown, 54 Pa. St. 77 (1867), 511. Baltimore City Pass. Ry. Co. v. Wilkinson, 30 Md. 224 (1868), 862. Bamberg v. So. Carolina R. Co., 9 S. C. 61 (1877), 160, 256. Bancroft & Co. v. Merchants' Despatch Transp. Co., 47 Iowa, 262 (1877), 180, 1017. Bank of Havelock v. Western Union Telegraph Co., 141 Fed. 522 (1905), 412, 605. Bank of Kentucky v*. Adams Ex- press Co., 93 U. S. 174 (1876), 178, 776, 1011. Bank of W. V. v. Southern Exp. Co., 71 Miss. 741 (1894), 902. Bankers' Mutual Casualty Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 117 Fed. 434 (1902), 776. Bard v. Pennsylvania Traction Co., 176 Pa. St. 97 (1896), 760. Bardsly v. Boise Irr. & L. Co., 8 Idaho, 155 (1901), 434, 652, 877. Bare v. American Forwarding Co., 242 111. 298 (1909), 206. Barker v. Central Park N. & E. R. R. Co., 151 N. Y. 237 (1896), 439, 877. Barker v. Chicago, P. & St. L. Ry. Co., 243 111. 482 (1909), 777. Barker v. New York C. R. R. Co., 24 N. Y. 599 (1862), 904. Barnard Castle Urban Dist. v. Wilson, 2 Ch. 813 (1901), 264. Barnes v. Long Island Ry. Co., 100 N. Y. Supp. 593 (1906), 1008. Barnes v. Marshall, 18 Q. B. 785 (1852), 433. Barnes v. Western Union Tele- graph Co., 24 Nev. 125 (1897), 1014. Barney v. Oyster Bay & H. Steamboat Co., 67 N. Y. 301 (1876), 472, 498. Barre Water Co., Re, 62 Vt. 27 (1889), 92, 264. Barrett v. Market Street Ry. Co., 81 Cal. 296 (1889), 189, 438, 439, 877. Barrickman v. Marion Oil Co., 45 W. Va. 634 (1898), 982. Barrington v. Commercial D. Co., 15 Wash. 170 (1896), 102, 232. Barron v. Eldridge, 100 Mass. 455 (1868), 393, 726. Barrott v. Pullman Palace Car Co., 51 Fed. 796 (1892), 769. Barry v. Union Ry. Co., 105 N. Y. App. Div. 520 (1905), 623, 738, 746. Bartlett v. Carnley, 6 Duer (N. Y.), 194 (1856), 1263. Bartlett v. Pittsburg, C. & St. L. Ry. Co., 94 Ind. 281 (1883), 668, 912. Bartlett v. Western Union Tele- graph Co., 62 Me. 209 (1873), 133, 980, 1346. Bartwell v. Northern Pacific Exp. Co., 5 Dak. 463 (1889), 1004. Basnight v. Atlantic & N. C. R. R. Co., Ill N.C. 592 (1892), 293, 409, 726, 730. Bass v. Chicago & N. W. Ry. Co., 36 Wis. 450 (1874), 844, 847, 881. [Ixxi] TABLE OF CASES CITED [ References are to sections] Bassett & Stone v. Aberdeen Coal & Mining Co., 120 Ky. 728 (1905), 235. Bastian v. Keystone Gas Co., 50 N. Y. Supp. 537 (1898), 417, 622, 1013. Bates v. Chicago, M. & St. P. Ry. Co., 60 Wis. 296 (1884), 1046. Bates v. Old Colony R. R. Co., 147 Mass. 255 (1888), 777, 778. Bates v. Stanton, 1 Duer, 79 (1852), 1047. Batson v. Donovan, 4 B. & Aid. 21 (1820), 623, 737. Batton v. So. & No. Alabama R. R. Co., 77 Ala. 591 (1884), 933, 941, 942, 944. Baughman v. Louisville, E. & St. L. Ry. Co., 94 Ky. 150 (1893), 1005, 1020. Baxendale v. Great Western R. Co., 5 C. B. (N. S.) 309 (1858), 1331. Baxendale v. So. West. Ry. Co., 35 L. J. Exch. 108 (N. S.) (1866), 696. Baxley v. Tallahassee & M. R. R. Co., 128 Ala. 183 (1900), 833, 922. Baxter v. Dominion Telegraph Co., 37 U. C. Q. B. 470 (1875), 766, 1014. Baxter v. Louisville, N., A. & C. Ry. Co., 165 111. 78 (1897), 1023, 1026. ' Baxter & Co. v. Wheeler, 49 N. H. 9 (1869), 181. Bay City Irrigation Co., Re, 135 Fed. 850 (1905), 352. Bayles v. Kansas Pac. R, R. Co., 13 Colo. 181 (1889), 1282, 1286, 1299. [ Ixxii ] Beadell v. Eastern Counties Ry. Co., 2 C. B. (N. S.) 509 (1854), 420. Beale v. Posey, 72 Ala. 323 (1882), 365, 751. Beall v. Beck, Fed. Cas. 1,161 (1829), 240. Bean v. Sturtevant, 8 N. H. 146 (1835), 743. Beard v. Illinois Central R. R. Co., 79 Iowa, 518 (1890), 988. Beard v. St. L., Alton & T. H. Ry. Co., 79 la. 527 (1890), 512, 796. Beardslee V. Richardson, 11 Wend. 25 (1833), 970. Beardsley v. New York, L. E & W. R. R. Co., 162 N. Y. 230 (1900), 836. Beasley v. Western Union Tele- graph Co., 39 Fed. 181 (1889), 412, 909. Beatty Lumber Co. v. Western Union Telegraph Co., 52 W. Va. 410 (1903), 1014. Beck v. Indianapolis L. & P. Co., 36 Ind. App. 600 (1905), 113, 685. Beck v. Kittanning Water Co. (Pa.), 11 Atl. 300 (1887), 350. Becker v. Haynes, 29 Fed. 441 (1887), 730. Beckman v. Shouse, 5 Rawle, 179 (1835), 171, 184, 204, 262, 743, 1001. Beckwirth v. Cheshire R. R. Co., 143 Mass. 68 (1886), 341. Beckwith v. Frisbie, 32 Vt. 559 (1860), 236, 909, 968. Bedford-Bowling Green Stone Co. v. Oman, 115 Ky. 369 (1903), 224, 404, 817, 822, 1043. Bedford B. G. S. Co. v. Oman, 134 Fed. 441 (1904), 403, 815,822. TABLE OF CASES CITED [References are to sections] Beech Creek R. R. Co. v. Olanta Coal Mining Co., 158 Fed. 36 (1907), 574. Beers v. Boston & A. R. R. Co., 67 Conn. 417 (1896), 875, 970. Beeson v. Chicago, R. I. & Pac. Ry. Co., 62 la. 173 (1883), 606. Behlmer v. Louisville & N. Ry. Co., 83 Fed. 898 (1900), 1226. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 101 Mo. 192 (1890), 141. Belfast & B. Ry. Co. v. Keys, 9 H. L. Cas. 556 (1861), 876. Belger v. Dinsmore, 51 N. Y. 166 (1872), 178, 776. Bell v. Drew, 4 E. D. Smith, 59 (1855), 876. Bell v. Pidgeon, 5 Fed. 634 (1882), 753. Bell Telephone Co. v. Common- wealth, 3 Atl. 825 (1886), 136, 244, 692. Bellaire Goblet Co. v. Findlay, 5 Oh. Cir. Ct. 418 (1891), 452, 502. Bellsdyke Coal Co. v. North British Ry. Co., 2 Ry. & C. Tr. Cas. 105 (1875), 1331, 1373. Belvidere Gaslight & F. Co. v. Jackson, 81 111. App. 244 (1898), 982. Benbow v. North Carolina R. R. Co., Phillips L. 421 (1868), 1042. Benedict v. Arthur, 6 Up. Can. Q. B. 204 (1849), 238. Benedict v. Columbus Construc- tion Co., 49 N. J. Eq. 23 (1891), 982. Benignia v. Pennsylvania R. R. Co., 197 Pa. St. 384 (1900), 783. Benner Livery & U. Co. v. Bus- son, 58 111. App. 17 (1894), 785. Benett v. Peninsular Co., 6 C. B. 775 (1848), 183. Bennett v. American Express Co., 83 Me. 236 (1891), 1046. Bennett v. Byram & Co., 38 Miss. 17 (1859), 905, 909, 921. Bennett v. Button, 10 N. H. 481 (1839), 184, 524, 682. Bennett v. East Chester Gaslight Co., 54 N. Y. App. Div. 74 (1900), 411, 434. Bennett v. Filyaw, 1 Fla. 403 (1847), 172, 229, 239. Bennett v. Mellor, 5 T. R. 273 (1793), 333, 725. Bennett v. Northern Pac. Exp. Co., 12 Oreg. 49 (1885), 178, 776, 1040. Benson v. American Illuminating Co., 102 N. Y. Supp. 206 (1907), 418, 622, 826. Benson v. Central Pacific R. R. Co., 98 Cal. 45 (1893), 916. Benson & Co., Ex parte, 18 S. C. 38 (1882), 1282, 1283, 1311, 1377. Benson v. Gray, 154 Mass. 391 (1891), 1042. Benson v. Oregon S. L. Ry. Co., 99 Pac. 1072 (1909), 169, 170, 230, 236. Berg v. The Atchison, T. & S. F. R. R. Co., 30 Kan. 561 (1883), 513, 1017. Bergan v. Central Vt. Ry. Co., 82 Conn. 574 (1909), 764. Berje v. Texas & P. Ry. Co., 37 La. Ann. 468 (1885), 901. [ Ixxiii ] TABLE OF CASES CITED [References are to sections] Berkshire Woolen Co. v. Proctor, 7 Gush. (Mass.) 417 (1851), 751. Bernard v. Lalonde, 8 Leg. News, 215 (Can., 1885), 725. Berrien Springs Water Power Co. v. Berrien Circuit Judge, 133 Mich. 48 (1903), 95. Berry v. Chicago, M. & St. P. Ry. Co. (S. D.), 124 N. W. 859 (1910), 796, 872. Berry v. Louisville & N. R. R. Co., 109 Ky. 727 (1901), 369. Berry v. Missouri Pac. Ry. Co., 124 Mo. 223 (1894), 762. Berry v. Southern Ry. Co., 122 N. C. 1002 (1898), 727. Berry v. West Virginia & P. R. R. Co., 44 W. Va. 538 (1898), 1037, 1038. Bessette v. People, 193 111. 334 (1905), 8. Betts v. Farmers' Loan Co., 21 Wis. 80 (1866), 256. Bevard v. Lincoln Traction Co., 74 Neb. 802 (1905), 941, 944. Bibb Broom Corn Co. v. Atchi- son, T. & S. F. Ry. Co., 94 Minn. 269 (1905), 656, 901, 918, 921, 984. Bibber- White Co. v. White River Valley Electric Co., 175 Fed. 470 (1910), 1281, 1286. Bienville Water Supply Co. v. Mobile, 112 Ala. 260 (1895), 316, 458. Bierhaus v. Western Union Tel. Co., 8 Ind. App. 246 (1893), 851. Bigbee & W. R. P. Co. v. Mobile & 0. R. R. Co., 60 Fed. 545 (1893), 682, 1315. Bigelow v. West End St. Ry. Co., 161 Mass. 393 (1894), 1044. [Ixxiv] Billings Mutual Telephone Co. v. Rocky Mt. Bell Telephone Co., 155 Fed. 207 (1907), 539, 700. Binghamton Bridge, The, 3 Wall. 51 (1865), 23, 53. Bird v. Bird, 1 And. 29 (1558), 725, 745. Bird v. Cromwell, 1 Mo. 81, 920. Bird v. Georgia R. R. Co., 72 Ga. 655 (1884), 522. Bird v. Railroad Co., 99 Tenn. 719 (1897), 435, 518, 1033. Birkett v. Western Union Tele- graph Co., 103 Mich. 361 (1894), 980, 1014. Birmingham v. Birmingham Wa- terworks Co. (Ala.), 42 So. 10 (1906), 264, 275. Birmingham v. Birmingham Wa- terworks Co., 152 Ala. 306 (1907), 380. Birmingham Ry. & E. Co. v. Baird, 130 Ala. 334 (1900), 935, 938, 941. Birmingham Ry. L. & P. Co. v. Lee, 153 Ala. 386 (1907), 341. Birmingham Ry. L. & P. Co. v. McDonough, 153 Ala. 122 (1907), 878. Birmingham W. W. Co. v. Truss, 135 Ala. 530 (1903), 1244. Birney v. New York & W. P. Telegraph Co., 18 Md. 341 (1862), 874, 980. Black v. Chicago, B. & 0. R. R. Co., 30 Neb. 197 (1890), 920, 949. Black Lick Mfg. Co. v. Saltsburg Gas Co., 139 Pa. St. 448 (1891), 852. Blackstock v. New York & E. R. R. Co., 20 N. Y. 48 (1859), 668, 912. TABLE OF CASES CITED [References are to sections] Blackwell M. & E. Co. v. Western Union Telegraph Co., 17 Okla. 376 (1906), 980. Blair v. Cuming County, 111 U. S. 363 (1884), 65. Blair v. Erie Ry. Co., 66 N. Y. 313 (1876), 778. Blair v. Sioux City & P. Ry. Co., 109 la. 369 (1899), 535, 1377, 1378. Blanchard v. Abraham, 115 La. 989 (1906), 237. Blanchard v. Isaacs, 3 Barb. (N. Y.) 388 (1848), 741, 876. Bland v. Adams Express Co., 1 Duv. 232 (1864), 666, 911, 986. Bland et al. v. Womack, 2 Mur- phy, 373 (1818), 875. Blank v. Illinois Cent. R. R. Co., 182 111. 332 (1899), 477, 778, 779, 1015. Blissett v. Hart, Willes, 508 (1744), 52. Bliven & M. v. Hudson River R. R. Co., 30 X. Y. 403 (1867), 1046. Block v. Sherry, 43 N. Y. Misc. 342 (1904), 263, 974. Bloclgett v. Abbott, 72 Wis. 516 (1888), 902. B'ondell v. Consolidated Gas Co., 89 Md. 732 (1899), 826. Blood v. McCarty, 112 Cal. 561 (1896), 75. Bloomfield & R. Natural Gas Light Co. v. Richardson, 63 Barb. 437 (1872), 59, 94. Blomsness v. Puget Sound El. Ry. Co., 47 Wash. 620 (1907), 939. Blondell v. Consolidated Gas Co., 89 Md. 732 (1899), 418, 622. Blossom v. Dodd, 43 N. Y. 264 (1870), 1004. Blossom v. Griffin, 13 N. Y. 569 (1856), 724. Blower v. Gt. Western Ry. Co., L. R. 7 C. P. 655 (1872), 256, 989. Blum v. Southern P. P. C. Co., 1 Flip. 500 (1876), 153, 975. Blumantle v. Fitchburg R. R. Co., 127 Mass. 322 (1879), 875, 876. Blumenthal v. Brainerd et al., 38 Vt. 402 (1866), 1037. Blumenthal v. Southern Ry. Co., 84 Fed. 920 (1898), 413, 600. Blunk v. Dennison Water Co., 71 Ohio, 250 (1905), 350. Blythe v. Denver & R. G. Ry. Co., 15 Colo. 333 (1891), 655, 984. Boal v. Citizens' Nat. Gas Co., 23 Pa. Super. Ct. 339 (1903), 654. Board of R. R. Commrs. v. Mis- souri Pac. Ry. Co., 71 Kan. 193 (1905), 806. Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236 (1905), 137, 138, 603, 607. Board of Trustees of Elizabeth- town v. Chesapeake, etc., R. R. Co., 94 Ky. 377 (1893), 212. Boering v. Cheaspeake Beach Ry. Co., 193 U. S. 442 (1903), 786, 1004, 1018. Boerth v. Detroit City Gas Co., 152 Mich. 654 (1907), 1321, 1335, 1354. Boggess v. Chesapeake & O. Ry. Co., 37 W. Va. 297 (1892), 738, 763. [ Ixxv ] TABLE OP CASES CITED [References are to sections] Boggs v. Martin, 13 B. MOD. (Ky.) 239 (1852), 1269. Boise City Irrigation Co. v. Clark, 131 Fed. 415 (1904), 93, 1085. Boise City, City of, v. Artesian Hot & Cold Water Co., 4 Idaho, 392 (1895), 1304. Bolles v. Kansas City So. Ry. Co., 134 Mo. App. 696 (1909), 440. Bomar v. Maxwell, 9 Humph. 620 (1849), 185. Bonce v. Dubuque St. Ry. Co., 53 Iowa, 278 (1880), 107 186. Boner & C. v. Merchants' So. Co., 1 Jones L. 211 (1853), 901, 915. Bonner v. DeMendoza (Texas Civ. App.), 16 S. W. 976 (1891), 769. Bonner v. Welborn, 7 Ga. 296 (1849), 240, 968. Bonner v. Western Union Tele- graph Co., 71 S. C. 303 (1904), 398, 874, 1041. Boom Co. v. Patterson, 98 U. S. 403 (1878), 55, 73. Boonton v. United Water Supply Co., 69 N. J. Eq. 23 (1904), 216. Boonton v. United Water Supply Co., 70 N. J. Eq. 692 (1906), 264, 839. Boorman v. American Express Co., 21 Wis. 152 (1866), 1004, 1007. Booth v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.), 37 S. W. 168 (1896), 522. Bordeaux v. Erie Ry. Co., 8 Hun, 579 (1876), 873. Borsum v. Hardie, 23 Sup. Ct. 479 (1898), 483. [ Ixxvi ] Boscowitz v. Adams Express Co., 93 111. 523 (1879), 178, 776. Bosley v. Baltimore & C. R. R. Co., 54 W. Va. 563 (1904), 902. Boster v. Chesapeake & 0. Ry. Co., 36 W. Va. 318 (1892) 865. Boston v. Richardson, 13 Allen, 160 (1866), 71. Boston & A. R. R. Co. v. Brown, 177 Mass. 65 (1900), 483. Boston & A. R. R. Co. v. Shanly, 107 Mass. 568 (1871), 621. Boston & M. R. R. Co. v. Sulli- van, 177 Mass. 230 (1900), 483. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467 (1832), 65. Boston Ins. Co. v. Chicago, R. I. & P. Ry. Co., 118 la. 423 (1902), 776. Boswell v. Hudson River R. R. Co., 5 Bosw. 699 (1860), 1007. Bosworth v. Union R. R. Co., 26 R. I. 309 (1904), 944. Bothwell v. Consumers' Co., 13 Idaho, 568 (1907), 279, 406, 443, 824. Bouker v. Long Island Ry. Co., 89 Hun, 202 (1895), 392, 792. Bowden v. Atlantic C. L. Ry. Co., 148 Ala. 29(1906), 1037. Bowen v. Illinois Central Ry. Co., 136 Fed. 306 (1905), 939. Bowie v. Bait. & Ohio R. R. Co., 1 MacArthur, 609 (1874), 400, 772. Bowie v. Birmingham Ry. & El. Co., 125 Ala. 397 (1899), 566, 848. TABLE OF CASES CITED [References are to sections] Bowman v. Chicago & N. W. Ry. Co., 125 U. S. 465 (1881), 1418. Bowman v. Hilton, 11 Ohio, 303 (1842), 522. Bowring v. Wabash Ry. Co., 90 Mo. App. 324 (1901) 1005. Boyce v. Anderson, 2 Pet. 150 (1829), 341, 636, 967. Boylan v. Hot Springs R. Co., 132 U. S. 146 (1889), 431. Boyes v. Moss & Co., 18 Viet. L. R. 225 (1892), 148. Boyle v. Great Northern Ry. Co., 13 Wash. 383 (1896), 176. Boys v. Pink, 8 C. & P. 361 (1838), 732. Bradford v. Boston & M. R. R. Co., 160 Mass. 392 (1894), 367, 372. Bradford v. Citizens' Telephone Co. (Mich.), 126 N. W. 444 (1910), 1300. Bradford v. St. Louis, I. M. & So. Ry. Co. (Ark.), 124 S. W. 516 (1910), 566, 848, 881. Bradley v. Fallbrook Irrigation Co., 68 Fed. 948 (1895), 242. Bradley v. Waterhouse, 3 C. & P. 318 (1828), 623, 737. Bradner v. Mullen, 27 N. Y. Misc. 479 (1899), 770. Bradshaw v. South Boston Ry. Co., 135 Mass. 407 (1883), 889, 890, 892. Brady v. Springfield Traction Co. (Mo. App.), 124 S. W. 1070 (1910), 933. Braithwaite v. Power, 1 N. Dak. 455 (1891), 1047, 1264, 1266. Branch v. Wilmington & W. R. R. Co., 77 N. C. 347 (1877), 663, 799, 914. Branch v. Wilmington & W. R. R. Co., 88 N. C. 570 (1883), 835. Brandt Milling Co. Case, 4 Can. Ry. Gas. 259 (1904), 1315. Bras v. McConnell, 114 la. 401 (1901), 535. Brashears v. Western Union Tele- graph Co., 45 Mo. App. 433 (1891), 563, 1041. Brass v. North Dakota, 153 U. S. 391 (1894), 141. Brass v. Rathbone, 153 N. Y. 435 (1897), 377, 452. Brass v. Rathbone, 8 App. Div. 78 (1892), 1244. Brass ex rel. v. Stoesser, 153 U. S. 391 (1894), 232. Braun v. Northern Pac. Ry. Co., 79 Minn. 404 (1900), 341, 636, 866. Braymer v. Seattle & So. Ry. Co., 35 Wash. 346 (1904), 890. Breen v. St. Louis Tr. Co., 102 Mo. App. 479 (1903), 441. Breese v. United States Tel. Co., 48 N. Y. 132 (1871), 766. Brehme v. Adams Express Co., 25 Md. 328 (1866), 1003. Bremner v. Williams, 1 C. & P. (Eng.) 414 (1824), 977. Bresewitz v. St. Louis, I. M. & So. Ry. Co., 75 Ark. 242 (1905), 844. Bretherton v. Wood, 3 Brod. & Bing. 54 (1821), 334. Brevig v. Chicago, St. P., M. & 0. Ry. Co., 64 Minn. 168 (1896), 745. Brewer v. Caswell, 132 Ga. 563, (1909), 725. Brewer v. Central of Ga. Ry. Co., 84 Fed. 258 (1897), 1342, 1384. [Ixxvii ] TABLE OF CASES CITED [References are to sections] Brewer v. New York, L. E. & W. R. R. Co., 124 N. Y. 59 (1891), 778. Brewing Co. v. Southern Exp. Co., 109 Va. 22 (1908), 600. Brewster v. Miller's Sons Co., 101 Ky. 368 (1897), 9, 105. Bricker v. Philadelphia & Read- ing R. R. Co., 132 Pa. St. 1 (1890), 760, 761. Bridal Veil Lumbering Co. v. Johnson, 30 Oreg. 205 (1896), 222, 223, 224. Briddon v. Great Northern Ry. Co., 28 L. J. Ex. 51 (1858), 665, 839, 901, 914. Bridgeport, City of, v. Housa- tonic R. R. Co., 15 Conn. 475 (1843), 217. Bridgeton v. Bridgeton Traction Co., 62 N. J. L. 592 (1898), 211. Brien v. Bennett, 8 Car. & P. (Eng.) 724 (1839), 410, 736. Briggs v. Boston & Lowell R. R. Co., 6 Allen, 246 (1863), 522. Briggs v. Durham Traction Co., 147 N. C. 389 (1908), 985. Bright v. Western Union Tele- graph Co., 132 N. C. 317 (1903), 871, 874. Brind v. Dale, 8 C. & P. 207 (1837), 228, 767. Bristol v. Bristol & Warren Wa- terworks, 28 R. I. 274 (1901), 1103. Brittan v. Barnaby, 21 How. (U.S.) 170(1859), 1266, 1267. Britton v. Atlanta & C. A. L. Ry. Co., 88 N. C. 536 (1883), 566, 848, 881, 942. Britton v. Green Bay & Ft. H. Waterworks Co., 81 Wis. 48 (1892), 350. [ Ixxviii ] Broadway, etc., Ferry Co. v. Hankey, 31 Md. 346 (1869), 52. Brockway v. American Express Co., 168 Mass. 257 (1897), 1010. Brooke v. New York, L. E. & W. Ry. Co., 108 Pa. St. 529 (1885), 748. Brooke v. Pickwick, 4 Bing. 218 (1827), 185. Brooklyn & R. B. R. R. Co. v. Long Island R. R. Co., 72 App. Div. 496 (1902), 305. Brooklyn Union Gas Co. v. City of New York, 115 App. Div. 69 (1906), 1123, 1430. Brooks Mfg. Co. v. Southern Ry. Co. (N. C.), 68 S. E. 243 (1910), 821, 1043. Brooks v. Sullivan, 129 N. C. 190 (1901), 440. Brouncker v. Scott, 4 Taunt, 1 (1811), 1050. Brown v. Adams Express Co., 15 W. Va. 812 (1879), 1002. Brown v. Atlanta & C. A. L. Ry. Co., 19 S. C. 39 (1882), 399, 403. Brown v. Central of Ga. Ry. Co., 128 Ga. 635 (1907), 888, 890. Brown v. Chicago, R. I. & P. Ry. Co., 139 Fed. 972 (1905), 941. Brown v. Chicago G. W. Ry. Co., 137 Mo. 529 (1897), 225. Brown v. Clayton, 12 Ga. 564 (1853), 165, 229. Brown v. Clegg, 63 Pa. St. 51 (1869), 173, 774. Brown v. Cunard S. S. Co., 147 Mass. 58 (1888), 1020. Brown v. Farmers' H. L. Canal & Reservoir Co., 26 Colo. 66 (1899), 652. TABLE OF CASES CITED [References are to sections] Brown v. Georgia C. & N. Ry. Co., 119Ga. 88(1903), 873. Brown v. Gerald, 100 Me. 351 (1905), 50, 56, 60, 95, 114, 221, 271, 654. Brown v. Illinois Central R. R. Co., 100 Ky. 525 (1897), 1024. Brown v. Interborough R. T. Co., 56 N. Y. Misc. 637, 107 N. Y. Supp. 629 (1907), 448. Brown v. Kansas City, F. S. & G. R. R. Co., 38 Kan. 634 (1888), 862. Brown v. Memphis & C. Ry. Co., 5 Fed. 499 (1880), 559, 565, 606, 610, 844, 881. Brown v. New York Central & H. R. R. R. Co., 75 Hun, 355 (1894), 107. Brown v. New York C. & H. R. R. R. Co., 151 N. Y. 674 (1897), 483, 514. Brown v. Postal Tel. Co., Ill N. C. 187 (1892), 766, 1014. Brown v. Rapid Ry. Co., 134 Mich. 591 (1903), 890. Brown v. Scarboro, 97 Ala. 316 (1893), 395. Brown v. Weir, 95 N. Y. App. 78 (1904), 755, 772. Brown v. Western Union Tele- graph Co., 6 Utah, 219 (1889), 874. Brown & B. Coal Co. v. Grand Trunk Ry. Co., 159 Mich. 565 (1910), 435, 877. Brown & Haywood Co. v. Penn- sylvania Co., 63 Minn. 546 (1896), 521, 907. Brown Hotel Co. v. Burckhardt, 13 Col. App. 59 (1899), 1032. Browne v. Brandt, 1 K. B. 696 (1902), 269, 660, 791, 846. Brownell v. Columbus & C. M. R. R. R. Co., 5 I. C. C. (0. S.) 638 (1893), 1237. Brownell v. Old Colony R. R. Co., 164 Mass. 29 (1895), 211, 300. Brumm's Appeal (Pa.), 12 Atl. 855 (1888), 452, 456. Brundred v. Rice, 49 Ohio St. 640 (1892), 681, 1290, 1312, 1317, 1358. Brunswick v. United States Ex- press Co., 46 Iowa, 77 (1877), 1049. Brunswick & T. Water District v. Maine Water Co., 99 Me. 371 (1904), 92, 1070, 1076, 1085, 1099, 1101, 1104, 1132, 1136, 1138, 1139, 1151, 1212, 1213. Brunswick & W. Ry. Co. v. Moore, 101 Ga. 684 (1897), 946. Brunswick & W. R. R. Co. v. Ponder, 117 Ga. 63 (1903), 640. Brunswick & W. Ry. Co. v. Rot- child & Co., 119 Ga. 604 (1904), 1048. Brunswick Gas Light Co. v. United Gas, etc., Co., 85 Me. 532 (1893), 111, 215. Brush Elec. Illuminating Co. v. Consolidated T. & E. Sub- way Co., 15 N. Y. Supp. 81 (1891), 78, 1402. Bryan v. Missouri Pac. Ry. Co., 32 Mo. App. 228 (1888), 786, 1018. Bryan v. Western Union Tele- graph Co., 133 N. C. 603 (1903), 871. Bryant v. Rich, 106 Mass. 180 (1870), 939. [ Ixxix ] TABLE OF CASES CITED [References are to sections] Bryant v. Western Union Tele- graph Co., 17 Fed. 825 (1883), 603, 607. Brymer v. Butler Water Co., 179 Pa. St. 231 (1897), 92, 1062, 1081, 1082, 1095, 1131, 1133, 1171, 1401, 1408. Buck v. Manhattan Ry. Co., 15 Daly, 48 (1888), 945. Buck v. People's St. Ry. & E. L. &P.CO., 108 Mo. 179(1892), 745. Buck v. People's St. Ry., E. L. & P. Co., 46 Mo. App. 555 (1891), 785. Buckland v. Adams Express Co., 97 Mass. 124 (1867), 178, 776, 1002. Buckman v. Levi, 3 Camp. 414 (1813), 400, 741. Buckmaster v. Gt. Eastern Ry. Co., 23 L. T. (N. S.) 471 (1870), 872. Budd v. New York, 143 U. S. 517 (1891), 97, 232, 1401, 1407. Buffalo v. Buffalo Gas Co., 81 App. Div. 505 (1903), 825, 1251. Buffalo v. Delaware, L. & W. Ry., 39 N. Y. Supp. 4 (1895), 102. Buffalo & New York R. R. v. Brainard, 9 N. Y. 100 (1853), 217. Buffalo Bayou Ship Channel Co. v. Milby & Dow, 63 Tex. 492 (1885), 73, 123, 451, 455, 495. Buffalo P. & W. R. R. Co. v. O'Hara, 3 Pennyp. (Pa.) 199 (1882), 785. Buffalo County Telephone Co. v. Turner, 82 Neb. 841, 693 (1908), 431, 444, 459, 846, 902, 1250. [ Ixxx ] Bulkley v. Naumkeag S. C. Co., 24 How. (U. S.) 386 (1860), 732. Bull v. New York City Ry. Co., 192 N. Y. 361 (1908), 347. Bullard v. Northern Pacific Ry., 107 Mich. 695, 277, 871, 1039, 1040. Bullard v. Northern Pacific Ry. Co., 10 Mont. 168 (1890), 1294. Bullock v. Adair, 63 111. App. 30 (1895), 240, 263. Bullock v. Houston & T. C. Ry. (Tex. Civ. App.), 55 S. W. 184 (1900), 371. Bundred v. Rice, 49 Ohio St. 640 (1892), 1317. Burgess v. Gun, 3 Har. & J. (Md.) 225 (1811), 1263. Burgin v. Richmond & D. Ry. Co., 115 N. C. 673 (1894), 1044. Burke v. City of Water Valley, 87 Miss. 732 (1906), 377, 456. Burke v. Missouri Pacific Ry. Co., 51 Mo. App. 491 (1892), 864. Burke v. Platt, 172 Fed. 777 (1909), 255. Burkett v. New York Cent. & H. R. R. R. Co., 24 Misc. (N. Y.) 76 (1898), 875. Burlington, Township of, v. Beas- ley, 94 U. S. 310 (1876), 65. Burlington, C. R. & N. Ry. Co. v. Dey, 82 la. 312 (1891), 529, 1405. Burlington, C. R. & N. Ry. Co. v. North Western Fuel Co., 31 Fed. 652 (1887), 1286, 1319. Burlington County Ferry Co. v. Davis, 48 la. 133, 30 Am. Rep. 390 (1878), 52. TABLE OF CASES CITED [References are to sections] Burlington & M. R. R. R. Co. v. Chicago Lumber Co., 15 Neb. 390 (1884), 1050. Burlington & M. R. R. R. Co. v. Rose, 11 Neb. 177 (1881), 431, 878. Burlington v. Unterkircher, 99 Iowa, 401 (1896), 107. Burnett v. Western Union Tele- graph Co., 39 Mo. App. 599 (1890), 599. Burnham v. Wabash Ry. Co., 91 Mich. 523 (1892), 1044. Burns, Matter of, 155 N. Y. 23 (1898), 55, 72. Burns v. St. Paul City Ry. Co., 101 Minn. 363 (1907), 503. Burr v. Adams Express Co., 71 N. J. L. 263 (1904), 1040. Burrowes v. Chicago, B. & Q. R. R. Co., 85 Neb. 497 (1909), 399. Burrowes v. Chicago, B. & Q. Ry. Co. (Neb.), 126 N. W. 1084 (1910), 390. Burrows v. Trieber, 21 Md. 320 (1863), 770. Burten v. Wilkinson, 18 Vt. 86 (1846), 1046. Burton v. West Jersey Ferry Co., 114 U. S. 474 (1885), 803. Bush v. Artesian Hot & Cold Wa- ter Co., 4 Idaho, 618 (1895), 350. Bussey & Co. v. Mississippi Val- ley Transp. Co., 24 La. Ann. 165 (1872), 150, 173, 774. Bussey v. Gilmore, 3 Me. 191 (1824), 241. Bussey v. Memphis & L. R. R. Co., 4 McCrary, 405 (1882), 834. Buston v. Pennsylvania Ry. Co., 116 Fed. 235 (1902), 413. 6 Buston v. Pennsylvania Ry. Co., 119 Fed. 808 (1903), 518, 1033. Butcher v. Commonwealth, 103 Pa. St. 528 (1883), 140. Butcher v. London & S. W. Ry. Co., 16 C. B. 13 (1855), 769. Butchers' & D. S. Y. Co. v. Louis- ville & N. R. R. Co., 67 Fed. 35 (1895), 491, 818. Butler v. Basing, 2 Car. & P. 613 (1827), 262, 743. Butler v. East Tennessee & V. R. R. Co., 8 Lea, 32 (1881), 1036. Butler v. Glens Falls, S. H. & F. E. S. R. R. Co., 121 N. Y. 112 (1890), 736. Butler v. St. Paul & D. R. R. Co., 59 Minn. 135 (1894), 1044. Butler v. Tifton Ry. Co., 121 Ga. 817 (1904), 223, 224, 822. Butner v. Western Union Tele- graph Co., 2 Okla. 234 (1894), 348. Butte, A. & P. Ry. Co. v. Mon- tana Union Ry. Co., 16 Mont. 504 (1895), 223, 224 225. Cain v. Western Union Telegraph Co., 18 Cinn. Wk. Bui. 267 (1887), 603, 607. Cairns v. Robins, 8 M. & W. 258 (1841), 726. Calderon v. Atlas S. S. Co., 170 U. S. 272 (1898), 1022. Calderwood v. North Birming- ham St. Ry. Co., 96 Ala. 318 (1892), 1044. Caldwell v. Richmond & D. R. Co., 89 Ga. 550 (1892), 188, 212, 214, 1044. [ Ixxxi ] TABLE OF CASES CITED [References are to sections] Caldwell v. Southern Express Co., 1 Flipp, 85 (1866), 920. Calender v. Vanderhoof Co., 99 Minn. 295 (1906), 414, 796, 991. California v. Central Pacific Ry., 127 U. S. 1 (1887), 51. California Powder Works v. A. & P. R. R. Co., 113 Cal. 329 (1896), 254. Callen v. Columbus Edison Elec- tric Co., 66 Oh. St. 166 (1902), 56. Callery v. Water Works Co., 35 La. Ann. 798 (1883), 264, 496. Calor 0. & G. Co. v. Franzell, 128 Ky. 715 (1908), 691. Calye's Case, 8 Coke, 202 (1584), 363. Cambridge R. R. Co. v. Charles R. St. Ry. Co., 139 Mass. 454, 1 N. E. 925 (1888), 699. Camden & A. R. R. Co. v. Bausch (Pa.), 7 Atl. 731 (1887), 786, 1018. Camden & A. R. R. Co. v. Belk- nap, 21 Wend. (N. Y.) 354 (1839), 724. Camp v. Western Union Tele- graph Co., 1 Met. (Ky.) 164 (1858), 766, 1014. Campbell v. Duluth & Northeast- ern R. R. Co., 107 Minn. 358 (1909), 223, 763. Campbell v. East London Water- works, 26 L. T. (N. S.) 475 (1872), 838. Campbell v. Morse, Harper (N. C.), 468 (1824), 916, 963. Campbell v. Perkins, 4 Sclden (N. Y.), 430 (1853), 753. Campbell v. Pullman P. C. Co., 42 Fed. 484 (1890), 940. [ Ixxxii ] Campbell v. The Bark Sunlight, 2 Hughes, 9 (1877), 732. Campbell v. Western Union Tele- graph Co., 74 S. C. 300 (1906), 871. Campbellsville Telephone Co. v. Lebaron L. & L. Telephone Co., 118 Ky. 277 (1904), 780. Campion v. Canadian Pacific Ry. Co., 43 Fed. 775 (1890), 726, 906. Canada, Attorney General of, v. City of Toronto, 23 Can. Sup. 514 (1892), 432. Canada So. R. R. Co. v. Interna- tional Bridge Co., 8 Fed. 190 (1881), 126. Canada So. R. R. Co. v. Interna- tional Bridge Co., L. R. 8 App. Cas. 723 (1883), 1130, 1140, 1214, 1218. Canterbury Meat Co. v. Shaw & Co., 7 L. R. (N. Z.) 708 (1889), 143, 972. Cantling v. Hannibal & St. Joe R. R. Co., 54 Mo. 385 (1873), 862. Cantwell v. Pacific Express Co., 58 Ark. 487 (1894), 872, 922. Cantu v. Bennett, 39 Tex. 303 (1873), 610. Capehart v. Seaboard & R, R. R. Co., 81 N. C. 438 (1879), 1024, 1026. Capital City Gas Co. v. Central Vt. Ry. Co., 11 Int. Comm. Comm. Rep. 103 (1906), 1334. Capital City Light & Fuel Co. v. Tallahasse, 186 U. S. 401 (1902), 113. Capital City Water Co. v. State, 105 Ala. 406 (1894), 651, 797. TABLE OF CASES CITED (References are to sections] Capital Gas Light Co. v. Des Moines, 72 Fed. 829 (1896), 1085, 1086, 1087, 1090. Capital Gas & Elec. L. Co. v. Gaines, 20 Ky. L. R. 1464 (1899), 825. Cappel v. Weir, 45 Misc. (N. Y.) 419 (1904), 1040. Cargo ex " Argos," L. R. 5 P. C. 134 (1873), 1265. Garland v. Western Union Tele- graph Co., 118 Mich. 369 (1898), 412, 862. Carleton v. Central of Ga. Ry. Co., 155 Ala. 326 (1908), 881. Carlisle v. Carlisle G. & Water Co. (Pa.), 4 Atl. 179 (1886), 430, 1306. Carlyle v. Carlyle Water L. & P. Co., 52 111. App. 577 (1893), 92. Carpenter v. Baltimore & O. R. Co. (Md.), 64 Atl. 252 (1906), 160. Carr v. Milwaukee L., H. & P. Co., 132 Wis. 662 (1907), 410. Carrey v. Spencer, 36 N. Y. Supp. 886 (1895), 848, 1414. Carr's Case, 1 Roll. Abr. 3, pi. 4 (1583), 364. Carroll v. Missouri Pac. Ry. Co., 88 Mo. 239 (1885), 780. Carroll v. Staten I. R. R. Co., 58 N. Y. 126 (1874), 336, 599, 785. Carswell v. Macon, D. & S. R. R. Co., 118 Ga. 826 (1903), 784. Carter v. Commonwealth, 2 Va. Gas. 354 (1823), 182, 292. Carter v. Southern Ry. Co., 3 Ga. App. 34 (1907), 1010. Carter v. Telegraph Co., 141 N. C. 374 (1906), 398, 874. Case v. Midland Ry. Co., 27 Beav. 247 (1859), 122. Cash v. Wabash R. R. Co., 81 Mo. App. 109 (1899), 989. Cassilay, etc., v. Young & Co., 39 Am. Dec. 505 (1843), 905. Castle v. Baltimore & Ohio R. R. Co., 8 Int. Comm. Rep. 333 (1899), 1357. Cathey v. St. Louis & S. F. Ry. Co., 130 S. W. 130 (1910), 866, 878. Caton v. Romney, 13 Wend. 387 (1835), 173, 774. Cau v. Texas & P. R. R. Co., 194 U. S. 427 (1904), 1006. Cavallaro v. Texas & Pac. Ry. Co., 110 Cal. 348(1895), 513, 1038. Cayle's Case, 8 Coke, 63 (1574), 964. Cayo v. Pool, 108 Ky. 124 (1900), 230. Gaze v. Baltimore Ins. Co., 7 Cr. (U. S.) 358 (1813), 1265. Cedar Lumber Products Case, 3 Can. Ry. Cas. 312 (1903), 1365. Cedar Rapids & I. C. Ry. & L. Co. v. Chicago, R. I. & P. R. R. Co. (Iowa), 124 N. W. 323 (1910), 815, 820. Cedar Rapids Water Co. v. Cedar Rapids, 118 la. 234 (1902), 1099, 1102, 1124, 1132, 1134, 1168, 1410, 1430. Central Bridge Corp. v. Lowell, 15 Gray, 106 (1860), 53. Central Bridge Corp. v. Sleeper, 8 Gush. 324 (1851), 241. Central D. & P. Telegraph Co. v. Commonwealth, 114 Pa. St. 592 (1886), 273, 405, 1345. [ Ixxxiii ] TABLE OF CASES CITED [References are to sections] Central Elevator Co. v. People, 174 111. 203 (1898), 708. Central Iron Co. v. Pennsylvania R. R. Co., 17 Pa. Co. Ct. 651 (1895), 1378. Central of Ga. Ry. Co. v. Augusta Brokerage Co., 122 Ga. 646 (1905), 532, 840, 1283. Central of Ga. Ry. Co. v. Brown (Ala.), 51 So. 565 (1910), 844, 882. Central of Ga. Ry. Co. v. Butler Marble & G. Co. (Ga.), 68 S. E. 775 (1910), 394, 868. Central of Ga. Ry. Co. v. Cook & L., 4 Ga. App. 698 (1908), 414, 528, 530. Central of Ga. Ry. Co. v. Hall, 124 Ga. 322 (1905), 256, 659, 1011. Central of Ga. Ry. Co. v. Lipp- man, 110 Ga. 665 (1900), 763, 1002. Central of Ga. Ry. Co. v. Madden (Ga.), 69 S. E. 165 (1910), 933, 951. Central of Ga. Ry. Co. v. McLen- don, 157 Fed. 961 (1907), 1063, 1124, 1129, 1201, 1220, 1430, 1431. Central of Ga. Ry. Co. v. Motes, 117 Ga. 923 (1903), 879, 884. Central of Ga. Ry. Co. v. Mur- phey, 196 U. S. 194 (1905), 1418. Central of Ga. Ry. Co. v. Railroad Commission, 161 Fed. 925 (1908), 1132, 1133. Central New York Tel. & Tel. Co. v. Averill, 55 N. Y. Misc. 346 (1907), 493, 497. Central R. R. & B. Co. v. Ander- son, 58 Ga. 393 (1877), 758, 775. [ Ixxxiv ] Central R. R. & B. Co. v. Dwight Mfg. Co., 75 Ga. 609 (1885), 1004. Central R. R. & B. Co. v. Lamp- ley, 76 Ala. 357 (1884), 776. Central R. R. & B. Co. v. Perry, 58 Ga. 461 (1877), 735. Central R. R. & Banking Co. v. Strickland, 90 Ga. 562 (1892), 865, 873. Central R. R. Co. v. Georgia F. & V. Exch., 91 Ga. 389 (1893), 668, 670, 912. Central R. R. Co. v. Hasselkus, 91 Ga. 382 (1893), 511. Central R. R. Co. v. Smith, 76 Ga. 209 (1886), 812. Central Ry. Co. v. Peacock, 69 Md. 257 (1888), 939. Central Ry. Co. v. Smith, 74 Md. 212 (1891), 736. Central S. & G. Exch. v. Board of Trade, 196 111. 396 (1902), 603, 607. Central S. Y. Co. v. Louisville & N. R. R. Co., 192 U. S. 568 (1904), 491, 514, 534, 698, 813, 818. Central Texas & N. W. Ry. Co. v. Holloway (Tex. Civ. App.), 54 S. W. 419 (1899), 635. Central Trust Co. v. Pittsburg S. & N. R. R. Co., 52 N. Y. Misc. 195 (1906), 709. Central Trust Co. v. Wabash St. L. & P. Ry. Co., 31 Fed. 247 (1887), 1033. Central Union Telephone Co. v. Fehring, 146 Ind. 189 (1896), 266. Central Union Telephone Co. v. State ex rel. Falley, 118 Ind. 194 (1888), 136, 266, 375. TABLE OF CASES CITED [References are to sections] Central Union Telephone Co. v. State, 123 Ind. 113 (1889), 266, 375. Central Union Telephone Co. v. Swoveland, 14 Ind. App. 341 (1895), 765, 865, 1013. Cereghino v. Oregon S. L. Ry. Co., 26 Utah, 467 (1903), 226. Chagrin Falls & C. Plank Road Co. v. Cane, 2 Ohio St. 419 (1853), 75, 241. Chamberlain v. Milwaukee & Miss. R. R. Co., 11 Wis. 238 (I860), 777. Chamberlain v. Pierson, 87 Fed. 420 (1898), 778. Chapman v. Great Western Ry. Co., 5 Q. B. D. 278 (1880), 1037. Chapman v. Western Union Tele- graph Co., 90 Ky. 265 (1890), 348. Charge to Grand Jury, 66 Fed. 146 (1895), 1301. Charles Nelson, The, 149 Fed. 846 (1906), 597, 655. Charles Simon's Sons Co. v. Maryland T. & T. Co., 99 Md. 141 (1904), 1410. Charleston Natural Gas Co. v. Lowe, 52 W. Va. 662 (1901), 94, 112, 243, 273, 405. Chase, The M. M., 37 Fed. 708 (1889), 1046. Chattanooga R. & C. R. Co. v. Liddell, 85 Ga. 482 (1890), 207. Chattanooga Terminal Ry. Co. v. Felton, 69 Fed. 273 (1895), 226. Chattock v. Bellamy, 64 L. J. Q. B. 250 (1895), 238, 972. Cheney v. Boston & M. R. R. Co., 11 Met. 121 (1846), 446, 1255. Cherry v. Chicago & A. R. Co., 191 Mo. 489 (1905), 885. Chesapeake & D. Canal Co. v. Gring, 159 Fed. 662, (1908), 495. Chesapeake & 0. Ry. Co. v. Beas- ley, 104 Va. 788 (1906), 1008. Chesapeake & 0. Ry. Co. v. Ken- tucky, 179 U. S. 388 (1900). 566, 848. Chesapeake & 0. Ry. Co. v. Pat- ton, 23 App. D. C. 113 (1904), 777. Chesapeake & O. Ry. Co. v. Sauls- berry, 112 Ky. 915 (1902), 632, 933. Chesapeake & 0. Ry. Co. v. Sauls- berry, 126 Ky. 179 (1907), 908. Chesapeake & 0. Ry. Co. v. Standard Lumber Co., 174 Fed. 107 (1909), 820, 1359. Chesapeake & 0. R. R. Co. v. Wilson, 21 Gratt. 654 (1872), 970. Chesapeake, 0. & S. W. R. R. Co. v. Wells, 85 Tenn. 613 (1887), 566, 848, 881. Chesapeake & P. Telephone Co. v. Baltimore & O. Telegraph Co., 66 Md. 399 (1886), 136, 244, 692. Chesapeake & P. Telephone Co. v. Manning, 186 U. S. 238 (1902), 136, 823, 1121, 1407, 1420. Chesapeake Steamship Co. v. Merchants' Bank, 102 Md. 589 (1906), 1045. Chevallier v. Straham, 2 Tex. 115 (1847), 162, 236, 239, 968, 985. Chicago, City of, v. Mutual Elec- tric Light & Power Co., 55 111. App. 429 (1894), 273. [ Ixxxv ] TABLE OF CASES CITED [References are to sections] Chicago, City of, v. Northwestern Mut. Life Ins. Co., 218 111. 40 (1905), 377, 456. Chicago, City of, v. Openheim, 229 111. 313 (1907), 878. Chicago v. Rogers Pk. Co., 214 111. 212 (1905), 1123, 1124, 1430. Chicago, etc., R. R. Co. v. Ackley, 94 U. S. 179 (1876), 214. Chicago, etc., R. R. Co. v. Thompson, 19 111. 578 (1858), 255. Chicago, etc., R. R. Co. v. Wood- ward, 164 Ind. 360 (1904), 256. Chicago & A. R. R. Co. v. Arnol, 144 111. 261 (1893), 763. Chicago & A. R. R. Co. v. Buck- master, 74 111. App. 575 (1897), 626, 943. Chicago & A. R. R. Co. v. Chi- cago V. & W. Coal Co., 79 111. 121 (1875), 1297, 1311, 1330. Chicago & Alton R. R. Co. v. Davis, 159 111. 53 (1895), 796. Chicago.& A. R. R. Co. v. Dumser, 161 111. 190 (1896), 801. Chicago & A. R. R. Co. v. Erick- son, 91 111. 613 (1879), 408, 662, 722, 831. Chicago & A. R. R. Co. v. Inter- state Commerce Commission, 173 Fed. 930 (1908), 857. Chicago & A. R. R. Co. v. Michie, 83 111. 427 (1876), 745. Chicago & A. R. R. Co. v. People, 152 111. 230 (1894), 810. Chicago & A. R. R. Co. v. Pills- bury, 123 111. 9 (1887), 570, 942, 944. Chicago & A. R. R. Co. v. Scott, 42 111. 132 (1866), 1036. [ Ixxxvi ] Chicago & A. R. R. Co. v. Shea, 66 111. 471 (1873), 623, 737. Chicago & A. R. R. Co. v. Suffern, 129 111. 274 (1889), 224, 300, 308, 681, 822, 1327. Chicago & A. R. R. Co. v. Thomp- son, 19 111. 578 (1858), 176, 623, 737. Chicago & A. R. R. Co. v. Thrapp, 5 111. App. 502 (1880), 922. Chicago & A. R. R. Co. v. Tracey, 109 111. App. 563 (1903), 946. Chicago & A. R. R. Co. v. United States (C. C. A.), 156 Fed. 558 (1907), 1293, 1359. Chicago & A. R. R. Co. v. Walker, 118 111. App. 397 (1905), 398. Chicago & Alton R. R. Co. v. Willard, 31 111. App. 435 (1888), 440. Chicago & Alton R. R. Co. v. Winters, 175 111. 293 (1898), 763, 932. Chicago & Eastern R. R. Co. v. Flexman, 103 111. 546 (1882), 951. Chicago & Erie R. R. Co. v. Field, 7 Ind. App. 172 (1893), 738, 759. Chicago & E. R. R. Co. v. Con- ley, 6 Ind. App. 9 (1892), 890. Chicago & E. I. Ry. Co. v. Jen- nings, 190 111. 478 (1901), 401. Chicago & E. I. Ry. Co. v. People, 222 111. 396 (1906), 810. Chicago & G. E. Ry. Co. v. Dane, 43 N. Y. 240 (1870), 723. Chicago & G. T. Ry. Co. v. Well- man, 143 U. S. 339 (1892), 1122, 1152, 1176, 1407, 1411. Chicago & Gt. W. Ry. Co. v. Dunlap, 71 Kan. 67 (1905), 921. TABLE OF CASES CITED [References are to sections] Chicago & N. W. Ry. Co. v. Chapman, 133 111. 96 (1890), 1022. Chicago & N. W. Ry. Co. v. Chicago V. & W. Coal Co., 79 111. 121 (1875), 1357. Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866 (1888), 1094, 1122, 1129, 1131, 1151, 1156, 1220, 1403, 1408, 1409. Chicago & N. W. Ry. Co. v. Jen- kins, 103 111. 588 (1882), 1050. Chicago & N. W. Ry. Co. v. Lawyer, 69 111. 285 (1893), 1042. Chicago & N. W. Ry. Co. v. More- house, 112 Wis. 1 (1901), 224. Chicago & N. W. Ry. Co. v. O'Brien, 132 Fed. 593 (1904), 778. Chicago & N. W. Ry. Co. v. Os- borne, 3 C. C. A. 912 (1892), 534. Chicago & N. W. Ry. Co. v. Peo- ple, 56 111. 365 (1870), 404, 492, 817, 1043. Chicago & N. W. Ry. Co. v. State, 74 Neb. 77 (1905), 808. Chicago & N. W. Ry. Co. v. Wil- liams, 55 111. 185 (1870), 566, 844, 849, 865, 881. Chicago & P. M. & 0. R. R. Co. v. Becker, 35 Fed. 883 (1888), 1122. Chicago, B. & N. R. R. Co. v. Porter, 43 Minn. 527 (1890), 225. Chicago, B. & Q. R. R. Co. v. An- derson, 72 Neb. 856 (1907), 1378. Chicago, B. & Q. R. R. Co. v. Boger, 1 111. App. 472 (1877), 878. Chicago, B. & Q. R. R. Co. v. Bur- lington, C. R. & N. Ry. Co., 34 Fed. 481 (1888), 570, 670. Chicago, B. & Q. R. R. Co. v. Curtis, 51 Neb. 442 (1897), 529, 530. Chicago, B. & Q. R. R. Co. v. Gar- diner, 51 Neb. 70 (1897), 1010. Chicago, B. & Q. R. R. Co. v. George, 19 111. 510 (1858), 904. Chicago, B. & Q. R. R. Co. v. Griffin, 68 111. 499 (1873), 935. Chicago, B. & Q. R. R. Co. v.Gus- tin, 35 Neb. 86 (1892), 513. Chicago, B. & Q. R. R. Co. v. Iowa, 94 U. S. 155 (1876), 124, 1121, 1427. Chicago, B. & Q. R. R. Co. v. Jones, 149 111. 361 (1894), 1403, 1405, 1409. Chicago, B. & Q. R. R. Co. v. Mehlsack, 131 111. 61 (1889), 623, 738. Chicago, B. & Q. R. R. Co. v. Parks, 18 111. 460 (1857), 1282, 1287. Chicago, B. & Q. R. R. Co. v. Powers, 73 Neb. 816 (1905), 727. Chicago, B. & Q. R. R. Co. v. Slat- tery, 107 N. W. 1045 (1906), 772. Chicago, B. & Q. R. R. Co. v. Troyer, 70 Neb. 293 (1905), 763. Chicago, B. & Q. R. R. Co. v. Williams, 61 Neb. 608 (1901), 796, 989. Chicago, C. C. & St. L. Ry. Co. v. Bozarth, 91 111. App. 68 (1900), 1026. [ Ixxxvii ] TABLE OF CASES CITED [References are to sections] Chicago City Ry. Co. v. Pelletier, 134 111. 120 (1890), 632, 933. Chicago Dock, etc., Co. v. Gar- rity, 115 111. 155 (1885), 225. Chicago Exchange Bldg. Co. v. Nelson, 197 111. 334 (1902), 193. Chicago G. L. & C. Co. v. People's G. L. & C. Co., 121 111. 530 (1887), 687, 693. Chicago, I. & L. Ry. Co. v. Rail- road Commission, 39 Ind. App. 358 (1907), 1099, 1124, 1430. Chicago, I. & L. Ry. Co. v. South- ern Ind. Ry. Co., 38 Ind. App. 234 (1904), 693. Chicago, K. & W. Ry. Co. v. Frazer, 55 Kan. 582 (1895), 207, 762, 1044. Chicago, M. & St. P. Ry. Co. v. Ackley, 94 U. S. 179 (1876), 124, 1121, 1427. Chicago, M. & P. St. Ry. Co. v. Minnesota, 134 U. S. 418 (1889), 1409, 1411, 1422, 1429. Chicago, M. & St. P. Ry. Co. v. Smith, 110 Fed. 473 (1901), 1195. Chicago, M. & St. P. Ry. Co. v. Tompkins, 90 Fed. 363 (1898), 1409. Chicago, M. & St. P. Ry. Co. v. Tompkins, 176 U. S. 167 (1900), 1151, 1175, 1195, 1196, 1206. Chicago, M. & St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., .61 Fed. 993 (1894), 694. Chicago, M. & St. P. Ry. Co. v. Wallace, 66 Fed. 506 (1895), 259, 755, 772, 969. [ Ixxxviii ] Chicago, etc., R. R. v. Williams, 61 Neb. 608 (1901), 256. Chicago, P. & P. Co. v. Chicago, 88 111. 225, 30 Am. Rep. 545 (1878), 1410. Chicago, P. & St. L. R. R. Co. v. People, 136 111. App. 2 (1909), 1215. Chicago, R. I. & P. Ry. Co. v. Barrett, 16 111. App. 17 (1884), 1044. Chicago, R. I. & P. Ry. Co. v. Conklin, 32 Kan. 55 (1884), 876. Chicago, R. I. & P. Ry. Co. v. Fairclough, 52 111. 106 (1869), 769. Chicago, R. I. & P. Ry. Co. v, Hamler, 215 111. 525 (1905), 779, 1015. Chicago, R. I. & P. Ry. Co. v. In- terstate Comm. Comm., 171 Fed. 680 (1909), 1226, 1378, 1387. Chicago, R. I. & P. Ry. Co. v. Kendall, 72 111. App. 105 (1897), 1042, 1043. Chicago, R. I. & P. Ry. Co. v. Moran, 117 111. App. 42 (1904), 498, 782. Chicago, R. I. & P. Ry. Co. v. Nebraska State Ry. Commis- sion, 85 Neb. 818 (1910), 809. Chicago, R. I. & P. Ry. Co. v. Pffeifer, 90 Ark. 524, 905. Chicago, R. I. & P. Ry. Co. v. Risley Bros. & Co. (Tex. Civ. App.), 119 S. W. 897 (1909), 394, 408. Chicago, R. I. & Ry. Co. v. War- ren, 16 111. 502 (1855), 1036. Chicago, R. I. & P. Ry. Co. v. Witty, 32 Neb. 275 (1891), 1011. TABLE OF CASES CITED [References are to sections] Chicago, R. I. & P. Ry. Co. v. Wood, 104 Fed. 663 (1900), 1044, 1045. Chicago, St. L. & P. R. R. Co. v. Graham, 3 Ind. App. 28 (1891), 865, 888, 891. Chicago, St. L. & P. R. R. Co. v. Holdridge, 118 Ind. 287 (1889), 862. Chicago, St. Louis & Pittsburg R. R. Co. v. Wblcott, 141 Ind. 267 (1894), 345, 511, 663, 664, 665, 799, 841, 853. Chicago, St. L. & N. O. R. R. Co. v. Abels, 60 Miss. 1017 (1883), 256, 1020. Chicago, St. L. & N. 0. R. R. Co. v. Pullman Car Co., 139 U. S. 79 (1890), 482. Chicago, St. P. Mo. & 0. Ry. Co. v. Becker, 35 Fed. 883 (1888), 1192. Chicago, St. P. Mo. & 0. Ry. Co. v. Bryant, 65 Fed. 969 (1895), 745. Chicago Telephone Co. v. Illinois Mfgrs. Assn., 106 111. App. 54 (1903), 136. Chicago Telephone Co. v. North- western Telephone Co., 199 111. 324 (1902), 211. Chicago Terminal Transfer R. R. Co. v. Helbreg, 99 111. App. 563 (1902), 1044. Chicago T. T. R. R. Co. v. O'Don- nell, 213 111. 545 (1905), 783. Chicago Union Traction Co. v. Chicago, 199 111. 484 (1902), 1096, 1410, 1426. Chicago Union Traction Co. v. O'Brien, 219 111. 303 (1906), 410. Chiles v. Chesapeake & 0. Ry. Co., 30 Ky. L. Rep. 1332 (1907), 566, 848, 881. Chiles v. Chesapeake & 0. Ry. Co., 218 U. S. 71 (1910), 566, 848, 881, 1417. Chilton v. St. Louis & I. M. Ry. Co., 114 Mo. 88 (1892), 566, 844, 848, 881. Choctaw, 0. & G. R. R. Co. v. Hill, 110 Term. 396 (1903), 447, 1259. Choctaw, 0. & G. R. R. Co. v. State, 73 Ark. 373 (1904), 415, 665, 854. Chouteau v. Steamboat St. An- thony, 16 Mo. 216 (1852), 255, 743, 792. Christenson v. American Express Co., 15 Minn. 270 (1870), 178, 776, 963. Christian v. Augusta & A. Ry. Co. (S. C.), 69 S. E. 17 (1910). Christie v. Missouri P. R. R. Co., 94 Mo. 453 (1887), 1282, 1285, 1286. Church v. Chicago, M. & St. P. Ry. Co., 6 S. D. 235 (1894), 905, 921. Churchman v. Tunstall, Hardres, 162 (1659), 52. Cincinnati, H. & D. R. R. Co. v. Bowling Green, 57 Oh. St. 336 (1897), 113, 214, 215, 243, 692, 1290. Cincinnati, H. & D. R. R. Co. v. Interstate Comm. Comm., 206 U. S. 142 (1907), 1238, 1391. Cincinnati, H. & D. R. R. Co. v. Carper, 112 Ind. 26 (1887), 738. Cincinnati, I., St. L. & C. Ry. Co. v. Case, 122 Ind. 310 (1889), 902. [ Ixxxix] TABLE OF CASES CITED [References are to sections] Cincinnati, I., St. L. & C. Ry. Co. v. Cooper, 120 Ind. 469 (1889), 933. Cincinnati, I. & W. Ry. Co. v. City of Connersville, 170 Ind. 316 (1908), 214. Cincinnati, J. & M. R. R. Co. v. Morley, 4 Ohio Cir. Ct. 559 (1890), 761. Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Comm. Comm., 162 U. S. 184 (1896), 1222, 1377, 1414, 1420. Cincinnati, N. O. & T. P. Ry. Co. v. Raine, 130 Ky. 454 (1908), 832. Cincinnati, N. 0. & T. P. Ry. Co. v. Sanders & Russell, 118 Ky. 115 (1904), 1008. Cincinnati, etc., R. R. Co. v. Commissioners of Clinton County, 1 Oh. St. 77 (1852), 217. Cincinnati R. R. Co. v. Pontius, 19 Ohio St. 221 (1869), 1017. Citizens' Bank v. Nantucket Steamboat Co., 2 Story (U. S.), 16 (1841), 172, 255, 743. Citizens' Gas & 0. Co. v. Whip- pie, 32 Ind. App. 203 (1904), 417. Citizens' St. R. R. Co. of Ind. v. Merl, 134 Ind. 609 (1893), 1031. Citizens' St. R. Co. v. Twiname, 111 Ind. 587 (1887), 189, 756. City Electric Ry. Co. v. Shrop- shire, 101 Ga. 33 (1897), 937. City of, See the particular city by name. City Water Co. v. State (Tex. Civ. App.), 33 S. W. 259 (1895), 92. [xc] Clancy v. Barker, 131 Fed. 161 (1904), 936, 947. Clancy v. Barker, 71 Neb. 83 (1904), 936. Clapp v. Stan ton, 20 La. Ann. 495 (1868), 173. Clark v. Barnwell, 12 How. 272 (1851), 165. Clark v. Burns, 118 Mass. 275 (1875), 21, 769, 975. Clark v. Clyde S. S. Co., 148 Fed. 243 (1905), 747. Clark v. Colorado & N. W. Ry. Co., 165 Fed. 408 (1908), 745. Clark v. Ulster & D. R. R. Co., 189 N. .93(1907), 833. Clark v. Wilmington & W. R. R. Co., 91 N. C. 506 (1884), 440, 447, 1259. Clarke v. Blackmar, 47 N. Y. 150 (1871), 225. Clarke-Lawrence Co. v. Chesa- peake & 0. Ry. Co., 63 W. Va. 423 (1908), 1048. Clarke v. Needles, 25 Pa. St. 338 (1855), 724, 727. Clarke v. Rochester & S. R. R. Co., 14 N. .570(1856), 256. Clary v. Willey, 49 Vt. 55 (1876), 234, 240, 968. Claypool v. McAlister, 20 111. 504 (1858), 182, 241, 843. Cleburne Water, I. & L. Co. v. City of Cleburne, 13 Tex. Civ. App. 144 (1896), 443. Clemson v. Davidson, 5 Binn. (Pa.) 392 (1813), 1263. Clerc v. Morgan's La. & Tex. R. R. & S. S. Co., 107 La. 370 (1902), 944. Cleveland City Ry. Co. v. Cleve- land, 94 Fed. 385 (1899), 1410. TABLE OP CASES CITED [References are to sections] Cleveland v. Cleveland City Ry. Co., 194 U. S. 517 (1904), 1411, 1424. Cleveland, C., C. & I. Ry. Co. v. Closser, 126 Ind. 348 (1890), 694, 1284. Cleveland, C., C. & I. Ry. Co. v. Coburn, 91 Ind. 557 (1883), 811. Cleveland, C. C. & St. L. Ry. Co. v. Bartram, 11 Ohio St. 457 (1860), 431, 446, 878, 885, 1255. Cleveland, C., C. & St. L. Ry. Co. v. Heath, 22 Ind. App. 47 (1899), 901, 909, 915. Cleveland, C., C. & St. L. Ry. Co. v. Henry, 170 Ind. 94 (1908), 259, 755, 772, 792, 969. Cleveland, C., C. & St. L. R. R. Co. v. Illinois, 177 U. S. 544 (1900), 1417. Cleveland, C., C. & St. L. Ry. Co. v. Ketcham, 133 Ind. 346 (1893), 777, 778. Cleveland, C., C. & St. L. Ry. Co. v. Louisville Tin. & S. Co. (Ky.), Ill S. W. 358 (1908), 794. Cleveland, C., C. & St. L. Ry. Co. v. Moline Plow Co., 13 Ind. App. 225 (1895), 1047. Cleveland, C., C. & S. L. R. R. Co. v. Scott, 111 111. App. 234 (1903), 442. Cleveland, C., C. & St. L. R. R. Co. v. Wright, 25 Ind. App. 525 (1900), 1048. Cleveland Electric Co. v. Cleve- land, 204 U. S. 116 (1906), 298. Cleveland G. & C. Co. v. Cleve- land, 71 Fed. 610 (1896), 1099, 1123, 1132, 1138, 1410, 1430. Cleveland P. & A. R. R. Co. v. Curran, 19 Ohio St. 1 (1869), 780. Clifford v. Stafford, 145 111. App. 247 (1908), 366. Clough v. Grand Trunk Ry. Co., 155 Fed. 81 (1907), 259. Coal, 318K Tons of, 14 Blatch. 453 (1878), 415, 420. Coal & Coke Ry. Co. v. Conley (W.Va.),67S.E.613(1910), 1061, 1068, 1081, 1084, 1091, 1092, 1099, 1126, 1127, 1128, 1132, 1135, 1138, 1163, 1175, 1193, 1202. Coal Co. v. Caledonia Ry. Co., 2 Ry. & C. Tr. Cas. 39 (1874), 1373. Cobb v. Boston El. Ry. Co., 179 Mass. 212 (1901), 943. Cobb C. & Co. v. Illinois Cent. R. R. Co., 88 111. 394 (1878), 914. Cobb v. Gt. Western R. R. Co., (1894), A. C. 419, 944. Coe v. Columbus, P. & I. R. R. Co., 10 Ohio St. 372 (1859), 296. Coe v. Louisville & N. R. R. Co., 3 Fed. 775 (1880), 491, 492, 574, 1043. Coe v. N. J. Midland Ry. Co., 30 N. J. Eq. 440 (1879), 264, 457. Coger v. North Western Union Packet Co., 37 la. 145 (1873), 566, 848, 849, 881. Coggs v. Barnard, 2 Ld. Raym. 909, 962. Cogswell v. Atchison, T. & S. F. Ry. Co., 23 Okla. 181 (1909), 370. Cogswell v. West St. & N. E. Elec. R. Co., 5 Wash. 46 (1892), 207. [xci] TABLE OF CASES CITED [References are to sections] Cohen v. Frost, 2 Duer, 335 (1853), 767. Cohen v. Platt, 48 N. Y. Misc. 378 (1906), 413,991. Cohn v. St. Louis, I. M. & S. Ry. Co., 181 Mo. 30, 79 S. W. 961 (1904), 1377. Coit v. Western Union Tel. Co., 130 Cal. 657 (1900), 348, 766, 1014. Colbath v. Bangor & A. R*. R. Co., 105 Me. 379 (1909), 906. Cole v. Goodwin, 19 Wend. (N. Y.) 251 (1838), 172, 262. Cole v. La Grange, 113 U. S. 1 (1884), 64. Cole v. Logan, 24 Oreg. 304 (1893), 852. Cole v. Rowen, 88 Mich. 219 (1891), 484. Cole v. Western Union Telegraph Co., 33 Minn. 227 (1885), 1025. Coleman v. Georgia R. R. Co., 84 Ga. 1 (1889), 372. Coleman v. New York & N. H. R. R. Co., 106 Mass. 160 (1870), 935. Colfax Mountain Fruit Co. v. Southern Pac. Ry. Co., 46 Pac. 668 (1896), 511, 517, 1033. Collenberg, The, 1 Black (U. S.), 170 (1861), 988, 1267. Collett v. London & N. W. Ry. Co., 16 Q. B. 984 (1851), 777. Collier v. Langan, T. S. & M. Co. (Mo. App.), 127 S. W. 435 (1910), 170, 230, 239, 254. Collier v. Swinney, 16 Mo. 484 (1852), 922. Collins v. Texas & P. Ry. Co., 15 Tex. Civ. App. 169 (1897), 757. [ xcii ] Collman v. Collins, 2 Hall (N. Y.), 569 (1829), 1263. Colorado Springs v. Smith, 19 Colo. 554 (1894), 484. Colt v. McMechen, 6 Johns. 160 (1810), 984. Columbia Conduit Co. v. Com- monwealth, 90 Pa. St. 307 (1879), 59. Columbus v. Columbus St. Ry. Co., 45 Ohio St. 98 (1886), 1424. Columbus & I. Cent. Ry. Co. v. Arnold, 31 Ind. 174 (1869), 783. Columbus Ry. Co. v. Christian, 97 Ga. 56 (1895), 939. Commander in Chief, The, 1 Wall. 43 (1863), 172. Combs v. Lakewood, 68 N. J. L. 582 (1902), 186. Commercial Bank, Re, and Lon- don Gas Co., 20 Up. Can. Q. B. 233 (1860), 454. Commercial U. Tel. Co. v. New England T. & T. Co., 61 Vt. 241 (1889), 136, 244, 692. Commonwealth v. Bacon, 13 Bush. 210 (1877), 51. Commonwealth v. Corey & Co., 2 Pittsburg, 444 (1863), 98. Commonwealth v. Cuncannon, 3 Brewst. 344 (1869), 240. Commonwealth v. Delaware Canal Co., 43 Pa. St. 295 (1862), 122, 241. Commonwealth v. Eastern R. R. Co., 103 Mass. 254 (1869), 805. Commonwealth v. Fitchburg R. R. Co., 12 Gray, 180 (1858), 188, 262, 306, 311, 792. Commonwealth v. Goldman, 205 Mass. 400 (1910), 187. TABLE OF CASES CITED [References are to sections] Commonwealth v. Hancock Free Bridge Corporation, 2 Gray, 58 (1854), 23. Commonwealth v. Interstate Con- solidated Ry., 187 Mass. 436 (1905), 189. Commonwealth v. Louisville & Nashville R. R. Co., 68 S. W. 1103 (1902), 1337. Commonwealth v. Louisville & N. R. R. Co., 24 Ky. L. Rep. 509 (1902), 1238. Commonwealth v. Lowell Gas Light Co., 12 Allen, 75 (1866), 31, 111. Commonwealth v. Mitchell, 2 Parsons (Pa.), 431 (1850), 106, 368, 370, 628. Commonwealth v. Norfolk & W. Ry. Co. (Va.), 68 S. E. 351 (1910), 125,699, 811. Commonwealth v. People's Exp. Co., 201 Mass. 564 (1909), 236. Commonwealth v. Philadelphia, 132 Pa. St. 288 (1890), 456. Commonwealth v. Power, 7 Met. 596 (1844), 484, 861. Commonwealth v. Wetherbee, 101 Mass. 214 (1869), 263. Commonwealth v. Wilkes-Barre Gas Co., 2 Kulp (Pa.), 499 (1883), 31, 280. Commonwealth v. Worcester & N. R. R. Co., 124 Mass. 561 (1878), 1377, 1378. Concord R. R. Co. v. Greely, 17 N. H. 47 (1845), 58. Concord & M. R. R. Co. v. Bos- ton & M. R. R. Co., 67 N. H. 464 (1S93), 125, 527, 808, 811, 1401. Concord & P. R. R. Co. v. For- saithe, 59 N. H. 122 (1879), 1282, 1320. Condit v. Grand Trunk R. R. Co., 54 N. Y. 500 (1873), 513. Condon v. New Rochelle Water Co., 136 N. Y. App. Div. 879 (1909), 1121. Condran v. Chicago, M. & St. P. Ry. Co., 67 Fed. 522 (1895), 743, 746. Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. St. 443 (1898), 688. Congar v. Galena & Chicago U. R. R. Co., 17 Wis. 477 (1863), 521. Conklin v. Prospect Park Hotel Co., 1 N. Y. Supp. 406 (1888), 291. Conley v. Watauga Water Co., 99 Tenn. 420 (1897), 1300. Connell v. Chesapeake & O. Ry. Co., 93 Va. 44 (1896), 941, 944, 948. Connell v. Mobile & 0. Ry. Co. (Miss.), 7 So. 344 (1890), 869. Conolley v. Crescent City R. R. Co., 41 La. Ann. 57 (1889), 631, 638, 933. Connolly v. Warren, 106 Mass. 146 (1870), 875. Connolly v. Woods, 13 Idaho, 573 (1907), 206. Connors v. Cunard S. S. Co., 204 Mass. 310 (1910), 631, 635, 638, 643, 953. Conroy v. Chicago, St. P., M. & 0. R. R. Co., 96 Wis. 243 (1897), 949. Consolidated Gas Co. v. Blondell, 89 Md. 732 (1899), 883. Consolidated Gas Co. v. Willcox, 157 Fed. 849 (1907), 1092. Consolidated Traction Co. v. Taborn, 58 N. J. L. 1 (1895), 863. [ xciii ] TABLE OF CASES CITED [References are to sections] Continental Coal Co. v. Pennsyl- vania R. R. Co., 13 Pa. Dist. Ct. 702 (1904), 404, 817. Contra Costa R. R. Co. v. Moss, 23 Cal. 323 (1863), 176, 223. Converse v. Norwich & N. Y. Transp. Co., 33 Conn. 166 (1865), 733. Converse v. Washington & G. R. R. Co., 2 MacAr. 504 (1876), 632, 933. Conyers v. Postal Telegraph- Cable Co., 92 Ga. 619 (1893), 520. Cook v. Chicago, R. I. & P. R. R. Co., 81 Iowa, 551 (1890), 1282, 1283, 1286, 1303, 1320. Cook v. Chicago, R. I. & P. R. R. Co., 78 Neb. 64 (1907), 1024. Cook v. Gourdin, 2 N. & McC. 19 (1819), 771. Cook & Wheeler v. Chicago, R. I. & P. R. R. Co., 81 Iowa, 551 (1890), 1080, 1289. Cooley v. Minnesota Transfer Ry. Co., 53 Minn. 327 (1893), 1046. Cooney v. Pullman Palace Car Co., 121 Ala. 368 (1898), 769. Cooper v. Berry, 21 Ga. 526 (1857), 1001. Cooper v. Goodland, 80 Kan. 121 (1909), 406, 825, 1251. Cooper, Matter of, 28 Hun, 515 (1883), 145. Cooper v. Raleigh & G. R. R. Co., 110 Ga. 659 (1900), 1012. Cope v. Cordova, 1 Rawle (Pa.), 203 (1829), 1039. Copland v. American DeForest Wireless Telegraph Co., 136 N. C. 11 (1904), 134. Copeland v. Draper, 157 Mass. 558 (1893), 107. [ xciv ] Coppin v. Braithwaite, 8 Jurist, 875 (1844), 598, 608, 627, 634. Corbet v. Oil City Fuel Supply Co., 21 Pa. Super. Ct. 80 (1902), 273. Cordell v. Western Union Tele- graph Co., 149 N. C. 402 (1908), 562. Cordillera, The, 5 Blatch. 518 (1867), 731. Corwin v. Long Island R. R. Co., 2 N. Y. City Ct. 106 (1885), 431, 878, 885. Cosgrove v. City Council of Au- gusta, 103 Ga. 835 (1898), 484. Coskery v. Nagle, 83 Ga. 696 (1889), 744. Cotting v. Kansas City Stock Yards Co., 183 U. S. 79 (1901), 100, 1068, 1123, 1128, 1130, 1132, 1135, 1138, 1217, 1420, 1436. Cotton v. Mississippi River Boom Co., 22 Minn. 372 (1876), 55, 73. County of Hennepin v. Brother- hood of Gethsemane, 27 Minn. 460 (1881), 70. Coup v. Wabash, St. L. & P. Ry. Co., 56 Mich. Ill (1885), 259, 755, 772, 792. Coupland v. Housatonic R. R. Co., 23 Atl. 870 (1892), 796, 847, 862, 951, 989, 1002, 1021. Coventry v. Great Eastern Ry. Co., 11 Q.D. 776 (1883), 748. Covington v. Ratterman, 128 Ky. 336 (1908), 377, 450. Covington & C. Bridge Co. v. So. Covington & C. St. Ry. Co., 93 Ky. 136 (1892), 53, 699. TABLE OF CASES CITED References are to sections] Covington & L. T. Ry. Co. v. Sandford, 164 U. S. 578 (1896), 24, 75, 241, 1067, 1411, 1426. Covington Gas Light Co. v. Cov- ington, 22 Ky. Law Rep. 796 (1900), 1103. Covington S. Y. Co. v. Keith, 139 U. S. 128 (1891), 491, 813, 818, 1043. Cowden v. Pacific C. S. S. Co., 94 Cal. 470 (1892), 1282. Cownie Glove Co. v. Merchants' Dispatch Transp. Co., 106 N. W. 749 (1906), 180, 963. Cox v. Cook, 14 Allen (Mass.), 165 (1867), 611. Cox v. Maiden & M. Gaslight Co., 199 Mass. 324 (1908), 457. Cox v. Missouri, K. & T. Ry. Co., 81 Kan. 186 (1909), 408. Coxe v. Heisley, 19 Pa. St. 243 (1852), 1002. Coy v. Detroit, Y. & P. A. Ry. Co., 125 Mich. 616 (1901), 887. Coy v. Indianapolis Gas Co., 146 Ind. 655 (1897), 335, 982. Coykendall v. Eaton, 55 Barb. 188 (1869), 970. Coyle v. Southern Ry. Co., 112 Ga. 121 (1900), 432, 433, 887. Cozard v. Kanawha Hardwood Co., 139 N. C. 283 (1905), 206, 214, 223. Cragin v. New York Central R. R. Co., 51 N. Y. 61 (1872), 1012. Craig v. Childress, Peck, 270 (1823), 963. Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657 (1875), 933, 935, 938. Cramer v. American M. U. Ex- press Co. & Merchants' Dis- patch Co., 56 Mo. 524 (1874), 518, 1033, Cravens v. Rodgers, 101 Mo. 247 (1890), 485, 489. Crawford v. Cincinnati, H. & D. R. R. Co., 26 Ohio St. 580 (1875), 886. Crawfordsville v. Braden, 130 Ind. 149 (1891), 218. Creech v. Charleston & W. C. Ry. Co., 66 S. C. 528 (1903), 395. Crescent City Gas Light Co; v. New Orleans Gas Light Co., 27 La. Ann. 138 (1875), 51. Crescent Liquor Co. v. Platt, 148 Fed. 894 (1906), 600. Crescent Steel Co. v. Equitable Gas Co., 23 Pitts. L. Jour. 316 (1892), 553, 1288. Cresson v. Philadelphia & R. R. R. Co., 11 Phila. 597 (1875), 886. Crine v. East Tennessee V. & G. Ry. Co., 84 Ga. 651 (1890), 763. Crocker v. New London, W. & P. R. R. Co., 24 Conn. 249 (1855), 888. Crommelin v. New York & H. R. R. R. Co., 10 Bosw. (N. Y.) 77 (1862), 1050. Cromwell v. Stephens, 2 Daly (N. Y.), 15 (1867), 263. Cronan v. St. L. & S. F. Ry. Co. (Mo. App.), 130 S. W. 437 (1910), 801. Cronkite v. Wells, 32 N. Y. 247 (1865), 394. Croom v. Chicago, M. & St. P. Ry. Co., 52 Minn. 296 (1893), 631, 635, 638, 933. Crooms v. Schad, 51 Fla. 168 (1906), 560, 566. 849. [ xcvl TABLE OF CASES CITED [References are to sections] Crosby v. City Council, 108 Ala. 498 (1895), 1410, 1424. Crosby v. Fitch, 12 Conn. 410 (1838), 165, 172, 229, 239, 905, 921. Crosby v. Pere Marquette R. R. Co., 131 Mich. 288 (1902), 519. Cross v. Andrews, Cro. Eliz. 622 (1598), 340. Crossan v. New York & N. E. R. R. Co., 149 Mass. 196 (1889), 522. Crouch v. Arnett, 71 Kans. 49 (1905), 273, 276, 405, 797. Crouch v. London & N. W. Ry. Co., 14 C. B. 255 (1854), 420, 696. Crouch v. Louisville & N. R. R. Co., 42 Mo. App. 248 (1890), 513. Crow v. San Joaquin & K. R. C. & Irrigation Co., 130 Cal. 309 (1900), 451. Crozier v. Boston, N. Y. & M. Steamboat Co., 43 How. Pr. (N. Y.) 466 (1871), 769, 975. Crumley v. Watauga Water Co., 99 Tenn. 420 (1897), 451, 454, 1290. Cuba, The, 3 Ware, 260 (1860), 1269. Cullen, Matter of, 106 N. Y. App. Div. 250 (1905), 603, 605, 608, 646. Culvar v. Lester, 37 Can. L. J. 421 (1901), 169, 230. Cumberland Telephone & Tele- graph Co. v. Baker, 85 Miss. 489 (1905), 458, 866. Cumberland Telephone Co. v. Brown, 104 Tenn. 56 (1900), 210. [ xcvi ] Cumberland Telephone & T. Co. v. Cartwright C. Telephone Co., 128 Ky. 395 (1908), 244, 700. Cumberland Telephone & T. Co. v. Kelly, 160 Fed. 316 (1908), 136, 244, 273, 405, 576, 664, 797, 802. Cumberland Telephone & T. Co. v. Morgan's L. & T. R. R. Co., 51 La. Ann. 29 (1889), 260, 687, 816. 817, 1043. Cumberland Telephone & T. Co. v. Railroad Comm., 156 Fed. 823 (1907), 1099, 1133. Cumberland Telephone & T. Co. v. Sanders, 83 Miss. 357 (1904), 412. Cumberland Valley Ry. Co. v. Baab, 9 Watts, 458 (1840), 811. Cunningham v. Bucky, 42 W. Va. 671 (1896), 965. Cunningham v. Seattle El. R. & P. Co., 3 Wash. 471 (1892), 938. Curling v. Long, 1 Bos. & P. (Eng.) 634 (1797), 1263. Curran v. Olson, 88 Minn. 307 (1903), 936, 947. Currell v. Hannibal & St. J. Ry. Co., 97 Mo. App. 93 (1902), 833, 922. Currie v. Railroad Co., 135 N. C. 535 (1904), 414, 723. Curry v. Georgia M. & G. R. R. Co., 92 Ga. 293 (1893), 395. Curry v. Kansas & C. P. R. Co., 58 Kan. 6 (1897), 341, 1298, 1364. Curtis v. Dinneen, 4 Dak. 245 (1886), 947. Curtis v. Murphy, 63 Wis. 4 (1885), 559, 610, 623. TABLE OF CASES CITED [References are to sections] Cutler v. Bonney, 30 Mich. 259 (1874), 965. Cutting v. Florida Ry. & Nav. Co., 30 Fed. 663 (1887), 524. Cutting v. Florida Ry. & Nav. Co., 46 Fed. 641 (1891), 1415. Cutts v. Brainerd, 42 Vt. 566 (1870), 1042. Dale v. Hall, 1 Wils. Reports, 281 (1750), 164. Dalles Lumbering Co. v. Urqu- hart, 16 Oreg. 67 (1888), 62. Dalzell v. Steamboat Saxon, 10 La. Ann. 280 (1855), 518, 917, 1033. Dan, The, 40 Fed. 691 (1889), 235. Dana v. New York Central & H. R. R. R. Co., 50 How. Pr. 428 (1875), 522. Danaher v. Brooklyn, 119 N. Y. 1 (1890), 981. Danaher v. Southwestern Tele- phone & T. Co. (Ark.), 127 S. W. 963 (1910), 451, 1300. Daniel v. New Jersey St. Ry. Co., 64 N. J. L. 603 (1900), 629, 880. Daniel v. Petersburg Ry. Co., 117 N. C. 592 (1895), 946. Daniel Ball, The, 10 Wall. 557 (1871), 1413. Daniel Burns, The, 52 Fed. 159 (1892), 753. Daniels v. Ballantine, 23 Ohio St. 532 (1872), 917. Danville v. Noone, 103 111. App. 290 (1901), 484. Da Ponte v. New Orleans Trans- fer Co., 42 La. Ann. 696 (1890), 171. Darden v. Southern Ry. Co., 2 Ga. App. 66 (1907), 403. 7 Darlington v. Missouri Pac. R. R. Co., 99 Mo. App. 1 (1903), 1050. Darwin v. Charlotte, C. & A. Ry. Co., 23 S. C. 531 (1885), 761. Dave v. Morgan's Louisiana & T. R. R. & Steamship Co., 47 La. Ann. 576 (1895), 1044. Davenport Gas &c. Co. v. Daven- port, 124 la. 22 (1904), 51. Davenport v. Pennsylvania R. R. Co., 173 Pa. St. 398 (1896), 796. Davey v. Greenfield & T. F. St. Ry. Co., 177 Mass. 106 (1900), 736. Davey v. Mason, Car & M. 45 (1841), 732. David & C., The, 5 Blatchf. 266 (1865), 413, 981. Davidson, The, 122 Fed. 1006 (1903), 488. Davies v. Williamson, 21 New South Wales L. R. (Law) 124 (1900), 446, 1256, 1260. Davis v. Button, 78 Cal. 247 (1889), 262, 739. Davis v. Central Vt. R. R. Co., 66 Vt. 290 (1893), 917, 1003, 1007. Davis v. Chesapeake & 0. Ry. Co., 122 Ky. 528 (1906), 477, 781, 787. Davis v. Chicago, M. & St. P. Ry. Co., 93 Wis. 470 (1896), 1011. Davis v. Chicago, St. P. M. & 0. R.R. Co., 45 Fed. 543 (1891), 758. Davis v. Clinton Waterworks Co., 54 Iowa, 59 (1880), 350. Davis v. Coventry, 65 Kans. 557 (1902), 69. [ xcvii 1 TABLE OF CASES CITED [References are to sections] Davis v. Electric Reporting Co., 19 Weekly N. C. 567 (1887), 137. Davis v. Garrett, 6 Bing. 716 (1830), 905, 908, 921. Davis v. Gay, 141 Mass. 531 (1886), 263, 974. Davis v. Kansas City, S. J. & C. B. R. R., 53 Mo. 317 (1873), 433, 800, 1257. Davis v. Mayor, 14 N. Y. 506 (1856), 75. Davis v. Pacific Tel. & Teleg. Co., 127 Cal. 312 (1899), 135. Davis v. Paducah Ry. & L. Co., 113 Ky. 267 (1902), 919. Davis v. Wabash, St. L. & P. Ry. Co., 89 Mo. 340 (1886), 918. Davis v. Western Union Tele- graph Co., 46 W. Va. 48 (1899), 398, 874, 1041. Davis v. Western Union Tele- graph Co., 107 Ky. 527 (1900), 1026. Davison v. Gillies, 16 Ch. D. 347n (1879), 1169. Davis v. Williams, 2 Starkie, 279 (1817), 1001. Dawley v. Wagner P. C. Co., 169 Mass. 315 (1897), 153. Dawson v. Channey, 5 Q. B. 164 (1843), 964. Dawson v. Chicago & A. R. R. Co., 79 Mo. 296 (1883), 663, 914. Dawson v. New York & Brooklyn Bridge, 31 App. Div. 537 (1898), 945. Day v. Bather, 2 H. & C. 14 (1863), 964. Day v. Owen, 5 Mich. 520 (1858), 566, 848, 849, 865, 881. Dayton v. Quigley, 29 N. J. Eq. 77 (1878), 378, 453, 456. [ xcviii ] Dean v. Chicago General Ry., 64 111. App. 165 (1896), 189. Dean v. King, 22 Ohio St. 118 (1871),.747. De Bary Baya M. L. v. Jackson- ville, T. & K. W. Ry. Co., 40 Fed. 392 (1889), 1282, 1287. De Board v. Camden Int. Ry. Co., 62 W. Va. 41 (1907), 862. De Camp v. Hibernia R. R. Co., 47 N. J. L. 43 (1885), 63, 222, 224. Decker v. Atchison, T. & S. F. Ry. Co., 3 Okla. 553 (1895), 593, 866, 910. Decker v. Chicago, M. & St. P. Ry. Co., 102 Minn. 99 (1907), 777. De Colange v. The Chateau Mar- gaux, 37 Fed. 157 (1888), 908. De La Grange v. Southwestern Telegraph Co., 25 La. Ann. 383 (1873), 348. Delaware, The, 14 Wall. 579 (1871), 165. Delaware & A. Telegraph & Tele- phone Co. v. State of Dela- ware, 50 Fed. 677 (1892), 136, 692. Delaware, L. & W. R. R. Co. v. Ashley, 67 Fed. 209 (1895), 780. Delaware, L. & W. R. R. Co. v. Bullock, 60 N. J. L. 24 (1897), 880. Delaware, L. & W. R. R. Co. v. Central Stockyards Co., 46 N. J. Eq. 280 (1889), 100. Delaware, L. & W. R. R. Co. v. Railroad Commission (N. J.), 74 Atl. 269 (1909), 806, 810. Deming v. Grand Trunk R. R. Co., 38 N. H. 455 (1869), 833, 922. TABLE OF CASES CITED [References are to sections] Deming v. Merchants' Cotton- Press & Storage Co., 90 Tenn. 306 (1891), 1015. Dempsey v. New York C. & H. R. R. R. Co., 146 N. Y. 290 (1894), 1304, 1363. Denaby Main Colliery Co. v. Manchester, S. & L. R. Co., L. R. 11 App. Gas. 97, 1314. Denny v. New York Central R. R. Co., 13 Gray (Mass.), 481 (1859), 917. Densmore Commission Co. v. Duluth, S. S. & A. Ry. Co., 101 Wis. 563 (1899), 796. Dent v. London Tramway Co., 16 Ch. Div. 344 (1880), 1169. Denton v. Gt. Northern Ry. Co., 5 El. & Bl. 860 (1856), 872, 904. Denver & R. G. Ry. Co. v. HiU, 13 Colo. 35 (1889), 522. Denver & R. G. Ry. Co. v. De Witt, 1 Colo. App. 419 (1892), 905, 921, 1008. Denver & R. G. Ry. Co. v/Whan, 39 Colo. 230 (1908), 482. Denver Consolidated Electric Co. v. Lawrence, 31 Colo. 301 (1903), 983, 1013. Derosia v. Winona & St. Paul R. R. Co., 18 Minn. 133 (1872), 1037. De Rutte v. New York, A. & B. Electric Magnetic Telegraph Co., 1 Daly, 547 (1866), 133. Des Moines v. Des Moines Water Works Co., 95 Iowa, 348 (1895), 92, 1410. Detroit v. Detroit Citizens' St. Ry. Co., 184 U. S. 368 (1902), 1421, 1424, 1426. Dewing v. Hutton, 46 W. Va. 538, 866. Dibble v. Brown, 12 Ga. 217 (1852), 185. Dickerson v. Rogers, 4 Humph. 179 (1843), 106, 203, 213, 234, 263, 979. Dickerman v. St. Paul Union De- pot Co., 44 Minn. 433 (1890), 431, 866, 878, 885. Dickinson v. West End St. Ry. Co., 177 Mass. 363 (1901), 784. Dietrich v. Murdock, 42 Mo. 279 (1868), 223. Di Giorgio Imp. & S. S. Co. v. Pennsylvania Ry. Co., 104 Md. 693 (1906), 408, 662, 722, 796, 799, 831. Dillard v. Louisville & N. R. R. Co., 2 Lea, 288 (1879), 1004, 1007. Dillon v. Erie R. R. Co., 19 N. Y. Misc. 116 (1897), 1413. Diphwys Casson Slate Co. v. Festining R. Co., 2 Nev. & Mac. 73 (1860), 1331. District of Columbia v. Johnson, 1 Mackey, 51 (1881), 102, 232. Dittmar v. Brooklyn Heights R. R. Co., 91 App. Div. 378 (1904), 945. Dittmar v. City of New Braunfels, 20 Tex. Civ. App. 293 (1899), 338, 411, 1013, 1289, 1290, 1300. Dixon v. Central of Ga. Ry. Co., 110 Ga. 173 (1899), 130, 726. Dixon v. Chicago, R. I. & P. Ry. Co., 64 la. 531 (1884), 665. Dixon v. Western Union Tel. Co., 3 App. Div. 60 (1896), 1014. Dobbins v. Little Rock Ry. & El. Co., 79 Ark. 85 (1906), 822, 843. [ xcix ] TABLE OF CASES CITED [References are to sections] Dobson v. New Orleans & W. R. R. Co., 52 La. Ann. 1127 (1900), 783. Dodd v. Central R. R. of N. J. (N. J. L.), 76 Atl. 544 (1910), 778, 1015. Doland v. Clark, 143 Cal. 176 (1904), 852. Dominion Telegraph Co. v. Sil- ver, 10 Can. Sup. Ct. 238 (1881), 605. Donlon v. Southern Pacific Co., 151 Cal. 763 (1907), 1008, 1019. Donovan v. Hartford St. Ry. Co., 65 Conn. 201 (1894), 410, 736. Donovan v. Pennsylvania Co., 199 U. S. 279 (1905), 483. Doorman v. Jenkins, 2 Ad. & El. 256 (1834), 970. Doran v. East River Ferry Co., 3 Lans. (N. Y.) 105 (1870), 738. Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485 (1854), 1002. Dorsey v. Atchison, T. & S. F. Ry. Co., 83 Mo. App. 528 (1900), 785. Doss v. Missouri, K. & T. Ry. Co., 59 Mo. 27 (1875), 369, 372. Doty v. Strong, 1 Pinn. 313 (1843), 160, 204, 239, 723. Dougherty v. New York Cent. & H. R. R. R. Co., 86 N. Y. Supp. 746 (1904), 402, 735. Douglas v. People's Bank, 86 Ky. 176 (1887), 1045. Douglas Co. v. Minnesota Trans- fer Ry. Co., 62 Minn. 288 (1895), 1019, 1020, 1021. [c] Dow v. Beidelman, 125 U. S. 680, 31 L. ed. 841 (1888), 1122, 1411, 1428. Dowd v. Albany Ry. Co., 47 N. Y. App. Div. 202 (1900), 626,880. Dowd v. Chicago, M. & St. P. Ry. Co., 84 Wis. 105 (1893), 369. Downing v. Mt. Washington Road Co., 40 N. H. 230 (1860), 823. Downs v. New York & N. H. R. R. Co., 36 Conn. 287 (1869), 886. Downs v. Pacific Express Co., 135 Mo. App. 330 (1909), 1040. Doyle v. Fitchburg R. R. Co., 162 Mass. 66 (1894), 785, 1016. Doyle v. Kiser, 6 Ind. 242 (1855), 876. Doyle v. Walker, 26 Up. Can. Q. B. 502 (1867), 432, 844, 845. Drake v. Penna. Ry. Co., 137 Pa. St. 352 (1890), 864. Draper v. Evansville & T. H. R. R..Co.^l65 Ind. 117 (1905), 398, 873. Dresbach v. California R. R. Co., 57 Cal. 462 (1881), 1039. Drew, The, 15 Fed. 826 (1883), 1049. Drew v. Central Pac. R. R. Co., 51 Cal. 425 (1875), 1255. D. R. Martin, The, 11 Blatch. (U. S.) 233 (1873), 697. Drummond v. Southern Pacific Co., 7 Utah, 118 (1891), 1004. DuBois Borough v. DuBois City Waterworks Co., 176 Pa. St. 430 (1896), 981. Duchemin v. Boston E. Ry. Co., 186 Mass. 353 (1904), 736. Dudley v. Camden & P. Ferry Co., 42 N. J. Law, 25 (1880), 771, 969, 972. TABLE OF CASES CITED [References are to sections] Dudley v. Chicago, M. & St. P. Ry. Co., 58 W. Va. 604 (1906), 1042. Duff v. Allegheny V. R. R. Co., 91 Pa. 458 (1879), 746. Dufur v. Boston & M. R. R. Co., 75 Vt. 165 (1902), 944. Duke v. Central N. J. Telephone Co., 53 N. J. L. 341 (1891), 136. Dulaney v. United Ry. & Electric Co., 104 Md. 423 (1906), 225, 477. DuLaurans v. St. Paul & P. R. R. Co., 15 Minn. 49 (1870), 888. Duling v. Philadelphia, W. & B. R. R. Co., 66 Md. 120 (1886), 872, 904. Dunbar v. Charleston & W. C. Ry. Co., 62 S. C. 414 (1902), 1003. Dunbar v. Port Royal & A. Ry. Co., 36 S. C. 110 (1891), 513, 519. Dunbier v. Day, 12 Neb. 596 (1882), 965. Duncan v. Gt. Northern R. R. Co. (N. D.), 118 N. W. 826 (1908), 414, 991. Dunham v. Boston & Maine R. R. Co., 70 Me. 164 (1879), 519, 520. Dunn v. Ashville & C. M. Ry. Co., 141 N. C. 521 (1906), 740. Dunn v. Bean, Quebec Rep., 11 Super. Ct. 538 (1897), 974. Dunn v. Beecknall Bros., 2 K. B. 614 (1902), 592, 910. Dunn v. Grand Trunk Ry. Co., 58 Me. 187 (1870), 763, 764. Dunn v. Hannibal & St. J. R. R. Co , 68 Mo. 268 (1878), 1033. Dunn v. Western Union Tele- graph Co., 2 Ga. App. 845 (1908), 133, 931. Dunne v. N. Y., N. H. & H. R. R. Co., 99 App. Div. 571 (1904), 369. Dunseth v. Wade, 2 Scam. 285 (1840), 172. Dunston v. New York Cent. R. R. Co., 3 Lans. 265 (1870), 1033. Duntley v. Boston & Maine R. R. Co., 66 N. H. 263 (1890), 1021. Durden v. Southern R. R. Co., 2 Ga. App. 66 (1907), 317, 399, 815, 822, 1043. Durgin v. American Express Co., 66 N. H. 277 (1890), 1011, 1019. Duval v. Pullman P. C. Co., 62 Fed. 265 (1894), 845. Duvenick v. Mo. Pac. Ry. Co., 57 Mo. App. 550 (1894), 772. Dwight v. Brewster, 1 Pick. 50 (1822), 160, 184, 255, 262, 743. Dwinelle v. New York Central & H. R. R. R. Co., 120 N. Y. 117 (1890), 776, 935, 938, 940. Dwyer v. Gulf, C. & S. F. Ry. Co., 69 Tex. 707 (1888), 1045. Eads v. Metropolitan St. Ry. Co., 43 Mo. App. 536 (1891), 556, 933. East Canada Creek Electric Light & Power Co., Re, 49 N. Y. Misc. 565 (1905), 95, 114. East Grand Forks v. Luck, 9 Minn. 373 (1906), 377. East India Co. v. Pullen, 2 Strange, 690 767, 771. [ci] TABLE OF CASES CITED [References are to sections] East Indian Ry. Co. v. Kalidas Mukeriee, App. Gas. 396 (1901), 943. East Ky. Ry. v. Holbrook, 4 Ky. Law Rep. 730 (1883), 480. East Line & Red River Ry. Co. v. Hall, 64 Tex. 615 (1885), 724. East London Waterworks Co. v. Kellerman, 2 Q. B. 72 (1892), 456. East Ohio Gas Co. v. Akron, 81 Ohio St. 33 (1909), 212, 298, 302, 306, 316, 596. East Omaha Ry. Co. v. Godola, 50 Neb. 906 (1897), 76. East St. Louis Connecting Ry. Co. v. Wabash, St. L. & P. Ry. Co., 123 111. 594 (1888), 1043. East Tennessee & Georgia R. R. Co. v. Montgomery, 44 Ga. 278 (1871), 1017. East Tennessee Telephone Co. v. Harrodsburg (Ky.), 122 S. W. 126 (1909), 1246, 1300. East Tennessee, Va. & Ga. R. R. Co. v. Brumley, 5 Lea, 401 (1880), 1005. East Tennessee, Va. & Ga. R. R. Co. v. Hunt, 15 Lea, 261 (1885), 1050. East Tennessee, Va. & Ga. R. R. Co. v. Interstate Comm. Comm., 181 U. S. 1 (1901), 1204, 1222, 1373, 1377, 1380. East Tennessee, Va. & Ga. R. R. Co. v. Whittle, 27 Ga. 535 (1859), 176, 758, 775. Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y. 382 (1874), 764. Ebling v. Second Ave. Ry. Co., 69 N. Y. Supp. 1102 (1901), 864. [cii] Eddy, The, 5 Wall. 481 (1866), 1038, 1039. Eddy v. Elliot, 4 Tex. Ct. of App. 248 (1890), 341. Eddy v. Harris, 78 Tex. 661 (1890), 872, 904. Eddy v. Rowell (Tex. Civ. App.), 26 S. W. 875 (1894), 862. Edgar Lumber Co. v. Cornie Stave Co. (Ark.), 130 S. W. 452 (1910), 223, 226, 792, 822. Edgerly v. Union St. Ry. Co., 67 N. H. 312 (1892), 632, 933. Edgerton v. New York & H. R. R. R. Co., 39 N. Y. 227 (1868), 763. Edison U. M. Co. v. Farmington Electric L. & P. Co., 82 Me. 464 (1890), 113. Edson v. So. Pacific Ry. Co., 144 Cal. 182 (1904), 1353. Edwards v. Burke, 36 Wash. 107 (1904), 193. Edwards v. Mfrs. Building Co., 27 R. I. 248 (1905), 193. Edwards v. Sherratt, 1 East, 604 (1801), 667. Edwards v. Todd, 2 111. 462 (1837), 1269. Edwards v. White Line Tr. Co., 104 Mass. 159 (1870), 1046. Edwin, The Bark, 1 Spra. 477 (1859), 732. Eells v. St. Louis, K. & N. W. Ry. Co., 52 Fed. 903 (1892), 1022. Eels v. American Telephone & Telegraph Co., 143 N. Y. 133 (1894), 56. Eichorn v. Missouri, K. & T. Ry. Co., 130 Mo. 575 (1895), 812. Ela v. American Merch. Union Exp. Co., 29 Wis. 611 (1872), 1048. TABLE OF CASES CITED [References are to sections] Elder v. International Ry. Co., 122 N. Y. Supp. 880 (1910), 431, 432, 877. Electric Despatch Co. v. Bell Telephone Co., 20 Can. Sup. Ct. 83 (1891), 704. Elgin, J. & E. Ry. Co. v. Bates Machine Co., 200 111. 636 (1903), 413, 414, 991. Elkins v. Boston & M. R. R. Co., 23 N. H. 275 (1851), 167, 176, 239, 741. Ellinghouse v. Taylor, 19 Mont. 462 (1897), 93, 242. Elliott v. Rossell, 10 Johns. 1 (1813), 165, 229. Ellis v. American Telegraph Co., 13 Allen, 226 (1866), 348, 1014. Ellis v. Chicago, M. & St. P. Ry. Co., 120 Wis. 645 (1904), 1044. Ellis v. Houston, E. & W. Tex. Ry. Co., 30 Tex. Civ. App. 172 (1902), 885. Ellison v. Adams Express Co., 245 111. 410 (1910), 1020. Elsworth v. Chicago, B. & Q. Ry. Co., 95 Iowa, 98 (1895), 866, 887, 889. El Paso Electric Ry. Co. v. Al- derete, 36 Tex. Civ. App. 142 (1904), 557, 633. Elvira Harbeck, The, 2 Blatchf. 336 (1851), 875. Elwell v. Skiddy, 77 N. Y. 282 (1879), 1269. Emerson v. Babcock, 66 la. 257 (1885), 71. Emerson v. Boston & M. R. R. Co., 75 N. H. 427 (1910), 1298. Emerson v. McNeil, 84 Ark. 552 (1907), 484. Emerson v. St. Louis & H. Ry. Co., Ill Mo. 161 (1892), 796. Emiliusen v. Pennsylvania R. R. Co., 30 N. Y. App. Div. 203 (1898), 173, 774. Emily, The, 5 Kans. 645 (1864), 172. Empire State Cattle Co. v. Atch- ison, T. & S. F. Ry. Co., 135 Fed. 135 (1905), 656, 917. Empire State Cattle Co. v. Atchi- son, T. & S. F. Ry. Co., 210 U. S. 1 (1908), 522, 656, 907. Empire Transportation Co. v. Wallace, 68 Pa. St. 302 (1871), 901, 905, 906, 909, 921, 949, 952. Employers' Liability Cases, The, 207 U. S. 463 (1908), 1419. Enfield ToU Bridge Co. v. Hart- ford & N. H. R. R. Co., 17 Conn. 40 (1845), 53. Equitable Securities Co. v. Mont- rose & D. Canal Co., 79 Pac. 747 (Col., 1905), 378. Erie v. Erie Gas & M. Co., 78 Kans. 348 (1908), 1158, 1164, 1197. Erie Ry. Co. v. Littell, 63 C. C. A. 44 (1904), 889. Erie Ry. Co. v. Lockwood, 28 Ohio St. 358 (1876), 1009, 1021. Erie Ry. Co. v. Wilcox, 84 111. 239 (1870), 990. Erie & North-East R. R. Co. v. Casey, 26 Pa. St. 287 (1856), 212, 305. Erie & P. Ry. Co. v. Douthet, 88 Pa. St. 245 (1878), 1364. Ernst & Co. v. New Orleans Waterworks Co., 39 La. Ann. 550 (1887), 458, 459. [ ciii ] TABLE OF CASES CITED [References are to sections] Eureka Basin, Matter of, 96 N. Y. 42 (1884), 103. Eureka Springs Ry. Co. v. Tim- mons, 51 Ark. 459 (1888), 740. Evans v. Boston Heating Co., 157 Mass. 37 (1892), 115. Evans v. Fitchburg R. R. Co., Ill Mass. 142 (1872), 256, 989. Evans v. Hughes County, 3 So. Dak. 580 (1893), 52. Evans v. Memphis & C. R. R. Co., 56 Ala. 246 (1876), 873. Evans v. Rudy, 34 Ark. 383 (1879), 771. Evans v. Western Union Tele- graph Co., 56 S. W. 609 (1900), 765, 1345. Evansville & H. Traction Co. v. Henderson Bridge Co., 134 Fed. 973 (1904), 53, 126, 699. Evansville & R. R. R. Co. v. Barnes, 137 Ind. 306 (1893), 207, 208, 762, 783. Evansville & R. R. R. Co. v. Maddux, 134 Ind. 571 (1893), 783. Evansville & T. H. R. R. Co. v. Keith, 8 Ind. App. 57 (1893), 409, 724, 733. Evansville & T. H. R. R. Co. v. Wilson, 20 Ind. App. 5 (1898), 870. Everett v. Chicago, R. I. & P. Ry. Co., 69 Iowa, 15 (1886), 873. Everett v. Norfolk & S. R. R. Co., 138 N. C. 68 (1905), 1020, 1022. Everett v. Oregon S. L. & U. N. Ry. Co., 9 Utah, 340 (1893), 764. Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551 (1885), 69, 430. [civ] Evershed v. London & N. W. Ry. Co., L. R. 2 Q. B. 254 (1877), 1293. Evershed v. London & N. W. Ry. Co., L. R. 3 App. Gas. 1029 (1878), 1316, 1328. Evershed v. Railway Co., 3 Q. B. Div. 135 (1878), 1287, 1328. Ewald v. Chicago & N. W. Ry. Co., 70 Wis. 420 (1888), 783. Ewart v. Street, 2 Bailey (S. C.), 157 (1831), 920. Exchange & Building Co. v. Roanoke & Water Co., 90 Va. 83 (1893), 1244, 1245. Ex parte, see the particular party by name. Express Cases, The, 117 U. S. 1 (1886), 474, 477, 690, 776. Express Co. v. Caldwell, 21 Wall. 264 (1874), 1023, 1024, 1026. Express Co. v. Jackson, 92 Tenn. 326 (1893), 920. Express Co. v. Kountz, 8 Wall. 342 (1870), 905, 911, 920. Extinguisher Co. v. Railroad Co., 137 N. C. 278 (1904), 917, 921. Exton v. Central Ry. Co., 63 N. J. L. 356 (1899), 942. Faber v. Chicago Gt. Western Ry. Co., 62 Minn. 433 (1895), 878. Fahey v. Northern Transportation Co., 15 Wis. 129 (1862), 905. Fairchance Window Glass Co. v. Star Gas Co. (Pa. Co. Ct.), 66 Leg. Intelligencer, 409, 544 (1909), 653, 688. Fairfax v. New York Central & H. R. R. R. Co., 73 N. Y. 516 (1874), 875, 907. TABLE OF CASES CITED [References are to sections] Fairford Lumber Co. v. Tom- bigbee Valley R. R. Co. (Ala.), 51 So. 770 (1910), 1072. Falk v. New York, S. & W. R. R. Co., 56 N. J. L. 380 (1894), 1044. Fallbrook Irrigation District v. Bradley, 164 U. S. 112 (1896), 64, 93, 242. Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98 (1903), 60, 95, 113, 114, 243. Falmouth, Town of, v. Falmouth Water Co., 180 Mass. 325 (1902), 1083. Falvery v. Georgia R. R. Co., 76 Ga. 597 (1886), 1033. Farber v. Missouri Pacific Ry. Co., 116 Mo. 81 (1893), 430. Fargo v. Ledger Standard Co., 59 Ind. 496 (-1877), 213. Farley v. Cincinnati, H. & D. R. R. Co., 108 Fed. 14 (1901), 395. Farley v. Lavary, 107 Ky. 523 (1900), 169, 209, 213, 230, 272, 511, 963. Farmers' & M. Bank v. Cham- plain Tr. Co., 23 Vt. 186 (1851), 255, 743, 1002. Farmers' H. L. C. & Ry. Co. v. Southworth, 13 Colo. Ill (1889), 852. Farmers' Loan & T. Co. v. Hen- ning, 8 Fed. Gas. 4,666 (1878), 211, 305. Farmers' Loan & T. Co. v. North- ern Pac. Ry. Co., 112 Fed. 829 (1902), 592. Farnsworth v. Groot, 6 Cow. 698 839. Farrant v. Barnes, 11 C. B. (N. S.) 553 (1862), 621. Faucher v. Wilson, 68 N. H. 338 (1895), 169, 170, 230, 236, 239, 968, 988. Faulkner v. Wright, Rice (Law), 107 (1838), 172. Faust v. South Carolina R. R. Co.,8S.C. 118(1877), 1046. Favor v. Philbrick, 5 N. H. 358 (1831), 915. Fay v. Pacific Improvement Co., 93 Cal. 253 (1892), 205, 751, 770. Fay, Petitioner, 15 Pick. 243 (1834), 52. Fay v. Steamer New World, 1 Cal. 348 (1850), 255, 970. Feary v. Metropolitan St. Ry. Co., 162 Mo. 75 (1901), 966. Feaver v. Montreal Telegraph Co., 23 Upp. Can. C. P. 150 (1873), 348. Feige v. Michigan Central R. R. Co., 62 Mich. 1 (1886), 1002. Feinberg v. Delaware, L. & W. R. R. Co., 52 N. J. L. 451 (1890), 772, 989. Fell v. Knight, 8 M. & W. 269 (1841), 431, 442, 843, 846. Fellows v. Los Angeles, 151 Cal. 52 (1907), 297, 302, 305. Fellows v. The Powell, 16 La. Ann. 316 (1851), 747. Felton v. Chicago, R. I. & P. R. R. Co., 69 ,Iowa, 577 (1886), 942. Fenner v. Buffalo & S. L. R. R. Co., 44 N. Y. 505 (1871), 1031, 1037, 1038. Ferguson v. Brent, 12 Md. 9 (1857), 985. Ferguson v. Metropolitan Gas Co., 37 How. Pr. 189 (1868), 380, 406, 824, 883. [cv] TABLE OF CASES CITED [References are to sections] Ferguson v. Michigan Central R. R. Co., 98 Mich. 533 (1894), 440. Ferguson v. Missouri Pacific Ry. Co., 144 Mo. App. 262 (1910), 889. Ferris v. Carson Water Co., 16 Nev. 44 (1881), 350. Ferry Companies v. White, 99 Tenn. 256 (1897), 942. Fewings v. Mendenhall, 83 Minn. 237 (1903), 667. Fewings v. Mendenhall, 88 Minn. 336 (1903), 669, 944. Fick v. Chicago & N. W. Ry. Co., 68 Wis. 469 (1887), 939. Fifth Ave. Coach Co. v. New York, 126 N. Y. App. Div. 657 (1908), 503. Fillebrown v. Grand Trunk Ry. Co., 55 Me. 462 (1867), 1002. Finkeldey v. Omnibus Cable Co., 114 Cal. 28 (1896), 736. First Nat'l Bk. v. Hendrie, 49 Iowa, 402 (1878), 811. First Nat'l Bk. v. Marietta & C. R. R. Co., 20 Ohio St. 259 (1870), 875. First Nat'l Bk. v. Northern R. R. Co., 58 N. H. 203 (1877), 1045. Fish v. Chapman, 2 Ga. 349 (1847), 160, 162, 239, 252, 661, 1001. Fish v. Clark, 49 N. Y. 122 (1872), 166, 228. Fisher v. Boston & Maine R. R. Co., 99 Me. 338 (1904), 518, 1033. Fisher v. Clisbee, 12 111. 344 (1851), 771, 843. Fisher v. Southern Pacific Co., 89 Cal. 399 (1891), 978. [cvi] Fisher v. West Virginia Co., 42 W. Va. 183 (1896), 632, 882, 933. Fitch v. Newberry, 1 Doug. 1 (1843), 431, 522. Fitch v. Seymour Water Co., 139 Ind. 214 (1894), 350. Fitch v. Western Union Tele- graph Co. (Mo. App.), 130 S. W. 44 (1910), 1041. Fitchburg R. R. Co. v. Gage, 12 Gray (Mass.), 393 (1859), 685, 1238, 1282, 1287, 1328. Fitchburg & W. R. R. Co. v. Hanna, 6 Gray (Mass.), 539 (1856), 393, 724, 726, 727. Fitzgerald v. Adams Express Co., 24 Ind. 447 (1865), 255, 413. Fitzgerald v. Grand Trunk R. R. Co., 63 Vt. 169 (1890), 681, 1290, 1297, 1299, 1312, 1322. Fitzgerald v. Grand Trunk Ry. Co., 4 Ont. App. 601 (1880), 1002. Fitzgibbons v. Chicago & N. W. R. R. Co., 108 la. 614 (1889), 757. Fitzmartin v. New York City Ry. Co., 51 N. Y. Misc. 36 (1906), 347. Fitzmaurice v. New York, N. H. & H. K. R. Co., 192 Mass. 159 (1906), 738. Flannery v. Baltimore & O. R. R. Co., 4 Mackey, 111 (1885), 942. Flannery v. Hastings, 15 Austral. L. T. 1 (1893), 1261. Flautt v. Lashley, 36 La. Ann. 106 (1884), 236, 237, 241, 968. Fleischner v. Pacific Postal Tele- graph Cable Co. (C. C.), 55 Fed. 738 (1893), 657. TABLE OF CASES CITED [References are to sections] Fleming v. Kansas City Suburban Belt Ry. Co., 89 Mo. App. 129 (1901), 130, 177. Fleming v. Montgomery Light Co., 100 Ala. 657 (1892), 346. Flinn v. Philadelphia, W. & B. R. R. Co., 1 Houst. (Del.) 469 (1857), 780, 1001, 1004, 1011. Flint & Pere M. Ry. Co. v. Weir, 37 Mich. Ill (1877), 785, 875, 970. Flint v. Boston & M. R. R. Co., 73 N. H. 141 (1905), 813. Flint v. Norwich & N. Y. Transp. Co., 34 Conn. 554 (1868), 941, 942. Flint v. Transportation Co., 6 Blatch. 158 (1868), 626. Florence & C. C. Ry. Co. v. Jen- sen (Colo.), 108 Pac. 974 (1910), 1047. Florida, C. & P. R. R. Co. v. State ex rel, 31 Fla. 482 (1893), 808, 811. Florida Southern R. R. Co. v. Hirst, 30 Fla. 1 (1892), 881, 978. Florida Southern R. R. Co. v. Katz, 23 Fla. 139 (1887), 872. Fluker v. Georgia R. R. & Bank- ing Co., 81 Ga. 461 (1888), 500. Fonsler v. Atlantic City, 70 N. J. L. 125 (1903), 107, 175, 213. Forbes v. Boston & Lowell R. R. Co., 133 Mass. 154 (1882), 1045. Ford v. Brooklyn Gaslight Co., 3 Hun, 621 (1875), 434, 877. Ford v. Cottesworth, L. R. 4 Q. B. 127 (1868), 1050. Ford v. East Louisiana Ry. Co., 110 La. 414 (1903), 499, 697. Fordyce & S. v. Manuel, 82 Tex. 527 (1891), 888. Fordyce v. Jackson, 56 Ark. 594 (1892), 778. Fordyce v. McFlynn, 56 Ark. 424 (1892), 256, 259, 758, 772,775. Fordyce v. Nix, 58 Ark. 136 (1893), 800. Forepaugh v. Delaware, L. & W. R. R. Co., 128 Pa. St. 217 (1889), 259, 755, 772, 792, 969, 1015. Forrester v. Southern Ry. Co., 147 N. C. 553 (1908), 796. Forsee v. Alabama Gt. So. R. R. Co., 63 Miss. 66 (1885), 888. Forsythe v. Walker, 9 Pa. St. 148 (1848), 522, 1033. Fort Scott, W. & W. Ry. Co. v. Sparks, 55 Kans. 288 (1895), 881. Fort Smith & W. R. R. Co. v. Chandler Cotton Oil Co. (Okla.), 106 Pac. 10 (1909), 1072. Fort Street Union Depot Co. v. Morton, 83 Mich. 265 (1890), 125. Fort Worth & D. C. Ry. Co. v. Greathouse (Tex. Civ. App.), 17 S. W. 834 (1891), 989. Fort Worth & D. C. Ry. Co. v. Masterson, 95 Tex. 262 (1902), 602, 910, 1033. Fort Worth & D. C. Ry. Co. v. Riley (Tex. App.), 1 S. W. 446 (1886), 393, 727. Fort Worth & D. C. Ry. Co. v. State, 99 Tex. 34 (1905), 482. Fort Worth & D. C. Ry. Co. v. Whitehead, 6 Tex. Civ. App. 595 (1894), 1416. Fortain v. Smith, 114 Cal. 494 (1896), 52. [ cvii ] TABLE OF CASES CITED [References are to sections] Forward v. Pittard, 1 T. R. 27 (1785), 962. Fosdick v. Schall, 99 U. S. 235 (1878), 352. Foss v. Boston & Maine R. R. Co., 66 N. H. 256 (1890), 635, 638. Foster v. Gas Works of Philadel- phia, 12 Phila. 51 1 (1878) , 622. Foster G. Co. v. Kansas City So. Ry. Co., 121 La. 1053 (1908), 1294. Fowler v. City Waterworks Co., 83 Ga. 219 (1889), 350. Fowler v. Western Union Tele- graph Co., 80 Me. 381 (1888), 980. Fox v. Boston & Maine R. R. Co., 148 Mass. 220 (1889), 916, 988. Fox v. Philadelphia, 208 Pa. St. 127 (1904), 193. Frank Bird Transfer Co. v. Krug, 30 Ind. App. 602 (1902), 169, 185. Frank and Willie, The, 45 Fed. 488 (1891), 761. Franke v. Paducah Water Supply Co., 88 Ky. 467 (1889), 92, 417, 622, 826. Franklin National Bank v. White- head, 149 Ind. 560 (1898), 140. Frazier & Co. v. Kansas City, St. J. & B. Ry. Co., 48 la. 571 (1878), 394, 403, 868. Frazier v. Western Telegraph Co., 45 Greg. 414 (1904), 348. Frederick v. Marquette, H. & 0. R. R. Co., 37 Mich. 342 (1877), 889. Fredericks v. Northern Cent. R. R. Co., 157 Pa. St. 103 (1893), 978. \ cviii 1 Freedon v. New York Central & H. R. R. R. Co., 24 App. Div. 306 (1897), 632. Freeman v. Detroit, M. & M. R. R. Co., 65 Mich. 577 (1887), 410. Freeman v. Macon Gaslight & Water Co., 126 Ga. 843 (1906), 92, 215, 216, 242, 451. Freeport Water Co. v. Freeport, 180 U. S. 587 (1901), 1410, 1424. Fremont, E. & M. V. R. R. Co. v. Hagblad, 72 Neb. 773 (1904), 735. Fremont, E. & M. V. R. R. Co. v. Waters, 50 Neb. 592 (1897), 515. French v. Star Union Transp. Co., 134 Mass. 288 (1883), 1046. Frey v. New York C. & H. R. R. R. Co., 114 App. Div. 747 (1906), 840, 901, 903. Frierson v. Frazier, 142 Ala. 232 (1904), 182, 241. Frink v. Coe, 4 Green, 555 (1854), 184. Frink v. Schroyer, 18 111. 416 (1857), 442. Frothingham v. Bensen, 20 N. Y. Misc. 132 (1897), 380. Frv v. Louisville & N. Ry. Co., 103 Ind. 265 (1885), 1333. Fuller v. Azusa Irrigating Co., 138 Cal. 204 (1902), 448. ' Fuller v. Dame, 18 Pick. 472 (1836), 811. Fuller v. Naugatuck R. R. Co., 21 Conn. 557 (1852), 176. Fulton v. Grand Trunk Ry. Co., 17 Upp. Can. Q. B. 428 (1858), 407, 439, 440. TABLE OF CASES CITED [References are to sections] Funderburg v. Augusta & A. Ry. Co., 81 S. C. 141 (1908), 439, 877. Furgason v. Citizens' Street Ry. Co., 16 Ind. App. 171 (1896), 635. Gabbert v. Hackett, 135 Wis. 86 (1908), 785. Gage v. Tirrell, 9 Allen, 299 (1864), 165, 963. Gaines v. Union Transp. & Ins. Co., 28 Ohio St. 418, 1002, 1004, 1007. Gainesville Water Co. v. City of Gainesville (Tex.), 128 S. W. 370 (1910), 651. Gainey v. Telegraph Co., 136 N. C. 261 (1904), 278, 871. Galena & C. U. R. R. Co. v. Rae, 18 111. 488 (1857), 431, 854. Galena & C. U. R. R. Co. v. Yar- wood, 15 111. 468 (1854), 188. Galesburg & G. E. R. R. Co. v. West, 108 111. App. 504 (1903), 1316. Gallagher v. Equitable Gaslight Co., 141 Cal. 699 (1904), 460, 1317. Gallagher v. Gt. Western Ry. Co., 1 R. 8 C. L. 326 (1874), 1005. Galloway v. Chicago, etc., R. Co., 87 Iowa, 458 (1893), 369. Galloway v. Huges, 1 Bailey, 553 (1830), 1039, 1042. Gait v. Adams Express Co., Mac- Arthur and M. 124 (1879), 178, 776, 1012, 1022. Galveston C. R. R. Co. v. Hewitt, 67 Tex. 473 (1887), 756. Galveston, H. & H. R. R. v. Alli- son, 59 Tex. 193 (1883), 905, 921. Galveston, H. & S. A. Ry. Co. v. Ball, 80 Tex. 602 (1891), 1020. Galveston, H. & S. A. Ry. Co. v. Jones (Tex. Civ. App.), 123 S. W. 737 (1910), 1042. Galveston, H. & S. A. Ry. Co. v. Matzdorf, 102 Tex. 42 (1908), 371. Galveston, H. & S. A. Ry. Co. v. Morris, 94 Tex. 505 (1901), 800. Galveston, H. & S. A. Ry. Co. v. Schmidt (Tex. Civ. App.), 25 S. W. 452 (1894), 442, 443. Galveston, H. & S. A. Ry. Co. v. Tuckett (Tex. Civ. App.), 25 S. W. 150 (1894), 904. Gamble-Robinson Commission Co. v. Chicago & N. W. Ry. Co., 168 Fed. 161 (1909), 435, 552, 564, 1341. Gardner v. New Haven & N. Co., 51 Conn. 143 (1883), 738. Gardner v. Providence Telephone Co., 23 R. I. 312 (1901), 136, 625, 826, 884, 1240, 1346. Gardner v. Southern R. R. Co., 127 N. C. 293 (1900), 1002, 1005. Garner v. St. Louis, I. M. & S. Ry. Co., 79 Ark. 353 (1906), . 727, 888. Garrett v. Western Union Tel. Co., 83 Iowa, 257 (1891), 1014. Garrison Co., W. B., v. Southern Ry. Co., 150 N. C. 575 (1909), 399. Garrison v. United Ry. & E. Co., 97 Md. 347 (1903), 447, 1259. [cix] TABLE OF CASES CITED [References are to sections] Carton v. Bristol & E. R. R. Co., 1 Nov. & Mac. 218 (1856), 1331. Gaslight Co. v. Caanon Brewery Co., 1 K. B. 593 (1903), 457. Gaslight Co. v. Colliday, 25 Md. 1 (1866), 111, 353, 451, 453, 456. Gaslight Co. v. Zanesville, 47 Oh. St. 35 (1889), 302. Gas Co. v. Lowe & Butler, 52 W. Va. 662 (1901), 274. Gassenheimer v. District, 26 D. C. App. Gas. 557 (1906), 187. Gastenhofer v. Clair, 10 Daly, 265 (N. Y., 1881), 725. Gast v. Gooding, 1 Ohio Dec. 315 (1849), 964, 965. Gates v. Bekins, 44 Wash. 422 (1906), 169, 170, 230, 236. Gates v. Quincy, O. & K. C. R. R. Co., 125 Mo. App. 334 (1907), 886. Gates v. Western Union Tel. Co., 151 N. C. 497 (1909), 1041. Gay's Gold, 13 Wall. 358 (1871), 592. Gaylord v. Sanitary District, 204 111. 576 (1903), 65, 66, 95. Geer v. Michigan Central Ry. Co., 142 Mich. 511 (1905), 863, 872. Geismer v. Lake Shore & M. S. Ry. Co., 102 N. Y. 563 (1886), 667, 669. George & Co. v. Louisville & N. Ry. Co., 88 Miss. 306 (1906), 1045. Georgetown v. Georgetown Wa- ter, G. & E. P. Co., 121 S. W. 428 (1909), 981. Georgia Pacific Ry. Co. v. Robin- son, 68 Miss. 643 (1891), 395, 410, 736. [cx] Georgia R. R. Co. v. Cole & Co., 68 Ga. 623 (1882), 521, 522. Georgia R. R. Co. v. Gann, 68 Ga. 350, 102. Georgia R. R. Co. v. Greety, 5 Ga. App. 424 (1909), 1294. Georgia R. R. Co. v. Johnson, 113 Ga. 589 (1901), 876. Georgia R. R. Co. v. Richmond, 98 Ga. 495 (1896), 372, 939. Georgia R. R. Co. v. Smith, 70 Ga. 694 (1883), 1409. Georgia R. R. Co. v. Smith, 128 U. S. 174 (1888), 1411, 1421, 1422. Georgia Ry. & El. Co. v. Baker, 125 Ga. 562 (1906), 885. Georgia So. & F. Ry. Co. v. As- more, 88 Ga. 529 (1891), 447, 1259. Georgia So. & F. Ry. Co. v. Johnson, 121 Ga. 231 (1904), 1021. Georgia So. & F. Ry. Co. v. Marchman, 121 Ga. 235 (1904), 399, 732, 734. Getchell v. Benton, 30 Neb. 870 (1890), 56, 65, 851. Ghormley v. Dinsmore, 19 Jones & S. 196 (1885), 1026. Gibbon v. Paynton, 4 Burr. 2298 (1769), 623, 737, 990, 1001. Gibbons v. Farwell, 63 Mich. 344 (1886), 1046. Gibbs v. Consolidated Gas Co., 130 U. S. 396 (1889), 111, 243, 686, 694. Gibson v. Culver, 17 Wend. 305 (1837), 1039. Gibson v. Mason, 5 Nev. 283 (1869), 214, 217. Gibson v. Silva, Rama-Nathan, 105 (1848), 236. TABLE OF CASES CITED [References are to sections] Giffin v. South West Pa. Pipe Lines, 172 Pa. St. 580 (1896), 59. Gilbert v. Duluth General Elec- tric Co., 93 Minn. 99 (1904), 983. Gilbert v. Hoffman, 66 Iowa, 205 (1885), 602, 936, 947. Giles v. Fauntleroy, 13 Md. 126 (1858), 1034. Gillenwater v. Madison & Ind. R. R. Co., 5 Ind. 339 (1854), 785. Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347 (1904), 935. Gilliland & G. v. South Ry. Co., 85 S. C. 26 (1910), 1011. Gillingham v. Ohio River R. R., 35 W. Va. 588 (1891), 167, 183, 239, 646, 661, 938, 978. Gillis v. Pennsylvania R. R., 59 Pa. St. 129 (1868), 371, 946. Gillis v. Western Union Telegraph Co., 61 Vt. 461 (1889), 133, 984, 1014. Gillshannon v. Stony Brook R. R. Corp., 10 Gush. 228 (1852), 783. Gilman v. Postal Telegraph Co., 48 N. Y. Misc. 372 (1905), 108. Gilmore v. Carman, 1 Sm. & M. 279 (1843), 172, 985. Gilson v. Jackson Co. Horse Ry. Co., 76 Mo. 282 (1882), 978. Girard Life Ins. Co. v. Phila- delphia, 12 Phila. 293 (1878), 456. Girard Life Insurance Co. v. Philadelphia, 88 Pa. St. 393 (1879), 452, 456. Girard Storage Co. v. Southwark Co., 105 Pa. St. 248 (1884), 232. Gisbourn v. Hurst, 1 Salk. 249 (1710), 160, 162, 228. Gist v. Telegraph Co., 45 S. C. 344 (1895), 607. Given v. Western Union Tele- graph Co., 24 Fed. 119 (1885), 874, 1041. Glaessner v. Anheuser Busch Brewing Assn., 100 Mo. 508 (1890), 226. Glass v. Davis, 23 Gratt. 184 (1873), 293, 314. Gleason v. Goodrich Transp. Co., 32 Wis. 85 (1873), 741, 769, 875. Gleason v. Waukesha County, 103 Wis. 225 (1899), 824. Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435 (1889), 655, 777, 984. Glenn v. Jackson, 93 Ala. 342 (1890), 1032. Glenn v. Lake Erie & W. R. R. Co., 165 Ind. 659 (1905), 964, 1044. Glenn & Sons v. Southern Express Co., 86 Tenn. 594 (1888), 1026. Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365 (1901), 1083, 1101, 1103. Glover v. Cape Girardeau & So. Ry. Co., 95 Mo. App. 369 (1902), 905. Godbout v. Union Depot Co., 79 Minn. 188 (1900), 483. Goddard v. Grand Trunk Ry. Co., 57 Me. 202 (1869), 935, 938. Goddard v. Mallory, 52 Barb. 87 (1868), 906. Godwin v. Carolina Tel. & Tel. Co., 136 N. C. 158 (1904), 136, 606. [cxi] TABLE OF CASES CITED [References are to sections] Goebel v. Gross Point Water Works, 126 Mich. 307 (1901), 1244. Gold Hunter, The, 1 Blatchf. & H. 300 (1832), 165. Goldey v. Pennsylvania R. R. Co., 30 Pa. St. 242 (1858), 659. Goldsmith v. Holland Bldg. Co., 182 Mo. 597 (1904), 193. Goodbar v. Wabash Ry. Co., 53 Mo. App. 434 (1893), 393, 726. Goodenow v. Travis, 3 Johns. (N. Y.) 427 (1808), 620, 630. Goodloe v. Memphis & C. R. R. Co., 107 Ala. 233 (1894), 937. Goodman v. Missouri, K. & T. Ry. Co., 71 Mo. App. 460 (1897), 1020. Goodman v. Oregon Ry. & Nav. Co., 22 Oreg. 14 (1892), 414, 991. Goodridge v. Union Pacific Ry. Co., 73 Fed. 182 (1889), 1362. Gordon & Ferguson v. Doran, 100 Minn. 343 (1907), 264, 459. Gordon v. Grand St. & N. R. R. Co., 40 Barb. 546 (1863), 402, 735. Gordon v. Hutchinson, 1 W. & S. 285 (1841), 160, 162, 205, 228, 236, 272, 792, 968. Gordon v. Manchester & L. R. R. Co., 52 N. H. 596 (1873), 397, 663, 664, 799, 801, 803, 872, 904. Gordon v. West End St. Ry., 175 Mass. 181 (1900), 736. Gore v. Norwich Trans. Co., 2 Daly (N. Y.), 254(1867), 769. Gorman v. Southern Pacific Ry. Co., 97 Cal. 1 (1892), 890. [ cxii 1 Gorrell v. Greensboro Water Sup- ply Co., 124 N. C. 328 (1899), 350. Gott v. Dinsmore, 111 Mass. 45 (1872), 1003. Gould v. Edison Electric Co., 29 N. Y. Misc. 241 (1899), 825, 1251, 1252, 1345. Gould v. Hill, 2 Hill, 623 (1842), 985. Gould v. Maricopa Canal Co., 8 Ariz. 429 (1904), 93, 242. Goup v. Wabash St. L. & P. Ry. Co., 56 Mich. Ill (1885), 969. Grace v. Adams, 100 Mass. 505 (1868), 1003. Graeff v. Philadelphia & R. R. R. Co., 161 Pa. St. 230 (1894), 941, 943. Graffam v. Boston & M. R. R. Co., 67 Me. 234 (1877), 875. Graham v. Manhattan Ry. Co., 149 N. Y. 336 (1896), 978. Graham v. McNeill, 20 Wash. 466 (1899), 864. Graham v. Toronto, etc., R. Co., 23 U. C. C. P. 541 (1874), 207. Grahn v. International & G. N. Ry. Co., 100 Tex. 27 (1906), 746. Grande Ronde Electric Co. v. Drake, 46 Oreg. 243 (1905), 95, 114, 243. Grand Haven v. Grand Haven Water Works, 119 Mich. 652 (1899), 1166. Grand Junction Water Co. v. City of Grand Junction, 14 Colo. App. 424, 60 Pac. 196 (1900), 981. Grand Rapids & I. R. R. Co. v. Diether, 10 Ind. App. 206 (1894), 433, 442, 518. TABLE OF CASES CITED [References are to sections] Grand Tower M. & Transp. Co. v. Ullman, 89 111. 244 (1878), 393, 724, 727. Grand Trunk Ry. Co. v. Stevens, 95 U. S. 655 (1877), 1016. Grant v. Norway, 10 C. B. 665 (1851), 747. Grant v. Raleigh & Gaston R. R. Co., 108 N. C. 462 (1891), 777. Gratiot St. W. Co. v. Missouri, K. & T. Ry. Co., 124 Mo. App. 545 (1907), 442. Graves v. Adams Express Co., 176 Mass. 280 (1900), 1003. Graves v. Hartford & N. Y. Stb. Co., 38 Conn. 143 (1871), 1037. Graves v. Key City Gas Co., 83 Iowa, 714 (1891), 458. Graves v. Lake Shore & M. S. R. R. Co., 137 Mass. 33 (1884), 1011, 1019. Graves v. Ticknor, 6 N. H. 537 (1834), 970. Gray v. Cincinnati Southern Ry. Co., 11 Fed. 683 (1882), 865, 881. Gray v. Drepel Arms Hotel, 145 111. App. 604 (1909), 366. Gray v. Jackson, 51 N. H. 9 (1871), 1010. Gray v. Missouri River Packet Co., 64 Mo. 47 (1876), 971. Gray v. Wabash R. R. Co., 119 Mo. App. 144 (1906), 656. Gray v. Western Union Telegraph Co., 87 Ga. 350 (1891), 605, 607, 609, 610. Great Northern Ry. Co. v. Harri- son, 10 Exch. Rep. 376 (1854), 623, 738. Great Northern Ry. Co. v. Shep- herd, 8 Exch. 30 (1852), 876. 8 Great Western Ry. Co. v. Burns, 60 111. 284 (1871), 850, 914. Great Western Ry. Co. v. Mc- Carthy, 12 App. Gas. 182 (1887), 1021. Green v. Ashland Water Co., 101 Wis. 258 (1892), 973, 981. Green v. Chelsea W. W. Co., 70 L. T. 547 (1894), 981. Green v. Louisville & R. R. Co., 50 So. 937 (1909), 109. Green v. Milwaukee & S. P. R. R. Co., 38 la. 100 (1874), 409, 733. Green v. Missouri, K. & T. Ry. Co., 121 Mo. App. 720 (1906), 763. Green v. Portland, 32 Me. 431 (1851), 226. Green v. Telegraph Co., 136 N. C. 489 (1904), 133, 214, 244. Green & B. R. Nav. Co. v. Marshall, 48 Ind. 596 (1874), 906. Green Bay Lumber Co. v. Chi- cago, R. I. & P. Ry. Co., 102 Iowa, 292 (1897), 528, 530. Green Wheeler Shoe Co. v. Chi- cago, R. I. & P. Ry. Co., 130 Iowa, 123 (1906), 656, 918, 984. Greene v. St. John & M. Ry. Co., 22 N. B. (P. & T.) 252 (1882), 257. Greenfield v. Detroit & M. Ry. Co., 133 Mich. 557 (1903), 763. Greenfield First National Bank v. Marietta & C. R. R. Co., 20 Ohio St. 259 (1870), 769. Greenwald v. Weir, 111 N. Y. Supp. 235 (1908), 1020. Gregory v. Chicago & N. W. Ry. Co., 100 Iowa, 345 (1896), 626, 646, 866, 880. [cxiii] TABLE OF CASES CITED [References are to sections] Grier v. St. Louis Merchants' B. T. Ry. Co., 108 Mo. App. 565 (1904), 917. Grieve v. Illinois Central R. R. Co., 104 Iowa, 659 (1898), 1024. Griffen v. Manice, 166 N. Y. 188 (1901), 193. Griffin v. Goldsboro Water Co., 122 N. C. 206 (1898), 92, 242, 280, 1091, 1094, 1287, 1288, 1290, 1300. Griffith v. Cave, 22 Cal. 534 (1863), 862. Griffith v. New England Tele- phone Co., 72 Vt. 441 (1900), 1051. Griffith v. Texas & N. O. Ry. Co. (Tex. Civ. App.), 116 S. W. 648 (1909), 408. Grigsby v. Chappell, 5 Rich. L. (S. C.) 443 (1852), 53, 771, 972. Grimes v. Minneapolis, L. & M. Ry. Co., 37 Minn. 6 (1887), 1364. Grimes v. Pennsylvania Ry. Co., 36 Fed. 72 (1888), 398, 873. Grindle v. Eastern Exp. Co., 67 Me. 317 (1877), 901. Grinnell v. Western Union Tele- graph Co., 113 Mass. 299 (1873), 980. Grismer v. Lake Shore & M. S. Ry. Co., 102 N. Y. 563 (1886), 912. Griswold, Adm., v. New York & N. E. R. R. Co., 53 Conn. 371 (1885), 498, 872. Griswold v. Chicago & N. W. Ry. Co., 64 Wis. 652 (1885), 372. Griswold v. Illinois Central Ry. Co., 90 Iowa, 265 (1894), 1008. [ cxiv ] Griswold v. New York & N. E. R. R. Co., 53 Conn. 371 (1885), 746, 786, 1015, 1018. Griswold v. Webb, 16 R. I. 649 (1889), 473. Grocery Co. v. Railroad Co., 136 N. C. 396 (1904), 407, 901, 990. Grogan & Merz v. Adams Ex- press Co., 114 Pa. St. 523 (1886), 178, 776, 1022. Grogan v. Brooklyn Heights R. R. Co., 97 App. Div. 413 (1904), 945. Grosvenor v. New York Central R. R. Co., 39 N. Y. 34 (1868), 400, 729, 734. Guardian Trust Co. v. Fisher, 200 U. S. 57 (1906), 350. Guinn v. W. St. L. & Pac. Ry. Co., 20 Mo. App. 453 (1886), 599. Gulf & C. R. R. Co. v. Fuqua, 84 Miss. 490 (1904), 1037. Gulf & Interstate Ry. Co. v. Texas & N. 0. Ry. Co., 93 Tex. 482 (1900), 519. Gulf, C. & S. F. Ry. Co. v. Baird, 75 Tex. 256 (1889), 513. Gulf, C. & S. F. Ry. Co. v. Bunn, 41 Tex. Civ. App. 503 (1908), 440. Gulf, C. & S. F. Ry. Co. v. Camp- bell, 76 Tex. 174 (1890), 764. Gulf, C. & S. F. Ry. Co. v. Cole, 8 Tex. Civ. App. 635 (1894), 780. Gulf, C. & S. F. Ry. Co. v. Comp- ton (Tex. Civ. App.), 38 S. W. 220 (1896), 727. Gulf, C. & S. F. Ry. Co. v. Fort Grain Co. (Tex. Civ. App.), 72 S. W. 419 (1903), 1415. TABLE OF CASES CITED [References are to sections] Gulf, C. & S. F. Ry. Co. v. Gecr, 5 Tex. Civ. App. 349 (1893), 412, 742. Gulf, C. & S. F. Ry. Co. v. Heffey, 158 U. S. 98 (1895), 141,9. Gulf, C. & S. F. Ry. Co. v. Hodge (Tex. Civ. App.), 30 S. W. 829 (1895), 914. Gulf, C. & S. F. Ry. Co. v. Hume, 6 Tex. Civ. App. 653, 914. Gulf, C. & S. F. Ry. Co. v. Levi, 76 Tex. 337 (1889), 667, 669, 987. Gulf, C. & S. F. Ry. Co. v. Levy, 59 Tex. 542 (1883), 599. Gulf, C. & S. F. Ry. Co. v. Lone Star Co., 26 Tex. Civ. App. 531 (1901), 529. Gulf, C. & S. F. Ry. Co. v. Mc- Aulay, 26 S. W. 475 (1894), 842, 914. Gulf, C. & S. F. Ry. Co. v. Mc- Gown, 65 Tex. 640 (1886), 785, 786, 1018. Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 Fed. 407 (1898), 435, 488, 523, 527, 534, 682. Gulf, C. & S. F. Ry. Co. v. Moody (Tex. Civ. App.), 30 S. W. 574 (1895), 862. Gulf, C. & S. F. Ry. Co. v. Nel- son, 4 Tex. Civ. App. 345 (1893), 1414. Gulf, C. & S. F. Ry. Co. v. Porter, 25 Tex. Civ. App. 491 (1901), 904. Gulf, C. & S. F. Ry. Co. v. Rail- road Commission (Tex.), 116 S. W. 795 (1909), 1064, 1191, 1199, 1202, 1210. Gulf, C. & S. F. Ry. Co. v. Rather, 3 Tex. Civ. App. 72 (1893), 889. Gulf, C. & S. F. Ry. Co. v. Robin- son (Tex. Civ. App.), 72 S. W. 71 (1903), 907. Gulf, C. & S. F. Ry. Co. v. State, 72 Tex. 404 (1888), 694. Gulf, C. & S. F. Ry. Co. v. State, 97 Tex. 274 (1904), 1415. Gulf, C. & S. F. Ry. Co. v. State (Tex. Civ. App.), 120 S. W. 1028 (1909), 531, 1408. Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403 (1907), 1415, 1416. Gulf, C. & S. F. Ry. Co. v. Tra- wick, 68 Tex. 314 (1887), 1024. Gulf, C. & S. F. Ry. Co. v. Tra- wick, 80 Tex. 270 (1891), 393 727 Gulf, C. & S. F. Ry. Co. v. Vaughn (Tex. App.), 16 S. W. 775 (1890), 1017. Gulf, C. & S. F. Ry. Co. v. Wil- son, 79 Tex. 371 (1891), 778. Gulf, C. & S. F. Ry. Co. v. Wright, 1 Tex. Civ. App. 402 (1892), 1006. Gulf, T., S. F. Ry. Co. v. Coop- wood (Tex. Civ. App.), 96 S. W. 102 (1906), 933. Gulf, W. T. & P. Ry. Co. v. Wittnebert, 101 Tex. 368 (1908), 414, 991. Gurney v. Minneapolis Union Elev. Co., 63 Minn. 70 (1895), 193. Gustafson v. Hamm, 56 Minn. 334 (1894), 226. Gwynn v. Citizens' Telephone Co., 69 S. C. 434 (1904), 683, 685. Gyle v. Joline, 120 N. Y. Supp. 761 (1910), 402. [ cxv] TABLE OF CASES CITED [References are to sections] Haas v. Kansas City, F. S. & G. R. R. Co., 81 Ga. 792 (1888), 911, 912. Hadd v. United States Exp. Co., 52 Vt. 335 (1880), 178, 513, 776. Haflf v. Adams, 6 Ariz. 395 (1899), 366, 751, 969. Haggerty v. Flint & P. M. R. R. Co., 59 Mich. 366 (1886), 889. Hahl v. Laux (Tex. Civ. App.), 93 S. W. 1080 (1906), 227, 228. Haines v. Chicago, St. P., M. & 0. Ry. Co., 29 Minn. 160 (1882), 876. Hale v. Grand Trunk R. R. Co., 60 Vt. 605 (1888), 367, 372. Hale v. New Jersey Nav. Co., 15 Conn. 539 (1843), 1,65, 1001. Halifax v. Local Board, 30 L. T. (N. S.) 513 (1874), 701. Hall v. Connecticut River Stb. Co., 13 Conn. 319 (1839), 978. Hall v. Decuir, 95 U. S. 485 (1877), 848, 1417. Hall v. Murdock, 114 Mich. 233 (1897), 193. Hall v. Pennsylvania R. R. Co., 14 Phila. 414 (1880), 667, 669. Hall v. Pike, 100 Mass. 495 (1868), 751, 969. Hall v. Renfo, 3 Met. 51 (1860), 182, 241, 256, 989. Hall v. Western Union Telegraph Co., 51 So. 819 (1910), 142. Halliday v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 159 (1881), 1017. [ cxvi ] Halsted v. Postal Telegraph-Cable Co., 193 N. Y. 295 (1908), 1014. Ham v. Delaware & H. C. Co., 142 Pa. St. 617 (1891), 341, 468, 886. Ham v. McPherson, 6 Upp. Can. Q. B. (0. S.) 360 (1871), 393, 726. Hamburg-Am. Packet Co. v. Gattman, 127 111. 598 (1889), 876. Hamilton v. Texas & P. Ry. Co., 64 Tex. 251 (1855), 372. Hamilton City v. Hamilton Gas L. & C. Co., 11 Ohio Dec. 513 (1901), 705, 1166. Hammond v. North Eastern R. R. Co., 6 S. C. 130 (1874), 777. Hampton v. Pullman Car Co., 42 Mo. App. 134 (1890), 769. Hams v. Stevens, 31 Vt. 79 (1858), 878. Hancock v. Rand, 94 N. Y. 1 (1883), 365, 751. Hanley v. Brooklyn Heights R. R. Co., 110 App. Div. 429 (1905), 878. Hanley v. Kansas City Ry. Co., 187 U. S. 617, 1413. Hanlon v. Central Ry. Co., 18? N. Y. 73, 635. Hanna v. Nassau Electric R. R. Co., 18 N. Y. App. Div. 137 (1897), 663, 803, 866. Hannah v. People, 198 111. 77 (1902), 141, 232, 416, 708, 791. Hannibal R. R. Co. v. Swift, 12 Wall. 262 (1870), 414, 768, 775, 876. Hansen v. Flint & P. M. R. Co., 73 Wis. 346 (1889), 511. TABLE OF CASES CITED [References are to sections] Hansen v. North Jersey St. Ry. Co., 64 N. J. L. 686 (1900), 945. Hansley v. Jamesville & W. R. R. Co., 115 N. C. 602 (1894), 872, 1044. Hansley v. Jamesville & W. R. R. Co., 117 N. C. 565 (1895), 662, 664, 800, 904. Harbison v. Knoxville Water Co. (Term. Chan. App.), 53 S. W. 993 (1899), 431, 444, 624, 806, 846, 883. Hardenberg v. St. Paul, M. & M. Ry. Co., 39 Minn. 3 (1888), 800. Hardin v. Fort Worth & D. C. R. R. Co. (Tex. Civ. App.), 100 S. W. 995 (1907), 881. Harding v. Goodlett, 3 Yerg. (Tenn.) 41 (1832), 56, 65, 851. Harding v. International Naviga- tion Co., 12 Fed. 168 (1882), 522. Hardware Co. v. Railroad Co., 150 N. C. 703 (1909), 798, 835, 1433. Hare v. London & Northwestern Ry. Co., 3 Johns. & H. 80 (1861), 694. Harkness v. Western Union Tele- graph Co., 73 Iowa, 190 (1887), 348. Harmon v. Columbia & G. R. R. Co., 28S/C. 401 (1887), 757. Harmony v. Bingham, 1 Duer (N. Y.), 209 (1852), 922. Harp v. Choctaw, 0. & G. Ry. Co., 118 Fed. 169 (1902), 250, 665. Harp v. Choctaw, 0. & G. Ry. Co., 125 Fed. 445 (1903), 399, 404, 415, 420, 813, 817, 1360. Harp v. Southern Ry. Co., 119 Ga. 927 (1904), 878, 886. Harriman, The, 9 Wall. 161 (1869), 922. Harrington v. Lyles, 2 Nott & McCord, 88 (1819), 166. Harrington v. McShane, 2 Watts, 443 (1834), 172. Harris v. Cockermouth & W. Ry. Co., 1 C. B. (N. S.) 454, 1288, 1314. Harris v. Howe, 74 Tex. 534 (1889), 1011. Harris v. Northern Indiana R. R. Co., 20 N.Y. 232 (1859), 772. Harris v. Rand, 4 H. N. 259 (1827), 1266. Harris v. Stevens, 31 Vt. 79 (1858), 431. Harris v. Western Union Tele- graph Co., 121 Ala. 519 (1889), 412, 1076. Harrisburg, Appeal of, 107 Pa. St. 102 (1884), 456. Harrison v. Midland Ry. Co., 62 L. J. Q. B. (N. S.) 225 (1893), 530. Harrison v. Roy, 39 Miss. 396 (1860), 162, 228, 236, 239, 968. Harrison Granite Co. v. Penn- sylvania R. R. Co., 145 Mich. 712 (1906), 443, 1072. Harrold v. Winona & St. P. Ry. Co., 47 Minn. 17 (1891), 632. Hart v. Atlanta Terminal Co., 128 Ga. 754 (1908), 489. Hart v. Baxendale, 16 L. T. (N. S.) 390 (1867), 413. Hart v. Chicago & N. W. Ry. Co., 69 Iowa, 485 (1886), 990. Hart v. Pennsylvania R. R. Co., 112 U. S. 331 (1884), 1019, 1020, 1021. [ cxvii ] TABLE OF CASES CITED [References are to sections] Hart v. State, 100 Md. 595 (1905), 848. Hartwell v. Northern Pac. Exp. Co., 5 Dak. 463 (1889), 1001, 1011. Hartzig v. Lehigh Val. R. R. Co., 154 Pa. St. 364 (1893), 1044. Harvey v. Deep River Logging Co., 49 Oreg: 583 (1907), 208, 223. Harvey v. Potter, 19 La. Ann. 264 (1867), 241. Harvey v. Rose, 26 Ark. 3 (1870), 182, 241, 771, 969. Harvey v. Terre Haute & I. R. R. Co., 74 Mo. 538 (1881), 1019, 1021. Haskell v. Boston Dist. Messen- ger Co., 190 Mass. 189 (1906), 108. Haslam v. Adams Express Co., 6 Bosw. 235 (1860), 1040. Hasseltine v. Southern Ry. Co., 75 S. C. 141 (1906), 602, 834. Hastings Express Co. v. Chicago, 135 111. App. 268 (1907), 169, 213. Hastings v. Pepper, 11 Pick. 41 (1838), 172. Hatch v. Consumers' Co., 17 Idaho, 204 (1909), 824. Hatch v. Minneapolis, St. P. & S. S. M. Ry. Co., 15 N. D. 490 (1906), 1023. Hatten v. Turnan, 123 Ky. 844 (1906), 237. Haug v. Gt. Northern Ry. Co., 8 N. D. 23 (1898), 933, 1044. Haugen v. Albina Light & Water Co., 21 Oreg. 411 (1891), 92, 212, 214, 215, 242, 273, 280, 281, 379, 405, 690, 797. [ cxviii ] Hauk v. New York Central & H. R. R. Co., 34 N. Y. App. Div. 434 (1898), 372. Haurigan v. Chicago & N. W. Ry. Co., 80 Neb. 139 (1908), 1294. Haverford Electric Co. v. Hart, 13 Pa. Co. Ct. 369 (1891), 56. Haverhill G. L. Co. v. Barker, 109 Fed. 694 (1901), 1409. Haver v. Central of N. J. R. R. Co., 62 N. J. L. 282 (1898), 938, 941. Hawgood v. 1,310 Tons of Coal, 21 Fed. 681 (1884), 1050. Hawkins v. Great Western R. R. Co., 17 Mich. 57 (1868), 1011. Hawthorn v. Hammond, 1 Car. & K. 404 (1844), 106, 407. Hayne v. Union St. Ry. Co., 189 Mass. 551 (1905), 958. Haynie v. Baylor, 18 Tex. 498 (1857), 208, 228. Hays v. Millar, 77 Pa. St. 238 (1874), 173, 774. Hays v. Paul, 51 Pa. St. 134 (1865), 173, 774. Hays v. Pennsylvania Co., 12 Fed. 309 (1882), 1286, 1289, 1290, 1305, 1322, 1342, 1343. Hays v. Risher, 32 Pa. St. 169 (1858), 225. Hays v. Turner, 23 la. 214 (1867), 1032. Hazard v. Chicago, B. & Q. R. R. Co., 1 Biss. 503 (1865), 763. Hazard, etc., v. Illinois Central R. R. Co., 67 Miss. 32 (1889), 747. Hazel v. Chicago, M. & St. P. Ry. Co., 82 Iowa, 477 (1891), 1007. TABLE OF CASES CITED [References are to sections] Head v. Georgia Pacific Ry. Co., 79 Ga. 358 (1887), 889. Healey v. Gray, 68 Me. 489 (1878), 725. Hedding v. Gallagher, 72 N. H. 377 (1903), 171, 474, 483, 489. Heimann v. Western Union Tel- egraph Co., 57 Wis. 562 (1883), 1025. Heinlein v. Boston & P. R. R. Co., 147 Mass. 136 (1888), 368, 402, 735. Heirn v. McCaughan, 32 Miss. 17 (1856), 842. Helena Power Transmission Co. v. Spratt, 35 Mont. 108 (1907), 95, 114. Helena Waterworks Co. v. Hel- ena, 195 U. S. 383 (1904), 1422. Hellams v. Western Union Tele- graph Co., 70 S. C. 83 (1904), 278, 871. Heller v. Chicago Gt. Northern Ry. Co., 109 Mich. 53 (1896), 989. Helliwell v. Grand Trunk Ry. Co., 7 Fed. 68 (1881), 799, 834, 914. Hellman v. Holladay, 1 Woolw. 365 (1868), 255. Helphery v. Perrault, 12 Idaho, 451 (1906), 379. Henderson v. Galveston, H. & S. A. Ry. Co. (Tex. Civ. App.), 38 S. W. 1136 (1896), 849, 881. Henderson v. Louisville & N. R. R. Co., 123 U. S. 61 (1887), 769. Hendrick v. Chicago & A. Ry. Co., 136 Mo. 548 (1896), 1044. Hennington v. Georgia, 163 U. S. 299 (1896), 599, 1418. Henson v. Urbana & C. Sy. Ry. Co., 75 111. App. 474 (1897), 939. Herbert v. Portland R. R. Co., 103 Me. 315 (1907), 784. Herf & Frericks Chemical Co. v. Lackawanna Line, 100 Mo. App. 164 (1903), 1038. Hergog v. Municipal Electric Light Co., 89 N. Y. App. Div. 569 (1904), 983. Hermann et al. v. Goodrich, 21 Wis. 536 (1867), 1038. Hermann v. St. Joseph Ry., Light, Heat & Power Co. (Mo. App.), 129 S. W. 414 (1910), 754. Herndon v. Chicago, R. I. & P. R. R. Co., 218 U. S. 135 (1910), 1417. Hernshem Bros. v. Newport News & M. V. Co., 18 Ky. Law Rep. 227 (1896), 918. Herring v. Chesapeake & W. R. R. Co., 101 Va. 778 (1903), 913, 917. Herring v. Utley, 8 Jones' L. 270 (1860), 171. Herron v. Western Union Tel. Co., 90 la. 129 (1894), 1041. Hervey v. Hart, 149 Ala. 604 (1906), 845. Hett v. Boston & M. R. R. Co., 69 N. H. 139 (1897), 1046. Hewett v. Chicago, B. & Quincy Ry. Co., 63 Iowa, 611 (1884), 842, 916. Hewlett v. Western Union Tele- graph Co., 28 Fed. 181 (1886), 436, 877. [cxix] TABLE OF CASES CITED [ References are to sections] Hibbard v. New York & E. Ry. Co., 15 N. Y. 455 (1857), 878, 886, 937. Hickinbottom v. Delaware, L. & W. R. R. Co., 15 N. Y. St. Rep. 11 (1888), 395. Hickox v. Naugatuck R. R. Co., 31 Conn. 281 (1863), 724, 875. Hide v. Proprietors of T. & M. Navigation Co., 1 Esp. 36 (1793), 1001. Hieronymus v. Bienville Water Co., 131 Ala. 447 (1901), 431, 432, 433, 460. Higgins v. Cherokee R. R. Co., 73 Georgia, 149 (1884), 761, 762. Higgins v. Hannibal & St. J. R. R. Co., 36 Mo. 418 (1865), 784. Higgins v. New Orleans, M. & C. R. R. Co., 28 La. Ann. 133 (1876), 498, 782, 1015. Higgins v. New York & H. R. R. Co., 2 Bosw. 132 (1857), 882. Higley v. Gilmer, 3 Mont. 90 (1878), 623, 738. Hill v. Boston, H. T. & W. R. R. Co., 144 Mass. 284 (1887), 1019. Hill v. Georgia, C. & N. Ry. Co., 43 S. C. 461 (1895), 1017. Hill v. Louisville & N. R. R. Co., 124 Ga. 243 (1905), 369, 372. Hill v. Thompson, 18 Jones & S. 165 (1884), 825. Hill v. Western Union Telegraph Co., 85 Ga. 425 (1890), 1026. Hill Mfg. Co. v. Boston & Lowell R. R. Co., 104 Mass. 122 (1870), 511. Hilliard v. Goold, 34 N. H. 230 (1856), 888. [ cxx ] Hilliard v. Wilmington & W. R. R. Co., 51 N. C. 343 (1859), 1036, 1038. Hillman v. Georgia R. & Bank- ing Co., 126 Ga. 814 (1906), 848. Hilton v. Adams, 71 Me. 19 (1879), 979. Hilton Lumber Co. v. Atlantic C. L. Ry. Co., 136 N. C. 479 (1904), 1305, 1334. Hinckley v. New York Central & H. R. R. R. Co., 56 N. Y. 429 (1874), 521, 548. Hinkle v. Southern Ry. Co., 126 N. C. 932 (1900), 1024. Hinshaw v. Raleigh & A. L. R. R. Co., 118 N. C. 1047 (1896), 1044. Hinson v. Postal Tel. Cable Co., 132 N. C. 460 (1903), 1041. Hirsch v. Am. Dist. Telegraph Co., 98 N. Y. Supp. 371 (1906), 108. Hix v. Gardner, 2 Bulstrode (Eng.), 195, 11. Hoadley v. Northern Transp. Co., 115 Mass. 305 (1874), 917, 1001. Hoar v. Me. Cent. R. R. Co., 70 Me. 65 (1879), 785. Hobart Lee Tel. Co. v. Stone, 117 S. W. 604 (1909), 501. Hockett v. State, 105 Ind. 250 (1885), 244, 279, 1407. Hoddesdon Gas & Coke Co. v. Haselwood, 6 Com. B. (N. S.) 239 (1859), 31. Hodges v. New Hanover Transit Co., 107 N. C. 576 (1890), 395. Hodgman v. West Midland Ry. Co., 5 B. & S. 173 (1865), 256. TABLE OF CASES CITED [References are to sections] Hoehle v. Allegheny Heating Co., 5 Pa. Sup. Ct. 21 (1897), 112, 982. Hoffbauer v. 0. & N. W. R. R. Co., 52 la. 342 (1879), 447, 1259. Hoffman v. Cumberland R. R. Co., 85 Md. 391 (1897), 513. Hoffman v. Denver & N. W. R. R. Co., 52 la. 342 (1879), 432. Hoffman H. & S. Co. v. St. Louis, I. M. & S. Ry. Co., 119 Mo. App. 495 (1906), 723, 800. Holland v. Chicago, R. I. & P. Ry. Co., 139 Mo. App. 702 (1910), 409. Holland v. Festiniog Ry. Co., 2 Nev. & Mac. 278 (1876), 1352. Holland v. Pack, Peck, 151 (1823), 334. Hollister v. Nowlen, 19 Wend. 234 (1838), 172, 262, 767, 1002. Hollister v. State, 9 Idaho, 8 (1903), 95, 114. Holly v. Atlanta St. Ry. Co., 61 Ga. 215 (1878), 190, 943. Holly v. Boston Gaslight Co., 8 Gray, 123 (1857), 982. Holmes v. Moore, 17 L. C. R. 143 (1867), 970. Holmes v. North Eastern Ry. Co., L. R. 4 Ex. 254 (1869), 367, 372. Holmes v. Union Teleg. & T. Co., 16 N. Y. Supp. 563 (1891), 109. Holstein v. Phillips, 146 N. C. 366 (1907), 240, 751, 968. Home Telephone Co. v. Granby & N. Telephone Co. (Mo. App.), 126 S. W. 773 (1910), 1300. Home Telephone Co. v. North Manchester Telephone Co. (Ind. App.), 92 N. E. 558 (1910), 526, 539, 693, 700. Home Telephone & Telegraph Co. v. Los Angeles, 155 Fed. 554 (1907), 1124, 1430. Hone v. Presque Isle Water Co., 104 Me. 217 (1908), 350. Honeyman v. Oregon, etc., Ry. Co., 13 Oreg. 352 (1886), 160. Hood v. New York & N. H. R. R. Co., 22 Conn. 1 (1852), 1033. Hooker v. Vandewater, 4 Denio, 349 (1847), 694. Hooper v. Chicago, M. & St. P. R. R. Co., 38 Minn. 281 (1888), 1409. Hooper v. Chicago, M. & St. P. R. R. Co., 91 Iowa, 639 (1894), 1215. Hooper v. Chicago & N. W. R. R. Co., 27 Wis. 81 (1870), 169, 490, 514, 515, 1033. Hoover v. Pennsylvania R. R. Co., 156 Pa. St. 220 (1893), 1077, 1299, 1305, 1333, 1336. Hope Cotton Oil Co. v. Texas & P. R. R. Co., 10 I. C. C. Rep. 696 (1905), 1315. Homer v. Chicago, M. & St. P. Ry. Co., 38 Wis. 165 (1875), 811. Homer v. Harvey, 3 N. Mex. 197 (1885), 365, 751. Horton v. Norwalk Tramway Co., 66 Conn. 272 (1895), 599. [ cxxi ] TABLE OF CASES CITED [References are to sections] Hosea v. M'Crory, 12 Ala. 349 (1847), 255. Hoskins v. Northern Pac. Ry. Co., 39 Mont. 394 (1909), 777. Hot Springs v. Curry, 64 Ark. 152 (1897), 472. Hot Springs Ry. Co. v. Deloney, 65 Ark. 177, 889. Hotel Assn. v. Walters, 23 Neb. 280 (1888), 979. Houck v. Southern Pac. Ry. Co., 38 Fed. Rep. 226 (1888), 566, 848, 849, 881. House v. Houston Waterworks Co., 88 Tex. 233 (1895), 264, 350. Houser v. Tully, 62 Pa. 92 (1869),. 744. Houston & T. C. Ry. Co. v. Batchler, 37 Tex. Civ. App. 116 (1904), 946, 1044. Houston & T. C. Ry. Co. v. Buchanan, 42 Tex. Civ. App. 620 (1906), 792, 804. Houston & T. C. Ry. Co. v. Burke, 55 Tex. 323 (1881), 1008. Houston & T. C. Ry. Co. v. Davis, 11 Tex. Civ. App. 24 (1895), 1414. Houston & T. C. Ry. Co. v. Ford, 53 Tex. 364 (1880), 889. Houston & T. C. Ry. Co. v. Goodyear, 28 Tex. Civ. App. 206 (1902), 932. Houston & T. C. Ry. Co. v. Mayes, 201 U. S. 321 (1906), 650, 722, 798, 836, 1417, 1418, 1433. Houston & T. C. Ry. Co. v. Mc- Cullough, 22 Tex. Civ. App. 208 (1899), 777. [ cxxii ] Houston & T. C. Ry. Co. v. Phillio, 98 Tex. 18 (1902), 369, 372, 946. Houston & T. C. Ry. Co. v. Rust & D., 58 Tex. 98 (1882), 1282, 1297. Houston & T. C. Ry. Co. v. Smith, 63 Tex. 322 (1885), 850. Houston & T. C. Ry. Co. v. Storey, 149 Fed. 499 (1906), 1092, 1171. Houston & T. C. Ry. Co. v. Washington (Tex. Civ. App.), 30 S. W. 719 (1895), 442. Houston & T. C. Ry. Co. v. White (Tex. Civ. App., 1901), 61 S. W. 436, 889. Houston & T. C. Ry. Co. v. Wil- liams (Tex. Civ. App., 1895), 31 S. W. 556, 1414. Houston, D. & N. Co. v. In- surance Co., 89 Tex. 1 (1895), 1415. Houston, E. & W. T. Ry. Co. v. Campbell, 91 Tex. 551 (1898), 399, 439, 563, 835. Houston, E. & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19 (1897), 949. Houtz v. Union Pacific R. R. Co., 33 Utah, 175 (1908), 1023, 1024. Howe v. Orange, 70 N. J. Eq. 648 (1906), 456. Howe Machine Co. v. Pease, 49 Vt. 477 (1877), 965. Howell v. Jackson, 6 Car. & P. (Eng.) 723 (1834), 630. Howth v. Franklin, 20 Tex. 798 (1858), 234, 240, 965, 968. Hoyt v. Chicago, B. & Q. R. R. Co., 93 111. 601 (1879), 272. TABLE OF CASES CITED [References are to sections] Hrebrik v. Carr, 29 Fed. Rep. 298 (1886), 402, 735. Huba v. Schenectady Ry. Co., 85 N. Y. App. Div. 199, (1903), 440. Hubbard & Co. v. Harnden Ex- press Co., 10 R. I. 244 (1872), 666, 986. Hudson v. Kansas Pacific Ry. Co., 3 McCrary (U. S.), 249 (1882), 353. Hudson v. Lynn & Boston R. R. Co., 178 Mass. 64 (1901), 632, 634, 644, 866, 933, 934. Hudson & Co. v. Northern Pa- cific Ry. Co., 92 Iowa, 231 (1894), 1010, 1026. Hudson River L. Co. v. Wheeler C. & E. Co., 93 Fed. 374 (1899), 1042. Hudson Trust & S. Inst. v. Carr- Curran Paper Co., 58 N. J. Eq. 59 (1899), 456. Hudson Valley Ry. Co. v. Bos- ton & Maine R. R. Co., 106 App. Div. 375 (1905), 529, 539. Hudston v. Midland Ry. Co., L. R. 4 Q. B. 366 (1869). Huffman v. Marcy Mutual Tel- ephone Co., 143 la. 590 (1909), 557, 625, 633, 642, 866, 879, 884. Hughes v. Pennsylvania R. R. Co., 202 Pa. St. 222 (1902), 1010, 1020. Hulett v. Swift, 33 N. Y. 371 (1865), 965. Hull v. Chicago, St. P., M. & 0. Ry. Co., 41 Minn. 510 (1889), 1007. Humphreys v. Perry, 148 U. S. 627 (1893), 876. Humphreys v. Reed, 6 Whart. 435 (1841), 166. Hunt v. New York & E. R. R. Co., 1 Hilton (N. Y. C. P.), 228 (1856), 1017. Hunter v. Prinsep, 10 East (Eng.), 378 (1808), 1265. Huntley v. Dows, 55 Barb. (N. Y.) 310 (1864), 1037. Huntress, The, 2 Ware, 89 (1840), 229, 990. Hurley v. Big Sandy & C. Ry. Co., 125 S. W. 302 (1910), 1298. Hurley v. Eddingfield, 156 Ind. 416 (1901), 6, 105, 213. Hurst v. Gt. Western Ry. Co., 19 C. B. (N. S.) 310 (1865), 904. Husdpeth v. Hall, 111 Ga. 510 (1900), 52. Huston v. Wabash Ry. Co., 63 Mo. App. 671 (1895), 831. Hutchings v. Ladd, 16 Mich. 493 (1868), 518, 522. 1033. Hutchinson v. Railroad Co., 140 N. C. 123 (1905), 872, 889. Hutchinson v. United States Ex- press Co., 63 W. Va. 128 (1907), 1039, 1040. Huzzey v. Field, 2 C. M. & R. 432 (1835), 52. Hyde v. Trent Nav. Co., 5 T. R. 389 (1793), 166, 1040. Hyndman Water Co. v. Bor- ough of Hyndman, 7 Pa. Super. Ct. 191 (1898), 273, 281. Hynds v. Wynn, 71 Iowa, 593 (1887), 910. Idaho, The, 93 U. S. 575 (1876), 1047. [ cxxiii ] TABLE OF CASES CITED [References are to sections] Idaho Independent Telephone Co. v. Oregon Short Line R. R. Co., 8 Idaho, 175 (1901), 497. Illinois & St. L. R. R. Co. v. Peo- ple, 19 111. App. 141 (1886), 415, 721. Illinois Central Ry. Co. v. Allen, 28 Ky. Law. R. 108 (1905), 637. Illinois Central Ry. Co. v. Ander- son, 184 111. 294 (1900), 780, 1016. Illinois Central Ry. Co. v. Ash- mead, 58 111. 487 (1871), 666, 726, 838. Illinois Central Ry. Co. v. Beebe, 174111. 13(1898), 1010, 1011. Illinois Central Ry. Co. v. Brels- ford, 13 111. App. 251 (1883), 989. Illinois Central Ry. Co. v. Bundy, ' 97 111. App. 202 (1901), 408, 722, 831. Illinois Central Ry. Co. v. Cobb, 48 111. 402 (1868), 1046. Illinois Central Ry. Co. v. Cobb, Christy & Co., 64 111. 128 (1872), 664, 666, 800, 901, 910. Illinois Central Ry. Co. v. Cru- dup, 63 Miss. 291 (1885), 777. Illinois Central Ry. Co. v. Daven- port, 177 111. 110 (1898), 763. Illinois Central Ry. Co. v. Dun- nigan (Miss.), 50 So. 443 (1909), 1306. Illinois Central Ry. Co. v. Eblen, 71 S. W. 919 (1903), 772. Illinois Central Ry. Co. v. Frank- enberg, 54 111. 88 (1870), 160, 176, 431, 963, 1002, 1033. Illinois Central Ry. Co. v. Gorti- kov, 90 Miss. 787 (1907), 889. [ cxxiv ] Illinois Central Ry. Co. v. Griffin, 80 Fed. 278 (1897), 372. Illinois Central Ry. Co. v. Hall, 58 111. 409 (1871), 256. Illinois Central Ry. Co. v. Handy, 63 Miss. 609 (1886), 153, 769, 975. Illinois Central Ry. Co. v. Horn- berger, 77 111. 457 (1875), 592, 666, 726. Illinois Central Ry. Co. v. Inter- state Comm. Comm., 206 U. S. 441 (1907), 1163. Illinois Central Ry. Co. v. Jack- son, 117 Ky. L. Rep. 208 (1904), 889. Illinois Central Ry. Co. v. Kerr, 68 Miss. 14 (1890), 513. Illinois Central Ry. Co. v. Laloge, 113 Ky. 896 (1902), 944. Illinois Central Ry. Co. v. Lou- tham, 80 111. App. 579 (1898), 431, 866, 878. Illinois Central Ry. Co. v. Mc- Clennan, 54 111. 58 (1870), 592, 838, 910, 986. Illinois Central Ry. Co. v. Mc- Kendree, 203 U. S. 514 (1906), 593, 1419. Illinois Central Ry. Co. v. Mea- cham, 91 Term. 428 (1892), 762. Illinois Central Ry. Co. v. Minor, 69 Miss. 710 (1892), 942. Illinois Central Ry. Co. v. Mit- chell, 68 111. 471 (1873), 1033. Illinois Central Ry. Co. v. O'Keefe, 168 111. 115 (1897), 395, 736, 760. Illinois Central Ry. Co. v. Parks, 54 111. 294 (1870), 1048. Illinois Central Ry. Co. v. Peo- ple, 121 111. 304 (1887), 1377. TABLE OF CASES CITED [References are to sections] Illinois Central Ry. Co. v. Phelps, 4 111. App. 238 (1879), 591. Illinois Central Ry. Co. v. Por- ter, 117 Tenn. 13 (1908), 777. Illinois Central Ry. Co. v. Scruggs, 69 Miss. 418 (1891), 989, 1007. Illinois Central Ry. Co. v. Seitz, 214 111. 350 (1905), 1234, 1295. Illinois Central Ry. Co. v. Shee- gog, 215 U. S. 308 (1909), 740. Illinois Central Ry. Co. v. Smith, 85 Miss. 349 (1905), 637. Illinois Central Ry. Co. v. Smy- ser, 38 111. 354 (1865), 733. Illinois Central Ry. Co. v. Trous- tine, 64 Miss. 834 (1887), 393, 726. Illinois Central Ry. Co. v. Whitte- more, 43 111. 420 (1867), 431. Ilwaco Ry. & Nav. Co. v. Oregon Short Line Ry. Co., 6 C. C. A. 495 (1893), 488, 527, 811. Imhoff v. Chicago & M. R. Co., 20 Wis. 344 (1866), 1044. Independence Mills Co. v. Bur- lington, Cedar R. & N. Ry. Co., 72 la. 535 (1887), 1043. Independent School District v. Le Mars City Water & Light Co., 131 Iowa, 14 (1906), 273, 280. Indian River Steamboat Co. v. East Coast Transportation Co., 28 Fla. 387 (1891), 102, 232, 485, 487, 811. Indiana C. Ry. Co. v. Mundy, 21 Ind. 48 (1863), 786, 1018. Indiana, I. & I. Ry. Co. v. Dore- meyer, 20 Ind. App. 605 (1898), 594. Indiana Natural & 111. Gas Co. v. Anthony, 26 Ind. App. 307 (1900), 658, 826. Indiana Natural & 111. Gas Co. v. Long, 27 Ind. App. 219 (1901), 982. Indiana Natural & 111. Gas Co. v. State ex rel., 158 Ind. 516 (1901), 653, 1290. Indiana Natural Gas & 0. Co. v, State ex rel. Armstrong, 162 Ind. 690 (1904), 852. Indiana Natural Gas & 0. Co. v. State ex rel., 162 Ind. 690 (1904), 271, 653. Indiana Pullman P. C. Co. v. Taylor, 65 Ind. 153 (1879), 845. Indiana Traction & Terminal Co. v. Klentschy, 167 Ind. 598 (1907), 785. Indianapolis v. Gas Co., 66 Ind. 396 (1879), 71. Indianapolis v. Indianapolis Gas Co., 35 Ch. Leg. News, 165 (1902), 317. Indianapolis & C. R. R. Co. v. Cox, 29 Ind. 360 (1868), 1002. Indianapolis & C. R. R. Co. v. Rutherford, 29 Ind. 82 (1867), 795. Indianapolis & St. Louis R. R. Co. v. Juntgen, 10 111. App. 295 (1881), 667, 669, 912. Indianapolis, Decatur, etc., R. R. Co. v. Ervin, 118 111. 250 (1886), 1289. Indianapolis P. & C. Ry. Co. v. Anthony, 43 Ind. 183 (1873), 935. Indianapolis Traction & T. Co. v. Lawson, 143 Fed. 834 (1906), 785. [ cxxv ] TABLE OF CASES CITED [References are to sections] Indianapolis Traction & T. Co. v. Romans, 40 Ind. App. 184 (1907), 784. Indianapolis U. Ry. v. Dohn, 153 Ind. 10 (1899), 485, 489. Industrial Siding Case, 140 ft. C. 239 (1905), 404, 816, 819. Ingalls v. Bills, 9 Met. 1 (1845), 977, 978. Ingate v. Christie, 3 C. & K. 61 (1850), 164, 203, 227. Inman & Co. v. St. L. S. W. Ry. Co., 14 Tex. Civ. App. 39 (1896), 521, 537. In re, see the particular thing by name. Insurance Co. v. Railroad Co., 8 Baxt. 268 (1874), 517, 1033. Insurance Co. v. Railroad Co., 104 U. S. 146 (1881), 513. International & G. N. Ry. Co. v. Anderson (Tex. Civ. App.), 21 S. W. 691 (1893), 914. International & G. N. Ry. Co. v. Bergman (Tex. Civ. App.), 64 S. W. 999 (1901), 917. International & G. N. Ry. Co. v. Davis, 17 Tex. Civ. App. 340 (1897), 777. International & G. N. Ry. Co. v. Dwight & Co. (Tex. Civ. App.), 100 S.W. 1011(1907), 414, 991. International & G. N. Ry. Co. v. Gilmer, 18 Tex. Civ. App. 680 (1898), 635. International & G. N. Ry. Co. v. Goldstein, 2 Tex. Civ. App. Cas. 274 (1884), 431, 885. International & G. N. Ry. Co. v. Harder, 36 Tex. Civ. App. 151 (1904), 901. [ cxxvi ] International & G. N. Ry. Co. v. Hynes, 3 Tex. Civ. App. 20 (1893), 909, 915, 949. International & G. N. Ry. Co. v. Irvine, 64 Tex. 529 (1885), 763. International & G. N. Ry. Co. v. Lecus (Tex. Civ. App.), 23 S. W. 323 (1893), 914. International & G. N. Ry. Co. v. Railroad Commission of Texas, 99 Tex. 332 (1905), 526. International & G. N. Ry. Co. v. Thorton, 3 Tex. Civ. App. 197 (1893), 740. International & G. N. Ry. Co. v. Tisdale, 74 Tex. 8 (1889), 668, 912. International & G. N. Ry. Co. v. Wilkes, 68 Tex. 617 (1887), 440. International & G. N. Ry. Co. v. Young (Tex. Civ. App.), 28 S. W. 819 (1894), 833, 922. International Boom Co. v. Rainy Lake River Boom Co., 97 Minn. 513 (1906), 73. International Express Co. v. Grand Trunk Ry., 81 Me. 92 (1888), 479. International Water Co. v. El Paso (Tex. Civ. App.), 112 S. W. 816 (1908), 824. Inter-Ocean Publishing Co. v. Associated Press, 184 111. 438 (1900), 684. Interstate Commerce Commission v. Alabama Mid. Ry. Co., 69 Fed. 227 (1895), 1223. Interstate Commerce Commission v. Alabama Mid. Ry. Co., 168 U. S. 144 (1897), 1204, 1222, 1377, 1380. TABLE OF CASES CITED [References are to sections] Interstate Commerce Commission v. Atchison, T. & S. F. Ry. Co., 50 Fed. 295 (1892), 1222. Interstate Commerce Commission v. Baird, 194 U. S. 25 (1904), 707. Interstate Commerce Commission v. Baltimore & 0. R. R. Co. (C. C.), 43 Fed. 37, 1204. Interstate Commerce Commission v. Baltimore & 0. R. R. Co., 145 U. S. 263 (1892), 1204, 1302, 1304, 1353. Interstate Commerce Commission v. Bellaire, Z. & C. Ry. Co., 77 Fed. 942 (1897), 1416. Interstate Commerce Commission v. Chesapeake & O. Ry. Co., 128 Fed. 59 (1904), 1295, 1362. Interstate Commerce Commission v. Chicago & Alton R. R. Co., 215 U. S. 479 (1910), 857. Interstate Commerce Commission v. Chicago, B. & Q. R. R. Co., 186 U. S. 320 (1902), 491, 818. Interstate Commerce Commission v. Chicago Gt. Western R. R. Co., 141 Fed. 1003 (1905), 1070, 1074, 1204, 1211, 1377, 1379. Interstate Commerce Commission v. Chicago Gt. Western Ry. Co., 209 U. S. 108 (1908), 830, 1225, 1238, 1392. Interstate Commerce Commission v. Chicago, R. I. & P. Ry. Co., 218 U. S. 88 (1910), 1226, 1384. Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. R. Co., 167 U. S. 479 (1897), 1402, 1420. Interstate Commerce Commission v. Cincinnati, P. & V. R. R. Co., 124 Fed. 624 (1903), 1377. Interstate Commerce Commission v. Clyde S. S. Co., 181 U. S. 291 (1901), 1222. Interstate Commerce Commission v. Delaware, L. & W. Ry. Co., 64 Fed. 723 (1894), 1238, 1393. Interstate Commerce Commission v. Delaware, L. & W. R. R. Co., 216 U. S. 531 (1910), 224, 538. Interstate Commerce Commission v. Detroit, Grand Haven & Milwaukee R. R. Co., 167 U. S. 633 (1897), 1204, 1316, 1378. Interstate Commerce Commission v. East Tennessee, V. & G. Ry. Co., 85 Fed. 107 (1898), 1372. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452 (1910), 837, 857. Interstate Commerce Commission v. Lake Shore & M. S. Ry. Co., 134 Fed. 942 (1905), 1391. Interstate Commerce Commission v. Lehigh Valley Railroad Co., 74 Fed. 784 (1897), 1208. Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 190 U. S. 273 (1903), 1204, 1377. [ cxxvii ] TABLE OF CASES CITED [References are to sections] Interstate Commerce Commission v. Louisville & N. R. R. Co., 73 Fed. 409 (1896), 1215, 1371. Interstate Commerce Commission v. Louisville & N. R. R. Co., 118 Fed. 613 (1902), 1072, 1175, 1215, 1372, 1384. Interstate Commerce Commission v. Nashville, C. & St. L. Ry. Co., 120 Fed. 934 (1903), 1372, 1377. Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538 (1910), 538. Interstate Commerce Commission v. Reichman, 145 Fed. 235 (1905), 1359. Interstate Commerce Commission v. Southern Ry. Co., 105 Fed. 703 (1900), 1222, 1377. Interstate Commerce Commission v. Southern Ry. Co., 117 Fed. 741 (1902), 1372, 1377. Interstate Commerce Commission v. Stickney, 215 U. S. 98 (1909), 1270. Interstate Commerce Commission v. Texas & Pacific Railroad Co., 52 Fed. 187 (1892), 1312. Interstate Commerce Commission v. Western A. R. R. Co., 88 Fed. 186 (1898), 1209. Interstate Comm. Comm. v. West- ern & A. R. R. Co., 93 Fed. 38 (1899), 1371. Interstate Consolidated St. Ry. Co. v. Massachusetts, 207 U. S. 79 (1908), 1063, 1201, 1431. Interstate Stockyards Co. v. Indianapolis Ry. Co., 99 . Fed. 472 (1900), 129, 256, 258, 815, 1043, 1414, 1415. [ cxxviii 1 lonnone v. New York, N. H. & H. R. R. Co., 21 R. I. 452 (1899), 783. Irvin v. Rusville Cooperative Telephone Co., 161 Ind. 521 (1903), 452, 877. Isaacson v. New York Central & H. R. R. R. Co., 94 N. Y. 278 (1884), 907. Isham v. Erie R. R. Co., 112 N. Y. App. Div. 612 (1906), 1026, 1033. Ives v. Smith et al., 8 N. Y. Supp. 46 (1889), 693. Izlar v. Manchester & A. R. R. Co., 57 S. C. 332 (1889), 369. Jack v. Williams, 113 Fed. 823 (1902), 296. Jackson, City of, v. Anderson (Miss.), 51 So. 896 (1910), 824. Jackson Architectural Iron Wks. Co. v. Hurlbut, 158 N. Y. 34 (1899), 163, 169, 230, 239, 254, 414, 991. Jackson Electric Ry., L. & P. Co. v. Lowry, 79 Miss. 431 (1901), 410, 870. Jackson v. Ellendale, 4 N. D. 478 (1894), 824. Jackson v. Grand Ave. Ry. Co., 118 Mo. 199(1893), 189,870, 1044. Jackson v. Missouri P. Ry. Co., 104 Mo. 448 (1891), 942. Jackson v. Railway Co., 87 Mo. 422 (1885), 604. Jackson v. Rogers, 2 Show, 327 (1683), 661. Jackson v. Sacramento & V. R. R.Co., 23 Cal. 268 (1863), 963. TABLE OF CASES CITED [References are to sections] Jackson v. St. Louis, I. M. & S. Ry. Co., 87 Mo. 422 (1885), 640. Jackson v. St. Paul City Ry. Co., 74 Minn. 48 (1898), 933. Jackson's Case, Peake's Add. Gas. 185 (1800), 431. Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229 (1895), 113. Jacobs v. Tutt, 33 Fed. 412 (1888), 876. Jacobs v. West End St. Ry. Co., 178 Mass. 116 (1901), 945. Jacobson v. Wisconsin, M. & P. R. R. Co., 71 Minn. 519 (1898), 539, 698. Jacobus v. St. Paul & C. Ry. Co., 20 Minn. 125 (1873), 785, 786, 804, 1018. Jacquelin v. Erie R. R. Co., 69 N. J. Eq. 432 (1905), 807, 810. Jalic v. Cardinal, 35 Wis. 118 (1S74), 751. Jamiet v. American Storage Co., 109 Mo. App. 257 (1904), 170, 230, 236. Jaquet v. Edwards, 1 Jamaica, 4 (1867), 220, 567. Jardine v. Cornell, 50 N. J. L. 485 (1888), 641. Jarmy v. Duluth St. Ry. Co., 55 Minn. 271 (1893), 945. Jasper Trust Co. v. Kansas City, M. & B. R. R. Co., 99 Ala. 416 (1892), 748. Jeffersonville R. R. Co. v. Cleve- land, 2 Bush, 468 (1867), 1037. Jeffersonville R. R. Co. v. Rogers, 28 Ind. 1 (1867), 888. Jeffords v. Crump, 12 Phila. (Pa.) 500 (1878), 751. 9 Jenal v. Green Island Draining Co., 12 Neb. 163 (1881), 67. Jencks v. Coleman, 2 Sumner, 221 (1835), 172, 183, 362, 499, 612, 631, 632, 641, 697. Jenkins v. Columbia Land Co., 13 Wash. 502 (1896), 264, 452. Jenkins v. Picket, 9 Yerg. 480 (1836), 208. Jennings v. Grand Trunk Ry. Co., 52 Hun, 227 (1889), 901, 1006. Jennings v. Smith, 106 Fed. 139 (1901), 1021. Jerome v. Smith, 48 Vt. 230 (1876), 8.86. Jersey City & B. R. R. Co. v. Morgan, 52 N. J. L. 60 (1889), 433, 441. Jetter v. New York & H. R. R. Co., 2 Abb. (N. Y.) 456 (1865), 775. Jevons v. Union Pacific R. R. Co., 70 Kan. 491 (1904), 889. Jewell v. Grand Trunk Ry. Co., 55 N. H. 845 (1874), 1042. Jewett v. Olsen, 18 Oreg. 419 (1890), 1046. Johnson's Appeal, 115 Pa. St. 129 (1886), 94. Johnson v. Atlantic City Gas Co., 65 N. J. Eq. 129 (1903), 456. Johnson v. Belmer, 58 N. J. Eq. 354 (1899), 602. Johnson v. Chadbourn Furnace Co., 89 Minn. 310 (1903), 240, 263. Johnson v. Concord R. R. Corp., 46 N. H. 213 (1865), 862. Johnson v. Dominion Exp. Co., 28 Ont. Rep. 203 (1896), 178, 696. Johnson Express Co. v. Chicago, 136 111. App. 368 (1907), 169. f cxxix 1 TABLE OF CASES CITED [References are to sections] Johnson v. Louisville & N. R. R. Co., 104 Ala. 241 (1893), 632, 933. Johnson v. Midland Ry. Co., 4 Exch. (Eng.) 367 (1849), 251, 295, 568. Johnson v. New York Central R. R. Co., 33 N. Y. 610 (1865), 522, 952, 1053. Johnson v. Pensacola & P. R. R. Co., 16 Fla. 623 (1878), 1282, 1283, 1287, 1299, 1311, 1361. Johnson v. Philadelphia, W. & B. R. R. Co., 63 Md. 106 (1884), 1004, 1044. Johnson v. Reynolds,, 3 Kan. 257 (1865), 751. Johnson v. Richardson, 17 111. 302 (1855), 965. Johnson v. Southern Ry. Co., 53 C. S. 203 (1898), 312. Johnson v. State, 113 Ind. 143 (1887), 795, 884. Johnson v. Texas Cent. R. R. Co. (Tex. Civ. App.), 93 S. W. 433 (1906), 783. Johnson v. Toledo, S. & M. Ry. Co., 133 Mich. 596 (1903), 511, 796. Johnson v. Western Union Tele- graph Co., 33 Fed. 362 (1887), 1025. Johnston v. Chicago, B. & Q. R. R. Co., 70 Neb. 364 (1903), 902. Johnston v. Midland Ry. Co., 4 Exch. 867 (1849), 361. Johnstone v. Richmond R. R. Co., 39 S.C. 55 (1892), 1019, 1021. Jolley v. Chicago, M. & St. P. Ry. Co., 119 Iowa, 491 (1903), 347. Jordan v. Fall River R. R. Co., 5 Gush. 69 (1849), 876. [ cxxx ] Jordan v. Indianapolis Water Co. (Ind. App.), 61 N. E. 12 (1901), 264. Jones v. Boston & A. R. R. Co., 63 Me. 188, 522. Jones v. Durham Water Co., 135 N.C. 553 (1904), 351. Jones v. Earl, 37 Cal. 630 (1869), 1046. Jones v. Mayor of Nashville, 109 Tenn. 550 (1903), 452, 455, 456, 457. Jones v. Newport N. & M. V. R. R. Co., 65 Fed. 736 (1895), 404, 816, 822. Jones v. North Georgia Electric Co., 125 Ga. 618 (1906), 56, 60, 95, 113, 114, 243. Jones v. Pitcher, 3 Stew. & P. 136 (1833), 172. Jones & Price v. Mahaska County Coal Co., 47 Iowa, 35 (1877), 222. Jones v. Priester, 1 Tex. Civ. App. Gas. 613 (1877), 876. Jones v. Roach, 21 Tex. Civ. App. 301 (1899), 511. Jones v. Rochester Gas & Elec- tric Co., 7 N. Y. App. Piv. 465 (1896), 273, 281, 405, 458, 579. Jones v. St. Louis Southwestern Ry. Co., 125 Mo. 666 (1894), 778, 1011. Jones & Co. v. Venable, 120 Ga. 1 (1904), 225. Jones v. Voorhees, 10 Ohio St. 145 (1840), 185, 262. Jones v. Wabash, St. L. & P. Ry. Co., 17 Mo. App. 158 (1885), 763. Jones v. Western Union Tele- graph Co., 18 Fed. 717 (1883), 1025. TABLE OF CASES CITED [References are to sections] Judson v. Western R. R. Corp., 4 Allen, 520 (1862), 726. Julia, The, 14 Moore P. C. 210 (1860), 173, 774. Julian v. Western Union Tele- graph Co., 98 Ind. 327 (1884), 902. Junction Creek & N. D. D. & I. Ditch Co. v. Durango, 21 Colo. 194 (1895), 701. June v. Boston & Albany R. R. Co., 153 Mass. 79 (1891), 401. Kalamazoo Hack & B. Co. v. Sootsma, 84 Mich. 194 (1890), 485, 489, 514. Kallman v. United States Ex- press Co., 3 Kan. 205 (1865), 1012. Kansas & A. V. Ry. Co. v. Ayres, 63 Ark. 331 (1897), 575, 1026. Kansas City, F. S. & M. Ry. Cq. v. McGahey, 63 Ark. 344 (1897), 876, 1057. Kansas City, F. S. & G. R. R. Co. v. Morrison, 34 Kan. 502 (1886), 875. Kansas City, F. S. & M. R. R. Co. v. Washington, 74 Ark. 9 (1905), 512. Kansas City Interurban Ry. Co. v. Davis, 197 Mo. 669 (1906), 305. Kansas City, M. & B. R. R. Co. v. Lilly, 8 So. 644 (1891), 403. Kansas City, M. & B. R. R. Co. v. Riley, 68 Miss. 765 (1891), 890. Kansas City, M. & B. R. R. Co. v. Spencer, 72 Miss. 491 (1894), 669, 912. Kansas City, M. & 0. Ry. Co. v. State (Okla.), 107 Pac. 912 (1910), 809. Kansas City & N. C. R. R. Co. v. Baker, 183 Mo. 312 (1904), 125. Kansas City Ry. Co. v. Holden, 66 Ark. 602 (1899), 433. Kansas City, S. & G. Ry. Co. v. Louisiana W. Ry. Co., 116 La. 178 (1905), 224, 225, 822. Kansas City, St. J. & C. B. R. R. Co. v. Rodebaugh, 38 Kan. 45 (1887), 1004. Kansas & G. S. L. Ry. Co. v. Dorough, 72 Tex. 108 (1888), 736. Kansas Pacific Ry. Co. v. Mc- Cann, 2 Wyo. 3 (1877), 1050. Kansas Pacific Ry. Co. v. Nichols, Kennedy & Co., 9 Kan. 235 (1872), 204, 212, 252, 256, 662. 769, 796, 989. Kansas Pacific Ry. Co. v. Rey- nolds, 8 Kan. 623 (1871), 256. Kates v. Atlantic Baggage, etc., Co., 107 Ga. 636 (1899), 483, 489, 501. Kean v. Driggs Drainage Co., 45 N. J. L. 91 (1883), 67. Kearney v. Borough of West Chester, 199 Pa. St. 392 (1901), 306. Keen v. Mayor and Council of Waycross, 101 Ga. 588 (1897), 706. Keene Syndicate v. Wichita Gas, E. L. & P. Co., 69 Kan. 284 (1904), 693. Kellogg v. Sowerby, 87 N. Y. Supp. 412 (1904), 224, 822. Kellogg v. Suffolk & C. Ry. Co., 100 N. C. 158 (1888), 399, 403, 812. [ cxxxi 1 TABLE OF CASES CITED [References are to sections] Kellow, Jr., Admr., v. Cent. la. Ry. Co., 68 Iowa, 470 (1886), 756. Kelly v. New York Excise Comrs., 54 How. Pr. 327 (1877), 263, 974. Kelly v. C., M. & St. P. Ry. Co., 93 Iowa, 436 (1895), 500. Kelsey v. Board of Fire & Water Commissioners, 113 Mich. 215 (1897), 380. Kember v. Southern Express Co., 22 La. Ann. 158 (1870), 1022. Kemp v. Coughtry, 11 Johns. (N. Y.) 107 (1814), 255, 971. Kennebec Water District v. Waterville, 97 Me. 185 (1902), 92, 1065, 1067, 1068, 1073, 1084, 1091, 1099, 1100, 1101, 1102, 1103, 1124, 1138, 1139, 1166, 1175, 1213, 1430. Kennedy v. Birmingham Ry. L. & P. R. R. Co., 138 Ala. 225 (1902), 888. Kenney Co. v. Atlanta & W. P. R. R. Co., 122 Ga. 365 (1905), 1042. Kennon v. Western Union Tele- graph Co., 92 Ala. 399 (1890), 348. Kenrig v. Eggleston, Al. 93, 13. Kentucky & L. Bridge Co. v. Louisville & N. R. R. Co., 37 Fed. 567 (1889), 53, 126, 151, 525, 534, 773, 972, 1416. Kentucky Central R. R. Co. v. Biddle, 17 Ky. L. Rep. 1363 (1896), 932. Kentucky Central R. R. Co. v. Thomas, 79 Ky. 160 (1880), 760,761. Kentucky Wagon Mfg. Co. v. Ohio & M. Ry. Co., 98 Ky. 152 (1895), 866, 1050. [ cxxxii ] Kerr v. Willan, 6 M. & S. 150 (1817), 1001. Kesten v. Hildebrand, 9 B. Mon. 72 (1848), 106. Ketchum v. Buffalo, 14 N. Y. 356 (1856), 145. Ketchum v. New York City Ry. Co., 118N. Y.App. Div. 248 (1907), 878. Kettle River R. R. Co. v. Eastern Ry. Co., 41 Minn. 461 (1889), 223, 685. Kevoy v. Western Union Tele- graph Co., 4 S. D. 105 (1893), 338. Kidder v. Fitchburg Ry. Co., 165 Mass. 398 (1896), 477. Kilduff v. Boston Elev. Ry. Co., 195 Mass. 307 (1907), 783. Kiley v. Western Union Tele- graph Co., 109 N. Y. 231 (1888), 980. Killmer v. New York Central R. R. Co., 100 N. Y. 395 (1885), 1282, 1287. Kimball v. City of Cedar Rapids, 99 Fed. 130 (1900), 1124, 1430. Kimball v. Rutland, etc., Ry. Co., 26 Vt. 247 (1854), 256, 758, 775, 989, 1001. Kimmich v. Ball, 129 U. S. 217 (1889), 1418. King v. Lenox, 19 Johns. 235 (1821), 743. King, The, v. Severn & Wye Ry. Co., 2 B. & Aid. 646 (1819), 299. King v. Western Union Tele- graph Co., 89 Ark. 402 (1909), 1041. Kingsley v. Buffalo, N. Y. & P. R. R. Co., 37 Fed. 18 (1888), 1322, 1323. TABLE OF CASES CITED [References are to sections] Kingsley v. Lake Shore Ry. Co., 125 Mass. 54 (1878), 769. Kinney v. Central R. R. Co., 34 N. J. L. 513 (1869), 786, , 1018. Kinney v. Louisville & N. R. R. Co., 99 Ky. 59 (1896), 942. Kirby v. Adams Express Co., 2 Mo. App. 369 (1876), 178, 776. Kirby v. Chicago & A. R. Co., 146 111. App. 31 (1908), 833. Kirby v. Western Union Tele- graph Co., 4 S. D. 439 (1892), 133, 412. Kirby v. Western Union Tele- graph Co., 7 S. D. 623 (1895), 1026. Kirkland v. Charleston & W. C. Ry. Co., 79 S. C. 273 (1907), 757, 758. Kirkland v. Dinsmore, 62 N. Y. 171 (1875), 1003. Kirkland v. Montgomery, 1 Swan, 452 (1852), 172, 255. Kistern v. Hildebrand, 9 B. Mon. 72 (1848), 234, 240, 263. Klauber v. American Express Co., 21 Wis. 21 (1866), 963. Klugherz v. Chicago, M. & St. P. Ry. Co., 90 Minn. 17 (1903), 370. Knapp v. McCaffrey, 178 111. 107 (1899), 173, 774, 972. Knapp, Stout & Co. v. Transfer Co., 126 Mo. 26 (1894), 226. Knight v. Providence & W. R. R. Co., 13 R. I. 572 (1882), 513, 522. Knight v. Quincy, 0. & K. C. R. R. Co., 120 Mo. App. 311 (1906), 413, 650, 659. Knight v. Wrightsville & T. Ry. Co., 127 Ga. 204 (1906), 1056. Knott v. Raleigh & Gaston R. R. Co., 98 N. C. 73 (1887), 513, 1033. Knottnerus v. North P. S. R. R. Co., 93 Mich. 348 (1892), 195. Knowles v. Atlantic & St. L. R. R. Co., 38 Me. 55 (1854), 970. Knowles v. Railroad Co., 102 N. C. 59 (1809), 440. Knox v. Rives, 14 Ala. 249 (1848), 743, 971. Knoxville Traction Co. v. Lane, 103 Tenn. 376 (1899), 935. Knoxville Traction Co. v. Wilker- son, 117 Tenn. 482 (1907), 439, 862, 863, 877. Knoxville v. Knoxville Water Co., 212 U.S. 1 (1909), 1069, 1084, 1091, 1094, 1110, 1166, 1170, 1410. Koehler, Ex parte, 30 Fed. 867 (1887), 1222, 1414, 1416. Koelle v. Knecht, 99 111. 396 (1881), 226. Kopper v. Willis, 9 Daly, 460 (1881), 341. Koretke v. Irwin & Co., 100 Ala. 323 (1893), 658. Kremer v. Southern Express Co., 6 Cold. 356 (1869), 1040. Kroeger v. Seattle Electric Co., 37 Wash. 544 (1905), 401. Krohn v. Sweeney, 2 Daly, 200 (1867), 263. Krumenaker v. Dougherty, 77 N. Y. Supp. 467 (1902), 623, 883. Kuhlen v. Boston & N. St. Ry. Co., 193 Mass. 341 (1907), 945. Kuhn v. Knight, 115 N. Y. App. Div. 837 (1906), 79. [ cxxxiii ] TABLE OF CASES CITED [References are to sections] Kuter v. Michigan Central R. R. Co., 1 Biss. 35 (1853), 255, 792. Kyle v. Texas & N. O. R. R. Co. (Tex. Civ. App.), 4 L. R. A. 275 (1889), 224. Lackawanna & B. R. R. Co. v. Chenewith, 52 Pa. St. 382 (1866), 764. Lackland v. Chicago & A. Ry. Co., 101 Mo. App. 420 (1903), 812. Ladd v. Boston, 170 Mass. 332 (1898), 1246. Ladd v. Cholard, Minor (Ala.), 366, 739. Ladd v. Cotton Press. Co., 53 Tex. 172 (1880), 99. Laddonia v. Poor, 73 Mo. App. 465 (1898), 472. Lafaye v. Harris, 13 La. Ann. 553 (1858), 553. Laguna Drainage District v. Martin Co., 144 Cal. 209 (1904), 67. La Harpe v. Elm Township G. L., F. & P. Co., 69 Kans. 97 (1904), 94. Laighton v. Carthage, 175 Fed. 145 (1909), 302, 316, 596. Lake Erie & W. Ry. Co. v. Acres, 108 Ind. 548 (1886), 188. Lake Erie & W. R. R. Co. v. Hatch, 52 Oh. St. 408 (1895), 1037, 1038. Lake Erie & W. R. R. Co. v. James, 10 Ind. App. 550 (1894), 597. Lake Erie & Western R. R. Co. v. State, 139 Ind. 158 (1894), 211, 300. [ cxxxiv ] Lake Shore & M. S. Ry. Co. v. Anderson, 39 Ind. App. 112 (1906), 408, 722. Lake Shore & M. S. Ry. Co. v. Bennett, 89 Ind. 457 (1883), 669, 912. Lake Shore & M. S. Ry. Co. v. Brown, 123 111. 162 (1887), 761, 862. Lake Shore & M. S. Ry. Co. v. Foster, 104 Ind. 293 (1885), 728. Lake Shore & M. S. Ry. Co. v. Greenwood, 79 Pa. St. 373 (1875), 863. Lake Shore & M. S. Ry. Co. v. Hodapp, 83 Pa. St. 22 (1876), 996, 1048. Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285 (1899), 1417. Lake Shore & M. S. Ry. Co. v. Orndorff, 55 Oh. St. 716 (1897), 341. Lake Shore & M. S. Ry. Co. v. Perkins, 25 Mich. 329 (1872), 256. Lake Shore & M. S. Ry. Co. v. Pierce, 47 Mich. 277 (1882), 864, 870, 872. Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101 (1893), 935, 938. Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684 (1899), 830, 836, 1201, 1344, 1353, 1431. Lake Shore & M. S. Ry. Co. v. Teeters, 166 Ind. 335 (1906), 881. Lamb v. Chicago, M. & St. P. Ry. Co., 101 Wis. 138 (1898), 796. Lamb v. Parkman, 1 Sprague, 343 (1857), 235, 239, 968. TABLE OF CASES CITED [References are to sections] Lambert-Murray Co. v. South- ern Express Co., 146 N. C. 321 (1907), 903. Lamond v. Richard, 1 Q. B. 541 (1897), 366, 579. Lamont & Co. v. Nashville & C. R. R. Co., 9 Heisk. 58 (1871), 917. Lancy v. Pennsylvania R. R. Co., 154 Pa. St. 342 (1893), 987. Landa v. Hoick & Co. et al., 129 Mo. 663 (1895), 1046. Lane v. Cotton, 12 Mod. 472 (1701), 106, 202, 391. Lane v. East Tenn., Va. & Ga. R. R. Co., 5 Tenn. 124 (1880), 885. Lane v. Penniman, 4 Mass. 91 (1808), 1266. Lang v. Brady, 73 Conn. 707 (1901), 345. Lang v. Pennsylvania R. R. Co., 154 Pa. St. 342 (1893), 667, 911, 950. Langley v. Boston & Maine R. R. Co., 10 Gray (Mass.), 103 (1859), 740. Langley v. Western Union Tele- graph Co., 88 Ga. 777 (1892), 436. Lanier v. Youngblood, 73 Ala. 587 (1883), 213, 964, 1001. Lannen v. Albany Gaslight Co., 46 Barb. 264 (1865), 982. Lanning v. Sussex R. R. Co., 1 N. J. L. Jour. 21 (1878), 551. Laporte v. Wells-Fargo Exp. Co., 23 App. Div. 267 (1897), 1040. Larabee Flour Mills v. Missouri Pacific Ry. Co., 74 Kans. 808 (1906), 130, 1413. Latour v. Southern Ry. Co., 71 S. C. 532 (1904), 904. Laughlin v. Chicago &,N. Ry. Co., 28 Wis. 204 (1871), 1033. Laurel Fork & S. H. Ry. Co. v. West Virginia T. Co., 25 W. Va. 324 (1884), 176, 1421. Laveroni v. Drury, 8 Exch. 166 (1852), 165. Lawler v. Baring Boom Co., 56 Me. 443 (1869), 73. Lawrence v. Denbreens, 1 Black (U. S.), 170 (1862), 1269. Lawrence v. Howard, 1 Utah, 142 (1874), 751. Lawrence v. New York P. & B. R. R. Co., 36 Conn. 63 (1869), 1002. Lawrence v. Pullman P. C. Co., 144 Mass. 1 (1887), 153, 382, 847. Lawrenceburgh & U. M. R. R. Co. v. Montgomery, 7 Ind. 474 (1856), 762. Lawson v. Chicago, St. P., M. & 0. Ry. Co., 64 Wis. 447 (1885), 780. Leach v. New York, N. H. & H. R. R. Co., 89 Hun, 377 (1895), 433. Leavell v. Western Union Tele- graph Co., 116 N. C. 211 (1895), 688, 801, 837. Leavenworth, L. & G. R. R. Co. v. Maris, 16 Kan. 333 (1876), 1037. Le Barren v. East B. Ferry Co., 11 Allen, 312 (1865), 182. Lechowitzer v. Hamburg-Amer- ican Packet Co., 27 N. Y. Supp. 140 (1894), 1004. [ cxxxv ] TABLE OF CASES CITED [References are to sections] Le Conteur v. London & S. W. Ry. Co., 6 B. & S. 961 (1865), 769. Lee v. Burgess, 9 Bush, 652 (1873), 255. Lee v. New Orleans Gt. No. R. R. Co., 125 La. 236 (1910), 848. Lee v. Raleigh & G. R. R. Co., 72 N. C. 236 (1875), 256. Lee v. Western Union Telegraph Co., 51 Mo. App. 375 (1892), 348. Leech v. Baldwin, 5 Watts (Pa.), 446 (1836), 1269. Leggs v. New York, N. H. & H. R. R. Co., 197 Mass. 88 (1908), 1044. Lehigh Valley R. R. Co. v. Penn- sylvania, 145 U. S. 192 (1892), 1413. Leigh v. Garysburg Mfg. Co., 132 N. C. 167 (1903), 57, 223. Lemon v. Chanslor, 68 Mo. 340 (1878), 185, 364, 785. Lemon v. Pullman P. C. Co., 52 Fed. 262 (1887), 153, 382. Lemont v. Washington & G. R. R. Co., 1 Mackey, 180 (1881), 638, 933. Leo v. St. Paul, M. & M. Ry. Co., 30 Minn. 438 (1883), 1033. Leonard v. American Exp. Co., 26 Up. Can. .(Q- B.) 533 (1867), 251, 254, 792. Leonard v. Hendrickson, 18 Pa. St. 40 (1851), 173, 774. Leonard v. New York, A. & B. Telegraph Co., 41 N. Y. 544 (1820), 973. Leonard v. St. Louis Transit Co., 115 Mo. App. 349 (1905), 629. [ cxxxvi ] Leredo, City of, v. Interna- . tional Bridge Co., 66 Fed. 246 (1895), 53. Leslie v. Lorillard, 110 N. Y. 519 (1888), 693. Lesson v. Holt, 1 Starkie, 186 (1816), 1001. Lester v. Lancashire & Y. Ry. Co., 1 K. B. 878 (1903), 988. Leverich v. City of Mobile, 110 Fed. 170 (1867), 232. Levi v. Lynn & Boston R. R. Co., 11 Allen, 300 (1865), 262. Levien v. Webb, 30 N. Y. Misc. 196 (1899), 948. Levy v. Corey, 1 City Ct. Rep. Supp. 57 (1884), 631, 638, 947. Lewis v. Chesapeake & Ohio Ry. Co., 47 W. Va. 656 (1900), 517, 1033. Lewis v. Flint & P. M. Ry. Co., 54 Mich. 55 (1884), 916. Lewis v. Houston Elec. Co. (Tex. Civ. App.), 88 S. W. 489 (1905), 736. Lewis v. Louisville & N. Ry. Co., 135 Ky. 361 (1909), 1038. Lewis v. New York Central R. R. Co., 49 Barb. 330 (1867), 441. Lewis v. Weatherford, M., W. & N, W. Ry. Co., 36 Tex. Civ. App. 48 (1904), 501. Lewis v. Western R. R. Corp., 11 Met. 509 (1846), 1042. Libby v. Maine Cent. R. R. Co., 85 Me. 34 (1892), 777, 978. Light v. Abel, 6 Allen, 400 (1866), 751. Linck v. City of Litchfield, 31 111. App. 118 (1888), 306. TABLE OF CASES CITED [References are to sections] Lindsay v. Mayor & City Coun- cil of Anniston, 104 Ala. 257 (1893), 484. Lindsley v. Chicago, M. & St. P. Ry. Co., 36 Minn. 539 (1887), 989. Linn v. Chambersburg, 160 Pa. St. 511 (1894), 218. Linne v. Bredes, 43 Wash. 540 86 Pa. 858 (1906), 377, 456. Liquid Carbonic Co. v. Norfolk & W. Ry. Co., 107 Va. 323 (1907), 1024, 1026. Litchfield & M. Ry. Co. v. The People, 222 111. 242 (1906), 223, 310. Little v. Boston & M. R. R. Co., 66 Me. 239 (1876), 1021. Little v. Fargo, 43 Hun, 233 (1887), 911. Little John v. Fitchburg R. R. Co., 148 Mass. 478 (1889), 341, 785. Littlejohn v. Jones, 2 McMull, 366 (1842), 237, 241, 968. Little Miami R. R. Co. v. Wash- burn, 22 Ohio St. 324 (1872), 518, 522, 1033. Little Rock & Ft. Smith Ry. Co. v. Conatser, 61 Ark. 560 (1896), 723. Little Rock & Ft. Smith Ry. Co. v. Hunter, 42 Ark. 200 (1883), 726. Little Rock & Ft. Smith Ry. Co. v. Miles, 40 Ark. 298 (1883), 760, 780, 978. Little Rock & Ft. Smith Ry. Co. v. Oppenheimer, 64 Ark. 271 (1897), 853, 1378. Little Rock & Ft. Smith Ry. Co. v. Tankersley, 54 Ark. 25 (1890), 1044. Little Rock, M. R. & T. Ry. Co. v. Glidewell, 39 Ark. 487 (1882), 207, 762, 1048. Little Rock & M. R. R. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. 559(1890), 534. Little Rock & M. R. R. Co. v. St. Louis, I. M. & S. Ry. Co., 59 Fed. 400 (1894), 431, 435, 523, 528. Little Rock & M. R. R. Co. v. St. Louis S. W. Ry. Co., 63 Fed. 775, 435, 523, 534, 682. Little Rock Ry. & El. Co. v. Goerner, 80 Ark. 158 (1906), 890. Liver Alkali Co. v. Johnson, L. Rep. 9 Exch. 338 (1874), 148, 164. Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397 (1889), 229, 1010. Lloyd v. Gaslight Co., 1 Mackey, 331 (1881), 451, 453. Lloyd v. Haugh & K. Storage & Transfer Co., 223 Pa. St. 148 (1909), 169, 170, 204, 206, 220, 230, 236. Loader v. Brooklyn Heights R. R. Co., 35 N. Y. Supp. 996 (1895), 189, 313, 668. Loan Association v. Topeka, 20 Wall. 655 (1874), 64. Lockwood v. Boston Elevated Ry. Co., 200 Mass. 537 (1909), 403, 736. Lodge v. United Gas & Imp. Co., 209 Pa. St. 553 (1904), 982. Logan v. Mobile Trade Co., 46 Ala. 513 (1871), 1003. Logan v. Pontchartrain R. R. Co., 11 Rob. 24 (1845), 1002. [ cxxxvii ] TABLE OF CASES CITED (References are to sections] Logan Coal Co. v. Pennsylvania Ry. Co., 154 Fed. 497 (1907), 857. Logansport Gas Co. v. Pern, 89 Fed. 185 (1898), 1095. Logansport & W. V. Gas Co. v. Ott, 30 Ind. App. 93 (1902), 1338. London & N. W. R. R. Co. v. Evershed, L. R. 3 App. Cas. 1029 (1878), 1312. London & N. W. R. R. Co. v. Hinchcliffe, 2 K. B. 32 (1903), 446, 1256, 1260. Ix)ng Acre Light & Power Co., Re, 102 N. Y. Supp. 242 (1907), 78, 383. Long Branch Com. v. Tintern Manor Water Co., 71 N. J. Eq. 790 (1906), 92. Long Branch Com. v. Tintern Manor Water Co., 70 N. J. Eq. 71 (1905), 1086, 1139, 1151,1154,1166,1167,1175, 1197. Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 (1897), 92, 242, 1103. Long v. Beard, 3 Murphy, 57 (1819), 52. Long v. Pennsylvania R. R. Co., 147 Pa. St. 343 (1892), 656, 984. Long v. Springfield Water Co., 8 Del. Co. (Pa.) 151 (1901), 435, 877, 1251, 1290, 1300. Loon, The, 7 Blatch. 244 (1870), 747. Loraine v. Pittsburg, J. E. & E. R. R. Co., 205 Pa. St. 132 (1903), 573, 850, 1366. Los Angeles v. Los Angeles City Water Co., 177 U. S. 558 (1900), 216, 1424. [ cxxxviii ] Lotspeich v. Central Ry. Co., 73 Ala. 306 (1882), 512, 1377. Lottery Case, 178 U. S. 321 (1903), 1413. Lough v. Outerbridge, 143 N. Y. 271 (1894), 681, 685, 1282, 1284, 1289, 1305, 1311, 1328. Loughbridge v. Harris, 42 Ga. 500 (1871), 65, 851. Louisiana & A. Ry. Co. v. State, 91 Ark. 358 (1909), 805, 809. Louisiana Nat. Bank v. Lavielle, 52 Mo. 380 (1873), 747. Louisiana & N. W. Ry. Co. v. Reeves (Ark.), 128 S. W. 1051 (1910), 1041. Louisiana Railroad Comm. v. Cumberland Telephone Co., 212 U. S. 414 (1909), 1129, 1170, 1221. Louisiana Ry. & Nav. Co. v. Railroad Commission, 121 La. 847 (1908), 806. Louisville v. Wehmhoff, 116 Ky. 812 (1903), 603. Louisville & A. Ry. Co. v. State, 85 Ark. 12 (1907), 805. Louisville & C. Packet Co. v. Bottorff, 25 Ky. L. Rep. 1324 (1904), 902, 913. Louisville & C. Packet Co. v. Rogers, 20 Ind. App. 594 (1898), 906. Louisville & E. Ry. Co. v. Mc- Nally, 31 Ky. L. Rep. 1357 (1907), 632. Louisville & N. R. R. Co. v. Bal- lard, 85 Ky. 307 (1887), 935. Louisville & N. R. R. Co. v. Behlmer, 175 U. S. 648 (1898), 1222, 1377, 1414. Louisville & N. R. R. Co. v. Bell, 13 Ky. L. Rep. 393 (1891), 667, 669, 912. TABLE OF CASES CITED [References are to sections] Louisville & N. R. R. Co. v. Bell, 100 Ky. 203 (1896),780. Louisville & N. R. R. Co. v. Blair, 104 Tenn. 212 (1900), 890. Louisville & N. R. R. Co. v. Boland, 96 Ala. 626 (1892), 529. Louisville & N. R. R. Co. v. Breckinridge, 99 Ky. 1 (1896), 447, 1259, 1261. Louisville & N. R. R. Co. v. Britton, 149 Ala. 552 (1907), 1045. Louisville & N. R. R. Co. v. Brown, 123 Fed. 946 (1903), 1105, 1133, 1138, 1178, 1402. Louisville & N. R. R. Co. v. Brownlee, 14 Bush, 590 (1879), 1001. Louisville & N. R. R. Co. v. Campbell et al., 7 Heisk. 253 (1872), 1033. Louisville & N. R. R. Co. v. Ca- tron, 102 Ky. 323 (1897), 566, 849. Louisville & N. R. R. Co. v. Central S. Y. Co., 30 Ky. L. Rep. 18 (1906), 527, 529, 539, 804. Louisville & N. R. R. Co. v. Central S. Y. Co., 212 U. S. 132 (1909), 403, 491, 527, 532,698,804,811,818,1043, 1434. Louisville & N. R. R. Co. v. Com., 102 Ky. 300 (1897), 873. Louisville & N. R. R. Co. v. Com., 105 Ky. 179 (1898,), 1337. Louisville & N. R. R. Co. v. Com., 21 Ky. L. Rep. 232 (1899), 1222, 1377. Louisville & N. R. R. Co. v. Com., 108 Ky. 628 (1900), 1337, 1342. Louisville & N. R. R. Co. v. Cottengim (Ky.), 104 S. W. 280 (1907), 438. Louisville & N. R. R. Co. v. Crunk, 119 Ind. 542 (1889), 369, 372, 638. Louisville & N. R. R. Co. v. Dancy, 97 Ala. 338 (1892), 872. Louisville & N. R. R. Co. v. Du Bose, 120 Ga. 339 (1904), 754. Louisville & N. R. R. Co. v. Duncan & Orr, 137 Ala. 446 (1902), 518, 1033. Louisville & N. R. R. Co. v. Eu- bank, 184 U. S. 27 (1902), 1419. Louisville & N. R. R. Co. v. Farmers' & D. L. S. Com. Firm, 107 Ky. 53 (1899), 834, 1033. Louisville & N. R. R. Co. v. Ft. Wayne . Electric Co., 108 Ky. 113 (1900), 1049. Louisville & N. R. R. Co. v. Fulgham, 91 Ala. 555 (1890), 1299, 1333. Louisville & N. R. R. Co. v. Gaines, 99 Ky. 411 (1896), 889. Louisville & N. R. R. Co. v. Gar- rett, 8 Lea, 438 (1881), 341, 438, 441, 447, 1259. Louisville & N. R. R. Co. v. Gil- mer, 89 Ala. 534 (1889), 1042. Louisville & N. R. R. Co. v. Hine, 121 Ala. 234 (1898), 763, 889, 891. Louisville & N. R. R. Co. v. Kel- ler, 104 Ky. 768 (1898), 1044. [ cxxxix 1 TABLE OF CASES CITED {References are to sections] Louisville & N. R. R. Co. v. Kelley, 92 Ind. 371 (1883), 938. Louisville & N. R. R. Co. v. Kingman, 18 Ky. Law Rep. 82 (1896), 777. Louisville & N. R. R. Co. v. Landers, 135 Ala. 504 (1903), 1007. Louisville & N. R. R. Co. v. Lo- gan, 88 Ky. 232 (1889), 620, 629, 633, 634, 934. Louisville & N. R. R. Co. v. Maybin, 66 Miss. 83 (1889), 440, 646, 878, 886. Louisville & N. R. R. Co. v. Odill, 96 Tenn. 61 (1896), 905. Louisville & N. R. R. Co. v. Owen, 12 Ky. L. Rep. 716 (1890), 1042. Louisville & N. R. R. Co. v. Pittsburg & K. Coal Co., Ill Ky. 960 (1901), 223, 224, 539, 597, 691, 822. Louisville & N. R. R. Co. v. Queen City Coal Co., 13 Ky. Law Rep. 832 (1892), 665, 837. Louisville & N. R. R. Co. v. Queen City Coal Co., 99 Ky. 217 (1896), 663, 799. Louisville & N. R. R. Co. v. Rey- nolds, 71 S. W. 516 (1903), 735. Louisville & N. R. R. Co. v. Setser's Admr. (Ky.), 128 S. W. 341 (1910), 646. Louisville & N. R. R. Co. v. Sherrod, 84 Ala. 178 (1887), 1021. Louisville A N. R. R. Co. v. Sowell, 90 Tenn. 17 (1891), 1019. [cxl] Louisville & N. R. R. Co. v. Stacker, 86 Tenn. 343 (1888), 754. Louisville & N. R. R. Co. v. United States, 39 Ct. of Cl. 405 (1904), 724. Louisville & N. R. R. Co. v. Walker, 23 Ky. L. Rep. 453 (1901), 1378. Louisville & N. R. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483 (1905), 102, 232, 488, 522, 811. Louisville '& N. R. R. Co. v. Wil- liams, 95 Ky. 199 (1893), 529, 530. Louisville & N. R. R. Co. v. Young, 1 Bush (Ky.), 401 (1866), 604, 636. Louisville & W. R. R. Co. v. Gerson & Sons, 102 Ala. 409 (1893), 970. Louisville, C. & C. R. R. Co. v. Chappell, Rice, 383 (1839), 58 Louisville, E. & St. L. C. R. R. Co. v. Crown Coal Co., 43 111. App. 228 (1891), 1299. Louisville, E. & St. L. R. R. Co. v. Wilson, 132 Ind. 517 (1892), 554, 685, 1286, 1322, 1326, 1330, 1344, 1365. Louisville Gas Co. v. Dulaney, 100 Ky. 405 (1897), 825, 1251, 1354. Louisville, H. & St. L. Ry. Co. v. Joplin, 21 Ky. Law Rep. 1380 (1900), 432. Louisville Natural Gas Co. v. State, 135 Ind. 49 (1894), 1410, 1424. Louisville, N. A. & C. Ry. Co. v. Brinley, 17 Ky. L. Rep. 9 (1895), 915. TABLE OF CASES CITED [References are to sections] Louisville, N. A. & C. Ry. Co. v. Craycraft, 12 Ind. App. 203 (1894), 1003, 1004. Louisville, N. A. & C. Ry. Co. v. Flanagan, 113 Ind. 488 (1887), 399, 403, 723. Louisville, N. A. & C. Ry. Co. v. Godman, 104 Ind. 490 (1885), 393, 727. Louisville, N. A. & C. Ry. Co. v. Keefer, 146 Ind. 21 (1896), 477, 777, 778, 1015. Louisville, N. A. & C. Ry. Co. v. Snyder, 117 Ind. 435 (1888), 794. Louisville, N. A. & C. Ry. Co. v. Taylor, 126 Ind. 126 (1890), 780. Louisville, N. A. & C. Ry. Co. v. Thompson, 107 Ind. 442 (1886), 966. Louisville, N. A. & C. Ry. Co. v. Wolfe, 128 Ind. 347 (1890), 633. Louisville, N. A. & C. Ry. Co. v. Wright, 18 Ind. App. 125 (1897), 865, 873. Louisville, N. & Gt. So. R. R. Co. v. Fleming, 14 Lea (Tenn.), 128 (1884), 440, 635, 933. Louisville, N. 0. & T. Ry. Co. v. Patterson, 69 Miss. 421 (1891), 662, 800. Louisville, N. O. & Ry. T. Co. v. State, 66 Miss. 662 (1889), 566, 848. Louisville, St. L. & Texas Ry. Co. v. Bourne, 16 Ky. L. Rep. 825 (1895), 517. Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky. 166 (1899), 142. Louisville Transfer Co. v. Amer- ican District Telegraph Co., 1 Ky. L. J. 144 (1881), 136, 704. Louisville Water Co. v. Wiemer, 130 Fed. 257 (1904), 496. Love joy v. Blessemer Water- works Co., 146 Ala. 374 (1906), 300, 350. Loveland v. Burke, 120 Mass. 139 (1876), 414, 991. Lovett v. Hobbs, 2 Show, 127 (1680), 184. Lowe v. Yolo Co. Consol. Water Co., 6 Cal. App. 646 (1908), 384, 652. Lucas v. Herbert, 148 Ind. 64 (1897), 484. Lucas v. Michigan Central Ry. Co., 98 Mich. 1 (1893), 886. Lucas v. Milwaukee & St. P. Ry. Co., 33 Wis. 41 (1873), 763, 764. Lucas v. New Bedford & T. R. R. Co., 6 Gray (Mass.), 64 (1856), 372. Lucas v. Taunton & N. B. R. R. Co., 6 Gray, 64 (1856), 369, 372. Lucia v. Omel, 53 N. Y. App. Div. 641 (1900), 611, 965. Lucy v. Chicago Gt. W. R. R. Co., 64 Minn. 7 (1896), 934. Luke v. Lyde, 2 Burr. 882 (1759), 1265. Lumbard v. Stearns, 4 Cush. 60 (1849), 32, 92, 242. Lumber Co. v. Railroad Co., 136 N. C. 479, 1077. Lilmsden v. L. A. Thompson S. R. R. Co., 130 App. Div. 209 (1909), 195. [cxli] TABLE OF CASES CITED [References are to sections] Lundquist v. Gr. Tr. W. Ry. Co., 121 Fed. 915 (1901), 696. Lusk v. Belote, 22 Minn. 468 (1876), 365, 964. Lyles v. Western Union Tel. Co., 77S.C. 174 (1906), 765, 1041. Lyman v. Suburban R. R. Co., 190 111. 320 (1901), 811. Lynch v. Met. El. Ry. Co., 90 N. Y. 77 (1882), 866. Lyne v. Western Union Tel. Co., 123 N. C. 129 (1898), 1041. Lyon, The, 1 Brown's Admr. 59 (1861), 173, 774. Lyon v. Smith, Morris, 184 (1843), 203, 213, 233, 234, 240, 968. Lyons v. N. Y. Cent. R. R. Co., 120 N. Y. S. 1132 (1909), 1045. M Mabb v. Stewart, 133 Cal. 556 (1901), 378. Mace v. Southern Ry. Co., 151 N. C. 404 (1909), 889. Mackey v. Western Union Tele- graph Co., 16 Nev. 222 (1881), 851. Mackin v. Boston & A. R. R. Co., 135 Mass. 201 (1883), 529. Mackin v. Portland Gas Co., 38 Oreg. 120 (1900), 111, 452, 453, 458. Maclaren v. Detroit & M. R. R. Co., 23 Wis. 138 (1868), 914. Macon & W. R. R. Co. v. John- son, 38 Ga. 409 (1868), 862, 882. Macon, D. & S. R. R. Co. v. Graham & Ward, 117 Ga. 555 (1903), 102, 232, 487, 811. Macon Grocery Co. v. Atlantic Coast Line Ry. Co., 163 Fed. 738 (1908), 1129. [ cxlii ] Macrow v. Great Western Ry. Co., L. R. 6 Q. B. 612 (1871), 875. McAbsher v. Richmond & D. R. R. Co., 108 N. C. 344 (1891), 831, 833, 922. McAllan v. Hamblin, 129 Iowa, 329 (1906), 264. McAndrew v. Electric Telegraph Co., 17 C. B. 3 (1855), 766, 1014. McAndrew v. Whitlock, 52 N. Y. 40 (1873), 1043. McArthur v. Green Bay & M. Canal Co., 34 Wis. 139 (1874), 122, 599. McArthur v. Sears, 21 Wend. 190 (1839), 172, 985. McBee v. Carolina Central Ry. Co., 89 N. C. 311 (1883), 1011. McCabe v. Narragansett Electric Co., 26 R. I. 427 (1904), 983. McCarter v. Greenville Tr. Co., 72 S. C. 134 (1905), 754, 890. McCarthy v. Humphrey, 105 Iowa, 535 (1898), 377. McCarthy v. Louisville & N. R. R. Co., 102 Ala. 193 (1893), 414, 991. McCarthy v. New York & Erie Ry. Co., 30 Pa. St. 247 (1858), 1036, 1037. McCarty v. Gulf, C. & S. F. Ry. Co., 79 Tex. 33 (1890), 723, 1023. McCarty v. Houston & T. C. Ry. Co. (Tex. Civ. App.), 54 S. W. 421 (1899), 978. McCaul v. Telegraph Co., 114 Tenn. 661 (1905), 874, 1041. McCauley v. Tennessee, C. I. & R. R. Co., 93 Ala. 356 (1890), 762, 882. TABLE OF CASES CITED [References are to sections] McClary v. Sioux City & P. R. R. Co., 3 Neb. 44 (1873), 904. McCleary v. Babcock, 169 Ind. 228 (1907), 176. McCleneghan v. Brock, 5 Rich. L. 17 (1851), 183. McCluer v. Manchester & L. R. R. Co., 13 Gray, 124 (1859), 740. McClure v. Krumbholz, 9 Pa. Dist. R. 544 (1900), 263. M'Clures v. Hammond, 1 Bay, 99 (1790), 167, 172. McConnell v. Pedigo, 92 Ky. 465 (1892), 485. McCook v. Northrup, 65 Ark. 225 (1898), 878, 885. M'Cook Water Works Co. v. M'Cook, 85 Neb. 677 (1909), 1150. McCoy & P. v. Erie & West. Transp. Co., 42 Md. 498 (1875), 1007. McCoy v. Railroad Co., 44 Iowa, 424 (1876), 256. McCrae v. Canada Pac. Ry. Co. (Mont.), L. R. 4 S. C. 186 (1888), 207. McCrary v. Beaudry, 67 Cal. 120 (1885), 242. McCullough v. Hellweg, 66 Md. 269 (1886), 1266. McCune v. Norwich Gas Co., 30 Conn. 521 (1862), 31, 111. McDade v. Norfolk & W. Ry. Co., 68 W. Va. 378 1044. McDaniel v. Faubush Telephone Co., 32 Ky. L. Rep. 572 (1908), 21. McDaniel v. Waterworks, 48 Mo. App. 273 (1892), 452. McDaniels v. Robertson, 28 Vt. 387 (1856), 1032. McDaniels v. Robinson, 26 Vt. 316 (1854), 1032. McDermon v. Southern Pacific Co., 122 Fed. 669 (1903), 779. McDermont v. Anaheim Union Water Co., 124 Cal. 112 (1899), 652. McDonald v. Edgerton, 5 Barb. 560 (1849), 770, 1032. McDonough v. Boston Elevated Ry. Co., 191 Mass. 509 (1906), 864, 882. McDuffee v. Portland & R. R. R. Co., 52 N. H. 430 (1873), 475, 479, 690, 1286, 1289, 1303, 1304. McDuffie v. Seaboard A. L. Ry. Co., 145 N. C. 397 (1908), 408, 722. McEacheran v. Michigan Central R. R. Co., 101 Mich. 264 (1894), 1017. McEntee v. Kingston Water Co., 165 N. Y. 27 (1900), 458, 866. McEntee v. New Jersey Steam- boat Co., 45 N. Y. 34 (1871), 1046. McEwan v. Pennsylvania, N. J. & N. Y. Ry. Co., 72 N. J. L. 419 (1905), 128. McFadden v. County of Los An- geles, 74 Cal. 571 (1888), 242. McFadden v. Missouri, Pacific R. R. Co. 92 Mo. 343 (1887), 963. McGearty v. Manhattan Ry. Co., 15 App. Div. 2 (1897), 945. McGee v. Missouri Pacific R. R. Co., 92 Mo. 208 (1887), 763, 864. McGhee v. Reynolds, 129 Ala. 540 (1900), 889. [ cxliii ] TABLE OF CASES CITED [References are to sections] McGill v. Rowand, 3 Barr. 451 (1846), 185. McGilvray v. West End St. Ry. Co., 164 Mass. 122 (1895), 939. McGinnis v. Missouri Pacific Ry. Co., 21 Mo. App. 399 (1886), 935. McGowan v. New York City Ry. Co., 99 N. Y. Supp. (App. Div.) 835 (1906), 862. McGowan v. Wilmington & W. R. R. Co., 95 N. C. 417 (1886), 913. McGowen v. Morgan's La. & Tex. R. R. & S. S. Co., 41 La. Ann. 732 (1889), 887, 888. McGrath v. Eastern Ry. Co., 74 Minn. 363 (1898), 944. McGraw v. Baltimore & 0. R. R. Co., 18 W. Va. 361 (1881), 665, 842, 902, 916, 917, 988. McGregor v. Kilgore, 6 Ohio, 359 (1834), 17 McGuinn v. Forbes, 37 Fed. 639 (1889), 566. McHenry v. Philadelphia, W. & V. R. R. Co., 4 Harr. 448 (1846), 1036. McHugh v. Schlosser, 159 Pa. St. 480 (1894), 631, 632, 638, 933. Mclntosh v. Augusta & A. Ry. Co. (S. C.), 69 S. E. 159 (1910), 626, 880. Mclntosh v. Oregon Ry. & Nav. Co., 17 Idaho, 100 (1909), 253, 1011. McKay v. Ohio R. R. R. Co., 34 W. Va. 65 (1890), 890. M'Kean v. M'lvor, L. R. 6 Ex. 36 (1870), 1049. McKee v. Owen, 15 Mich. 115 (1866), 769. [ cxliv ] McKenzie v. Michigan Central R. R. Co., 137 Mich. 112 (1904), 902. McKeon v. Chicago, M. & St. P. Ry. Co., 94 Wis. 477 (1896), 932. McKibbin v. Great Northern Ry. Co., 78 Minn. 232 (1899), 876. McKibbin v. Wisconsin Central Ry. Co., 100 Minn. 270 (1907), 769. McKinley v. Chicago & N. W. Ry. Co., 44 Iowa, 314 (1877), 844, 881. McKone v. Michigan C. R. R. Co., 51 Mich. 601 (1883), 369, 372. McLain v. St. Louis & G. Ry. Co., 131 Mo. App. 733 (1908), 845. McLean v. Interurban St. Ry. Co., 102 N. Y. App. Div. 18 (1905), 347. McLean v. Rutherford, 8 Mo. 109 (1843), 875. McLeod v. Pacific Telephone Co., 52 Oreg. 22 (1908), 980. McLeod v. Savannah, Albany & Gulf R. R. Co., 25 Ga. 445 (1858), 241. M'Manus, Ex parte, 6 Austral. L. T. (Viet.) 12 (1884), 751. McMaster v. Pennsylvania R. R. Co., 69 Pa. St. 374 (1871), 1042. McMeekin v. Central Carolina Power Co., 80 S. C. 512 (1908), 114. McMillan v. Chicago, R. I. & O. Ry. Co. (Iowa), 124 N. W. 1069 (1910), 519, 529, 1033. McMillan v. Michigan S. & N. I. R. R. Co., 16 Mich. 79 (1867), 338, 1002, 1012. TABLE OF CASES CITED References are to sections] McMillian v. Federal St. & P. V. Pass. Ry. Co., 172 Pa. St. 523 (1896), 865, 882. McNamara v. Gt. Northern Ry. Co., 61 Minn. 296 (1895), 745. McNees v. Missouri Pacific R. R. Co., 22 Mo. App. 224 (1886), 1287. McNcill v. Durham & C. R. R. Co., 132 N. C. 510 (1903), 1295, 1363. McNeill v. Southern Ry. Co., 202 U. S. 543 (1906), 836, 1415. McNulty v. Pennsylvania R. R. Co., 182 Pa. St. 479 (1897), 784, 1016. McPadden v. New York Central Ry. Co., 44 N. Y. 478 (1871), 966. McPeck v. Western Union Tele- graph Co., 107 Iowa, 356 (1899), 874, 1041. McQuerry v. Metropolitan St. Ry. Co., 117 Mo. App. 255 (1903), 879, 939. McRae v. Canadian Pacific Ry. Co. (Montreal), L. R. 4 S. C. 186 (1888), 762. McRae v. Wilmington & W. R. R. Co., 88 N. C. 526 (1883), 865. MacVeagh v. Atchison, T. & S. F. R. R. Co., 3 N. M. 205 (1885), 1036, 1046. McVeety v. St. Paul, M. & M. Ry. Co., 45 Minn. 268 (1891), 745. McWhorter v. Pensacola & A. R. R. Co., 24 Fla. 417 (1888), 1409. Mac Williams v. Lake Shore & M. S. Ry. Co., 146 Mich. 216 (1906), 942. 10 Madison v. Madison Gas & Elec- tric Co., 129 Wis. 249 (1906), 111,113,215,1216. Madison v. Morristown Gaslight Co., 65 N. J. Eq. 356 (1903), 273, 274. Maffet v. Quine, 93 Fed. 347 (1899), 62. Magee v. Pacific Improvement Co., 98 Cal. 678 (1893), 751. Maggie Hammond, The, 9 Wall. (U. S.) 435 (1869), 165, 905, 906, 921. Maghee v. Camden & A. R. R. Tr. Co., 45 N. Y. 514 (1871), 905, 908, 921, 1017. Maginnis v. Knickerbocker Ice Co., 112 Wis. 385 (1901), 223. Magruder v. Cumberland Tele- phone & T. Co., 92 Miss. 716 (1908), 438. Mahan v. Michigan Telephone Co., 132 Mich. 242 (1903), 215, 216. Mahon v. Blake, 125 Mass. 477 (1878), 1048. Majestic Coal & C. Co. v. Illinois Central R. R. Co., 162 Fed. 810 (1908), 857. Majestic, The, 166 U. S. 375 (1897), 1004. Mallon v. Board of Water Comrs., 144 Mo. App. 104 (1910), 825. Malochee v. Gt. So. Telephone & T. Co., 49 La. Ann. 1690 (1897), 431, 442. Maloney v. Bacon, 33 Mo. App. 501 (1888), 730. Mallory v. Tioga R. R. Co., 39 Barb. (N. Y.) 488 (1862), 775. Malott v. Central Trust Co., 168 Ind. 428 (1906), 777. [ cxlv ] TABLE OF CASES CITED [References are to sections] Manchester & L. R. R. Co. v. Concord R. R. Co., 66 N. H. 100 (1889), 694. Manistee River Improvement Co. v. Lamport, 49 Mich. 442 (1882), 72, 123. Mann Boudoir Car Co. v. Dupre, 54 Fed. 646 (1893), 832, 845. Mann v. Pere Marquette R. R. Co., 135 Mich. 210 (1903), 403, 822, 1015, 1043. Mann v. White River Log & Booming Co., 46 Mich. 38 (1881), 55, 972. Mann & W. v. Birchard & P., 40 Vt. 326 (1867), 1011. Manning v. City of Devils Lake, 13 N. D. 47 (1904), 241. Manning v. Louisville & N. R. R. Co., 95 Ala. 392 (1891), 433, 1257, 1258. Manufacturers' Coal Rates Case, 3 Can. Ry. Cas. 427 (1904), 1334. Manville v. Cleveland & T. R. R. Co., 11 Ohio St. 417 (1860), 783. Maples v. New York & N. H. R. R. Co., 38 Conn. 557 (1871), 440, 886. Margaret, The, 94 U. S. 494 (1876), 173, 774. Markham v. Brown, 8 N. H. 523 (1837), 106, 370, 493, 628, 630, 631, 632. Marquette, H. & 0. R. R. Co. v. Kirk wood, 45 Mich. 51 (1880), 513. Marsh v. Union Pacific Ry. Co., 3 M'Crary, 236 (1882), 908. Marshall v. American Express Co., 7 Wis. 1 (1858), 1040. [ cxlvi ] Marshall v. Nashville R. & Light Co., 118 Tenn. 254 (1906), 786, 1018. Marshall v. New York Central R. R. Co., 45 Barb. (N. Y.) 502 (1866), 840, 914, 1045. Marshall v. Pontiac, O. & N. R. R. Co., 126 Mich. 45 (1901), 875. Marshall v. York N. & B. Ry. Co., 11 C. B. 655 (1851), 341. Marshall & A. v. Kansas City, Ft. S. & M. Ry. Co., 74 Mo. App. 81 (1898), 1017. Martin, The D. R., 11 Blatch. 233 (1873), 362, 472, 498. Martin v. Columbia & G. R. R. Co., 32 S. C. 592 (1890), 872. Martin v. Gt. Northern Ry. Co., 110 Minn. 118 (1910), 665, 803, 854, 885. Martin v. Southern Ry. Co., 51 S. C. 150 (1897), 759. Martin v. Western Union Tele- graph Co.', 81 S. C. 432 (1908), 1041. Mary Ann Guest, The, Olcott, 498, Fed. Cas. No. 9,197 (1847), 1046. Maryland Telephone Co. v. Sim- mons Sons Co., 103 Md. 137 (1906), 1123, 1430. Maslin v. Baltimore & O. R. R. Co., 14 W. Va. 180 (1878), 160, 1011, 1012, 1022. Mason v. Grand Trunk Ry. Co., 37 Upp. Can. Q. B. 163 (1875), 1031. Mason v. Missouri Pacific Ry. Co., 25 Mo. App. 473 (1887), 393, 727. Mason v. Thompson, 9 Pick. 280 (1830), 263, 965, 984. TABLE OF CASES CITED [References are to sections] Massengale v. Western Union Telegraph Co., 17 Mo. App. 257 (1885), 1025. Massiter v. Cooper, 4 Esp. 260 (1803), 402, 735. Matere v. Brown, 1 Cal. 221 (1850), 965. Mathis v. Southern Ry. Co., 65 S. C. 271 (1902), 796, 833, 922. Mathis v. Western Union Tele- graph Co., 94 Ga. 338 (1894), 338, 412. Matter of, see the particular matter by name. Matthews v. Associated Press, 136 N. Y. 333 (1893), 138. Matthews v. Board of Corpora- tion Commrs., 106 Fed. 7 (1901), 1141. Mauldin v. City Council of Greenville, 33 S. C. 1 (1898), 218. Mauldin v. Seaboard Air Line Ry. Co., 73 S. C. 9 (1905), 799, 802. Maunheim Ins. Co. v. Erie & W. Tr. Co., 75 Minn. 357 (1898), 1294. Maving v. Todd, 4 Campb. 225 (1815), 164. Maxwell v. Gerard, 84 Hun, 537 (1895), 1034. May v. Manson, 5 Cal. 360 (1855), 182, 771. May v. Ontario & Q. Ry. Co., 10 Ont. Rep. 70 (1885), 783. Mayhew v. Eames, 3 B. & C. 601 (1825), 1001. Mayo v. Village Fire Co., 96 Me. 539 (1902), 274. Mayor of, see the particular city by name. Mayor v. New England Transfer Co., 14 Blatch. 159 (1887), 127. Mayor v. Norwich & W. R. R. Co., 109 Mass. 103 (1871), 805. Mayor v. Yuille, 3 Ala. 137 (1841), 10. Mays v. Seaboard Air Line Ry. Co., 75 S. C. 455 (1906), 403, 404, 819, 820. Meacham v. Galloway, 102 Tenn. 415 (1899), 365, 751, 969. Means v. Carolina Central Ry. Co., 124 N. C. 574 (1899), 763. Mearns v. Central R. R. of N. J., 163 N. Y. 108 (1900), 932. Mears v. New York, N. H. & H. Ry. Co., 75 Conn. 171 (1902), 1003, 1005, 1017. Mechanics' & T. Bk. v. Gordon, 5 La. Ann. 604 (1850), 255, 743, 792. M. E. Church v. Ashtabula Water Co., 20 Ohio C. C. 578 (1900), 264. Medawar v. Grand Hotel, 2 Q. B. 11 (1891), 432, 1034. Meier v. Pennsylvania R. R. Co., 64 Pa. St. 225 (1870), 189. Meisner v. Detroit, B. I. & W. Ferry Co., 154 Mich. 545 (1908), 117, 237, 241, 559. Mellor v. Missouri Pacific Ry. Co., 105 Mo. 455 (1891), 777. Mellquist v. The Wasco, 53 Fed. 546 (1892), 442. Meloche v. Chicago, M. & St. P. Ry. Co., 116 Mich. 69 (1898); 727. Memphis & Charleston R. R. Co. v. Benson, 85 Tenn. 627 (1887), 800, 881, 844, 882. [ cxlvii ] TABLE OF CASES CITED [References are to sections] Memphis, etc., R. R. Co. v. Chastine, 54 Miss. 503 (1877), 441. Memphis Consol. Gas & E. Co. v. Letson, 68 C. C. A, 453 (1905), 983. Memphis Freight Co. v. Mayor, etc., of Memphis, 4 Cold. 419 (1867), 101, 232. Memphis News Publishing Co. v. Southern Ry. Co., 110 Tenn. 684 (1903), 204, 253, 499, 689, 750. Menacho v. Ward, 27 Fed. 529 (1886), 681, 685, 1286, 1287, 1327. Menaugh v. Bedford Belt Ry. Co., 157 Ind. 20 (1901), 207. Mendenhall v. Atchison, T. & S. F. Ry. Co., 66 Kans. 438 (1903), 746. Mener v. Chicago, M. & St. P. Ry. Co., 5 S. D. 568 (1894), 1001, 1010. Mercantile M. & Ins. Co. v. Chase, 1 E. D. Smith, 115 (1850), 180. Mercantile Trust Co. v. Colum- bus, S. & H. R. R. Co., 90 Fed. 148 (1898), 404, 816, 822. Merchants' & M. Tr. Co. v. Granger & L., 132 Ga. 167 (1909), 408. Merchants' Bk. v. New Jersey Steam Nav. Co., 6 How. (U. S.) 344 (1848), 1017. Merchants' C. P. & S. Co. v. In- surance Co. of N. A., 151 U. S. 368 (1894), 1295. Merchants' Dispatch Co. v. Bolles, 80 III. 473 (1875), 180, 737. [ cxlviii ] Merchants' Dispatch Co. v. Corn- forth, 3 Colo. 280 (1877), 180, 776, 795, 1011. Merchants' Dispatch Transp. Co. v. Furthmann, 149 111. 66 (1893), 1003. Merchants' Dispatch Co. v. Joest- ing, 89 111. 153 (1878), 180. Merchants' Dispatch Co. v. Ley- sor, 89 111. 43 (1878), 180. Merchants' Dispatch Co. v. Smith, 76 111. 542 (1875), 985. Merchants' Dispatch Transporta- tion Co. v. Kahn, 76 111. 520 (1875), 905, 921. Merchants' Transportation Co. v. Bloch Bros., 86 Tenn. 392 (1888), 180, 181, 512, 1017. Merchants' Wharfboat Assoc. v. Wood, 64 Miss. 661 (1887), 599, 917. Mercur v. Media Electric Light Co., 19 Pa. Sup. Ct. 519 (1902), 113. Meredith v. Railroad Co., 137 N. C. 478 (1905), 901. Merriam v. Hartford & N. H. R. R. Co., 20 Conn. 354 (1850), 393, 409, 733, 727. Merrich v. Brainard, 38 Barb. 574 (1860), 173, 774. Merrick v. Webster, 3 Mich. 268 (1854), 906. Merrill v. American Express Co., 62 N. H. 514 (1883), 1003. Merrill v. Eastern R. R. Co., 139 Mass. 238 (1885), 395, 736, 760, 761, 945. Merrill v. Southside Irr. Co., 112 Cal. 426 (1896), 384, 652. Merrimac, The, 2 Sawyer, 586 (1874), 173, 774. Merrimack Bank v. Lowell, 152 Mass. 556 (1891), 451. TABLE OP CASES CITED [References are to sections] Merriman v. Great Northern Exp. Co., 63 Minn. 543 (1896), 601. Merritt v. Earle, 29 N. Y. 115 (1864), 985. Merritt v. Old Colony & N. Ry. Co., 11 Allen (Mass.), 80, 83 (1865), 731. Mershon v. Hobensack, 22 N. J. L. 372 (1850), 160, 229, 963. Merwin v. Butler, 17 Conn. 138 (1845), 184, 262. Merz v. Chicago & N. W. Ry. Co., 86 Minn. 33 (1902), 910. Messenger v. Pennsylvania R. R. Co., 7 Vroom (36 N. J. L.), 407 (1874), 1290, 1291, 1312, 1341. Metcalf v. Hess, 14 111. 129 (1852) 965. Metcalf v. Yazoo & M. V. Ry. Co. (Miss.), 52 So. 355 (1910), 402. Metropolitan Electric Co. v. Ginder, 2 Ch. D. 799 (1901), 1240, 1321, 1338. Metropolitan Co. v. Houston & T. C. R. R. Co., 90 Fed. 683 (1898), 1066, 1082, 1089, 1090, 1108, 1136, 1138, 1341, 1160, 1409. Metropolitan Trust Co. of New York v. Toledo, St. L. & K. C. Ry. Co., 107 Fed. 628 (1901), 1023. Metz v. Cape Girardeau Water Works Co., 202 Mo. 324 (1907), 350. Metzger v. Schnabel, 23 N. Y. Misc. 698 (1898), 365, 751. Meuer v. Chicago, M. & St. P. Ry. Co., 5 S. D. 568 (1894), 780. Mexican Nat. R. R. Co. v. Savage (Tex. Civ. App.), 41 S. W. 663 (1897), 1415. Meyer v. Dresser, 10 C. B. (N. S.) 646 (1864), 1269. Meyer v. St. Louis, I. M. & S. Ry. Co., 54 Fed. 116 (1893), 638, 639, 934. Meyers v. Hudson County Elec- tric Co., 63 N. J. L. 573 (1899), 71. Michaels v. New York C. R. R. Co., 30 N. Y. 564 (1864), 918. Michalitschke Bros. & Co. v. Wells, F. & Co., 118 Cal. 683 (1897), 1020. Michie v. New York, N. H. & H. R. Co., 151 Fed. 694 (1907), 813. Michigan Box Co. v. Flint & P. M. R. R., 6 I. C. C. Rep. 335 (1897), 1237. Michigan Central R. R. Co. v. Burrows, 33 Mich. 6 (1875), 836, 914, 916, 917. Michigan Central R. R. Co. v. Carrow, 73 111. 348 (1874), 875, 876, 971. Michigan Central R. R. Co. v. Curtis, 80 111. 324 (1875), 665, 842, 916. Michigan Central R. R. Co. v. Lantz, 32 Mich. 502 (1875), 1036. Michigan Central R. R. Co. v. Pere Marquette R. R. Co., 128 Mich. 333 (1901), 698. Michigan Central R. R. Co. v. Smithson, 45 Mich. 212 (1881), 529. Michigan Central R. R. Co. v. Ward, 2 Mich. 538 (1853), 1038, 1039, 1042. Michigan Southern R. R. Co. v. McDonough, 21 Mich. 165 (1870), 256, 967. [ cxlix ] TABLE OF CASES CITED [References are to sections] Michigan S. & N. I. R. R. Co. v. Day, 20 111. 375 (1858), 518, 901, 1053. Michigan S. & N. I. R. R. Co. v. Shurtz, 7 Mich. 515 (1859), 393, 726. Midland Nat. Bank v. Missouri Pacific Ry. Co., 132 Mo. 492 (1896), 1045. Midland V. R. R. Co. v. Hoffman Coal Co., 91 Ark. 180 (1909), 804. Millard v. Missouri, K. & T. R. R. Co., 86 N. Y. 441 (1881), 876. Milledgeville Water Co. v. Ed- wards, 121 Ga. 555 (1904), 690, 701. Miller & Co. v. Georgia R. R. & Banking Co., 88 Ga. 563 (1891), 861, 1050. Miller v. Federal Coffee Palace, 15 Victorian Law R. 30 (1889), 263. Miller v. Mansfield, 112 Mass. 260 (1873), 1050. Miller v. Peeples, 60 Miss. 819 (1883), 1032: Miller Bros. v. Railway Co., 33 S. C. 359 (1890), 1033. Miller v. Southern Ry. Co., 69 S. C. 116 (1903), 904. Miller v. St. Louis R. R. Co., 5 Mo. App. 471 (1878), 932. Miller v. Wilkes-Barre Gas Co., 206 Pa. St. 254 (1903), 456. Milliken v. Western Union Tele- graph Co., 110 N. Y. 403 (1888), 348. Milliraan v. New York C. & H. R. R. R. Co., 66 N. Y. 642 (1876), 632. Milloy v. Grand Trunk Ry. Co., 21 Ont. App. 404 (1894), 726. [cl] Mills v. Seattle, Renton & S. R. Co., 50 Wash. 20 (1908), 878. Millville Improvement Co. v. Pitman G. & C. Gas Co., 75 N. J. L. 410 (1907), 274. Miltimore v. Chicago & N. W. R. R. Co., 37 Wis. 190 (1875), 414, 530, 991. Milwaukee Elec. Ry. & L. Co. v. Milwaukee, 87 Fed. 577 (1898), 189, 1081, 1089, 1108, 1123, 1132, 1138, 1162, 1166, 1171, 1173, 1430. Milwaukee M. E. Co. v. Chicago, R. I. & P. Ry. Co., 73 la. 98 (1887), 600. Mims v. Seaboard Air Line Ry., 69 S. C. 338 (1904), 341. Minneapolis v. Minneapolis St. Ry. Co., 215 U. S. 417 (1910), 1424, 1425. Minneapolis & St. L. R. R. Co. v. Minnesota, 186 U. S. 257 (1902), 1063, 1124, 1157, 1175, 1201, 1210, 1405, 1430, 1431. Minneapolis & St. L. R. R. Co. v. Minnesota, 193 U. S. 53 (1904), 806. Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Commis- sion, 136 Wis. 146 (1908), 806, 809, 811, 812. Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Commis- sion, 137 Wis. 80 (1908), 1124. Minnehaha, The, 1 Lush, 335 (1861), 173, 774. Minnesota B. & C. Co. v. St. Paul Cold-Storage Ware- house Co., 75 Minn. 445 (1899), 143. TABLE OF CASES CITED [References are to sections] Minnesota C. & Power Co. v. Koochiching Co., 97 Minn. 429 (1906), 95, 114, 221. Minter v. Chicago, R. I. & P. Ry. Co., 82 Mo. App. 130 (1899), 901. Minter v. Pacific R. R. Co., 41 Mo. 503 (1867), 876. Mires v. St. Louis & S. F. Ry. Co., 134 Mo. App. 379 (1908), 1294. Mississippi Cent. Ry. Co. v. Ken- nedy, 41 Miss. 671 (1868), 876. Missouri & N. A. R. Co. v. Sneed, 85 Ark. 293 (1908), 794. Missouri, K. & T. Ry. Co. v. Allen, 39 Tex. Civ. App. 236 (1905), 1024. Missouri, K. & T. Ry. Co. v. Beard, 34 Tex. Civ. App. 188 (1904), 729. Missouri, K. & T. Ry. Co. v. Byrne, 100 Fed. 359 (1900), 813. Missouri, K. & T. Ry. Co. v. Car- ter, 9 Tex. Civ. App. 677 (1895), 1004. Missouri, K. & T. Ry. Co. v. Cook, 8 Tex. Civ. App. 376 (1894), 881. Missouri, K. & T. Ry. Co. v. Davis, 24 Okla. 677 (1909), 1011. Missouri, K. & T. Ry. Co. v. Dinsmore, 108 U. S. 30 (1882), 178, 776. Missouri, K. & T. Ry. Co. v. Fookes (Tex. Civ. App.), 49 S. W. 858 (1897), 1414. Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613 (1898), 1413. Missouri, K. & T. Ry. Co. v. Huff, 98 Texas, 110 (1904), 763. Missouri, K. & T. Ry. Co. v. Ken- drick (Tex. Civ. App.), 32 S. W. 42 (1895), 932, 935. Missouri, K. & T. Ry. Co. v. Kyser, 38 Tex. Civ. App. 355 (1905), 804. Missouri, K. & T. Ry. Co. v. Love, 177 Fed. 493 (1910), 1061, 1099, 1126, 1133, 1138, 1141, 1196, 1206, 1373. Missouri, K. & T. Ry. Co. v. May, 194 U. S. 267 (1904), 1436. Missouri, K. & T. Ry. Co. v. Mc- Cann, 174 U. S. 580 (1898), 511. Missouri, K. & T. Ry. Co. v. Miller, 8 Tex. Civ. App. 241 (1894), 369, 372. Missouri, K. & T. Ry. Co. v. New Era Milling Co. (Kan.), 100 Pac. 273 (1909), 524, 682, 1290. Missouri, K. & T. Ry. Co. v. Smith, 6 Ind. Terr. 99 (1905), 341, 438. Missouri, K. & T. Ry. Co. v. Smith, 152 Fed. 608 (1902), 341, 438, 447, 1259. Missouri, K. & T. Ry. Co. v. Trinity C. L. Co., 1 Tex. Civ. App. 553 (1892), 1333. Missouri, K. & T. Ry. Co. v. Truskett, 2 Ind. T. 633 (1899), 658, 909. Missouri, K. & T. Ry. Co. v. Wil- liams (Tex. Civ. App.), 40 S. W. 350 (1897), 759. Missouri, K. & T. Ry. Co. v. Williams, 91 Tex. 255 (1897), 759. [cli] TABLE OF CASES CITED [References are to sections] Missouri Pacific Ry. Co. v. Divin- ney, 66 Kans. 776 (1903), 939. Missouri Pacific Ry. Co. v. Evans, 71 Tex. 361 (1888), 632. Missouri Pacific Ry. Co. v. Hams, 1 W. & W. (Tex. Ct. App.), Dec., 1263, 252. Missouri Pacific Ry. Co. v. Har- ris, 67 Texas, 166 (1886), 256, 662. Missouri Pacific Ry. Co. v. Hoi- comb, 44 Kans. 332 (1890), 763. Missouri Pacific Ry. Co. v. Lar- abee Flour Mills Co., 211 U. S. 612 (1909), 821, 1416. Missouri Pacific Ry. Co. v. Levi (Tex. Ct. of App.), 14 S. W. 1062 (1889), 668, 912. Missouri Pacific Ry. Co. v. Ne- braska, 164 U. S. 403 (1896), 404, 820. Missouri Pacific Ry. Co. v. Ne- braska, 217 U. S. 196 (1910), 503, 820, 1434. Missouri Pacific Ry. Co. v. Nevill, 60 Ark. 375 (1895), 667, 987. Missouri Pacific Ry. Co. v. Peru- Van Zandt Imp. Co., 73 Kans. 295 (1906), 916. Missouri Pacific Ry. Co. v. Sher- wood, 84 Tex. 125 (1892), 1008. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221 (1895), 1063, 1201, 1407, 1431. Missouri Pacific Ry. Co. v. Texas & P. Ry. Co., 31 Fed. 862 (1886), 1222. Missouri Pacific Ry. Co. v. Texas & Pac. R. R. Co., 30 Fed. 2 (1887), 1286. [clii] Missouri Pacific Ry. Co. v. Texas & P. Ry. Co., 31 Fed. 864 (1887), 723, 833. Missouri Pacific Ry. Co. v. Tiet- ken, 49 Neb. 130 (1896), 780. Missouri Pacific Ry. Co. v. Weil, 8 Kans. App. 839 (1899), 1048. Missouri Pacific Ry. Co. v. Weis- man, 2 Tex. Civ. App. 86 (1893), 413, 431. Missouri Pacific Ry. Co. v. Wor- tham, 73 Tex. 25 (1889), 932. Missouri Pacific Ry. Co. v. Young, 25 Neb. 651 (1889), 514, 525. Mitchell v. Kansas City, C. & S. Ry. Co., 116 Mo. App. 116 (1906), 594. Mitchell v. Marker, 62 Fed. 139 (1894), 193. Mitchell v. Negaunee, 113 Mich. 359 (1897), 218. Mitchell v. Western Union Tel. Co., 12 Tex. Civ. App. (1896), 1014. Mittleman v. Philadelphia R. T. Co., 70 Atl. 828 (1908), 626. Mobile v. Bienville Water Supply Co., 130 Ala. 379 (1901), 68, 92, 218, 242, 705, 1290, 1300. Mobile & G. R. R. Co. v. Cope- land, 63 Ala. 219 (1879), 1033. Mobile & 0. R. R. Co. v. Dis- mukes, 94 Ala. 135 (1891), 1286. Mobile & 0. R. R. Co. v. Hop- kins, 41 Ala. 486 (1868), 786, 1018. Mobile & 0. R. R. Co. v. People ex rej., 132 111. 559 (1890), 808, 810. TABLE OF CASES CITED [References are to sections] Mobile & 0. R. R. Co. v. Tupelo, 67 Miss. 35 (1889), 1033. Mobile & 0. R. R. Co. v. Weiner, 49 Miss. 725 (1874), 1004. Mobile & 0. R. R. Co. v. Wis- dom, 5 Heisk. 125 (1871), 441. Mobile, J. & K. C. Ry. Co. v. Bay Shore L. Co. (Ala.), 51 So. 956 (1910), 1048. Mobile, J. & K. C. Ry. Co. v. Mississippi, 210 U. S. 187 (1908), 301. Mobile St. Ry. Co. v. Walters, 135 Ala. 227 (1902), 441. Moerder v. Fremont, 19 Ohio Cir. Ct. 394 (1899), 484. Moffat v. Gt. Western R. R. Co., 15 L. T. (N. S.) 630 (1867), 724. Mogul Steamship Co. v. Mc- Gregor, 21 Q. B. Diy. 544 (1892), 1287, 1328. Mohawk, The, 8 Wall. 153 (1868), 1047. Mohr & Smith v. Chicago & N. W. R. R. Co., 40 la. 579 (1875), 1036. Monnier v. New York C. & H. R. R. R. Co., 175 N. Y. 281 (1903), 888. Monopolies, Case of, 11 Coke, 84b (1603), 51. Montana, The, 22 Fed. 715 (1884), 165, 621. Montana Union Ry. Co. v. Lan- gois, 9 Mont. 419 (1890), 475, 476, 485. Montgomery v. Buffalo Ry. Co., 165 N. Y. 139 (1900), 882, 885. Montgomery & E. Ry. Co. v. Kolb, 73 Ala. 396 (1882), 409, 733. Montgomery Light & P. Co. v. Watts (Ala), 51 So. 726 (1909), 1251, 1354. Montgomery Light & Water P. Co. v. Citizens' L. H. & P. Co., 147 Ala. 359 (1906), 79. Montgomery St. Ry. Co. v. Mason, 133 Ala. 508 (1902), 1044. Montreal Gas Co. v. Cadieux, A. C. 589 (1899), 453. Montrose Pickle Co. v. Dodson & H. Mfg. Co., 76 Iowa, 172 - (1888), 1046. Moore v. Baltimore & 0. R. R. Co., 103 Va. 189 (1904), 796. Moore v. Champlain Electric Co., 88 N. Y. App. Div. 289 (1903), 273, 280, 1346. Moore v. Fitchburg R. R. Co., 4 Gray, 465 (1855), 890. Moore v. Long Beach Develop- ment Co., 87 Cal. 483 (1891), 751. Moore v. Michigan Central R. R. Co., 3 Mich. 23 (1853), 517, 1033. Moore v. St. Louis, I. M. & S. Ry., 67 Ark. 389 (1900), 757. Moore v. Western Union Tele- graph Co., 87 Ga. 613 (1891), 278. Moore-Cortes Canal Co. v. Gyle, 36 Tex. Civ. App. 442 (1904), 93. Morgan v. Insurance Co., 4 Dal- las (U. S.) 455 (1806), 1265. Morgan v. Ravey, 6 H. & N. 265 (1861), 964. Morgan v. Saks, 143 Ala. 139 (1904), 193. Morgan's L. & T. R. & S. S. Co. v. Railroad Commission, 109 La. 247 (1902), 806, 809, 812. [ cliii ] TABLE OF CASES CITED [References are to sections] Morning Star v. Louisville & N. R. R. Co., 135 Ala. 251 (1902), 446, 890. Morrill v. Minneapolis St. Ry. Co., 103 Minn. 362 (1908), 889. Morris & E. R. R. Co. v. Ayres, 29 N. J. L. 393 (1862), 1038, 1051. Morrison v. Davis, 20 Pa. St. 171 (1852), 917. Morrison v. Thistle Coal Co., 119 Iowa, 705 (1903), 225. Morrow v. Atlanta & A. L. Ry. Co., 134 N. C. 92 (1903), 369. Morse v. Canadian Pacific Ry. Co., 97 Me. 77 (1902), 1007. Morse v. Slue, 1 Mod. 85 (1671), 13, 391, 667, 987. Moses v. Boston & Maine R. R. Co., 24 N. H. 71 (1851), 393, 724, 726, 727, 1002. Moses v. Boston & Maine R. R. Co., 32 N. H. 523 (1856), 1001, 1037, 1038. Mosher v. Southern Exp. Co., 38 Ga. 37 (1868), 512, 1017. Moss v. Bettis, 4 Heisk. 661 (1871), 167, 228, 236, 968. Mott v. Cherryvale Water Co., 48 Kans. 12 (1892), 350. Mott v. Long I. Ry. Co., 123 N. Y. Supp. 49 (1910), 1048. Mottley v. Louisville & N. R. Co., 150 Fed. 406 (1907), 341, 1298, 1364. Moulton v. St. Paul, M. & N. Railroad Co., 31 Mum. 85 (1883), 256, 1022. Mountain v. Louisville & N. R. R. Co., 29 So. 602 (1900), 1005. Mt. Auburn Cemetery v. Cam- bridge, 150 Mass. 12 (1889), 69. [ Cliv ] Mt. Vernon Co. v. Alabama Gt. S. R. R. Co., 92 Ala. 296 (1890), 1053. Mudgett v. Bay State Steamboat Co., 1 Daly (N. Y.), 151 (1861), 769. Muehlhausen v. St. Louis R. R. Co., 91 Mo. 332 (1886), 623, 738, 745. Mugge v. Tampa Water Works Co., 52 Fla. 371 (1906), 350. Muldoon v. Seattle City Ry. Co., 7 Wash. 528 (1893), 786, 1011, 1018. Muldowney v. Pittsburg & B. Tr. Co., 8 Pa. Super. Ct. 335 (1898), 439, 877. Mullan v. Wisconsin C. Ry. Co., 46 Minn. 474 (1891), 942. Mulligan v. Illinois Central Ry. Co., 36 Iowa, 181 (1873), 1003. Mulligan v. Northern Pacific Ry. Co., 4 Dak. 315 (1886), 726. Mulliner v. Florence, 3 Q. B. D. 484 (1878), 431. Mulrooney v. Obear, 171 Mo. 613 (1903), 379, 690, 701. Munn v. Illinois, 94 U. S. 113 (1876), 19, 65, 97, 141, 186, 202, 232, 293, 294, 1121, 1401, 1402, 1407, 1427. Munster v. South Eastern Ry. Co., 4 C. B. (N. S.) 676 (1858), 413, 769. Murch v. Concord R. R. Corp., 29 N. H. 9 (1854), 763. Murchison v. Sargent, 69 Ga. 206 (1882), 1001. Murdock v. Boston & Albany R. R. Co., 137 Mass. 293 (1884). 889. TABLE OF CASES CITED [References are to sections] Murphy v. Great Northern Ry. Co., 2 L. R. Irish. 301 (1897), 943. Murphy v. Innes, 11 So. Aus- tralia, 56 (1877), 364. Murphy v. Western & A. R. R. Co., 23 Fed. 637 (1885), 942. Murphey Hardware Co. v. South- ern Ry. Co., 150 N. C. 703 (1909), 670, 688, 912. Murray v. International Steam- ship Co., 170 Mass. 166 (1898), 769. Murray v. Marshall, 9 Col. 482 (1896), 1034. Muschamp v. Lancaster & Pres- ton Junction Ry. Co., 8 M. & W. 421 (1841), 512. Myers v. Brooklyn Heights R. R. Co., 10 App. Div. 335 (1896), 347. Myers v. Pennsylvania Co., 2 Int. Com. Rep. 403 (1889), 1237. Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 N. Y. 180 (1877), 1009, 1012. Myrick v. Michigan R. R. Co., 9 Biss. 44 (1879), 1033. Myrick v. Michigan Cent. R. R. Co., 107 U. S. 102 (1882), 256. Mystic Milling Co. v. C., M. & St. P. Ry. Co., 131 Iowa, 10 (1906), 448. N Nairin v. Kentucky Heating Co., 27 Ky. L. R. 551 (1900), 112, 265, 594, 595, 792. Nanson v. Jacob, 93 Mo. 331 (1887), 514, 544. Napman v. People, 19 Mich. 352 (1869), 484. Nash v. Page, 80 Ky. 539 (1882), 142, 146, 293. Nashua Lock Co. v. Worcester & N. R. R. Co., 48 N. H. 339 (1869), 512. Nashua & L. R. R. Corp. v. Bos- ton & L. R. R. Corp., 136 U. S. 356 (1890), 1162. Nashville, C. & St. L. Ry. Co. v. Grayson County Nat. Bank, 100 Tex. 17 (1906), 1045. Nashville, C. & St. L. Ry. Co. v. Moore, 148 Ala. 63 (1906), 879. Nashville, C. & St. L. Ry. Co. v. State, 137 Ala. 439 (1902), 806. Nashville, C. & St. L. Ry. Co. v. Stone & H., 112 Tenn. 348 (1904), 985, 1005. Nashville Street Ry. Co. v. Griffin, 104 Tenn. 81 (1900), 401, 403, 868, 870. Nashville & C. R. R. Co. v. Jack- son, 6 Heisk. 271 (1871), 256. Nashville, etc., R. R. Co. v. Mes- sino, 1 Sneed, 220 (1853), 207, 756, 762. Nassau E. Ry. Co. v. Corliss, 126 Fed. 355 (1903), 864. Natchez & Jackson R. R. Co. v. McNeil, 61 Miss. 434 (1884), 795. National Bank of Commerce v. Chicago, B. & N. R. R. Co., 44 Minn. 224 (1890), 747, 1047. National Car Advertising Co. v. Louisville & N. R. R. Co., 110 Va. 413(1909), 503. National Docks Ry. Co. v. Cen- tral R. R. Go., 32 N. J. Eq. 755 (1880), 129. [dv] TABLE OF CASES CITED [References are to sections] National Tel. News Co. v. West- ern Union Telegraph Co., 119 Fed. 294 (1902), 494, 624. Naugatuck R. R. Co. v. Water- bury Button Co., 24 Conn. 468 (1856), 513. Neaffie, The, 1 Abb. (U. S.) 465 (1870), 774. Nebraska Meal Mills v. St. Louis S. W. Ry. Co., 64 Ark. 169 (1897), 1045. Nebraska Telephone Co. v. Cor- nell, 59 Neb. 737 (1900), 1128, 1404. Nebraska Telephone Co. v. State, 55 Neb. 627 (1898), 136. Nellis v. New York Central R. R. Co., 30 N. Y. 505 (1864), 873, 1343. Nelson v. Bolat, 180 Fed. 779 (1910), 560, 611. Nelson v. Gt. Northern R. R. Co., 28 Mont, 297 (1903), 656, 1020. Nelson v. Johnson, 104 Minn. 440 (1908), 263. Nelson v. Woodruff, 1 Black, 156 (1861), 988. Nettles v. South Carolina Ry. Co., 7 Rich. L. 190 (1854), 915. Nevin v. Pullman Palace Car Co., 106 111. 222 (1883), 624, 884. Newark, City of, v. Newark Wa- terworks Co., 4 Ohio N. P. 341 (1897), 865, 1251. Newark & S. 0. R. R. Co. v. Mc- Cann, 58 N. J. L. 642 (1896), 638. Newborn v. Just, 2 C. & P. 76 (1825), 1001. New Brunswick & Canada Ry. Co., 1 Pugsley & Burbridge, 667 (1878), 310. [civil New Brunswick S. B. & C. Co. v. Tiers, 24 N. J. L. 697 (1853), 985. New Central Coal Co. v. George's Creek C. & I. Co., 37 Md. 537 (1872), 223. New England, The, 110 Fed. 415 (1901), 1010. New England Express Co. v. Maine Central R. R. Co., 57 Me. 188 (1869), 176, 214, 479, 1289. New Jersey City & B. Ry. Co. v. Morgan, 52 N. J. L. 60 (1889), 886. New Jersey R. R. & Transp. Co. v. Pennsylvania R. R. Co., 27 N. J. L. 100 (1858), 775. New Jersey Steam Nav. Go. v. Merchants' Bank, 6 How. 344 (1848), 1002. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637 (1886), 938. New Memphis G. & L. Co. v. Memphis, 72 Fed. 952 (1896), 1123, 1132, 1410, 1430. New Mexico ex rel. v. Denver & R. G. R. R. Co., 203 U. S. 38 (1906), 1418. New Orleans I. & Gt. N. R. R. Co. v. Tyson, 46 Miss. 729 (1872), 1038, 1039, 1042. New Orleans & N. E. R. R. Co. v. George, 82 Miss. 710 (1903), 1050. New Orleans & N. E. R. R. Co. v. Thomas, 60 Fed. 379 (1894), 760. New Orleans Gas Light Co. v. Paulding, 12 Rob. 378 (1845), 111, 377, 456. TABLE OF CASES CITED [References are to sections] New Orleans, J. & G. N. R. R. Co. v. Statham, 42 Miss. 607 (1869), 635, 933. New Orleans, M. & T. Ry. Co. v. Southern & A. Telegraph Co., 53 Ala. 211 (1875), 56, 133. New Orleans, St. L. & C. R. R. Co. v. Burke, 53 Miss. 200 (1876), 942. Newport News & M. V. R. R. Co. v. Mendell, 17 Ky. Law Rep. 1400 (1896), 733. Newport News & M. V. R. R. Co. v. Mercer, 16 Ky. Law Rep. 555 (1895), 855. Newport News & M. V. R. R. Co. v. Mercer & W., 96 Ky. 475 (1895), 659. Newport News & M. V. R. R. Co. v. Reed, 10 Ky. L. Rep. 1020 (1889), 850, 914. New York v. Interborough R. T. Co., 53 N. Y. Misc. 126 (1907), 503. New York v. Starin, 106 N. Y. 1 (1887), 182, 299, 767, 771. New York, City of, v. Interbor- ough R. T. Co., 125 N. Y. App. Div. 437 (1908), 77. New York ex rel. v. Knight, 192 U. S. 21 (1904), 1416. New York & N. R. R. Co. v. New York & N. E. Ry. Co., 50 Fed. 867 (1892), 534. New York & W. Printing Tele- graph Co. v. Dryburg, 35 Pa. St. 298 (1860), 133,348, 980. New York Cement Co. v. Con- solidated Rosendale Cement Co., 178 N. Y. 167 (1904), 315, 707. New York Central & H. R. R. R. Co. v. Flynn, 74 Hun, 124 (1893), 483. New York Central & H. R. R. R. Co. v. Fraloff, 100 U. S. 24 (1879), 875. New York Central & H. R. R. R. Co. v. Metropolitan Gas Light Co., 63 N. Y. 326 (1875), 31, 111. New York Central & H. R. R. R. Co. v. Sheeley, 27 N. Y. Supp. 185 (1893), 483. New York Central & H. R. R. R. Co. v. Standard Oil Co., 87 N. Y. 486 (1882), 1042. New York Central & H. R. R. R. Co. v. Warren, 64 N. Y. Supp. 781 (1900), 483. New York, N. H. & H. R. R. Co. v. Bork, 23 R. I. 218 (1901), 483. New York, N. H. & H. R. R. Co. v. Interstate Comm. Comm., 200 U.S. 361 (1906), 707, 837. New York, N. H. & H. R. R. Co. v. New York, 165 U. S. 628 (1897), 1418, 1435. New York, N. H. & H. R. R. Co. v. Scovill, 71 Conn. 136 (1898), 483. New York, P. & N. R. R. Co. v. Cromwell, 98 Va. 227 (1900), 794, 796. New York Stock Exchange v. Chicago Board of Trade, 127 111. 153 (1889), 494. New York Telephone Co. v. Siegel-Cooper Co., 121 N. Y. Supp. 1033 (1910), 1303, 1304. New York, T. & M. R. R. Co. v. Gallaher, 79 Tex. 685 (1891), 1348. [ civil ] TABLE OF CASES CITED [References are to sections] Newton v. Axon, 1 McCord, 509 (1821), 964. Niagara v. Cordes, 21 How. 7 (1858), 239. Niagara Falls & W. Ry. Co., Re, 108 N. Y. 375 (1888), 117, 195, 222. Niagara L. & 0. Power Co., Re, lllApp. Div. 686 (1906), 60. Nichol v. Huntington Water Co., 53 W. Va. 348 (1903), 300. Nichols v. Chicago & W. M. Ry. Co., 90 Mich. 203 (1892), 932. Nichols v. Mclntosh, 19 Colo. 22 (1893), 852. Nichols v. Oregon Short Line Ry. Co., 24 Utah, 83 (1901), 850, 834, 914. Nichols v. Smith, 115 Mass. 332 (1874), 724. Nicolette Lumber Co. v. People's Coal Co., 26 Pa. Super. Ct. 575 (1904), 167, 270. Nicolette Lumber Co. v. People's Coal Co., 213 Pa. St. 379 (1906), 1050. Nicoll v. East Tennessee, Va. & Ga. Ry. Co., 89 Ga. 260 (1892), 1007. Nicholson v. Gt. Western R. R. Co., 5 C. B. (N. S.) 366 (1858), 1282, 1344, 1351, 1352. Nicholson v. New York City Ry. Co., 118 App. Div.' 858 (1907), 347. Nickerson v. Bridgeport Hydrau- lic Co., 46 Conn. 24 (1878), 350. Nitroglycerine Case, 15 Wall. (U. S.) 524 (1872), 621. Nixon v. Reid, 8 S. D. 507 (1896), 52. [ clviii ] Noble v. Atchison, T. & S. F. R. R. Co., 4 Okla. 534 (1896), 397 872 Nolan v. New York, N. H. & H. R. R. Co., 41 N. Y. Super. Ct. 541 (1876), 889. Noll v. Dubuque B. & M. R. R. Co., 32 Iowa, 66 (1871), 58. Norcross v. Norcross, 53 Me. 163 (1865), 213, 725, 770, 965, 969. Norfolk & P. Belt Line v. Com- monwealth, 103 Va. 289 (1904), 130, 151, 773. Norfolk & W. R. R. Co. v. An- derson, 90 Va. 1 (1893), 935, 938. Norfolk & W. R. R. Co. v. Com- monwealth, 93 Va. 749 (1896), 1413. Norfolk & W. R. R. Co. v. Galli- her, 89 Va. 639 (1893), 402, 735. Norfolk & W. R. R. Co. v. Irvine, 85 Va. 217 (1888), 621. Norfolk & W. R. R. Co. v. Marsh- all, 90 Va. 836 (1894), 966. Norfolk & W. R. R. Co. v. Old Dominion Baggage Co., 99 Va. Ill (1901), 171, 489. Norfolk & W. R. R. Co. v. Penn- sylvania, 136 U. S. 114 (1890), 1414. Norfolk & W. R. R. Co. v. Shott, 92 Va. 34 (1895), 777. Norfolk & W. R. R. Co. v. Wysor, 82 Va. 250 (1886), 862, 878. Norman v. Southern Ry. Co., 65 S. C. 517 (1903), 1004. Normandale Lumber Co. v. Knight, 89 Ga. Ill (1892), 223. Normille v. Northern Pacific Ry. Co., 36 Wash. 21 (1904), 1037, 1038, 1042. TABLE OF CASES CITED [References are to sections] Norris v. Farmers' & Teamsters' Co., 6 Cal. 590 (1856), 53. Norris v. Savannah, F. & W. Ry. Co., 23 Fla. 182 (1887), 909. North British Ry. Co. v. Cale- donian Ry. Co., 3 Ry. & C. Tr. Gas. 273 (1878), 775. North Chicago St. R. R. Co. v. Cook, 145 111. 551 (1893), 943, 978. North Chicago St. R. R. Co. v. Williams, 140 111. 275 (1892), 736. North Hudson County Ry. Co. v. Anderson, 61 N. J. L. 248 (1898), 441. North Jersey Street Ry. Co. v. Jersey City, 75 N. J. L. 349 (1907), 803. Northern Central Ry. Co. v. O'Connor, 76 Md. 207 (1892), 431,441,865,878,885. Northern Colorado Irr. Co. v. Richards, 22 Colo. 450 (1896), 852. Northern Pacific Ry. Co. v. Adams, 192 U. S. 440 (1904), 786, 1018. Northern Pacific Ry. Co. v. American Trading Co., 195 U. S. 439 (1904), 593. Northern Pacific Ry. Co. v. Dus- tin, 142 U. S. 492 (1891), 296, 306. Northern Pacific Ry. Co. v. Keyes, 91 Fed. 47 (1898), 1099, 1123, 1195, 1196, 1206, 1373, 1430. Northern Pacific Ry. Co. v. Ter- ritory, 3 Wash. Ter. 303 (1887), 808. Northern Pacific Ry. Co. v. Wash- ington Territory, 142 U. S. 492 (1892), 807. Northwestern Improvement & Boom Co. v. O'Brien, 75 Minn. 335 (1899), 73. Northwestern Telephone Ex- change Co. v. Chicago, M. & St. P. Ry. Co., 76 Minn. 334 (1899), 64. Northwestern Warehouse Co. v. Oregon Ry. & Nav. Co., 32 Wash. 218 (1903), 404, 820. Norway Plains Co. v. Boston & M. R. R. Co., 1 Gray, 263 (1854), 1036, 1039, 1042. Norwich Gas & E. Co. v. Nor- wich, 76 Conn. 565 (1904), 1101, 1131. Notara v. Henderson, L. R. 7 Q. B. 225 (1872), 950. Nugent v. Smith, 1 C. P. D. 19, 423 (1875), 233, 963. Nutting v. Connecticut River R. R. Co., 1 Gray, 502 (1854), 513. Nuttleman v. Philadelphia R. T. Co., 221 Pa. St. 485 (1908), 880. Nye v. Marysville & Y. C. S. R. R. Co., 97 Cal. 461 (1893), 431, 440, 877, 878. O Oakes v. Northern Pacific Ry. Co., 20 Oreg. 392 (1891), 864, 875, 876. Oakey v. Russell, 6 Martin (N. S.), 58 (1827), 172. O'Bannon v. Southern Express Co., 51 Ala. 481 (1874), 480. Oberndorfer v. Pabst, 100 Wis. 505 (1898), 193. O'Brien v. New York Central & H. R. R. R. Co., 80 N. Y. 263 (1880), 341, 438. [clix] TABLE OF CASES CITED [References are to sections] O'Brien v. Vaill, 22 Fla. 627 (1886), 1032. O'Callaghan v. Dellwood P. Co., 242 111. 336 (1909), 195. Ocean Publishing Co. v. Associ- ated Press, 184 111. 438 (1900), 138. Ocean Steamship Co. v. Savan- nah, L. W. & S. Co., 131 Ga. 831 (1909), 172, 229, 253, 270, 408, 553, 661, 791, 792, 841, 851. Oconto, The, 5 Biss. 460 (1873), 173, 774. O'Gara v. St. Louis Transit Co., 204 Mo. 724 (1907), 944. O'Gorman v. New York & Q. C. Ry. Co., 89 N. Y. Supp. 589 (1904), 880. Ohio & M. Ry. Co. v. Dickerson, 59 Ind. 317 (1877), 763. Ohio & M. Ry. Co. v. Dunbar, 20 111. 623 (1858), 758, 775. Ohio & M. Ry. Co. v. Hatton, 60 Ind. 12 (1877), 861, 872. Ohio & M. Ry. Co. v. Nickless, 71 Ind. 271 (1880), 785, 875. Ohio & M. Ry. Co. v. People, 120 111. 200 (1887), 311. Ohio & M. Ry. Co. v. Swarthout, 67 Ind. 567 (1879), 397, 872. Ohio & M. Ry. Co. v. Yohe, 51 Ind. 181 (1875), 1046. Ohio Coal Co. v. Whitcomb, 123 Fed. 359 (1903), 1359. Ohio Valley Gas Co., Re, 6 Pa. Dist. Rep. 200 (1897), 59. Ohio Valley Ry. Co. v. Watson's Admr., 93 Ky. 654 (1893), 764. Ohio Valley Rys. Receiver v. Lander, 104 Ky. 431 (1898), 848. [clx] Oklahoma City v. Oklahoma Ry. Co., 20 Okla. 1 (1907), 1305. Olanta Coal M. Co. v. Beech Creek R. R. Co., 144 Fed. 150 (1906), 404, 817, 819, 1043. Olcott v. Supervisors, 16 Wall. 678 (1872), 24. Old Colony R. R. Co. v. Tripp, 147 Mass. 35 (1888), 483, 489. Old Colony Trust Co. v. City of Atlanta, 83 Fed. 39 (1897), 1124, 1430. Oliver v. Chicago, R. I. & P. Ry. Co., 89 Ark. 466 (1909), 798. Olmsted v. Morris Aqueduct Co., 47 N. J. L. 311 (1885), 32, 242. Olson v. Grossman, 31 Minn. 222 (1883), 1001. Olson v. Northern Pacific Ry. Co., 49 Wash. 626 (1908), 889. Olson v. St. Paul & D. R. R. Co., 45 Minn. 536 (1891), 780. Omaha & R. V. Ry. Co. v. Chol- lete, 33 Neb. 143 (1891), 1044. O'Malley v. Great Northern Ry. Co., 86 Minn. 380 (1902), 1020. O'Neill v. Lynn & B. Ry. Co., 155 Mass. 371 (1892), 862, 879. O'Neill v. New York Central & H. R. R. R. Co., 60 N. Y. 138 (1875), 726. Opinion of the Justices, 150 Mass. 592 (1890), 68, 111, 218, 243. Opinion of the Justices, 182 Mass. 605 (1903), 64. Oppenheimer v. United States Express Co., 69 111. 62 (1873), 737, 990, 1001, 1021. TABLE OF CASES CITED [References are to sections] Orchard v. Bush, 2 Q. B. 284 (1898), 364, 752. Oregon Ry. & W. Co. v. Campbell, 173 Fed. 957 (1909), 1124. Oregon Short Line Ry. Co. v. Davidson, 33 Utah, 370 (1908), 483. Oregon S. L. & U. N. Ry. Co. v. Northern Pacific Ry. Co., 51 Fed. 465 (1892), 528. Oregon S. L. & U. N. Ry. Co. v. Northern Pacific Ry. Co., 61 Fed. 158 (1894), 523, 534, 682. O'Reiley et al. v. Kankakee Val- ley Drainage Co., 32 Ind. 169 (1869), 67. Ormandroyd v. Fitchburg & L. St. R. R. Co., 193 Mass. 130 (1906), 944. Ormsby Ry. Co. v. Union Pacific Ry. Co., 2 McCreary, 48 (1880), 901, 914, 1026. Orndorff v. Adams Express Co., 3 Bush, 194 (1867), 1001, 1022. O'Rourke v. Citizens' Street Ry. Co., 103 Tenn. 124 (1899), 458. Ortt v. Minneapolis & St. L. Ry. Co., 36 Minn. 396 (1887), 513. Osborne v. Adams County, 106 U. S. 181 (1882), 65. Osgood v. Concord R. R. Co., 63 N. H. 255 (1884), 1377. Oshkosh Waterworks Co. v. Osh- kosh, 187 U. S. 437 (1910), 1421. Oskamp et al. v. Southern Ex- press Co., 61 Ohio St. 341 (1899), 1049. Oswego v. Collins, 38 Hun, 171 (1885), 238. 11 Otis Co. v. Missouri Pacific Ry. Co., 112 Mo. 622 (1892), 1010. Ottawa v. Bodley, 67 Kan. 178 (1903), 484. Overland Express Co. v. Van Meter, 17 Fla. 783 (1880), 178. Overland Mail & Express Co. v. Carroll, 7 Colo. 43 (1883), 1020, 1022. Overstreet v. Moser, 88 Mo. App. 72 (1901), 936. Oviatt v. Dakota Central Ry. Co., 43 Minn. 300 (1890), 756. Owens v. Macon & B. R. R. Co., 119 Ga. 230 (1903), 639, 640. Owensboro Gas Light Co. v. Hildebrand, 19 Ky. L. R. 983 (1897), 111, 113, 214, 215, 434, 435, 877, 1251, 1290, 1300. Owensboro Harrison Telephone Co. v. Wisdom, 23 Ky. L. Rep. 97 (1901), 704. Owensboro Waterworks Co. v. Owensboro, 191 U. S. 358 (1903), 1422. Oxadle v. North Eastern R. R. Co., 1 C. B. (N. S.) 454 (1857), 204, 251, 661, 792, 1314. Ozanne v. Illinois Central R. R. Co., 151 Fed. 900 (1907), 795. Ozark Bell Telephone Co. v. Springfield, 140 Fed. 666 (1905), 1123, 1430. Pabe v. Myers, 5 Ohio S. & C. P. Dec. 578 (1895), 263. Pacific, The, 1 Blatchf. (U. S.) 569 (1850), 183. [clxi] TABLE OF CASES CITED [References are to sections] Pacific Coast S. S. Co. v. Bancroft- Whitney Co., 94 Fed. 180 (1899), 1026. Pacific Express Co. v. Darnell, 62 Texas, 639 (1884), 178, 776. Pacific Express Co. v. Foley, 46 Kan. 457 (1891), 1021. Pacific Express Co. v. Hertzberg, 17 Tex. Civ. App. 100 (1897), 1008, 1049. Pacific Express Co. v. Shearer, 160 111. 215 (1896), 1049. Pacific Express Co. v. Wallace, 60 Ark. 100 (1895), 1005. Pacific Telegraph Co. v. Under- wood, 37 Neb. 315 (1893), 1011, 1014, 1025, 1026. Packard v. Earle, 113 Mass. 280 (1873), 1040. Packard v. Getman, 6 Cow. (N. Y.) 757 (1827), 407, 733. Packard v. Getman, 4 Wend. 613 (1830), 1048. Packard v. Northcraft's Admr., 2 Met. 439 (1859), 770. Packard v. Taylor, C. & Co., 35 Ark. 402 (1880), 919, 985. Paddock v. Atchison, T. & S. F. R. R. Co., 37 Fed. 841 (1889), 631, 645. Padgitt v. Moll. & Citizens' Ry. Co., 159 Mo. 143 (1900), 498, 746, 782. Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340 (1889), 350. Page v. Louisville & Nashville R. R. Co., 129 Ala. 232 (1900), 806. Paine v. Pennsylvania R. R. Co., 7 Kulp, 187, 1342. Paine Bros. & Co. v. Lehigh Val- ley R. R. Co., 7 Int. Comm. Rep. 218 (1897), 1351. [ clxii ] Painter v. London, B. & S. C. Ry. Co., 2 C. B. (N. S.) 702 (1857), 483. Palatka Waterworks v. Palatka, 127 Fed. 161 (1903), 1123, 1125, 1138, 1410, 1430. Pallett v. Murphy, 131 Cal. 192 (1900), 378, 384. Palmer v. Atchison, T. & S. F. Ry. Co., 101 Cal. 187 (1894), 901, 1010. Palmer v. Chicago, B. & Q. R. R. Co., 56 Conn. 137 (1888), 517, 1033. Palmer v. Danville, 154 111. 156 (1894), 824. Palmer v. Larchmont Electric Co., 158 N. Y. 231 (1899), 56, 71. Palmer v. London & Southern Ry. Co., L. R. 1 C. P. 588 (1866), 392, 868. Palmer v. Lorillard, 16 Johns. 348 (1819), 591. Palmer v. Winston-Salem Ry. & Elec. Co., 131 N. C. 250 (1902), 939. Palmer Transfer Co. v. Ander- son, 131 Ky. 217 (1909), 489. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 (1902), 142, 1153. Panton Turnpike Co. v. Bishop, 11 Vt. 198 (1839), 75. Pardee v. Drew, 25 Wend. 459 (1841), 172. Paris & G. N. R. R. Co. v. Rob- inson (Tex. Civ. App.), 114 S. W. 658 (1909), 632, 933. Parish v. Ulster & D. R. R. Co., 192 N. Y. 353 (1908), 889. Parker v. Atlantic Coast Line R. R. Co., 133 N. C. 335 (1903), 901, 1011. TABLE OF CASES CITED [References are to sections] Parker v. Flagg, 26 Me. 181 (1846), 172, 963. Parker v. Great Western Ry. Co., 7 M. & G. 253 (1844), 479. Parker v. Great Western Ry. Co., 11 C. B. 545, 583 (1851), 479. Parks v. Alta Cal. Telegraph, 13 Cal. 422 (1859), 973, 980. Parks v. Jacobs Dold Packing Co., 6 Misc. 570 (1894), 1282. Parks v. St. Louis & S. Ry. Co., 178 Mo. 108 (1903), 760. Parmelee v. Lowitz, 74 111. 116 (1874), 171, 514. Parmelee v. McNulty, 19 111. 556 (1858), 171, 185, 364. Parsons v. Chicago & N. W. Ry. Co., 167 U. S. 447 (1897), 535, 1282, 1286. Parsons v. Hardy, 14 Wend. 215 (1835), 915. Parsons v. New York Central & H. R. R. R. Co., 113 N. Y. 355 (1889), 1031. Passenger R. R. Co. v. Young, 21 Ohio St. 518 (1871), 935, 938. Pate v. Henry, 5 Stew. & P. (Ala.) 101 (1833), 182, 396, 658. Paterson Gas Light Co. v. Brady, 3 Dutch. 245 (1858), 31, 111. Patten v. Union Pac. Ry. Co., 29 Fed. 590 (1886), 522, 907. Patterson v. Mississippi & R. R. Boom Co., 18 Fed. Gas. 10,829 (1875), 73. Patterson v.. Missouri Pacific Ry. Co., 77 Kan. 236 (1908), 836. Patterson v. No. Carolina R. R. Co., 64 N. C. 147 (1870), 666. Patterson v. Omaha, etc., B. Ry. & B. Co., 90 Iowa, 247 (1894), 1044, 1045. Patterson v. Steamship Co., 53 S. E. 224 (1906), 834, 843, 850, 851. Patterson v. Taylor, 51 Fla. 275 (1906), 848. Patterson v. Wabash, St. L. & P. Ry. Co., 54 Mich. 91 (1884), 740. Patterson v. Wollmann, 5 N. D. 608 (1896), 52. Pavitt v. Lehigh Valley Ry. Co., 153 Pa. St. 312 (1893), 1023. Pawnee Land & C. Co. v. Jenkins, 1 Colo. App. 425 (1892), 984. Paxton & H. Irrigation Co. v. Farmers' & M. Irr. Co., 45 Neb. 884 (1895), 93, 342, 701. Paxton Tie Co. v. Detroit So. Ry. Co., 10 U. C. C. Rep. 422 (1905), 1365. Payne v. Terre Haute & I. Ry. Co., 157 Ind. 616 (1902), 786, 1018. Pearce v. Wabash R. R. Co., 89 Mo. App. 437 (1901), 431. Pears v. Manhattan Ry. Co., N. Y. Law Jour., Feb. 3, 1900, 503. Pearsall v. Western Union Tele- graph Co., 124 N. Y. 256 (1891), 412, 863. Pearson v. Duane, 4 Wall. 605 (1866), 560, 561, 612, 634. Pease v. Delaware, L. & W. R. R. Co;, 101 N. Y. 367 (1886), 447, 1259. Peavey & Co. v. Union Pacific Ry. Co., 176 Fed. 409 (1910), 815, 1360. Peavy v. Georgia R. R. & Bank- ing Co., 81 Ga. 485 (1888), 632, 633, 933. [ clxiii ] TABLE OF CASES CITED [References are to sections] Peck v. New York Central & H. R. R. R. Co., 70 N. Y. 587 (1877), 844, 881. Peck v. Weeks, 34 Conn. 145 (1867), 950. Pecos & N. T. Ry. Co. v. Evans- Snider-Buel Co., 42 Tex. Civ. App. 60 (1906), 914. Peoples v. Brunswick & A. R. R. Co., 60 Ga. 281 (1878), 939. Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594 (1866), 840, 842, 914. Pegram v. Western Union Tele- graph Co., 100 N. C. 28 (1888), 742. Peik v. Chicago N. .W. Ry. Co., 94 U. S. 164 (1876), 124, 1121, 1427. Peixotti v. McLaughlin, 1 Strob. L. 468 (1847), 184, 262. Pelton v. Rensselaer & S. R. R. Co., 54 N. Y. 214 (1873), 1040. Pendall v. Rench, 4 McLean, 259 (1847), 963. Pender v. Robbins, 6 Jones (N. C.), 207 (1858), 255, 792. Pendergast v. Adams Express Co., 101 Mass. 120 (1869), 1017. Pendergast v. Compton, 8 C. & P. 654 (1837), 611. Peniston v. Chicago, St. Louis & N. 0. R. R. Co., 34 La. Ann. 777 (1882), 500, 823. Perm v. Buffalo & E. R. R. Co., 49 N. Y. 204 (1872), 949, 967, 989. Penn. Steam Nav. Co. v. Dand- ridge, 8 Gill & J. 248 (1836), 173. Pennewill v. Cullen, 5 Hair. 238 (1849), 228, 235. [ clxiv ] Pennington & E. v. Douglass, A. & G. Ry. Co., 3 Ga. App. 665 (1907), 798, 835. Pennington v. Philadelphia, W. & B. R. R. Co., 62 Md. 95 (1883), 1258. Pennsylvania Central R. R. Co. v. Schwarzenberger, 45 Pa. St. 208 (1863), 1017. Pennsylvania Coal Co. v. Dela- ware & Hudson Canal Co., 31 N. Y. 91 (1865), 122, 241, 865, 1281. Pennsylvania D. & M. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248 (1836), 774, 972. Pennsylvania Iron Co. v. Lan- caster, 17 Lane. L. R. 161 (1900), 458, 549, 1324, 1354. Pennsylvania R. R. Co. v. Balti- more & O. Ry. Co., 60 Md. 263 (1883), 527. Pennsylvania R. R. Co. v. Berry, 68 Pa. St. 272 (1871), 513. Pennsylvania R. R. Co. v. Books, 57 Pa. St. 339 (1868), 784. Pennsylvania R. R. Co. v. Bray, 125 Ind. 229 (1890), 864. Pennsylvania R. R. Co. v. Chi- cago, 181 111. 289 (1899), 485. Pennsylvania R. R. Co. v. Clark, 2 Ind. App. 146 (1891), 901, 902. Pennsylvania R. R. Co. v. Fries, 87 Pa. St. 234 (1878), 838, 903. Pennsylvania R. R. Co. v. Ken- wood Bridge Co.; 170 111. 645 (1897), 414, 991. Pennsylvania R. R. Co. v. Len- hart, 120 Fed. 61 (1903), 888. Pennsylvania R. R. Co. v. Live- right, 14 Ind. App. 518 (1895), 1037. TABLE OF CASES CITED [References are to sections] Pennsylvania R. R. Co. v. Mid- vale Steel Co., 201 Pa. St. 624 (1902), 862, 1050. Pennsylvania R. R. Co. v. Naive, 112 Tenn. 239 (1903), 599, 1038. Pennsylvania R. R. Co. v. Phila- delphia County, 220 Pa. St. 100 (1908), 1064, 1081, 1082, 1123, 1128, 1131, 1132, 1133, 1136, 1166, 1191, 1193, 1202, 1209, 1430. Pennsylvania R. R. Co. v. Price, 96 Pa. St. 256 (1880), 777. Pennsylvania R. R. Co. v. Reed, 60 Fed. 694 (1894), 736. Pennsylvania R. R. Co. v. Roy, 102 U.S. 451 (1880), 776, 794. Pennsylvania R. R. Co. v. Shearer, 75 Ohio St. 249 (1906), 1023. Pennsylvania R. R. Co. v. Sny- der, 55 Ohio St. 342 (1896), 530. Pennsylvania R. R. Co. v. Spicker, 105 Pa. St. 142 (1884), 862. Pennsylvania R. R. Co. v. Van- diver, 42 Pa. St. 365 (1862), 935. Pennsylvania R. R. Co. v. Wood- worth, 26 Ohio St. 585 (1875), 777, 778, 781. Pennsylvania Refining Co. v. Western N. Y. & P. R. R. Co., 208 U. S. 208 (1908), 531, 1350. Penny v. Atlantic Coast Line Co., 133 N. C. 221 (1903), 942. Penobscot Log D. Co. v. West Branch D. & R. Dam Co., 99 Me. 452 (1905), 55. Pensacola & A. R. R. Co. v. Florida, 25 Fla. 310 (1889), 1063, 1175, 1201, 1431. People v. Albany & V. R. R. Co., 24 N. Y. 261 (1862), 211, 300, 302, 304. People v. Albion Water Works Co., 121 N. Y. Supp. 660 (1910), 1300. People v. Babcock, 16 Hun, 313 (1878), 254, 795. People v. Board of Supervisors, 142 N. Y. 271 (1894), 299. People v. Brooklyn Heights Ry. Co., 75 N. Y. Supp. 202 (1902), 312, 319. People v. Budd, 117 N. Y. 1 (1889), 20, 50, 141. People v. Burnham Hospital, 71 111. App. 246 (1896), 70. People v. Canal Co., 25 Colo. 202 (1898), 384. People v. Caryl, 3 Park Cr. 326 (1857), 933. People v. Chicago & A. R. R. Co., 55 111. 95 (1870), 272, 531, 792. People v. Chicago & A. R. R. Co., 130 111. 175 (1889), 808, 809. People v. Chicago Gas Trust Co., 130 111. 268 (1889), 686. People v. Chicago Telephone Co., 220 111. 238 (1906), 795. People v. Colorado Central R. R. Co., 42 Fed. 638 (1890), 212, 302, 319. People v. Deehan, 153 N. Y. 528 (1897), 275. People v. Delaware & H. Canal Co., 52 N. Y. Supp. 850 (1898), 813. People v. Delaware & H. Canal Co., 165 N. Y. 362 (1901), 806. People v. Green Island Water Co., 9 N. Y. Supp. 168 (1890), 1298. [ clxv ] TABLE OF CASES CITED [References are to sections] People v. Hudson River Tele- phone Co., 19 Abb. N. C. 466 (1887), 136, 244, 624, 704. People v. Illinois & St. L. R. R. & Coal Co., 122 111. 506 (1887), 835. People v. Illinois Central R. R. Co., 233 111. 378 (1908), 391, 503, 703, 812. People v. Jones, 54 Barb. 311 (1863), 234, 974. People v. Kankakee River Im- provement Co., 103 111. 491 (1882), 72, 241. People v. Los Angeles Independ- ent Gas Co., 150 Cal. 557 (1907), 112, 265, 792. People v. Mago, 69 Hun, 559 (1893), 237, 241. People v. McKay, 46 Mich. 430 (1881), 557, 879. People v. Manhattan Gaslight Co., 45 Barb. 136 (1865), 452, 453, 458, 460. People v. New York Central & H. R. R. R. Co., 28 Hun, 543 (1883), 202, 668. People v. New York Suburban Water Co., 56 N. Y. Supp. 364 (1899), 431, 981. People v. New York, L. E. & W. R. R. Co., 104 N. Y. 58 (1887), 805, 806. People v. Northern Central Ry. Co., 164 N. Y. 289 (1900), 299. People v. People's Gas Light Co., 205 111. 482 (1903), 51. People v. Plainfield Ave. Gravel Road Company, 105 Mich. 9 (1895), 300, 301. People v. Rome, W. & 0. R. R. Co., 103 N. Y. 95 (1886), 299 306, 319. [ clxvi ] People v. San Francisco & A. R. R. Co., 35Cal. 606 (1868), 241. People v. St. Louis, A. & T. H. R. R. Co., 176 111. 512 (1898), 211, 578, 740, 794, 797, 839. People v. St. Louis & B. Electric Ry. Co., 122 111. App. 422 (1905), 595. People v. Stevens, 197 N. Y. 1 (1909), 1097. People v. Western Union Tel. Co., 166 111. 15 (1897), 412, 472, 497, 514. People's Gaslight & Coke Co. v. Chicago, 194 U. S. 1 (1904), 144, 1421, 1426. People's Gas Light & C. Co. v. Hale, 94 111. App. 406 (1900), 111, 112, 265, 1077, 1225, 1306. Peoria & P. M. Ry. Co. v. Chi- cago, R. I. & Pac. Ry. Co., 109 111. 135 (1884), 529. Peoria & P. Union Ry. Co. v. United States Rolling Stock Co., 136 111. 643 (1891), 775, 1043. Pepper v. Telegraph Co., 87 Tenn. 554 (1889), 1014. Pere Marquette R. R. Co. v. Strange, 171 Ind. 160 (1908), 402, 735. Perkins v. Chicago, S. L. & N. O. R. R. Co., 60 Miss. 726 (1883), 763. Perkins v. Missouri Pacific Ry. Co., 155 Fed. 445 (1897), 1166. Perkins v. New York Central R. R. Co., 24 N. Y. 196 (1862), 785. Perkins v. Northern Pacific Ry. Co., 155 Fed. 445 (1908), 1091, 1092, 1124, 1430. TABLE OF CASES CITED [References are to sections] Perkins v. Portland, S. & P. R. R. Co., 47 Me. 573 (1859), 511, 513. Perkins v. Wright, 37 Ind. 27 (1871), 875, 970. Perry v. Philadelphia B. & W. R. R. Co. (Del. Supr.), 77 Atl. 725 (1910), 778. Perry v. Pittsburg Union Pass. Ry. Co., 153 Pa. St. 236 (1893), 862, 877. Perth General Station Committee v. Ross, A. C. 479 (1897), 500. Peters v. New Orleans & Gt. N. R. R. Co., 16 La. Ann. 222 (1861), 772. Petersen v. Case, 21 Fed. 885 (1884), 834. Peterson, In re, 21 Fed. 885 (1884), 518, 1184. Peterson v. Chicago & North- western Ry. Co., 119 Wis. 197 (1903), 778. Peterson v. Chicago, R. I. & P. Ry. Co. (Iowa), 45 N. W. 573 (1890), 1017. Peterson v. Seattle Traction Co., 23 Wash. 615 (1900), 784. Pfister v. Central Pacific R. R. Co., 70 Cal. 169 (1886), 239, 255, 477, 792. Phelan v. Boone Gas Co. (Iowa), 125 N. W. 208 (1910), 435, 552, 865, 877, 1300. Phelan v. Boone Gas L., F. & P. Co. v. Orr, 27 Ind. App. 1 (1910), 1300. Phelps v. Illinois Central R. R. Co., 94 111. 548 (1880), 666. Phelps v. Windsor Stb. Co., 131 N. C. 12 (1902), 753. Phelps, I. & Co. v. Hill, 1 Q. B. 605 (1891), 909. Phenix Insurance Co. v. Liver- pool & G. W. Steamship Co., 22 Blatchf. 372 (1884), 165. Phettiplace v. Northern Pacific R. R. Co., 84 Wis. 412 (1893), 888. Philadelphia v. Philadelphia R. T. Co, (Pa. St.), 73 Atl. 923 (1909), 1344. Philadelphia & R. R. R. Co. v. Beck, 125 Pa. St. 620 (1889), 522, 548, 906. Philadelphia & R. R. R. Co. v. Derby, 14 How. 468 (1852), 337, 785. Philadelphia & R. R. R. Co. v. Interstate Commerce Com- mission, 174 Fed. 687 (1909), 1394. Philadelphia, M. & S. St. Ry. Co.'s Petition, 203 Pa. St. 354 (1902), 698. Philadelphia, W. & B. R. R. Co. v. Anderson, 72 Md. 519 ,(1890), 978. Philadelphia, W. & B. R. R. Co. v. Lehman, 56 Md. 209 (1881), 599. Philadelphia, W. & B. R. R. Co. v. Rice, 64 Md. 63 (1885), 862, 890. Phillips v. Brigham, 26 Ga. 617 (1859), 905, 908, 921. Phillips v. Earle, 8 Pick. 182 (1829), 737, 990, 1020, 1021. Phillips v. Edwards, 3 H. & N. 813 (1858), 1001. Phillips v. Southern Ry. Co., 114 Ga. 284 (1901), 697. Phillips v. Southern Ry. Co., 124 N. C. 123 (1899), 398, 873. Phillips v. Watson, 63 la. 28 (1884), 223. [ clxvii ] TABLE OF CASES CITED [References are to sections] Phillips Co. v. Pruitt, 26 Ky. Law Rep. 831 (1904), 193. Phipps v. London & Northwestern Ry. Co., 2 Q. B. D. 229 (1892), 1204, 1223, 1377. Phoenix L. & F. Co. v. Bennett, 8 Ariz. 314 (1903), 983, 984. Phoenix Powder Mfg. Co. v. Wabash Ry. Co., 101 Mo. App. 442 (1903), 1005. Pickford v. Grand Junction Ry. Co., 10 M. & W. 399 (1842), 479. Pickett v. Southern Ry. Co., 69 S. C. 445 (1904), 395. Piedmont Mfg. Co. v. Railroad Co., 19 So. C. 353 (1882), 170, 230, 236, 1001. Pierce v. Drew, 136 Mass. 75 (1883), 133. Pierce v. Milwaukee R. R. Co., 23 Wis. 38 (1868), 971. Pierce v. Southern Pacific Co., 120 Cal. 156 (1898), 907, 1010, 1021. Pike v. Nash, 3 Abb. App. Dec. 610 (1864), 55, 238. Pinchon's Case, 9 Coke, 87 (1611), 442. Pinckney v. Western Union Tele- graph Co., 19 S. C. 71 (1883), 133, 851, 980. Pine Grove, Township of, v. Tal- cott, 19 Wall. 666 (1873), 217. Pingree v. Detroit, L. & N. R. R. Co., 66 Mich. 143 (1887), 1046. Pingree v. Michigan Central R. R. Co., 118 Mich. 314 (1898), 1407. Pinkerton v. Woodward, 33 Cal. 557 (1867), 204, 234, 240, 263, 725. [ clxviii ] Pitcher v. Old Colony St. Ry. Co., 196 Mass. 69 (1907), 978. Pitlock v. Wells, Fargo & Co., 109 Mass. 452 (1872), 251, 531, 792. Pittsburg & B. Traction Co. v. Seidell, 6 Pa. Dist. R. 414 (1896), 503. Pittsburg & M. Pass. Ry. Co. v. Caldwell, 74 Pa. St. 421 (1873), 933. Pittsburg & W. E. Pass. Ry. v. Point Bridge Co., 165 Pa. St. 37 (1894), 53, 241, 699. Pittsburg, C. C. & St. L. Ry. Co. v. Barrett, 36 Ohio St. 448 (1881), 393, 726. Pittsburg, C., C. & St. L. Ry. Co. v. City of Chicago, 242 111. 178 (1909), 547, 667, 987. Pittsburg, C., C. & St. L. Ry. Co. v. Daniels, 90 111. App. 154 (1899), 886, 889. Pittsburg, C., C. & St. L. Ry. Co. v. Higgs, 165 Ind. 694 (1905), 1011, 1016. Pittsburg, C., C. & St. L. Ry. Co. v. Hollowell, 65 Ind. 188 (1879), 669. Pittsburg, C., C. & St. L. Ry. Co. v. Krouse, 30 Ohio St. 222 (1876), 1044. Pittsburg, C., C. & St. L. Ry. Co. v. Lyon, 123 Pa. St. 140 (1888), 812. Pittsburg, C., C. & St. L. Ry. Co. v. Mahoney, 148 Ind. 196 (1897), 778, 1015. Pittsburg, C., C. & St. L. Ry. Co. v. Mitchell, 91 N. E. 735 (1910), 916, 1005. Pittsburg, C., C. & St. L. Ry. Co. v. Mooar Lumber Co., 27 Oh. Cir. Ct. 588 (1905), 1050. TABLE OF CASES CITED [References are to sections] Pittsburg, C., C. & St. L. Ry. Co. v. Morton, 61 Ind. 539 (1878), 272, 333, 513, 531, 792, 804. Pittsburg, C., C. & St. L. Ry. Co. v. Nash, 43 Ind. 423 (1873), 1042, 1043. Pittsburg, C., C. & St. L. Ry. Co. v. Nuzum, 50 Ind. 141 (1875), 870, 872, 904. Pittsburg, C., C. & St. L. Ry. Co. v. Pillow, 76 Pa. St. 510 (1874), 632. Pittsburg, C., C. & St. L. Ry. Co. v. Racer, 10 Ind. App. 503 (1894), 831, 833, 922. Pittsburg, C., C. & St. L. Ry. Co. v. Racer, 5 Ind. App. 209 (1892), 722, 833. Pittsburg, C., C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68 (1897), 1010, 1011. Pittsburg, C., C. & St. L. Ry. Co. v. Street, 26 Ind. App. 224 (1901), 889. Pittsburg, C., C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576 (1877), 431, 632, 878, 885. Pittsburg, C., C. & St. L. Ry. Co. v. Van Houton, 48 Ind. 90 (1874), 800. Pittsburg, C., C. & St. L. Ry. Co. v. Viers, 113 Ky. 526 (1902), 272, 792. Pittsburg, C., C. & St. L. Ry. Co. v. Wood (Ind. App.), 84 N. E. 1009 (1908), 408, 443, 722, 853. Pittsburg, F. W. & C. Ry. Co. v. Hazen, 84 111. 36 (1876), 668, 912. Pittsburg, F. W. & C. Ry. Co. v. Hinds, 53 Pa. St. 512 (1866), 942, 944. Pittsburg, W. & K. R. R. Co. v. Benwood Iron Works, 31 W. Va. 710 (1888), 226. Planters' Cotton Oil Co. v. West- ern Union Teleg. Co., 126 Ga. 621 (1906), 412. Planz v. Boston & Albany R. R. Co., 157 Mass. 377 (1892), 623, 738. Platt v. Le Cocq, 150 Fed. 391 (1906), 178, 392, 419, 580, 865, 868. Playf ord v. United Kingdom Elec- tric Telegraph Co., L. R. 4 Q. B. 706 (1869), 348. Plessy, Ex parte, 45 La. Ann. 80 (1893), 848, 849, 566. Plessy v. Ferguson, 163 U. S. 537 (1896), 848. Plott v. Chicago & N. W. Ry. Co., 63 Wis. 511 (1885), 865. Pocantico Water Works Co. v. Bird, 130 N. Y. 249 (1891), 221, 242. Pocatello Water Co. v. Standley, 7 Idaho, 155 (1900), 273, 405, 706, 797, 824. Pokrok Zapadu Pub. Co. v. Ziz- kovsky, 42 Neb. 64 (1894), 69. Polk v. Coffin, 9 Cal. 56 (1858), 213. Polk & Co. v. Melenbacker, 136 Mich. 611 (1904), 751. Pollard v. Vinton, 105 U. S. 7 (1881), 747. Pollits v. Consolidated Gas Co., 102 N. Y. Supp. 1017 (1907), 434. Pollock v. Landis, 36 la. 651 (1873), 751. Pomeroy v. Donaldson, 5 Mo. 36 (1837), 182. [ clxix ] TABLE OF CASES CITED [References are to sections] Poole v. Northern Pacific R. R. Co., 16 Oreg. 261 (1888), 887, 888. Poole v. Paris Mt. Water Co., 81 S. C. 438 (1908), 377, 456, 458. Pooling Freights, In re, 115 Fed. 588 (1902), 694. Pope v. Western Union Tel. Co., 9 111. App. (9 Bradw.) 283 (1881), 1041. Porcher v. Northeastern R. R. Co., 14 Rich. Law, 181 (1867), 663, 664, 800, 831. Porter v. Gilkey, 57 Mo. 235 (1874), 1001. Porter v. New York Central R. R. Co., 34 Barb. 353 (1861), 888. Porter v. Raleigh & G. R. R. Co., 132 N. C. 71 (1903), 442, 978. Porterfield v. Humphreys, 8 Humph. 497 (1847), 229. Portland Gas & Oil Co. v. State, 135 Ind. 54 (1893), 111, 243, 280, 320, 579, 686, 1325. Portland Ry. Co. L. & P. Co. v. Railroad Commission (Oreg.), 109 Pac. 273 (1909), 1377. Post v. Railroad Co., 103 Term. 184 (1899), 521, 907. Postal Cable Telegraph Co. v. Cumberland Telephone & Telegraph Co., 177 Fed. 726 (1910), 700, 704, 1216, 1246, 1287, 1290. 1300. Postal Telegraph Cable Co. v. Oregon S. L. Ry. Co., 23 Utah, 474 (1901), 56. Potter v. Railway Co., 95 Mich. 389 (1893), 241. Potwin Place, City of, v. Topeka Ry. Co., 51 Kans. 609 (1893), 211, 305. [ clxx ] Poucher v. New York Central R. R. Co., 49 N. Y. 263 (1872), 735, 780. Poulin v. Canadian Pacific Ry. Co., 52 Fed. 197 (1892), 889. Pounder v. North E. Ry. Co., 1 Q. B. 385 (1891), 570, 942, 944. Powell v. Duluth, 91 Minn. 53 (1903), 1245, 1246, 1251. Powell v. Mills, 37 Miss. 691 (1859), 182, 241, 743, 963. Powell v. Myers, 26 Wend. 591 (1841), 185. Powers v. Boston & Maine R. R. Co., 153 Mass. 188 (1891), 764. Powers v. Davenport, 7 Blackf. 497 (1845), 905, 921. Powers Mercantile Co. v. Wells- Fargo & Co., 93 Minn. 143 (1904), 1010. Pratt et al. v. Ogdensburg & L. C. R. R. Co., 102 Mass. 557 (1869), 990. Pray v. Omaha St. Ry. Co., 44 Neb. 167 (1895), 189, 945. Prendergast v. Compton, 8 C. & P. 454 (1837), 555. Prentice v. Atlantic C. L. Ry. Co., 211 U. S. 210 (1908), 1124, 1125, 1430. Prescott & A. C. R. R. Co. v. Atchison, T. & S. F. R. R. Co., 73 Fed. 438 (1896), 534. Prescott Irrigation Co. v. Fla- thers, 20 Wash. 454 (1899), 93, 242. Preston v. Water Commissioners 117 Mich. 589 (1898), 1075, 1172, 1303, 1304. Prevost v. Gt. Eastern Ry. Co., 13 L. T. (N. S.) 20 (1865), 872. TABLE OF CASES CITED [References are to sections] Price v. Chesapeake & 0. Ry. Co., 46 W. Va. 538 (1899), 878. Price v. Denver & R. G. Ry. Co., 12 Colo. 402 (1888), 522. Price v. Oswego & S. R. R. Co., 50 N. Y. 213 (1872), 1049. Price v. Riverside Canal & Irr. Co., 56 Cal. 431 (1880), 93, 242, 411. Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479 (1905), 632, 933. Prickett v. New Orleans Anchor Line, 13 Mo. App. 436 (1883), 1044. Primrose v. Western Union Tele- graph Co., 154 U. S. 1 (1893), 412, 766, 1014. Princeton, The, 3 Blatch. 54 (1853), 173, 774. Prince v. Crocker, 166 Mass. 347 (1896), 77, 191. Prince v. International & Great Northern Ry. Co., 64 Tex. 144 (1885), 761. Prindiville v. Jackson, 79 111. 337 (1875), 406, 824. Propeller Mohawk, The, 8 Wall. (U. S.) 153 (1869), 1265. Propeller Niagara v. Cordes, 21 How. 7 (1858), 165, 239. Provident Inst. for Savings v. Allen, 37 N. J. Eq. 36 (1883), 374. Pruitt v. Hannibal & St. J. R. R. Co., 62 Mo. 527 (1786), 909. Pryor, In re, 55 Kan. 724 (1895), 111, 1410, 1424. Public Service Corp. v. American Lighting Co., 67 N. J. Eq. 122 (1904), 111, 243, 282, 374, 406, 702. Pudsey Coal Gas Co. v. Brad- ford, L. R. 15 Eq. 167 (1873), 274. Pugh v. City & Sub. Telephone Assn., 9 Cinn. Law Bull. 104 (1883), 633. Pullman P. C. Co. v. Adams, 120 Ala. 581 (1898), 153, 975. Pullman P. C. Co. v. Bales, 80 Tex. 211 (1891), 606, 608, 645. Pullman P. C. Co. v. Barker, 4 Colo. 344 (1878), 635, 933. Pullman P. C. Co. v. Booth (Civ. App.), 28 S. W. 719 (1894), 153, 832. Pullman P. C. Co. v. Cain, 15 Tex. Civ. App. 503 (1897), 566, 832, 848, 849, 881. Pullman P. C. Co. v. Freuden- stein, 3 Colo. App. 540 (1893), 153, 975. Pullman P. C. Co. v. Gavin, 93 Tenn. 53 (1893), 153, 938, 975. Pullman P. C. Co. v. Gaylord, 9 Ky. L. Rep. 58 (1887), 153. Pullman P. C. Co. v. Hall, 106 Ga. 765 (1899), 153, 975. Pullman P. C. Co. v. Hunter, 21 Ky. L. Rep. 1248 (1900), 769. Pullman P. C. Co. v. Krauss, 145 Ala. 395 (1906), 631, 638, 639, 643, 879, 934. Pullman P. C. Co. v. Lawrence, 74 Miss. 782 (1897), 153, 940, 975. Pullman P. C. Co. v. Lee, 49 111. App. 75 (1892), 382, 847. Pullman P. C. Co. v. Lowe, 28 Neb. 239 (1889), 21, 153. Pullman P. C. Co. v. Lutz, 154 Ala. 517 (1908), 932. [ clxxi ] TABLE OF CASES CITED [References are to sections] Pullman P. C. Co. v. Martin, 95 Ga. 314 (1894), 769. Pullman P. C. Co. v. Nelson, 22 Tex. Civ. App. 223 (1899), 832. Pullman P. C. Co. v. Reed, 75 111. 125 (1874), 832, 886. Pullman P. C. Co. v. Smith, 73 111. 360 (1874), 153, 975. Pullman P. C. Co. v. Smith, 79 Tex. 468 (1891), 932. Purcell v. Daly, 19 Abb. N. C. 301 (1886), 117. Purcell v. Richmond & D. R. R. Co., 108 N. C. 414 (1891), 664, 801. Purnell v. McLane, 98 Md. 589 (1904), 78, 383. Purple v. Union Pacific R. R. Co., 114 Fed. 123 (1902), 764. Purvis v. Coleman, 1 Bosw. 321 (1860), 1001. Putman v. Broadway & 7th Ave. R. R. Co., 55 N. Y. 108 (1873), 941, 942. Pyle v. East Tenn., Va. & Ga. Ry. Co., 1 I. C. C. 465 (1888), 1237. Queen v. McFarlane, 7 Can. Sup. 216 (1882), 74, 972. Quickstep, The, 9 Wall. 66 (1869), 173, 774. Quigley v. Central Pacific R. R. Co., 11 Nev. 350 (1876), 938. Quimby v. Boston & M. R. R. Co., 150 Mass. 365 (1890), 786, 1004, 1018. Quincy, Inhabitants of, v. Bos- ton, 148 Mass. 389 (1889) 274, 281. [ clxxii ] Quiun v. Louisville & N. Ry. Co., 98 Ky. 231 (1895), 848. Radley v. Columbia Southern R. R. Co., 44 Oreg. 332 (1904), 761. Rae v. Grand Trunk Ry. Co., 14 Fed. 401 (1882), 529. Ragan & B. v. Aiken, 9 Lea, 609 (1882), 681, 1282, 1283, 1299, 1311, 1313. Rahmel v. Lehndorff, 142 Cal. 681 (1904), 936. Railroad Commission Cases, 116 U. S. 307 (1886), 124, 1122, 1401, 1408, 1409, 1411, 1420, 1423, 1428. Railroad Commission v. A. C. L. R. R. Co., 71 S. C. 130 (1905), 806. Railroad Commission v. Hous- ton & T. C. R. R. Co., 90 Tex. 340 (1897), 1409. Railroad Commission v. Kansas City So. Ry. Co., Ill La. 133 (1903), 404, 819. Railroad Commission v. Port- land & 0. C. R. R. Co., 63 Me. 269 (1872), 806. Railroad Commission v. St. Louis & S. W. Ry. (Tex.), 80 S. W. 102 (1904), 224, 822. Railroad Commission v. Weld, 96 Tex. 394 (1902), 1348. Railroad Commission v. West- ern Union Telegraph Co., 113 N. C. 213 (1893), 814. Railroad Commissioners, Re, 15 Neb. 679 (1883), 1404. Railroad Commissioners, Re, 79 Vt. 266 (1906), 805, 806. Railroad Co. v. Bunnell, 138 Ala. 247, 889. TABLE OF CASES CITED [References are to sections] Railroad Co. v. Gilbert, Parkes & Co., 88 Tenn. 430 (1889), 1005. Railroad Co. v. Hailey, 94 Tenn. 383 (1895), 764. Railroad Co. v. Husen, 95 U. S. 465 (1877), 1418. Railroad Co. v. Kelley, 91 Tenn. 699 (1892), 919. Railroad Co. v. Kuhn, 107 Tenn. 106 (1901), 966. Railroad Co. v. Lockwood, 17 Wall. 357 (1873), 176, 780, 1002, 1007, 1011. Railroad Co. v. Manufacturing Co., 16 Wall. 318 (1872), 1003, 1004. Railroad Co. v. Mitchell, 98 Tenn. 27 (1896), 635. Railroad Co. v. Odil, 96 Tenn. 61 (1895), 912. Railroad Co. v. O'Donnell, 49 Ohio St. 489 (1892), 610, 667, 910, 913. Railroad Co. v. Pratt, 22 Wall. 123 (1874), 794. Railroad Co. v. Reeves, 10 Wall. 176 (1870), 917, 920. Railroad Co. v. Skillman, 39 Ohio St. 444 (1883), 447, 887, 1259. Railroad Co. v. Southern Seat- ing & Cabinet Co., 104 Tenn. 568 (1900), 518, 1033. Railroad Co. v. Telegraph Co., 38 Ohio St. 24 (1882), 814. Railroad Co. v. Turner, 100 Tenn. 213 (1898), 862. Railroad Co. v. Walrath, 38 Ohio St. 461 (1882), 776. Railway Co. v. Bruce, 55 Ark. 65 (1891), 1042. Railway Co. v. Lawton, 55 Ark. 428 (1892), 369. Railway Co. v. Murphy, 60 Ark. 333 (1895), 733, 734. Railway Co. v. Neville, 60 Ark. 375 (1895), 911, 1038. Railway Co. v. Salzman, 52 Ohio St. 558 (1895), 933. Railway Co. v. Smith, 60 Ark. 221 (1895), 577. Railway Co. v. Sowell, 90 Tenn. 17 (1890), 1021. Railway Co. v. Wynn, 88 Tenn. 320 (1890), 1020, 1022. Raleigh & Gaston R. R. Co. v. Davis, 2 D. & B. 451 (1837), 26, 58. Ramberg v. South Carolina R. R. Co., 9 S.C. 61 (1877), 989. Ramm v. Minneapolis & St. R. R. R. Co., 94 la. 296 (1895), 738, 761. Rand v. Merchants' Dispatch Transp. Co., 59 N. H. 363 (1879), 1007. Randall v. Chicago, R. I. & P. Ry. Co., 102 Mo. App. 342 (1903), 341, 440, 468. Randall v. New Orleans & N. E. R. R. Co., 45 La. Ann. 778 (1893), 889, 1011. Randall v. Railroad Co., 108 N. C. 612 (1891), 431, 435. Randolph v. Quincy, 0. & K. C. R. R. Co., 129 Mo. App. 1 (1908), 889. Ransome v. Eastern Counties Ry. Co., 1 C. B. (N. S.) 437 (1855), 1313. Raritan River R. R. Co. v. Middlesex & S. Traction Co., 70 N. J. L. 732 (1904), 694. Ratcliff v. Wichita Union Stock- yards Co., 74 Kan. 1 (1906), 100. [ clxxiii ] TABLE OF CASES CITED [References are to sections] Ratliff v. Quincy, O. & K. C. R. R. Co., 118 Mo. App. 644 (1906), 904. Rathbone v. Oregon R. R. Co., 40 Oreg. 225 (1901), 761. Ratzer v. Burlington, C. R. & N. Ry. Co., 64 Minn. 245 (1896), 1045. Rawlins v. Wabash Ry. Co., 97 Mo. App. 515 (1903), 341. Rawson v. Holland, 59 N. Y. 611 (1875), 1053. Ray v. United Traction, 96 N. Y. App. Div. 48 (1904), 626. Re, see the particular name. R. E. Lee, The, 2 Abb. (U. S.) 49 (1870), 769. Read v. Amidon, 41 Vt. 15 (1868), 341, 770, 969. Read v. St. Louis, K. C. & N. R.R. Co., 60 Mo. 199(1875), 912. Readhead v. Midland Ry. Co., L. R. 4 Q. B. 379 (1869), 977. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362 (1894), 1091, 1099, 1122, 1161,1166,1401,1402,1406, 1407, 1411, 1412, 1429. Reagan & B. v. Aiken, 9 Lea, 609 (1882), 1377. Reary v. Louisville, N. 0. & T. Ry. Co., 40 La. Ann. 32 (1888), 745. Reber v. Bond, 38 Fed. 822 (1889), 763. Redkey Natural Gas v. Orr (Ind.), 60 N. E. 716 (1901), 243, 707, 1288, 1300. Redlands L. & C. D. Water Co. v. Redlands, 121 Cal. 365 (1898), 1099, 1109, 1131, 1168, 1410. [ clxxiv ] Red Star Steamship Co. v. Jer- sey City, 45 N. J. L. 246 (1883), 406, 825. Reed v. Duluth & S. S. & A. Ry. Co., 100 Mich. 507 (1894), 872. Reed v. Philadelphia, W. & B. R. R. Co., 3 Houst. 176 (1865), 723, 872, 904. Reed v. Western Union Tele- graph Co., 135 Mo. 661 (1896), 133, 1014. Reed v. Wilmington Stb. Co., 1 Marv. (Del.) 193(1893), 727. Reed & Walker v. Philadelphia, W. & B. R. R. Co., 3 Houst. 176 (1865), 442. Reem v. St. Paul City Ry. Co., 77 Minn. 503 (1899), 945. Reese v. Pennsylvania R. R. Co., 131 Pa. St. 422 (1890), 887. Reg. v. Bristol & Exeter Ry. Co., 4 Q. B. 162 (1843), 211, 300. Reg. v. Eastern Counties Ry. Co., 10 Ad. & El. 531 (1839), 304. Reg. v. Rymer, 2 Q. B. D. 136 (1877), 263, 626, 974. Regan v. Grand Trunk Ry. Co., 61 N. H. 579 (1881), 521. Reg. v. Sprague, 63 J. P. 233 (1899), 558, 568. Regner v. Glens Falls, S. H. & F. E. St. Ry. Co., 26 N. Y. Supp. 625 (1893), 638, 645. Reid & B. v. Southern Ry. Co., 149 N. C. 423 (1908), 407. Reidman v. Brooklyn, Q. C. & S. Ry. Co., 51 N. Y. Supp. 196 (1898), 740. Relf v. Rapp, 3 W. & S. (Pa.) 21 (1841), 737, 990. Relyea v. New Haven R. M. Co., 42 Conn. 579 (1873), 748, 1269. TABLE OF CASES CITED [References are to sections] Renneker v. South Carolina R. R. Co., 20 S. C. 219 (1883), 978. Renville, Matter of, 46 N. Y. App. Div. 37 (1899), 244. Reuter v. El. T. Co., 6 E. & B. 341 (1856), 851. Rex v. Collins, Palmer, 373, 2 Rolle, 345 (1623), 12, 106, 203, 291, 314. Rex v. Ivens, 7 Car. & P. 213 (1835), 106, 396, 442, 557, 599, 632, 633. Rex v. Luellin, 12 Mod. 445 (1700), 363. Rex v. Smith, 65 J. P. 521 (1901), 106, 569. Reynolds v. Western Union Tele- graph Co., 81 Mo. App. 223 (1899), 871, 1041. R. G. Winslow, The, 4 Biss. 13 (1860), 731. Rhinehart, Matter of, 93 N. Y. App. Div. 410 (1904), 116. Rhodes v. Northern P. R. R. Co., 34 Minn. 87 (1885), 850. Rice v. Boston & W. R. R. Corp., 98 Mass. 212 (1867), 1043. Rice v. Illinois Central Ry. Co., 22 111. App. 643 (1887), 970. Rice v. Kansas Pacific Ry. Co., 63 Mo. 314 (1876), 1007. Rich v. Kneeland, Hob. 17, 13. Richards v. London, B. & S. C. Ry. Co., 7 C. B. 839 (1849), 769. Richards v. Wescott, 2 Bosw. 589 (1858), 171, 990. Richardson v. Chicago & A. Ry. Co., 149 Mo. 311 (1899), 1005. Richardson v. Hallstead, 44 Neb. 606 (1895), 1033. Richardson v. North Eastern Ry. Co., L. R. 7 C. P. 75 (1872), 414, 991. Richardson v. Sewell, 2 Smith, 205 (1805), 229. Richardson, Admr. v. Harrison, Admx., 36 Mo. 96 (1865), (1033). Richberger v. American Express Co., 73 Miss. 161 (1895), 931. Richman v. Consolidated Gas Co., 114 App. Div. 216 (1906), 1124, 1430. Richmond v. Dubuque & Sioux City R. R. Co., 26 Iowa, 191 (1868), 404, 492, 817. Richmond v. Smith, 8 B. & C. 9 (1828), 770, 964. Richmond v. Southern Pacific Co., 41 Oreg. 54 (1902), 1011. Richmond & D. R. R. Co. v. Jef- ferson, 89 Ga. 554 (1892), 942. Richmond & D. R. R. Co. v. Payne, 86 Va. 481 (1890), 1002, 1021. Richmond & D. R. R. Co. v. Trammel, 53 Fed. 196 (1892), 1405. Richmond & D. R. R. Co. v. Trousdale & Sons, 99 'Ala. 389 (1893), 916. Ricker v. Lancaster, 14 Lane. L. Rev. (Pa.) 393 (1897), 1159. Rickerson Roller Mill Co. v. Grand Rapids & I. R. R. Co., 67 Mich. 110 (1887), 517, 1033. Rider v. Wabash, St. L. & P. Ry. Co., 14 Mo. App. 529 (1884), 876. Ridyard v. Phillips, 4 Blatch. 443 (1860), 1269. [ clxxv ] TABLE OF CASES CITED [References are to sections] Riley v. Chicago City Ry. Co., 189 111. 384 (1901), 892. Riley v. Home, 5 Bing. 217 (1828), 1001. Riley v. Vallejo Ferry Co., 173 Fed. 330 (1909), 402. Riley v. Wrightsville & T. R. R. Co., 133 Ga. 413 (1909), 904. Ripley v. New Jersey R. R. & Transp. Co., 31 N. J. L. 388 (1866), 886. Rishton Local Board v. Lanca- shire & Y. Ry. Co., 8 R. & C. T. C. 74 (1893), 691. Ritz v. Pennsylvania R. R. Co., 3 Phila. 82 (1858), 256, 989. Rixford v. Smith, 52 N. H. 355 (1872), 256, 989. Roach v. Canadian Pacific Ry. Co., 1 Manitoba, 158 (1884), 514. Robbins v. Bangor Ry. & Elec. Co., 100 Me. 496 (1905), 431, 448, 624, 866, 883, 1244, 1245. Robbins v. Western Washington R. R. Co., 31 Pitts. L. J. (N. S.) 181 (1900), 226. Roberts v. Koehler, 30 Fed. 94 (1887), 353, 1255. Roberts v. Western Union Tele- ' graph Co., 73 S. C. 520 (1906), 874. Robertson v. Kennedy, 2 Dana, 430 (1834), 160, 162, 163, 168, 184, 228, 239, 262. Robertson v. New York & E. R. R. Co., 22 Barb. (N. Y.) 91 (1856), 745, 761. Robertson v. Old Colony R. R. Co., 156 Mass. 525 (1892), 259, 755, 769, 772, 792. Robinson v. Baltimore & 0. R. R. Co., 129 Fed. 753 (1904), 399, 420, 813, 868. [ clxxvi] Robinson v. Baltimore & 0. R. Co., 64 W. Va. 406 (1908), 1294. Robinson v. Cornish, 13 N. Y. Supp. 577 (1890), 168, 213. Robinson v. Dunmore, 2 B. & P. 416 (1801), 767, 769. Robinson v. Hoist & W., 96 Ga. 19 (1895), 905. Robinson v. Merchants' Dispatch Co., 45 Iowa, 470 (1877), 180. Robinson v. Rockland, T. & C. St. Ry. Co., 87 Me. 387 (1895), 632, 933. Robinson v. St. Johnsbury & L. C. Ry. Co., 80 Vt. 129 (1907), 477, 778. Roby v. State ex rel. Farmers' G. & L. S. Co., 76 Neb. 450 (1906), 224, 404, 491, 817, 822. Rochester v. Rochester & Lake Ontario Water Co., 189 N. Y. 323 (1907), 92, 274. Rochester & P. C. & I. Co. v. Berwind-White C. M. Co., 24 Pa. Co. Ct. 104 (1900), 226. Rockingham County Light & Power Co. v. Hobb, 72 N. H. 531 (1904), 56, 60, 95, 114, 243. Rockland Water Co. v. Adams, 84 Me. 472 (1892), 242, 846, 1249, 1250. Rocky Ford Canal, etc., Co. v. Simpson, 5 Colo. App. 30 (1894), 242. Rocky Mount Mills v. Wilming- ton & W. R. Co., 119 N. C. 693 (1896), 181. Rogers v. Atlantic City R. R. Co., 57 N. J. L. 703 (1895), 878. TABLE OF CASES CITED [References are to sections] Rogers v. Kennebec Stb. Co., 86 Me. 261 (1894), 786, 1018. Rogers v. Long Island R. R. Co., 2 Lans. (N. Y.) 269 (1869), 409, 730. Rogers v. Missouri Pacific Ry. Co., 75 Kan. 222 (1907), 917, 921. Rogers v. Stophel, 32 Pa. St. Ill (1858), 102. Rogers v. Wheeler, 52 N. Y. 262 (1873), 393, 724, 726. Rogers Locomotive Works v. Erie Ry. Co., 20 N. J. Eq. 379 (1869), 176, 214, 257, 473, 479, 695. Rogers Park Water Co. v. Chi- cago, 131 111. App. 35 (1907), 273. Rogers Park Water Co. v. Fergus, 178 111. 571 (1899), 1410. Rogers Park Water Co. v. Fergus, 180 U. 8.624(1901), 1424. Rohrig v. Chicago, R. I. & P. Ry. Co., 130 Iowa, 380 (1906), 742. Rome v. Oswego Road Co. v. Stone, 62 Barb. 601 (1863), 442. Rommel v. Schambacher, 120 Pa. St. 579 (1887), 936, 947. Root v. Great Western R. R. Co., 45 N. Y. 524 (1871), 212. Root v. Long I. R. R. Co., 114 N. Y. 300 (1889), 1282, 1356. Rose v. Des Moines Valley R. R. Co., 39 Iowa, 246 (1874), 785, 1011. Rosenberg v. Brooklyn Heights St. Ry. Co., 91 N. Y. App. Div. 580 (1904), 558. Rosenfield v. Express Co., 1 Woods (U. S.), 131 (1871), 1047. 12 Rosenfield v. Peoria, D. & E. Ry. Co., 103 Ind. 121 (1885), 1019. Ross v. Mellin, 36 Minn. 421 (1887), 725, 751. Ross v. New York Central & H. R. R. R. Co., 74 N. Y. 617 (1878), 783. Ross v. Troy & B. R. R. Co., 49 Vt. 364 (1877), 414, 991. Rosser v. Western Union Tele- graph Co., 130 N. C. 251 (1902), 765. Rothschild v. Wabash, St. L. & P. R. R. Co., 92 Mo. 91 (1887), 1287, 1320, 1361, 1363. Rott v. Forty-second St. Ferry R. Co., 56 N. Y. Super. Ct. 151 (1888), 369. Roussel v. Aumais, Rap. Jud. Quebec, 18 C. S. 474 (1900), 236, 237, 241, 268. Rowe v. Brooklyn Heights Ry. Co., 75 N. Y. Supp. 893 (1902), 881. Rowland v. New York, N. H. & H. R. R. Co., 61 Conn. 103 (1891), 1294. Rowley v. Home, 3 Bingham, 2 (1825), 1001. Roy & R. v. Northern Pacific Ry. Co., 42 Wash. 572 (1906), 747. Royston v. Illinois Central R. R. Co., 67 Miss. 376 (1889), 942. Rucher v. Missouri Pacific Ry. Co., 61 Tex. 499 (1884), 745. Rudell v. Grand Rapids Cold Storage Co., 136 Mich. 528 (1904), 143. Rudell v. Ogdensburg Transit Co., 117 Mich. 568 (1898), 922. Rudy v. Rio Grande E. Ry. Co., 8 Utah, 165 (1892), 889. [ clxxvii ] TABLE OF CASES CITED [References are to sections] Ruggles v. Illinois, 108 U. S. 526 (1883), 1428. Runyan v. Central R. Co., 61 N. J. L. 537, 64 N. J. L. 67, 65 N. J. L. 228 (1900), 626, 697, 875. Ruppel v. Allegheny Ry. Co., 167 Pa. St. 166(1895), 1122. Rural Home Telephone Co. v. Kentucky & I. Telephone Co., 32 Ky. Law Rep. 1068 (1908), 700. Ruscll v. Neriemann, 17 C. B. (N. S.) 163 (1864), 987. Rushville v. Rushville Natural Gas Co., 132 Ind. 575 (1892), 94, 112, 273. Russ v. Steamboat Eagle, 14 Iowa, 363 (1862), 442. Russell v. Erie R. R. Co., 70 N. J. 808 (1904), 1007. Russell v. Fegan, 7 Houst. 389 (1886), 965. Russell v. Pittsburg, C., C. & St. L. Ry. Co., 157 Ind. 305 (1901), 482, 779, 785, 1015. Russell v. Western Union Tele- graph Co., 57 Kan. 230 (1906), 348, 1014, 1025. Russel Grain Co. v. Wabash R. R. Co., 114 Mo. App. 488 (1905), 834. Rutherford v. Grand Trunk Ry. Co., 5 Rev. Leg. (Can.) 483 (1873), 251, 554. Rutland R. R. Co. v. Bellows Falls & S. R. St. Ry. Co., 73 Vt. 20 (1900), 526. Ryan v. Terminal Co., 102 Tenn. Ill (1899), 125. S Sadler v. Langham, 34 Ala. 311 (1859), 65, 241, 851. [ clxxviii ] Safe Deposit Co. of Pittsburg v. Pollock, 85 Pa. St. 391 (1877), 144. Sage v. Evansville & T. H. R. R. Co., 134 Ind. 100 (1892), 887. Sager v. Northern Pac. Ry. Co., 166 Fed. 526 (1908), 259. Sager v. Portsmouth, S. & B. Railroad Co., 31 Me. 228 (1850), 256, 796, 1001, 1011. St. Clair v. Kansas City, M. & B. R. R. Co., 76 Miss. 473 (1899), 602. St. Clair v. Kansas City, M. & B. R. R. Co., 77 Miss. 789 (1900), 602. St. Clair County v. Interstate Transfer Co., 192 U. S. 454 (1904), 127. St. Clair Tunnel Co. v. Powers, 138 Fed. 262 (1905), 128. St. John v. Express Co., 1 Woods, 612 (1871), 255, 413, 868, 1017. St. Joseph & Denver City R. R. Co. v. Ryan, 11 Kan. 602 (1873), 811. St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463 (1893), 176, 963. St. Joseph & Western R. R. Co. v. Wheeler, 35 Kan. 185 (1886), 745, 762. St. Louis & A. & C. R. R. Co. v. Dalby, 19 111. 353 (1857), 888. St. Louis & C. R. R. Co. v. Postal Tel. Co., 173 111. 508 (1898), 691. St. Louis & S. F. Ry. Co. v. Garner (Miss.), 51 So. 273 (1910), 410. TABLE OF CASES CITED [References are to sections] St. Louis & S. F. Ry. Co. v. Gill, 54 Ark. 101 (1891), 1127, 1175. St. Louis & S. F. Ry. Co. v. Gill, 156 U. S. 649 (1895), 1063, 1123, 1201, 1411, 1426, 1430, 1432. St. Louis & S. F. Ry. Co. v. Gos- nell, 23 Okla. 588 (1909), 763. St. Louis & S. F. Ry. Co. v. Hadley, 168 Fed. 317 (1909), 1099, 1128, 1129, 1132, 1135, 1152, 1195, 1196, 1206, 1220, 1301, 1373. St. Louis & S. F. Ry. Co. v. Hurst, 67 Ark. 407 (1900), 1023. St. Louis & S. F. Ry. Co. v. Marrs, 60 Ark. 637 (1895), 527. St. Louis & S. F. Ry. Co. v. Ostrander, 66 Ark. 567 (1899), 1294. St. Louis & S. F. Ry. Co. v. Phillips, 17 Okla. 264 (1906), 1023. St. Louis & S. F. Ry. Co. v. Roane, 93 Miss. 7 (1908), 602. St. Louis & S. F. Ry. Co. v. Sherlock, 59 Kan. 23 (1898), 1022. St. Louis & S. F. Ry. Co. v. Vaughan, 84 Ark. 311 (1907), 872. St. Louis, A. & T. Ry. Co. v. Finley, 79 Tex. 85 (1890), 638. St. Louis, A. & T. Ry. Co. v. Hardy, 55 Ark. 134 (1891), 1239. St. Louis, A. & T. H. R. R. Co. v. Hil!, 14 111. App. 579 (1884), 1286, 1292. St. Louis, A. & T. H. R. R. Co. V. Montgomery, 39 111. 335 (1866), 726. St. Louis, A. & T. H. R. R. Co. v. South, 43 111. 176(1867), 873. St. Louis, A. & T. Ry. Co. v. Turner, 1 Tex. Civ. App. 625 (1892), 1026. St. Louis Brewing Assn. v. St. Louis, 140 Mo. 419 (1897), 1321, 1324, 1335, 1354. St. Louis Drayage Co. v. Louis- ville & N. R. R. Co., 5 Int. Com. Rep. 137 (1894), 534. St. Louis Drayage Co. v. Louis- ville & N. R. R. Co., 65 Fed. 39 (1894), 490, 514. St. Louis, I. M. & S. Ry. Co. v. Bone, 52 Ark. 26 (1889), 1007. St. Louis, I. M. & So. Ry. Co. v. Edwards (Ark.), 127 S. W. 713 (1910), 1050. St. Louis, I. M. & So. Ry. Co. v. Green, 85 Ark. 117 (1908), 933. St. Louis, I. M. & So. Ry. Co. v. Greenthal, 77 Fed. 150 (1896), 942. St. Louis, I. M. & S. Ry. Co. v. Hampton, 162 Fed. 693 (1908), 799. St. Louis, I. M. & S. Ry. Co. v. Heath, 41 Ark. 476 (1883), 901. St. Louis, I. M. & S. Ry. Co. v. Jones, 93 Ark. 537 (1910), 1011. St. Louis, I. M. & S. Ry. Co. v. Knight, 122 U. S. 79 (1887), 393, 726, 727. St. Louis, I. M. & S. Ry. Co. v. Lee, 69 Ark. 584 (1901), 399, 403, 723. [ clxxix ] TABLE OF CASES CITED [References are to sections] St. Louis, I. M. & S. Ry. Co. v. Marshall, 74 Ark. 597 (1905), 794, 796. St. Louis, I. M. & S. Ry. Co. v. Ozier, 86 Ark. 179 (1908), 394, 399. St. Louis, I. M. & S. Ry. Co. v. Petty, 57 Ark. 359 (1893), 224 St. Louis, I. M. & S. Ry. Co. v. Renfroe, 82 Ark. 143 (1907), 795. St. Louis, I. M. & S. Ry. Co. v. Shaw (Ark.), 125 S. W. 654 (1910), 944. St. Louis, I. M. & S. Ry. Co. v. State, 84 Ark. 150 (1907), 391, 797, 812. St. Louis, I. M. & S. Ry. Co. v. Taylor, 87 Ark. 331 (1908), 723. St. Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 Ark. 489 (1901), 371. St. Louis, I. M. & S. Ry. Co. v. Townes, 93 Ark. 430 (1910), 1038. St. Louis, I. M. & S. Ry. Co. v. Weakly, 50 Ark. 397 (1887), 1003, 1021. St. Louis, I. M. & S. Ry. Co. v. Wilson, 70 Ark. 136 (1902), 941. St. Louis, I. M. & S. Ry. Co. v. Wynne H. & C. Co., 81 Ark. 373 (1907), 399, 404, 663, 664, 798, 816, 835, 1433. St. Louis, J. & C. R. R. Co. v. Mathers, 71 111. 592 (1874), 811. St. Louis Ry. Co. v. Bland (Tex. Civ. App.), 34 S. W. 675 (1896), 920. [ clxxx ] St. Louis S. W. Ry. Co. v. Clay Ginn. Co., 77 Ark. 357 (1906), 798, 802, 835, 855. St. Louis S. W. Ry. Co. v. Grif- fith, 12 Tex. Civ. App. 631 (1896), 946. St. Louis S. W. Ry. Co. v. Jack- son & Co. (Tex. Civ. App.), 118 S. W. 853 (1909), 514. St. Louis S. W. Ry. Co. v. John- son, 29 Tex. Civ. App. 184 (1902), 938. St. Louis S. W. Ry. Co. v. Leder, 79 Ark. 59 (1906), 798. St. Louis S. W. Ry. Co. v. Mc- Cullough, 18 Tex. Civ. App. 534 (1898), 872. St. Louis S. W. Ry. Co. v. Mc- Intyre, 36 Tex. Civ. App. 399 (1904), 1022. St. Louis S. W. Ry. Co. v. Phoanix Cotton Oil Co., 88 Ark. 594 (1909), 804. St. Louis S. W. Ry. Co. v. Ray (Tex. Civ. App.), 127 S. W. 281 (1910), 407. St. Louis S. W. Ry. Co. v. State, 85 Ark. 311 (1907), 529, 531. St. Paul v. Smith, 27 Minn. 364 (1880), 484. Sales v. Western Stage Co., 4 Iowa, 547 (1857), 262, 978. Salt Lake City v. Salt Lake City W. & E. Power Co., 24 Utah, 249 (1902), 114. Salt River Valley Canal Co. v. Nelssen, 10 Ariz. 9 (1906), 93. Saltonstall v. Stockton, Taney, 11 (1838), 184, 335. Sammons v. Kearney P. & I. Co., 77 Neb. 580 (1906), 95, 687. TABLE OF CASES CITED [References are to sections] Samms v. Stewart, 20 Ohio, 70 (1851), 162, 228. Sample v. Fresno F. & Irrigation Co., 129 Cal. 222 (1900), 594. Samuel v. Cheney, 135 Mass. 278 (1883), 1049. Samuels v. Louisville & N. Ry. Co., 31 Fed. 57 (1887), 524, 533, 682, 1286, 1287. Samuels v. Richmond & D. R. R. Co., 35 S. C. 493 (1891), 1044. San Antonio & A. P. Ry. Co. v. Josey (Tex. Civ. App.), 71 S. W. 606 (1903), 916. San Antonio & A. P. Ry. Co. v. Lynch (Tex.), 55 S. W. 517 (1900), 864. San Antonio & A. P. Ry. Co. v. Newman, 17 Tex. Civ. App. 606 (1897), 889. San Antonio & A. P. Ry. Co. v. Robinson, 79 Tex. 608 (1891), 207, 762. San Antonio & A. P. Ry. Co. v. Safford (Tex. Civ. App.), 48 S. W. 1105 (1898), 410. San Antonio & A. P. Ry. Co. v. Stribling, 99 Tex. 319 (1905) 515,521. San Antonio & A. P. Ry. Co. v. Turner, 42 Tex. Civ. App. 532 (1906), 902. San Antonio St. Ry. Co. v. State, 90 Tex. 520 (1897), 212, 306, 308. San Diego Flume Co. v. Souther, 112 Fed. 228 (1901), 652. San Diego L. & T. Co. v. Jasper, 189 U. S. 439 (1903), 1085, 1099, 1124, 1166, 1410, 1430. San Diego L. & T. Co. v. Na- tional City,. 74 Fed. 79 (1896), 1092, 1177. San Diego L. & T. Co. v. Na- tional City, 174 U. S. 739 (1899), 93, 1065, 1091, 1099, 1124, 1166, 1177, 1410, 1430. San Diego L. & T. Co. v. Sharp, 97 Fed. 394 (1899), 305, 338, 411. San Diego Water Co. v. San Diego, 118 Cal. 556 (1897), 1081, 1109, 1111, 1168, 1171, 1410. San Francisco A. & S. R. R. Co. v. Caldwell, 31 Cal. 367 (1866), 58. San Joaquin & Kings R. C. & I. Co. v. Stanislaus County, 163 Fed. 567 (1898), 1166. San Joaquin Canal & Irrigation Co. v. Stanislaus County, 113 Fed. 930 (1902), 1425, 1430. Sanders v. Young, 1 Head, 219 (1858), 182, 241. Sanderson v. Panther L. Co., 50 W. Va. 42 (1901), 783. Sandford v. Am. Dist. Tel. Co., 13 Misc. 88 (1895), 108. Sandford v. Catawissa R. R. Co., 24 Pa. St. 378 (1855), 473, 479, 1290. Sandford v. Housatonic R. R. Co., 11 Gush. 155 (1853), 1023. Sands v. Manistee River Im- provement Co., 123 U. S. 288 (1887), 72. Sandys v. Florence, 47 L. I. C. P. 598 (1878), 966, 979. Santa Fe, P. & P. Ry. Co. v. Grant Bros. C. Co. (Ariz.), 108 Pac. 467 (1910), 209, 239, 250, 253, 259, 399, 750, 756. [ clxxxi ] TABLE OF CASES CITED [References are to sections] Sargent v. Boston & L. R. R. Co., 115 Mass. 416 (1874), 477, 1328. Sasseen et al. v. Clark, 37 Ga. 242 (1867), 1034. Satterlee v. Groat, 1 Wend. 272 (1828), 208, 295, 314. Savannah & 0. Canal Co. v. Shuman, 91 Ga. 400 (1893), 122, 212, 241, 299, 302, 578 Savannah, F. & W. Ry. Co. v. Boyle, 115 Ga. 836 (1902), 941, 942, 944. Savannah, F. & W. Ry. Co. v. Burdick, 94 Ga. 775 (1894), 1289, 1290, 1294. Savannah, F. & W. Ry. Co. v. Harris, 26 Fla. 148 (1890), 513. Savannah, F. & W. Ry. Co. v. Quo, 103 Ga. 125 (1897), 935, 938. Savannah, G. & N. A. R. R. Co. v. Wilcox, Gibbs & Co., 48 Ga. 432 (1873), 1046. Savannah Ry. Co. v. Commer- cial Guana Co., 103 Ga. 590 (1898), 920. Savannah, S. & S. R. R. Co. v. Bonand, 58 Ga. 180 (1877), 872, 904. Savannah Street Ry. Co. v. Bryan, 86 Ga. 312 (1890), 946. Savitz v. Ohio & M. Ry. Co., 150 111. 208 (1894), 1356. Sayre v. Louisville Union Benev- olent Association, 1 Duv. 143 (1863), 694. Scaife v. Farrant, L. R. 10 Ex. 358 (1875), 169. Scarfe v. Farrant, L. R. 10 Exch. 358 (1875), 230. [ clxxxii ] Schalscha v. Third Ave. R. R. Co., 19 Misc. (N. Y.) 141 (1897), 769. Schiffler v. Chicago & N. W. Ry. Co., 96 Wis. 141 (1897), 397, 804, 861. Schlesinger & Sons v. New York, N. H. & H. R. R. R. Co., 85 N. Y. Supp. 372 (1903), 1048. Schloss v. Wood, 11 Colo. 287 (1888), 204, 205. Schmidt v. Chicago & N. W. Ry. Co., 90 Wis. 504 (1895), 393, 726. Schneider v. People, 30 Colo. 493 (1903), 384. Schofield v. Lake Shore & Mich- igan Southern Ry. Co., 43 Ohio St. 571 (1885), 1290, 1291, 1322, 1326, 1356. Scholes v. Ackerland, 15 111. 474 (1854), 1039. School District v. Enterprise Nat. Gas Co., 18 Pa. Sup. Ct. 73 (1901), 216. Schooner Freeman v. Bucking- ham, 18 How. (U. S.) 182 (1855), 747. Schuyler v. Southern Pacific Ry. Co. (Utah), 109 Pac. 458 (1910), 777, 1302. Schumaker v. Chicago & N. W. Ry. Co., 207 111. 199 (1904), 1050. Schwede v. Hemrich Bros. Brew- ing Co., 29 Wash. 21 (1902), 226. Scioto Valley Traction Co. v. Graybill, 29 Ohio Cir. Ct. 95 (1906), 629. Scull v. Atlantic C. L. R. R. Co., 144 N. C. 180 (1907), 1382. TABLE OF CASES CITED [References are to sections] Seaboard Air Line Ry. Co. v. Florida, 203 U. S. 261 (1908), 1078, 1081, 1100, 1198, 1200, 1209, 1210, 1385. Seaboard Air Line Ry. Co. v. O'Quin, 124 Ga. 357 (1905), 645. Seaboard Air Line Ry. Co. v. Railroad Comm., 155 Fed. 792 (1907), 1123, 1129, 1220, 1430. Seaboard Air Line Ry. Co. v. Seegers, 207 U. S. 73 (1907), 1436. Seaman v. Adler, 37 Fed. 268 (1889), 1269. Searles v. Mann Boudoir Car Co., 45 Fed. 330 (1891), 153, 832, 846. Sears v. Eastern R. R. Co., 14 Allen, 433 (1867), 204, 397, 863, 872, 904. Sears v. Street Commissioners, 180 Mass. 274 (1880), 64, 125. Sears v. Wingate, 3 Allen, 103 (1861), 747. Seasongood v. Tennessee & 0. R. Transp. Co., 21 Ky. Law Rep. 1142 (1899), 515. Seattle Electric Co. v. Snoqua- lime Falls Power Co., 40 Wash. 380 (1905), 316, 352. Seaver v. Bradley, 179 Mass. 329 (1901), 193. Seavey Co. v. Union Transit Co., 106 Wis. 394 (1900), 907. Seawell v. Carolina Central R. R. Co., 133 N. C. 515 (1903), 944. Seawell v. Kansas City, F. S. & M. R. R. Co., 119 Mo. 222 (1893), 1413. Secombe v. Milwaukee & St. Paul Ry. Co., 23 Wall. 108 (1874), 58. Segal v. St. Louis S. W. Ry. Co., 35 Tex. Civ. App. 517 (1904), 944. Seibert v. Railway Co., 15 Pa. Super. Ct. 435 (1900), 1049. Selby v. Wilmington & W. R. Co., 113 N. C. 588 (1893), 989. Self v. Dunn, 42 Ga. 528 (1871), 237, 239, 241, 968. Seligman v. Armijo, 1 N. Mex. 459 (1870), 174, 666, 911, 986. Seller v. Steamship Pacific, 1 Oreg. 409 (1861), 1004. Selma & M. R. R. Co. v. Butts & Foster, 43 Ala. 385 (1869), 517. Selway v. Holloway, 1 Ld. Ray. 46 (1695), 400. Sevier v. Vicksburg & M. R. R. Co., 61 Miss. 8 (1883), 933 Sewall v. Allen, 6 Wend. (N. Y.) 335 (1830), 255. Sewickley School Dist. v. Ohio Valley Gas Co., 154 Pa. St. 539 (1893), 458. Seybolt v. New York, L. E. & W. R. R. Co., 95 N. Y. 562 (1884), 777. Seyfer v. Otoe County, 66 Neb. 566 (1902), 795. Seymour v. Cook, 53 Barb. 451 (1868), 1034. Shackelford's Heirs v. Coffey, 4 J. J. Marsh. 40 (1830), 65. Sharp & M. v. Clark et al., 13 Utah, 510 (1896), 1042. Sharrer v. Paxson, 171 Pa. St. 26 (1895), 736. [ clxxxiii ] TABLE OF CASES CITED [References are to sections] Shaw v. Berry, 31 Me. 478 (1850), 965. Shaw v. Gt. Western Ry. Co. (1894), 1 Q. B. 373 (1893), 1012. Shaw v. Northern Pac. R. R. Co., 40 Minn. 144 (1889), 393, 727. Shaw v. Postal Telegraph & C. Co., 79 Miss. 670 (1901), 1010. Shaw v. Ray, 1 Cr. & Dix. C. C. 84 (1839), 770, 969. Shaw v. San Diego Water Co. (Cal.), 50 Pac. 693 (1897), 1244, 1245. Shaw Stocking Co. v. Lowell, 199 Mass. 118 (1908), 825, 1244, 1245. Sheerman v. Toronto, etc., Co., 34 U. C. Q. B. 451 (1874), 207. Sheets v. Ohio River Ry. Co., 39 W. Va. 475 (1894), 863, 889. Sheffer v. Willoughby, 163 111. 518 (1896), 263, 974. Sheffield Waterworks Co. v. Wilkinson, 4 C. P. D. 410 (1879), 456. Shelbyville R. R. Co. v. Louis- ville C. & L. R. R. Co., 82 Ky. 541 (1885), 527, 811. Shelby v. Farmers' Cooperative Ditch Co., 10 Idaho, 732 (1905), 652. Shelden v. Robinson, 7 N. H. 157 (1834), 160, 184, 744. Sheldon v. New Orleans Canal Co., 9 Rob. (La.) 360 (1844), 122. Shellenberg v. Fremont, E. & M. V. R. R. Co., 45 Neb. 487 (1895), 1047. [ clxxxiv ] Shelton v. Erie R. R. Co., 73 N.J.L. 558 (1907), 889. Shelton v. Lake S. & M. S. Ry. Co., 29 Ohio St. 214 (1876), 890. Shenk v. Philadelphia Steam Propeller Co., 60 Pa. St. 109 (1869), 1038. Shepard v. Gold & Stock Tele- graph Co., 38 Hun, 338 (1885), 137, 624, 884. Shepard v. Milwaukee Gaslight Co., 6 Wis. 539 (1858), 111, 273, 280, 411, 434, 877, 883 % Shepard "v. Milwaukee Gaslight Co., 15 Wis. 318 (1862), 31. Shepherd v. Milwaukee Gas- light Co., 11 Wis. 234 (1860), 411. Sheridan v. Brooklyn & N. Ry. Co., 36 N. Y. 39 (1873), 635, 638, 933. Sherley v. Billings, 8 Bush (Ky.), 147 (1871), 939. Sherlock v. K. C. Belt Ry. Co., 142 Mo. 172 (1897), 226. Sherman v. Hannibal & S. J. R. R. Co., 72 Mo. 62 (1880), 745. Sherman v. Hudson River R. R. Co., 64 N. Y. 254 (1876), 1033. Sherman v. Pennsylvania R. R. Co., Fed. Gas. No. 12,769 (1880), 667, 987. Sherman v. Wells, 28 Barb. 403 (1858), 963. Sherrill v. Western Union Tele- graph Co., 109 N. C. 527 (1891), 348, 1025, 1026. Sherwood v. Atlantic & D. Ry. Co., 94 Va. 291 (1897), 306. TABLE OF CASES CITED [References are to sections] Sheward v. Citizens' Water Co., 90 Cal. 635 (1891), 452, 1244, 1245, 1251, 1354. Shingleur v. Western Union Tel- egraph Co., 72 Miss. 1030 (1895), 348. Shinn v. Cotton, 52 Ark. 90 (1889), 237, 239, 241, 968. Shipley v. Baltimore & Potomac R. R. Co., 34 Md. 336 (1871), 58. Shipper v. Pennsylvania R. R. Co., 47 Pa. St. 338 (1864), 431. Shipton v. Thornton, 9 A. & E. 314 (1838), 1264. Shiras v. Ewing, 48 Kan. 170 (1892), 411, 452, 866. Shoecraft v. Bailey, 25 la. 553 (1868), 751, 969. Shoemaker v. Kingsbury, 12 Wall. 369 (1870), 207, 764. Sholl v. German Coal Co., 118 111. 427 (1887), 226. Short v. St. Louis & S. F. Ry. Co. (Mo. App.), 130 S. W. 488 (1910), 738. Show v. Carruth, 1 Sprague, 324 (1856), 724. Shultz v. Wall, 134 Pa. St. 262 (1890), 964. Sibley v. Aldrich, 33 N. H. 553 (1856), 965. Sickles v. Brooklyn Heights R. R. Co., 99 N. Y. S. 953 (1906), 864. Sickles v. Manhattan Gaslight Co., 64 How. Pr. 33 (1882), s. c., 66 How. Pr. 314 (1884), 458. Silkman v. Water Commis- sioners, 152 N. Y. 327 (1897), 218, 456, 1321, 1354. Siller v. Louisville & N. R. R. Co., 213 U. S. 175 (1909), 1408. Silver v. Hall, 2 Mo. App. 557 (1876), 952. Simkins v. Norwich & N. L. St. Co., 11 Gush. 102 (1853), 905, 906, 921. Simons v. Gt. Western Ry. Co., 18 C. B. 805 (1856), 1023. Simmons v. Oregon R. R. Co., 41 Oreg. 151 (1902), 784. Simmons v. Seaboard A. L. Ry. Co., 133 Ga. 635 (1909), 408. Sioux City & P. Ry. Co. v. First Nat. Bank of F., 10 Neb. 556 (1880), 748. Six Carpenters' Case, The, 8 Coke 146a (1610), 630. Skinner v. Atchison, T. & S. F. Ry. Co., 39 Fed. 188 (1889), 937. Skinner v. Chicago & R. I. R. R. Co., 12 Iowa, 191 (1861), 1046. Skinner v. Hall, 60 Me. 477 (1872), 1033. Skinner v. London, B. & S. C. Ry. Co., 5 Ex. 787 (1850), 757. Slater v. South Carolina Ry. Co., 29 S. C. 96 (1888), 655, 984, 985. Slim v. Great Northern R. R. Co., 14 C. B. 647 (1854), 400, 1001. Sloman v. Great Western Ry. Co., 67 N. Y. 208 (1876), 876. Slosser v. Salt River Canal Co., 7 Ariz. 376 (1901), 93, 231, 242. Smallman v. Whilter, 87 111. 545 (1877), 500. [ clxxxv] TABLE OF CASES CITED [References are to sections] Smeltzer v. St. Louis & S. F. Ry. Co., 158 Fed. 649 (1908), 1008. Smith v. Alabama, 124 U. S. 465 (1888), 1418. Smith v. Atchison, T. & S. F. Ry. Co., 122 Mo. App. 85 (1907), 626, 880. Smith v. Barre Water Co., 73 Vt. 310 (1901), 264. Smith v. Birmingham Water- works, 104 Ala. 315 (1893), 216, 451, 825. Smith v. Birmingham Ry. L. & P. Co., 147 Ala. 702 (1906), 401. Smith v. Boston & M. R. R. Co., 44 N. H. 325 (1862), 875. Smith v. Capital Gas Co., 132 Cal. 209 (1901), 825. Smith v. Chamberlain, 38 S. C. 529 (1892), 566, 848, 881. Smith v. Chicago, R. I. & P. Ry. Co., 112 Mo. App. 610 (1905), 1026. Smith v. City & Surburban Ry. Co., 29 Oreg. 539 (1896), 1044. Smith v. Cleveland, C., C. & St. L. Ry. Co., 92 Ga. 539 (1893), 915. Smith v. Gold & S. Tel. Co., 42 Hun, 454 (1886), 137. Smith v. Great No. Ry. Co., 15 N. D. 195 (1906), 1234. Smith v. Keyes, 2 Th. & C. (N. Y.) 650 (1874), 432, 751. Smith v. Louisville, E. & St. L. R. R. Co., 124 Ind. 394 (1890), 764. Smith v. Michigan Cent. Ry. Co., 100 Mich. 148 (1894), 256. [ clxxxvi ] Smith v. Nashville, 88 Tenn. 464 (1890), 218. Smith v. New York, L. E. & W. R. R. Co., 149 Pa. St. 249 (1892), 484. Smith v. Pierce, 1 La. 349 (1830), 173. Smith v. Pittsburg, Ft. W. & C. R. R. Co., 23 Ohio St. 10 (1872), 888. Smith v. St. Paul City Ry. Co., 32 Minn. 1 (1884), 736, 966. Smith v. Scran ton Gas & Water Co., 5 Lack. L. News, 235 (1899), 448, 452. Smith v. Seward, 3 Pa. St. 342 (1846), 182. Smith v. State, 100 Tenn. 494 (1898), 566, 848. Smith v. Western Ry. of Ala., 91 Ala. 455 ( 1 890) , 656, 920, 985. Smith v. Western Union Tele- graph Co., 83 Ky. 104 (1885), 1025. Smith v. Western Union Tele- graph Co., 72 S. C. 116 (1905), 599. Smith v. Western Union Tele- graph Co., 84 Ky. 664 (1887), 603, 607. Smith & Melton v. North Car- olina R. R. Co., 64 N. C. 235 (1870), 1007. Smitha v. Louisville & N. Ry. Co., 86 Tenn. 198 (1887), 1026. Smyth v. Ames, 169 U. S. 466 (1898), 1062, 1067, 1071, 1091, 1099, 1123, 1131, 1156, 1194, 1196, 1402, 1411, 1412, 1430. Snaman v. Mo., K. & T. Ry. Co. (Tex. Civ. App.), 42 S. W. 1023 (1897), 876. TABLE OF CASES CITED [References are to sections] Sneider v. Geiss, 1 Yeates (Pa.), 34 (1791), 743, 744. Snell v. Clinton Electric Light Co., 196 111. 626 (1902), 113, 243, 502, 706, 823, 824, 825, 826, 1290, 1300. Snelling v. Yetter, 25 App. Div. 590 (1898), 170, 236, 238. Snider v. Adams Express Co., 63 Mo. 376 (1876), 1003. Snow v. Indiana, B. & W. Ry. Co., 109 Ind. 422 (1886), 521, 533. Snyder v. Depot Co., 19 Ohio Cir. Ct. 368 (1899), 483. Snyder v. Natchez R. R. & T. R. R. Co., 42 La. Ann. 302 (1890), 761, 762. Solan v. Chicago, M. & St. P. Ry. Co., 95 Iowa, 260 (1895), 1022. South & N. 0. A. R. R. v. Henlein, 52 Ala. 606 (1875), 256, 989, 1011. South & N. Alabama R. R. Co. v. Wood, 66 Ala. 167 (1880), 1042, 1043. South Chicago City Ry. Co. v. Calumet Ry. Co., 171 111. 391 (1898), 693. South Eastern Ry. v. Ry. Commrs., 50 L. J. Q. B. 201 (1881), 807. South Florida R. R. Co. v. Rhodes, 25 Fla. 40 (1889), 558, 697, 865. South Florida Telegraph Co. v. Maloney, 34 Fla. 338 (1894), 345. South Kansas Ry. v. Hinsdale, 38 Kans. 507 (1888), 431, 878. Southcote's Case, 4 Coke, 836, 962. Souther v. San Diego Flume Co., 121 Fed. 347 (1903), 93, 852. Southern B. & L. Assn. v. Law- son, 97 Tenn. 367 (1896), 193. Southern Bell Telephone & T. Co. v. McTyer, 137 Ala. 601 (1902), 984, 1051. Southern Express Co. v. Arm- stead, 50 Ala. 350 (1873), 1004, 1040. Southern Express Co. v. Ashford, 126 Ala. 591 (1899), 230. Southern Express Co. v. Bailey, 7 Ga. App. 331 (1910), 988. Southern Express Co. v. Barnes, 36 Ga. 532 (1867), 1024. Southern Express Co. v. Caper- ton, 44 Ala. 101 (1870), 1002, 1024, 1026. Southern Express Co. v. Crook, 44 Ala. 468 (1870), 178, 776. Southern Express Co. v. Dixon, 94 U. S. 549 (1876), 1045. Southern Express Co. v. Everett, 37 Ga. 688 (1868), 623, 737, 990. Southern Express Co. v. Hess, 53 Ala. 19 (1875), 776. Southern Express Co. v. Hill, 81 Ark. 1 (1906), 1022. Southern Express Co. v. Holland, 109 Ala. 362 (1895), 1040. Southern Express Co. v. Hunni- cutt, 54 Miss. 566 (1877), 1023, 1025. Southern Express Co. v. Kauf- mann, 12 Heisk. 161 (1873), 990. Southern Express Co. v. Memphis R. R. Co., 2 McCreary, 570 (1881), 477. Southern Express Co. v. Meyer Co. (Ark), 125 S. W. 642 (1910), 338. [ clxxxvii ] TABLE OF CASES CITED [References are to sections] Southern Express Co. v. Moon, 39 Miss. 822 (1863), 178, 1011. Southern Express Co. v. Newby, 36 Ga. 635 (1867), 178, 732, 776. Southern Express Co. v. Owens, 146 Ala. 412 (1906), 1019, 1020, 1021. Southern Express Co. v. Palmer etal.,48Ga.85(1873), 1047. Southern Express Co. v. Rose Co., 124 Ga. 581 (1905), 178, 600. Southern Express Co. v. St. Louis, I. M. & S. Ry. Co., 3 Mc- Creary, 872 (1882), 776. Southern Express Co. v. Seide, 67 Miss. 609 (1890), 1022. Southern Express Co. v. State, 107 Ga. 670 (1899), 600, 612. Southern Express Co. v. Van Meter, 17 Fla. 783 (1880), 178, 776, 1049. Southern Express Co. v. Wil- liams, 99 Ga. 482 (1896), 1048. Southern Express Co. v. Wor- mack, 1 Heisk. 256 (1870), 178, 666, 776, 911, 986. Southern 111. & Mo. Bridge Co. v. Stone, 174 Mo. 1 (1902), 126. Southern Indiana Express Co. v. United States Express Co., 88 Fed. 659 (1898), 523. Southern Indiana Express Co. v. United States Exp. Co., 92 Fed. 1022 (1899), 431, 435, 523, 682. Southern Indiana R. R. Co. v. Railroad Commission, 87 N. E. 966 (1909), 1127. Southern Kansas Ry. Co. v. Hins- dale, 38 Kans. 507 (1888), 885. [ clxxxviii ] Southern Kansas Ry. Co. v. Mor- ris (Tex. Civ. App.), 99 S. W. 433 (1907), 833. Southern Kansas Ry. Co. v. Samples (Tex. Civ. App.), 109 S. W. 417 (1908), 833. Southern Light & Traction Co. v. Compton, 86 Miss. 269 (1905), 848, 881. Southern Pacific Co. v. Arnett, 61 C. C. A. 131 (1903), 902, 915. Southern Pacific Co. v. Bartine, 170 Fed. 751 (1910), 1086, 1092, 1099. Southern Pacific Co. v. Booth (Tex. Civ. App.), 39 S. W. 585 (1897), 908. Southern Pacific Co. v. Gavin, 144 Fed. 348 (1906), 777. Southern Pacific Co. v. In- terstate Comm. Comm., 200 U. S. 536 (1906), 534, 694. Southern Pacific Co. v. Patterson (Tex. Civ. App.), 451 (1894), 126, 1262. Southern Pacific Co. v. Railroad Commissioners, 78 Fed. 236 (1896), 1099, 1105, 1123, 1154, 1155, 1156, 1166, 1179, 1409, 1430. Southern Pacific Co. v. Robinson, 132, Cal. 408 (1901), 347. Southern Pacific Co. v. Redding (Tex. Civ. App.), 43 S. W. 1061 (1897), 1294. Southern Ry. Co. v. Adams, 115 Ga. 705 (1902), 1023. Southern Ry. Co. v. Atlanta Sand & S. Co. (Ga.), 68 S. E. 807 (1910), 663, 665, 668, 799, 801, 840, 912, 914. TABLE OF CASES CITED [References are to sections] Southern Ry. Co. v. Atlanta Stove Works, 128 Ga. 207 (1907), 1063, 1201, 1225, 1383. Southern Ry. Co. v. Barlow, 104 Ga. 213 (1898), 347. Southern Ry. Co. v. Common- wealth, 98 Va. 758 (1900), 540, 872. Southern Ry. Co. v. Deakins, 107 Tenn. 522 (1901), 914, v 922. Southern Ry. Co. v. Franklin Ry. Co., 96 Va. 693 (1899), 211, 212, 305. Southern Ry. Co. v. Harrington (Ala.), 52 So. 57 (1910), 777. Southern Ry. Co. v. Harrison, 119 Ala. 539 (1898), 1294. Southern Ry. Co. v. Lanning, 83 Miss. 161 (1903), 410. Southern Ry. Co. v. Lee, 30 Ky. L. Rep. 1360 (1907), 341. Southern Ry. Co. v. Levy, 39 So. 95 (1905), 963. Southern Ry. Co. v. Lockwood Mfg. Co., 142 Ala. 322 (1904), 1050. Southern Ry. Co. v. McNeil, 155 Fed. 756 (1907), 1063, 1123, 1201, 1430, 1431. Southern Ry. Co. v. Moore (Ga.), 67 S. E. 85 (1910), 332. Southern Ry. Co. v. Railroad Commission, 42 Ind. App. 90 (1907), 1238, 1382. Southern Ry. Co. v. St. Louis, H. & G. Co., 156 Fed. 728 (1906), 1373. Southern Ry. Co. v. St. Louis H. & G. Co., 214 U. S. 297 (1909), 1192. Southern Ry. Co. v. Smith, 86 Fed. 292 (1898), 401. Southern Ry. Co. v. State (Miss.), 48 So. 236 (1909), 809. Southern Ry. Co. v. Thurman, 28 Ky. L. Rep. 699 (1906), 849. Southern Ry. Co. v. Tift, 206 U. S. 428 (1906), 1129, 1294. Southern Ry. Co. v. Wallis, 133 Ga. 553 (1909), 410. Southern Ry. Co. v. Webb, 143 Ala. 304 (1905), 772. Southern Ry. Co. v. Wilcox, 99 Va. 394 (1901), 723, 915. Southern Ry. Co. v. Wood, 114 Ga. 159 (1901), 844. Southern Wire Co. v. St. Louis, B. & T. R. R. Co., 38 Mo. App. 191 (1899), 1297. Southward v. Myers, 3 Bush, 681 (1868), 240, 968. Southwestern R. R. Co. v. Webb, 48 Ala. 585 (1872), 176, 740. Southwestern R. R. Co. v. Single- ton, 66 Ga. 252 (1880), 754. Southwestern Teleg. & Tel. Co. v. Luckett (Tex. Civ. App.), 127 S. W. 856 (1910), 451, 1250. Southwood v. Myers,, 3 Bush, 681 (1868), 234. Spade v. Hudson R. R. R. Co., 16 Barb. 383 (1853), 393, 399, 726. Spade v. L. & Boston Ry. Co., 172 Mass. 488 (1899), 943. Spalding v. Macomb & W. I. Ry. Co., 225 111. 585 (1907), 262. Spangler v. St. Joseph & G. I. Ry. Co., 68 Kans. 46 (1903), 942. Spannagle v. C. & A. R. R. Co., 31 111. App. 460 (1889), 401. Sparks v. Philadelphia, etc., Ry., 212 Pa. St. 105 (1905), 191. [ clxxxix ] TABLE OF CASES CITED [References are to sections] Spears & G. v. Lake Shore & M. S. R. R. Co., 67 Barb. 513 (1876), 971. Speers v. Spartanburg, U. & C. R. R. Co., 11 S. C. 158 (1878), 1036. Spellman v. Lincoln Rapid Tran- sit Co., 36 Neb. 890 (1893), 190, 978. Spence v. Chicago, R. I. & P. Ry. Co., 117 la. 1 (1902), 207. Spencer v. Daggett, 2 Vt. 92 (1829), 166, 229, 239. Spivy v. Farmer, 2 Hawy. 339 (1805), 182, 241. Split Rock Cable Road Co., Mat- ter of the, 128 N. Y. 408 (1891), 61, 222. Spofford v. Boston & M. R. R. Co., 128 Mass. 326 (1880), 1283. Spofford v. Pennsylvania R. R. Co., 11 Pa. Super. Ct. 97 (1899), 400, 729. Sprague v. Missouri Pacific Ry. Co., 34 Kans. 347 (1885) , 1023. Sprague v. New York Cent. R. R. Co., 52 N. Y. 637 (1873), 517, 1033. Sprague v. Southern Ry. Co., 92 Fed. 59 (1899), 763. Springer v. Wescott, 29 N. Y. Supp. 149 (1894), 756. ' tringfield Consolidated Ry. Co. v. Flynn, 55 111. App. 600 (1894), 942. ring Valley Water Works v. San Francisco, 82 Cal. 286 (1890), 92, 1091, 1099, 1123, 1430. -ing Valley Water Works v. San Francisco, 124 Fed. 574 (1903), 92, 1091, 1099, 1101, 1104, 1109, 1123, 1131, 1136, 1110, 1430. [ cxc] Spring Valley Water Works v. Schottler, 110 U. S. 347 (1884), 92, 1428. Sproul v. Hemmingway, 14 Pick. 1 (1833), 173, 744. Sproule v. St. Louis & S. F. Ry. Co. (Tex. Civ. App.), 91 S. W. 657 (1906), 777. Squire v. New York Central R. R. Co., 98 Mass. 239 (1867), 1021. Stadhecker v. Combs, 9 Rich. Law, 193 (1856), 178, 776. Stamey v. Western Union Tel. Co., 92 Ga. 613 (1894), 742, 980, 1014. Standard Oil Co. of Ind. v. United States, 164 Fed. 376 (1908) 1296. Standish v. Narragansett Steam- ship Co., Ill Mass. 512 (1873), 886. Stanislaus Co. v. San Joaquin C. & I. Co., 192 U.S. 201 (1903), 1099, 1124, 1132, 1135, 1138, 1423, 1425. Stanton v. Allen, 5 Denio, 434 (1848), 694. Stapleton v. Grand Trunk Ry. Co., 133 Mich. 187 (1903), 726. Starnes v. Railroad Co., 91 Tenn. 516 (1892), 1020. Starr v. Gt. Northern Ry. Co., 67 Minn. 18 (1896), 781, 1011. State v. Adams Exp. Co., 171 Ind. 138 (1908), 277, 1040. State v. Adams Exp. Co., 85 Neb. 25 (1909), 1127, 1129. State v. Allen, 178 Mo. 555 (1903), 56, 113. State v. American & E. News Co., 43N.J.L.381 (1881), 133, 214. State v. Associated Press, 159 Mo. 410 (1900), 684, 1138. TABLE OF CASES CITED [References are to sections] State v. Atlantic Coast Line, 48 Fla. 114 (1904), 1193. State v. Atlantic Coast Line R. R. Co., 51 Fla. 543 (1906), 260, 1043. State v. Atlantic Coast Line R. Co., 52 Fla. 646 (1906), 816. State v. Atlantic Coast Line Ry. Co., 53 Fla. 650 (1907), 794, 802. State v. Atlantic Coast Line Ry Co. (Fla.), 52 So. 4 (1910), 332, 1382. State v. Atchison, T. & S. F. Ry. Co., 176 Mo. 687 (1903), 1331. State v. Baltimore & 0. R. R. Co., 21 Md. 84 (1865), 623, 738. State v. Bell Telephone Co., 22 Alb. L. J. 363 (1880), 692. Stats v. Bell Telephone Co., 36 Ohio St. 296 (1880), 136, 692. State v. Bell Telephone Co., 23 Fed. 539 (1885), 136, 692. State v. Birmingham Waterworks (Ala.), 51 So. 354 (1910), 1288. State v. Board of Water Commis- sioners, 105 Minn. 472 (1908), 452, 456. State v. Boston, C. & M. R. R. Co., 25 Vt. 433 (1853), 176. State v. Bridgeton Traction Co., 62 N. J. L. 592 (1898), 189, 299, 305. State v. Butte City Water Co., 18 Mont. 199 (1896), 92, 214, 215, 216, 242, 376. State v. Cadwallader (Ind.), 87 N. E. 644 (1909), 700. State v. Campbell, 32 N. J. L. 309 (1867), 447, 1259. State v. W. W. Cargill Co., 77 Minn. 223 (1899), 213, 232. State v. Central Iowa Ry. Co., 71 Iowa, 410 (1887), 211, 300. State v. Central Vt. Ry. Co., 81 Vt. 463 (1908), 1123, 1282, 1283, 1320, 1430. State v. Chicago & A. Ry. Co., 148 Fed. 648, 1295. State v. Chicago & N. W. Ry. Co., 83 Neb. 518 (1909), 799, 840, 850, 854. State v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1909), 854, 855. State v. Chicago, B. & Q. R. R. Co., 71 Neb. 593 (1904), 663, 664, 665, 803, 855. State v. Chicago, B. & Q. R. R. Co., 72 Neb. 542 (1904), 803, 855. State v. Chicago, M. & St. P. Ry. Co., 36 Minn. 402 (1887), 492. State v. Chicago, M. & St. P. Ry. Co., 38 Minn. 281 (1888), 1409. State v. Chicago, St. P., M. & 0. R. R. Co., 40 Minn. 267 (1889), 1413. State v. Chicago, St. P., M. & 0. R.R.Co.,12S.D.305(1900), 806, 812. State v. Cincinnati, N. 0. & T. P. Ry. Co., 47 Ohio St. 130 (1890), 155, 796, 1290, 1350, 1358. State v. Citizens' Telephone Co., 61 S. C. 83 (1901), 136, 576, 580, 684, 683, 797, 802, 1325. State v. Connersville Nat. Gas Co., 163 Ind. 563 (1904), 306. State v. Consumers' Gas Co., 157 Ind. 345 (1901), 94, 214, 215, 653, 852. [ cxci ] TABLE OF CASES CITED [References are to sections] State v. Delaware, L. & W. Ry. Co., 48 N. J. L. 55 (1887), 1353. State v. Des Moines & K. C. Ry. Co., 87 Iowa, 644 (1893), 806. State v. Dodge City, M. & T. Ry. Co., 53 Kans. 329 (1894), 296, 301. State v. Edwards, 86 Me. 102 (1893), 65, 66, 851. State v. Fremont & E. M. V. R. R. Co., 22 Neb. 313, 1409. State v. Frost, 113 Wis. 623 (1902), 212. State v. Goodfeilow, 1 Mo. App. 495 (1876), 417, 826. State v. Goold, 53 Me. 279 (1865), 887, 888. State v! Gosnell, 116 Wis. 606 (1903), 825, 1245. State v. Goss, 59 Vt. 266 (1886), 600. State v. Gt. Northern R. R. Co., 14 Mont. 381 (1894), 669,912. State v. Gt. Northern R. R. Co., 100 Minn. 445 (1907), 1097. State v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.), 44 S. W. 542 (1898), 1414, 1415. State v. Hampton, 2 N. H. 22 (1819), 75. State v. Hartford & N. H. R. R. Co., 29 Conn. 538 (1861), 212, 299, 305, 687* State v. Helena P. & L. Co., 32 Mont. 391 (1899), 189, 212, 304, 306, 308. State v. Hungerford, 39 Minn. 6 (1888), 887. State v. Independent Telephone Co., 109 Pac. 366 (1910), 865. State v. Jacksonville Terminal Co., 41 Fla. 377 (1899), 125, 211, 699. [ cxcii ] State v. Johnson, 61 Kan. 843 (1900), 1404. State v. Jones, 125 S. W. 1169 (1910), 451, 866, 1051. State v. Joplin Waterworks Co., 52 Mo. App. 312 (1893), 92, 215. State v. Kansas City Ry. Co., 51 La. Ann. 200 (1899), 807. State v. Kinlock Telephone Co., 93 Mo. App. 349 (1902), 136, 266, 435, 449. State v. Laclede Gaslight Co., 102 Mo. 472 (1890), 216, 1410, 1424. State v. Louisville & N. R. R. Co., 51 Fla. 311 (1906), 531. State v. Manitowoc Waterworks Co., 114 Wis. 487 (1902), 825. State v. Martyn, 82 Neb. 225 (1908), 1301, 1363. State v. Mathews, 2 Dev. & B. 424 (1837), 240. State v. Milwaukee Gas Light Co., 29 Wis. 454 (1872), 51. State v. Minneapolis & St. L. R. R. Co., 80 Minn. 191 (1900), 537, 1063, 1081, 1099, 1100, 1107, 1124, 1132, 1201, 1225, 1371, 1377, 1379, 1383, 1430, 1431. State v. Minneapolis & St. L. R. R. Co., 87 Minn. 195 (1902), 806. State v. Missouri, K. & T. Ry. Co., 99 Tex. 516 (1906), 479. State v. Missouri Pacific Ry. Co., 81 Neb. 174 (1908), 214. State v. Mobile, J. & K. C. R. R. Co., 86 Miss. 172 (1905), 305, 806. State v. Murphy, 134 Mo. 548 (1896), 78. TABLE OF CASES CITED [References are to sections] State v. National Subway Co. v. St. Louis, 145 Mo. 551 (1898), 78, 383. State v. Nebraska Telephone Co., 17 Neb. 126 (1885), 136, 242, 266, 451, 458, 459, 692. State v. New Haven & N. Co., 37 Conn. 153 (1870), 805. State v. New Orleans Gas Co., 108 La. 67 (1902), 112, 265, 411, 417, 622, 826, 1077, 1347. State v. Northern Pacific Ry. Co., 89 Minn. 363 (1903), 318, 806, 809, 810. State v. Northern Pacific Ry. Co., 90 Minn. 277 (1903), 809. State v. Northern Pacific Ry. Co. (N. D.), 120 N. W. 869 (1909), 1063, 1201, 1431. State v. Overton, 24 N. J. L. 435 (1854), 446, 1255. State v. Pacific Express Co., 85 Neb. 823 (1908), 178. State v. Patterson, 50 Fla. 127 (1905), 849. State v. Portland Natural Gas and Oil Co., 153 Ind. 483 (1899), 686. State v. Proprietors of the Morris Aqueduct, 46 N. J. L. 495 (1884), 651. State v. Railroad Commission, 137 Wis. 80 (1908), 1097, 1124. State v. Redman, 134 Wis. 89 (1908), 846. State v. Reed, 76 Miss. 211 (1898), 485. State v. Republican Valley R. R. Co., 17 Neb. 647 (1885), 808. State v. St. Louis, 161 Mo. 371 (1901), 71. 13 State v. St. Louis & S. F. R. R. Co., 105 Mo. App. 207 (1904), 539, 540. State v. St. Paul City Ry. Co., 78 Minn. 331 (1899), 189, 212. State v. St. Paul Gaslight Co., 92 Minn. 467 (1904), 502. State v. Seaboard Ry. Co. (Fla.), 37 So. 314 (1901), 1432. State v. Seaboard Air Line Ry. Co., 48 Fla. 129 (1904), 1073, 1100, 1124, 1127, 1132, 1134, 1164, 1178, 1430. State v. Sedalia Gaslight Co., 34 Mo. App. 501 (1889), 825, 1251, 1354. State v. Sioux City & P. R. R. Co., 7 Neb. 357 (1878), 211, 300, 302, 305. State v. Southern Ry. Co. (Tex. Civ. App.), 49 S. W. 252 (1899), 1415. State v. Southern Minnesota R. R. Co., 18 Minn. 40 (1871), 302. State v. Southern Pacific Ry. Co., 52 La. Ann. 1822 (1900), 501. State v. Spokane Ry. Co., 19 Wash. 518 (1898), 76, 189, 212, 215, 305. State v. Steele, 106 N. C. 766 (1890), 106, 361, 472, 499, 565, 631, 632, 660. State v. Stone, 6 Vt. 295 (1834), 106, 263. State v. Superior Court, 42 Wash. 660 (1906), 60, 95, 114. State v. Swett, 87 Me. 99 (1895), 601. State v. Telephone Co., 61 S. C. 83 (1901), 244. State v. Thompson, 20 N. H. 250 (1850), 878. [ cxciii ] TABLE OF CASES CITED [References are to sections] State v. Toledo, 48 Ohio St. 112 (1891), 218. State v. Union Depot Co., 71 Ohio St. 379 (1905), 483. State v. Union Pacific R. R. Co. (Neb.), 126 N. W. 859 (1910), 1302, 1362, 1363. State v. Union Stockyards Co., 81 Neb. 67 (1908), 130, 151, 160. State v. Western Maryland R. R. Co., 63 Md. 433 (1884), 784, 785. State v. Western Union Tele- graph Co., 75 Kan. 609 (1907), 814. State v. Western Union Tele- graph Co. (Ind.), 87 N. E. 641 (1909), 1041. State v. Wiggins Ferry Co., 208 Mo. 622 (1907), 129. State v. Willmar & S. F. Ry. Co., 88 Minn. 448 (1903), 224, 822. State v. Wrightsville & T. R. R. Co., 104 Ga. 437 (1898), 533. State v. Wynne, 1 Hawks, 451 (1821), 213. State v. Yazoo & M. Valley Ry. Co., 87 Miss. 679 (1905), 806. State v. Young, 119 Mo. 495 (1894), 842. State Trust Co. v. City of Du- luth, 70 Minn. 257 (1897), 651, 797. Steamboat Angelina Corning, 1 Ben. 109 (1867), 173, 774. Steamboat Crystal Palace v. Vanderpool, 16 B. Monr. (Ky.) 302 (1855), 769, 975. Steamboat Keystone v. Moies, 28 Mo. 343 (1859), 1038. [ cxciv 1 Steamboat Lynx v. King, 12 Mo. 272 (1848), 950. Steamer New Philadelphia, 1 Black, 62 (1861), 173, 774, 972. Steamer Webb, 14 Wall. 406 (1871), 173, 774. Steamship Hammonia, 10 Ben. 512 (1879), 638. Steenerson v. Great Northern Ry. Co., 69 Minn. 353 (1897), 577, 1065, 1084, 1088, 1091, 1094, 1099, 1107, 1131, 1138, 1141, 1156, 1166, 1176, 1180, 1194. Steiger v. Erie Ry. Co., 5 Hun, 345 (1875), 669, 912. Stein v. McArdle, 24 Ala. 344 (1854), 377, 380. Stein v. State, 37 Ala. 123 (1861), 981. Steinweg v. Erie Ry. Co., 43 N. Y. 123 (1870), 795, 796. Sterling v. St. Louis, I. M. & S. Ry. Co. (Tex. Civ. App.), 86 S. W. 655 (1905), 519. Sternberger v. Cape Fear & Y. V. R. R. Co., 29 S. C. 510 (1888), 1413. Sterrett v. Philadelphia Local Telegraph Co., 18 Wk. N. Cas. 77 (1886), 603, 607. Stevens v. Boston & M. R. R. Co., 1 Gray, 277 (1854), 918. Stevens v. Boston Elev. Ry. Co., 184 Mass. 476 (1907), 864. Stevenson v. Montreal Tele- graph Co., 16 Upp. Can. Q. B. 530 (1858), 511. Stevenson v. West Seattle L. & Imp. Co., 22 Wash. 84 (1900), 182, 559, 561, 606, 612, 632, 633, 642. TABLE OF CASES CITED [References are to sections] Steward v. Brooklyn & C. T. R. R. Co., 90 N. Y. 588 (1882), 939. Stewart v. Erie & W. Transp. Co., 17 Minn. 372 (1871), 511. Stewart v. Head, 70 Ga. 449 (1883), 970. Stewart v. Lehigh Valley R. R. Co., 38 N. J. Law, 505 (1875), 122, 1290. Stewart v. Merchants' Dispatch Co., 47 Iowa, 229 (1877), 180, 906, 921. Stiles v. Davis, 1 Black, 101 (1861), 1046. Stockton v. Frey, 4 Gill, 406 (1846), 184. Stoddard v. New York, N. H. & H. R. R. Co., 181 Mass. 422 (1902), 777. Stone v. Chicago & N. W. R. R. Co., 47 Iowa, 82 (1877), 1258. Stone v. New Orleans & N. E. R. R. Co., 116 U.S. 352(1886), 1421. Stone v. Rice, 58 Ala. 95 (1877), 1039, 1040. Stone v. Wisconsin, 94 U. S. 181 (1876), 1427. Stone v. Yazoo & M. V. R. R. Co., 62 Miss. 607 (1885), 1294, 1421. Stone Co. v. Atlantic Coast Line R. R. Co., 144 N. C. 220 (1907), 901. Stoneman v. Erie Ry. Co., 52 N. Y. 429 (1873), 876. Stoner v. Chicago Gt. W. Ry. Co., 109 Iowa, 551 (1899), 913, 922. Storrs v. Pensacola & A. R. R. Co., 29 Fla. 617 (1892), 1409. Story v. New York Elevated R. R. Co., 90 N. Y. 122 (1882), 190. Story v. Norfolk & S. R. Co., 133 N. C. 59 (1903), 188, 588, 632, 642. Stott v. Churchill, 15 N. Y. Misc. 80 (1895), 966, 979. Stoy v. Indiana Hydraulic Power Co., 166 Ind. 316 (1906), 95, 114. Straight Creek Coal Mining Co. v. Straight Creek Coal, etc., Co. (Ky.), 122 S. W. 842 (1909), 225. Strand v. Chicago & W. Ry. Co., 67 Mich. 380 (1887), 933. Stranger, The, 1 Brown's Adm. 281 (1871), 173. Strauss v. County Hotel & W. Co., 12 Q. B. D. 27 (1883), 367. Street v. Morrison, 5 Allen (New Bruns.), 296 (1862), 731. Streets v. Grand Trunk Ry. Co., 178 N. Y. 553 (1904), 783. Strohmeyer v. Consumers' Elec- tric Co., Ill La. 506 (1904), 113. Strohn v. Detroit & M. R. R. Co., 23 Wis. 126 (1868), 904. Strohn v. Detroit & M. Ry. Co., 21 Wis. 554 (1867), 1003. Strother v. Aberdeen & A. R. R. Co., 123 N. C. 197 (1898), 937. Strough v. N. Y. C. & H. R. R. R. Co., 92 App. Div. 584 (1904), 665, 799, 903, 1298. Strough v. N. Y. C. & H. R. R. R. Co., 181 N. Y. 533 (1905), 842, 850. [ cxcv ] TABLE OF CASES CITED [References are to sections] Suarez v. The Washington, 1 Woods, 96 (1871), 743. Sullivan v. Chicago Board of Trade, 111 111. App. 492 (1903), 353. Sullivan v. Jefferson Ave. R. R. Co., 133 Mo. 1 (1895), 942, 943. Sullivan v. Postal Telegraph Cable Co., 123 Fed. 411 (1903), 603, 607. Sultan Ry. & T. Co. v. Gt. Northern Ry. Co. (Wash.), 109 Pac. 320 (1910), 1020, 1361. Summerlin v. Seaboard Air L. Ry. Co., 56 Fla. 687 (1908), 256. Summit v. State, 8 Lea, 413 (1881), 473. Sumner v. Caswell, 20 Fed. 249 (1884), 235. Suttle v. Western Union Tel. Co., 148 N. C. 480 (1908), 1041. Sutton v. Housatonic R. R. Co., 45 Fed. 507 (1891), 1050. Swaffield v. Atlantic Coast Line, 10 I. C. C. Rep. 281 (1904), 1237. Swan v. Manchester & L. R. R. Co., 132 Mass. 116 (1882), 873, 888, 1258. Swan v. Railroad Co., 106 Tenn. 229 (1901), 1050. Swan v. Williams, 2 Mich. 427 (1852), 58. Swanberg v. New York, 123 App. Div. 774 (1908), 825. Sweet v. Louisville Ry. Co., 113 Ky. 15 (1902), 1044. Sweet v. Postal Tel. & Cable Co., 22 R. I. 344 (1901), 1041. [ cxcvi ] Sweet v. Western Union Tel. Co., 139 Mich. 322 (1905), 1041. Swetland v. B. & A. R. R. Co., 102 Mass. 276 (1869), 665, 840. Swift & Co. v. Ronan, 103 111. App. 475 (1902), 130, 151, 773 972. Swindler v. Billiard, 2 Rich. 286 (1845), 165, 229. Sword v. Young, 89 Tenn. 126 (1890), 1049. Symonds v. Pain, 6 Hurl & N. 709 (1861), 173, 774. Synder v. Colorado Springs & C. C. Dist. Ry. Co., 36 Colo. 288 (1906), 942, 945. Taber v. Seaboard Air Line Ry. Co., 84 S. C. 291 (1909), 776. Tacoma Hotel Co. v. Tacoma L. & Water Co., 3 Wash. 316 (1891), 92, 432, 452. Tadhunter v. Buckley, 7 L. T. (N. S.) 273 (1862), 237, 241, 968. Talbert v. Charleston & W. C. Ry. Co., 72 S. C. 137 (1905), 888. Talbot v. Dent, 9 B. Mon. 526 (1849), 217. Talcott v. Pine Grove, 1 Flipp. 120 (1872), 211. Tall v. Baltimore Steam Packet Co., 90 Md. 248 (1899), 879, 942. Talley v. Gt. Western R. R. Co., L. R. 6 C. P. 44 (1870), 769. Tampa, City of, v. Tampa Water Works Co., 45 Fla. 600 (1903), 92, 215, 1410. TABLE OF CASES CITED [References are to sections] Tanner v. Treasury Tunnel M. & R. Co., 35 Colo. 593 (1906), 63, 222. Tarbell v. Central Pacific R. R. Co., 34 Cal. 616 (1868), 431, 438, 441. Tate v. Illinois Central R. R. Co., 26 Ky. L. Rep. 309 (1904), 944. Tate v. Yazoo & M. V. R. R. Co., 78 Miss. 842 (1901), 399, 734. Taylor v. Great Northern Ry. Co., L. R. 1 C. P. 385 (1866), 915. Taylor v. Humphreys, 30 L. J. M. C. 242 (Eng., 1861), 364. Taylor v. Western Union Tele- graph Co., 163 Ky. 1 (1909), 1041. Tecumseh Celery Co. v. Cincin- nati, J. & M. Ry. Co., 4 Int. Com. Rep. 318 (1893), 1237. Telegraph Co. v. Frith, 105 Tenn. 167 (1900), 980. Telegraph Co. v. Griswold, 37 Ohio St. 301 (1881), 766, 980, 1014. Telegraph Co. v. Mellon, 96 Tenn. 66 (1896), 851. Telegraph Co. v. Munford, 87 Tenn. 190 (1889), 520, 851. Telephone Case, The, 3 Can. Ry. Gas. 205 (1904), 497. Telephone Co. v. Brown, 104 Tenn. 56 (1900), 516, 765. Terre Haute & I. R. R. Co. v. Chicago, Peoria & St. L. Ry. Co., 150 111. 502 (1894), 768. Terre Haute & I. R. R. Co. v. Peoria & P. Ry. Co., 167 111. 296 (1897), 125, 699. Terre Haute & I. R. R. Co. v. Peoria & P. Ry. Co., 182 111. 501 (1899), 125. Territory v. DeWolfe, 13 Okla. 454 (1903), 51. Teutonia, The, L. R. 3 Adm. 394 (1871), 1265. Texarkana & F. S. Ry. Co. v. Anderson, 67 Ark. 123 (1899), 757. Texas & N. 0. Ry. Co. v. Sabine Tram. Co. (Tex. Civ. App.), 121 S. W. 256 (1909), 1123, 1430. Texas & P. Ry. Co. v. Abilene Oil Co., 204 U. S. 426 (1907), 1050, 1294. Texas & P. Ry. Co. v. Allen, 42 Tex. Civ. App. 331 (1906), -798. Texas & P. Ry. Co. v. Avery (Tex. Civ. App.), 33 S. W. 704 (1895), 1415. Texas & P. Ry. Co. v. Avery, 19 Tex. Civ. App. 235 (1898), 1005. Texas & P. Ry. Co. v. Barrow, 33 Tex. Civ. App. 611 (1903), 722, 796, 835. Texas & P. Ry. Co. v. Barrow (Tex. Civ. App.), 94 S. W. 176 (1906), 804. Texas & P. Ry. Co. v. Black, 87 Tex. 160 (1894), 763. Texas & P. Ry. Co. v. Blocker, 48 Tex. Civ. App. 100 (1907), 722. Texas & P. Ry. Co. v. Bowlin (Tex. Civ. App.), 32 S. W. 918 (1895), 946. Texas & P. Ry. Co. v. Capps, 2 Wills App., 34 (1883), 876. Texas & P. Ry. Co. v. Carlton, 60 Tex. 397 (1883), 529, 530. Texas & P. Ry. Co. v. Cornelius, 10 Tex. Civ. App. 125 (1895), 873. [ cxcvii ] TABLE OF CASES CITED [References are to sections] Texas & P. Ry. Co. v. Dick, 26 Tex. Civ. App. 256 (1901), 1044. Texas & P. Ry. Co. v. Diefen- bach, 167 Fed. 39 (1909), 646. Texas & P. Ry. Co. v. Elliott, 22 Tex. Civ. App. 31 (1899), 864. Texas & P. Ry. Co. v. Hughes, 99 Tex. 533 (1906), 408. Texas & P. Ry. Co. v. Interstate Comm. Comm., 162 U. S. 197 (1896), 535, 1204, 1222, 1376, 1377. Texas & P. Ry. Co. v. James, 82 Tex. 306 (1891), 438. Texas & P. Ry. Co. v. Jones (Tex. Civ. App.), 39 S. W. 124 (1897), 735. Texas & P. Ry. Co. v. Klepper (Tex. Civ. App.), 24 S. W. 567 (1893), 1005. Texas & P. Ry. Co. v. Mugg, 202 U. S. 242 (1906), 1294. Texas & P. Ry. Co. v. Pearl, 3 Wills. 4 (1885), 843. Texas & P. Ry. Co. v. Reiss, 183 U. S. 621 (1903), 517. Texas & P. Ry. Co. v. Scott, 64 Tex. 549 (1885), 783. Texas & P. Ry. Co. v. Shawnee Cotton Oil Co. (Tex. Civ. App.), 118 S. W. 776 (1909), 833, 922. Texas & P. Ry. Co. v. Smissen, 31 Tex. Civ. App. 549 (1903), 918. Texas & P. Ry. Co. v. Smith (Tex.), 84 S. W. 852 (1905), 441. Texas & P. Ry. Co. v. Southern Pacific Ry. Co., 41 La. Ann. 970 (1889), 694. [ cxcviii ] Texas & P. Ry. Co. v. Texas Short Line R. R. Co., 35 Tex. Civ. App. 387 (1904), 529. Texas & P. Ry. Co. v. Townsend (Tex. Civ. App.), 106 S. W. 760 (1907), 794. Texas & P. Ry. Co. v. W. Scott & Co. (Tex. Civ. App.), 86 S. W. 1065 (1905), 833. Texas & P. Ry. Co. v. White (Tex. Civ. App.), 17 S. W. 419 (1891), 872. Texas Central R. R. Co. v. Dorsey (Tex. Civ. App.), 70 S. W. 575 (1902), 913. Texas Midland Ry. Co. v. Ger- aldon (Tex.), 128 S. W. 611 (1910), 873. Texas Telegraph & Telephone Co. v. Seiders, 9 Tex. Civ. App. 431 (1895), 412. Thayer v. Burchard, 99 Mass. 508 (1868), 914. Thayer v. St. Louis, A. & T. H. R. R. Co., 22 Ind. 26 (1864), 1002, 1007. The, see the thing liable by name. Thomas v. Boston & P. R. R. Co., 10 Mete. 472 (1845), 176. Thomas v. Chicago & G. T. Ry. Co., 72 Mich. 355 (1888), 885. Thomas v. Cincinnati, N. 0. & T. P. Ry. Co., 62 Fed. 803 (1894), 570, 671. Thomas v. Day, 4 Esp. 262 (1803), 731. Thomas v. Frankfort & C. Ry. Co., 25 Ky. L. Rep. 1051 (1903), 513. Thomas v. Geldart, 20 New Br. (4 Pug. & B.) 95 (1880), 440. TABLE OF CASES CITED [References are to sections] Thomas v. Missouri Pacific Ry. Co., 109 Mo. 187 (1891), 529. Thomas v. Wabash, St. L. & P. Ry. Co., 63 Fed. 200 (1894), 834, 914. Thompson v. Alabama Midland Ry. Co., 122 Ala. 378 (1898), 915. Thompson v. Chicago & Alton R. R. Co., 22 Mo. App. 321 (1886), 1026. Thompson v. Fargo, 49 N. Y. 188 (1872), 1045. Thompson v. Lacy, 3 B. & Aid. 283 (1820), 106, 240, 263, 567. Thompson v. London, etc., Ry. Co., 2 Nev. & Mac. 115, 1314. Thompson v. Matthews, 2 Edw. Ch. 212 (1834), 53, 241, 270. Thompson v. Midland Ry. Co., 34 L. T. (N. S.) 34 (1875), 872. Thompson v. Missouri, K. & T. Ry.Co. (Tex.), 126S.W.257 (1910), 521, 532. Thompson v. New York -Storage Co., 97 Mo. App. 135 (1902), 170. Thompson v. Western Union Telegraph Co., 107 N. C. 449 (1890), 1014. Thompson Class Co. v. Fayette Fuel Gas Co., 137 Pa. St. 317 (1890), 852. Thompson-Houston Electric Co. v. Newton, 42 Fed. 723 (1890), 218. Thompson-Houston Electric Co. v. Simon, 20 Oreg. 60 (1890), 189, 190, 262. Thorley, Ltd., v. Orchis S. S. Co., Ltd., 1 K. B. 660 (1907), 908, 921. Thorpe v. New York Central & H. R. R. R. Co., 76 N. Y. 402 (1879), 152, 845, 847. Thorpe v. Rutland & V. R. R. Co., 27 Vt. 140 (1855), 1435. Thousand Island Park Assn. v. Tucker, 173 N. Y. 203 (1903), 51. Thousand Island Stb. Co. v. Vis- gar, 86 N. Y. App. Div. 126 (1903), 103, 232, 488. Thurn v. Alta Telegraph Co., 15 Cal. 472 (1860), 520. Thurston v. Union Pacific R. R. Co., 4 Dillon, 321 (1877), 188, 598, 603, 604, 608, 627, 631, 641. Thweatt v. Houston, E. & W. T. Ry. Co., 31 Tex. Civ. App. 227 (1903), 942. Tidwell v. Western Union Tele- graph Co. (Ala.), 51 So. 934 (1910), 1041. Tierney v. New York Central & H. R. R. R. Co., 76 N. Y. 305 (1879), 408, 664, 665, 722, 831, 834, 842. Tift v. Southern Ry. Co., 138 Fed. 753 (1905), 1069, 1074, 1075, 1076, 1211, 1212, 1239, 1371. Tillett v. Lynchburg & D. R. R. Co., 115 N. C. 662 (1894), 395. Tilley v. Savannah, F. & W. R. R. Co., 5 Fed. 641 (1881), 1121, 1409. Timpson v. Manhattan Ry. Co., 52 Hun (N. Y.), 489 (1889), 1044. Tindall v. Taylor, 4 E. & B. (Eng.) 219 (1854), 1263. Tirrell v. Gage, 4 Allen, 245 (1862), 922. [ cxcix ] TABLE OF CASES CITED [References are to sections] Tobin v. London & N. W. R. R. Co., 2 Ir. 22 (1895), 872. Tobin v. Portland, S. & P. R. R. Co., 59 Me. 183 (1871), 369, 372 Todd v. Old Colony R. R. Co., 3 Allen (Mass.), 18 (1861), 785. Toffe v. Oregon R. R. Co., 41 Oreg. 64 (1902), 513. Toledo v. Northwestern Ohio Natural Gas Co., 5 Ohio C. C. 577 (1890), 94, 112, 1300. Toledo, A., A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 746 (1893), 352, 570, 670, 671. Toledo & 0. C. Ry. Co. v. Bowler & B. Co., 63 Ohio St. 274 (1900), 876. Toledo & O. C. Ry. Co. v. Wren, 78 Ohio St. 137 (1908), 850. Toledo Electric St. Ry. Co. v. Toledo Consolidated St. Ry. Co., 26 Ohio Wk. L. Bui. 172, 698. Toledo, S. & M. R. R. Co. v. East Saginaw & S. C. R. R. Co., 72 Mich. 206 (1888), 224, 225. Toledo, W. & W. Ry. Co. v. Beggs, 85 111. 80 (1887), 738, 786, 1018. Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245 (1876), 745, 746. Toledo, W. & W. Ry. Co. v. Elliott, 76 111. 67 (1875), 1285. Toledo, W. & W. Ry. Co. v. Crush, 67 111. 262 (1873), 367, 372. Toledo, W. & W. Ry. Co. v. Lockhart, 71 111. 627 (1874), 511. [cc] Tolman v. Abbot, 78 Wis. 192 (1890), 512. Tombler v. Killing, 60 Ark. 62 (1894), 117. Tompkins v. Boston Elevated Ry. Co., 201 Mass. 114 (1909), 1031. Tons of Coal, 318^, 14 Blatch. (U. S.) 453 (1878), 867, 1270. Toomer v. London Ry. Co., 3 Nev. & Mac. 79 (1865), 1331. Topeka, City of, v. Topeka Water Co., 58 Kan. 349 (1897), 273, 282. Topeka City Ry. Co. v. Higgs, 38 Kans. 375 (1888), 189, 945. Townsend v. New York Central & H. R. R. R. Co., 56 N. Y. 295 (1874), 890. Towson v. Havre de Grace Bank, 6 Har. & J. 47 (1823), 965. Tozer v. United States, 52 Fed. 917 (1892), 535, 1373. Tracy v. Pullman P. C. Co., 67 How. Pr. 154 (1884), 153, 975. Trammell v. Dinsmore, 183 U. S. 115 (1901), 1409. Transit Co. v. Venable, 105 Tenn. 460 (1900), 783. Transportation Co. v. Parkers- burg, 107 U. S. 691 (1882), 102, 232. Transportation Line v. Hope, 95 U. S. 297 (1877), 173, 774. Transportation of Fruit, Re, 10 Int. Com. Rep. 360 (1904), 154. Travelers' Ins. Co. v. Austin, 116 Ga. 264 (1902), '783. Treadwell v. Whittier, 80 Cal. 574 (1889), 193. TABLE OF CASES CITED [References are to sections] Tremaine v. Halifax Gas Co., 3 Nova Scotia, 360, 982. Trent Nav. "Co. v. Wood, 3 Esp. 127 (1785), 164, 963, 984, 985. Trenton & N. B. Tp. Co. v. Amer- ican & E. News Co., 43 N. J. L. 381 (1881), 56. Trice v. Chesapeake & O. Ry. Co., 40 W. Va. 271 (1895), 889. Trinity Val. Ry. Co. v. Stewart (Tex. Civ. App.), 62 S. W. 1085 (1901), 780, 1015. Trotlinger v. East Tennessee, Va. & Ga. R. R. Co., 11 Lea, 533 (1883), 862, 870. Trout v. Watkins L. & V. Co. (Mo. App.), 130 S. W. 136 (1910), 107. Troutman v. Smith, 105 Ky. 231 (1899), 1138, 1140, 1158, 1408. Trowbridge v. Chapin, 23 Conn. 595 (1855), 409, 733. Truax v. Philadelphia, P. W. & B. R. R. Co., 3 Houst. 233 (1865), 513, 850, 872. Trumbull v. Erickson, 97 Fed. 891 (1899), 664, 801. Trustees v. Chesapeake, 0. & S. W. R. R. Co., 94 Ky. 377 (1893), 305. Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh, 42 (1840), 65. Tucker v. Housatonic R. R. Co., -39 Conn. 447 (1872), 908. Tucker v. Missouri Pacific R. R. Co. (Kans.), 108 Pac. 89 (1910), 1124, 1152, 1193, 1200, 1210, 1391, 1430. Tucker v. Pacific R. R. Co., 50 Mo. 385 (1872), 662, 914. Tucker v. Pennsylvania Ry. Co., 12 N. Y. Misc. 117 (1895), 796. Tulane Hotel Co. v. Holohan, 112 Tenn. 214 (1904), 728, 744, 970. Tunnel v. Petti John, 2 Hair. (Del.) 48 (1835), 162, 254, 270, 661, 791, 792. Tunney v. Midland Ry. Co., L. R. C. P. 291 (1866), 783. Turner v. Huff, 46 Ark. 222 (1885), 1039. Turner v, North Carolina R. R. Co., 63 N. C. 522 (1869), 604. Turner v. Revere Water Co., 171 Mass. 329 (1898), 377, 434, 435, 453, 456, 877, 1250. Twellis v. Pa. R. R. Co., 3 Am. L. Reg. (N. S.) 728 (1863), 1331. Twitchell v. Spokane, 55 Wash. 86 (1909), 1166, 1172, 1303, 1304. Tyler v. Beacher, 44 Vt. 648 (1871), 65. Tyler v. Western Union Tel. Co., 60 IU. 421 (1871), 766, 980, 1014. Tyler & Co. v. Western Union Telegraph Co., 60 111. 421 (1871), 133. Tyrone Gas & Water Co. v. Bur- ley, 19 Pa. Super. Ct. 348 (1902), 433. U Udall Milling Co. v. Atchison, T. & S. F. R. R. Co., 82 Kans. 256 (1910), 663, 799. Udell v. Citizens' St. Ry. Co., 152 Ind. 507 (1899), 760. Udell v. Illinois C. Ry. Co., 13 Mo. App. 254 (1883), 796. [cci] TABLE OF CASES CITED [References are to sections] Ukiah City v. Ukiah Water & Imp. Co., 142 Cal. 173 (1904), 350. Ullman v. Chicago & N. W. Ry. Co., 112 Wis. 150 (1901), 1005, 1021, 1022. Ulmer v. Lime Rock R. R. Co., 98 Me. 579 (1904), 223, 224, 225. Umatilla Irrigation Co. v. Barn- hart, 22 Oreg. 389 (1892), 93. Underwood Lumber Co. v. Peli- can Boom Co., 76 Wis. 76 (1890), 73. Union Depot & Ry. Co. v. Meek- ing, 42 Colo. 89 (1908), 483. Union Express Co. v. Graham, 26 Ohio St. 595 (1875), 413, 414, 991. Union Express Co. v. Ohleman, 92 Pa. St. 323 (1879), 776, 1040. Union Pacific Ry. Co. v. Evans, 52 Neb. 50 (1897), 372, 1286. Union Pacific Ry. Co. v. Good- ridge, 149 U. S. 680 (1893), 1286. Union Pacific Ry. Co. v. Hall, 91 U. S. 343 (1875), 211, 299, 301. Union Pacific Ry. Co. v. John- son, 45 Neb. 57 (1895), 1045. Union Pacific Ry. Co. v. Mason City & F. D. R. R. Co., 199 U. S. 160 (1905), 126. Union Pacific Ry. Co. v. Nichols, 8 Kans. 505 (1871), 623, 738, 778. Union Pacific Ry. Co. v. United States, 117 U. S. 355 (1886), 535, 1373. Union Pacific Ry. Co. v. United States, 99 U. S. 402 (1878), 1160, 1166. [ ccii ] Union Pacific Ry. Co. v. Updike Grain Co., 178 Fed. 223 (1910), 854. Union Railway of Baltimore v. Canton R. R. Co., 105 Md. 12 (1907), 129, 699. Union S. S. Co. v. Clark, L. R. (N. Z.) 2 S. C. 282 (1884), 1033. United Fruit Co. v. New York & B. Tr. Line, 104 Md. 567 (1906), 1038. United Rys. & E. Co. v. Deane, 93 Md. 619 (1901), 941. United Rys. & E. Co. v. Hertel, 97 Md. 382 (1903), 864, 1044. United States v. American Water- works Co., 37 Fed. 747, 379, 701. United States v. Atchison, T. & S. F. Ry. Co., 142 Fed. 176 (1905), 136, 177, 1293. United States v. Atchison, T. & S. F. Ry. Co., 163 Fed. 11 (1907), 1362. United States v. Baltimore & 0. R. Co., 153 Fed. 997 (1907), 815. United States v. Chicago & A. Ry. Co., 148 Fed. 646 (1906), 1347. United States v. Chicago & N. W. R. R. Co., 127 Fed. 785 (1904), 1306. United States v. Chicago, K. & S. R.R. Co., 81 Fed. 783 (1897), 1416. United States v. Choctaw, 0. & G. Ry. Co., 3 Okla. 404 (1895), 211. United States v. Delaware & H. Co., 213 U. S. 366 (1909), 709, 1436. TABLE OF CASES CITED [References are to sections] United States v. Delaware, L. & W. R. R. Co., 40 Fed. 101 (1889), 481. United States v. Delaware, L. & W. Ry. Co., 152 Fed. 269 (1907), 1153. United States v. Illinois Terminal Ry. Co., 168 Fed. 546 (1909), 1295. United States v. Joint Traffic As- sociation, 171 U. S. 505 (1898), 694. United States v. Lehigh Valley R. R. Co., 115 Fed. 373 (1902), 1413. United States v. M. & L. R. R. R. Co., 6 Fed. 237 (1881), 477. United States v. Michigan Cen- tral R. R. Co., 122 Fed. 544 (1903), 1292. United States v. Milwaukee Re- frig. Transit Co. (C. C. A.), 145 Fed. 1007 (1906), 1293. United States v. Norfolk & W. Ry. Co., 109 Fed. 831 (1901), 665, 856. United States v. Norfolk & W. Ry. Co., 138 Fed. 849 (1905), 665. United States v. Norfolk & W. Ry. Co., 143 Fed. 266 (1906), 665, 856. United States v. Northern Pacific Ry. Co., 120 Fed. Rep. 546 (1903), 516. United States v. Oregon Ry. & Nav. Co., 159 Fed. 975 (1908), 419, 856, 867. United States v. Ormsbee, 74 Fed. 207 (1896), 122. United States v. Saul, 58 Fed. 763 (1893), 763. United States v. Seaboard Ry. Co., 82 Fed. 563 (1897), 1414. United States v. Sioux City Stock- yards Co., 162 Fed. 556 (1908), 130, 160, 258, 773, 792, 1043. United States v. Southern Ry. Co., 125 N. C. 666 (1900), 1301. United States & M. T. Co. v. Delaware W. Const. Co. (Tex. Civ. App.), 112 S. W. 447 (1908), 1097. United States Express Co. v. Backman, 28 Ohio St. 144 (1875), 1022. United States Express Co. v. Harris, 51 Ind. 127 (1875), 1023. United States Express Co. v. Joyce, 36 Ind. App. 1 (1905), 1020. United States Express Co. v. Root, 47 Mich. 231 (1881), 178, 776. United States Express Co. v. Rush, 24 Ind. 403 (1865), 1017. United States Express Co. v. State, 164 Ind. 196 (1905), 178, 278, 871. United States Telegraph Co. v. Gildersleve, 29 Md. 232 (1868), 348, 412, 766, 1014. United States Telephone Co. v. Central Union Telephone Co., 171 Fed. 130 (1909), 700. United States v. Tozer, 39 Fed. 369 (1889), 1323. United States v. Trans-Missouri Freight Association, 166 U. S. 290 (1897), 694. United States v. Union Pacific Ry. Co., 160 U. S. 1 (1895), 211, 300. f cciii ] TABLE OF CASES CITED [References are to sections] United States v. Vacuum Oil Co., 158 Fed. 536 (1908), 1296. United States v. West Virginia Northern Ry. Co., 125 Fed. 252 (1903), 665, 856. Valk v. Erie R. R. Co., 130 N. Y. App. Div. 446 (1910), 1010. Van Buskirk v. Purinton, 2 Hall (N. Y.), 561 (1829), 1263. Van Camp v. Michigan Cent. R. R. Co., 137 Mich. 467 (1904), 397, 863, 872, 904. Vance, Ex parte, 42 Tex. Cr. App. 619 (1901), 484. Vance v. Throckmorton, 5 Bush (Ky.), 41 (1868), 770. Vance v. Vandercook Co. 110, U. S. 438 (1898), 1418. Vanderberg v. Kansas City, Mo., Gas Co., 126 Mo. App. 600 (1907), 51, 111,339,376,434, 455, 877. Vanderslice v. The Superior, 28 Fed. Cas. 16,843 (1850), 173, 774. Van Dusan v. Grand Trunk R. Co., 97 Mich. 439 (1893), 431, 855, 862, 878. Van Horn v. Kermit, 4 E. D. Smith (N. Y.), 453 (1855), 769. Vankirk v. Pennsylvania R. R. Co., 76 Pa. St. 66 (1874), 446, 1255. Vannatta v. Central R. R. Co., 154 Pa. St. 262 (1893), 517. Van Nest Land Co. v. New York Water Co., 7 N. Y. App. Div. 295 (1896), 458. Van Ostran v. New York Central & H. R. R. Co., 35 Hun (N. Y.), (1885), 1044. [ cciv ] Van Patten v. Chicago, M. & St. P. R. R. Co., 81 Fed. 545 (1891), 1294, 1376. Van Winkle v. United States Mail S. S. Co., 37 Barb. 122 (1862), 963, 1046. Varble v. Bigley, 14 Bush, 698 (1879), 173, 774. Varner v. Martin, 21 W. Va. 534 (1883), 241. Vassau v. Madison E. Ry. Co., 106 Wis. 301 (1900), 441. Veeder v. Fellows, 20 N. Y. 126 (1859), 878. Vega S. S. Co. v. Consolidated Elevator Co., 75. Minn. 308 (1899), 141. Veneman v. Jones, 118 Ind. 41 (1888), 484. Vermilye v. Postal Telegraph Cable Co., 205 Mass. 598 (1910), 571, 903. Vermont & M. R. R. Co. v. Fitch- burg R. R. Co., 14 Allen (Mass.), 462 (1867), 529, 775. Verner v. Sweitzer, 32 Pa. St. 208 (1858), 876. Vickers v. Canadian Pacific Ry. Co., 13 Ont. App. 210 (1908), 477. Vicksburg & M. R. R. Co. v. Ragsdale, 46 Miss. 458 (1872), 901. Vicksburg L. & T. Co. v. United States Exp. Co., 68 Miss. 149 (1890), 413. Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65 (1902), 1424. Vidal Sala, The, 12 Fed. 207 (1882), 104. Viemeister v. Brooklyn Heights R. R. Co., 87 N. Y. S. 162 (1904), 945. TABLE OF CASES CITED [References are to sections] Vincent v. Chicago & A. R. R. Co., 49111. 33 (1868), 404,817. Vincent v. Yazoo & M. V. R. Co., 114 La. 1021 (1905), 513. Vinton v. Middlesex St. Ry. Co., 11 Allen (Mass.), 304 (1865), 644. Violett v. Stettinius, 5 Cr. C. C. (D. C.) 559 (1839), 1264. Virginia & S. W. Ry. Co. v. Hill, 105 Va. 729 (1906), 889. Virginia & T. R. R. Co. v. Sayer, 26 Gratt. 328 (1875), 1011, 1022. Virginia C. & I. Co. v. Louisville & N. R. R. Co., 98 Va. 77 (1900), 513. Virginia Canon Toll-Road Co. v. People, 22 Colo. 429 (1896), 75. Virginia Midland R. R. Co. v. Roach, 83 Va. 375 (1887), 761. Vitrified Pipes, In re, 14 Blatch. 274 (1877), 1268. Vlierboom v. Chapman, 13 M. & W. (Eng.) 230 (1844), 1265. Voight v. Baltimore, O. & S. W. Ry. Co., 79 Fed. 561 (1897), 781. Volkmar v. Volkmar, 147 Cal. 175 (1905), 852. Vreeland v. O'Neil, 36 N. J. Eq. 399 (1883), 456. W Wabash Ry. Co. v. Brown, 152 111. 484 (1894), 1012. Wabash Ry. Co. v. Jellison, 124 111. App. 652 (1906), 777. Wabash Ry. Co. v. Mathew, 199 U. S. 605 (1905), 635, 638. Wabash Ry. Co. v. Savage, 110 Ind. 156 (1886), 939. Wabash Ry. Co. v. Sharpe, 76 Neb. 424 (1906), 656, 918, 984. Wabash Ry. Co. v. Thomas, 222 111. 337 (1906), 512, 1026. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557 (1886), 1417. Wabash, St. L. & P. Ry. Co. v. McCasland, 11 111. App. 491 (1882), 909. Wabaska Electric Co. v. City of Wymore, 60 Neb. 199 (1900), 1123, 1430. Wade v. Lutcher & Moore Cy- press Lumber Co., 74 Fed. 517 (1896), 207, 212, 223, 762. Wade v. Wheeler, 3 Lans. 201 (1870), 726. Wagner v. Brooklyn Heights R. R. Co., 95 App. Div. 219 (1904), 945. Wagner v. City of Rock Island, 146 111. 139 (1893), 377, 1342. Wagner v. Missouri Pac. Ry. Co., 97 Mo. 512 (1888), 754, 763. Wainwright v. Queens County Water Co., 78 Hun, 146 (1894), 350. Wald v. Pittsburg, C., C. & St. L. R. R. Co., 162 111. 545 (1896), 656, 918, 921, 985. Walker v. Jackson, 10 M. & W. 161 (1842), 771. Walker v. Keenan, 73 Fed. 758 (1896), 818. Walker v. McDonald, 49 Tex. 458 (1878), 825. Walker v. Shasta Power Co., 160 Fed. 856 (1908), 60, 95, 114, 243. [ CCV] TABLE OF CASES CITED [References are to sections] Walker v. Skipwith, Meigs, 502 (1838), 184, 262, 1002. Walker v. York & N. M. Ry. Co., 2 E. & B. 750 (1853), 1001. Walla Walla v. Walla Walla Water Co., 172 U. S. 1 (1898), 1424. Wallace v. Arkansas Cent. R. R. Co., 118 Fed. 422 (1902), 1409. Wallace v. Landers, 42 Ga. 486 (1871), 666. Wallace v. Pecos & N. T. Ry. Co. (Tex. Civ. App.), 110 S. W. 162 (1908), 663, 799. Wallace v. Rosenthal, 40 Ga. 419 (1869), 517, 1033. Wallace v. Sanders, 50 Ga. 134 (1871), 986. Wallace v. Wilmington & N. Ry. Co., 8 Houst. 529 (1889), 1044. Walling v. Potter, 35 Conn. 183 (1868), 234, 240, 263, 337, 364, 751, 752, 969. Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23 (1877), 599, 934. Walsh v. New York Floating Dry Dock Co., 77 N. Y. 448 (1879), 104. Walsh v. The H. M. Wright, Newb. Adm. (U. S.) 494 (1854), 769, 975. Walston v. Myers, 5 Jones, 174 (1857), 173, 774. Waltham Mfg. Co. v. New York & T. S. S. Co., 204 Mass. 253 (1910), 908. Wampum Cotton Mills v. Caro- lina & N. W. Ry. Co., 150 N. C. 608 (1909), 516, 564. [ ccvi ] Wamsley v. Atlas S. S. Co., 168 N. Y. 533 (1901), 905. Ward v. Birmingham Water- works Co., 152 Ala. 285 (1907), 1249. Ward v. Fellers, 3 Mich. 281 (1854), 1269. Ward v. Missouri Pacific Ry. Co., 158 Mo. 226 (1900), 1023. Wardwell v. Chicago, M. & St. P. Ry. Co., 46 Minn. 514 (1891), 432. Warfield v. Louisville & N. R. R. Co., 104 Tenn. 74 (1900), 636, 646. Warner v. Burlington & Mo. R. R. R. Co., 22 la. 166 (1867), 875, 970. Warner v. Western Transporta- tion Co., 5 Robt. 490 (1868), 623, 737. Warren v. Chicago, 118 111. 329 (1887), 824. Warren v. Fitchburg R. R. Co., 8 Allen, 227 (1864), 401. Washburn v. Jones, 14 Barb. 193 (1851), 979. Washburn v. Nashville & C. R. R. Co., 3 Head (Tenn.), 638 (1859), 764. Washington Luna P. Co. v. Goodrich (Va.), 66 S. E. 977 (1910), 195. Washington Toll Bridge v. Beau- fort, 81 N. C. 491 (1879), 53. Washington, Borough of, v. Washington Water Co., 70 N. J. Eq. 254 (1905), 459. Watauga Water Co. v. Wolfe, 99 Tenn. 429 (1897), 92, 212, 214, 215, 216, 242, 264, 411, 445, 883, 1249, 1250. TABLE OF CASES CITED [References are to sections] Waterbury v. New York Cen- tral & H. R. R. R. Co., 17 Fed. Rep. 671 (1883), 745. Waters v. Railroad Co., 110 N. C. 338 (1892), 610. Waterworks Co. v. Kansas City, 4 McCreary, 198 (1882), 1304. Waterworks Co. v. Kansas City, 62 Fed. 853 (1894), 1110. Watson v. Cross, 2 Duv. 147 (1865), 339. Watson v. Memphis & Ry. Co., 9 Heisk. 255 (1872), 748. Watson v. St. Paul City Ry. Co., 42 Minn. 46 (1889), 190. Watts v. Boston & Lowell R. R. Corp., 106 Mass. 466 (1871), 727. Way v. Chicago, R. I. & Pac. Ry. Co., 64 la. 48 (1884), 623, 738. Wear v. Gleason, 53 Ark. 364 (1889), 970. Weaver v. Wible, 20 Ohio, 270 (1855), 239. Webbe v. Western Union Tele- graph Co., 169 111. 610 (1897), 862. Weber v. Brooklyn, Q. C. & S. R. R. Co., 47 App. Div. 306 (1900), 937. Webster v. Fitchburg R. R. Co., 161 Mass. 298 (1894), 401. Weed v. Panama R. R. Co., 17 N. .362(1858), 872, 904, 915. Weeks v. McNulty, 101 Tenn. 495 (1898), 966, 978. Weeks v. New Orleans, S. F. & L. Ry. Co., 40 La. Ann. 800 (1888), 399, 403. Weeks v. New York, N. H. & H. R. R. Co., 72 N. Y. 50 (1878), 769, 944. Weems Stb. Co. v. People's Stb. Co., 214 U. S. 345 (1909), 102, 232, 294, 314. Wehmann v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 58 Minn. 22 (1894), 518, 1005, 1017, 1033. Weidenfeld v. Sugar Run Ry. Co., 48 Fed. 615 (1892), 223. Weisinger v. Southern Ry. Co., 129 Ky. 592 414, 845. Welch v. Boston & A. R. R. Co., 41 Conn. 333 (1874), 1011. Welch v. Pullman P. C. Co., 16 Abb. Pr. (N. S.) 352 (1874), 153. Weld v. Gas & Electric Light Commissioners, 197 Mass. 556 (1908), 113, 273, 276, 320, 405, 693, 797. Wellman v. Chicago & Grand Trunk Railway Co., 83 Mich. 592 (1890), 1207. Wells v. American Exp. Co., 55 Wis. 23 (1882), 178, 776, 1047. Wells v. American Exp. Co., 44 Wis. 342 (1878), 990. Wells v. Maine Steamship Co., 4 Cliff. (U. S.) 228 (1879), 1046. Wells v. New York Central R. R. Co., 24 N. Y. 181 (1862), 786, 1018. Wells v. Oregon Ry. & Nav. Co., 15 Fed. 561 (1883), 1121. Wells v. Steam Nav. Co., 2 N. Y. 204 (1849), 173, 774. Wells v. Western Union Tele- graph Co., 123 N. W. 371 (1909), 1025. Wells v. Wilmington & W. R. R. Co., 6 Jones L. (N. C.) 47 (1858), 729. [ ccvii ] TABLE OF CASES CITED [References are to sections] Wells, Fargo & Co. v. Northern Pac. Ry. Co., 23 Fed. 469 (1884), 477. Wells, Fargo & Co. v. Oregon Ry. & Nav. Co., 8 Sawyer, 600 (1883), 477. Wells, Fargo & Co.'s Exp. v. Fuller, 4 Tex. Civ. App. 213 (1893), 907. Welsh v. Pittsburg, Ft. W. & C. R. R. Co., 10 Ohio St. 65 (1859), 256. Wente v. Chicago, B. & Q. Ry. Co., 79 Neb. 175 (1907), 518. Wentz-Bates Mercantile Co. v. Union Pacific Ry. Co., 85 Neb. 584 (1909), 1294. Werbowlsky v. Ft. Wayne & E. Ry. Co., 86 Mich. 236 (1891), 932. Wertz v. Western Union Tele- graph Co., 7 Utah, 446 (1891), 133. Wescott v. Seattle, R. & S. R. R. Co., 84 Pac. 588 (1906), 626, 942. West v. Rawson, 40 W. Va. 480 (1895), 65, 851. West v. Thomas, 97 Ala. 622 (1892), 966, 979. West Branch Lumbermen's Ex- change v. Fisher, 150 Pa. St. 475 (1892), 73. West Chester & Philadelphia R. R. Co. v. Miles, 55 Pa. St. 209 (1867), 566, 848, 881. West Chicago St. R. R. Co. v. Walsh, 78 111. App. 595 (1898), 1044. West Hartford, Town of, v. Board of Water Commis- sioners, 68 Conn. 323 (1896), 273, 274, 405. [ ccviii ] West Memphis Packet Co. v. White, 99 Tenn. 256 (1897), 934. West Side Electric Co. v. Consol. T. &E. Co., 110N. Y. App. Div. 171 (1905), 383. West Virginia Transp. Co. v. Ohio R. Pipe Line Co., 22 W. Va. 600 (1883), 59, 687, 691. West Virginia Transp. Co. v. Volcanic 0. & C. Co., 5 W. Va. 382 (1872), 59, 416. Western & A. Ry. Co. v. Voils, 98 Ga. 446 (1896), 635. Western Irrigation & L. Co. v. Chapman (Kan.), 59 Pac. 1098 (1899), 93. Western Maryland R. R. Co. v. Herold, 74 Md. 510 (1891), 862. Western Maryland R. R. Co. v. Schaun, 97 Md. 563 (1903), 890. Western Maryland R. R. Co. v. Stocksdale, 83 Md. 245 (1896), 889. Western N. Y. & P. Ry. Co. v. Penna. Ry. Co., 137 Fed. 343 (1905), 796. Western Ry. Co. v. Harwell, 91 Ala. 340 (1890), 1026. Western Ry. Co. v. Little, 86 Ala. 159 (1888), 1024. Western Transportation Co. v. Hoyt, 69 N. Y. 230 (1877), 1265, 1266, 1268. Western Union Telegraph Co. v. Adams, 75 Tex. 531 (1889), 348. Western Union Telegraph Co. v. Allen, 66 Miss. 549 (1889), 133, 348. TABLE OF CASES CITED [References are to sections] Western Union Telegraph Co. v. American Union Tel. Co., 65 Ga. 160 (1880), 694. Western Union Telegraph Co. v. Arwine, 3 Tex. Civ. App. 156 (1893), 412. Western Union Telegraph Co. v. Ayers (Tex.), 93 S. W. 199 (1906), 437. Western Union Telegraph Co. v. Baltimore & O. Tel. Co., 19 Fed. Rep. 660 (1884), 691. Western Union Telegraph Co. v. Barefoot, 97 Tex. 159 (1903), 1041. Western Union Telegraph Co. v. Beck, 58 111. App. 564 (1895), 1025. Western Union Telegraph Co. v. Bell (Tex. App.), 90 S. W. 714 (1905), 348. Western Union Telegraph Co. v. Bibb (Ky.), 125 S. W. 257 (1910), 1041. Western Union Telegraph Co. v. Bierhans, 12 Ind. App. 17 (1895), 657. Western Union Telegraph Co. v. Birge-Forbes Co., 29 Tex. Civ. App. 526 (1902), 657. Western Union Telegraph Co. v. Blanchard, 68 Ga. 299 (1882), 1014. Western Union Telegraph Co. v. Boots (Tex. Civ. App.), 31 S. W. 825 (1895), 980. Western Union Telegraph Co. v. Broesche, 72 Tex. 654 (1889), 412. Western Union Telegraph Co. v. Burns,-51So.373(1910), 871. Western Union Telegraph Co. v. Cain (Tex. Civ. App.), 40 S. W. 624 (1897), 871. 14 Western Union Telegraph Co. v. Call Pub. Co., 44 Neb. 326 (1895), 244. Western Union Telegraph Co. v. Call Pub. Co., 58 Neb. 192 (1895), 851. Western Union Telegraph Co. v. * Call Pub. Co., 181 U. S. 92 (1901), 133, 244, 1204, 1290, 1319, 1322. Western Union Telegraph Co. v. Carew, 15 Mich. 525 (1867), 133, 520, 766, 1014. Western Union Telegraph Co. v. Chamblee, 122 Ala. 428 (1898), 766, 1014. Western Union Telegraph Co. v. Cobb, 95 Tex. 333 (1902), 1041. Western Union Telegraph Co. v. Cobbs, 47 Ark. 344 (1886), 1014, 1025, 1026. Western Union Telegraph Co. v. Cooper, 29 Tex. Civ. App. 591 (1902), 1010. Western Union Telegraph Co. v. Courtney, 113 Tenn. 482 (1904), 1025. Western Union Telegraph Co. v. Crall, 38 Kan. 679 (1888), 766, 1014. Western Union Telegraph Co. v. Crider, 107 Ky. 600 (1900), 398, 874. Western Union Telegraph Co. v. Culberson, 79 Tex. 65 (1890), 1026. Western Union Telegraph Co. v. Cullers, 3 Willson Cir. Gas. Ct. App. (Tex., 1887), 289, 1041. Western Union Telegraph Co. v. Cunningham, 99 Ala. 314 (1892), 433, 442. [ ccix] TABLE OF CASES CITED [References are to sections] Western Union Telegraph Co. v. Dougherty, 54 Ark. 221 (1891), 1026. Western Union Telegraph Co. v. Dozier, 67 Miss. 288 (1889), 412. ' Western Union Telegraph Co. v. Dubois, 128 111. 248 (1889), 348, 436. Western Union Telegraph Co. v. Dunfield, 11 Colo. 335 (1888), 1025, 1026. Western Union Telegraph Co. v. Edsall, 63 Tex. 668 (1885), 742. Western Union Telegraph Co. v. Eubank, 100 Ky. 591 (1897), 1008, 1014. Western Union Telegraph Co. v. Fenton, 52 Ind. 1 (1875), 348. Western Union Telegraph Co. v. Ferguson, 57 Ind. 495 (1877), 609, 633. Western Union Telegraph Co. v. Fisher, 21 Ky. Law Rep. 1293 (1900), 874. Western Union Telegraph Co. v. Ford, 77 Ark. 531 (1906), 874. Western Union Telegraph Co. v. Foster, 64 Tex. 220 (1885), 412, 742. Western Union Telegraph Co. v. Georgia Cotton Co., 94 Ga. 444 (1894), 874, 1041. Western Union Telegraph Co. v. Gibson (Tex. Civ. App.), 53 S. W. 712 (1899), 874. Western Union Telegraph Co. v. Graham, 1 Col. 230 (1871), 851, 1014. Western Union Telegraph Co. v. Hamilton, 36 Tex. Civ. App. 300 (1904), 21, 133. [ CCX 1 Western Union Telegraph Co. v. Harding, 103 Ind. 505 (1885), 133, 398, 874, 1041. Western Union Telegraph Co. v. Harper, 15 Tex. Civ. App. 37 (1896), 607. Western Union Telegraph Co. v. Harvey, 67 Kan. 729 (1903), 1041. Western Union Telegraph Co. v. Henderson, 89 Ala. 510 (1889), 277, 412, 437, 562, 871, 1014, 1025, 1041. Western Union Telegraph Co. v. Hendricks, 29 Tex. Civ. App. 413 (1902), 1041. Western Union Telegraph Co. v. Henley, 23 Ind. 14 (1899), 599. Western Union Telegraph Co. v. Hill, 163 Ala. 18 (1909), 1041. Western Union Telegraph Co. v. Hill (Tex.), 26 S. W. 252 (1894), 874. Western Union Telegraph Co. v. Hill (Tex. Civ. App.), 65 S. W. 1123 (1902), 607. Western Union Telegraph Co. v. Hines, 96 Ga. 688 (1895), 1025. Western Union Telegraph Co. v. Hinkle, 3 Tex. Civ. App. 518 (1893), 412. Western Union Telegraph Co. v. Hutcheson, 91 Ga. 252 (1892), 599. Western Union Telegraph Co. v. Hyer Bros., 22 Fla. 637 (1886), 133, 980.- Western Union Telegraph Co. v. Jackson, 163 Ala. 9 (1909), 1041. TABLE OF CASES CITED [References are to sections] Western Union Telegraph Co. v. James, 90 Ga. 254 (1892), 348, 417. Western Union Telegraph Co. v. Johnson, 9 Tex. Civ. App. 48 (1894), 902. Western Union Telegraph Co. v. Jones, 69 Miss. 658 (1892), 412, 1014, 1025. Western Union Telegraph Co. v. Lewison, 182 Fed. 369 (1910), 348. Western Union Telegraph Co. v. Liddell, 68 Miss. 1(1890), 412. Western Union Telegraph Co. v. Lilliard, 86 Ark. 208 (1908), 551, 573. Western Union Telegraph Co. v. Longwill, 5 New Mex. 308 (1889), 1025. Western Union Telegraph Co. v. Love Banks Co., 73 Ark. 205 (1904), 398, 874. Western Union Telegraph Co. v. Mathews, 107 Ky. 663 (1900), 437, 1041. Western Union Telegraph Co. v. Matthews, 24 Ky. L. Rep. 3 (1902), 575. Western Union Telegraph Co. v. McCaul, 115 Term. 99 (1905), 871, 1041. Western Union Telegraph Co. v. McGuire, 104 Ind. 130 (1885), 436, 877. Western Union Telegraph Co. v. McKibben, 114 Ind. 511 (1887), 1025. Western Union Telegraph Co. v. McLaurin, 70 Miss. 26 (1892), 336, 599. Western Union Telegraph Co. v. McMillan (Tex. Civ. App.), 30 S. W. 298 (1895), 862. Western Union Telegraph Co. v. Meredith, 95 Ind. 93 (1888), 980, 1026. Western Union Telegraph Co. v. Milton, 53 Fla. 484 (1907), 1014. Western Union Telegraph Co. v. Mississippi R. R. Commis- sion, 74 Miss. 80 (1896), 244, 814. Western Union Telegraph Co. v. Mitchell, 91 Tex. 454 (1898), 1041. Western Union Telegraph Co. v. Moore, 12 Ind. App. 136 (1894), 1041. Western Union Telegraph Co. v. Moran (Tex. Civ. App.), 113 S. W. 625 (1908), 1041. Western Union Telegraph Co. v. Moseley, 28 Tex. Civ. App. 562 (1902), 1041. Western Union Telegraph Co. v. Myatt, 98 Fed. 335 (1899), 1402, 1404. Western Union Telegraph Co. v. Neel, 86 Tex. 368 (1894), 874, 1041. Western Union Telegraph Co. v. O'Keefe (Tex. Civ. App.), 29 S. W. 1137 (1895), 442. Western Union Telegraph Co. v. Pendelton, 122 U. S. 347 (1886), 1417. Western Union Telegraph Co. v. Phillips (Tex. Civ. App.), 30 S. W. 494 (1893), 1026. Western Union Telegraph Co. v. Pierce, 170 S. W. 360 (1902), 874. Western Union Telegraph Co. v. Power, 93 Ga. 543 (1894), 438. [ccxi] TABLE OF CASES CITED [References are to sections] Western Union Telegraph Co. v. Pratt, 18 Okla. 274 (1907), 1010. Western Union Telegraph Co. v. Price, 137 Ky. 758 (1910), 1041. Western Union Telegraph Co. v. Rains, 63 Tex. 27 (1885), 1025. Western Union Telegraph Co. v. Rawls (Tex. Civ. App.), 62 S. W. 136 (1901), 874. Western Union Telegraph Co. v. Reynolds Bros., 77 Va. 173 (1883), 133, 348, 1025. Western Union Telegraph Co. v. Robinson, 97 Tenn. 638 (1896), 871. Western Union Telegraph Co. v. Rosentreter, 80 Tex. 406 (1891), 688. Western Union Telegraph Co. v. Rowell (Ala.), 21 So. 880 (1910), 1041. Western Union Telegraph Co. v. Sanders (Ind.), 79 N. E. 406 (1906), 412, 742. Western Union Telegraph Co. v. Schockley (Tex. Civ. App.), 122 S. W. 945 (1909), 1041. Western Union Telegraph Co. v. Scircle, 103 Ind. 227 (1885), 903. Western Union Telegraph Co. v. Scott, 27 Ky. Law Rep. 975 (1905), 871, 1041. Western Union Telegraph Co. v. Shaw, 40 Tex. Civ. App. 277 (1905), 1041. Western Union Telegraph Co. v. Short, 53 Ark. 434 (1890), 56, 133, 980. [ ccxii ] Western Union Telegraph Co. v. Shumate, 2 Tex. Civ. App. 429 (1893), 412. Western Union Telegraph Co. v. Simmons (Tex. Civ. App.), 93 S. W. 686 (1906), 515, 520. Western Union Telegraph Co. v. Smith (Tex. Civ. App.), 30 S. W. 937 (1894), 903. Western Union Telegraph Co. v. Snodgrass, 94 Tex. 284 (1901), 433, 442. Western Union Telegraph Co. v. Sorsby, 29 Tex. Civ. App. 345 (1902), 1017. Western Union Telegraph Co. v. State, 165 Ind. 492 (1905), 603, 607. Western Union Telegraph Co. v. Stevenson, 128 Pa. St. 442 (1889), 412, 742, 766, 1014. Western Union Telegraph Co. v. State ex rel., 165 Ind. 492 (1905), 137, 138. Western Union Telegraph Co. v. Swearingen, 95 Tex. 420 (1902), 278, 871, 1041. Western Union Telegraph Co. v. Swoveland, 8 Ind. App. 563 (1895), 837, 841. Western Union Telegraph Co. v. Taylor, 3 Tex. Civ. App. 310 (1893), 765. Western Union Telegraph Co. v. Todd, 22 Ind. App. 701 (1899), 412. Western Union Telegraph Co. v. Totten, 141 Fed. 533 (1905), 605. Western Union Telegraph Co. v. Trissal, 98 Ind. 566 (1884), 1041. TABLE OF CASES CITED [References are to sections] Western Union Telegraph Co. v. Trotter, 55 111. App. 659 (1894), 277, 278, 871, 1041. Western Union Telegraph Co. v. Turner, 94 Tex. 304 (1901), 514, 521. Western Union Telegraph Co. v. Tyler, 74 111. 168(1874), 1014. Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464 (1900), 874. Western Union Telegraph Co. v. Ward, 23 Ind. 377 (1864), 841, 851. Western Union Telegraph Co. v. Warren (Tex.), 36 S. W. 314 (1896), 437, 765. Western Union Telegraph Co. v. Waters, 139 Ala. 652 (1904), 597. Western Union Telegraph Co. v. Waxelbaum Co., 113 Ga. 1017 (1901), 412. Western Union Telegraph Co. v. Way, 83 Ala. 542 (1887), 1025. Western Union Telegraph Co. v. Whitson, 145 Ala. 426 (1906), 1041. Western Union Telegraph Co. v. Williams, 86 Va. 696 (1890), 56. Western Union Telegraph Co. v. Wilson, 93 Ala. 32 (1890), 412, 599. Western Union Telegraph Co. v. Wingate, 6 Tex. Civ. App. 394 (1894), 874, 1041. Western Union Telegraph Co. v. Woods, 56 Kans. 737 (1896), 1041. Western Union Telegraph Co. v. Woodward, 84 Ark. 323 (1907), 348. Western Union Telegraph Co. v. Wright (Ala.), 53 So. 95 (1910), 1041. Western Union Telegraph Co v. Yopst, 118 Ind. 248 (1889), 442, 599, 1025. Weymouth v. Penobscot Log Driving Co., 71 Me. 29 (1880), 55, 211. Whalen v. Baltimore & 0. R. Co., 108 Md. 11 (1908), 306, 318. Whalen v. Consolidated Traction Co., 61 N. J. L. 606 (1898), 932. Wheeler, Matter of, 62 N. Y. Misc. 37 (1908), 299. Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582 (1887), 93, 231, 242, 445, 846, 973, 1249, 1402. Whicher v. Boston & A. R. R. Co., 176 Mass. 275 (1900), 153, 769, 975. Whitehead v. St. Louis, I. M. & S. Ry. Co., 99 Mo. 263 (1889), 745, 763. White v. Ashton, 51 N. Y. 280 (1873), 905, 906, 907, 921. White v. Atlanta St. Ry. Co., 92 Ga. 494 (1893), 736. White v. Chesapeake & 0. R. R. Co., 26 W.Va. 800 (1885), 888. White v. Evansville & T. N. R. R. Co., 133 Ind. 480 (1892), 864. White v. Highline Canal & Ry. Co., 22 Colo. 191 (1886), 852. White v. Humphery, 11 Q. B. 43 (1847), 393, 726. White v. Kennon & Co., 83 Ga. 343 (1889), 223. White v. Mary Ann, 6 Cal. 462 (1856), 173, 774. White v. Missouri Pacific Ry. Co., 19 Mo. App. 400 (1885), 723. [ ccxiii ] TABLE OF CASES CITED [References are to sections] White v. Norfolk & S. R. R. Co., 115 N. C. 631 (1894), 935, 957. White v. Postal Telegraph Co., 25 App. D. C. 364 (1905), 108, 255. White v. Winnisimet Ferry Co., 7 Cush. 155 (1851), 771, 772, 767, 972. White Live Stock Commission Co. v. Chicago, M. & St. P. R. R. Co., 87 Mo. App. 330 (1900), 1047. White, W. & K. v. Western Union Telegraph Co., 14 Fed. 710 (1882), 657, 984. Whitehouse v. Staten Island Wa- ter Co., 91 N. Y. Supp. 544 (1905), 280. Whiting v. Mills, 7 Upp. Can. Q. B. 450 (1849), 751. Whiting v. Sheboygan & F. Du Lac, 25 Wis. 167 (1870), 807. Whitmore v. Bowman, 4 Green, 148 (1853), 182, 241. Whitney v. New York, N. H. & H. R. R. Co., 43 C. C. A. 19 (1900), 784. Whitsell v. Crane, 8 Watts & S. 369 (1845), 862. Whittimore v. Haroldson, 2 Lea (Term.), 312 (1879), 1032. Wibert v. New York & E. R. R. Co., 12 N. Y. 245 (1855), 663, 914. Wichita Sav. Bank v. Atchison, T. & S. F. Ry. Co., 20 Kans. 519 (1878), 748. Wieland v. Southern Pac. Co., 1 Cal. App. 343 (1905), 763, 764. Wiemer v. Louisville Water Co., 130 Fed. Rep. 251 (1903), 264. [ ccxiv ] Wiggins Ferry Co. v. East St. Louis V. Ry. Co., 107 111. 450 (1883), 188, 258, 262, 792, 1043. Wight v. United States, 167 U. S. 512 (1897), 1293, 1312, 1316. Wilcox v. Durham & C. R. R. Co. (N. C.), 67 S. E. 758 (1910), 1317. Wilcox v. San Antonio & A. Pass. R. R. Co., 11 Tex. Civ. App. 487 (1895), 761. Wilde v. Merchants' Dispatch Co., 47 Iowa, 247 (1877), 180. Wilder v. St. Johnsbury & L. C. Ry., 66 Vt. 636 (1891), 346, 394, 431, 723. Wilkes-Barre v. Spring Brook Water Co., 4 Lack. (Pa.) Leg. News, 367 (1899), 1082, 1087, 1111, 1138, 1139, 1146, 1166, 1167. Wilkinson v. Light, Heat & Wa- ter Co., 78 Miss. 389 (1900), 350. Will v. Postal Tel. Cable Co., 3 App. Div. 22 (1896), 742. Wilfcox v. Consolidated Gas Co., 212 U. S. 19 (1909), 1063, 1088, 1096, 1104, 1106, 1124, 1129, 1201, 1209, 1220, 1430, 1431. Williams v. Branson, 1 Murphy, 417 (1810), 166. Williams v. Grant, 1 Conn. 487 (1816), 985. Williams v. Maysville Telephone Co., 26 Ky. L. Rep. 945 (1904), 1252. Williams v. Mutual Gas Co., 52 Mich. 449 (1884), 1345. Williams v. Pullman P. C. Co., 40 La. Ann. 87 (1888), 940. TABLE OF CASES CITED [References are to sections] Williams et al. v. Judge, 45 La. Ann. 1295 (1893), 223. Williams v. Louisville & N. Ry. Co., 150 Ala. 324 (1907), 932. Williams v. Mut. Gas Co., 52 Mich. 499 (1884), 111, 434, 877. Williams v. Oregon S. L. R. R. Co., 18 Utah, 210 (1898), 784. Williams v. Pullman Palace Car Co., 40 La. Ann. 417 (1888), 367. Williams v. Webb, 22 Misc. (N. Y.) 513 (1898), 769. Williams v. Wilmington & W. R. R., 93 N. C. 42 (1885), 747. Williamson v. Chicago, R. I. & P. R. Co., 53 la. 126 (1880), 811. Willis v. Atlantic R. R. Co., 120 N. C. 508 (1897), 761. Willis v. McMahan, 89 Cal. 156 (1891), 106, 551. Willock v. Pennsylvania R. R. Co., 166 Pa. St. 184 (1895), 1011. Wilmington City Ry. Co. v. Wil- mington, etc., Ry. Co., 8 Del. Ch. 468 (1900), 693. Wilsey v. Louisville & N. R. R. Co., 83 Ky. 511 (1886), 887. Wilson v. Adams Express Co., 27 Mo. App. 360 (1887), 1049. Wilson v. Atlantic C. L. Ry. Co., 129 Fed. 774 (1904), 259, 755, 772. Wilson v. Atlanta & Charlotte Ry. Co., 82 Ga. 386 (1889), 399, 729. Wilson v. California Central Ry. Co., 94 Cal. 166 (1892), 1037. Wilson v. Chesapeake & 0. R. R. Co., 21 Gratt. (Va.) 654 (1872), 875. Wilson v. Hamilton, 4 Ohio St. 722 (1855), 182, 241, 771. Wilson v. New Orleans & N. E. R. R. Co., 63 Miss. 352 (1885), 872, 904. Wilson v. Platt, 84 N. Y. Supp. 143 (1903), 1003. Wilson v. Telegram Co., 18 N. Y. State Rep. 78 (1888), 494. Wilson Sewing Machine Co. v. Louisville & N. R. R. Co., 71 Mo. 203 (1879), 1048. Wilson Water & Elec. Co. v. Arkadelphia, 129 S. W. 1091 (1910), 825, 1251. Wilterding v. Green, 4 Ida. 773 (1896), 93, 384. Wilton v. Middlesex R. R. Co., 107 Mass. 108 (1871), 745. Wilton v. Middlesex R. R. Co., 125 Mass. 130 (1878), 785. Winchester & S. R. R. Co. v. Commonwealth, 106 Va. 264 (1906), 740, 836. Winchester &c. Turnpike Road Co. v. Croxton, 98 Ky. 739 (1898), 75, 241. Windsor Glass Co. v. Carnegie Co., 204 Pa. St. (1903), 129. Wing v. New York, etc., Ry. Co., 1 Hilton (N. Y. C. P.), 235, 920. Winona & St. P. R. R. Co. v. Blake, 94 U. S. 180 (1876), 1427. Winslow v. Vermont & M. R. R. Co., 42 Vt. 700 (1870), 1049. Wintermute v. Clarke, 5 Sandf. 242 (1851), 240, 263, 1032. Winters v. Cowen, 90 Fed. 99 (1898), 874. Wisconsin, M. & P. R. R. Co. v. Jacobson, 179 U. S. 287 (1900), 525, 698, 1434. [ ccxv ] TABLE OF CASES CITED [References are to sections] Wise v. Ackennan, 76 Md. 375 (1892), .193. Wise v. Covington & C. St. Ry. Co., 91 Ky. 537 (1891), 939. Wiser v. Chesley, 53 Mo. 547 (1873), 970. Withey v. Pere Marquette R. R. Co., 141 Mich. 412 (1905), 341. Woas v. St. Louis Transit Co., 198 Mo. 664 (1906), 941, 944. Wolf v. Express Co., 43 Mo. 421 (1869), 916. Wolf v. Western Union Tele- graph Co., 62 Pa. St. 83 (1869), 1025, 1026. Wolf Brothers v. Allegheny Val- ley R. R. Co., 7 I. C. C. Rep. 40 (1897), 1237. Wood v. City of Auburn, 87 Me. 287 (1895), 451, 458, 460. Wood v. Chicago, M. & St. P. Ry. Co., 68 Iowa, 491 (1886), 833, 922. Wood v. Crocker, 18 Wis. 345 (1864), 1037. Woods v. Devlin, 13 111. 746 (1852), 724, 875, 971. Wood v. Louisville & N. Ry. Co., 101 Ky. 703 (1897), 848, 849. Wood v. Maine Central Ry. Co., 98 Me. 98 (1903), 875. Wood v. Milwaukee & St. P. Ry. Co., 27 Wis. 541 (1871), 1033. Wood v. Southern Ry. Co., 118 N. C. 1056 (1896), 1026. Woodruff v. Havcmeyer, 106 N. Y. 129 (1887), 232. Woodruff S. & P. C. Co. v. Diehl, 84 Ind. 474 (1882), 153, 975. Woodward v. Birch, 4 Bush, 510 (1869), 979. Woodworth v. Morse, 18 La. Ann. 156 (1866), 965. [ ccxvi ] Woolsey v. Chicago, B. & Q. R. R. Co., 39 Neb. 798 (1894), 745, 761. Wright v. Caldwell, 3 Mich. 51 (1853), 409, 733. Wright v. California Central Ry. Co., 78 Cal. 360 (1889), 862. Wright v. Chicago, B. & Q. R. R. Co., 4 Colo. App. 102 (1893), 944. Wright v. Glen Telephone Co., 112 App. Div. 745 (1906), 826. Wright & C. Co. v. Warren, 177 Mass. 283 (1901), 1045. Wright v. Northampton & H. R. R. Co., 122 N. C. 852 (1898), 783. Wright v. Platte Valley Irr. Co., 27 Colo. 322 (1900), 384. Wright v. United States, 167 U. S. 512 (1897), 681. Wyckoff v. Queen's County Ferry Co., 52 N. Y. 32 (1873), 182, 241, 771. Wyld v. Pickford, 8 M. & W. 443 - (1841), 431. Wyman v. Chicago & A. R. R. Co., 14 Mo. App. 35 (1877), 181. Wyman v. Northern Pacific R. R. Co., 34 Minn. 210 (1885), 1044. Wynn v. City & Suburban Ry. Co. of Savannah, 91 Ga. 344 (1893), 738. Wynn v. Georgia Ry. & El. Co., 6 Ga. App. 77 (1909), 439, 877. X Xenia Real Estate Co. v. Macy, 147 Ind. 568 (1896), 458. TABLE OF CASES CITED [References are to sections] Yancey v. Batesville Telephone Co., 81 Ark. 487 (1907), 435. Yazoo & M. V. R. R. Co. v. Blum Co., 88 Miss. 180 (1906), 662, 664, 801, 803, 914. Yazoo & M. V. R. R. Co. v. Mc- Kay, 91 Miss. 138 (1907), 799. Yazoo & M. V. R. R. Co. v. Searles, 85 Miss. 520 (1904), 130, 448, 1050. Yazoo & M. V. R. R. Co. v. White, 82 Miss. 120 (1903), 410. Yellow River Improvement Co. v. Wood County, 81 Wis. 554 (1892), 72. Yeomans v. Contra C. S. Nav. Co., 44 Cal 71 (1872), 778. Yerkes v. Sabin, 97 Ind. 141 (1884), 771. Yoakum v. Dryden (Tex. Civ. . App.), 26 S. W. 312 (1894), 399, 409, 721, 729, 730. York Co. v. Central R. R. Co., 3 Wall. 107 (1865), 1007. York & N. M. Ry. Co. v. Reg., 1 El. & Bl. 858 (1853), 304. Yorton v. Milwaukee, L. S. & W. Ry. Co., 54 Wis. 234 (1882), 890. Youghiogheny & Ohio Coal Co. v. Erie Ry. Co. et al., 24 Ohio Civ. Ct. 289 (1902), 98, 689. Youmans v. Wabash Ry. Co. (Mo. App.), 127 S. W. 959 (1910), 745. Young v. Boston, 104 Mass. 95 (1870), 380. Young v. Buckingham, 5 Ohio, 485 (1832), 53, 241. Young v. Central of Ga. Ry. Co., 120 Ga. 25 (1904), 441, 885. Young, Ex parte, 209 U. S. 123 (1908), 1406. Young v. Western Union Tele- graph Co., 34 N. Y. Super. Ct. 390 (1872), 1025. Younger v. Judah, 111 Mo. 303 (1892), 565.* Zackery v. Mobile & Ohio R. R. Co., 75 Miss. 751 (1898), 572, 635, 637, 746. Zagelmeyer v. Cincinnati, S. & M. R. R. Co., 102 Mich. 214, 887. Zanesville v. Gas Light Co., 47 Ohio St. 1 (1889), 31, 111. Zehren v. Milwaukee Electric Ry. Co., 99 Wis. 83 (1898), 192. Zenobia, The, 1 Abb. Adm. 48 (1847), 183. Zimmer v. New York Central & H. R. R. R. Co., 137 N. Y. 460 (1893), 1019. Zinn v. New Jersey Stb. Co., 49 N. Y. 442 (1872), 1038. Zircle v. Southern Ry. Co., 102 Va. 17 (1903), 225. Zollinger v. The Emma, Fed. Gas. No. 18,218 (1876), 971. Zouch v. Chesapeake & 0. Ry. Co., 36 W. Va. 524 (1892), 1002, 1019, 1021. [ ccxvii ] PUBLIC SERVICE CORPORATIONS CHAPTER I HISTORICAL INTRODUCTION 1. Public callings and private business. Topic A. The Mediaeval Policy of Regulation 2. The mediaeval theory of State control. 3. The regulation of business in the middle ages. 4. Early differentiation of the public service law. 5. Examination of the early public employments. 6. The surgeon. 7. The tailor. 8. The smith. 9. The victualer. 10. The baker. 11. The miller. 12. The innkeeper. 13. The carrier. 14. The ferryman. 15. The wharfinger. Topic B. Persistence of this Police Power 16. Continuance of state regulation. 17. Parliamentary regulation of rates. 18. Restriction of prices in the colonies. 19. Persistence of the legislative power. 20. Survival of the common law. 21. Callings connected with transportation. 22. Introduction of improved highways. 23. Toll bridges. 24. Turnpikes. 25. Canals. 26. Railways. 1 [1] S 1 1 PUBLIC SERVICE CORPORATIONS o J Topic C. The Period of Laissei Faire 27. Alteration in economic conditions. 28. Development in the common law. 29. Freedom of business from State control. " 30. Special restrictions in early charters. 31. Gas supply. 32. Water supply. 33. The struggle against encroaching monopoly. 34. Conservative and radical views of regulation. Topic D. Present Control of Public Employment 35. Economic conditions at the present time. 36. Control of the public services necessary. 37. Variety of the public services. 38. Differentiation of the public service law. 39. Unity of the public service law. 40. Present development of the public service law. 41. Imperative need of effective regulation. 42. Ultimate limitations upon public employment. 1. Public callings and private business. The difference between public callings and private business is a distinction in the law governing business re- lations which has always had and will always have most important consequences. Those in a public calling have always been under the extraordinary duty to serve all comers, while those in a private business may always refuse to sell if they please. So great a distinction as this constitutes a difference in kind of legal control rather than merely one of degree. The causes of this division are, of course, rather economic than strictly legal; and the relative importance of these two classes at any given time, therefore, depends ultimately upon the industrial conditions which prevail at that period. Thus in the England which we see through the medium of our earliest law reports the mediaeval system of established monopo- lies called for the legal requirement of indiscriminate serv- ice from those engaged in almost all employments. There followed in succeeding centuries an expansion of trade [2] HISTORICAL INTRODUCTION [ 2 which gradually did away with the necessity for coercive law. Indeed in the early part of the nineteenth century, free competition became the very basis of the social or- ganization, with the consequence that the recognition of the public callings as a class almost ceased. It is only in very recent years that it has again come to be recog- nized that the process of free competition fails in some cases to secure the public good; and it has been reluc- tantly admitted that State control is again necessary over such lines of industry as are affected with a public in- terest. Thus with varying importance the distinction between the public callings and the private callings has been present in our law from the earliest times to the present day. The common law requiring public service from those who profess a public calling has been ready to deal with every public employment at the instant of its recognition as such, for the protection of the whole people so far as it was generally felt that such protection was necessary. Topic A. The Mediaeval Policy of Regulation 2. The mediaeval theory of State control. The mediaeval system involved almost universal reg- ulation of all the doings of men, and therefore its com- mercial policy was almost completely restrictive. The ideal held was a society in which all things were ordered, the full conception being that every man had a right to his place in this established order. This state of affairs was by most men greatly desired. Indeed, a regulated monopoly with the corresponding obligation of public service seemed in that age to the great majority of people far better than an unregulated competition without pub- lic obligation. It was thought that things were put in a true balance by requiring each person to perform his part and allowing no person to interfere with the employment [3] 3 ] PUBLIC SERVICE CORPORATIONS of another. And all of this control of industrial affairs was felt to be ultimately for the benefit of the whole pub- lic who could obtain thereby without favor at reasonable prices proper service in accordance with their require- ments. In this industrial regulation it has been well said that the mediaeval system was a consumer's policy far more than it was a producer's policy. 3. The regulation of business in the middle ages. In mediaeval England this thorough system of State control reached a high state of development. Most of the trades in the towns were parceled out to the gilds. Under this system the services to be rendered to the public in the trades were governed by gild codes. These by-laws were continually declared void by the local courts if they were really inconsistent with public serv- ice. In the country at the same time there were to be met similar privileges in carrying on business in connec- tion with the manorial system. Some business required the investment of more or less capital in constructing a plant, as the bakehouse and the mill. It may have been necessary at the outset that these should be provided by the lord of the manor; at all events in later times the seignorial ban covered these, the lord granting franchises to certain persons. Here again those who conducted these businesses were bound to serve all fairly or answer for it to the courts of the manor. But, upon the whole, the ordinary trades and crafts were more freely open to anyone in the country than in the towns, with their craft gilds and merchant gilds. This may explain why the cases requiring public service of carriers and inn- keepers, ferrymen and farriers, appear so early in the royal courts; for there were no local courts with clear jurisdiction over the lines of travel across the country. [4] HISTORICAL INTRODUCTION [ 4, 5 4. Early differentiation of the public service law. Thus there is to be found from the earliest times a pe- culiar law governing the conduct of those engaged in a public employment. The characteristic thing then as now was the legal imposition of an affirmative duty of proper actions upon those who openly professed a public employment, while those who carried on private business were under practically no duties which were not purely negative in character. This general distinction between the legal obligations of those in public calling and in private business was often of the utmost importance in our early common law. Indeed, whether the defendant was in common employment or not, made more dif- ference in the success of a plaintiff's action or its failure than it does to-day. In those days contract law was so undeveloped that in an ordinary business one could not be held to his bargains, yet at that time in a public calling one was held to the public undertaking he made to serve all that might apply. So, too, while the law of tort as yet gave no remedy against one for negligent injury to property voluntarily intrusted to him in the course of ordinary business, in public employment one was answer- able for failing to use proper skill in the calling he had assumed. However obsolete this substantive law may be as to private business, the subsequent developments in the law in no manner affect the force of these decisions in establishing the fundamental difference in legal sit- uation between those engaged in public employment and those in private business. 5. Examination of the early public employments. The modern law governing public employments may therefore be said to be a survival of a more generally applicable principle of the mediaeval law. It will be in- structive with this in view to examine some of the early [5] 6 ] PUBLIC SERVICE CORPORATIONS applications of the mediaeval law which depend upon the recognition of the common calling as presenting dif- ferent conditions, and make plain, therefore, the neces- sity for this further law. It will be seen then that the law which suffices for ordinary business is never enough for these extraordinary callings. Moreover, in these earliest examples there are certain elements in the situa- tion which are so characteristic that the realization of them should lead to some conception of the inherent character of the public employment and the special law necessary for its regulation. These principles of our common law are for all tune. It would be too much to expect to see the law finally settled in those times, to find modern aspects of the problem altogether antici- pated. But one may discover in these early cases the essential factors in the establishment of public calling, and the first principles involved in the law governing public employment. 6. The surgeon. The case dealing with the common surgeon most often cited is an anonymous suit in 144 1. 1 This was a writ of trespass on the case against one R., a veterinary surgeon, to the effect that the defendant had undertaken to cure the plaintiff's horse with skill and care of a certain trouble, and that he then so negligently and carelessly gave his medicines that the horse died. But Judge Paston said: "You have not shown that he is a common surgeon to cure such horses, and therefore although he has killed your horse by his medicines, you shall have no action against him without an assumpsit." The court accord- ingly decided that a traverse of the assumpsit made a 1 Y. B. 19 Hen. VI, 49, pi. 5. 11 Ed. IV, 6, pi. 10; 1 Roll. Abr. 10, See also Y. B. 43 Ed. Ill, 6, pi. pi. 5. 11; Y. B. 3 Hen. VI, 36, pi. 33; Y. B. [6] HISTORICAL INTRODUCTION [ 7 good issue. The significance of an actual assumpsit in those days, as has just been pointed out, was that when one man had authorized another to deal with personal property in the course of private business, the latter was under no legal liability to use care, unless he had made an express undertaking to that effect and entered upon the performance of it. In public business, on the other hand, the legal obligation to perform the act with proper skill in accordance with the public profession was well established. From other cases it is plain that the curing of man or beast was considered a public calling. In the rude England of these unlettered times such professional men were comparatively few. Frequently only one sur- geon would be at hand in any one district, so that if he should refuse his services, all might be lost. Such being the situation it is easy to understand why the law was so stern in the case of the common doctor, requiring him to cure all who came by reason of his general pro- fession and giving the patient an action, although he had submitted himself to the operation, if the doctor was neg- ligent, although no care had been promised in the par- ticular case. It was the unusual situation which pro- duced this extraordinary law. To-day, however, there are so many physicians in most communities that the law apparently no longer deems it necessary to compel them to accept any patient who may call upon them. 1 7. The tailor. Some light upon the position of the mediaeval tailor be- fore the law we obtain from an opinion of the great Brian: "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 1 Hurley v. Eddingfield, 156 Ind. 416, 59 N. E. 1058, 53 L. R. A. 135, 83 Am. St. Rep. 198 (1901). [7] 8 ] PUBLIC SERVICE CORPORATIONS 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 the making." l It is rather difficult at present to imagine a state of society where there was not competition enough among tailors. Still, the time was when this most neces- sary calling was followed by so few comparatively, that for the protection of the public coercive law was deemed necessary. But in this calling there has been lively com- petition for so long that the tailor at a very early time dropped from the list of public callings, and is mentioned in the books no more as a member of this exceptional class of public servants. 8. The smith. V Another instance is shown in an anonymous memoran- dum of 1450. 2 "Note that it was agreed by all the court that where a smith declines to shoe my horse, or an inn- keeper refuses to give me entertainment at his inn, I shall have an action on the case, notwithstanding no act is done; for it does not depend upon agreement. But where a builder makes a bargain to build me a house and does nothing, no action on the case, because that does sound in agreement." The meaning of this is that in those days ho action lay upon a mere bargain and even the promisor in a contract need not perform; but one who undertook a public employment must perform, whether he agreed or not. Here again the obligation resting upon those in com- mon callings to serve all that apply is the basis of the case. Why is this entire distinction made between the wayside smith and the journeyman carpenter? Because again the economic conditions of these trades were so different. 1 Y. B. 22 Ed. IV, 49, pi. 15. 19; Y. B. 2 Ed. IV, 13, pi. 9; Y. B. * Anon, Keilway, 50, pi. 4. 22 Ed. IV, 9, pi. 15; Y. B. 21 Hen. See also Y. B. 46 Ed. Ill, 19, pi. VI, 55, pi. 12. [8] HISTORICAL INTRODUCTION [ 9 So far apart were they in the eyes of the courts, that the ordinary law was protection enough for those that dealt with the carpenter, while an extraordinary law was needed in behalf of those that came to the smith. There is time enough in getting at builders to make the situtation in that business one of virtual competition, so that there would be no hardship in leaving builders free to bargain; but the farriers were so scattered that those who required their service immediately, were at the mercy of the par- ticular one at hand. A special code, therefore, was neces- sary else a good horse might be ruined for want of a shoe, if the wayside smith should take it into his head to refuse service. Under modern conditions of trade, however, the public need is not so imperative as to keep the blacksmith in the class of public servants. 1 9. The victualer. There was a time also when common victualers were strictly regulated by common law. The regular purveying of food and drink to the local public was felt to be of as much importance as the proper entertainment of the traveling public at the established inns. In a leading case in 1460 2 Judge Moill treated these two callings as analogous. " 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 victualer to buy victual and he will not sell, I shall have an action of trespass on my case against him." Without such regulation it was felt that there might be oppressive treatment as the need of the purchaser was usually imme- diate and his market limited in many ways by the eco- nomic conditions of early trade. And to the strictness 1 Bessette v. People, 193 111. 334, 2 Y. B. 39 Hen. VI, 18, pi. 24. 62 N. E. 215, 56 L. R. A. 558 See also Y. B. 10 Hen. VII, 8, (1905). pi. 14. [9] 10, 11 ] PUBLIC SERVICE CORPORATIONS with which the sale of such necessities of life as bread and beer were regulated innumerable assizes bear witness. A certain police power is still exercised to-day over these matters, but beyond this even those selling the most necessary food may refuse to sell to any person; a baker may refuse to sell bread to a starving man who tenders payment, so far as the modern law goes. : This is only to be explained on the ground that there is now usually sufficient competition among dealers, so that a case of the refusal of a cash buyer can hardly be imagined. Even so a man turned away can usually find another shop near by. 10. The baker. In the manorial economy the baker had his established place and was obliged therefore to supply his patrons upon reasonable terms, his rights being recognized and his obligations being enforced in the seignioral courts. Even after the business of baking became enfranchised by the breaking up of the mediaeval system, the bakers at hand in any community had still such control of their local patronage as to make their continued regulation seem still necessary. Thus we have the assize of bread a regu- lar part of the royal eyres 2 indeed the assize of bread was defended as late as the nineteenth century in an Alabama case. 3 11. The miller. The early history of the gristmill is of the same tenor. Milling was originally a franchise in the manor and sub- 1 See Brewster v. Miller, 101 Ky. the same principle is founded the 368, 41 S. W. 301, 38 L. R. A. 505 control which the legislature has (1897). always exercised in the establish- * See for a typical instance, Lib. ment and regulation of mills, fcr- Assis. 138, pi. 44. ries, bridges, turnpike roads, and 1 Mayor v. Yuille, 3 Ala. 137 other kindred subjects." (1841), in which it is said: "Upon [10] HISTORICAL INTRODUCTION [ 12 ject therefore to seignioral regulation. 1 As the miller had the exclusive franchise, he was considered bound to be ready to grind corn for all comers at reasonable rates and without discrimination. After these conditions changed the established mill still retained its virtual monopoly over its local district and the miller was bound now by the common law to grind for all in rotation. Indeed it remains law to this day, that the public miller is in common calling bound to serve all without discrimination. 2 12. The innkeeper. Innkeeping has been regarded as a public employment from time immemorial. In all the cases from the time of our earliest reports the right of the traveler to entertain- ment at the common inn is affirmed. Hingham has many cases to support him when he says arguing in an early case, 3 "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 my case because it was his duty to lodge me, and by law he was bound to do it." The surrounding circumstances must again explain the origin of this un- usual law. The whole system of travel and communica- tion in rural England at the time the law of inns was in the making required that the weary traveler should find at convenient places beside the highway houses of entertain- ment and shelter to which he might resort during his journey for food, rest and protection. The ordinary laws of supply and demand might indeed lead to the establish- ment of such houses by the roadside at places which would sufficiently serve the public convenience; but those 1 See Hix v. Gardner, 2 Bulstrode p. 8; Y. B. 22 Hen. VI, 21, pi. 38; (Eng.), 195. Y. B. 22 Ed. IV, 49, pi. 15; Y. B. 2 See cases cited 71, infra. 10 Hen. VII, 8, pi. 14; Keilway, 50, Y. B. 14 Hen. VII, 22, pi. 4. pi. 4; Rex v. Collins, Palmer, 373; See also Y. B. 11 Hen. IV, 45, Anonymous, Godbolt, 345. [Ill 13 ] PUBLIC SERVICE CORPORATIONS laws could not be trusted to secure to each individual the benefit of the food and shelter therein provided. In a matter of such importance the public had an interest and the law must see that, so far as was consistent with justice to the innkeeper, his inn was carried on for the benefit of the whole public. The inn has always been in a true sense a public house. 1 13. The carrier. From the earliest times also, it has been agreed that the common carrier of goods is in a public employment. A statement of the early law is to be found in one of the leading cases on carriers, Jackson v. Rogers, 2 "This was an action on the case for that whereas defendant is a common carrier from London to Lymmington et abinde retrorsum, setting forth as the custom of England, that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by JEFFRIES, 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 conven- ience to carry the same; and the plaintiff had a verdict." Again the explanation must be sought in the history of the times. In Plantagenet England the population lived apart in separate communities. Small attention was paid to the roads connecting them which were no more than trails winding through the wilderness. No cart could pass over them, only pack animals with the goods in their panniers. So many were the bands of outlaws in the 1 See the modern cases in 121, See also Rich v. Kneeland, Hob. infra. 17; Kenrig v. Eggleston, Al. 93; 2 2 Show. 327 (1683). The whole Nicholls v. More, 1 Sid. 36; Morse report of this case is included in the v. Slue, 1 Vent. 190. quotation which follows. [12] HISTORICAL INTRODUCTION [ 14, 15 greenwood that no man might with safety traverse these paths alone. The transportation of goods was, therefore, given over to the carrier, who traveled oftentimes with trains of pack animals, and a considerable company. Few would pass over the same roads between the same towns, because the traffic was still comparatively small, as England had as yet but little beyond a local economy where each community was sufficient to itself, into a national economy which involved interchanges of goods between distant markets. The conditions surrounding transportation, therefore, were those of virtual monopoly. The merchant must appeal to the protection of the law, a protection without which he was at the mercy of the carrier with whom circumstances forced him to deal with- out a chance for choice. 1 14. The ferryman. Ferrymen are found in public employment in our early reports. Their necessity in maintaining through routes of travel was most obvious in England with its coast so indented with estuaries and its many rivers sufficiently large to make bridging in those times a financial, if not an engineering impossibility. Apparently the most of the early cases in regard to them had to do with the exclusive franchise which they almost invariably possessed, although there are a few in relation to their duties. In one of these 2 it was said that a ferryman who invited business was liable in tort if he overloaded his boat whereby a passenger's horse was drowned. 3 15. The wharfinger. In a commercial port those who own the convenient sites for wharfage upon deep water possess a peculiar 1 See the modern cases, 189, Y. B. 22, Lib. Ass. 94, pi. 41. 234, passim. [13] 16 ] PUBLIC SERVICE CORPORATIONS advantage. It was of such wharfinger that Lord Hale in his De Portibus Maris * wrote the most famous paragraph in the whole law relating to public service. It is there that he says that whenever the king or a subject have a public wharf to which all persons must come who come to that port to unload their goods "in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, etc., but the duties must be reasonable and moderate, for now the wharf and crane and other con- veniences are affected with a public interest and they cease to be juris private only." No more significant phrases were ever penned. Topic B. Persistence of this Police Power 16. Continuance of State regulation. The irresistible advances of the modern competitive system gradually worked the destruction of the mediaeval organization of industry. Great, however, as was this change from the old economic theory to the new, it was gradual, and it was never complete. There was a swing of the pendulum. General but not absolute restriction of freedom of trade was the policy of the middle ages; general freedom of trade, with the restriction of certain exceptional occupations, has become the policy of mod- ern times. A state of free competition has been for sev- eral centuries now considered to be for the best interests of society; and, therefore, in modern times almost every business has been opened to almost every man. And yet at all times in economic history, both restriction and freedom are to be found in the law. The propor- tion, however, changes greatly. In one epoch there is much legal limitation, with little freedom left; in an- other age there is almost universal competition, with 1 Hargrave Law Tracts, 78. See 116, infra. [14] HISTORICAL INTRODUCTION [ 17, 18 some little franchise to be found. And the rule will gen- erally hold true that the more the natural laws of com- petition regulate service and price, the less the State need interfere in these respects; but conversely when competition ceases to act efficiently State control becomes necessary. 17. Parliamentary regulation of rates. During this transitional period when the mediaeval system of customary laws ceased to operate effectively Parliament itself frequently regulated the prices of nec- essaries of life by direct legislation. The great staples, like wool and food, were habitually regulated in this way, and the employment and the price of labor was a subject of statutory provision. Thus, in 1266, Henry III, after reciting former statutes to the same effect, regulated the price of bread and ale according to the price of wheat and barley, and forbade forestalling; that is, cornering the market. 1 In 1337 it was made felony to export wool, and the importation of cloth was forbidden. 2 In 1349 all laborers were obliged to serve for the customary wages, and " butchers, fishmongers, regrators, hostelers (i. e., innkeepers), brewers, bakers, poulterers, and all other sellers of all manner of victuals," were bound to sell for a reasonable price. 3 These statutes continued in force throughout the middle ages, and until after the settle- ment of America. 18. Restriction of prices in the colonies. This legislative power the colonists brought to America v/ith them. In a new colony life is a serious thing, the necessaries of life are scarce, and the needs of the public are pressing. The conditions are ideal for a distressing 1 51 Hen. 3 Stat. 1. 3 23 Ed. 3, cap. 1. 2 11 Ed. 3, cap. 1. [15] 19 ] PUBLIC SERVICE CORPORATIONS cornering of the market by merchants. Accordingly, though most of the statutory regulations of trades and prices had either been repealed or had become obsolete in the mother country, the colonies at an early time passed statutes regulating the prices of staple commod- ities. Thus in Massachusetts in 1635 shopkeepers and merchants were forbidden to charge excessive prices. 1 In Plymouth colony the price of boards was fixed in 1668. 2 Corn and tobacco, beer and bread, beef and boards, all that was most important for the colonists to have was regulated as a matter of course by the assemblies of the time. 19. Persistence of the legislative power. This extreme form of the police power over public employment remained in the legislative branch not- withstanding the general guaranties of individual liberty contained in the American constitutions. To compel the proprietors of those businesses which had been regarded as peculiarly affected with a public interest to serve all that applied at reasonable rates was immemorial practice and therefore was indisputably due process of law. This historical argument was given chief place by the Supreme Court of the United States in the leading case 3 on this branch of the police power. "Under these powers," said the court, "the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regu- late ferries, common carriers, hackmen, bakers, millers, 1 Mass. Colon. Laws, 1672, p. Munn v. Illinois, 94 U. S. 113, 120. 24 L. ed. 77 (1876). 1 Plymouth Colon. Laws, p. 46. [16] HISTORICAL INTRODUCTION [ 20 wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. 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." 20. Survival of the common law. From one point of view the constitutional validity of legislative control is conclusive evidence of the persist- ence of the common-law principles regulating public em- ployments. The common law persists from age to age, and though the instance of its rules may be seen to change as old conditions pass away and new conditions arise, its fundamental principles remain. The early cases which were just under discussion are illustrations of this course of events. Barber, surgeon, smith and tailor are no longer in common calling because the situation in the modern times does not require it; but innkeeper, carrier, ferryman and wharfinger are still in that classification, since even in modern business the conditions require them to be so treated. With changed economic condi- tions in modern times new callings have come into being with such potentialities that this special law has been utilized as never before in regulating them. Indeed, from the point of view of one who believes in our common law the class of public callings is capable of indefinite exten- sion whenever new conditions bring new employments within its scope. 1 And in all times our law has held to the principle that this peculiar regulation was necessary 1 The historical argument is ef- than in People v. Budd, 117 N. Y. fectively used in many cases, but in 1, 22 N. E. 670, 5 L. R. A. 549, 15 no one is it more elaborately put Am. St. Rep. 460 (1889). 2 [17] 21 ] PUBLIC SERVICE CORPORATIONS in certain kinds of business. It depends largely upon the opinion current at the time how far this law shall be extended. But however much public opinion may change this possibility of the enforcement of the obligation to the public owed by those who conduct a business public in character remains. 21. Callings connected with transportation. Certainly as to those callings intimately connected with common carriage this regulation by the common law has always been felt necessary. The traveler who is far from home must depend upon strangers; and the shipper who must send his goods through strange lands takes unknown risks. As has been seen the situation is such that the carrier of passengers or goods by land or sea has always been obliged by law to serve all, and is by the common law under extraordinary liabilities. And also the situation continuing the same as before, the innkeeper remained under obligation to serve all and un- der other extraordinary liabilities. The ferryman too remained hi public employment as a sort of carrier. And the wharfinger receiving goods in transit was held to be not unlike the innkeeper receiving travelers. All the other mediaeval public employments had disappeared and these alone survived. In the first part of the nine- teenth century, therefore, the generalization was being made (and not without a certain justification from the facts) that all of the public employments were connected in one way or another with transportation. Indeed this generalization became so accepted that when later in the century new conditions pressed for further application of the law requiring the service to the public, the attempt was made in the first common-law decisions dealing with these businesses to include other services quite different in character within this generalization. Thus telegraph [18] HISTORICAL INTRODUCTION [ 22 companies l and even telephone companies 2 were said to be common carriers, and sleeping cars 3 and steam- boats 4 were by some thought to be inns. But those judges who looked at these new callings in this light saw through a glass darkly. It was given to others to see the vision of a great class of public callings of which those connected with transportation constituted but one branch, although the principal one. 22. Introduction of improved highways. What was destined to give the greatest scope to the public service law was the improved facilities for trans- portation. It was late in the eighteenth century that the need for transportation of persons and goods more quickly and more cheaply between distant communi- ties began to outgrow the facilities for commerce then at the disposal of the public. The solution of this question thenceforth became one of the most pressing economic problems of the time, engaging the attention of states- men, as every great commercial problem must. The scheme gradually worked out was a system of improved turnpikes all over the country supplemented by toll bridges, and between the most important markets the construction of canals and the development of existing water ways. The theory of the statesmen of the early nineteenth century who dealt with the conditions un- der which these works of internal improvement should be constructed was that private enterprises were better than State ownership. However, they were willing to meet the need of the time for immediate construction 1 See this phrase in Western 3 See especially Pullman P. C. Co. Union Telegraph Co. v. Hamilton, v. Lowe, 28 Neb. 239, 44 N. W. 36 Tex. Civ. App. 300 (1904). 226, 6 L. R. A. 809 (1889). 2 See for one example McDaniel 4 See, however, Clark v. Burns, v. Faubush Telephone Co., 32 Ky. 118 Mass. 275 (1875), 19 Am. Rep. L. Rep. 572, 106 S. W. 825 (1908). 456. [19] 23, 24 ] PUBLIC SERVICE CORPORATIONS of these expensive works by grants from the State treasury or by guaranty of the bonds of the private companies. These improved highways were considered like other high- ways, public in character and open to all, though main- tained by private companies which were given the franchise to charge tolls without which none could be demanded. 23. Toll bridges. On important lines of travel even over considerable spans, bridges began to replace the ferries. As the fer- ries had been maintained by private parties with an ex- clusive franchise, charging ferriage, the bridges were built by private companies with an exclusive franchise l such as the ferryman had, charging tolls as the ferryman did. For the charging of tolls it is to be remarked a rough classification was made, and on that point there is some public service law from this period. One interest- ing scheme was the chartering of bridge companies with the provision that when the cost of the bridge, together with a certain per cent of profit should have been repaid to the proprietors, the bridge should become free. 2 24. Turnpikes. Throughout the country, turnpikes were constructed of various kinds, gravel roads and plank roads, for ex- ample. These were built by private companies with a protecting franchise, charging tolls roughly classified. Some little public service law dates from this period; for such improved highways were regarded as public in character by whomsoever owned. 3 As one court 4 put this 'See the Binghamton Bridge, 3 Turnpike Road v. Sandford, 164 Wall. 51, 18 L. ed. 137 (1865). U. S. 578, 41 L. ed. 560, 17 Sup. a. And see generally 53, infra. 198 (1896). And see generally 84, 1 See Commonwealth v. Hancock infra. Free Bridge Corporation, 2 Gray, The quotation is from Olcott 58 (1854). v. Supervisors, 16 Wall. 678, 21 L. J See citations in Covington & L. ed. 382 (1872) [20] HISTORICAL INTRODUCTION [ 25, 26 principle in those earlier days: " Though the ownership is private, the use is public. So turnpikes, bridges, ferries and canals, although made by individuals under public grants, or by companies, are regarded as publici juris." 25. Canals. In England the canal period was of considerable dura- tion. Construction was begun soon after the middle of the eighteenth century and did not noticeably cease until about the middle of the nineteenth century. From the first the canals carried a very large traffic upon which they imposed regular tolls upon a classified basis. In the United States also many canals were constructed, largely aided by the State governments. At one time it seemed to the most enthusiastic believers in the canal system that it was the ultimate solution of the transpor- tation problem. It was recognized in all cases that all boatmen had the right to pass through these canals upon paying to their proprietors the established tolls. 1 Much public service law dates from this time. The cases upon the proper priorities to be observed in the management of a public business are particularly interesting. 2 26. Railways. The early railways as is generally known were first in- troduced as improved turnpikes, draft animals being used to haul the wagons upon the rails. The invention of the steam locomotive with its great cost and high speed soon put an end to that system. 3 But for a short period it was still supposed that both animals and loco- motives might be used upon the same rails; the railroad might both carry goods and maintain a tramway for its patrons. However, it was soon seen that the whole 1 See 142, infra. 3 See Raleigh & Gaston R. R. v. 2 See, for example, Farnsworth v. Davis, 2 D. & B. 451 (1837). Groot, 6 Cow. (N. Y.) 698 (1827). [21] fc$ 27, 28 ] PUBLIC SERVICE CORPORATIONS operation must be by the railway company; and the railroad entirely ceased to be a turnpike and became a carrier altogether. 1 Topic C. The Period of Laissez Faire 27. Alteration in economic conditions. In the early part of the nineteenth century a combina- tion of economic factors brought about in the business world as near an approach to a condition of freedom in competition as can ever happen in a world limited by time and space. Naturally enough with such individual freedom of action laissez faire became the accepted pol- icy for dealing with the business world as the occasions for the application of the principles of law regulating public callings become fewer. This condition of affairs prevailed to a remarkable extent in the United States during the first half of the nineteenth century. The English system of excessive legislative regulation by Par- liament having become distasteful, the constitutions of the original States and of the United States carefully limited the power of legislatures to interfere with the ordinary affairs of business. Regulation of private af- fairs by the law may be said to have been at a minimum in the first half of the nineteenth century. And in this tune of small enterprises it was safe to leave the individual proprietor free to deal with his customers as he pleased. 28. Development in the common law. It is almost a truism that the spirit of the age molds its law. Those who frame the laws are members of the community and share its spirit. The age's ideal of right is their ideal, the method of thought about justice which is prevalent at the time is then* method of thought, too; and it therefore follows that in working out legal prob- 1 See 144, infra. [22] HISTORICAL INTRODUCTION [ 29 lems, both bench and bar work along the lines prescribed by the spirit of the age in which they live. Nowhere is the influence of the spirit of the time on the common law more evident and more potent than in this question of the regulation of common callings. Following the change in economic thought which has been described, the judges of the last century began to say as to his business activities that it lay with the tradesman to conduct his business as he pleased, at his own prices. This was a period when all men were much attracted by the theory of laissez faire that the most desirable thing was the least possible interference with business relations by the State. That the coercive law of public calling survived this period is proof positive of its absolute necessity to a greater or lesser extent in every society. 29. Freedom of business from state control. It will have been noticed, therefore, that the principle of law which permits the regulation of these callings has never been abandoned, though the conditions calling for its application at various times have greatly changed. Whenever the public is subjected to a monopoly the power of oppression inherent in a monopoly is restricted by law. Whenever, on the other hand, competition becomes free, both in law and in fact, the need of governmental regu- lation ceases ; public opinion ceases to demand such regu- lation, and the law withdraws it. At the beginning of the nineteenth century was the extreme swing of the pendu- lum. In earlier times, when most trades were privileged, it was felt that there was a correspondingly great need of regulation. In this fortunate time when in most businesses the field seemed free to all, the belief was that the ordinary processes of competition would produce with sufficient certainty adequate service at fair prices. But an absolutely free competition is practically an im- [231 30 ] PUBLIC SERVICE CORPORATIONS possible economic condition; and to this men later awoke when with the growth in the power of the proprietors of the industries the people still demanded protection from the State in many ways. 30. Special restrictions in early charters. One method of regulation of enterprises public in char- acter during this period has not been mentioned as yet. These were great undertakings which were projected bridges and turnpikes, canals and railways. To carry them out required aggregated capital; to maintain them required permanent organization. There was a form of organization as yet confined to purposes in some degree governmental, which was best designed to bring together the necessary capital and give the necessary permanence the corporation. And although it was not as yet con- sidered proper to give this franchise of being a corpora- tion to men engaged in purely private business, it was thought most appropriate for the State to create a cor- poration for such purposes. Moreover in granting the franchises the State could impose upon the grantee such terms as it might think necessary for the protection of the public in its dealings with the corporation. And so the charters of this period are often elaborate in their provisions, imposing upon the corporation the duty to serve all that apply properly and without exceeding a certain fixed profit. Later in the century, however, in- corporation under general law for the conduct of private business became possible; and in the case of such corpora- tions there were no provisions for public service. There followed a short period about the middle of the century when it was felt by some that unless in the incorporation of an enterprise its public character was sufficiently de- clared by express clauses in its charter, the proprietors were free to carry on their own business in their own way. [24] HISTORICAL INTRODUCTION [ 31 31. Gas supply. When, therefore, the first gas works were constructed under general charters of incorporation imposing no specific duties upon them, the courts declined to interfere with them in their dealings with their public, although the continuous complaints of the consumers should have made obvious the necessity for relief from the oppression of the established monopoly. Thus in Paterson Gas Light Company v. Brady, l where the plaintiff complained that although his buildings were located upon the lines of the main pipes of the defendant company, it refused to furnish him with gas, although he was willing to pay the fixed price, the upper court held that the action should have been dismissed, Mr. Justice Elmer saying: "The language of the charter is throughout permissive, and not compulsory. The company may organize, may make and sell gas, or not, at their pleasure; and I see no more reason to hold that the duty of doing so is meant to be imperative, than to hold that other companies in- corporated to carry on manufactures, or to do any other business, are bound to serve the public any further than they find it to be their interest to do so. It was earnestly insisted, on the argument, that the community have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like innkeepers and common carriers, and that, if no precedent can be found for such a decision, this court ought to make one. But that there is no authority for so holding in England or America, where companies have been so long incorpo- rated for supplying water and gas to the inhabitants of numerous towns and cities, affords a strong presumption that there is no principle of law upon which it can be supported." 2 1 3 Dutch. (N. J.) 245, 72 Am. z Other early cases to the same Dec. 360 (185^;. effect, were: [25] 32 ] PUBLIC SERVICE CORPORATIONS 32. Water supply. The difficulty was, as the reader will recognize, that these questions arose just at a time when the doctrines of laissez faire had almost destroyed the class of public employments, and almost obliterated the general prin- ciples of the common law relative to public service. But the new situation called forth the old law and eventually restored it. In a case l regarding the constitutionality of the grant of eminent domain to a waterworks com- pany, decided about the middle of the nineteenth cen- tury by Chief Justice Shaw, he worked out a duty to supply the public . by reason of the enabling clauses in the charter of the company in a way which would be plainly unjustifiable unless there were an underlying public duty. "The supply of a large number of inhabit- ants with pure water is a public purpose," he said: " But it is urged, as an objection to the constitutionality of the act, that there is no express provision therein requiring the corporation to supply all families and persons who should apply for water on reasonable terms; that they may act capriciously and oppressively; and that by fur- nishing some houses and lots and refusing supply to Connecticut. McCune v. Nor- The honor of being the first to wich Gas Co., 30 Conn. 521, 79 Am. appreciate that the gas business was Dec. 278 (1862). public in character belongs to the Massachusetts. Com. v. Lowell court which decided Shepard v. Gas Light Co., 12 Allen, 75 (1866). Milwaukee Gas Light Co., 15 New ForA:. New York Central Wis. 318, 82 Am. Dec. 679 (1862). & H. R. R. Co. v. Metropolitan The modern decisions establishing Gas Light Co., 63 N, Y. 326 (1875). that the gas companies are in pub- Ohio. See Zanesville v. Gas lie calling are discussed in 131, Light Co., 47 Oh. St. 1, 23 N. E. 55 infra. (1889). i Lumbard v. Stearns, 4 Gush. 60 Pennsylvania. Com. v. Wilkes- (1849). The modern cases estab- Barre Gas Co., 2 Kulp, 499 (1883). lishing that the water companies England. Hoddesdon Gas & are in public calling are discussed Coke Co. v. Haselwood, 6 Com. B. in 102, infra. (N. S.) 239 (1859). [261 HISTORICAL INTRODUCTION [ 33 others, they may thus give a value to some lots, and deny it to others. This would be a plain abuse of their franchise. By accepting the act of incorporation, they undertake to do all the public duties required by it. When an individual or a corporation is guilty of a breach of public duty by misfeasance or non-feasance, and the law has provided no other specific punishment for its breach, an indictment will lie. Perhaps, also, in a suitable case, a process to revoke and annul the franchise might be maintained." l 33. The struggle against encroaching monopoly. As the prevalence of competitive conditions in busi- ness limits the application of the principles of public service law, so the prevalence of monopolistic conditions extends their application. Such a change came about in the latter part of the nineteenth century. About a gen- eration ago a change in commercial practice showed with remarkable distinctness the advantage of combination. Great enterprises took the place of small ones, and great enterprises required co-operation and combination. As the people became accustomed to look upon combination as the price of success, they came more and more to re- gard it as a blessing rather than an evil; and public opin- ion has gradually turned away from the individualistic ideal until to-day it has been fairly discarded by the cur- rent philosophy. With the principle of combination as the spring of action has come a corresponding need of controlling the action of such combinations for the good of the whole public. As the rights of the individual trader yield to the rights of the great corporation, so in the view of the man of the present day, the rights of the corporation, should in their turn yield to the rights of the whole people. The same spirit which fosters combi- 1 See Olmsted v. Morris Aqueduct Co., 47 N. J. L. 311 (1885). [27] 34 ] PUBLIC SERVICE CORPORATIONS nation, fosters also control of the combination for the public benefit. The spirit of the present age, therefore, has come to be a spirit which demands that great busi- ness enterprises should be conducted in accordance with the requirements of society. The programme of organ- ized society is practically to see to it that those who have gained a substantial control of their market shall not be left free to exploit those who look to them to supply their needs. Men now see clearly that freedom of action in the industrial world may work injuriously for the pub- lic, and it must then be restrained in the public interest. Having seen the results of unrestrained power we no longer wish those who have control of our destinies to be left free to do with us as they please. Such liberty for them would mean enslavement for us. 34. Conservative and radical views of regulation. While it is generally agreed that a change has come over the spirit of our time, that State regulation is the prevail- ing philosophy of the people at the beginning of the twentieth century; it must be borne in mind that this has been the result of a gradual progress of thought, and that this progress has not affected all men or all lawyers equally. Now, as at all times, there are conservative lawyers and radical lawyers, the former as far behind the prevailing spirit of the time as the latter go beyond it. In every change of popular thought there have been laggards, and in every such change there have been those who are unable justly to estimate the true meaning of the change, and work beyond it into eccentricities in which the people will never follow them. We have, therefore, three general types of thought at every time: the con- servatives, the moderates and the radicals. And this is as true of legal as of economic thought. Many lawyers still hold conservative views as to the application of the [28] HISTORICAL INTRODUCTION [ 35 law of public callings to modern conditions. They be- lieve that the conductors of every business, however necessary to public welfare, should do whatever seems good in then- own eyes. And some economists still tell us that the only way to get efficient service for the public is to allow the public service companies the right of ex- acting such rewards as they are able to get. But in spite of these now obsolescent views there can be no question that the tendency to-day is to restrain in the interests of society all business which has obtained undue power. Individual freedom is limited by the modern notion of social justice. Topic D. Present Control of Public Employment 35. Economic conditions at the present time. As a result of these changed business ideas, and of the great inventions which have constantly tended to increase the magnitude of business enterprises there has been as has been seen in the last fifty years a great growth of em- ployments which have gained virtual monopoly in mat- ters of public necessity. The positive law of the pub- lic calling is the only protection that the public have in a situation such as this, where there is no competi- tion among the sellers to operate in its favor. So much has our law been permeated with the theory of laissez faire, which was but lately so prominent in the policy of our State, that the admission has been made with much hesitation that State control is ever necessary. But the modern conclusion, after some bitter experience, is that freedom can be allowed only where conditions of virtual competition prevail; for in conditions of virtual mo- nopoly, without stern restrictions, there is always great mischief. There is now fortunately almost general assent to State control of the public service companies, since it is recognized that the special situation requires a special law. [29] 36, 37 ] PUBLIC SERVICE CORPORATIONS 36. Control of the public services necessary. The hypothesis here put forward is that whether a business is public or not depends upon the situation of the public with respect to it. Are there enough of such pur- veyors to serve the public? or are there, for permanent reasons, never enough? If so, there will be virtual com- petition; if not, there will be virtual monopoly. In all of the businesses to be discussed in these chapters, competi- tion, although from a legal point of view possible, is from the economic point of view improbable. So far as one can see, virtual competition is at an end in these industries, and virtual monopoly will henceforth prevail. Therefore it must be said that the public has now an interest in the conduct of these businesses by their owners. They are affected with a public interest, since these agencies are car- ried on in a manner to make them of public consequence. Therefore, having devoted their property to a use in which the public has an interest, they in effect have granted to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest they have created. Plainly we have in the accepted use of these phrases the manifestation of a deep-seated change in habits of thought. Only twenty- five years ago the general feeling as to every sort of industrial relation was that it was better to leave all alone, that it was better to leave people to work out their own salvation. But of late years we have been calling upon the State to save us from monopoly in all its forms; and we are impatient if it delays. 37. Variety of the public services. The present situation is plain enough to all of us. What- ever way we turn we depend upon a service that is public hi character. Not only in long travels but in short jour- neys we employ common carriers railroads and steam- [30] HISTORICAL INTRODUCTION [ 38 ships, coaches and cabs, street cars and omnibuses, the subway car and the elevated train. If we ship goods there are various transportation services at our disposal beside railroads and ships, such as express companies and dispatch lines, refrigerator lines and tank lines. If we are journeying ourselves we eat at hotel restaurants, and put up at public inns, or travel in palace cars and lodge our- selves in sleeping cars. Our freight in its transit has its needs attended to for our goods, warehouses, for our grain, elevators, for our cattle, stockyards, and for our exports, docks. In almost every community, even rela- tively small, we have for our household needs gas, elec- tricity, water supply and sewerage service provided for us, usually, except the last two, by private companies in public service, but even where the service is provided by the municipality it is subject to the same law governing public service. For speedy communication in our business and pleasure, we have the telephone and telegraph in common use, and ticker service and messenger call for special needs. One may judge by this incomplete list how common to every part of our modern life are the various public services, and how necessary it is that they should be required by law to serve us all with adequate facili- ties for reasonable compensation and without discrimina- tion. 38. Differentiation of the public service law. It is unnecessary at this day to point out the plain distinction of the law governing public services from that governing private employment. All businesses both pub- lic and private are subject, to be sure, to that general police power of the State whereby in any civilized society the effort is made to so order things that one may not use his own so as to injure another. But any comparison of the large amount of regulation which it is considered [31] 39 ] PUBLIC SERVICE CORPORATIONS proper for the State to enact in regard to public services with the small amount of regulation which it is considered proper for the State to enact in regard to private business is in itself significant enough. The difference thus shown is more than one of degree; it is one of kind. For it will be noted that it is in public business that the law imposes affirmative duties; while generally speaking the duties imposed upon those in private business are negative. The law says to those in public business you must do this for this applicant, and you must do it thus and so. To those in private business it says you must not do this, or if you do this you must do it thus and so. As has been pointed out before, this is the chief distinction between public calling and private calling; in one there is a coer- cive law intimate in its details, in the other there is a restraining law general in its rules. 39. Unity of the public service law. Not only has it been realized at last that we have relating to the public services a distinct department of the law, but also it is becoming recognized that within this department there is a consistent body of law in process of unification. Not merely does the law governing the supply of gas differ from the law as to the sale of candles, but the law governing the supply of gas is the same in all essentials as the law as to the supply of elec- tricity. It is in the firm belief that the law governing the public services will prove upon analysis to be a really unified body that the author has been working for many years. General principles will be developed throughout this book and corollaries to them established by the use and with the co-ordination of cases from a variety of public employments. Certainly the general propositions hold true as to all public employments that all must be served, adequate facilities must be provided, reason- [32] HISTORICAL INTRODUCTION [ 40 able rates must be charged, and no discriminations must be made. Moreover in dealing with the minor details of these principles, cases from one service will be found in point in another what conditions there are precedent to service, what will excuse failure in provision of facilities, what is a proper basis for calculating rates and what differences constitute discrimination. 40. Present state of the public service law. In the belief of the writer the public service law has at lengtl^ reached a stage of development in which it may be possible to state its principles with some degree of con- fidence. It is only within the last few years that it would have been within the range of possibility to do this. Twenty-five years ago the public services which were rec- ognized were still few and the law as to them imperfectly realized. It was known from olden times that those who professed a public employment must serve all at a reason- able rate. As to the duty to serve it was thought that there were exceptions. As to the restriction of rates there' was no standard. The important duty to provide adequate facilities had hardly advanced beyond the gen- eral law as to negligence. And the duty not to discrimi- nate was denied altogether. Even ten years ago when these four obligations had become generally recognized, the details as to them in regard to any particular employ- ment had been worked out only in very fragmentary manner. But at the present day it is just being appre- ciated that rapid progress may be made by the general recognition of the unity of the public service law, whereby cases as to one calling may be used to show the law in all. In this treatise this method is adopted for the first time. Indeed, it is only in our present day that the attempt to treat the public service law as a consistent body of law could be made with any hope of success. 3 [33] 41 ] PUBLIC SERVICE CORPORATIONS 41. Imperative need of effective regulation. It has been remarked many times that the common law may be relied upon to meet, by the continual develop- ment of its fundamental principles, the complex condi- tions created by the constant evolution in the industrial organization. One of the most striking of modern in- stances of this capacity of growth in the common law is the astonishing progress in the working out of the detail of the exceptional law governing the conduct of public callings. As the public service law grows it is becoming both more intensive and more extensive. In recent tunes there undoubtedly is an increasing need of this stricter regulation of all employments which appear to be affected with a public interest. While it is true that there are many men who still avow the principle of laissez faire, who say that it is the better policy to leave all business with as little interference from the law as possible; the most of men at least appreciate that the law has already taken control of the situation for all time. It is hardly too much to say that the efficient regulation of the public employments by sufficient law is the most pressing prob- lem confronting this nation; and it must be met without further hesitation. As these great combinations of capital have grown up under the law, so their legal rights must be subject to the rights of the whole people. Great power brings as its consequence the need of control of that power for the good of the whole people. Two ways only can be found to exercise such control. One way, that advocated by the radical persons, is government owner- ship and operation of the public utilities. The other way, which is in fact the conservative method of dealing with the problem, is the control of the rates and practices of the public service corporations for the public good. One or the other of these methods must be finally adopted. The conservative method is now on trial. It behooves [34] HISTORICAL INTRODUCTION [ 42 the lawyers to see to it that it be so intelligently tried, and that the law applicable to the case be so accurately enforced, that we may not be driven perforce to the radical alternative of public ownership. 42. Ultimate limitations upon public employment. In this crisis of affairs the people must be assured that the law is indeed adequate to deal with the situation, that it has not only elaborated detail to meet obvious wrongs seldom defended, but also enlightened compre- hension to deal with the large policies openly justified which are truly inconsistent with public duty. That those who profess a public employment owe the utmost public service, should be generally accepted as the funda- mental principle upon which the law governing public employment is to be based. It is not agreed, however, how far this principle should be pressed; there is a clash of interests here, and there is an inclination on the part of those who conduct the public services to contest every issue. This is hardly an enlightened selfishness; for it seems to many who appreciate the temper of the public, that the time has come when extension of the law and enforcement of it should be the avowed attitude of all conservative persons who wish the perpetuation of the present condition of individual enterprise. It would be well, therefore, if the restless and the doubting who see many abuses and many wrongs in the conduct of our public services without prompt remedy or adequate redress, might be relieved and heartened by being shown that the common law is adequate to deal with all real industrial wrongs, and that with the aid of remedial statutes the administration of the law can be relied upon. And it should be sufficiently emphasized at all times in all situations that public servants may not adopt to the prejudice of their public various profitable policies, and [35] 42 ] PUBLIC SERVICE CORPORATIONS then justify them as inherent rights which other men in ordinary business may use in the advancement of their interests. [36] BOOK I. ESTABLISHMENT OF PUBLIC CALLING [37] 153828 PART I. PUBLIC EMPLOYMENT CHAPTER II MONOPOLY DUE TO LEGAL PRIVILEGE : 50. Legal privileges accompanying public employment. Topic A. Exclusive Franchise i 51. Exclusive franchise for public purposes. 52. Ferries. 53. Bridges. 54. Bonded warehouses. 55. Log driving. Topic B. Eminent Domain \ 56. Eminent domain for public purposes. / 57. Tramways. 58. Railways. 59. Pipe lines. 60. Transmission lines. 61. Elevated conveyors. 62. Lumber flumes. 63. Mining tunnels. Topic C. Aid from Taxation 5 64. Public purposes of taxation. 65. Gristmills. 66. Sawmills. 67. Drainage. 68. Sewerage. 69. Cemeteries. 70. Hospitals. Topic D. Use of Public Highways I 71. Public purposes in highway use. 72. River improvements. 73. Booms. 74. Sluices. [39] 50 ] PUBLIC SERVICE CORPORATIONS 75. Turnpikes. 76. Street railways. 77. Subways. 78. Wire conduits. 79. Pole lines. 80. Constitutional situation as to special privileges. 50. Legal privileges accompanying public employment. That legal privileges frequently accompany public em- ployment is the first thing that has struck many observers as characteristic of the class. It is indeed common to find in the case of certain public employments an exclusive franchise; and such legal monopoly has been said to carry with it the consequent obligation of public service. To aid in the construction of its works, it will frequently be found that eminent domain has been given to the public service companies conducting the business; and here again it is often said that the acceptance of such a special privi- lege creates obligation to serve the public. From time to time, the statement is made that when aid is granted from the public treasury whether in the form of outright gift or by guaranty of the securities of the corporation conduct- ing the services, the result is that the services of these com- panies are at the disposal of the public. Finally, many public service corporations are given in one way or an- other special privileges in the public highways; if these companies accept these favors from the public, it is said, they must serve the public. It is, of course, true, that in the case of the most of the public services some one of these privileges will ordinarily be found in any particular case. In many instances several of these different kinds of aid from the State will be found to have been given to a single company. That under such conditions if the grant is valid those who are enjoying such special privi- leges must be at the disposal of the public is plain; but it cannot be said that such a coincidence establishes a con- [401 MONOPOLY DUE TO LEGAL PRIVILEGE [ 50 sequence. One insuperable difficulty with this common explanation that public employment owes fts origin to the grant of public privileges, is that there are a con- ;,iderable number of public employments always recog- nized as such, which have no such public privileges what- soever. 1 What is perhaps of even greater significance is that there are very many cases in which the grant of special rights, such as exclusive franchises, eminent do- main, State aid, or highway franchise to a business con- cern of private character is held to be wholly void upon the ground that such special rights may only be given to such enterprises as are public in character. 2 It would seem, therefore, that the effect has sometimes been mis- taken for cause here; that although many of these spe- cial privileges often accompany public employment, the truth is that these very privileges could not have been validly granted unless these businesses were public in character. It is submitted therefore, without going into more detail about the matter, that under our constitu- tional system no special privileges can be granted except for a public purpose. Unless there is public interest apparent the grant is void. The question thus arises whether the conditions of virtual monopoly, however caused, may not give rise to public calling if the State has had no hand in the establishment of the situation. These considerations are most suggestive; indeed, one is led by them to an entire inversion of the common statement of the relation between the existence of public privileges and the establishment of public employment. It is common to argue that because a certain business has had a certain privilege granted to it, the consequence of that limitation is that the business is put by the courts in the class of 1 See People v. Budd, 117 N. Y. 2 See Brown v. Gerald, 100 Me. 1, 22 N. E. 670, 5 L. R. A. 559, 15 351, 61 Atl. 785, 70 L. R. A. 472 Am. St. Rep. 460 (1889). (1905). [41] 51 ] PUBLIC SERVICE CORPORATIONS public callings. But the real truth of the matter seems to be in the opposite statement, that no business can be granted a privilege under our constitutional system unless it is public in character. Topic A. Exclusive Franchise 51. Exclusive franchise for public purposes. Modern ideas as to exclusive franchises first appeared in the opposition to the patents of monopoly which were disposed of all too freely by the Tudors and the Stuarts. Originally instituted as a method for the encouragement of new industries and large enterprises, as glass and steel, it was naturally felt to have become an abuse when patents of monopoly were granted for ordinary trades and commodities, as oil and leather. These private monopolies were decried in the great Case of Monopolies * in language as extreme as any which has ever been used since; "for the end of all of these monopolies is for the private gain of the patentees and although provisions and cautions are added to moderate them, yet res profecto stulta est nequitice modus, it is mere folly to think that there is any measure in mis- chief or wickedness." According to present ideas, there- fore, exclusive franchises can only be granted for public purposes. "Generalized and divested of the special form which it assumes under a monarchial government based on feudal traditions, a franchise is a right, privilege, or power of public concern which ought not to be exercised by private individuals at their mere will and pleasure, but should be reserved for public control and administration either by the government directly, or by public agents, acting under such conditions and regulations as the gov- ernment may impose in the public interest and for the public security." In this light our problem is made at 1 11 Coke, 84b. Ry., 127 U. S. 1, 32 L. ed. 150 'California v. Central Pacific (1887). [42] MONOPOLY DUE TO LEGAL PRIVILEGE [ 51 once clearer and more difficult. When the validity of the grant of an exclusive franchise to a business enterprise is in question, the rule is that such franchises can be granted only to such businesses as are public in character. It is well established that exclusive franchises may be given for gas supply l and electric lighting, 2 to give two modern instances. On the other hand, when an exclusive right is claimed by virtue of some incautious grant for such private businesses as baiting animals 3 or selling mer- chandise 4 the grant is disposed of simply enough as invalid under our constitutional law. No one would think of saying that these businesses were made public by the grant of the franchise and therefore the legislation was made constitutional; such a course of reasoning would be too patently circular. To this general theory there are ap- parently two important exceptions at the present time the patent and the copyright which are still freely granted for any purpose without any corresponding legal obliga- tion. The policy still seems to be that new inventions and novel ideas should be fostered and protected at all costs. But, as will be seen later, in the case of the telephone it is already law that a patent so devoted to a public use is subject to the full regulation of the public service law notwithstanding that it is generally said that the owner 1 Illinois. People v. People's Gas Gas Light Co., 29 Wis. 454, 9 Am. Light Co., 205 111. 482, 68 N. E. Rep. 598 (1872). 950, 98 Am. St. Rep. 244 (1903). 2 Iowa Davenport Gas & Elec- Louisiana. Davenport Gas &c. trie Co. v. Davenport, 124 Iowa, 22, Co. v. Davenport, 124 la. 22, 98 98 N. W. 892 (1904). N. W. 892 (1904); Crescent City Oklahoma. Territory v. De- Gas Light Co. v. New Orleans Wolfe, 13 Okla. 454, 74 Pac. 98 Gas Light Co., 27 La. Ann. 138 (1903). (1875). 3 Com. v. Bacon, 13 Bush, 210, Missouri. Vanderberg v. Kan- 26 Am. Rep. 189 (1877). sas City &c. Gas Co., 126 Mo. App. 4 Thousand Island Park Assn. v. 600 (1907). Tucker, 173 N. Y. 203, 65 N. E. Wisconsin. State v. Milwaukee 975 (1903). [431 52 ] PUBLIC SERVICE CORPORATIONS of a patent can deal with it as he pleases. So although the owner of a copyright is said to be free to get such returns from it as he pleases this statement cannot now be made with entire confidence. The publishers of market quota- tions for example cannot deal with the public at their caprice. 52. Ferries. The practice of granting exclusive franchises for the operation of ferries is found in our earliest reports, the cases being frequent where the franchise is recognized and protected from invasion. 1 The propriety of such grants has never been denied even in those times when there has been the most outcry against monopolies. For the ne- cessity of, such protection to those engaged in the service is recognized; and the evil of monopoly is curbed by the requirement of public service. As a result the exclusion of other ferrymen by an exclusive franchise has been always held under American constitutions to be due proc- ess of law. 2 In the North Dakota case the propriety of 1 Georgia. Hudspeth v. Hall, 111 2 Exclusive franchises for ferries Ga. 510, 36 S. E. 770 (1900). are also justified under our Ameri- Massachusetls. Fay, Petitioner, can constitutional law in the follow- 15 Pick. 243 (1834). ing cases, among others: North Carolina. Long v. Beard, California. Fortainv. Smith, 114 3 Murphy, 57 (1819). Cal. 494, 46 Pac. 381 (1896). South Dakota. Evans v. Hughes Iowa. Burlington County Ferry County, 3 So. Dak. 580 (1893). Co. v. Davis, 48 la. 133, 30 Am. England Blissett v. Hart, Willes, Rep. 390 (1878). 508 (1744); Huzzey v. Field, 2 C. M. Maryland. Broadway, etc., Fer- & R. 432 (1835). See, however, ry Co. v. Hankey, 31 Md. 346 Churchman v. Tunstall, Hardres, (1869). 162 (1659), where a Commonwealth North Dakota. Patterson v. court felt that an exclusive ferry Wollmann, 5 N. D. 608, 67 N. W. was in restraint of trade. In an- 1040, 33 L. R. A. 539 (1896). other bill between the same parties South Dakota. Nixon v. Reid, 8 after the Restoration, Lord Hale S. D. 507, 67 N. W. 57, 32 L. R. A. is said to have decided in favor of 315 (1896). the same plaintiff. Huzzey v. Field, 2 C. M. & R. 432 (1835). [44] MONOPOLY DUE TO LEGAL PRIVILEGE [ 53 such franchises from the modern point of view was stated thus: " For centuries such police power has embraced this element of the right to grant an exclusive franchise; and it has been found that, as a general rule, the best results are obtained by granting an exclusive right. Indeed it often is the case that on no other terms will the citizen assume the burdens incident to the operation of a ferry. There is nothing in the history of the English nation or of the American people which warrants the conclusion that this practice has resulted in imposing intolerable burdens upon the public, or has led to other than beneficial re- sults." 53. Bridges. A similar policy has been employed by the State from early times in making provision for long bridges on im- portant lines of through travel. Toll bridges built and maintained under charters giving exclusive rights against competing bridges were once much more common than they are now; and the policy of such arrangements in furtherance of the public service * has been vigorously de- 1 Toll bridges are of such public E. Pass. Ry. v. Point Bridge Co., character that all persons have a 165 Pa. St. 37, 30 Atl. 511 (1894). right of passage over them upon But as the owners of the bridge payment of the established rates. do not assume the control or pos- United Stales. See Evansville session of goods and passengers Traction Co. v. Henderson Bridge conveyed, or passing across the Co., 134 Fed. 973 (1904). bridge, they do not come under the California. Norris v. Farmers' extraordinary liabilities of common & Teamsters' Co., 6 Cal. 590, 65 carriers. Am. Dec. 535 (1856). United States. Kentucky & L. Kentucky. Covington &c. Bridge Bridge Co. v. Louisville & N. R. R. Co. v. Covington &c. St. Ry. Co., Co., 37 Fed. 567 (1889). 93 Ky. 136, 19 S. W. 403, 15 L. R. A. South Carolina. Grigsby v. 828 (1892). Chappell, 5 Rich. L. (S. C.) 443 New York. Thompson v. Mat- (1852). See 146, infra, as to rail- thews, 2 Edw. Ch. 212 (1834). way bridges. Pennsylvania. Pittsburg & W. [45] 54 ] PUBLIC SERVICE CORPORATIONS fended. In the leading case of the Binghamton Bridge 1 the United States Supreme Court said: "They are deemed beneficial to the country, and this benefit constitutes the consideration and in most cases the sole consideration for the grant. The purposes to be attained are generally be- yond the ability of individual enterprise and can only bo accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in the act of incorporation. The wants of the public are often so imperative that a duty is imposed on government to provide for them; and as experience has proved that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake." 64. Bonded warehouses. That an exclusive franchise constituting a legal monop- oly puts the person who possesses it in the position of public servant should be clear. The leading case upon legal monopoly is Allnutt v. Inglis. 2 The question raised was whether the London Dock Company had a right to insist upon an arbitrary hire for receiving wines into its warehouses, or whether they were bound to receive them there for a reasonable reward only. It appeared that by virtue of the Warehousing Act that company alone had 1 The Binghamton Bridge, 3 Kentucky. Arnold v. Covington Wall. 51, 18 L. ed. 137 (1865). To &c. Bridge Co., 1 Duv. 372 the same effect as to the propriety (1864). of the grant of special legal privi- Massachusetts. Central Bridge leges in aid of the construction of Corp. v. Lowell, 15 Gray, 106 bridges, see: (1860). United States. City of Leredo v. North Carolina. Contra Wash- International Bridge Co., 66 Fed. ington Toll Bridge v. Beaufort, 81 246, 14 C. C. A. 1 (1895). N. C. 491 (1879). Connecticut. Enfield Toll Bridge Ohio. Young v. Buckingham, Co. v. Hartford & N. H. R. R. Co., 5 Ohio, 485 (1832). 17 Conn. 40, 42 Am.Dec.716 (1845). 2 12 East, 527 (1810) [46] MONOPOLY DUE TO LEGAL PRIVILEGE [ 55 the legal privilege of taking goods in bond in the port of London. What Lord Ellenborough said in that case de- serves careful consideration: "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 take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. Here then the company's ware- houses were invested with the monopoly of a public privilege, and therefore they must by law confine them- selves to take reasonable rates for the use of them for that purpose." 1 55. Log driving. Weymouth v. Penobscot Log Driving Company, 2 a case outside the beaten track, is a modern instance of this principle, that the doctrine of public calling will be ex- tended to any case in which the decisive circumstance of legal monopoly is shown. This was an action brought against the log driving company by a lumberman whose logs had not been taken although he had notified the company in due form. The company requested the court to instruct the jury that the corporation was not under any legal obligation to drive the logs upon request. Mr. Jus- tice Danforth held that the instruction was properly re- fused under the circumstances. "In this case the charter conferred the privilege of driving, not a part, not such a portion as the company might choose, but 'all' the logs to be driven. This right having been accepted by the 1 As to the public character of 2 71 Me. 29 (1880). warehouses in general, see the anno- tation to 140, infra. [47] 56 ] PUBLIC SERVICE CORPORATIONS company, it became a vested and also an exclusive right. It is therefore taken not only from all other corporations, but excludes the owner as well. By its acceptance and exclusion of the owner from the privilege, in justice and in law it assumed an obligation corresponding to, and commensurate with its privilege." 1 Topic B. Eminent Domain 66. Eminent domain for public purposes. It has often been remarked how frequently eminent domain is granted to companies which are conducting public services. Indeed, it has often urged that the reason that such companies may be regulated by law is because they have been endowed with the right of eminent do- main, and are therefore quasi-public corporations. This reasoning, however, seems to be inadequate if the matter is sufficiently analyzed, because it is taking the effect for the cause. A legislature can give a railroad or a canal, the right of eminent domain only because the company, ir- respective of the enjoyment of that right, is already public in character; for private property, under our constitutional limitations, cannot be taken, even when compensation is given, except for public purposes. A few examples of the businesses for which it has been held eminent domain may be given will make the point plainer, that x Log driving is so affected with New York. Matter of Burns, a public interest as to justify the 155 N. Y. 23, 49 N. E. 246 (1898). grant of various special legal privi- And yet as the service is con- leges to those engaged in it. ducted it is not common carriage. United States. Boom Co. v. Pat- Michigan. Mann v. White River terson, 98 U. S. 403 (1878). Log & Booming Co., 46 Mich. 38, Maine. Penobscot Log D. Co. 8 N. W. 550, 41 Am. Rep. 141 v. West Branch D. & R. Dam Co., (1881). 99 Me. 452, 59 Atl. 593 (1905). New York. Pike v. Nash, 3 Abb. Minnesota. Cotton v. Missis- App. Dec. 610, 1 Keyes, 335 (1864). sippi River Boom Co., 22 Minn. 372 (1876). [48] MONOPOLY DUE TO LEGAL PRIVILEGE [ 57 it is only in public employment that eminent domain may be granted. Thus according to all the cases emi- nent domain may be granted for such extraordinary businesses as electric plants 1 and telegraph lines, 2 while if it is attempted to give eminent domain for businesses essentially private, such as sugar factories 3 or paper mills, 4 the grant is held unconstitutional. 57. Tramways. It is common knowledge that the tramway was the di- rect successor of the turnpike and the immediate pred- ecessor of the railroad. It was expected at the outset that like the turnpike it would furnish a highway over which those who had provided themselves with proper wagons and sufficient beasts would haul their goods as 1 Georgia. Jones v. North Geor- gia Electric Co., 125 Ga. 618, 54 S. E. 85 (1906). Maine. Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472 (1905). Missouri. State v. Allen, 178 Mo. 555, 77 S. W. 868 (1903). New Hampshire. Rockingham County Light & Power Co. v. Hobb, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 581 (1904). New York. Palmer v. Larch- mont Electric Co., 158 N. Y. 231, 52 N. E. 1092 (1899). Ohio. Callen v. Columbus Edi- son Electric Co., 66 Oh. St. 166, 58 L. R. A. 782, 64 N. E. 141 (1902). Pennsylvania. Haverford Elec- tric Co. v. Hart, 13 Pa. Co. Ct. 369 ( 1 89 1 ) . See the full citation of cases establishing that the business of electric lighting is public in charac- ter, 113, infra. 2 Alabama. New Orleans, M. & 4 T. R. Co. v. Southern & A. Tele- graph Co., 53 Ala. 211 (1875). Arkansas. Western Union Tele- graph Co. v. Short, 53 Ark. 434, 14 S. W. 649, 9 L. R. A. 744 (1890). New Jersey. Trenton & N. B. Tp. Co. v. American & E. News Co., 43 N. J. L. 381 (1881). New York. Eels v. American Telephone & Telegraph Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640 (1894). Utah. Postal Telegraph Cable Co. v. Oregon S. L. Ry. Co., 23 Utah, 474, 65 Pac. 735, 90 Am. St. Rep. 705 (1901). Virginia. Western Union Tele- graph Co. v. Williams, 86 Va. 696, 11 S. E. 106, 8 L. R. A. 429, 19 Am. St. Rep. 908 (1890). See 157, infra. 3 Getchell v. Benton, 30 Neb. 870, 47 N. W. 468 (1890). 4 Harding v. Goodlett, 3 Yerg. (Tenn.) 40, 24 Am. Dec. 546 (1832). [49] 58 ] PUBLIC SERVICE CORPORATIONS they pleased. Unlike the turnpike, however, existing roads could not be utilized and incorporated into the system. Such railways must strike across country for themselves, and eminent domain was consequently nec- essary to get the right of way without interruptions. It has certainly always been law that when such tramways are thus open to public use they are in the public service and may be given eminent domain. 1 In this way the law was prepared for that very different business of mod- ern railroad operation where the use of the right of way is necessarily confined exclusively to the company conduct- ing the transportation. 2 58. Railways. When the right of eminent domain was first given to the early railroads its constitutionality was doubted. All such doubts were set at rest by the masterly opinion of Chief Justice Ruffin in Raleigh & Gaston Railroad v. Davis, 3 in the course of which he showed his apprecia- tion of the benefits accruing from the undertaking of public services by private concerns. "An immense and beneficial revolution has been brought about in modern times by engaging individual enterprise, industry and economy in the execution of public works of internal im- provement. The general management has been left to individuals whose private interests prompt them to con- duct it beneficially to the public, but it is not entirely confided to them. From the nature of their undertaking and the character of the work they are under sufficient responsibilities to insure the construction and preserva- 1 In Leigh v. Garysburg Mfg. Co., if its proprietors open it to the use 132 N. C. 167, 43 S. E. 632 (1903), of all desirous of availing themselves it is recognized that a tramway con- of it. structed to haul out logs will be 2 See 144, infra. sufficiently public in character to 3 2 Dev. & Bat. 451 (1837). justify the grant of eminent domain [50] MONOPOLY DUE TO LEGAL PRIVILEGE [ 59 tion of the work, which is the great object of the govern- ment." 1 59. Pipe lines. Upon the same principle it has been held that the right of taking property by eminent domain may be conferred upon a pipe line system constructed for the transporta- tion of oil. The right having been conferred by the West Virginia 2 legislature upon a certain company the act was attacked as unconstitutional, because the taking was not for a public purpose; but the Supreme Court of that State speaking by Mr. Justice Moore said: "It has been decided, time and time again, and is therefore settled by the best authority, that the construction of railroads, turnpikes, canals, ferries, telegraphs, wharves, basins, etc., constitutes what is generally known by the name of internal improvements, and gives occasion for the exercise of the right of eminent domain. And other measures of general utility in which the public at large are interested, and which require the appropriation of private property, are within the power where they fall 1 The subsequent decisions jus- Michigan. Swan v. Williams, 2 tifying the grant of eminent domain Mich. 427 (1852). in aid of a public railway are too New Hampshire. Concord R. numerous to be included here in R. Co. v. Greely, 17 N. H. 47 full; the general doctrine is suffi- (1845). ciently shown in the earlier cases, South Carolina. Louisville C. & such as: C. R. R. Co. v. Chappell, Rice, 383 United States. Secombe v. Mil- (1839). waukee & St. Paul Ry. Co., 23 Wall. 2 West Virginia Transp. Co. v. 108, 23 L. ed. 67 (1874). Volcanic O. & C. Co., 5 W. Va. 382 California. San Francisco A. & (1872). "A pipe line company is a S. R. R. Co. v. Caldwell, 31 Cal. common carrier bound to receive 367 (1866). and transport for all persons alike Iowa. Noll v. Dubuque B. & M. all goods intrusted to its care." R. R. Co. 32 Iowa, 66 (1871). Giffin v. South West Pa. Pipe Maryland. Shipley v. Baltimore Lines, 172 Pa. St. 580, 33 Atl. 578 & Potomac R. R. Co., 34 Md. 336 (1896). (1871). [51] 60 ] PUBLIC SERVICE CORPORATIONS within the reasons underlying the cases mentioned. The charter granted to the West Virginia Transportation Company by special enactment of the legislature, shows that the object was to construct a line for the transpor- tation of petroleum. The charter also established the maximum charges the company should make for trans- portation of oils. I cannot see the propriety of admitting a railroad or canal or aqueduct to be an internal improve- ment, and declare this tube highway not to be." : 60. Transmission lines. It is difficult to say, as the authorities stand at the present moment, whether the transmission of electric energy to be utilized as power is public in character or not. Of course in particular cases there is no public employment if those engaged in the transmission have made no profession to sell the power to the public in general, but are either using the power transmitted in their own business exclusively or are making special contracts with particular customers. 2 But if the power company holds itself out as ready to serve all customers indifferently to the extent of its capacity it would seem that in such a case the business is sufficiently public to 1 Although there are now several Pennsylvania. Columbia Con- statutes declaring that pipe lines duit Co. v. Commonwealth, 90 shall be at the service of the public, Pa. St. 307 (1879). there are as yet only a few decisions West Virginia. West Virginia to that effect; but there are enough Transportation Co. v. Ohio R. Pipe to make the prediction safe that the Line Co., 22 W. Va. 600, 46 Am. constitutionality of these statutes Rep. 527 (1883). will be upheld. The cases nearest 2 Vermont. A very v. Vermont in point that have been found are Electric Co., 75 Vt. 235, 54 Atl. 179, subjoined: 59 L. R. A. 817, 98 Am. St. Rep. New York Bloomfield & R. 818 (1902). Natural Gas Light Co. v. Richard- Virginia. Fallsburg v. Alexan- son, 63 Barb. 437 (1872). der, 101 Va. 98, 43 S. W. 194, 61 L. Ohio. Re Ohio Valley Gas Co., R. A. 129, 99 Am. St. Rep. 855 6 Pa. Dist. Rep. 200 (1897). (1903). [52] MONOPOLY DUE TO LEGAL PRIVILEGE [ 61 justify the grant of eminent domain to gain right of way for its transmission lines. 1 The modern policy leading the courts to this conclusion, that the business of sup- plying electricity for power is now public in character is thus fully set forth in a late New Hampshire case 2 which relies much upon the present day demand for power. On the other hand, in a recent Maine case 3 the court insists that the service is not sufficiently necessary to the public to justify eminent domain. 4 But this ar- gument may easily be pressed too far in this subject. A man may make provision for illuminating his premises without the aid of the State, and yet as is conceded by the court, the distribution of electricity for lighting is public in character beyond question. 5 61. Elevated conveyors. Another method of transportation which is met with in the reports is the elevated conveyor or cable tramway. It is described in one case as consisting of two elevated cables held upon supports so as to run parallel to each other about ten feet apart on which buckets are carried along by means of a moving trolley, one line bringing the buckets in one direction, the other in the other. 6 In 1 United States. Walker v. 2 Rockingham County Light & Shasta Power Co., 160 Fed. 856 Power Co. v. rfobbs, supra. (1908). 'Brown v. Gerald, 100 Me. Georgia. Jones v. North Georgia 351, 61 Atl. 785, 70 L. R. A. 472 Electric Co., 125 Ga. 618, 54 S. E. (1905). 85 (1906). 4 State ex rel. v. Superior Court New Hampshire. Rockingham of Thurston County, 42 Wash. 660, County Light & Power Co. v. Hobb, 85 Pac. 666, 5 L. R. A. (N. S.) 672 72 N. H. 531, 58 Atl. 46, 66 L. R. A. (1906), is apparently in full accord 581 (1904). with Brown v. Gerald, which it New York. Re Niagara L. & O. quoted with approval. Power Co., Ill App. Div. 686, 97 5 See 113, infra. N. Y. Supp. 853 (1906). See also Matter of the Split Rock Cable the full citation of cases relating' to Road Co., 128 N. Y. 408, 28 N. E. electric power, 114, infra. 506 (1891). [53] ' 62, 63 ] PUBLIC SERVICE CORPORATIONS that particular case the New York Court of Appeals re- fused to permit such a road to exercise the power of emi- nent domain upon the ground that it was wholly engaged in serving the concern which controlled it, transporting rock from its quarry to its works, both termini being upon its private premises. However, it would seem that if such elevated conveyor was really operated as a common carrier offering to transport all freight, that should be offered to it suitable to be carried in buckets, it might well be held in public employment. 1 62. Lumber flumes. Another unusual public service is the maintenance of a flume through which lumber may be brought from rather distant forests to convenient points. These flumes are commonly constructed by those owning timber lands in the region served; but it is often true that other owners may make use of the flume by paying a proper price. In such a case there would seem to be no objection to granting eminent domain to aid in their construction, as the service would then be public in character. In the leading case involving such flumes, 2 Judge Strahan for the Supreme Court of Oregon said: "The public certainly have an interest in the cheap delivery of the timber, lumber, and other products of the forest, or whatever other commodity may be transported by being floated to cities or other places for consumption." 3 63. Mining tunnels. Still another enterprise found necessary for the de- velopment of natural resources is the mining tunnel. In several of the western States corporations are chartered 1 See other cases aa to mechanical hart, 16 Oreg. 67, 19 Pac. 78 conveyors, 98, infra. (1888). 1 Dalles Lumbering Co. v. Urqu- s To the same effect is Maffet v. Quine, 93 Fed. 347 (1899). [54] MONOPOLY DUE TO LEGAL PRIVILEGE [ 64 for the sole purpose of boring such tunnels and are given the power of eminent domain to pass through the various locations. In defending the grant of this power in the case of Tanner v. Treasury Tunnel, Mining & Reduction Company, 1 Chief Justice Gabbert said: "The number who may^ avail themselves of the benefit of the tunnels will be limited, but this is merely the result of natural conditions arising from the character and location of mining properties. The use and benefit of the tunnel will be in common, and may be enjoyed by all those whose properties are so located with reference thereto that they may avail themselves if they so desire, of the oppor- tunities thus afforded for the development and operation of their properties." 2 Topic C. Aid from Taxation 64. Public purposes of taxation. Another basis of the right of public regulation is said to be the receipt by the regulated company of aid from taxation. And indeed it is in public businesses that the various forms of State aid are given, either in the form of direct grant or public guaranty. It is doubtless true, in general, that a business which receives public aid from taxation is a public business, and is subject to public regulation; but again the effect seems to have been taken for the cause. Under our constitutions State aid can be granted only for a public purpose; the character of the enterprise does not result from the grant of State aid, for it must precede it in order to make the grant valid. Thus State aid may be given to such recognized public services 1 35 Colo. 593, 83 Pac. 464, 4 United States. Baillie v. Larson, L. R. A. (N. S.) 106 (1906). 138 Fed. 177 (1905). 2 There are several cases sub- New Jersey. DeCamp v. Hi- stantially to the same effect, among hernia R. R. Co., 47 N. J. L. 43 them: (1885). [55] 65] PUBLIC SEEVICE CORPORATIONS as telephone lines l or irrigation reservoirs, 2 not to men- tion such obvious cases as street railways 3 and railroad terminals; 4 but State aid may not be given to such private business as a box mill 5 and a coal yard, 6 or even to great enterprises such as foundries 7 and factories. 8 65. Gristmills. From time immemorial the gristmill has been held to be in public service. There are many early cases which bring out the obligation of the proprietor of a gristmill who is receiving the grain of the community to grind, to serve all without discrimination. 9 So necessary are such mills in the early economy when the immediate country is entirely dependent upon turning its crops into food that the propriety of State aid for such works has seldom been questioned. 10 There is a decision as to gristmills in 1 Northwestern Telephone Ex- change Co. v. Chicago, etc., M. & St. P. Ry. Co., 76 Minn. 334 (1899). 2 Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. 56 (1896). 3 Attorney-General v. Pingree, 120 Mich. 550, 79 N. W. 814 (1899). 4 Sears v. Street Commissioners, 180 Mass. 274, 62 N. E. 397 (1880). 5 Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185 (1872). 5 Opinion of Justices, 182 Mass. 605, 66 N.E. 25(1882). 7 Loan Association v. Topeka, 20 Wall. 655, 22 L. ed. 455 (1874). 8 Cole v. La Grange, 113 U. S. 1, 28 L. ed. 896, 5 Sup. Ct. 416 (1884). 9 United States. Munn v. Il- linois, 94 U. S. 113, 24 L. ed. 77 (1876), semble. Alabama. Sadler v. Langham, 34 Ala. 311 (1859). Georgia. Loughbridge v. Harris, 42 Ga. 500 (1871). [56] Maine. State v. Edwards, 86 Me. 102, 41 Am. St. Rep. 528 (1893). Nebraska. Getchell v. Benton, 30 Neb. 870, 47 N. W. 468 (1890). Virginia. Tuckahoe Canal Co. v. Tuckahoe Ry. Co., 11 Leigh, 42 (1840), semble. West Virginia. West v. Raw- son, 40 W. Va. 480, 21 S. E. 1019 (1895). 10 Upon similar principles eminent domain may be given to aid in the construction of the works of a grist- mill, particularly to acquire flow- age rights. Illinois. Gaylord v. Sanitary District, 204 111. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235 (1903). Kentucky. Shackelford's Heirs v. Coffey, 4 J. J. Marsh. 40 (1830). Massachusetts. Boston & Rox- bury Mill Corp. v. Newman, 12 Pick. 467, 23 Am. Dec. 622 (1832). MONOPOLY DUE TO LEGAL PRIVILEGE [ 66 the Supreme Court of the United States 1 in which the tests are discussed by which the public character of a business may be judged. The issue was whether an issue of bonds made to aid in the construction and completion of a steam custom gristmill within the township, was valid. The Constitution empowered the execution of bonds for the purpose of building bridges, free or other- wise, or to aid in the construction of railroads or water power by donation thereto or taking stock therein, or for other works of public improvement. Mr. Justice Hunt in delivering the opinion of the coiirt said in part: "Does such an establishment fall within the description of other works of internal improvement? It would require great nicety of reasoning to give a definition of the expression internal improvement which would show that the means of transportation were more valuable to the people of Kansas than the means of obtaining bread. It would be a poor consolation to the people of this town to give them the power of going in or out of the town upon a railroad, while they were refused the means of grinding their wheat." 2 66. Sawmills. There is some evidence that in certain States sawmills are v regarded as public services also. They are thus Tennessee. Harding v. Goodlett, 2 In view of this decision it is 3 Yerg. 41, 24 Am. Dec. 546 (1832). rather curious that in Osborne v. But the mill must be conducted Adams County, 106 U. S. 181, 27 as a public one or special rights may L. ed. 129 (1882), it was held that not be given. a steam power gristmill could not Georgia. Loughbridge v. Harris, be aided under a Nebraska statute, 42 Ga. 500 (1871). but the terms of the Nebraska acts Vermont. Tyler v. Beacher, 44 were not so broad. In Blair v. Vt. 648, 8 Am. Rep. 398 (1871). Cuming County, 111 U. S. 363, 1 Township of Burlington v. Beas- 28 L. ed. 457 (1884), strangely ley, 94 U. S. 310, 24 L. ed. 161 enough a water power gristmill was (1876). held within the Nebraska statute. [571 67 ] PUBLIC SERVICE CORPORATIONS grouped with gristmills in State v. Edwards, 1 Haskell, J., saying, "Mills for the grinding of grain and for the sawing of lumber for all comers have been aided or established by the legislature from the earliest Colonial times. Those mills were usually water mills; but it is of no moment what the propelling power may be. They have always been considered so necessary for the existence of the community that it was proper for government to foster or maintain them; and in the absence of government aid, the individual proprietor, not pretending to serve the public, might maintain such mills as private mills, free from legislative interference, precisely as he might main- tain a store, shop or other private business; but when such proprietor makes his mill public, assumes to serve the public, then he dedicates his mill to public use and it becomes a public mill, subject to public regulation and control. He is not compelled to continue such public use, but so long as he does, he becomes a public servant and may be regulated by the public." 2 67. Drainage. Drainage, on the other hand, is an example of a public necessity 3 that is almost always provided for by the State itself in some other way than by the chartering of public service companies. Indeed it is usually arranged for by governmental agencies, such as reclamation dis- tricts, with the extraordinary power of levying assessments upon those benefited. 4 It is possible that a public corpo- ration might be duly empowered to construct a drainage '86Me. 102,29Atl. 947.25L.R. See Laguna Drainage District A. 504, 41 Am. St. Rep. 528 (1893). v. Martin Co., 144 Cal. 209, 77 Pac. 2 Sawmills are included in the 933(1904). list of public mills in Gaylord v. 4 Jenal v. Green Island Draining Sanitary Dist., 204 111. 576, 68 N. E. Co., 12 Neb. 163, 10 N. W. 547 522, 63 L. R. A. 582, 98 Am. St. (1881). Rep. 235 (1903). [58] MONOPOLY DUE TO LEGAL PRIVILEGE [ 68, 69 system 1 and take such reasonable profit as it might get by the charges it could collect from those who wished to avail themselves of the benefit of its system. But it is beyond the range of possibility that any corporation of such sort can be given the power to coerce unwilling customers to deal with it by compulsory assessments. 2 68. Sewerage. Sewerage systems likewise are usually constructed by governmental bodies so that examples of the conduct of this service by private corporations are practically un- known. But it is plain that in their conduct by a govern- mental body the principles of the public service law must be obeyed. Thus in a recent case 3 the city of Mobile was enjoined against maintaining a schedule outrageously discriminatory. Mr. Justice Haralson saying, emphatic- ally, " These sewers of the city are for the public at large and every one should be permitted to use them without any discrimination in charges against him. The franchise to construct sewers being in the nature of a public use, the duty is on the city to supply sewerage at rates to all impartially on reasonable terms." 4 69. Cemeteries. The absolute necessity of public cemeteries is obvious. This necessity may be met either by cemeteries owned directly by the government or by chartered corporations. Such corporations are rarely empowered to take private profit from the conduct of the cemetery, but are obliged to devote their receipts to the purposes of the cemetery. 5 1 See O'Reiley et al. v. Kankakee ply Co., 130 Ala. 379, 30 So. 445 Valley Draining Co., 32 Ind. 169 (1901). (1869). * See Opinion of the Justices, 150 2 See Kean v. Driggs Drainage Mass. 592, 596, 24 N. E. 1084, 8 Co., 45 N. J. L. 91 (1883). L. R. A. 487 (1890). 3 Mobile v. Bienville Water Sup- 6 See Davis v. Coventry, 65 Kans. 557, 70 Pac. 583 (1902). [59] 70 ] PUBLIC SERVICE CORPORATIONS Such being the case the law concerning them is mostly that relating to public charities which is outside the scope of this treatise. It may be noted, however, that it is com- mon to exempt such cemeteries from taxation and these exceptions are liberally construed in favor of the ceme- tery. 1 Moreover, it is possible to have cemetery corpora- tions which are justified in distributing their profits to their stockholders; and it would seem on the decisions that these may receive State aid in every form provided that their privileges are open to all upon equal terms. 2 " But it is a matter of common knowledge that there are many cemeteries which are strictly private; in which the public have not and cannot acquire the right to bury." Clearly the proprietors of such cemeteries cannot constitutionally receive State aid. 3 70. Hospitals. The same situation exists as to hospitals. These are usually organized as public charities and the discussion of the law relating to them is again outside the scope of this treatise, which is confined to such corporations engaged in public service as are entitled to take private profit. Nevertheless there may be hospitals of this type which are open to all comers with reasonable restrictions, 4 and it would seem that such hospitals might be given such aid from the State as is deemed desirable, particularly exemp- tion from taxation. Such a hospital would seem to be public in character within the definition of that term given in a leading case 5 dealing with the propriety of 1 Mt. Auburn Cemetery v. Cam- Beecher, 53 Conn. 551, 5 Atl. 353 bridge, 150 Mass. 12, 22 N. E. 66, (1885). 4 L. R. A. 836 (1889). * See People ex rel. Burnham 1 See Pokrok Zapadu Pub. Co. v. Hospital, 71 111. App. 246 (1896). Zizkovsky, 42 Neb. 64, 60 N. W. B Quoted from County of Henne- pin v. Brotherhood of Gethsemane, s Evergreen Cemetery Assn. v. 27 Minn. 460, 8 N. W. 595 (1881). [60] MONOPOLY DUE TO LEGAL PRIVILEGE [ 71 such exemptions. "The word 'public' has two proper meanings. A thing may be said to be public when owned by the public and also when its uses are public." Topic D. Use of Public Highways 71. Public purposes in highway use. Many public service companies are granted special privileges in public highways of one sort or another. And these rights in the streets have often been urged as a rea- son for holding the user subject to special regulation by law. But here again the point may be urged that unless these were public purposes it would be unjustifiable to give them special rights. Thus although special franchises may be given to gas companies to lay pipes through public streets 1 and to electric companies to string their wires along public ways 2 these are to be defended only by showing that the businesses themselves are public in character. And it is generally true that the use of high- ways may be given in the furtherance of any public pur- pose which is not destructive of its use as a highway, although some uses are so unusual as to constitute an ad- ditional servitude for which compensation must be made to the owner of the fee. On the other hand, it would seem clear that special rights in public highways should not be given for private enterprises in which the public has no rights to service even if compensation were provided, such as advertising stands 3 or private scales. 4 The en- 1 Indiana. See Indianapolis v. mont Electric Co., 158 N. Y. 231, Gas Co., 66 Ind. 396 (1879). 52 N. E. 1092, 43 L. R. A. 672 Massachusetts. Boston v. Rich- (1899). ardson, 13 Allen, 160 (1866). 3 State v. St. Louis, 161 Mo. 371, 2 New Jersey. Meyers v. Hudson 61 S. W. 658 (1901). County Electric Co., 63 N. J. L. 4 Emerson v. Babcock, 66 la. 257, 573, 44 Atl. 713 (1899). 26 N. W. 656, 55 Am. Rep. 273 New York. Palmer v. Larch- (1885). [61] v c 72, 73 ] PUBLIC SERVICE CORPORATIONS joyment of highway privileges is therefore again a case of consequence rather than cause, since these rights may only be given for the furtherance of a business already deter- mined to be public in character. 72. River improvements. The improvement of navigable waters furnishes one of the most striking illustrations of the use of public high- ways in enterprises designed to promote the service of the public. The improvement of rivers in particular has been the subject of great expenditures. 1 This partial canaliza- tion is often accomplished by dredging a deeper channel by mechanical means or scouring it by a jetty system; or it may be brought about by an opposite system of slack waters impounded by dams with weirs, and canals with locks. These works are usually done by the government itself which, it may be noted, often does not charge toll for their use. Still it may be done by private companies specially chartered, in which case the law is plain that they must permit all proper boats to pass without dis- crimination upon the payment of reasonable charges. 2 73. Booms. The boom companies which impound logs floated down- stream for the benefit of their owners are within the same principles. As was said in one leading case Cotton v. 1 The following cases among Wisconsin. Yellow River Im- others relating to river improve- provement Co. v. Wood County, ments bear out the text: 81 Wis. 554, 51 N. W. 1004, 17 Illinois. People ex rel. v. Kan- S. R. A. 92 (1892). kakee River Improvement Co., 103 2 See the language in: 111. 491 (1882). United Stales. Sands v. Manis- Michigan. Manistee River Im- tee River Improvement Co., 123 provement Co. v. Lamport, 49 U. S. 288, 31 L. ed. 149 (1887). Mich. 442, 13 N. W. 810. Texas. Buffalo Bayou Ship New York. Matter of Burns, Channel v. Milby & Dow, 63 Tex. 155, N. Y. 23, 49 N. E. 246 (1898). 492, 51 Am. Rep. 668, (1885). [62] MONOPOLY DUE TO LEGAL PRIVILEGE [ 74, 75 Mississippi & Rum River Boom Company l "The Mississippi River is, among other things, a public high- way for the running of logs, and a boom company may properly be regarded as an improvement of the highway, an improvement, the purpose and effect of which 'are to render the highway more available and valuable for the running of logs." 2 74. Sluices. Other minor improvements sometimes utilized in con- nection with river transportation are sluices, slides, rollers, or planes by which portages around obstacles are avoided. There is a case 3 as to one such slide which holds prop- erly enough that even if the proprietors are permitting passage to all for a regular toll they are not common carriers. It is obviously true that they are not carriers at all because they do not assume possession of what passes through. Nevertheless it should be clear that they are in common employment and obliged to let all use the improved highway at the established tolls. 76. Turnpikes. It has already been made sufficiently obvious that the turnpikes although owned by corporations conducting them for profit were always regarded as public highways over which all might pass by paying the established 1 22 Minn. 372 (1876). (1906); Northwestern Improvement 2 See also to the same effect: & Boom Co. v. O'Brien, 75 Minn. United States Boom Co. v. 335, 77 N. W. 989 (1899). Patterson, 98 U. S. 403, 25 L. ed. Pennsylvania. West Branch 206 (1878); Patterson v. Mississippi Lumbermen's Exchange v. Fisher, & R. R. Boom Co., 18 Fed. Cas. 150 Pa. St. 475, 24 Atl. 735 (1892). 10829(1875). Wisconsin. Underwood Lumber Maine. Lawler v. Baring Boom Co. v. Pelican Boom Co., 76 Wis. Co., 56 Me. 443 (1869). 76, 45 N. W. 15 (1890). Minnesota. International Boom 3 Queen v. McFarlane, 7 Can. 216 Co. v. Rainy Lake River Boom (1882). Co., 97 Minn. 513, 107 N. W. 735 [63] 76 ] PUBLIC SERVICE CORPORATIONS tolls. 1 This idea went so far that it was even held jus- tifiable for the legislature to authorize a turnpike com- pany to take over existing public highways and operate them as part of the turnpike system, charging tolls for passage, and to do this without paying compensation to the abutting owners as for a change in the character of the use. Notwithstanding what had been a free high- way before and was now a turnpike with toll gates, the court held that it was still a public highway over which all might pass, and it was for the legislature to judge whether it was desirable to have the public service main- tained in this way. 2 76. Street railways. Of course the most obvious illustration of the coinci- dence of street privileges with public service is that of street railways with their special rights to occupy the public streets. And this is seized upon in various cases 3 as the explanation of their obligations to the public. But this sort of explanation although it contains a cer- tain truth 4 will not account for the fact that a passenger 1 The following cases among 2 The following cases are sufficient many others show that turnpikes evidence to this rule: were commonly regarded as public California. Blood v. McCarty, in character: 112 Cal. 561, 44 Pac. 1025 (1896). United States. Covington & L. Michigan. Attorney General v. Turnpike Road v. Sandford, 164 Detroit & Erin Plank Road Co., 2 U. S. 578, 41 L. ed. 560, 17 Sup. Ct. Mich. 138 (1851). 198 (1896). New Hampshire. State v. Hamp- Colorado Virginia Canon Toll ton, 2 N. H. 22 (1819). Road Co. v. People, 22 Colo. 429, Ohio. Chagrin Falls Co. v. Cane, 45 Pac. 398, 37 L. R. A. 711 (1896). 2 Oh. St. 419 (1853). Kentucky. Winchester &c. Turn- Vermont. Panton Turnpike Co. pike Road Co. v. Croxton, 98 Ky. v. Bishop, 11 Vt. 198 (1839). 739, 34 S. W. 518, 33 L. R. A. 177 3 See for one example State v. (1898). Spokane Ry. Co., 19 Wash. 518, New York. Davis v. Mayor, 53 Pac. 719, 67 Am. St. Rep. 739 14 N. Y. 506, 67 Am. Dec. 186 (1898). (1856). < See 259, infra. [64] MONOPOLY DUE TO LEGAL PRIVILEGE [ 77, 78 railway laid across country without use of the streets is subject to precisely the same law as one laid upon the highway. As is said in East Omaha Street Railway Company v. Gondola 1 by Chief Justice Post in replying to the contention that the particular railway was not a common carrier as its right of way was constructed upon its own private property: "That proposition is not it seems to us entitled to serious consideration. The de- fendant by undertaking to transport passengers for hire between Courtland Beach and the City of Omaha assumed the relation towards its passengers of a common carrier and the character of the easement in the right of way is wholly immaterial." 2 77. Subways. Of late years in many of the largest cities subways have been constructed beneath principal streets. These have usually been built in theory at least by the municipalities themselves as special highways and then exclusive rights for a term of years upon proper compensation are given to some traction line in analogy to street franchises for surface railways. In litigation challenging the validity of this method of constructing the Boston subway, 3 it was held that although these highways were not free to all they provided facilities for public passage, and that the building of the subway for the carriage of such pas- sengers as pay the regular fare was therefore a proper use of public credit. 4 78. Wire conduits. A late method of permitting the use of the streets by 1 East Omaha Ry Co. v. Godola, 347, 44 N. E. 446, 32 L. R. A. 610 50 Neb. 906, 70 N. W. 491 (1897). (1896). - See 227, infra, for numerous 4 See also City of New York v. citations. Interborough R. T. Co., 125 N. Y. 8 Prince v. Crocker, 166 Mass. App. D. 437, 108 N. Y. Supp. 885 (1908). 5 [65] 79 ] PUBLIC SERVICE CORPORATIONS electrical companies is by authorizing the construction of a duct large enough to hold the wires of various com- panies. The electrical subway company chartered for such a purpose may or may not be given an exclusive privilege against the construction of other similar enter- prises; it is sufficient that it has a practical monopoly. For the purpose of accommodation of various interests full power of control is often reserved by the govern- mental authority which grants the rights. And some- times the obligations of the conduit company to serve proper applicants are defined in its charter. 1 In the lead- ing case 2 it was held that such a corporation might prop- erly be given the right to construct its subway under public streets although the franchise had no provision giving the electric companies the right to use them. But the court held that the business was public in character and the use proposed to make of the streets was a public one. "The corporation is not a mere private one for personal gain only, but the business in which it is en- gaged is for the benefit of, and used for the benefit of the general public, and in which many companies are en- gaged all over the United States and elsewhere." It would seem plain, therefore, that such a conduit company is a public service itself and may be obliged to give space to any applicant company having lawful power to extend its wires through the city. 79. Pole lines. Upon the analogy of the wire conduit which may either 1 In Brush Elec. Illuminating Co. 2 State ex rel. National Subway v. Consolidated T. & E. Subway Co. v. St. Louis, 145 Mo. 551, 46 Co., 15 N. Y. Supp. 81 (1891), it is S. W. 981 (1898), overruling State held that such explicit provisions ex rel. St. Louis Underground Serv- are indispensable. See also Re ice Co. v. Murphy, 134 Mo. 548, Long. Acre Light & P. Co., 117 34 S. W. 51 (1896); see also Purnell App. Div. 80, 102 N. Y. Supp. 242 v. McLane, 98 Md. 589, 56 All. 830 (1907). (1904). [66] MONOPOLY DUE TO LEGAL PRIVILEGE [ 80 be constructed by an electric company engaged in public service for its own exclusive use or which may be con- ducted for the use of other companies subject to the public service law, is the case of the pole line above ground. These to be sure are generally erected by an electric company for its own use; but the other alterna- tive is not impossible. And the company maintaining a pole line may have so far undertaken to permit other companies to string wires on its poles that it will be com- pelled to do so for subsequent applicants. Montgomery Light & Water Power Company v. Citizens' Light, Heat and Power Company, 1 looks that way, holding a fran- chise provision so providing enforceable. 2 00. Constitutional situation as to special privileges. No attempt will be made to write a treatise upon con- stitutional law here in a few paragraphs, for it is recog- nized that one cannot make safe rules for any branch of the law without the many qualifications which excep- tional cases dictate. Yet as the subject of constitutional law touches that of the public services so intimately, it is fair to suggest what seems from this inquiry the unifying principle, although in any such generalization which ignores details, there will necessarily be a certain per cent of error. First of all it is clear from the cases already cited that none of these special grants exclusive franchise, emi- nent domain, State aid, or highway franchises can be extended except for a public purpose. This is the leading principle in the constitutional law relating to each of these subjects, although there are some negligible vari- ations between the various sets of authorities as to what is a public purpose, due probably to the fact that the question has not been considered as a whole, rather than 1 147 Ala. 359, 40 So. 981 (1906). N. Y. App. Div. 837, 101 N. Y. 2 See also Kuhn v. Knight. 115 Supp. 1 (1906). [67] 80 ] PUBLIC SERVICE CORPORATIONS to any inherent differences as to what constitutes a pub- lic purpose in these various subjects. When it is a ques- tion of giving State aid in any form to a business enter- prise privately owned this public purpose must appear. This does not mean that such State aid may always be given to the proprietors of all public services. But unless the public may enjoy the service furthered as of right, can the aid of its owners truly be said to be a public pur- pose. There are several variations from this rule in the authorities; but properly considered they are negligible in generalization. It is therefore only the business which is public in character which the State may aid in further- ance of public purposes. For such public businesses must give the public the service which the law requires of them. This means that the public businesses exist independently of State aid and have material differences from private businesses which it will be necessary to determine in sub- sequent chapters. For the present it will be sufficient to put forward as the working hypothesis that this difference lies in external conditions. That where there is from any cause a permanent condition of virtual monopoly, whether or not the government has had any hand in establishing that monopoly, the State must take control of the situa- tion for the protection of the public, and may constitu- tionally do whatever the situation requires. The differ- ence between public calling and private calling is thus inherent in the nature of things. This is because the conditions which permit competition or produce monopoly are external matters with which the law must deal as existing facts. [68] CHAPTER HI NATURAL MONOPOLY 90. Natural limitation creates public employment. Topic A . Reslricticm of Supply 91. Limitation of the sources of supply. 92. Waterworks. 93. Irrigation systems. 94. Natural gas. 95. Water powers. Topic B. Scarcity of Sites 96. Scarcity of advantageous sites. 97. Grain elevators. 98. Mechanical conveyors. 99. Cotton presses. 100. Stock yards. 101. Freight sheds. 107. Docks. 103. Basins. 104. Dry docks. Topic C. Limitation of Time 105. Instant need creates monopoly. 106. Innkeepers. 107. Hackmen. 108. Messenger service. 109. Call boxes. Topic D. Difficulty of Distribution 110. Inherent limitations upon competition. 111. Gas works. 112. Fuel gas. 113. Electric plants. 114. Electric power. 115. Steam heat. 116. Refrigeration. 117. Public need creates public interest. [69 90, 91 ] PUBLIC SERVICE CORPORATIONS 90. Natural limitation creates public employment. It is common knowledge that there are certain busi- nesses which are so affected with a public interest that those who undertake them must serve the public properly. It is thus the character of the business which makes it public and this character it takes from the conditions surrounding the business. This is most clear in the case of those businesses which have by reason of physical limitation a natural monopoly. In such circumstances the ordinary laws of competition either practically fail to operate, or act but feebly. Natural limitation is used here in its widest sense. It is not confined to those obvious cases first considered where there is actual re- striction of supply, as in the case of water supply or nat- ural gas. It includes those physical limitations in the character of the supply which involve difficulties in its distribution, as in the case of gas supply or electric energy. It includes also those most fundamental limitations of space and time. It is the scarcity of sites that gives the grain elevator or the stock yard its practical monopoly. And it is because of the instant need of the customer that the telegraph and the ticker are classed as public neces- sities. As all these limitations are inherent, all of these instances are cases of natural monopoly. And it is sub- mitted that since this monopoly is essentially permanent, the situation requires the stern regulation of coercive law for those who undertake these services in order to protect those who must deal with them or go without adequate service. Topic A. Restriction of Supply 91. Limitation of the sources of supply. The case for public service is plainest in those few utilities where there are natural limitations upon the sources of supply which are essential to the business. [70] NATURAL MONOPOLY [ 92 This situation in itself gives some degree of monopoly to those who control the sources of supply most accessible to their market in preventing effective competition with the local service. Thus those who control the most ad- vantageous watershed have a natural monopoly of the supply of water in a given district; and so by established law they must supply all that apply to the extent of their undertaking. For the same reason those who have pre- empted the natural gas fields must deal without discrim- ination with the public which they have assumed to serve therefrom. It would be going too far doubtless at the present time to claim that it is accepted law that natural limitation of a public necessity necessarily makes its genera^ sale public employment. So long as those who have virtual monopoly of the anthracite coal fields are left free to charge what prices they please, the prin- ciple is in abeyance. And so long as those who have virtual control of the petroleum oil wells are left free to discriminate as they please between their customers, the duty is not recognized. But it may; be that in the fullness of time these now all too powerful purveyors to public needs will be brought within this law and subjected to public regulation. 92. Waterworks. The most conspicious example of an employment which is public in character by reason of the natural monopoly which it enjoys is the waterworks. The established com- pany possessing as it does almost invariably the water supply which is most accessible has a natural monopoly of the local market; indeed for that reason it almost always has in fact a permanent monopoly, no other com- pany being able to enter its field upon equal terms. As one of the earliest needs of a community is a supply of water for domestic uses, it has been always obvious that [71] 92] PUBLIC SERVICE CORPORATIONS this service is a public utility. Accordingly it was con- ceded almost from the first that the situation demanded coercive law. The extent to which this law takes the dis- position of the business out of the discretion of the cor- poration which provides the supply may be seen in Haugen v. Albina Water Company, 1 a late illustration. The defendant company laid a main through the street upon which the applicant lived, refusing, however, to supply water to persons living between certain limits. But Mr. Justice Lord said: "In such case, how can the defendant, upon the tender of the proper compensation, refuse to supply water without distinction to one and all whose property abuts upon the street in which its pipes are laid? If the supplying of a city or town with water is not a public purpose, it is difficult to conceive of any enterprise intrusted to a private corporation that could be classed under that head." 2 J 21 Oreg. 411, 28 Pac. 244, 14 L. R. A. 424 (1891). 2 In these cases the language used by the court in declaring that the supply of water is public in charac- ter is particularly significant: United States. Spring Valley Water Works v. Schottler, 110 U. S. 347, 28 L. ed. 173, 4 Sup. Ct. 48 (1884); Long Island Water Supp. Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 Sup. Ct. 718 (1897); Spring Valley Water Works v. San Francisco, 124 Fed. 574 (1903). Alabama. Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445, B. & W. 417 (1900). California. Spring Valley W. W. v. San Francisco, 82 Cal. 286, 16 Am. St. Rep. 116 (1890). F lorida. City of Tampa v. Tam- pa Water Works Co., 45 Fla. 600, 34 So. 631 (1903). [72] Georgia. Freeman v. Macon G. & W. Co., 126 Ga. 843, 56 S. E. 61 7L.R.A. (N. S.) 917 (1906). Illinois. C a r 1 y 1 e v. Carlyle Water L. & P. Co., 52 111. App. 577 (1893). Iowa. D es Moines v. Des Moines Water Works Co., 95 Iowa, 348, 64 N. W. 269 (1895). Kansas. Asher v. Hutchinson Water L. & P. Co., 66 Kans. 496, 71 Pac. 813, 61 L. R. A. 52 (1903). Kentucky. Franke v. Paducah Water Supply Co., 88 Ky. 467, 11 S. W. 432, 718, 4 L. R. A. 265 (1889). Maine. Kennebec Water Dis- trict v. Waterville, 97 Me. 185, 54 Atl. 6, 60 L. R. A. 856 (1902); Brunswick & T. Water District v. Maine Water Co., 99 Me. 371, 59 Atl. 537 (1904). Massachusetts. L u m b a r d v. Stearns, 4 Cush. 60 (1849). NATURAL MONOPOLY [93 93. Irrigation systems. That irrigation is a service which is public in character is well established. 1 The obvious explanation of this would seem to be the natural limitation of the water supply in those regions where irrigation systems must be constructed. It should be noted, however, that some of the courts in those States in their desire to put irrigation canals under public obligation, at first analogized them to common carriers. What led them to this comparison was the idea that the users of water were in effect appropriators, and the canal companies were carrying the appropriated water to its owners. But the forced character of this analogy to common carriage is now recognized. The most accurate statement of the actual situation is to be found in the leading case of Slosser v. Salt River Valley Canal Missouri. State ex rel. v. Joplin Water Works Co., 52 Mo. App. 312 (1893). Montana. State v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, 56 Am. St. Rep. 574 (1896). Nebraska. A m e r i c a n Water Works v. State, 46 Neb. 194, 64 N. W. 711, 50 Am. St. Rep. 610, 30 L. R. A. 447 (1895). New Jersey. Long Branch Com. v. Tintern Manor Water Co., 71 X. J. Eq. 790, 62 Atl. 474 (1906). New York. Rochester v. Roches- lor & Lake Ontario Water Co., 189 N. Y. 323, 82 N. E. 154 (1907). North Carolina. Griffin v. Golds- boro Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 (1898). Pennsylvania. Brymer v. Butler Water Co., 179 Pa. St. 231, 36 Atl. 249, 36 L. R. A. 260 (1897). Tennessee. Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Rep. 841, B. & W. 468 (1897). Texas. City Water Co. v. State (Tex. Civ. App.), 33 S. W. 259 (1895). Vermont. Re Barre Water Co., 62 Vt. 27, 20 Atl. 107, 9 L. R. A. 195 (1889). Washington. Tacoma Hotel Co. v. Tacoma L. & Water Co., 3 Wash. 316, 28 Pac. 516, 14 L. R. A. 669, 28 Am. St. Rep. 35 (1891). 1 United States. Fallbrook Irri- gation Dist. v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. 56 (1896); San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed. 1154, 19 Sup. Ct, 804 (1899); Souther v. San Diego Flume Co., 121 Fed. 347, 57 C. C. A. 561 (1903); Boise City Irrigation Co. v. Clark, 131 Fed. 415, 65 C. C. A. 399 (1904). Arizona. Gould v. Maricopa Ca- [731 94 ] PUBLIC SERVICE CORPORATIONS Company 1 where Mr. Justice Sloan said: "Some of the courts in the arid States have chosen to regard such corporations as, in a sense, public carriers. Inasmuch as, in the nature of things, their ability to supply the public with water must be limited, and as the consumers under the law of prior appropriation are not and cannot be upon the same footing as to their rights to the use of such water, the statutory term ' public acequia' much more accurately describes their character and status." 94. Natural gas. The conditions surrounding the supply of natural gas present natural monopoly in its most extreme form. The fields from which such gas can be drawn are extremely limited, so much so that in the case of any particular community there will not usually be many sources avail- able for its supply. This is true although there may be other fields in the surrounding territory which are not beyond the possibility of piping, since the product has such a high value in any community that it would not usually be commercially advisable to construct expensive lines to convey it to distant communities instead of selling nal Co., 8 Ariz. 429, 76 Pac. 598 Montana. Ellinghouse v. Taylor, ( 1904) ; Salt River Valley Canal Co., 19 Mont. 462, 48 Pac. 755 (1897). v. Nelssen, 10 Ariz. 9, 85 Pac. 117, Nebraska. Paxton & H. Irriga- 12 L. R. A. (N. S.) 711 (1906). tion Co. v. Farmers' & M. Irr. Co., California. Price v. Riverside 45 Neb. 884, 64 N. W. 343, 29 L. R. Canal & Irr. Co., 56 Cal. 431 A. 853, 50 Am. St. Rep. 585 (1895). (1880). Oregon. Umatilla Irrigation Co. Colorado. Wheeler v. No. Colo. v. Barnhart, 22 Oreg. 389, 30 Pac. Irr. Co., 10 Colo. 582, 17 Pac. 487, 37 (1892). 3 Am. St. Rep. 603 (1887). Texas. Moore-Cortes Canal Co. Idaho. Wilterding v. Green, 4 v. Gyle, 36 Tex. Civ. App. 442, 82 Ida. 773, 45 Pac. 134 (1896). S. W. 350 (1904). Kansas. Western Irrigation & Washington. Prescott Irrigation L. Co. v. Chapman (Kan.), 59 Pac. Co. v. Flathers, 20 Wash. 454, 55 1098 (1899). Pac. 635 (1899). 1 7 Ariz. 376, 65 Pac. 332 (1901). [74] NATURAL MONOPOLY [ 95 it in the most accessible market. These conditions in themselves make the inclusion of this service within the class of public services certain; indeed in relation to such companies the law of public services has been pressed to the furthest extremes, as will be seen. In one such case, State ex rel. Wood v. Consumers' Gas Company l in brush- ing aside the excuses of the company, Mr. Justice Hadley insisted upon unquestioning obedience to the whole pub- lic service law. " The principle here announced is not new. It is as old as the common law itself. It has arisen in a multitude of cases affecting railroad, navigation, telegraph, telephone, water, gas, and other like companies, and has been many times discussed and decided by the courts, and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which is affected with a public interest, it must supply all alike, who are like situated, and not discriminate in favor of, nor against any." 2 95. Water powers. It would seem that a power company organized to impound water and dispose of its flow is in practically the same position as an irrigation company, so far at least as this factor of natural monopoly is concerned. Indeed the 1 157 Ind. 345, 61 N. E. 674, 55 ship G. L. F. & P. Co., 69 Kans. 97, L. R. A. 245 (1901). 76 Pac. 448 (1904). 2 From the list of cases which New York. Bloomfield & R. N. recognize that the purveying of G. Co. v. Richardson, 63 Barb. 437 natural gas is affected with a public (1872). interest a few are selected for in- Ohio. Toledo v. Northwestern sertion here because their language Ohio Natural Gas Co., 5 Oh. C. C. is significant: 577(1890). Indiana. Rushville v. Rushville Pennsylvania. Johnson's Ap- Natural Gas Co., 132 Ind. 575, peal, 115 Pa. St. 129, 7 Atl. 167 28 N. E. 853, 15 L. R. A. 321 (1886). (1892). West Virginia. Charleston Nat. Kansas La Harpe v. Elm Town- Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410 (1901). [75] 95 ] PUBLIC SERVICE CORPORATIONS limitation is even more marked, since not only must there be an ample supply from the stream impounded but a considerable fall within a short distance. Thus the pos session of water power is perhaps the clearest example of natural monopoly, as people in general are just beginning to realize now that the most advantageous powers have been pre-empted by the farseeing few. All that remains that can be done is to protect the public from the abuse of this monopoly when the power is offered to the public for resale by those who have acquired it. The law reg- ulating the service of the public by those who are engaged in a business so circumstanced as to be public in character seems peculiarly necessary for the protection of the in- terests of the future against the abuse of the grants of the past. It would seem, therefore, that the law ought to be in readiness to deal with the disposition of water with the potentiality of power. In Sammons v. Kearney Power & Irrigation Company, 1 indeed, we have a case where a development company had entered into a contract with one taker of power, agreeing not to sell power to any other taker intending to compete with the original taker in the generation of electricity for sale. This contract was unanimously held void as inconsistent with the public duty, Commissioner Albert saying: "In the case at bar we are dealing with an irrigation company a quasi-public corporation. It is also a governmental utility. To the extent of its capacity it is bound to furnish water from its canal to persons desiring to use it on equal terms and without discrimination." But in the only other recent case squarely on the point a contrary view is taken as to the direct supply of water power. In Minnesota Canal & Power Company v. Koochching Company 2 the court held 1 77 Neb. 580, 110 N. W. 308, 8 2 97 Minn. 429, 107 N. W. 405, L. R. A. (N. S.) 404 (1906). 5 L. R. A. (N. S.) 638 (1906). The most of these modern au- [76] NATURAL MONOPOLY 95 that the creation of a water power for sale to mills located on the premises was not a public use, as a hydro-electric development is. "Water power from the wheels must be thorities are concerned with hydro- electric power development, but it is not perceived by the writer that these differ fundamentally in prin- ciple from the direct sale of water from the power canal. Massing these cases together to emphasize the point, the following cases hold water power distribution to be public in character provided that the proprietors profess as their principal business the sale of power to others, not the utilization of it in their own industries. United Stales. Walker v. Shasta Power Co., 160 Fed. 856, 87 C. C. A. 660 (1908). Georgia. Jones v. No. Georgia Electric Co., 125 Ga. 618, 54 S. E. 85, 6 L. R. A. (N. S.) 122 (1906). Idaho. Hollister v. State, 9 Ida. 8, 71 Pac. 541 (1903). Indiana. Stoy v. Indiana Hy- draulic Power Co., 166 Ind. 316, 76 N. E. 1057 (1906). Montana. Helena Power Trans- mission Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 507 (1907). New Hampshire. Rockingham L. & Power Co. v. Hobbs, 72 N. H. 531, 58^ Atl. 46, 66 L. R. A. 581 (1904). New York. Re East Canada Cr. Electric L. & Power Co., 49 N. Y. Misc. 565, 99 N. Y. Supp. 109 (1905). Oregon. Grande Ronde Electric Co. v. Drake, 46 Oreg. 243, 78 Pac. 1031 (1905). See contra, holding such power de- velopment not even public in char- acter: Maine. Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526 (1905). Washington. State ex rcl. v. Superior Court, 42 Wash. 660, 85 Pac. 666, 5 L. R. A. (N. S.) 672 (1906), and cases cited. The cases holding that those who utilize their own water power in their own private business have no right to enjoy eminent domain, are plainly distinguishable as there is no public profession. Illinois. Gaylord v. Sanitary Dist., 204 111. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235 (1903). Michigan. Berrien Springs Wa- ter Power Co. v. Berrien Circuit Judge, 133 Mich. 48, 94 N. W. 379, 103 Am. St. Rep. 438 (1903). The same is true in dealing with the remaining cases relating to hydro-electric power development; it should be recognized that the cases are entirely correct which hold invalid the grant of legal privileges to the proprietors of those power developments which do not profess to sell to the public indiscriminately. See: Vermont. Avery v. Vermont Electric Co., 75 Vt. 235, 54 Atl. 179, 59 L. R. A. 817, 98 Am. St. Rep. 818 (1902). Virginia. Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855 (1903). [77] 96, 97 ] PUBLIC SERVICE CORPORATIONS used at the wheels," said Mr. Justice Elliot for a bare majority, " and the actual result necessarily is that a very few individuals will use the power for manufacturing pur- poses to the exclusion of all others." Topic B. Scarcity of Sites 96. Scarcity of advantageous sites. It has already been remarked that the sites upon which certain services can be conducted to best advantage are few in number. The necessity of these locations to proper conduct of the business may be so great that those who are possessed of these sites may well be said to enjoy a nat- ural monopoly, since if others venture to establish them- selves at all at such disadvantage, their competition will be comparatively ineffectual. At all events those in the favorable locations could exact higher prices than would be fair, were it not for the fact that the law intervened. Of course the importance of the site depends upon the character of the business. Terminal facilities operated in connection with railway systems furnish the most strik- ing examples of this importance of particular sites. To a lesser extent this is true of those services which although not dependent upon an, exact location are operated with peculiar advantage in particular areas, such as ware- houses in business districts. 97. Grain elevators. The grain elevator furnishes the principal case upon the subject of the legal regulation of established monopoly. Any discussion of the foundations of our industrial rela- tions must give chief place to the case of Munn v. Illinois l '94 U.S. 113,24L.ed.77(1876). cited with approval hundreds of Munn v. Illinois is undoubtedly times, both in the Federal and the one of the leading cases in American State courts. See Rose's Notes on constitutional law. It has been U. S. Sup. Ct. Rep., vol. 9, pp. 21-55. [78] NATURAL MONOPOLY [ 97 since it is recognized that this case has within its view all public duties and all private rights which are established and respected under our system of government. Upon the right understanding of this case depends the true conception of our general theory of the function of State regulation. The facts of the case are worth careful examination. The General Assembly of Illinois in 1871 had passed a statute which provided a maximum rate beyond which no person should charge for the storage of grain in public elevators. The firm of Munn & Scott refused to obey the act, and accordingly were fined. They appealed the case from court to court until the Supreme Court of the United States was reached. The Supreme Court confirmed all the decisions which had been given below and decided against the defendant. It is to be noted that the proprietors of this elevator had no legal privileges whatsoever. The elevator of Munn & Scott stood upon land bought by them by private treaty; they had no rights in the public streets; they had no aid from the public treasury; they were not even incorporated. Here, then, is a case that raises the question of virtual monopoly without the com- plication of legal monopoly. And as a general problem, Mr. Justice Waite discusses it: "This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than two hundred years ago in his treatise De Portibus Maris, and has been ac- cepted without objection as an essential element in the law of property ever since. Property does become clothed [79] 98 ] PUBLIC SERVICE CORPORATIONS with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be con- trolled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he main- tains the use, he must submit to the control.". 1 Why is it true that in the elevation of grain, monopo- listic conditions generally prevail? Not by accidental co- incidence, but by natural limitation. The facts are that in any given community the plots of ground upon which this business may be conducted with convenience and efficiency are few and concentrated. In this case of the Chicago elevator those are the lots which both border upon the river and are adjacent to the terminals of the railroads entering the city. Thus grain elevators because of the nature of the traffic must be placed within a limited area, and thereby they have a virtual monopoly over their business. Their number cannot be indefinitely multiplied, and competition cannot effectively regulate their business. And where the regulation of competition ceases to work efficiently the law must step in. 98. Mechanical conveyors. It would seem that the same law would apply to any mechanical conveyor for transferring bulk freight in transit. In one case of this sort 2 a mechanical conveyor was operated upon a railroad wharf by a separate com- pany called the Erie Coal Transfer Company. This was 1 Munn v. Illinois, supra, was N. E. 670. For further discussion elaborately reaffirmed in Budd v. see 141, infra. New York, 143 U. S. 517, 36 L. ed. 2 Youghiogheny & Ohio Coal Co. 247, 12 Sup. Ct. 468, affirming a v. Erie Ry. et al., 24 Oh. Cir. Ct. notable opinion in 117 N. Y. 1, 22 289 (1902). [80] NATURAL MONOPOLY [ 99 constructed upon railway property under a special con- tract with restrictive conditions. It was held that it was in itself a public service. As a necessary consequence a grant to one shipper of coal of the exclusive use of the conveyor was held illegal as an unlawful discrimination. Judge Hall had this to say about the conveyor: "It was the means designed by both parties to be open to all shippers of that class of freight without discrimination; and it seems clear that while this arrangement remained in force, the whole plant, the tracks, the trestles and foundation which the railroad was bound to furnish, and the machine to be used and operated by the trans- fer company under the restrictions and conditions named in said contract were intended to be and were in fact devoted to a public use." * 99. Cotton presses. It would seem that the case of the cotton press would be quite analogous to the case of the grain elevator; for the service is almost as closely connected with transporta- tion, and is dependent for successful operation upon the proper location to almost the same extent. However, the conservative attitude in dealing with this service ap- parently still prevails. Some twenty-five years ago in Ladd v. Cotton Press Company, 2 it was held that the proprietors of a cotton press could discriminate in their charges between their patrons if they pleased. The court which decided this, however, recognized that it was deal- ing with a doubtful case, near to the line separating public employment from private business. But in the absence of legislation making it such, this court would not hold it to be a case of public calling. This conservative attitude 1 Compare Commonwealth v. a conveyor not put at their dis- Corey & Co., 2 Pittsburg, 444 (1863), posal by its owners, denying the public the right to use 2 53 Tex. 172 (1880). 6 [81] 100 ] PUBLIC SERVICE CORPORATIONS toward this whole problem is well presented in the opinion of Mr. Chief Justice Moore: "The business of warehousing and compressing cotton is free to every one who wishes to engage in it. No grant or franchise need be obtained from the State to authorize those desiring to do so to embark in this character of business. It is not one of the em- ployments which the common law declares public. Nor is it claimed to have been made so by statute. And we know of no authority, and none has been shown us, for saying that a business strictly juris privati will become juris publici merely by reason of its extent. If the mag- nitude of a particular business is such, and the persons affected by it so numerous, that the interest of society demands that the rules and principles applicable to public employments should be applied to it, this would have to be done by the legislature :f not restrained from doing so by the constitution before the demand for such an use could be enforced by the courts." 100. Stock yards. That the public stock yards are to be classed as public services must now be regarded as settled. In the most recent case 1 the modern argument is put in most excellent form. In holding the Wichita Union Stock Yards Com- pany subject to State regulation as a public service, Chief Justice Johnson emphasized the fact that a business may often be affected with a public interest although it has no special franchises; for, as he points out, where monopolistic conditions prevail, public necessity usually justifies State control. And in the case of stock yards this monopoly is largely due to position. " Because of the nature of the business and the railroad facilities, the es- tablishment of other markets at or near Wichita is 1 Ratcliff v. Wichita Union Stock- 6 L. R. A. (N. S.) 834, 118 Am. St. yards Co., 74 Kans. 1, 86 Pac. 150, Rep. 298 (1906). [82] NATTIEAL MONOPOLY [ 101, 102 impracticable, and hence these stock yards are, and of necessity will be, the only available place where the breeders, feeders and dealers of a great scope of country can conveniently market their live stock. The company has therefore a practical monopoly of a vast business affecting thousands of people who are almost obliged to deal at that market and at the rates which the company ...ay choose to charge." 1 101. Freight sheds. For ordinary freight not requiring special facilities for its handling, the railroad almost always maintains suffi- cient terminals. However, there are cases where the provision of freight terminals has been undertaken by outside parties. Such freight houses like other ware- houses 2 would seem to be public or private in character according to whether their proprietors undertake a general service for all consignees or confine the use of their fa- cilities to themselves and persons allied with them. Of this latter sort is the case usually cited to show that this business is not so public as to justify the grant of eminent domain to it. 3 102. Docks. It has been established from the earliest tunes that docks are at least public in character. Vessels calling at a port are forced to use the docks that are maintained there. And there will necessarily be few such docks since 1 In Cotting v. Kansas City L. & W. Ry. Co. v. Central Stock- Stockyards Co., 183 U. S. 79, 46 yards Co., 46 N. J. Eq. 280, 19 Atl. L. ed. 92, 22 Sup. Ct. 30 (1901), 185 (1889), it was intimated that a the United State Supreme Court court would not of its own motion held that stock yards were doing a feel justified in holding the stock work in which the public had a yards in public service, modified interest, and must there- 2 See 145, infra. fore be considered as subject to 3 See Memphis Freight Co. v. legislative regulation. In Delaware, Mayor, 4 Cold. 419 (1867). [83] 102 ] PUBLIC SERVICE CORPORATIONS the locations which are both upon deep water and near to the commercial centers will always be limited. All this necessarily calls for the law requiring public service from those proprietors who have given it out that their docks are public. A modern instance of this is Barrington v. Commercial Dock Company. 1 In that case Mr. Justice Gordon founded his opinion that this dock was public upon certain fundamental propositions: "When wharves belong- ing to individuals are legally thrown open to the use of the public, they become affected with a public interest. We think that in determining the character of the appellant's wharf, regard should be had to the use to which it has been devoted rather than its private ownership, and that upon the facts found the position of the appellant cannot be maintained. As well might the proprietor of a stage coach claim the right to discriminate upon the ground that the property employed in his business was private prop- erty. The doctrine, if maintained, would tend to promote and further monopolies which it is not the policy of our law to favor." 2 1 15 Wash. 170, 45 Pac. 748, 33 v. Graham & Ward, 117 Ga. 555, 43 L. R. A. 116 (1896). S. E. 1000 (1903). 2 Of the various cases showing Louisiana. Aiken v. Eager, 35 that the business of the wharfinger La. Ann. 567 (1883). is public in character the following New York. Buffalo v. Delaware, are selected because of the fullness L. & W. Ry., 39 N. Y. Supp. 4 of their reasoning: (1895). United States. See Transporta- Pennsylvania. Rogers v. Sto- tion Co. v. Parkersburg, 107 U. S. phel, 32 Pa. St. Ill, 72 Am. Dec. 691, 27 L. ed. 584, 2 S. Ct. 732 111 (1858). (1882). The cases which decide that a District of Columbia. District of wharf is not public unless the pro- Columbia v. Johnson, 1 Mackey, 51 prietors have in some way under- taken to permit the public in gen- Florida. Indian River Stb. Co. eral to utilize their facilities are not v. East Coast Transportation Co., inconsistent with the cases just 28 Fla. 387, 10 So. 480, 29 Am. St. cited. See: Rep. 258 (1891). United States Louisville & N. Georgia. Macon, D. & S. R. R. R. R. Co. v. West Coast Naval [84] NATURAL MONOPOLY [ 103, 104 103. Basins. As to artificial basins the case would seem still clearer. These will be few since they are constructed at great cost; and in ports where tidal conditions require them the proprietors have shipmasters at their mercy. Every ele- ment in the situation conspires to make it a case of virtual monopoly which must be under State control. Indeed these basins are usually constructed by the public au- thorities and opened to all at reasonable rates. What is said here again applies only to those proprietors who have opened their basins to many ships and are now refusing particular ones; for it is admitted that even in a business which is public in character, the obligation to serve the public rests only upon those who have professed to serve the public. Thus a New York decision 1 is to be sup- ported which holds that a basin to be used principally by its owners in their private business is not a public service; and that they consequently cannot properly exercise the right of eminent domain. 104. Dry docks. As there is practically no authority as to the nature of dry docks, it is impossible to say with any confidence whether they are public or private in character. 2 Those constructed by governments very commonly are open under various regulations for commercial use, and are conducted as public services therefore to a considerable extent. As to those docks maintained by private owners, Stores Co., 198 U. S. 483, 49 L. ed. Island S. S. Co. v. Visger, 86 N. Y. 1135, 25 Sup. Ct.745 (1905); Weems App. Div. 129, 83 N. Y. Supp. 325 Stb. Co. v. People's Stb. Co., 214 (1903). U. S. 345, 53 L. ed. 1024, 29 Sup. x Matter of Eureka Basin, 96 Ct. 661 (1909). N. Y. 42 (1884). New York. Alexandria Bay Stb. 2 In the Vidal Sala, 12 Fed. 207, Co. v. New York C. & H. R. R. R. the conduct of a dry dock is ex- Co., 18 N. Y. App. Div. 527, 45 plained (1882). N. Y. Supp. 1091 (1897); Thousand [85] 105 ] PUBLIC SERVICE CORPORATIONS these are not generally opened to the public indiscrimi- nately, but are used in connection with the private busi- ness of the proprietors. These may only be used by special arrangement by owners in general who wish to do their own work with their own force upon the vessel when the dock is dry; in such cases there is lacking the element of public profession. However, when the use of a dry dock may be had in regular course by those who apply, it should be decided that it is a public service. There is an obvious necessity for an accessible location upon deep water within city limits where the work may be done with the greatest facility. The need of the ship- owner is usually so pressing that he cannot make terms. Usually the cost of such docks is so great that even a very large port can support but few while very often there will be but one. All these factors in the situation give to the established dock that virtual monopoly which is charac- teristic of public employment. Although the dry dock has been used as the illustration what has been said would be equally true of other costly mechanisms for performing much the same service, such as marine rail- ways. 1 Topic C. Limitation of Time 105. Instant need creates monopoly. Another obvious restriction upon effective competition results from limitation of time. When the need of the applicant is immediate the person from whom he asks service has the upper hand. This monopoly may only be temporary; but it is none the less real. This insistent need for present service largely explains why the inn- keeper dealing with the wayfarer and the carrier bargain- ing with the shipper have always been held subject to 1 As to a floating dry dock, see Walsh v. New York Floating Dry Dock Co., 77 N. Y. 448 (1879). [861 NATURAL MONOPOLY [ 106 special law governing their dealings. It is the instant need also which gives to those agencies established for the rapid transmission of intelligence the virtual mo- nopoly which the telegraph and telephone obviously have. Here again this classification of the authorities cannot as yet be safely taken as a generalization as two recent cases will show. In one of these a physician * was held not liable for refusing service to a patient in a desperate con- dition; in the other an undertaker was held not bound to take charge of a corpse. 2 In both cases the need was ur- gent, and in the nature of things must always be. But perhaps in the community at present there are enough of such men always at hand to preclude the probability of injury by delay in the average case. Or perhaps the modern law balks at requiring personal service. 106. Innkeepers. Innkeeping as has already been shown, has been re- garded as a public calling from the earliest times. The same law continues to the present day, even when hotels are many; for it is still the truth that competition cannot be relied upon for the protection of the traveler. The need of the weary wayfarer will always be so immediate that did the law not interfere in his favor, he would pay often an exorbitant price rather than be turned back into the night to seek other accommodations. He has no time to choose, no opportunity to bargain. The innkeeper would almost invariably have the upper hand, the trav- eler for the moment be at the chance of his caprice, prej- udice, hatred, or greed, did not the law interpose itself. But the law has interfered from time immemorial. 3 The 1 Hurley v. Eddingfield, 156 Ind. 101 Ky. 368, 41 S. W. 301, 38 L. R. 416, 59 N. E. 1058, 83 Am. St. A. 505 (1897). Rep. 198 (1901). 3 Lane v. Cotton, 12 Mod. 472 2 Brewster v. Miller's Sons Co., (1701), and see cases cited in 12, supra. [87] 107 ] PUBLIC SERVICE CORPORATIONS public house where food is dispensed and lodging is pro- vided has always been beyond dispute one of the public services. 1 107. Hackmen. The hackmen who ply for hire have always been re- garded as in the employment of the public. Theirs is really one of the most striking cases of temporary monop- oly. In the case of any hackman his rival may be around the corner prepared to make a fair price; and yet as the traveler cannot bide his time he will often submit to an extortionate price rather than let a moment pass. For the time being the monopoly is effective; and, therefore, the necessity of regulating the business of hackmen upon the principles of public service law has long been appar- ent. At times hackmen who are hampered by the en- forcement of such regulations complain that they are unreasonable. In Fonsler v. Atlantic City, 2 for instance, it was contended that the ordinance of the city that re- 1 The following cases bring out L. R. A. 516, 19 Am. St. Rep. 573 the many factors which have caused (1890). the innkeeper to be held at the serv- Pennsylvania. Com. v. Mitchell, ice of the public in all ages: 2 Parsons, 431, 1 Phila. 63 (1850). California. Willis v. McMahan, Tennessee. Dickerson v. Rogers, 89 Cal. 156, 26 Pac. 649 (1891). 4 Humph. 179, 40 Am. Dec. 642 Kentucky. Kesten v. Hilde- (1843). brand, 9 B. Mon. 72, 48 Am. Dec. Vermont. State v. Stone, 6 Vt. 416 (1848). 295 (1834). Maine. Atwater v. Sawyer, 76 England. Thompson v. Lacy, Me. 539, 49 Am. Rep. 634 (1884). 3 B. & Aid. 283 (1820); Rex v. New Hampshire. Markham v. Ivens, 7 Car. & P. 213 (1835); Haw- Brown, 8 N. H. 523, 31 Am. Dec. thorn v. Hammond, 1 Car. & K. 209 (1837). 404 (1844); Rex v. Collins, Palmer, New York. Adams v. Freeman, '367, 373, 2 Rolle, 345 (1623); Rex 12 Johns. 408, 7 Am. Dec. 327 v. Smith, 65 J. P. 521 (1901); (1815). Lamond v. Richard, 1 Q. B. 541 North Carolina. State v. Steele, (1897). 106 N. C. 766, 11 S. E. 478, 8 70 N. J. L. 125, 56 Atl. 119 (1903). [88] NATURAL MONOPOLY [ 108 quired every hackman to take anyone who applied at the established rates unless the sign " engaged" was dis- played in good faith was unjustifiable. But Mr. Justice Garretson said, upon certiorari to dispose of a conviction under this ordinance: "We are unable to see that any of the regulations imposed by this ordinance are unreason- able. There is nothing unreasonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public street, to carry all persons applying to him for passage and legally tendering the fare, as common carriers are required to do." 1 108. Messenger service. It is a disputed question whether the city companies which furnish messenger boys on call are engaged in common carriage, but the cases seem to show that they are at least engaged in public employment. The need of those who employ messengers is generally immediate and the established company has usually virtual monop- oly. This business of furnishing boys is publicly solicited by them; and the company have a regular basis for in- stalling call boxes in congested districts. All that can be said with certainty as to the profession of such companies is that they undertake to provide their public with mes- sengers. It seems to be the better opinion that this reg- 1 That hackmen are at the service Iowa. Burlington v. Unterkir- of the public is generally recognized, cher, 99 Iowa, 401, 68 N. W. 795 see: (1896). Iowa. Bonce v. Dubuque St. Massachusetts. Copeland v. Dra- Ry. Co., 53 Iowa, 278 (1880), 5 per, 157 Mass. 558, 32 N. E. 944 N. W. 177, 36 Am. Rep. 221 (1880). (1893). New York. Brown v. New York Missouri. Trout v. Watkins L. Central & H. R. R. R. Co., 75 Hun, & V. Co. (Mo. App.) 130 S. W. 136 355 (1894), 27 N. Y. Supp. 69. (1910). On the other hand, liverymen who New Jersey. Atlantic City v. make no pretense of serving the pub- Dehn, 69 N. J. L. 233, 54 Atl. 220 lie can bargain as they please. See : ( 1903) . [89] 109,110] PUBLIC SERVICE CORPORATIONS ular service is not common carriage. 1 But it is not al- together impossible that in particular instances messenger companies might specially undertake as common car- riers. 2 109. Call boxes. I In connection with messenger service it is common for the corporation conducting the business to install call boxes upon the premises of their patrons. If this is done as a special favor for particular patrons it would be diffi- cult to show that this is. a part of the regular service pro- fessed. But if it is generally done for all customers in the same classification, the company could not refuse to install these boxes for an applicant of the same sort unless it had some personal defense. One other possible case of this class is that of the alarm service which for many years now has been maintained in large cities. The need of this protection by those engaged in certain lines of business is obvious. Moreover, the companies who install the call boxes must ask special privileges from the community to install its wiring system. 3 It would seem, therefore, that this service came within cases as to messenger call just discussed. Topic D. Difficulty of Distribution 110. Inherent limitations upon competition. Another natural limitation upon competition results from the character of the product. If the physical char- 1 District of Columbia. White v. 2 Maryland. American Dist. Tel. Postal Telegraph Co., 25 App. D. C. Co. v. Walker, 72 Md. 454, 20 Atl. 364 (1905). 1, 20 Am. St. Rep. 479 (1890). Massachusetts. Haskell v. Bos- New York. See Sandford v. ton Dist. Messenger Co., 190 Mass. Am. Dist. Tel. Co., 13 Misc. 88, 34 189, 76 N. E. 215, 2 L. R. A. (N. S.) N. Y. Supp. 144 (1895), and Oilman 1091, 112 Am. St. Rep. 324 (1906). v. Postal Telegraph Co., 48 Misc. New York. Hirsch v. Am. Dist. 372, 95 N. Y. Supp. 564 (1905). Telegraph Co., 98 N. Y. Supp. 371, Holmes v. Union Telegraph & 112 N. Y. App. Div. 265 (1906). T. Co., 16 N. Y. Supp. 563 (1891). [90] NATURAL MONOPOLY [ 111 acteristics of the product are such that it can only have a local distribution the barrier against outside competi- tion may fairly be said to be natural. Thus those who supply water through pipes are in public employment, while those who bottle water are not. And what after all is that element in the situation which makes the sale of gas a public employment while the vending of candles is a private business? Is it not this that the box of candles may be sent from any factory into any market, a condition which preserves virtual competition in every market, while a thousand cubic feet of gas can only be got from the pipes of the local company, which gives it control of the situation. When the market is thus lim- ited by the nature of the product it may fairly be said that the monopoly of the local company is natural. 111. Gas works. When the first works were constructed to furnish gas through mains laid in the public streets to various house- holders in the community at large, new conditions in the supply of illumination were created. In the first cases, as has been noted, the change in the conditions of supply whereby the local company had gained a virtual monop- oly was not appreciated, and it was said in the earlier American cases * that the proprietor of a gas works was free as the owner of any factory to sell his product as it should please him best. 2 The honor of being the first to 1 These cases still have an histor- Gas Light Co., 12 Allen, 75 ioal interest although they have long ( 1866) . since become obsolete even in the New Jersey. Paterson Gas Light jurisdictions which decided them. Co. v. Brady, 3 Dutch. 245, 72 Am. See 31, supra, for discussion of Dec. 360 (1858). them. New York. New York C. & H. Connecticut. McCune v. Nor- R. R. v. Metropolitan Gas Light wich Gas Co., 30 Conn. 521, 79 Am. Co., 63 N. Y. 326 (1875). Dec. 278 (1862). 2 This evolution in England is to Massachusetts. Com. v. Lowell be traced hi legislation. The earlier [91] 111] PUBLIC SERVICE CORPORATIONS point out the essential change wrought by these new conditions belongs to Mr. Justice Smith who held in Shepard v. Milwaukee Gas Light Company, 1 that the gas company was bound to sell its gas to every citizen of Milwaukee upon compliance with such regulations only as the company might rightfully impose. " Corporations of this kind," he said, "are not like trading or manufac- turing corporations whose productions may be transported from market to market throughout the world. Its manu- facture depends upon the consumption of the immediate neighborhood for its profit and success, and upon no other place. From the nature of the article, the objects of the company, their relations to the community, and from all the considerations before mentioned, it is to me apparent that the company is not at all analogous to an ordinary manufacturing or trading corporation." 2 gas companies act provided simply that these companies might make such arrangments as they pleased for the sale of gas to consumers. It was not until comparatively re- cently that the gas legislation was expanded to provide that these com- panies must serve all who made proper application. !6 Wis. 539, 70 Am. Dec. 479 (1858). 2 From the great number of modern decisions which hold gas companies subject to the obligation of the public service law, the fol- lowing are selected in which the general principle is well discussed: United Stales. Gibbs v. Con- solidated Gas Co., 130 U. S. 396, 32 L. ed. 979, 9 Sup. Ct. 553 (1889). Illinois. People's Gas Light & C. Co. v. Hale, 94 111. App. 406 (1900). Indiana. Portland Gas Co. v. [92] State ex rel. Keen, 135 Ind. 54, 34 N. E. 818, 21 L. R. A. 639 (1893). Kansas. In re Pryor, 55 Kan. 724, 41 Pac. 958, 29 L. R. A. 398, 49 Am. St. Rep. 280 (1895). Kentucky. Owcnsboro Gas Light Co. v. Hildebrand, 19 Ky. L. R. 983, 42 S. W. 351 (1897). Louisiana. New Orleans Gas Light Co. v. Paulding, 12 Rob. 378 (1845). Maine. Brunswick Gas Light Co. v. United Gas, etc., Co., 85 Me. 532, 27 Atl. 525, 35 Am. St. Rep. 385 (1893). Maryland. Gas Light Co. of Baltimore v. Colliday, 25 Md. 1 (1866). Massachusetts. Opinion of Jus- tices, 150 Mass. 592, 24 N. E. 1084 (1890). Michigan. Williams v. Mut. Gaa Co., 52 Mich. 499, 18 N. W. 236, 50 Am. Rep. 266 (1884). NATURAL MONOPOLY [ 112 112. Fuel gas. The same principles apply to the supply of gas for fuel. The only practical question seems to be whether the gas company has generally undertaken the supply of gas for fuel; it being apparently universally held that such supply is public in character. In a recent case 1 where the public character of this supply was questioned, the Supreme Court of West Virginia in an elaborate opinion pointed out the fundamental causes which make this service a public one, Judge Poffenbarger saying: "Heating being an agent or principle indispensable to the health, comfort and convenience of every inhabitant of our cities, we do not see why, through the medium of natural gas, it may not be as much a public service to furnish it to the citizens, as to furnish water. It is in- quired, why do not municipalities also purchase coal mines and issue their bonds therefor, and embark in the business of mining and selling coal to private consumers? An obvious reply is that coal and other fuel may be carried to the consumer by the ordinary channels of transpor- tation, at a comparatively moderate expense, while in conveying natural gas, streets must be opened, pipes laid, works erected, fixtures and machinery purchased, and other expenses incurred, beyond the enterprise and capital of an individual." 2 Missouri. Vanderberg v. Kan- Wisconsin. Madison v. Madi- sas City Gas Co., 126 Mo. App. son Gas & Electric Co., 129 Wis. 600, 105 S. W. 17 (1907). 249, 108 N. W. 65, 8 L. R. A. New Jersey. Public Service (N. S.) 529, 116 Am. St. Rep. 944 Corp. v. American Lighting Co., (1906). 67 N. J. Eq. 122, 57 Atl. 482 (1904). Charleston Natural Gas Co. v. Ohio Zanesville v. Gas Light Lowe, 52 W. Va. 662, 44 S., E. 410 Co., 47 Ohio St. 1, 23 N. E. 55 (1901). (1889). *In the following cases also the Oregon. Mackin v. Portland Gas supply of gas for fuel is treated as Co., 38 Oreg. 120, 61 Pac. 134, 62 public in character. Pac. 20, 49 L. R. A. 596 (1900). California. People ex rel. v. Los [93] 113 ] PUBLIC SERVICE CORPORATIONS 113. Electric plants. In the present generation a new method of illumination by electricity was devised which involved distribution from a central plant by a system of wires radiating through the localities served a very expensive plant to install. The essential features of the electric business were so like the main conditions in the gas business with its generating plant and pipe system that it was obvious from the outset that the same law of public service was to be enforced in this instance. Indeed, it is striking that in no adjudicated case has an electric light company ever squarely denied that there rested upon it the primary obligation to serve all. All this is most significant; for it shows that the law of public service has now such general acceptation that in any new instance similar in character it will be applied by the courts without hesitation. One of the latest cases as to electric lighting is Snell v. Clin- ton Electric Light Company, 1 where the company refused to furnish electric light to an applicant upon the same terms as to others. In his holding for this applicant Mr. Justice Carter stated the fundamental propositions involved in this way: "There is no statute regulating the manner under which electric light companies shall do business in this State. They are therefore subject only to the common law, and such regulations as may be im- Angeles Independent Gas Co., 150 Gas Co., 108 La. 67, 32 So. 179 Cal. 557, 89 Pac. 108 (1907). (1902). Illinois. People's Gas Light & Ohio. Toledo v. North Western Coke Co. v. Hale, 94 111. App. 406 Ohio Natural Gas Co., 6 Oh. N. P. (1900). 531 (1898). Indiana. Rushville v. Rushville Pennsylvania. Hoehle v. Alle- Natural Gas Co., 132 Ind. 575, 28 gheny Heating Co., 5 Pa. Sup. Ct. N. E. 853, 15 L. R. A. 321 (1892). 21 (1897). Kentucky. Nairin v. Kentucky 1 Snell v. Clinton Electric Light Heating Co., 27 Ky. L. R. 551, 86 Co., 196 111. 626, 63 N. E. 1082, 89 S. W. 676 (1900). Am. St. Rep. 341, 58 L. R. A. 284 Louisiana. State v. New Orleans (1902). [94] NATURAL MONOPOLY [H3 posed by the municipality which grants them privileges. Appellee, being organized to do a business affected with a public interest, must treat all customers fairly and with- out unjust discrimination. Both reason and authority deny to a corporation clothed with such rights and powers and bearing such a relation to the public the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. The company was bound to serve all its patrons alike; it could impose on the plaintiff in error no greater charge than it exacted of others." * 1 In the following cases the recog- nized public obligations of electric companies are discussed : United States. C a p i t a 1 City Light & Fuel Co. v. Tallahasse, 186 U. S. 401, 46 L. ed. 1219, 22 Sup. Ct. 866 (1902). Florida. Jacksonville Electric Light Co. v. Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540, 51 Am. St. Rep. 24 (1895). Georgia. Jones v. North Georgia Electric Co., 125 Ga. 618, 54 S. E. 85, 6 L. R. A. (N. S.) 122 (1906). Indiana. Beck v. Indianapolis Light & P. Co., 36 Ind. App. 600, 76 N.E. 312(1905). Kentucky. Owensboro Gas Light Co. v. Hildebrand, 19 Ky. L. Rep. 983, 42 S. W. 351 (1897). Louisiana. Strohmeyer v. Con- sumers' Electric Co., Ill La. 506, 35 So. 723 (1904). Maine. Edison U. M. Co. v. Farmington Electric L. & P. Co., 82 Me. 464, 19 Atl. 859 (1890). Massachusetts. Weld v. Gas & Electric Light Consumers, 197 Mass. 556, 84 N. E. 101 (1908). Minnesota. Minnesota Co. & Power Co. v. Koochiching, 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638 (1906), semble. Missouri. State ex rel. v. Allen, 178 Mo. 555, 77 S. W. 868 (1903). New Hampshire. American L. & T. Co. v. General Electric Co., 71 N. H. 192, 51 Atl. 660 (1901). New York. Armour Packing Co. v. Edison El. Co., 115 N. Y. App. Div. 51, 100 N. Y. Supp. 605 (1906). Ohio. Cincinnati R. R. v. Bowl- ing Green, 57 Ohio St. 336, 49 N. E. 121, 41 L. R. A. 422 (1897). Pennsylvania. Mercur v. Media Electric Light Co., 19 Pa. Sup. Ct. 519 (1902). Vermont. Avery v. Vermont Electric Co., 75 Vt. 235, 54 Atl. 179, 59 L. R. A. 817, 98 Am. St. Rep. 818 (1903), semble. Virginia. Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855 (1903), semble. Wisconsin. Madison v. Madi- son Gas & Electric Co., 129 Wis. 249, 108 N. W. 65, 8 L. R. A. (N. S.) 529, 116 Am. St. Rep. 944 (1906). [95] 114] PUBLIC SERVICE CORPORATIONS 114. Electric power. The supply of electric energy for power purposes, how- ever, has not yet been universally recognized as a public service, although it seems that there can be no real doubt as to the final outcome. It may be admitted that those cases which hold that electric power development is not a public employment when its proprietors do not under- take to serve the public indiscriminately are correct. 1 Distinguishing these cases thus, the cases which deny that the supply of electricity for power is public in char- acter are in a distinct minority. 2 Even in these jurisdic- tions the general supply of electricity for illumination is held to be a public employment as a matter of course. And where the company in question is supplying elec- tricity for both illumination and power the whole enter- prise is considered of a public nature. It is indeed diffi- cult to find any really essential differences between the supply of electricity for power and its sale for illumina- tion. Where, therefore, there is openly made a sufficient profession of public service, the supply of electricity for power would seem to be as plain a case of public employ- ment as the supply of electricity for illumination; and so the majority of the cases dealing with the problem now hold. 3 The actual point upon which the cases are di- 1 Vermont, Avery v. Vermont perior Court, 42 Wash. 660, 85 Pac. Electric Co., 75 Vt. 235, 54 Atl. 666, and cases cited (1906). 179, 59 L. R. A. 817, 98 Am. St. ^United States Walker v. Shasta Rep. 818 (1902). Power Co., 160 Fed. 856, 87 C. C. Virginia. Fallsburg Power & A. 660 (1908). Mfg. Co. v. Alexander, 101 Va. 98, Georgia. Jones v. No. Georgia 43 S. W. 194, 61 L. R. A. 129, 99 Electric Co., 125 Ga. 618, 54 S. Am. St. Rep. 855 (1903). E. 85, 6 L. R. A. (N. S.) 122 (1906). 2 Maine. Brown v. Gerald, 100 Idaho. Hollister v. State, 9 Ida. Me. 351, 61 Atl. 785, 70 L. R. A. 8, 71 Pac. 541 (1903). 472 (1905). Indiana. Stoy v. Indiana Hy- Washington. State ex rel. v. Su- draulic Power Co., 166 Ind. 316, 76 N. E. 1057 (1906). [96] NATURAL MONOPOLY [H5 vided just at present is whether eminent domain is jus- tified for such a purpose; but this really involves the character of the business. It is readily seen as is said in several of these cases that one of the essential and con- stituent obligations upon the part of the individual who attempts to exercise the power of eminent domain under these acts is that he shall serve all of the public fairly and without discrimination. Without such obligation of pub- lic service the legislation granting eminent domain would be unconstitutional. 1 115. Steam heat. As matters now stand all but an infinitesimal per cent of steam heating is done by private plants, almost always by the owner of the heated premises. There are some instances where steam is sold for heating purposes from near-by boilers, but as this is by special contract, without any holding out to serve the public in general, even this is not an instance of public business. There remain the Minnesota. Minnesota C. & Central Carolina Power Co., 80 Power Co. v. Koochching Co., 97 S. C. 512, 61 S. E. 1020 (1908). Minn. 429, 107 N. W. 405, 5 L. R. A. Utah. Salt Lake City v. Salt (N. S.) 638 (1906). Lake City W. & E. Power Co., 24 Montana. Helena Power Trans- Utah, 249, 67 Pac. 672, 61 L. R. A. mission Co. v. Spratt, 35 Mont. 648 (1902), semble. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 1 This is seen to be the issue in the 567 (1907). cases on both sides of this question. New Hampshire. Rockingham See particularly: County L., H. & P. Co. v. Hobbs, 72 Georgia. Jones v. North Georgia N. H. 531, 58 Atl. 46, 66 L. R. A. Electric Co., 125 Ga. 618, 54 S. E. 581 (1904). 85, 6 L. R. A. (N. S.) 122 (1906), the New York. Re East Canada court being convinced of this pub- Creek Electric Light & Power Co., lie obligation. 49 N. Y. Misc. 565, 99 N. Y. Supp. Maine. Brown v. Gerald, 100 109 (1905). Me. 351, 61 Atl. 785, 70 L. R. A. Oregon. Grande Ronde El. Co. 472 (1905), the court believing that v. Drake, 46 Oreg. 243, 78 Pac. 1031 there was no public service in- (1905). volved. South Carolina. McKeekin v. 7 [97] 116, 117] PUBLIC SERVICE CORPORATIONS cases (as yet very few for with present methods the loss in transmission is too large) of companies organized to supply steam through pipes placed in the public streets with the design of selling it to abutting owners. The very fact that they ask the use of the streets for this purpose is announcement enough of their public profession pro- vided that the business is public in character by reason of the nature of the service. But although the com- pany need not fear outside competition, 1 the consumer at present can perhaps better supply himself. 116. Refrigeration. Almost exactly the same argument may be repeated in regard to the modern method of supplying refrigeration by ice machines driving refrigerating fluids through pipes. Most of these plants are wholly devoted to the private business of their owners, with some considerable amount of incidental private sale. 2 However, there are cases of refrigeration plants in market districts with their pipes laid through the streets. It would seem that with the profession thus established, the business becomes public. It seems public in character because again the nature of the service makes outside competition practically im- possible. And the small dealer who finds his rivals served by such a company while he is himself refused may not improbably have a remedy at law. 117. Public need creates public interest. The most prominent thing in this chapter is perhaps 'Just what the status of these 2 In Matter of Rhinehart, 93 N. Y. companies is, it is difficult to affirm. App. Div. 410, 87 N. Y. Supp. 789 The only case dealing in any way (1904), it was held indispensable to with the matter seems to be Evans the legality of the use of streets for v. Boston Heating Co., 157 Mass, refrigeration pipes that the pro- 37, 31 N. E. 698 (1892), which prietor of the service should have really leaves their position undeter- assumed the obligation to serve all mined, applicants in their district. [98] NATURAL MONOPOLY 117 the attention paid to the public need in determining whether a business is so public in character that those who undertake it must serve the public in accordance with their profession. Where there are natural restric- tions particularly it behooves the State to see to it that those who are exploiting them upon a public basis should live up to their public profession, so that each member of the public may have his needs supplied in accordance with his requirements, so far as may be, at a reasonable price. This extraordinary activity of the law in behalf of the individual is, however, confined to necessary serv- ices. The law has little concern with the monopolization of unessential things. It subjects a "scenic railway" at an amusement park to no exceptional liabilities. 1 It leaves a circular railway built primarily to view the Niag- ara Gorge 2 outside the pale of State aid. And it leaves skating rinks 3 and theaters 4 to deal as they please with their public, and exclude whomsoever they choose. 1 In Meisner v. Detroit, B. I. & W. Ferry Co., 154 Mich. 545, 118 N. W. 14 (1908), it was said in pass- ing that theaters, circuses, race tracks, private parks, and the like are, in the absence of statutes regu- lating the business, private enter- prises, under the control of private persons, who may license the per- sons they will admit, and refuse ad- mission to others, and the right given to enter such places is a mere license which may be revoked. 2 Matter of Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429 (18S8). 3 Tombler v. Kcelling, 60 Ark. 62, 28 S. W. 795, 27 L. R. A. 502, 46 Am. St. Rep. 146 (1894). 4 Purcell v. Daly, 19 Abb. N. C. 301 (1886). 99 CHAPTER IV VIRTUAL MONOPOLY 120. Economic limitations create public employment. Topic A. Cost of the Plant 121. Financial limitations upon potential competition. 122. Canals. 123. Channels. 124. Railroads. 125. Railway terminals. 126. Railway bridges. 127. Car ferries. 128. Railway tunnels. 129. Union railways. 130. Belt lines. Topic B. Service on a Large Scale 131. Disadvantages of the individual. 132. Signal service. 133. Telegraph lines. 134. Wireless telegraph. 135. Submarine cables. 136. Telephone systems. 137. Ticker service. 138. Associated press. Topic C. Inadequacy of Available Substitutes 139. Insufficient substitutes for service. 140. Public stores. 141. Grain storage. 142. Tobacco warehouses. 143. Cold storage. 144. Safe deposit vaults. 145. Market places. 146. Stock exchanges. Topic D. Subordinate Services 147. Dependent position. 148. Port lighters. [100] VIRTUAL MONOPOLY [ 120, 121 149. Floating elevators. 150. Tugboats. 151. Switching engines. 152. Parlor cars. 153. Sleeping cars. 154. Refrigerator cars. 155. Tank cars. 156. Necessary regulation of virtual monoploy. 120. Economic limitations create public employment. The common fact in all the instances of public employ- ment which have been discussed thus far is virtual monop- oly. It matters not by what conditions this situation is established. The conditions which may produce virtual monopoly are various; and some of them will suffice alone. The effect of various natural limitations, such as available sources of supply, restricted opportunities of access, lim- ited time at disposal and difficulties in distribution have just been discussed. But of almost equal importance are other factors producing true economic monopoly by de- terring effectual competition, such as the cost of the plant, the large scale upon which the business is done, the ab- sence of effectual substitutes and the dependent position of the particular service. These elements in the general situation have doubtless already been taken into account unconsciously, but they are of such importance that they deserve full discussion. With all the factors which may produce virtual monopoly in mind it will be evident enough that in this general situation however established there is real danger to society calling for regulation by the State. Topic A. Cost of the Plant 121. Financial limitations upon potential competition. One usual characteristic of a public employment is the relatively large cost of the plant. In very many instances this runs high into millions which must be invested before [101] 122 ] PUBLIC SERVICE CORPORATIONS the service can be begun. This necessity of getting together so much capital limits fundamentally the amount of such construction. Canals and railroads furnish the chief examples of this. It would take perhaps twenty billion dollars to duplicate the present facilities for trans- portation; and it is, therefore, practically inconceivable that it will be done. Moreover, in most public services there is still another reason why capital is kept from investment in a competing service. As has been seen these are mostly local services and the capital invested must be sunk at the risk of failure in this one market. For example, an investment made in a gas works or an electric plant cannot be withdrawn; nor can the product be sold elsewhere. Thus to the enormous cost as a deterrent to competition is added the imminent risk of total loss in a desperate competition in which one must perish. 122. Canals. It is obvious that the great cost of a canal system as compared with the infinitesimal use which the individual boatman makes of the system puts the user entirely at the mercy of the company operating the existing canal. This is indeed characteristic of all highway use to which canal maintenance is most closely allied. As was said in a leading case 1 of a Wisconsin canal, "The canal of the defendant is a public highway, which all persons upon complying with all lawful requirements may navigate and use at their pleasure." 2 1 MoArthur v. Green Bay & M. Co. v. Shuman, 91 Ga. 400, 17 S. E. Canal Co., 34 Wis. 139 (1874). 937, 44 Am. St. Rep. ,43 (1893). 2 That canals are subject to the Louisiana. Sheldon v. New Or- law governing public service is leans Canal Co., 9 Rob. (La.) 360 shown by the following cases among (1844). others: New Jersey. Stewart v. Lehigh United States United States v. Valley R. R., 38 N. J. Law, 505 Ormsbee, 74 Fed. 207 (1896). (1875). Georgia. Savannah & O. Canal New York. Pennsylvania Coal [102] VIRTUAL MONOPOLY [ 123, 124 123. Channels. What has been said of canals is even more true of chan- nels. Necessary as these are for access to ports, the de- mands of the community so usually anticipate commercial practicability that the government is usually called upon to dredge them; and when completed the merchants are unwilling that their commerce should be hampered by the imposition of any considerable dues for their use. Hence it is unusual to find these channels constructed by private corporations. But whenever they are so con- structed there can be no doubt that the public must be given passage upon reasonable terms. This was squarely decided in Buffalo Bayou Ship Channel v. Milby & Dow, 1 where it was held that the channel company could not turn back a vessel upon the ground that the tugboat towing her owed tolls, Mr. Justice Walker saying: "This water channel or cut, owned and controlled by the defendant under its charter from the State was a public highway for vessels beyond question; and as such the owners of all vessels had a right to regard and to treat it, using it at their pleasure, subject to the lawful conditions imposed upon them therefor. A toll bridge, built in pur- suance of an act of the legislature, is a public highway; manifestly, this ship channel was so too." 2 124. Railroads. The common example of the cost of construction as the deterrent influence is the railway system. The fact must, however, be reckoned with that, notwithstanding this great Co. v. Delaware & Hudson Canal 1 63 Tex. 492, 51 Am. Rep. 668 Co., 31 N. Y. 91 (1865). (1885). Pennsylvania. Commonwealth 2 See Manistee River Improve- v. Delaware Canal Co., 43 Pa. St. ment Co. v. Lamport, 49 Mich. 295 (1862). 442, 13 N. W. 810 (1882). England. Case v. Midland Ry. Co., 27 Beav. 247 (1859). [103] 125 ] PUBLIC SERVICE CORPORATIONS first cost, the construction of competing railroad systems has in the past been not uncommon. But experience has proved the folly of such investments. The potential ca- pacity of an existing railroad is but seldom reached, so that the new railroad must fight for a traffic essential to both of them. There follows a death struggle, as the history of rate wars shows. The result of all this is that to-day even if the bodies granting franchises generally believed still that such duplication of plant was wise under such circumstances, the first cost accompanied by the recognized risk would largely prevent competition by parallel lines in most instances. The established railroad along its own route has therefore a virtual monopoly not sufficiently restrained even by potential competition. In this situation regulation by law is inevitable. Since the "Granger Cases" 1 at all events it has been accepted law that, without any of those charter provisions with which the public was wont in earlier days to safeguard it- self in granting franchises, the railroads are so affected by the public interest that they are subject to exacting regu- lation of their service. 2 126. Railway terminals. In many of the larger cities there are union stations owned by separate terminal corporations which are used in common by several railway companies which enter the city. These stations and their yards are constructed at great expense upon advantageous sites, almost always with 1 Peik v. Chicago N. W. Ry., 94 Ct. 334, 348, 349, 388, 391, 1191 U. S. 164, 24 L. ed. 97 (1876); Chi- (1886). cago, B. & Q. R. R. Co. v. Iowa, 94 2 It is needless to collect at this U. S. 155, 24 L. ed. 94 (1876); Chi- point the innumerable decisions cago, M. & St. P. R. R. Co. v. Ack- since that time which have held the ley, 94 U.S. 179, 24 L. ed. 99 (1876); railway systems subject to public Railroad Commission Cases, 116 regulation, as this forms in large U. S. 307, 29 L. ed. 636, 6 S. part the subject-matter of this book. [104] VIRTUAL MONOPOLY [ 125 the aid of eminent domain and very often with other special privileges. Naturally enough the question has already been raised whether these terminal corporations can refuse to admit other railroads which later apply for terminal facilities. There are already a few cases in which that issue has been squarely involved, State v. Jackson- ville Terminal Company : being perhaps the most promi- nent. In that case a mandamus was granted to enforce an order of the railroad commissioners of Florida directing the terminal company to permit the use of the station by the applicant railway at a reasonable compensation to be fixed by the commission. The court decided that the commission had constitutional power to issue this order, Mr. Justice Carter saying of the position of such a ter- minal company: "By undertaking to permit the use of this property by, and to furnish facilities for, one or more railroad common carriers it dedicates it to a use that is essentially public; and, to the extent that the public has an interest in that use, it must submit to be controlled by the public for the common good. The legislature may, therefore, for the common good, require it to admit all railroad coTrnmon carriers, to the extent of its capacity, which the public interest may demand, and to limit the charges for the uses and privileges of its terminal to reasonable compensation." 2 1 41 Fla. 363, 377, 27 So. 221, Commrs., 180 Mass. 274, 62 N. E. 225 (1899). 397, 62 L. R. A. 144 (1902). See also Union Ry. of Bait. v. Michigan. Fort Street Union Canton R. R. Co., 105 Md. 12, Depot Co. v. Morton, 83 Mich. 265, 65 Atl. 409 (1907). 47 N. W. 228 (1890). 2 In the following cases the public Missouri. Kansas City & N. C. character of railway terminals was R. R. Co. v. Baker, 183 Mo. 312, recognized: 82 S. W. 85 (1904). Illinois. Terre Haute & I. R. R. New Hampshire. Concord & M. Co. v. Peoria & P. Ry. Co., 182 111. R. R. Co. v. Boston & M. R. R. 501, 55 N. E. 377 (1899) semble. Co., 67 N. H. 464, 41 Atl. 263 Massachusetts. Sears v. Street (1893). [105] 126, ] PUBLIC SERVICE CORPORATIONS 126. Railway bridges. Railway bridges are sometimes constructed by inde- pendent companies with the design of selling running rights to various railways. Usually in the charters of such bridge companies it is expressly provided that they shall grant the trains of all railways that make proper application running rights over the bridge upon the pay- ment of reasonable tolls. But whenever a bridge company gains legal privileges by the acceptance of such a charter as it generally does, it should be clear whether its charter is mandatory or permissive that the bridge is put at the service of railways in general. As the United States Supreme Court 1 recently said of a bridge company whose charter was explicit (after remarking that there was no question in the particular case of the reasonableness of the compensation tendered by the railway applying, or the capacity of the bridge for the service asked). "The con- struction of the bridge, doing away as it did with the delay and annoyance of transportation across the river by ferry, added largely not merely to the value of the entire property, but also to the great convenience of the traveling and shipping public. The Act giving authority for a large issue of bonds thereby insuring the immediate construction of the bridge was accompanied by a proviso that upon reasonable compensation the use of the bridge should be accorded to other companies. Availing itself of the privileges conferred, the company accepted the Tennessee. Ryan v. Terminal Virginia. Commonwealth v. Co., 102 Tenn. Ill, 50 S. W. 744, 45 Norfolk & W. Ry. Co. (Va.), 68 L. R. A. 303 (1899). S. E. 351 (1910). But unless the proprietors of the 1 Union Pacific R. R. Co. v. union station have undertaken gen- Mason City & F. D. R. R. Co., erally to admit all railroads to its 199 U. S. 160, 50 L. ed. 134, 26 Sup. use they cannot be compelled to doso. Ct. 19 (1905). But see Evansville Illinois Tene Haute & I. R. R. & H. Traction Co. v. Henderson Co. v. Peoria & P. V. Ry. Co., 167 Bridge, 134 Fed. 973 (1904). 111. 296, 47 N. E. 513 (1897). [106] VIRTUAL MONOPOLY [ 127 amendment in its entirety and is bound by its terms as fully as though it had embodied them in a contract." 1 127. Car ferries. Car ferries are obviously like railway bridges. It would not be impossible to have such a ferry operated for the transportation of the cars of various companies, and it would then undoubtedly be considered a public service. But as a practical matter the investment is so relatively small for a railroad company that it would almost always operate its own ferry and then it would not be obliged to take the cars of other companies. The character of the business of these car ferries has been the subject of some litigation. The nature of this service was fully described in one of the earlier cases 2 in language which has since been quoted with approval by the United States Supreme Court. 3 "The boat of the defendants is provided with two railroad tracks, which prevent the entrance or egress of ordinary vehicles, and also of foot passengers, except as they are transported in cars which run upon the railroad tracks. The boat is exclusively used for the transporta- tion of railroad cars, in connection only with the arrival of trains. It is impossible to transport ordinary vehicles upon the boat, it is impracticable to transport foot pas- sengers, except as they are conveyed to the boat in cars. 1 In the following cases, bridges bridge companies are not common which have offered their facilities carriers. to railways in general were properly United States. Kentucky & I. considered to be public in charac- Bridge Co. v. Louisville & N. Ry., ter: 37 Fed. 567 (1889). United States. Canada Southern Texas. Southern Pacific Rail- Ry. v. International Bridge Co., 8 way Co. v. Patterson, 7 Tex. Civ. Fed. 190 (1881). App. 451, 27 S. W. 194 (1894). Missouri. Southern 111. & Mo. 2 Mayor v. New England Trans- Bridge Co. v. Stone, 174 Mo. 1, fer Co., 14 Blatch. 159 (1887). 73 S. W. 453, 63 L. R. A. 301 3 St. Glair County v. Interstate (1902). Transfer Co., 192 U. S. 454, 48 L. Although in public service such ed. 518, 24 Sup. Ct. 300 (1904). [107] 128, 129 ] PUBLIC SERVICE CORPORATIONS The whole arrangement of boat and docks is for the ingress and egress of railroad cars, and not for the accom- modation of anything else." 128. Railway tunnels. The case of a railway tunnel constructed and main- tained by an independent company through which the trains of various railways are hauled is more uncommon although not absolutely unknown. The situation is en- tirely analogous to those instances which have just been discussed, 1 and if in any way the tunnel company has assumed the obligation of serving various railways it should not be allowed upon general principles to dis- criminate between them. And it would then be true of such tunnels also that although in public service they would not be common carriers of the contents of the trains which pass through even if the trains are hauled by peculiar locomotives furnished by the tunnel company, since the possession of the goods or the control of passen- gers within the trains would not pass from the railways. 2 129. Union railways. A union railway constructed to enable various railways connecting with it to run their trains (usually solely freight trains) through to various terminal points, is prac- tically in the same position as the union station. In a recent case 3 the Union Railway of Baltimore chartered to provide running rights to the railways entering the city refused to make connections with the Canton Rail- 1 In one of the few cases which main for tunnel companies, Mc- have been found involving such Ewan v. Pennsylvania, N. J. & tunnel companies they are treated N. Y. Ry. Co., 72 N. J. L. 419, 60 as being subject to exactly the same Atl. 1130 (1905). law as bridge companies. St. Clair 8 Union Railway of Baltimore v. Tunnel Co. v. Powers, 138 Fed. 262 Canton R. R. Co., 105 Md. 12, 65 (1905). Atl. 409 (1907). 2 See also justifying eminent do- [108] VIRTUAL MONOPOLY [ 130 road. But the court held that such service was exactly within the duties resting upon the Union Railway in accordance with its charter. And as to the validity of such charter provisions, even in the form of subsequent amend- ments, Mr. Justice Jones said: "The grant therein, there- fore, to other corporations of the right to use its railroad was not an incongruous provision, but one similar to, and consistent with, the object of the incorporation. It can hardly be questioned that the Legislature could incor- porate a railroad company for the express purpose of building a railroad for the use of other railroads in getting their freight and the articles of traffic to tide water in conditions that would make it expedient or desirable to do so. There can be no difference in principle between a railroad company incorporated solely for such use and one incorporated with that as one of its purposes." 1 130. Belt lines. It is also not uncommon for the handling of traffic at large commercial centers, or at important junction points, to find a short line of railway operated by a company with a distinct charter connecting the various lines of railroad converging at this point. These are variously named: " Connecting railways," "junction railways," "belt lines," or "terminal railways," all denoting the special character of the service that is rendered. These transfer companies very commonly conduct the trans- portation themselves, furnishing the motive power, and 1 In the following cases the public gins Ferry Co., 208 Mo. 622, 106 character of such union railways is S. W. 1005 (1907). recognized: New Jersey. Nat. Docks Ry. United States Interstate S. Y. Co. v. Central R. R. Co., 32 N. J. Co. v. Union Ry. Co., 99 Fed. 472 Eq. 755 (1880). (1900). Pennsylvania. Windsor Glass Missouri. State ex rel. v. Wig- Co. v. Carnegie Co., 204 Pa. St. 459, 54 Atl. 329 (1903). [109] 130 ] PUBLIC SERVICE CORPORATIONS the train crew as well; and therein they differ from the various railways just discussed which generally undertake no more than to provide trackage or at most haulage. It is plainly true of such belt lines as serve their public indiscriminately in accordance with their profession that they are in a public employment and subject to public regulation. Thus in Norfolk & Portsmouth Belt Line Railroad v. Commonwealth, 1 upon an appeal of the com- pany from a judgment of the State Corporation Commis- sion reducing the price for an incidental switching service to twenty-five cents per car, the Supreme Court of Ap- peals of Virginia held this switching line to be a public service corporation and subject to the jurisdiction of the Commission. "If the power of the Commission is lim- ited merely to fixing the rate for carriage, and it is with- out authority so to regulate that service as to render it effective, it is obviously wholly inefficacious with respect to this large class of consignees and shippers. Upon the first assignment of error, therefore, the court is of opin- ion that the service in question is cognate to and so in- timately connected with the public service involved in the carriage and delivery of freight by the railroad company to patrons along its route as to constitute a part of such service, and, consequently, is subject to governmental control." 2 1 103 Va. 289, 49 S. E. 39 (1904). Mississippi. Yazoo & M. V. 3 The following cases bring out R. R. Co. v. Searles, 85 Miss. 520, the public nature of belt lines: 37 So. 939, 68 L. R. A. 715 (1904). United Slates. United States v. Nebraska. State ex rel. v. Union Sioux City Stockyards Co., 162 Stockyards Co., 81 Neb. 67, 115 Fed. 556 (190S). N. W. 627 (1908). Georgia. Dixon v. Cent, of Ga. Whether this switching service is Ry., 110 Ga. 173, 35 S. E. 369 common carriage in the strict sense BO as to make the transfering com- Kansas. Larabee Flour Mills v. pany liable as an insurer of all the Missouri Pacific Ry. Co., 74 Kans. property or persons within its con- 808, 88 Pac. 72 (1906). trol or disposition would seem to be [1101 VIRTUAL MONOPOLY [ 131, 132 Topic B. Service on a Large Scale 131. Disadvantages of the individual. Another characteristic of public employment is that the applicant who wishes an individual service of the kind rendered by the established company is almost always at great disadvantage relatively in supplying him- self. This is due largely to the obvious economies of op- eration upon a large scale. Two leading cases in the Su- preme Court of the United States bring this out. A grain elevator can handle grain at a fraction of what manual transfer would cost. Again a stock yard can care for a cow at a fraction of what a shipper would have to pay for the keep of a single cow elsewhere. Were it not for the coercive law of public service it is only too probable that these economies from service on a large scale would be largely retained by the serving company and not given to the public served. 132. Signal service. Many examples might be put of the disadvantages to which an individual would be put if he were refused serv- ice, by reason of the much greater cost to him of making arrangements to serve himself, for this is an element in the situation creating public employment which is very generally present. But it is proposed in this topic to confine the discussion to one class of callings where this factor is peculiarly prominent in modern times. For a question of fact. It is probable facts and the decisions of the two that more often than not such following cases, both of which seem switching is conducted without that to be correct on their facts, although assumption of actual possession apparently oppositely decided: Swift which is necessary to make out & Co. v. Ronan, 103 111. App. carriage strictly, but certainly where 475 (1902) common carriage not the connecting railway enters into found with Fleming v. Kansas the transportation scheme as a con- City Suburban Belt R. Co., 89 Mo. necting carrier it must be held liable App. 129 (1901) common car- as such. On this point compare the riage held established. [HI] 133 ] PUBLIC SERVICE CORPORATIONS the rapid intercommunication of intelligence there are widespread systems now established which it would be beyond the power of any individual to duplicate if he would; while for a small fee a message can be sent to any part of the world. These transmission systems had their beginnings about a century ago in the semaphore lines established across the country between certain important European cities. These continued to grow until they were altogether displaced by the discovery of the telegraph. There do not appear to have been any common-law de- cisions as to the character of this business as far as its commercial side had been developed. It is quite con- ceivable that a similar problem may arise in connection with submarine signaling, now in its experimental stage. 4 133. Telegraph lines. The telegraph by the middle of the last century was rapidly becoming a commonplace of everyday commerce. That without regulation by law the telegraph companies could dictate their own terms was obvious from the first in view of the general situation. And casting about for law to control them an analogy was forced between the transmission of a message and the carriage of a pack- age, because it was well recognized that in common car- riage reasonable service was obligatory. Almost from the earliest times, therefore, the telegraph service has been held to be a public employment. It is difficult to select one case for quotation among so many at one's disposal, but perhaps the various elements combining to make the telegraph service public in character are best set forth in short compass in a recent North Carolina case * where Mr. Justice Douglass said: "A telegraph com- pany is a quasi-public corporation private in the owner- 1 Green v. Telegraph Co., 136 R. A. 985, 103 Am. St. Rep. 955 N. C. 489, 49 S. E. 165, 67 L. (1904). [112] VIRTUAL MONOPOLY [ 133 ship of its stock, but public in the nature of its duties. It has all the powers of a private corporation, such as a separate legal existence, perpetual succession and free- dom from individual liability; and possesses also in addi- tion thereto the extraordinary privileges which under our Constitution can be exercised only by such corpora- tions as are organized for a public purpose, and then only when necessary for the proper fulfillment of such purpose. Among the extraordinary privileges enjoyed by such cor- porations is the condemnation of private property, which can never be taken for a private purpose. The accept- ance of such privileges at once fixes upon the corpora- tion the indelible impress of a public use. A telegraph company is essentially public in its duties. Without such public duties there would be neither reason for its creation nor excuse for its continued existence. In fact, being the complement of the postal service, it is one of those great public agencies so important in its nature and far reaching in its application that some of our wisest statesmen have deemed its continued ownership in pri- vate hands a menace to public interests." * 1 The cases involving the prop- graph Co. v. Hyer Bros., 22 Fla. osition that telegraph companies 637, 1 So. 129, 1 Am. St. Rep. 222 are in public service are practically (1886). innumerable; from this mass a se- Georgia. Dunn v. Western lection is made in which the gen- Union Telegraph Co., 2 Ga. App. eral principle is stated particularly 845 (1907). well: Illinois. Tyler & Co. v. Western United States. Western Union Union Telegraph Co., 60 111. 421, Telegraph Co. v. Call Publishing 14 Am. Rep. 38 (1871). Co., 181 U. S. 92, 45 L. ed. 765, 21 Indiana. Western Union Tele- S. Ct. 561 (1901). graph Co. v. Harding, 103 Ind. 505, Alabama New Orleans, M. & T. 3 N. E. 172 (1885). R. R. Co. v. Southern & A. Tele- Maine. Bartlett v. Western graph Co., 53 Ala. 211 (1875). Union Telegraph Co., 62 Me. 209, Arkansas. Western Union Tele- 16 Am. Rep. 437 (1873). graph Co. v. Short, 53 Ark. 434, 14 Massachusetts. Pierce v. Drew, S. W. 649 (1890). 136 Mass. 75, 49 Am. Rep. 7 (1883). Florida. Western Union Tele- Michigan. Western Union Tele- 8 [113] 134] PUBLIC SERVICE CORPORATIONS 134. Wireless telegraph. Within the last few years the transmission of electrical signals between distant points without the use of wire has become practicable by the use of a powerful appara- tus for sending and a delicate mechanism for receiving. Although the construction of a wireless telegraph system will be much less expensive than the usual plant required, still the fact will remain that when a sender brings a message to a wireless company, the service he asks is infinitesimal in comparison with the whole business of the company. And there can be no doubt whatever that whole law of ordinary telegraphing will be applied to wireless telegraphy. 1 "This action against a wireless tel- egraph company which first makes its appearance in this graph Co. v. Carew, 15 Mich. 525 (1867). Mississippi. Western Union Telegraph Co. v. Allen, 66 Miss. 549, 6 So. 461 (1889).. Missouri. Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 58 Am. St. Rep. 609 (1896). Nebraska. Pacific Telegraph Co. v. Underwood, 37 Neb. 315, 55 N. W. 1057, 40 Am. St. Rep. 490 (1893). New 1 Jersey. State v. American Com. News Co., 43 N. J. L. 381 (1881). New York.De Rutte v. New York, A. & B. Electric Magnetic Telegraph Co., 1 Daly, 547 (1866). Pennsylvania. New York & W. Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298, 78 Am. Dec. 338 (1860). South Carolina. Pinckney Bros, v. Western Union Telegraph Co., [114] 19 S. C. 71, 45 Am. Rep. 765 (1882). South Dakota. Kirby v. Western Union Telegraph Co., 4 So. Dak. 439, 57 N. W. 199 (1892). Texas. Western Union Tele- graph Co. v. Hamilton, 36 Tex. Civ. App. 300, 81 S. W. 1052 (1904). Utah. Wertz v. Western Union Telegraph Co., 7 Utah, 446, 27 Pac. 172, 13 L. R. A. 510 (1891). Vermont. Gillis v. Western Union Telegraph Co., 61 Vt, 461, 17 Atl. 736, 4 L. R. A. 611, 15 Am. St. Rep. 917 (1889). Virginia. Western Union Tele- graph Co. v. Reynolds Bros., 77 Va. 173, 46 Am. Rep. 715 (1883). 1 There is already a case in the books against one such wireless tele- graph company, not involving, how- ever, its duties to one wishing to send a message. Copland v. Amer- ican DeForest Wireless Telegraph Co., 136 N. C. 11, 48 S. E. 501 (1904). VIRTUAL MONOPOLY [ 135, 136 court proves the oft repeated observation that every phase of life, the customs, pursuits and progress of a people, soon or late, are photographed in the records of its courts as flies are preserved in amber and as the rays of the sun are imprisoned in the diamond." 135. Submarine cables. The argument of the necessary dependence of the per- son served upon getting the service asked is far greater in respect to the submarine cable; for alternative methods of transmitting intelligence are disproportionately dis- advantageous across the sea than across the land. As the first cable was laid many years after the first tele- graph was established the law was prepared to treat the cable like the telegraph, as indeed it is in the essential respect of the transmission of symbols to a distance by means of electricity. This unity of the problem under discussion is thus set forth by Mr. Justice Henshaw in Davis v. Pacific Telephone & Telegraph Company 1 where the general rule of considering telegraphs and telephones as interchangeable terms in statutory provi- sions was followed. "In the very early history of the telegraph it is a matter of common knowledge that there was an actual recordation of letters under the Morse code; that soon passed away and the telegraph operator of to-day receives by sound upon a principle no different from that which obtains in the telephone. Again in the case of submarine cables neither sound nor writing is always employed, but the varied deflections of an in- dicator within sight of the receiver serve the like purpose. The words, therefore, cannot be limited to their etymo- logical meaning." 136. Telephone systems. The best example of public duty based upon the virtual 1 127 Cal. 312, 59 Pac. 698 (1899). [115] 136 ] PUBLIC SERVICE CORPORATIONS monopoly of the established plant is the telephone com- pany. In the case of the telephone, duplicate services must be provided. From an economic point of view the duplication of plant that is necessary to make competi- tion possible in this public utility is sheer waste, with- out compensating advantages. From a business point of view this fact is a most effective deterrent; when one of these public services is established in a neighborhood, it is infrequent that men will be found to invest their money in the construction of another plant. Therefore, the best discussion of the nature of public calling is to be found in the cases concerning the telephone. And since almost all of these are common-law decisions, they disclose the essential tests by which public calling is established. From the many excellent decisions discussing the pub- lic nature of the telephone system, State v. Nebraska Tele- phone Company 1 is selected because of its full working out of the problem. In that case the company refused to comply with the relator's request for a telephone, giving various excuses which the court held invalid; and there- upon a mandamus was granted ordering the telephone company to fulfill its public duty to the applicant. Upon the general issue Mr. Justice Reese said: " While it is true, as claimed by respondent, that it has been organized under the general corporation laws of the State, and in some matters has no higher or greater right than an ordi- nary corporation, yet it is also true that it has assumed to act in a capacity which is to a great extent public, and has, hi the large territory covered by it, undertaken to satisfy a public want or necessity. This public demand can only be supplied by complying with the necessity which has sprung into existence by the introduction of the instrument known as the telephone, and which new de- mand or necessity in commerce the respondent proposes 1 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404 (1885). [116] VIRTUAL MONOPOLY [ 136 satisfying. It is also true that the respondent is not pos- sessed of any special privileges under the statutes of the State, and that it is not under quite so heavy obligations, legally, to the public as it would be, had it been favored in that way, but we fail to see just how that fact relieves it. While there is no law giving it a monopoly of the bus- iness in the territory covered by its wires, yet it must be apparent to all that the mere fact of this territory being covered by the 'plant' of respondent, from the very na- ture and character of its business gives it a monopoly of the business which it transacts. No two companies will try to cover this same territory. The demands of the com- merce of the present day makes the telephone a necessity. All the people upon complying with the reasonable rules and demands of the owners of the commodity patented as it is should have the benefits of this new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce so necessary in the prosecution of all kinds of business, unless supplied by the respondent." 1 1 The language used in the tele- T. Co. v. Kelly, 160 Fed. 316, 87 phone cases gives the best idea of C. C. A. 268 (1908). the prevailing conditions which de- Illinois. Chicago Telephone Co. termine public employment at com- v. Illinois Mfgrs. Assn., 106 111. App. mon law. 54 (1903). United States. Chesapeake & Indiana. Central Union Tele- Potomac Telephone Co. v. Man- phone Co. v. State ex rel. Falley, ning, 186 U. S. 238, 46 L. ed. 1144, 118 Ind. 194, 19 N. E. 604, 10 Am. 22 Sup. Ct. 881 (1902); State v. St. Rep. 114 (1888). Bell Telephone Co., 23 Fed. 539 Kentucky. Louisville Transfer (1885); Delaware & A. Telegraph Co. v. American District Telegraph & Telephone Co. v. State of Dela- Co., 1 Ky. L. J. 144 (1881). ware, 50 Fed. 677, 2 C. C. A. 1 Maryland. Chesapeake & Po- (1892); Cumberland Telephone & tomac Telephone Co. v. Baltimore [117] 137 PUBLIC SERVICE CORPORATIONS 137. Ticker service. The ticker service by which corporations organized for the purpose distribute by electrical devices quotations gathered at the exchanges is a striking example of a busi- ness given its public character by reason of its virtual monopoly. In an early New York case, 1 it was held that defendants are a public corporation under obligation to render their services impartially and without discrimi- nation to all persons who comply with their reasonable rules. And as has recently been held in an Indiana case, 2 when a general telegraph company buys the continuous quotations of a board of trade, and supplies them at a fixed price to such persons as desire them for such a 6 Ohio Telegraph Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167, B. & W. 183 (1886). Missouri. State v. Kinlock Tele- phone Co., 93 Mo. App. 349, 67 S. W. 684 (1902). Nebraska. Nebraska Telephone Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113 (1898). New Jersey. Duke v. Central N. J. Telephone Co., 53 N. J. L. 341, 21 Atl. 460 (1891). New York. People v. Hudson R. Telephone Co., 19 Abb. N. C. 466 (1887). Ohio. State v. Bell Telephone Co., 36 Oh. St. 296, 38 Am. Rep. 583 (1880). North Carolina. Godwin v. Caro- lina Tel. & Tel. Co., 136 N. C. 158, 48 S. E. 636 (1904). Pennsylvania. B e 1 1 Telephone Co. v. Commonwealth, 3 Atl. 825 (1886). South Carolina. State v. Citi- zens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 85 Am. St. Rep. 870 (1901). [118] Rhode Island. Gardner v. Provi- dence Telephone Co., 23 R. I. 312, 49 Atl. 1004, 50 Atl. 1014, 55 L. R. A. 113 (1901). Vermont. Commercial Union Telegraph Co. v. New Eng. Tele- phone Co., 61 Vt. 241, 17 Atl. 1071, 5 L. R. A. 161, 15 Am. St. Rep. 893 (1888). But see American Rapid Tele- graph Co. v. Connecticut Telephone Co., 49 Conn. 352 (1881), which, however, must now be regarded as obsolete. 1 Shepard v. Gold & Stock Tele- graph Co., 38 Hun, 338 (1SS5). See Smith v. Gold & S. Tel. Co., 42 Hun, 454 (1886). See also Davis v. Electric Report- ing Co., 19 Weekly N. C.5G7 (18S7). 2 Western Union Telegraph Co. v. State ex rel. Hammond Elevator Co., 165 Ind. 492, 76 N. E. 100, 3 L. R. A. (N. S.) 153 (1905). See also Board of Trade v. Christie Grain & Stock Co., 198 U. S. 236, 49 L. ed. 1031, 25 Sup. Ct. 637 (1905). VIRTUAL MONOPOLY [ 138 length of time that they become necessary to the success- ful conduct of business in the products covered by the quotations, it cannot, while continuing this business, re- fuse to supply them to anyone able to pay for them and willing to be governed by its reasonable rules and regu- lations in reference thereto. 138. Associated press. Whether an established monopoly is real or fictitious, natural or accidental, is the principal question. A funda- mental case that comes to mind at this point is Inter- Ocean Publishing Company v. Associated Press. 1 The plaintiff newspaper had regularly taken the news of the defendant bureau. One of the by-laws of the Associated Press forbade members from buying news of any other agency, notwithstanding which the plaintiff took specials of the Sun Publishing Association. Thereupon the As- sociated Press enforced its by-law against the plaintiff, which was the basis of the suit. In the Supreme Court of Illinois Mr. Justice Phillips held the by-law bad upon gen- eral principles. "The organization of such a method of gathering information and news from so wide an extent of territory as is done by the appellee corporation, and the dis- semination of that news, requires the expenditure of vast sums of money. It reaches out to the various parts of the United States, where its agents gather news which is wired to it, and through it such news is received by the various important newspapers of the country. Scarcely any news- paper could organize and conduct the means of gathering the information that is centered in an association of the character of the appellee because of the enormous expense, and no paper could be regarded as a newspaper of the day unless it had access to and published the reports from 1 184 111. 438, 56 N. E. 822, 48 L. R. A. 568, 75 Am. St. Rep. 184 (1900). [119] 139 ] PUBLIC SERVICE CORPORATIONS such an association as appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an association, and if they are prohibited from publishing it or its use is refused to them, their character as newspapers is destroyed and they would soon become practically worthless publications. The Associated Press, from the tune of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publication of that news became of vast importance to the public, so that public interest is attached to the dissemination of that news. The manner in which that corporation has used its franchise has charged its business with a pub- lic interest. It has devoted its property to a public use, and has, in effect, granted to the public such an in- terest in its use that it must submit to be controlled by the public for the common good, to the extent of the in- terest it has thus created in the public in its private property." l Topic C. Inadequacy of Available Substitutes 139. Insufficient substitutes for service. It is of course rare that the possibilities in any given case will be so restricted that if the applicant is refused service by the particular company no alternative is open 1 The following cases seem to be On the other hand, the following in accord with the principal case on cases seem to hold the news business general principles: as a private enterprise, at least un- United States. Board of Trade v. less it has professed general service. Christie Grain & S. Co., 198 U. S. Missouri. State v. Associated 236, 49 L. ed. 1031, 25 Sup. Ct. 637 Press, 159 Mo. 410, 60 S. W. 91, 51 (1905). L. R. A. 151, 81 Am. St. Rep. 368 Indiana. Western Union Tele- (1900). graph Co. v. State ex rel. Hammond New York. Matthews v. Asso- Elevator Co., 165 Ind. 492, 76 N. E. ciated Press, 136 N. Y. 333, 32 N. E. 100, 3 L. R. A. (N. S.) 153 (1905). 981, 32 Am. St. Rep. 741 (1893). [1201 VIRTUAL MONOPOLY [ 140 to him; usually in some way or other he could hit upon some way out in such a case. But the alternative of- fered will often be an inadequate substitute, disadvan- tageous to a greater or lesser degree. In such a situation there is no effectual competition to regulate the action of the original company, and without the interposition of the law there might be great oppression. A house- holder refused water by the established company might haul water from the river in hogsheads, but this method is obviously no real substitute. A traveler refused food and shelter might purchase provisions and tenting, yet he will pay an extortionate price rather than be put to that. Indeed the mere fact that there are two gas com- panies in a town is not enough to alter the fact that the situation is essentially monopolistic, for if one may re- fuse service, the other may also; and obviously where there are competing telephone systems the service of one is not a substitute for the other. 140. Public stores. The warehousing of staple commodities in the course of commercial transactions is to a certain extent uni- versally regarded as affected with a public interest. Where there is some legal privilege connected with the service, as in the case of the bonded warehouse, 1 or some special circumstances creating a monopoly as in the case of the wharfinger, 2 the courts hold the business public. And- in the case of the storage of certain staples there are decisions that the warehouses in question are public, such as grain elevators, 3 tobacco warehouses. 4 In view of these particular examples just mentioned it would seem that generalization is justifiable, that those who conduct the business of warehousing staples upon a pub- 1 See 54, supra. 3 See 141, infra. 1 See 102, supra. * See 142, infra. [121] 141 ] PUBLIC SERVICE CORPORATIONS lie basis owe peculiar duties to the public. And indeed that public warehousmen constitute at least a peculiar class is recognized in recent statutes 1 and to some extent in the current decisions concerning them. 2 141. Grain storage. That warehousing in general is public in character would seem to be proved by the later cases involving grain elevators. In Munn v. Illinois 3 it will be remem- bered the virtual monopoly of the Chicago elevators by reason of the scarcity of proper sites for conducting the business of transferring grain from railroads to lake boats was much insisted upon. But in a later case, Brass v. North Dakota, 4 where the validity of a statute applying generally in all circumstances throughout an entire State was questioned, the United States Supreme Court held the business of grain storage public in character, Mr. Justice Shiras saying, "When it is once admitted as it must be admitted here that it is competent for the legis- 1 In contemplation of such stat- 4 153 U. S. 391, 38 L. ed. 757, 14 utes a warehouseman is defined to Sup. Ct. 857 (1894). be the owner of a warehouse; one That the business of grain storage who, as a business, and for hire, may be regarded as public in char- keeps and stores the goods of others, acter is shown by the following a person who receives goods and cases: merchandise to be stored in his Illinois. Hannah v. People, 198 warehouse for hire. Butcher v. 111. 77, 64 N. E. 776 (1902). Commonwealth, 103 Pa. St. 528 Minnesota. Vega S. S. Co. v. (1883). Consolidated Elevator Co 75 2 Only such corporations as are Minn. 308, 77 N. W. 973, 43 L. R. A. authorized by the law under which 843, 74 Am. St. Rep. 484 (1899), they are organized to carry on the and cases cited. business of warehousemen can avail Missouri. Belcher Sugar Refin- themselves of the provision of said ing Co. v. St. Louis Grain Elevator act. Franklin National Bank v. Co., 101 Mo. 192, 13 S. W. 822, 8 Whitehead, 149 Ind. 560, 49 N. E. L. R. A. 801 (1890). 592, 39 L. R. A. 725, 63 Am. St. New York People v. Budd, 117 Rep. 302 (1898). N. Y. 1, 22 N. E. 670, 682, 5 L. R. A. 1 94 U. S. 113, 24 L. ed. 77 (1876). 559, 15 Am. St. Rep. 460 (1889). [122] VIRTUAL MONOPOLY [ 142 lative power to control the business of elevating and storing grain whether carried on by individuals or by as- sociations in cities of one size and in some circumstances, it follows that such power may be legally exerted over the same business when carried on in smaller cities and under other circumstances." 142. Tobacco warehouses. This commanding position, however established, is the persistent factor in the establishment of public em- ployment. The most extreme case of this sort is Nash v. Page, 1 involving the position of tobacco warehouses. That case was a controversy between the proprietors of ten of the tobacco warehouses in the city of Louisville, and the appellants, twenty-seven in number, who were dealers in tobacco. It appeared that the appellants had been denied the right to make purchases of tobacco at the warehouses of which the defendants were the pro- prietors, upon the basis of a general restriction which had been lately attempted to members of the Board of Trade. The opinion of Mr. Justice Pryor is one of the most significant on this subject: " Since the formation of the State government, the sale of this great staple has been fostered and protected by legislation. Such warehouses have always been regulated by law for the benefit of the producer as well as those who are proprietors of these warehouses, and the latter have assumed an obligation to the public which exists as long as they continue public warehousemen. It is a conceded fact that more than five millions in value of tobacco annually find its way from the producer to the warehouses in that city. The greater part of this product is grown within the State, and the producer has almost of necessity to place his tobacco under the control of and for sale by these several ware- 1 80 Ky. 539, 44 Am. Rep. 490 (1882). [123] 143 ] PUBLIC SERVICE CORPORATIONS housemen at public auction. All this tobacco must nec- essarily pass through these warehouses, subject to such charges as are reasonable and proper. Such a public duty may be imposed on these warehousemen in express terms or by implication, but whether so imposed or not, it arises from the facts of the case. In this great tobacco center the producer is restricted to these public ware- houses, or rather these public warehouses have a mutual monopoly of the sales of tobacco at auction, and the fact that there is more than one or a dozen such warehouses cannot affect the question." 1 143. Cold storage. It would seem that in view of the usual situation the law requiring public service might well be applied to the cold storage warehouses, so necessary are they hi the provision business; especially as the small dealer who is refused storage is at great disadvantage in many market contingencies. The few cases that relate to the obliga- tions of those conducting cold storage warehouses have already gone so far as to question the right of the pro- prietors to exempt themselves from neglect of their un- dertaking to maintain proper refrigeration. 2 At the same time it is, of course, clear that they are not like common carriers liable as insurers of the provisions stored with them. 3 1 Pannell v. Louisville Tobacco Minnesota. Minnesota B. & C. Warehouse Co., 113 Ky. 630, 68 Co. v. St. Paul Cold-Storage Ware- S. W. 662, 23 Ky. Law. Rep. 2423, house Co., 75 Minn. 445, 77 N. W. 82 S. W. 1141 (1902); Louisville 977, 74 Am. St. Rep. 515 (1899). Tobacco Warehouse Co. v. Com- ' Connecticut. Allen v. Somers, monwealth, 106 Ky. 165, 20 Ky. 73 Conn. 355, 47 Atl. 653, 52 L. R. Law Rep. 1747, 49 S. W. 1069, 57 A. 106 n., 84 Am. St. Rep. 158 L. R. A. 33 (1899) accord. (1900). 1 Michigan. Rudell v. Grand New Zealand. Canterbury Meat Rapids Cold Storage Co., 136 Mich. Co. v. Shaw & Co., 7 L. R. (N. Z.) 528, 99 N. W. 756 (1904). 708 (1889). [124] VIRTUAL MONOPOLY [ 144, 145 144. Safe deposit vaults. The question may arise in the near future whether the safe deposit vaults as at present conducted should not be obliged to serve all that apply in accordance with their undertaking. It would seem that many of the ele- ments that create public employment are present in their business. Their vaults are constructed at great cost, while the individual charge is relatively small; and they are not in fact numerous, although their service meets a real necessity in modern life. And particularly there is no sufficient substitute for the service they render in the use of a private safe, so that the person whom they might capriciously refuse would be at a real disadvantage. These elements taken together are by other analogies sufficient to put the business within the class of public services. 145. Market places. In accordance with the principles which have been brought out in this topic, it would seem probable that market places provided for the sale of necessary commod- ities are public in character. 2 The few modern cases that deal with this subject deal mostly with the provision of such market places by public authorities. That public powers may be exercised in the construction of such market places is indeed proof enough that their main- tenance is a public purpose. In justifying the taking of land by eminent domain for such a produce market for market gardeners, the Supreme Court of New York said: "It is a public market for the benefit of the public where the sale of certain commodities takes place and where therefore they can be found and the erection of 1 See Safe Deposit Co. of Pitts- 2 Ketchum v. Buffalo, 14 N. Y. burg v. Pollock, 85 Pa. St. 391, 27 356 (1856). Am. Rep. 660 (1877). [125] 146, 147 ] PUBLIC SERVICE CORPORATIONS which must consequently be regarded as a public con- venience. 146. Stock exchanges. It is an interesting question how far the law that has been developed in this chapter would go in justifying public regulation of the stock exchanges, which many people now demand. 2 The stock exchanges stood out against public opinion not long since, asserting their private right to make such arrangements as they pleased in making public their current quotations. But the law generally was found to be able to deal with this public demand for indiscriminate publication upon the common-law principles of public service, holding that the property right of the stock exchange in their current quotations had been impressed with a public use, and that they must see to it that all proper persons who ap- plied for such quotations were served indiscriminately. This general demand for the enforcement of obligations to the public upon exchanges by reason of their virtual monopoly is comparatively recent and its further develop- ment can hardly be predicted. 3 Topic D. Subordinate Services 147. Dependent position. For the conduct of certain public businesses connection with the facilities of another public service is necessary. 1 Matter of Cooper, 28 Hun, 515 pears to be American L. S. Com- (1883). mission Co. v. Chicago L. S. Ex- 2 As has been noted, the public change, 143 111. 210, 32 N. E. 274, necessity of maintaining an open 36 Am. St. Rep. 385, 10 L. R. A. market led the Kentucky court to 190 (1892), in which the court do- hold that all proper brokers must clined to decide upon common prin- be admitted to the privileges of the ciples that the exchanges were nee- tobacco auction rooms. Nash v. essarily public in character upon Page, 80 Ky. 539, 44 Am. Rep. 490 the ground that the case being (1882), discussed in 126, supra. doubtful, legislative declaration of 1 The ruling case at present ap- this was desirable. [126] VIRTUAL MONOPOLY [ 148, 149 The opportunity to carry on such dependent services at all is necessarily limited; and the dependent service is usually without competition. Thus the companies that furnish special passenger car service, as parlor cars and sleeping cars, are few in number; and so are the com- panies which provide special freight car service, as ex- press cars and refrigerator cars. This would be so by the nature of the case in any event; but since by the weight of authority it is permissible to make an exclusive contract with one subordinate company the situation is most usually one of complete monopoly. The same sit- uation leads to the same results in various terminal services also, such as those of hackmen and baggage transfer men, teamsters and truckmen. Most of these services which have just been listed are elaborately dis- cussed elsewhere. 148. Port lighters. In all ports there are lightermen ready for employment by the shipping public. 1 So important are these to casual shippers that there is high probability of serious abuse of their practical monopoly which they have for the time being. By the situation itself they seem to be affected with a public interest and, therefore, subject to public regulation. The public character of their business is shown by the fact that if such lightermen take actual possession of the goods they are handling they are held to be common carriers; but if the owner retains control they are of course not carriers at all 2 within this rule. 149. Floating elevators. In large ports where grain is commonly transshipped, 1 The most of the law as to light- 2 Boyes v. Moss & Co., 18 Viet, erage is to be found in the early L. R. 225 (1892). case of Liver Alkali Co. v. Johnson, L. Rep. 9 Exch. 338 (1874). [127] 150 ] PUBLIC SERVICE CORPORATIONS floating elevators will usually be found which are at the disposal of shipping interests in general. These elevators in the port of New York, for example, proceed under their own power to the dock or anchorage indicated upon order and charge fixed rates for elevating grain from canal boats to ocean steamships. These elevators in New York are subject to the same regulation as other grain eleva- tors. In the leading case : this regulation is justified squarely upon the existence of virtual monopoly in all kinds of grain elevating. "In the harbor of New York the evidence informs us at least five different business firms operate and control floating elevators and that charges are fixed by a committee of the Produce Exchange, of which body some or all of these firms are members. It is apparent, therefore, that the opportunity for vir- tual monopoly is the same in each case." 150. Tugboats. Tugboats play an indispensable part in the commerce of a port, principally towing sailing vessels, helping steamships, and incidentally moving about barges and lighters, floats and scows. In performing these services which have been described it is obvious that the tugboat does not act as a carrier, as the possession of the goods remains with the vessel. And therefore the many cases holding that such incidental towage is not common car- riage and not subject to the extreme liabilities which the common law lays upon common carriers are undoubtedly correct as towage is usually conducted. 2 On the other hand, it would seem to be true that as conducted in most 1 Matter of Annon, 50 Hun, 413 Mississippi Valley Transp. Co., 24 (1888), affirmed in 117 N. Y. 621. La. Ann. 165, 13 Am. Rep. 120 2 Compare Alexander v. Greene, 3 (1872), holding a towing line a Hill, 9, 7 ibid. 533 (1842) and cases common carrier. For full citation cited, 173, infra, holding towage on these points see 173, infra. not carriage with Bupsey & Co. v. [128] VIRTUAL MONOPOLY [ 151, 152 ports, tugboat service is so affected with a public interest as to be subject to public regulation. It is with this impelling them that some cases have gone so far as to hold this service to be common carriage; but as will be seen later, these cases upon examination will usually prove to involve more than mere towage. 161. Switching engines. The switching engines perform . a similar service for freight cars that towboats do for freight barges. Such haulage is not usually common carriage 1 any more than towage is; for in neither case is possession assumed in con- ducting the transportation. The position of these belt lines has already been considered. It is enough at this point to refer again to these decisions in which such transfer service is held to be common carriage and sub- ject to that law but under circumstances essentially dif- ferent from the mere switching here described. 2 152. Parlor cars. There is an obvious public demand for car service different from the ordinary coach provided by the rail- roads generally. Upon long runs a sleeping car is an absolute necessity and so is a dining car, unless as rarely happens the journey is broken by the train stopping for the night at a convenient town where hotel accommodation may be had, or as often happens the train is scheduled to stop at eating houses. Moreover, although there is not the actual necessity, perhaps, there is a public demand 'See: 2 See: United States. Kentucky & I. Nebraska. State ex rel. v. Union Bridge Co. v. Louisville & N. Ry., Stockyards Co., 81 Neb. 67, 115 37 Fed. 567 (1889). N. W. 627 (1908). Illinois. Swift & Co. v. Ronan, Virginia. Norfolk & P. Belt 103 111. App. 475 (1902). Line v. Commonwealth, 103 Va. And see 150, supra. 289, 49 S. E. 39 (1904). See 181, following. 9 [ 129 ] 153 ] PUBLIC SERVICE CORPORATIONS for parlor cars for day travel, and this is within the public service professed when such facilities are offered. It is much the same here as with smoking cars. It is doubtful if there is any obligation to provide them, but if they are offered they are open to all desirous of using them for smoking. At all events "the business of running drawing- room cars in connection with ordinary passenger cars has become one of the common incidents of passenger traffic on the leading railroads of the country." 1 163. Sleeping cars. It is as to sleeping cars particularly that the most of litigation has taken place, and the part played by these car companies has been worked out. In the insistent de- sire to put these companies under public obligations, the contention has sometimes been made that the sleeping car was a sort of public inn, as one exceptional case 2 held, or a common carrier, as another exceptional case decided. 3 A sleeping car is not an inn; 4 hi reality it is a facility for 1 Quoted from Thorpe v. New Smith, 73 111. 360, 24 Am. Rep. 258 York C. & H. R. R. R., 76 N. Y. (1874). at p. 407 (1879). Indiana Woodruff S. & P. C. * Pullman P. C. Co. v. Lowe, 28 Co. v. Diehl, 84 Ind. 474, 43 Am. Neb. 239, 44 N. W. 226, 6 L. R. A. Rep. 102 (1882). 809, 26 Am. St. Rep. 325 (1889). Massachusetts. Whicher v. Bos- Pullman P. C. v. Lawrence, 74 ton & A. R. R., 176 Mass. 275, 57 Miss. 782, 22 So. 53 (1897). N. E. 601, 79 Am. St. Rep. 314 4 United Slates. Blum v. South- (1900). era P. P. C. Co., 1 Flip. 500, Fed. Mississippi Illinois C. R. R. Cas. No. 1,574 (1876). v. Handy, 63 Miss. 609, 56 Am. Alabama. Pullman P. C. Co. v. Rep. 846 (1886). Adams, 120 Ala. 581, 24 So. 921, 74 New York. Welch v. Pullman P. Am. St. Rep. 53, 45 L. R. A. 767 C. Co., 16 Abb. Pr. (N. S.) 352 (1898). (1874). Georpta. Pullman's P. C. Co. v. Tennessee. Pullman P. C. Co. Hall, 106 Ga. 765, 32 S. E. 923, 44 v. Gavin, 93 Tenn. 53, 23 S. W. L. R. A. 790, 71 Am. St. Rep. 293 70, 42 Am. St. Rep. 902, 21 L. R. A. (1899). 298 (1893). Illinois Pullman P. C. Co. v. [130] VIRTUAL MONOPOLY [ 153 a traveling passenger. Nor is it a carrier, 1 for the rail- road is that. Though neither an innkeeper nor a carrier, the sleeping-car company is engaged in an analogous public employment, and must serve such members of the public as are within the class which it undertakes to serve. 2 As Mr. Justice Mulkey said in Nevin v. Pullman Palace Car Company: 3 "The running of these sleepers has become a business and social necessity. Such being the case, can it be maintained the law imposes no obligations or restrictions on this company in the discharge of its duties to the public? Or, more accurately put, is it true that this company owes no duties to the public except such are due from one mere private person to another? Can it be possible that the common carrier, the ferryman, the innkeeper, and even the blacksmith on the roadside, are all, by mere force of law, placed under special obliga- tions and duties to the public which they are bound to observe in the exercise of their respective callings, while, at the same time, this company is entirely relieved from 1 United States. Lemon v. Pull- Massachusetts. Dawley v. Wag- man P. C. Co., 52 Fed. 262 (1887). ner P. C. Co., 169 Mass. 315, 47 Alabama. Pullman P. C. Co. v. N. E. 1024 (1897). Adams, 120 Ala. 581, 24 So. 921, New York. Tracy v. Pullman 74 Am. St. Rep. 53, 45 L. R. A. P. C. Co., 67 How. Pr. 154 (1884). 767 (1898). 2 See especially: Colorado. Pullman P. C. Co. v. United States. Searles v. Mann Freudenstein, 3 Col. App. 540, 34 Co., 45 Fed. 330 (1891). Pac. 578 (1893). Illinois. Nevin v. Pullman P. Georgia. Pullman's P. C. Co. v. C. Co., 106 111. 222, 46 Am. Rep. Hall, 106 Ga. 765, 32 S. E. 923, 688 (1883). 71 Am. St. Rep. 293 (1899). Massachusetts. Lawrence v. Illinois. Pullman P. C. Co. v. Pullman P. C. Co., 144 Mass. 1, Smith, 73 111. 360, 24 Am. Rep. 258 10 N. E. 723 '59 Am. Rep. 58 (1874). (1887). Indiana Woodruff S. & P. C. Texas. Pullman P. C. Co. v. Co. v. Diehl, 84 Ind. 474, 43 Am. Booth (Civ. App.), 28 S. W. 719 Rep. 102 (1882). (1894). Kentucky. Pullman P. C. Co. 3 106 111. 222, 46 Am. Rep. 688 v. Gaylord, 9 Ky. L. Rep. 58 (1887). (1883). [131] 154, 155 ] PUBLIC SERVICE CORPORATIONS the observance of all such duties and obligations which are not expressly contracted for? We think not. To so hold would be to unjustly discriminate between parties similarly situated, and make the law inconsistent with itself, to the great detriment of the public." 154. Refrigerator cars. Similar in character is the special freight car service now so prevalent in railroad operation. To meet certain needs of certain classes of shippers car companies are or- ganized which provide the appropriate equipment. Thus there are companies providing refrigerator cars and venti- lator cars for special uses, and tank cars and stock cars for certain traffic. The position of these private freight car services is substantially similar to that of the private passenger car services just discussed; it is again not a case of common carriage, the railway company performs the carriage, the car company furnishing merely addi- tional conveniences. Thus, to take as one prominent example, the refrigerator car line. Although not tech- nically a carrier, the refrigerator car line is carrying on a business which is of public importance in connection with the railway, and like the sleeping-car company, it is there- fore engaged in a public employment which, though not identical with that of a common carrier, is analogous to it, and imposes similar legal obligations upon the corpo- ration. 1 156. Tank cars. To take another illustration, the same thing would be true of a tank car line. As a matter of fact the tank car lines seem usually to have been owned or controlled by private shippers and used by them for their own ship- 1 See the discussion of this prob- lem in Re Transportation of Fruit, 10 Int. Com. Rep. 360 (1904). [132] VIRTUAL MONOPOLY [ 156 ments only. In such a case there seems to be no question of public employment since there is no undertaking to serve people generally. 1 But although not technically carriers, the conductors of the private car business as a class, when upon a public basis, are necessarily in the public employment and engaged in a calling analogous to that of the common carrier; and statutory regulations adopted for the control of common carriers often apply to them. 156. Necessary regulation of virtual monopoly. A review of all of the instances which have been cited in the course of this whole discussion will show that this conception of virtual monopoly will cover everything. Nothing narrower will do, as for example the difference sometimes put forward between the undertaking of a public service in contradistinction to the furnishing of a public supply. Now, it is true that most of the cases are cases of service the railway and the warehouse, for example; but other of the cases are of supply, the water- works and gas works, for instance. Indeed, there is nothing in this distinction, either in economics or in law. It is submitted that any business is made out to be public in character where there is a virtual monopoly inherent in the nature of things. If virtual monopoly is made out as the permanent condition of affairs in a given business, then the law, it seems, will consider that calling 1 public in its nature. On the other hand, if effective com- petition is proved as the regular course of things in a given industry, the law will hold all businesses within it as private in their character. Under our constitutional system a distinction is made upon this line. In the pub- lic calling, regulation of service, facilities, prices and dis- 1 See the discussion of this prob- & T. P. Ry., 47 Oh. St. 130, 23 lem in State v. Cincinnati, N. O. N. E. 928, 7 L. R. A. 319 (1890). [133] 156 ] PUBLIC SERVICE CORPORATIONS criminations is possible to any extent. Monopolistic con- ditions demand such policy; and at no period in history has this been more apparent than now. In the private callings no such legislation should be permitted. Where competitive conditions prevail there should be freedom; and at no epoch in our industries has it been more im- portant to insist upon this. [134] CHAPTER V COMMON CARRIAGE AS A PUBLIC EMPLOYMENT 160. Who are common carriers. Topic A. Carriers of Goods 161. Pack carriers. 162. Wagoners. 163. Porters. 164. Hoymen. 165. Shipmasters. 166. Canal boats. 167. River craft. 168. Draymen. 169. Truckmen. 170. Furniture movers. 171. Baggage transfer. 172. Steamboats. 173. Towing lines. 174. Wagon trains. 175. Automobile lines. 176. Railways. 177. Industrial railways. 178. Express companies. 179. Pneumatic tubes. 180. Dispatch companies. 181. Fast freight lines. Topic B. Carriers of Passengers 182. Ferries. 183. Ships. 184. Stagecoaches. 185. Omnibus lines. 186. Hacks. 187. Taxicabs. 188. Passenger railways. 189. Street railways. 190. Elevated railways. [135] 160] PUBLIC SERVICE CORPORATIONS 191. Underground railways. 192. Interurban railways. 193. Passenger elevators. 194. Moving platforms. 195. Pleasure railways. 196. Common carriage as a public employment. 160. Who are common carriers. As will be seen later in more detail, common carriage involves a particular kind of service. * The conception of carriage itself involves not only transportation but control during the transit. To be common carriage this partic- ular business must be upon the basis of public service. In this view of it there are various callings which although upon a public basis are not common carriage, although once analogized to it to bring them within the law govern- ing public service at a time when the extent of that law 1 Good definitions of common car- riage abound. See the following cases among others: United States. United States v. Sioux City Stockyards Co., 162 Fed. 556 (1908). Alabama. Babcock v. Herbert, 3 Ala. 392, 37 Am. Dec. 695 (1842) Georgia. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847). Illinois. Illinois Central R. R. v. Frankenberg, 54 111. 88, 5 Am. Rep. 92 (1870). Kentucky. Robertson v. Ken- nedy, 2 Dana, 430, 26 Am. Dec. 466 (1834). Maryland. Carpenter v. Balti- more & O. R. Co. (Md.), 64 Atl. 252 (1906). Massachusetts. Dwight v. Brew- ster, 1 Pick. 50, 11 Am. Dec. 133 (1822). Nebraska. State ex rel. v. Union [136] Stockyards Co., 81 Neb. 67, 115 N. W. 627 (1908). New Hampshire. S h e 1 d e n v. Robinson, 7 N. H. 157, 26 Am. Dec. 726 (1834). New Jersey. Mershon v. Hoben- sack, 22 N. J. L. 372 (1850). New York. Alexander v. Greene, 7 Hill, 533 (1844). Oregon. Honeyman v. Oregon, etc., R. Co., 13 Oreg. 352, 10 Pac. 628, 57 Am. Rep. 20 (1886). Pennsylvania. Gordon v. Hutch- inson, 1 W. & S. 285, B. & W. 3, 37 Am. Dec. 464 (1841). South Carolina. Bamberg v. So. Carolina R. Co., 9 S. C. 61, 30 Am. Rep. 13 (1877). West Virginia. Maslin v. Balti- more & O. R. R. Co., 14 W. Va. 180, 35 Am. Rep. 748 (1878). Wisconsin. Doty v. Strong, 1 Pinn. 313, 40 Am. Dec. 773 (1843). England. Gisbourn v. Hurst, 1 Salk. 249 (1710). COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 161 was not appreciated. Thus even irrigation and telegraph- ing were once said in argument to be similar to common carriage in order to bring them within the obligations of public service. And it took decisions to show for example that towboat men and wharfingers were not liable as com- mon carriers; and yet clearly enough in the first no possession is taken although transportation is undertaken, and in the second there is no moving but merely pos- session. The traditional division of common carriers is into carriers of goods and carriers of passengers. In strictness only carriage of goods presents true bailment; and although to a certain extent the control which the carrier of passengers exercises is sufficiently analogous, yet the distinction between them is strong enough to make one measure of liability for the common carrier of goods and another for the carrier of passengers. There are some problems as to this division, but mostly these are diffi- culties in application. Thus after some litigation, the carriage of slaves was held to be passenger carriage, while the carriage of cattle was held to be freight carriage. Moreover, many carriers transport both passengers and freight, although some confine their business to one or the other. Still the established division is too settled to ignore. Topic A. Carriers of Goods 161. Pack carriers. The earliest form of common carriage in England was by means of pack horses. The country roads were not adapted for wheeled vehicles, and the carrier was obliged to carry his goods on the horses' backs in panniers. Such were the two carriers who appear in the first part of Shakespeare's Henry IV. 1 One of them had "a gammon of bacon and two razes of ginger to be delivered as far as 1 Act II, scene 1. [137] 162, 163 ] PUBLIC SERVICE CORPORATIONS Charing-cross," while the other had turkeys in his pannier. Such also was the carrier who took certain bales to carry to Southampton, and by breaking open the bales and steal- ing the contents provided a leading case in the law of larceny. 1 162. Wagoners. As the roads grew better and traffic between different parts of the country consequently increased, goods began to be carried in wagons; and the common carrier by land was a wagoner or carter. This continued to be the com- mon method of land carriage of goods down to the inven- tion of railroads, and such carriers might unquestionably be common carriers. The many cases involving wagoners are concerned with the question of fact, often difficult to determine, whether in the particular case the carriage was undertaken as common carriage or whether it was a case of special arrangement upon a private basis. 2 163. Porters. It is said in many cases, early and recent, that porters who undertake as a regular business to carry packages from point to point or to aid in loading or unloading goods are engaged in a public employment and are accordingly subject to public regulation as to the conduct of their business. 3 1 Y. B. 13 Ed. IV, 9, pi. 5 (1473). Ohio. Samms v. Stewart, 20 1 At this descriptive stage it is Ohio, 70, 55 Am. Dec. 445 (1851). sufficient to cite the leading cases Pennsylvania. Gordon v. Hutch- which are discussed later. inson, 1 W. & S. 285, 37 Am. Dec. Delaware. Tunnel v. Pettijohn, 464, B. & W. 3 (1841). 2 Harr. 48 (1836). Texas. Chevallier v. Straham, 2 Georgia Fish v. Chapman, 2 Tex. 115, 47 Am. Dec. 639 n. (1847). Ga. 349, 46 Am. Dec. 393 (1847). England Gisbourn v. Hurst, 1 Kentucky. Robertson v. Ken- Salk. 249 (1710). nedy, 2 Dana, 430, 26 Am. Dec. See Robertson v. Kennedy, 2 466 (1834). Dana (Ky.), 430, 26 Am. Dec. 466. Mississippi. Harrison v. Roy, And see Jackson Architectural I. 39 Miss. 396 (1860). Wks. Co. v. Hurlbut, 158 N. Y. 34, [138] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 164, 165 164. Hoymen. As in the case of land carriage, so in the case of water carriage, there are carriers who do not ply regularly be- tween fixed termini, but carry for those who employ them anywhere on a certain river or within a certain harbor. There are several early cases concerning the Thames watermen 1 who transfer goods from vessel to shore or from vessel to vessel. Such hoy men are ordinary carriers, at least, though whether they are common carriers or not may depend upon the nature of their profession. If, how- ever, the lighterman does not take the goods, but they remain in the control and possession of the owner, the lighterman is to be regarded as merely furnishing the motive power: not taking possession he cannot be tech- nically a carrier. 165. Shipmasters. At the very first there seem to have been doubts as to whether carriers by sea who went beyond the realm were within the common-law rules as to the liability of common carriers. But that there was no essential difference between carriage by land and carriage by sea was established at a comparatively early day. In this country there was never any doubts of this as the following summary taken from the opinion of Mr. Justice Williams in an early Connecticut case 2 will show: "It was long since settled that any man undertaking for hire to carry the goods of all persons indifferently, from place to place, is a common carrier. Common carriers, says Judge Kent, consist of 52 N. E. 665, 70 Am. St. Rep. 432 1 Wils. Reports, 281 (1750); Trent., (1899). etc., Nav. Co. v. Wood, 4 Dougl. 1 Liver Alkali Co. v. Johnson, L.' 287, 3 Esp. 127 (1785). R. 9 Exch. 338 (1874); Ingate v. 2 Hale v. New Jersey Nav. Co., Christie, 3 C. & K. 61 (1850); Mav- 15 Conn. 539, 39 Am. Dec. 398 ing v. Todd, 4 Campb. 225, 1 (1843). Starkie, 72 (1815); Dale v. Hall, [139] 166 ] PUBLIC SERVICE CORPORATIONS two distinct classes of men, viz., inland carriers by land or water, and carriers by sea; and in the aggregate body are included the owners of stage-coaches, who carry goods, as well as passengers for hire, wagoners, teamsters, cart- men, the masters and owners of ships, vessels and all water-craft, including steam vessels and steam towboats belonging to internal as well as coasting and foreign navigation, lightermen and ferrymen. And there is no difference between a land and a water carrier." 1 166. Canal boats. Transportation over most canals has been largely car- ried on from the time of their first construction to the present day by canal boatmen who take possession of the goods to be forwarded, store them in their canal boats, keep charge over them during the transit, and make provision for the beasts by which the boats are usually hauled from point to point. Obviously this business is carriage, and if it is professed for all that apply it is common carriage, and subject to all the liabilities of com- mon carriage. As is said in one of the early cases, 2 "The counsel have not contended but that the defendant's 1 See for other examples: 12 Conn. 410, 31 Am. Dec. 745 United States. Propeller Niagara ( 1838) . v. Cordes, 21 How. 7, 16 L. ed. 41 Georgia. Brown v. Clayton, 12 (1858); Clark v. Barnwell, 12 How. Ga. 564 (1853). 272, 13 L. ed. 985 (1851); The Dela- Massachusetts Gage v. Tirrcll, ware, 14 Wall. 579, 20 L. ed. 779 9 Allen. 299 (1864). (1871); The Maggie Hammond, 9 New York. Elliott v. Rossell, 10 Wall. 435, 19 L. ed. 772 (1869); Johns. 1, 6 Am. Dec. 306 (1813). The Gold Hunter, 1 Blatchf. & H. South Carolina. Swindler v. Hil- 300, 10 Fed. Cas. 5,513 (1832); liard, 2 Rich. 286, 45 Am. Dec. 732 The Phenix Insurance Co. v. Liver- (1845). pool & G. W. Steamship Co., 22 England. Laveroni v. Drury, 8 Blatchf. 372, sub nom. The Mon- Exch. 166, 16 Eng. L. & E. 510 tana, 22 Fed. 715 (1884). (1852). Connecticut. Crosby v. Fitch, 2 Spencer v. Daggett, 2 Vt. 92 (1829). [140] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 107 liability stood upon the principles of a common carrier. It should so stand. He carries for hire. The plaintiffs could not control him in the manner of lading and navi- gating his boat." 1 167. River craft. Upon similar principles the cases generally have held the owners of river craft transporting goods to the strict liability of common carriers. 2 This has been so whether these were flatboats carried down the river by the current guided by their steersmen, or whether they were boats proceeding along the river by their own motive power. In some jurisdictions the necessity of this law was felt so strongly that the courts were much too easily satisfied as to the public character of a particular undertaking. But as is said in the leading case 3 of this sort : "One who undertakes for a reward, to convey produce or goods of any sort, from one place upon the river to another, becomes thereby liable as a common carrier; having to transact the business entrusted to his care, at places distant from the residence of the plaintiff, it is always difficult, and frequently im- possible for the plaintiff to obtain the evidence necessary to fix fraud or negligence on the defendant; and to super- 1 See for other examples: Boston & Maine R. R. Co., 3 Fost. New York Fish v. Clark, 49 275 (1851). N. Y. 122 (1872). Pennsylvania. Nicolette Lum- North Carolina. W i 1 1 i a m s v. her Co. v. People's Coal Co., 26 Pa. Branson, 1 Murphy, 417, 4 Am. Sup. Ct. 575 (1904). Dec. 562 (1810). South Carolina. M'Clures v. Pennsylvania. Humphreys v. Hammond, 1 Bay, 99, 1 Am. Dec. Reed, 6 Whart. 435 (1841). 598 (1790). South Carolina. Harrington v. West Virginia. Gillingham v. Lyles, 2 Nott & McCord, 88 (1819). Ohio River R. R., 35 W. Va. 588, 14 Vermont. Spencer v. Daggett, 2 S. E. 243, 14 L. R. A. 798, 29 Am. Vt. 92 (1829). St. Rep. 827 (1891). England. Hyde v. Trenton Nav. s Moss v. Bettis, 4 Heisk. 661. Co., 5 T. R. 389 (1793). (1871). 1 New Hampshire. E 1 k i n s v. [141] 168, 109 J PUBLIC SERVICE CORPORATIONS sede this difficulty, the law throws the burthen of proof upon the defendant, to exempt himself from the plain- tiff's action, and makes him liable for all accidents but those which are occasioned by the acts of God or of a public enemy." 168. Draymen. Draymen of all sorts may be common carriers if they have generally undertaken to transport the goods of all who apply, for a reasonable compensation. The vehicle employed is immaterial. In one early case, 1 the question was whether a proprietor of an ox team dragging a sled laden with general merchandise was a common carrier, and the court held that he was. " Every one who pursues the business of transporting goods for hire, for the public generally, is a common carrier. According to the most approved definition, a common carrier is one, who under- takes, for hire or reward, to transport the goods of all such as choose to employ him, from place to place. Dray- men, cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is immaterial." 2 169. Truckmen. The case of the truckman also well illustrates the gen- eral principles. Even where a truckman is professing publicly the business of carrying goods from one part of a town to another, a few authorities discussed in the next section have held that he is not a common carrier. But there should be, of course, no doubt that he is a carrier essentially as he both takes possession of the goods of his 1 Robinson & Co. v. Kennedy, 2 2 See also Robinson v. Cornish, Dana, 430 (1834), 26 Am. Dec. 466. 13 N. Y. Supp. 577 (1890). [142] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 170 patrons and transports them. 1 The law is summarized succinctly in the leading case of Jackson Architectural Iron Works v. Hurlbut 2 by Mr. Justice O'Brien thus: "Truckmen, wagoners, cartmen and porters who under- take to carry goods for hire as a common employment in a city, or from one town to another, are common carriers." 170. Furniture movers. But mere movers, such as furniture movers, will seldom be found to have undertaken as common carriers. Their business is generally conducted upon the basis of special contract; and they do not undertake, upon any general schedule of prices, to serve all that apply. Moreover, there are usually numerous carters with whom the person who wishes the service might deal, and as it is a matter arranged for in advance there is ample opportunity of- fered for access to these competitors. Naturally enough, therefore, the few cases that deal with this matter hold that the furniture movers are liable only as private car- riers. It is of course a question of fact, in last analysis, and it may be shown, always, just what the facts are as 1 Illinois. Hastings Express Co. Washington. Gates v. Bekins, v. Chicago, 135 111. App. 268 (1907) ; 44 Wash. 422, 87 Pac. 505 (1906). See also Johnson Exp. Co. v. Chi- England. Scaife v. Farrant, L. cago, 136 111. App. 368 (1907). R. 10 Ex. 358 (1875). Indiana. Frank Bird Transfer Canada. Culvar v. Lester, 37 Co. v. Krug, 30 Ind. App. 602, 65 Can. L. J. 421 (1901). N. E. 309 (1902). 2 158 N. Y. 34, 52 N. E. 665, 70 Kentucky Farley v. Lavary, 21 Am. St. Rep. 432 (1899). Ky. L. Rep. 1252, 54 S. W. 840, 47 But in several cases of trucking L. R. A. 383 (1900). the courts have not found common Pennsylvania. Lloyd v. Haugh carriage. See: & K. Storage & Transfer Co., 223 New Hampshire. F a u c h e r v. Pa. St. 148, 72 Atl. 576, 21 L. R. A. Wilson, 68 N. H. 338, 38 Atl. 1002, (N. S.) 188 (1909). 39 L. R. A. 431 (1895). Utah. Benson v. Oregon S. L. Wisconsin. Hooper v. Chicago Ry. Co., 99 Pac. 1072 (1909). & N. W. Ry. Co., 27 Wis. 81, 9 Am. Rep. 439 (1870). [143] 171 ] PUBLIC SERVICE CORPORATIONS to the business in question. As is said in one case: 1 "Whether a person was a common carrier bound by all the extraordinary responsibility and entitled to the priv- ilege of that class of bailees can sometimes be known only by particular proof of how his business was conducted and what profession he made to the public regard- ing it." 2 171. Baggage transfer. On the other hand, omnibus lines that transfer passen- gers and their baggage across cities to their destinations are obviously within the conception of common carriers. A square case in point is Parmelee v. McNulty, 3 where Mr. Chief Justice Caton said: "It is further objected that the court assumed that Parmelee was a common carrier, without proof of that fact. The proof showed that he was the owner of an omnibus line, to the agents of which the proof tended to show the trunk was delivered. The court was authorized to take notice that the owner of an omnibus line is a common carrier, just as much as the owner of a railroad or of a line of steamboats. The court 1 Thompson v. New York Storage Co. v. Railroad Co., 19 So. Car. 353 Co., 97 Mo. App. 135, 70 S. W. 938 (1882). (1902). Cases finding common carriage 2 Cases finding no common car- in the moving in question are : riage in the arrangement in ques- New York. Snelling v. Yetter, tion are: 25 App. Div. 590, 49 N. Y. Supp. Illinois. Armfield v. Humphrey, 917 (1898). 12 111. App. 90 (1882). Pennsylvania. Lloyd v. Haugh Missouri. Jamiet v. American & K. Transfer Co., 223 Pa. St. 148, Storage Co., 109 Mo. App. 257, 84 72 Atl. 516, 21 L. R. A. (N. S.) 188 S. W. 128 (1904). But see Collier (1909). v. Langan T. S. & M. Co. (Mo. Utah. Benson v. Oregon S. L. App.), 127 S. W. 435 (1910). Ry. Co. 99 Pac. 1072 (1909). New Hampshire. Faucher v. Washington. Gates v. Bekins, 44 Wilson, 68 N. H. 338, 38 Atl. 1002, Wash. 422, 87 Pac. 505 (1906). 39 L. R. A. 431 (1895). 19 111. 556 (1858). South Carolina. Piedmont Mfg. [144] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 172 will take notice of the general meaning of words; and we know that an omnibus line means a line of coaches for the carriage of passengers and their baggage." 1 172. Steamboats. The invention of the application of steam propulsion to vessels did not alter the rule already established that those who carry goods and passengers as a general busi- ness by any vehicles or vessels are common carriers. The business is therefore public in character, provided that those who conduct it profess to serve all that apply, which may be established by the usual tests already discussed. A few representative cases are collected in the footnote; In one of the earliest of these, Bennett v. Filyard 2 the instances of common carriage by water are thus enu- merated: "A common carrier in law has been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him from place to place as a business and not as a casual occupation pro hac vice. Common carriers by water are the masters and owners of ships, and all water crafts including steam vessels, towboats, and other steamboats, belonging to internal as well as coasting and foreign navigation, light- men, hoymen, ferrymen, canal boatmen, and others en- 1 To the same effect are: New York. Richards v. Wescott, Georgia. Atlanta Baggage, etc., 2 Bosw. 589. Co. v. Mizo, 4 Ga. App. 407, 61 S. North Carolina. Herring v. Ut- E. 844 (1908). ley, 8 Jones, L. 270 (1860). Illinois. Parmelee v. Lowitz, 74 Pennsylvania. B e c k m a n v. 111. 116, 24 Am. Rep. 276 (1874). Shouse, 5 Rawle, 179, 28 Am. Dec. Louisiana. Da Ponte v. New 653 (1835). Orleans Transfer Co., 42 La. Ann. Virginia. Norfolk & W. Ry. Co. 696, 7 So. 608 (1890). v. Old Dominion Baggage Co., 99 New Hampshire Redding v. Va. Ill, 37 S. E. 784, 50 L. R. A. Gallagher, 72 N. H. 377, 57 Atl. 722 (1901). 225, 64 L. R. A. 811 (1903). 1 Fla. 403 (1847). 10 [ 145 ] 173 PUBLIC SERVICE CORPORATIONS gaged in the transportation of goods by water for per- sons generally for hire." 1 173. Towing lines. To what extent towboats are engaged in a public em- ployment is a vexed question; but the difficulty seems to lie more in the determination of the question of fact in the cases that have arisen than in any difference as to legal possibilities. One of the principal cases is Bussey & Co. v. Mississippi Valley Transportation Co. 2 The regular business of the defendants in that case was proved to be the towing of barges upon the route between St. Louis and New Orleans. The court reviewed fully the various authorities apparently bearing upon the point; the opinion of Mr. Justice Howe concluding much as follows: "Such conflict of authority might be very dis- tressing to the student, but for the fact that when these 1 United States. The Commander in Chief, 1 Wall. 43, 17 L. ed. 609 (1863); Jencks v. Coleman, 2 Sum- ner, 221, Fed. Gas. 7,258 (1835); Citizens' Bl. v. Nantucket Steam- boat Co., 2 Story, 16, B. & W. 8, Fed. Cas. 2,730 (1841). Alabama. Jones v. Pitcher, 3 Stew. & P. 136 (1833). Connecticut. Crosby v. Fitch, 12 Conn. 410 (1838). Georgia. Ocean S. S. Co. v. Sa- vannah L. W. & S. Co. (Ga.) 63 S. E. 577, 20 L. R. A. (N. S.) 867 (1909). Illinois. Dunseth v. Wade, 2 Scam. 285 (1840). Kansas. The Emily, 5 Kans. 645 (1864). Louisiana. Oakey v. Russell, 6 Martin (N. S.), 58 (1827). Maine. Parker v. Flagg, 26 Me. 181 (1846). [146] Massachusetts. Hastings v. Pep- per, 11 Pick. 41 (1838). Mississippi. Gilmore v. Car- man, 1 Sm. & M. 279 (1843). New York. Hollister v. Nowlen, 19 Wend. 234 (1838); Cole v. Good- win, 19 Wend. 251 (1838); MeAr- thur v. Sears, 21 Wend. 190 (1839); Pardee v. Drew, 25 Wend. 459 (1841). Ohio. McGregor v. Kilgore, 6 Ohio, 359 (1834). Pennsylvania. Harrington v. McShane, 2 Watts, 443 (1834). South Carolina. F a u 1 k n e r v. Wright, Rice (Law), 107 (1838); McClures v. Hammond, 1 Bay, 99, 1 Am. Dec. 598 (1790). Tennessee. Kirkland v. Mont- gomery, 1 Swan, 452 (1852). 2 24 La. Ann. 165, 13 Am. Rep. 120 (1872). COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 173 writers and cases cited by them are examined the dis- crepancy is more imaginary than real. There are two very different ways in which a steam towboat may be employed, and it is likely that Mr. Story was contemplating one method and Mr. Kent the other. In the first place it may be employed as a mere means of locomotion under the en- tire control of the towed vessel; or the owner of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee; or the towing may be casual merely, and not as a regular business between fixed termini. It might well be said that under such circumstances the towboat or tug is not a common carrier. But a second and quite different method of employing a towboat is where she plies reg- ularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus transported. Such is the case at bar." If therefore the towing line is really making a bus- iness of carrying, that is, if it actually takes control of the barges towed and itself transports them, the towboat proprietors are common carriers. 1 But if we have the case of the harbor tug which is engaged in towing along vessels which remain in the control of their masters we do not have common carriage as the most of cases hold 2 although very likely we have a case of public employment. 3 1 United States. See Vanderslice North Carolina. W a 1 s t o n v. v. The Superior, 28 Fed. Gas. Myers, 5 Jones, 174 (1857). 16,843 (1850). New Jersey. Ashmore v. Penn. California. White v. Mary Ann, St. Towing, etc., Co., 28 N. J. L. 6 Cal. 462, 65 Am. Dec. 523 180 (1860). (1856). 2 United States. Steamer New Louisiana. Clapp v. Stanton, Philadelphia, 1 Black, 62, 17 L. ed. 20 La. Ann. 495, 96 Am. Dec. 417 84 (1861); The Quickstep, 9 Wall. (1868). 665, 19 L. ed. 767 (1869); Steamer 3 See 150, supra. [147] 174 PUBLIC SERVICE CORPORATIONS 174. Wagon trains. At one stage of the development of a country, the wagon train often appears after the single wagon and before the railroad construction. One interesting case from the American frontier is Seligman v. Armijo. 1 In that case settling the preliminary point of whether it was a case of common carriage the court said: "The plaintiff having sent his train to Junction City without any special agree- ment for freight to transport for reward the goods of such as might employ him, and having undertaken to carry goods for the defendants and others, thereby assumed the duties, obligations and liabilities of a common carrier in respect to the goods carried by him." Webb, 14 Wall. 406, 20 L. ed. 774 (1871); The Margaret, 94 U. S. 494, 24 L. ed. 146 (1876); Transporta- tion Line v. Hope, 95 U. S. 297, 24 L. ed. 477; (1877) The Princeton, 3 Blatch. 54, Fed. Gas. 11,434 (1853); The Lyon, 1 Brown's Adm. 59, 15 Fed. Cas. 8,645 (1861); Steamboat Angelina Corning, 1 Ben. 109, Fed. Cas. 384 (1867); The Stranger, 1 Brown's Adm. 281, Fed. Cas. 13,525 (1871); The Oconto, 5 Biss. 460, Fed. Cas. 10,421 (1873); The Mer- rimac, 2 Sawyer, 586, Fed. Cas. 9,478 (1874). Illinois. Knapp v. McCaffrey, 178 111. 107, 52 N. E. 898, 69 Am. St. Rep. 290 (1899). Kentucky. Varble v. Bigley, 14 Bush, 698, 29 Am. Rep. 435 (1879). Maryland. Penn., etc., Steam Nav. Co. v. Dandridge, 8 Gill & J. 248, 29 Am. Dec. 543 (1836). Massachusetts. Sproul v. Hem- mingway, 14 Pick. 1, 25 Am. Dec. 350 (1833). [148] New York. Caton v. Rumney, 13 Wend. 387 (1835); Alexander v. Greene, 3 Hill, 9, 7 ibid. 533 (1842); Wells v. Steam Nav. Co., 2 N. Y. 204 (1849); Wells v. Steam Naviga- tion Company, 2 Com. 204, 4 Seld. 375 (1853); Merrich v. Brainard, 38 Barb. 574 (1860); Arctic Fire Ins. Co. v. Austin, 54 Barb. 559 (1869); Abbey v. Steamboat Stevens, 22 How. Pr. 78 (1861); Emiliusen v. Penn. R. Co., 30 N. Y. App. Div. 203, 51 N. Y. Suppl. 606 (1898). Pennsylvania. Leonard v. Hen- rickson, 18 Pa. St. 40, 55 Am. Dec. 587 (1851); Hays v. Paul, 51 Pa. St. 134 (1865); Brown v. Clegg, 63 Pa. St. 51 (1869); Hays v. Millar, 77 Pa. St. 238, 18 Am. Rep. 445 (1874). England. The Julia, 14 Moore P. C. 210 (1860); Symonds v. Pain, 6 Hurl & N. 709 (1861); The Minnc- haha, 1 Lush, 335 (1861). 1 1 N. Mex. 459 (1870). COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 175, 176 175. Automobile lines. In modern times in new districts the automobile line often supplants the wagon train in the later development of the frontier. These lines of cars cross long stretches of country at high speed crossing frail-appearing bridges specially constructed to fit their wheels. As this is now becoming one of the commonplaces of transportation in these regions, cases dealing with their relations with the public may soon be expected. In the cities as well the automobile tru^k is supplanting the horse drawn wagon for express service. It may take the law some little time to adjust itself to these new conditions, simply because in restrictive statutes one is permitted to quibble. 1 176. Railways. It is a matter of history that where the first railways were laid down at the beginning of the nineteenth century the theory upon which they were constructed was that they would be public highways, for the use of which those that drove their vehicles over them should pay toll as for the use of a turnpike or a canal. The introduction of the steam locomotive brought about the end of that theory almost before it was put into practice. A train drawn by a locomotive was too expensive, the operation was too costly, and its management too intricate for any shipper, or even for any private carrier. Almost from the outset, therefore, the railway company provided and operated the engines and cars themselves, and accepted for trans- portation such goods as were offered. They thus became common carriers. The cases that hold this form so enor- mous a list that it is difficult to select any one in particular 1 See Fousler v. Atlantic City, 70 this constitutes common carriage N. J. L. 125, 56 Atl. 119 (1905), whatever be the power utilized for permitting general regulation of au- locomotion, tomobile service upon the basis that [149] 177 ] PUBLIC SERVICE CORPORATIONS as an illustration. 1 Indeed all courts will take judicial knowledge that public railways are common carriers. In one of the earlier cases, Chicago & Aurora Railroad v. Thompson, 2 the appellant railroad denied that it was a common carrier because the charter of the corporation did not declare it to be so, but Mr. Justice Breese said: "We suppose it is not necessary that the charter should provide in so many words that the railroad companies created by them shall be common carriers. The authorities are nu- merous to the point that such companies using cars for the purpose of carrying goods for all persons indifferently, for hire, and whose custom and uniform practice it is to do so are common carriers and liable as such. There can be no doubt on this point. There needs no legislative declaration to make them such." 177. Industrial railways. It has already been pointed out, however, that it will not do to say even to-day that all those who maintain 1 United Stales. Railroad Co. v. ton & P. R. R. Co., 10 Mete. 472, Lockwood, 17 Wall. 357, 21 L. ed. 43 Am. Dec. 444 (1845). 627 (1873). Nebraska. St. Joseph & G. I. R. Alabama. South Western R. Co. Co. v. Palmar, 38 Neb. 463, 56 N. v. Webb, 48 Ala. 585 (1872). W. 957, 22 L. R. A. 335 (1893). California. Contra, Costa R. R. New Hampshire. Elkins v. Bos- Co, v. Moss, 23 Cal. 323 (1863). ton & M. R. R., 23 N. H. 275 Connecticut. Fuller v. Nauga- (1851). tuck R. R. Co., 21 Conn. 557 (1852). New Jersey. Rogers Locomotive Georgia. East Term., etc., R. Works v. Erie Railway Co., 5 C. E. Co. v. Whittle, 27 Ga. 535, 73 Am. Green, 379 (1869). Dec. 741 (1859). Vermont. State v. Boston, C. & Illinois. Illinois Railroad Co. v. M. R. R. Co., 25 Vt. 433 (1853). Frankenberg, 54 111. 88, 5 Am. Rep. Washington. Boyle v. Great 92 (1870). Northern Ry. Co., 13 Wash. 383, 43 Indiana. McCleary v. Babcock, Pac. 344 (1896). 169 Ind. 228, 82 N. E. 453 (1907). West Virginia Laurel Fork & Maine. New England Exp. Co. S. H. R. Co. v. West Virginia T. v. Maine C. R. R. Co., 57 Me. 188, Co., 25 W. Va. 324 (1884). 2 Am. Rep. 31 (1869). ' 19 111. 578 (1858). Massachusetts. Thomas v. Bos- [150] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 178 railway trackage even if they have devoted it to public service are engaged in common carriage. They may only furnish facilities over which other carriers may run their trains as do bridge companies 1 and terminal companies, 2 or they may undertake to furnish the motive power to switch the trains of others about and yet not so take possession as to be carriers which is often the case of union railways 3 and belt lines. 4 But in dealing with these services we may often come upon common carriage in fact where the connecting railway both takes possession and furnishes the motive power, in which case they would be common carriers. 5 An added importance has accrued to this subject because of the recent invention of a kind of railway known as the "industrial" railway. This is a short line of railway, owned by an industrial corporation or by the owners of some business enterprise, and connect- ing the factory or the place of business with the main line of some railway. 6 When such a road, however short it may be, is actually operated independently with its own locomotives and cars, it would seem to be an in- dependent carrier, though it is operated for the exclusive benefit of the industrial enterprise which owns it provided it would accept such general traffic along its line as might be offered to it. 178. Express companies. The business of transporting small or valuable goods has come largely into the hands of express companies. So far as such companies merely transmit parcels locally in their own teams, they are evidently carriers. The more important work of the companies, however, is done in 1 See 126, supra. ban Belt R. R., 89 Mo. App. 129 2 See 125, supra. (1901). 3 See 129, supra. 8 See United States v. Atchison, 4 See 130, supra. T. & S. F. Ry. Co., 142 Fed. 176 B Fleming v. Kansas City Subur- (1905). [151] 178] PUBLIC SERVICE CORPORATIONS connection with the carriage of parcels over a long dis- tance over the lines of railways or steamboats. The express company has at the place of departure a local agent who receives the parcel for transmission; it is then transported over the line of a railway or steamboat, but always in a part of the train or boat set aside for the ex- press company, and at all times in the control and care of an agent of the company; and upon the arrival of the train or boat at the place of destination the parcel is taken by a local agent and by him delivered to the consignee. At first the express companies attempted to maintain that they were only forwarders under such circumstances not carriers, properly speaking. But it is now well rec- ognized that their service constitutes carriage since they retain possession throughout. 1 And as they exercise this 1 United Slates Bank of Ken- tucky v. Adams Exp. Co., 93 U. S. 174, 23 L. ed. 872; Missouri, K. & T. Ry. v. Dinsmore, 108 U. S. 30, 27 L. ed. 640, 2 Sup. Ct. 9 (1883). Alabama. Southern Express Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140 (1870). Colorado. Overland Express Co. v. Carroll, 7 Col. 43, 1 Pac. 682 (1883). District of Columbia,. Gait v. Adams Express Co., MacArthur and M. 124, 48 Am. Rep. 742 (1879). Florida. Southern Express Co. v. Van Meter, 17 Fla. 783, 35 Am. Rep. 107 (1880). Georgia. Southern Express Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783 (1867). Illinois. Boscowitz v. Adams Express Co., 93 111. 523, 34 Am. Rep. 191 (1879). Indiana. United States Express [152] Co. v. State, 164 Ind. 196, 73 N. E. 101 (1905). Kansas. Adams Exp. Co. v. McConnell, 27 Kans. 238 (1882). Massachusetts. Buckland v. Ad- ams Express Co., 97 Mass. 124, 93 Am. Dec. 68 (1867). Michigan. United States Exp. Co. v. Root, 47 Mich. 231, 10 N. W. 351 (1881). Minnesota. C hristenson v. American Express Co., 15 Minn. 270, 2 Am. Rep. 122 (1870). Missouri. Kirby v. Adams Ex- press Co., 2 Mo. App. 369 (1876). New York. Belger v. Dinsmore, 51 N. Y. 166, 10 Am. Rep. 575 (1872). Ohio. American Express Co. v. Smith, 33 Ohio St. 511, 31 Am. Rep. 561 (1878). Oregon. Bennett v. Northern Exp. Co., 12 Oreg. 49, 6 Pac. 160 (1885). Pennsylvania. Grogan v. Adams COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 179 employment of receiving, carrying, and delivering goods, wares, and merchandise for hire on behalf of all persons who may see fit to require their services, there has never been any doubt that their employment was sufficiently public to make it a case of common carriage. Their service is therefore at the disposal of the public in gen- eral. 1 179. Pneumatic tubes. A company operating lines of pneumatic tubes under the streets of a city for the transportation of small parcels for the general public would undoubtedly be a public service corporation and obliged, therefore, to transport for all suitable parcels at reasonable rates without discrim- ination. 2 Some few examples of this sort of service are known, but just at present the use of this system of trans- portation seems to be confined to the government which contracts for their exclusive service in handling the mails. Exp. Co., 114 Pa. St. 523, 7 Atl. 134, 60 Am. Rep. 360 (1886). South Carolina. Stadhecker v. Combs, 9 Rich. Law, 193 (1856). Tennessee. Southern Exp. Co. v. Womack, 1 Heisk. 256 (1870). Texas. Pacific Exp. Co. v. Dar- nell, 62 Texas, 639 (1884). Vermont. Hadd v. United States Exp. Co., 52 Vt. 335, 36 Am. Rep. 757 (1880). Wisconsin. Wells v. American Exp. Co., 55 Wis. 23, 11 N. W. 537, 12 N. W. 441, 42 Am. Rep. 695 (1882). 1 In the following cases particu- larly the public duty of the express companies is emphasized: United States. Platt v. Le Cocq, 150 Fed. 391 (1906). Georgia. Southern Express Co. v. Rose Co., 124 Ga. 581, 53 S. E. 185 (1905). Indiana. Adams Express Co. v. State, 161 Ind. 328, 67 N. E. 1033 (1903). Mississippi. Southern Express Co. v. Moon, 39 Miss. 822 (1863). Nebraska. State v. Pacific Ex- press Co., 80 Neb. 823, 115 N. W. 619, 18 L. R. A. (N. S.) 664 (1908). North Carolina. Alsop v. South- ern Express Co., 104 N. C. 278, 10 S. E. 297, 6 L. R. A. 271 (1889). Canada. Johnson v. Dominion Exp. Co., 28 Ont. Rep. 203 (1896). 2 This was assumed in Astor v. Arcade Ry. Co., 113 N. Y. 93, 20 N. E. 594, 2 L. R. A. 789 n. aff. 48 Hun, 562, 1 N. Y. Supp. 174 (1888). [153] 180 ] PUBLIC SERVICE CORPORATIONS As these contracts are the basis upon which these lines are constructed and operated they show that there is no general profession to serve the public contemplated, and therefore the business is not as yet upon a public basis. 180. Dispatch companies. The same question came up several times for decision in regard to the dispatch companies. These freight lines again claimed that they were forwarders only and not carriers at all; but the courts held consistently that as they took possession they were carriers, and that as they professed a common calling they were common carriers. One representative case where these companies were charged as common carriers will do for all Merchants' Transportation Company v. Bloch Brothers, 1 in which it was said: "This instruction properly treats the defend- ant as a common carrier. The duties which it undertakes, and which it holds itself out to the public as willing to undertake and perform, give it that character. In very many cases it has been expressly adjudged to be a common carrier, and in others such has been assumed to be its character without a discussion of the question. The text- writers say that dispatch companies are common carriers, and class them with express companies because of the many points of similarity in their business, and the fact that they alike generally use the vehicles of others in the transportation of freight. 2 '86 Term. 392, 6 S. W. 881, 6 Iowa Cownie Glove Co. v.' Am. St. Rep. 847 (1888). Merchants' Dispatch Co., 130 Iowa, 2 Colorado. Merchants' Dispatch 327, 106 N. W. 749, 4 L. R. A. Co. v. Cornforth, 3 Colo. 280, 25 (N. S.) 1060 (1906); Robinson v. Am. Rep. 757 (1877). Merchants' Dispatch Co., 45 Iowa, Illinois. Merchants' Dispatch 470 (1877); Stewart v. Merchants' Co. v. Bolles, 80 111. 473 (1875); Dispatch Co., 47 Iowa, 229 (1877); Merchants' Dispatch Co. v. Leysor, Wilde v. Merchants' Dispatch Co., 89 111. 43 (1878); Merchants' Dis- 47 Iowa, 247 (1877); Bancroft v. patch Co. v. Joesting, 89 111. 153 Merchants' Dispatch Co., 47 Iowa, (1878). 262 (1877). [1541 COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 181, 182 181. Fast freight lines. The nature of the fast freight lines which so often are advertised is always a question of fact. Sometimes these will be found to be dispatch companies, such as have just been described, 1 operating under this name. As usually distinguished from dispatch companies, however, these fast freight lines will generally be found to be main- tained directly by the railways concerned themselves. As, however, this service is offered to the public as through carriage, shippers are led to deal with the line itself in this matter; and the railways concerned in establishing these fast freight lines are generally held to be liable practically as partners pro hoc vice. 2 Topic B. Carriers of Passengers 182. Ferries. The ferryman, as has been seen, has been in public employment from time immemorial. Obviously a ferry- man is a common carrier of goods if it is shown that he has taken the goods into his control; but he does not usually do so. He more commonly takes passengers only, and if the passengers have goods they commonly keep possession of their property. 3 But whether he usually carries passen- New York. Mercantile M. & 3 Alabama. Babcock v. Herbert, Ins. Co. v. Chase, 1 E. D. Smith, 3 Ala. 392, 37 Am. Dec. 695 (1842); 115 (1850). Frierson v. Frazier, 142 Ala. 232, iSee particularly Merchants' 37 So. 825 (1904). Transportation Co. v. Bloch Bros., Arkansas. Harvey v. Rose, 26 86 Tenn. 392, 6 S. W. 881, 6 Am. Ark. 3, 7 Am. Rep. 595 (1870). St. Rep. 847 (1888). See also Bax- California. May v. Hanson, 5 ter & Co. v. Wheeler et al, 49 N. H. Cal. 360, 63 Am. Dec. 135 (1855). 9 (1869). Illinois. Claypool v. McAllister, 2 See, for one example, Rocky 20 111. 504 (1858). Mount Mills v. Wilmington & W. Iowa. Whitmore v. Bowman, 4 R. Co., 119 N. C. 693, 56 Am. St. Green, 148 (1853). Rep. 682,258. E. 854(1896). And Kentucky Hall v. Renfo, 3 Met. for another Wyman v. Chicago & 51 (1860). A. R. R. Co., 14Mo.App. 35(1877). Massachusetts. Le Barren v. [155] 183 PUBLIC SERVICE CORPORATIONS gers only or goods only he may obviously be shown to be a common carrier. 1 The law then imposes upon him the duties and liabilities of a common carrier of passengers or of goods or of both as the case may be. 183. Ships. That vessels of all kinds may be common carriers of goods has already been pointed out. It is also obvious that if their proprietors have also undertaken the carriage of passengers they will be liable as public carriers. In summing up to the jury in the leading case 2 dealing with carriers of passengers by water, Judge Story said, "There is no doubt that this steamboat is a common carrier of passengers for hire; and therefore the defendant as com- mander was bound to take the plaintiff as a passenger on board if he had suitable accommodations and there was no reasonable objection to the character or conduct of the plaintiff." 3 East B. Ferry Co., 11 Allen, 312, 87 Am. Dec. 717 (1865). Mississippi. Powell v. Mills, 37 Miss. 691(1859). Missouri. Pomeroy v. Donald- son, 5 Mo. 36 (1837). New York. Wyckoff v. Queen's County Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650 (1873). North Carolina. Spivy v. Farm- er, 2 Hawy. 339 (1805). Ohio. Wilson v. Hamilton, 4 Ohio St. 722 (1855). Pennsylvania. Smith v. Seward, 3 Pa. St. 342 (1846). Tennessee. Sanders v. Young, 1 Head, 219, 73 Am. Dec. 175 (1858). Texas. Albright v. Penn, 14 Tex. 290 (1855). 1 In the following cases among many others the public duties of ferrymen are discussed: [156] Alabama. Pate v. Henry, 3 Stew. & P. 101 (1833). New York. Mayor, etc., of New York v. Starin, 106 N. Y. 1, 12 N.E.631. (1887). Virginia. Carter v. Common- wealth, 2 Va. Cas. 354 (1823). Washington. Stevenson v. West Seattle L. & Imp. Co., 22 Wash. 84, 60 Pac. 51 (1900). 2 Jenks v. Coleman, 2 Sumn. 225 (1835). 3 See the following cases among many others: United Stales The Pacific, 1 Blatchf. 569 (1850); The Zenobia, 1 Abb. Adm. 48 (1847). South Carolina. McCleneghan v. Brock, 5 Rich. L. 17 (1851). West Virginia. Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. 243, 29 Am. St. Rep. 827(1891). COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 184, 185 184. Stagecoaches. The common method of carrying passengers before the invention of railways was by stagecoach; and there can, of course, be no doubt that public coaches are common carriers. In the leading American case, Bennett v. But- ton, 1 Chief Justice Parker said: "We are of opinion that the proprietors of a stagecoach for the regular transpor- tation 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." 2 185. Omnibus lines. Omnibus lines which transport passengers and their baggage across cities between railroad terminals are obvi- ously carriers of passengers and their baggage. In some few cases this has been contested, but it has been uni- formly held that these lines are not only common car- riers of their passengers, but also common carriers, strictly, of their baggage, liable for its loss at all events. As is said in one case, 3 "The court will take notice of the England. Benett v. Peninsular ter, 1 Pick. 50, 11 Am. Dec. 133 Steamboat Co., 6 C. B. 775 (1848). (1822). 1 10 N. H. 481 (1839). New Hampshire S h e 1 d e n v. 2 As to the public liabilities of Robinson, 7 N. H. 157, 26 Am. Dec. proprietors of stagecoaches, see: 726 (1834). United States. Saltonstall v. Pennsylvania. B e c k m a n v. Stockton, Taney, 11 (1838). Shouse, 5 Rawle, 179, 28 Am. Dec. Connecticut. Merwin v. Butler, 653 (1835). 17 Conn. 138 (1845). South Carolina. Peixotti v. Mc- lowa. Frink v. Coe, 4 Green, Laughlin, 1 Strob. L. 468, 47 Am. 555, 61 Am. Dec. 141 (1854). Dec. 563 (1847). Kentucky. Robertson v. Ken- Tennessee. Walker v. Skipwith, nedy, 2 Dana, 430, 26 Am. Dec. 466 Meigs, 502, 33 Am. Dec. 161 (1838). (1834). England. Lovett v. Hobbs, 2 M aryland. Stockton v. Frey, 4 Show. 127 (1680). Gill, 406 (1846). 3 Illinois Parmelee v. McNulty, Massachusetts. Dwi^tv. Brews- 19 111. 556 (1858). [157] 186, 187 ] PUBLIC SERVICE CORPORATIONS general meaning of words, and we know that an omnibus line means a line of coaches for the carriage of passengers and their baggage. If this line was established for other purposes, that should have been shown in the defence." 1 186. Hacks. From time immemorial hackmen have been subject to regulation as to the terms which they shall make in rendering their services. As is said in Munn v. Illinois 2 in reviewing the public callings universally recognized: "The hackney coachman pursues a public employment and exercises a sort of public office." As has been seen, at the foundation of this law lie the monopolistic condi- tions, temporary though they may be, which circumscribe the dealings between the hackman and his passenger, making the situation such that the law must intervene to save him from extortion. 3 187. Taxicabs. The latest development in urban service of this sort is the taxicab. These being automobiles are subject to 1 The following cases deal with wand, 3 Barr, 451, 45 Am. Dec. 654 this service: (1846). Georgia. Dibble v. Brown, 12 Tennessee. Bomar v. Maxwell, 9 Ga. 217, 56 Am. Dec. 460 (1852). Humph. 620, 51 Am. Dec. 682 Illinois. Parmelee v. Lowitz, 74 (1849). 111. 116, 24 Am. Rep. 276 (1874). England. Brooke v. Pickwick, 4 Indiana. Frank Bird Transfer Bing. 218 (1827). Co. v. Krug, 30 Ind. App. 602 2 94 U. S. 113, 24 L. ed. 77 (1876). (1902). In the following cases among Missouri. Lemon v. Chanslor, others the propriety of the regula- 68 Mo. 340, 30 Am. Rep. 799 (1878). tion of the services of hackmen is Neio Jersey. See Atlantic City v. recognized: Dehn, 69 N. J. L. 233, 54 Atl. 220 Iowa Bonce v. Dubuque St. (1903). R y . Co., 53 Iowa, 278, 5 N. W. 177, New York Powell v. Myers, 26 36 Am. Rep. 221 (1880). Wend. 591 (1841). New Jersey. Combs v. Lake- Ohio Jones v. Voorhees, 10 wood, 68 N. J. L. 582, 53 Atl. 697 Ohio, 145 (1840). (1902). Pennsylvania. M c G i 1 1 v. Ro- [158] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 188 peculiar regulation in their use of the highways. All the general law governing the operation of automobiles relate to them, and a special license is often necessary for those who engage in the business for hire. If they ply the streets for hire they are undoubtedly holding themselves out as common carriers of passengers. Strictly speaking they are not so identified with ordinary hackney carriages as to be within statutes applying to them. "The Legisla- ture, in using the word carriage had no thought of a ve- hicle made up in large part of complicated machinery and propelled by a powerful engine whose operation is sim- ilar to that of locomotive engines on railroads." : 188. Passenger railways. It is needless to state that railways in general are public carriers of passengers as well as common carriers of goods. Examples will occur where a railway has confined its carriage to the carriage of goods only, 2 and in such case it cannot be called upon to take passengers. Bujt the usual fact is that it has undertaken to carry passengers 3 as well as goods, and then the railway company is bound as 1 A public taxicab was thus held that hold that a passenger railroad not to be a public carriage within is a common carrier bound to ac- the meaning of a penal statute pun- cept all proper passengers who ap- ishing those who evade the estab- ply, are subjoined: lished carriage fares in Common- United States. Thurston v. Union wealth v. Goldman, 205 Mass. 400, Pacific R. R. Co., 4 Dillon, 321 91 N. E. 392 (1910) quoted in the (1877). text. But in Gassenheimer v. Dis- Georgia. Caldwell v. Richmond trict, 26 D. C. App. Gas. 557 (1906) & D. R. Co., 89 Ga. 550, 15 S. E. holding a taxicab a vehicle within a 678 (1892). statute against loitering. Illinois. Galena & C. U. R. R. 2 Illinois. Wiggins Ferry Co. v. Co. v. Yarwood, 15 111. 468 (1854). East St. Louis V. Ry. Co., 107 111. Indiana. Erie Lake & W. Ry. 450 (1883). Co. v. Acres, 108 Ind. 548, 9 N. E. Massachusetts. Commonwealth 453 (1886). v. Fitchburg R. R. Co., 12 Gray, North Carolina. Story v. Nor- 180 (1858). folk & S. R. Co., 133 N. C. 59, 45 1 A very few of the many cases S. E. 349 (1903). [159] 189 ] PUBLIC SERVICE CORPORATIONS a common carrier, when not overcrowded, to take all proper persons who may apply for transportation over its line on their complying with reasonable rules of the com- pany. 189. Street railways. Considered merely as an unproved omnibus line a street railway is obviously a common carrier of passengers. So clearly is this service public in character that the cases all deal with the extent of their obligations, the primary obligation of public service being assumed. For as was said in a leading case in Washington 1 by Mr. Justice Reeves: "Its franchise was granted to appellant by the State, not for its own profit alone or that of its stockholders, but in a large measure for the public bene- fit. Peculiar privileges were conferred upon it in con- sideration that it would provide facilities for communi- cation and for intercourse for the public. It is a common carrier. It was granted the power of eminent domain, a part of the sovereignty of the State, and, with the consent of the municipalities it may lay its tracks over the public streets or highways." 2 1 State v. Spokane St. Ry., 19 Indiana. Citizens' St. R. Co. v. Wash. 518, 53 Pac. 719, 41 L. R. A. Twiname, 111 Ind. 587, 13 N. E. 55 515, 67 Am. St. Rep. 739 (1898). (1887). 2 The following are selected al- Kansas. Topeka City Ry. Co. v. most at random from the in- Higgs, 38 Kan. 375, 16 Pac. 667, 5 numerable cases which define the Am. St. Rep. 754 (1888). public duties of street railways as Massachusetts. Commonwealth common carriers of passengers: v. Interstate Consolidated Ry., 187 United States. Milwaukee Elec. Mass. 436, 73 N. E. 530, 11 L. A. R. Ry. v. Milwaukee, 87 Fed. 577 (N. S.) 973 (1905). (1898). Minnesota State v. St. Paul California. Barrett v. Market City Ry. Co., 78 Minn. 331, 81 N. St. Ry., 81 Cal. 296, 22 Pac. 859, W. 200 (1899). 15 Am. St. Rep. 61, B. & W. 297 Missouri. J a c k s o n v. Grand (1889). Ave. Ry. Co., 118 Mo. 199, 24 S. W. Illinois. Dean v. Chicago Gen- 192 (1893). eral Ry., 64 111. App. 165 (1896). Montana State v. Helena P. & [160] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 190, 191 190. Elevated railways. The successive changes in street railways came about by such imperceptible degrees that it was not held that there was in these gradual developments any change in the situation. The motive power utilized was successively horse, 1 cable, 2 steam, 3 and electricity; 4 but still the law regarded street railways as ordinary carriers over the highways. Thus the occupation of the surface of streets for tramways, whatever motive power may be used, has been held not only a public use but so within the original uses as a highway as not to constitute an additional serv- itude. The construction of elevated railways, however, although admittedly a public use, was held to create an additional servitude by reason of their extensive and permanent occupation of location, and their interference with the light and air of the abutters. This, however, was a close question as a comparison of the majority and minority opinions in the leading case, 5 will show. 191. Underground railways. Underground railways have the same status of common carriers that all public urban passenger services have. L. Co., 32 Mont. 391, 56 Pac. 685 sylvania R. Co., 64 Pa. St. 225, 3 (1899). Am. Rep. 581 (1870). Nebraska. Pray v. Omaha St. l See Holly v. Atlanta St. Ry. Ry. Co., 44 Neb. 167, 62 N. W. 447, Co., 61 Ga. 215, 34 Am. Rep. 97 48 Am. St. Rep. 717 (1895). (1878) New Jersey. State ex rel. City of 2 See Watson v. St. Paul City Bridgeton v. Bridgeton Traction Ry. Co., 42 Minn. 46, 43 N. W. 904 Co., 62 N. J. L. 592, 43 Atl. 715, 45 (1889). L. R. A. 837 (1898). 3 See Spellman v. Lincoln Rapid New York. Loader v. Brooklyn Transit Co., 36 Neb. 890, 55 N. W. Heights R. R. Co., 35 N. Y. Supp. 270, 38 Am. St. Rep. 753 (1893). 996, 14 Misc. 208 (1895). 4 See Thompson-Houston Elec- Oregon. Thompson-Houston trie Co. v. Simon, 20 Oreg. 60, 25 Elec. Co. v. Simon, 20 Oreg. 60, 25 Pac. 147, 23 Am. St. Rep. 86, 10 Pac. 147, 10 L. R. A. 251, 23 Am. St. L. R. A. 251 (1890). Rep. 86 (1890). 6 See Story v. New York Elevated Pennsylvania. Meier v. Penn- R. R. Co., 90 N. Y. 122 (1882). 11 [ 161 ] 192 ] PUBLIC SERVICE CORPORATIONS This underground railway may be arranged for as has been seen 1 by the construction of subways by public author- ities in analogy to highways for the use of which the railway company pays a specified compensation. Or these underground railways may construct their own tunnels under statutes similar to those authorizing the construc- tion of any railroad in which tunneling is incidental merely. In a recent case 2 the Pennsylvania court in deciding such railways to be like other railroads held that such property rights as they invade in such construc- tion they might condemn by eminent domain, paying proper compensation, and thus acquire a permanent right of way underground. 192. Interurban railways. As has been seen, so long as the street railway might be regarded as a development of transportation by such vehicles as omnibuses over highways, it was properly held that its construction involved no additional servi- tudes upon abutters but that they were in fact an actual relief from congested traffic. The modern interurban railway with its heavy trains operated at high speed over country roads as through traffic is very different as the cases now generally hold. In Zehren v. Milwaukee Elec- tric Railway, 3 to quote one case as an example, Judge Jordan said: "The urban railway has developed into the interurban railway, and threatens soon to develop into the interstate railway. The small car which took up passen- gers at one corner, and dropped them at another, has become a large coach, approximating the ordinary railway coach in size, and has become a part, perhaps, of a train 1 Prince v. Crocker, 166 Mass. Ry., 212 Pa. St. 105, 61 Atl. 881 347, 44 N. E. 446, 32 L. R. A. 610 (1905) (1896), discussed in 77, supra. * 99 Wis. 83, 74 N. W. 538, 41 L. 2 Sparks v. Philadelphia, etc., R. A. 575, 67 Am. St. Rep. 844 (1898). [162] COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 193 which sweeps across the country from one city to another, bearing its load of passengers ticketed through, with an occasional local passenger picked up on the highway. The purely city purpose which the urban railway sub- served has developed into or been supplanted by an entirely different purpose, namely, the transportation of passengers from city to city over long stretches of inter- vening country." 1 193. Passenger elevators. In maintaining and operating an elevator for passengers, the owner is, according to the majority of the cases, under a duty to exercise the same measure of care as is required of a public carrier of passengers, the highest degree of care which human foresight can suggest. 2 But certain other cases refuse to go to this extent, holding that as the owner of the elevator is not engaged in a public calling, there is no occasion for imposing the extraordinary lia- bility. 3 In the matter of exercising care, it may be con- 1 See also Aurora v. Elgin Trac- 65 N. W. 136, 30 L. R. A. 534 tion Co., 227 111. 485, 81 N. E. 544, (1895). 118 Am. St. Rep. 284 (1907). Missouri. Goldsmith v. Holland 2 United States. M i t c h e 1 1 v. Bldg. Co., 182 Mo. 597, 81 S. W. Marker, 62 Fed. 139, 22 U. S. App. 1112 (1904). 325, 10 C. C. A. 306, 25 L. R. A. 33 Pennsylvania. Fox v. Philadel- (1894). phia, 208 Pa. St. 127, 57 Atl. 356 Alabama. Morgan v. Saks, 143 (1904). Ala. 139, 38 So. 848 (1904). Tennessee. Southern B. & L. California. Treadwell v. Whit- Assn. v. Lawson, 97 Tenn. 367, 37 tier, 80 Cal. 574, 22 Pac. 266, 5 L. S. W. 86, 56 Am. St. Rep. 804 R. A. 498, 13 Am. St. Rep. 175 (1896). (1889). Washington. Edwards v. Burke, Illinois. C h i c a g o Exchange 36 Wash. 107, 78 Pac. 610 (1904). Bldg. Co. v. Nelson, 197 111. 334, Wisconsin. O b e r n d o r f e r v. 64 N. E. 369 (1902). Pabst, 100 Wis. 505, 76 N. W. 338 Maryland. Wise v. Ackerman, (1898). 76 Md. 375, 25 Atl. 424 (1892). 3 Kentucky P h i 1 1 i p s Co. v. Minnesota. Gurney v. Minneap- Pruitt, 26 Ky. Law Rep. 831, 82 olis Union Elev. Co., 63 Minn. 70, S. W. 628 (1904). [1631 194 ] PUBLIC SERVICE CORPORATIONS ceded, his position is fairly analogous to that of the com- mon carrier of passengers, but beyond this the analogy ceases. No court, indeed, would regard the owner of the elevator as a common carrier for all purposes in the sense that he is engaged in a public calling and obliged to serve all without discrimination. " Carriers not exercising a common calling as such are not common carriers whatever their liabilities may be. But the defendant did not exer- cise the common calling of a carrier, as sufficiently appears from the fact that he might have shut the elevator door in the plaintiff's face and arbitrarily have refused to carry him without incurring any liability to him." 194. Moving platforms. A company operating a moving platform by which passengers might be regularly transported from place to place for an established fare would undoubtedly be held a common carrier. Such a method of transportation has been seriously proposed as a method of relief from the con- gestion of passenger transportation in the city of New York. Just at present this sort of carriage is practically confined to moving stairways. In so far as these are part of the facilities provided by railway companies at their terminals the cases would undoubtedly hold the company liable as a carrier of passengers for any injuries caused in the course of their operation. Such stairways in business buildings would by many cases be held to be covered by the law governing the carriage of passengers in analogy to elevators. Massachusetts Seaver v. Brad- 166 N. Y. 188, 59 N. E. 925, 52 L. Icy, 179 Mass. 329, 60 N. E. 795, 88 R. A. 922, 82 Am. St. Rep. 630 Am. St. Rep. 384 (1901), quoted (1901). above. Rhode Island. Edwards v. Mfrs. Michigan. Hall v. Murdock, Building Co., 27 R. I. 248, 61 Atl. 114 Mich. 233, 72 N. W. 150 (1897). 646, 2 L. R. A. (N. S.) 744, 114 Am. New York. Griff en v. Manice, St. Rep. 37 (1905). [164] LOMMON CARRIAGE AS PUBLIC EMPLOYMENT [ 195, 196 195. Pleasure railways. Where any railway is being actually used in regular travel for the use of which a regular fare is paid, it would seem to be a common carrier of passengers. Mountain railways in general, however devised, would seem to come within these conditions. One must be cautious in stating this, however, as there is a decision in the highest court of New York x to the effect that eminent domain could not be granted to the Niagara Gorge trolley line, Mr. Jus- tice Andrews saying: "The case does not, we think, differ in principle from an attempt on the part of a private corporation, under color of an Act of the Legislature, to condemn lands for an inclined railway, or for a circular railway, or for an observatory, to promote the enjoyment or convenience of those who may visit the Falls." And it is of course true that there are certain enterprises whereby people are moved about, such as " merry-go-rounds," "scenic railways," " shooting- the-chutes," "ferris wheels," and "roller coasters," which are obviously not common carriage, however willing their proprietors may be to take all who will pay. We are certainly outside the range of real travel now, which alone is properly within the coercive law of public carriage. 2 196. Common carriage as a public employment. As has been seen, common carriage has for a long time 1 Matter of the Niagara Falls & North Park Street R. Co., 93 Mich. W. Railway, 108 N. Y. 375, 15 N. 348, 17 L. R. A. 726, 53 N. W. 529 E. 429 (1888). (1892), not liable as insurer. 2 As to the liability of the pro- New York. Lumsden v. L. A. prietors of such pleasure railways, Thompson Scenic R. Co., 130 App. see: Div. 209, 114 N. Y. Supp. 421 Illinois. O'Callaghan v. Dell- (1909), not obliged to explain, wood Park Co., 242 111. 336, 89 N . E . Virginia. Washington Luna 1005, 26 L. R. A. (N. S.) 1054 Park Co. v. Goodrich, 110 Va. 692, (1909), all the care practicable. 66 S. E. 977 (1910), liable for real Michigan. In Knottnerus v. negligence. [165] 196 ] PUBLIC SERVICE CORPORATIONS been regarded as the typical and indeed almost the only public employment; and though the number of public service companies has been greatly increased of late years, it still remains the most important. Upon what grounds is the regulation of common carriers to be justified. Legal privileges are often found, to be sure. Thus emi- nent domain is granted, the steam roads facilitate their construction, and the use of the streets is given to street railways to conduct their business. But, on the other hand, there are many sorts of common carriers which have no special privileges as, for instance, steamship lines and city truckmen. There must be some wider principle, therefore, which operates in establishing the public duties of common carriers as a class. And this is not to be found in natural monopoly, for there is no reason in nature why there should not be as many carriers as any- one might wish for, but in the virtual monopoly of the established service. In the case of the important carriers to-day the railway, the street railway, the express com- pany, the steamship line the enormous amount of money invested discourages and prevents competition. The amount of money necessary to be raised and put at risk in order to enter upon the business of carriage is too great to subject it to competition with an already estab- lished and successful enterprise. Even when an invest- ment is made, a competing line of railroad built or a new express company organized, it soon becomes apparent that competition is ruinous to one if not to both of the enterprises, and consolidation results, bringing monopoly again. The business of carriage is essentially monopo- listic in character, and therefore the situation calls for the special law regulating established monopoly which it has always received. [166] PART II. PUBLIC PROFESSION CHAPTER VI EXPRESS UNDERTAKING OF PUBLIC EMPLOYMENT 200. Public profession an essential element. Topic A. Explicit Profession of Public Service 201. Early assumpsit associated with public calling. 202. Express assumption of a public trust. 203. Displaying signs. 204. Public advertisement. 205. General solicitation. 206. Express disclaimer. 207. Service before business begun. 208. Profession made without authority. 209. Service undertaken beyond obligation. 210. Service undertaken in unusual manner. Topic B. Implicit Undertaking of Public Employment 211. Charter stipulation. 212. Permissive charter. 213. Taking out public license. 214. Exercise of eminent domain. 215. Acceptance of municipal franchises. 216. Entering into municipal contract. 217. Aid from taxation. 218. Governmental participation. 200. Public profession an essential element. It should be remembered, in justification of the impo- sition of the extraordinary law which requires those who are engaged in public callings to serve all that apply, that the service is voluntarily assumed. Even one who has acquired a virtual monopoly is not forced into public [1671 201 ] PUBLIC SERVICE CORPORATIONS service against his will; it is only when he has held him- self out in some way as ready to serve that he is bound thereafter to deal with all indiscriminately. There is no complete case of public employment made out when the business is public in character if there has been in the particular case no profession to serve the public. The converse of this is also true, that there is no case of pub- lic employment if the business is private in character, however much eagerness to deal with the public may have been evinced. That is, the rule is fundamental that in any case of public employment the evidence of profession to serve the public and the proof that the bus- iness is public in character must both be sufficient to carry conviction. For whether there has been profes- sion enough in the particular instance and whether the business is sufficiently public in its general character is in each instance in last analysis a question of fact, al- though rules of law may aid in dealing with these facts. And since this is a question of fact rather than a question of law in most cases, the discussion of it requires the statement of many cases involving many close issues of fact. For although the public profession is often enough made in express terms, it is also not infrequently left to implication from the general course of the business in question. Topic A. Explicit Profession of Public Service 201. Early assumpsit associated with public calling. It has been seen 1 that in the course of the development of our law the obligation resting upon one who had made a general assumption of public service preceded the obli- gation of one who had made a special promise hi a par- ticular case. It has been remarked 2 that the earliest cases 1 See 4, infra. tory of Assumpsit in 2 Harvard See Professor Ames on the His- Law Review, pp. 2-4, citing es- [168] UNDERTAKING OF PUBLIC EMPLOYMENT [ 202 in which an assumpsit was laid in the declaration were cases against a ferryman who undertook to carry the plain- tiff's horse over the river but who overloaded the boat, whereby the horse was drowned, against surgeons who undertook to cure the plaintiff or his animals but who ad- ministered bad medicines or otherwise unskillfully treated their patients, against a barber who negligently injured the plaintiff's face, and against a smith for laming a horse while shoeing it. The general assumption to the whole public which is the characteristic feature of public employ- ment was the very basis of these actions, for the public profession of a common calling was held to oblige one to act with proper skill in his business relations with each patron. 202. Express assumption of a public trust. In the earlier cases of public employment the profession to serve all that apply was spoken of as the assumption of a public trust in undertaking the business or as the grant to the public of an interest in that business. The original rule was clearly expressed over two centuries ago by Lord Holt. 1 " Wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow- subjects he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him; and for that see Keilway, 50. If on the road a shoe falls off my horse, and I come to a smith to have one put on, and the smith refuses to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an in- terest of himself in all the king's subjects that will employ pecially as to the ferryman, Y. B. East. Ent. 2, 6, 1; as to the smith, 22 Lib. Ass. 94, pi. 41; as to the Y. B, 46 Ed. Ill, 19, pi. 19. surgeon, Y. B. 19 Hen. VI, 49, pi. 1 In Lane v. Cotton, 12 Mod. 5; as to the barber, 14 Hen. VII, 472 (1701). [1691 203, 204 ] PUBLIC SERVICE CORPORATIONS him in the way of his trade." And in many later cases this rather figurative language is used. 1 203. Displaying signs. It has been usual from time immemorial for an innkeeper to advertise his business by hanging out a sign, "The person who erects the sign," as it is said quaintly in one old case, 2 ''charges himself to the commonwealth." But it should be noted that as public profession is a question to be determined upon all the facts, it is not essential that he should do so. 3 If he in fact carries on business as an innkeeper on a public basis he will be held to be such although he is not displaying a sign. 4 One leading case 5 on this matter dealt with a lighterman who had his sign over his door. Baron Alderson had no hesitation in holding him liable as a common carrier. "Here, we have a per- son with a counting-house, 'lighterman' painted at his door, and he offers to carry for everyone." 204. Public advertisement. The most obvious method of professing public employ- ment is by general advertisement, particularly in news- papers. Such newspaper advertisement has always been common, for railroads particularly as they generally pub- lish their time-tables. Where a carrier was soliciting bus- iness publicly in various ways, by signs upon its wagons and upon fences, by its cards and its tags, a court said lately: "These advertisements speak for themselves, and unquestionably establish the fact, independent of every- 1 See for examples of this: 'Anonymous, Godbolt, 345, pi. Untied States. Munn v. Illinois, 440 (1623). 94 U. S. 113, 24 L. ed. 77 (1876). Iowa. Lyon v. Smith, Morris, New York. People v. New York 184 (1843). C. & H. R. R. R., 28 Hun, 543 Tennessee. Dickerson v. Rogers, (1883). 4 Humph. 179 (1843). 2 Quoted from Rex v. Collins, B Ingate v. Christie, 3 C. & K. Palmer, 372 (1623). 61 (1850). [170] UNDERTAKING OF PUBLIC EMPLOYMENT [ 205 thing else in the case, that the defendant does hold itself out to the public." 1 This is equally established as to inn- keepers who employ similar methods of publicity. One is held liable as a public innkeeper "who by his agents, cards, bills, advertisements, signs, and all the means by which publicity and notoriety can be given to his bus- iness, represents himself as an innkeeper." 2 Of late years also advertising campaigns have been a feature of the competition between gas companies and electric companies, while even telephone and telegraph companies 'have solicited public patronage through newspaper ad- vertisements. 205. General solicitation. The profession of willingness to serve the public need not be made by the proprietor in any particular way; it is enough if his intention is made public in any way that will give the community to understand that he wishes to do business with all comers. " Whether a person is a common carrier depends wholly upon whether he holds himself out to the world as such, and he can hold himself out as a common carrier by engaging in the business generally, or by announcing or proclaiming it by cards, 1 Quoted from Lloyd v. Haugh Shouse, 5 Rawle, 179, 28 Am. Dec. & K. Storage & Transfer Co., 223 653 (1835). Pa. St. 148, 72 Atl. 516, 21 L. R. A. Tennessee. Memphis News Pub- (N. S.) 188 (1909). lishing Co. v. Southern Ry. Co., See also similar language in: 110 Tenn. 684, 75 S. W. 941, 63 Colorado Schloss v. Wood, 11 L. R. A. 150 (1903). Colo. 287, 17 Pac. 910 (1888). Wisconsin. Doty v. Strong, 1 Kansas. Kansas Pacific Ry. Co. Finn. (Wis.) 313, 40 Am. Dec. 773 v. Nichols, Kennedy & Co., 9 Kans. (1843). 235, 12 Am. Rep. 494 (1872). 2 Quoted from Pinkerton v. Massachusetts. Sears v. Eastern Woodward, 33 Cal. 557, 91 Am. R. R. Co., 14 Allen, 433, 92 Am. Dec. 657 (1867). Dec. 780 (1867). But see Oxlade v. North Eastern Pennsylvania B e c k m a n v. R. R. Co., 1 C. B. (N. S.) 454 (1857). [171] $ 206 ] PUBLIC SERVICE CORPORATIONS advertisements, or by any other means that would let the public know that he intended to be a common or general carrier for the public." 1 The employment of agents to solicit business, usually makes a plain case. The court had in one leading case but little doubt as to the status of a keeper of a hotel who not only kept a public register but also "ran a coach to the railroad station to induce guests to come to his house." 2 So, a hackman who stations himself behind a rail at a station and gesticulates to incoming passengers indicates his character, 3 as does a wagoner who takes his stand in a public square. 4 206. Express disclaimer. The opposite case where there is at the outset an express disclaimer of public service is equally plain. According to the general theory here developed, one gets into public service only by undertaking it voluntarily, and conversely one may keep himself out of it altogether by express disavowal of public employment. This point came up recently in North Carolina, 5 where the question involved was whether a railway projected by a lumber corporation could have the right of eminent domain under a general statute. The company openly declared that it did not propose to transport timber for other parties over the projected road, but intended to construct and operate the road for its sole and exclusive use in removing its timber and lumber from its lands. This attitude, the court held, 1 Schloss v. Wood, 11 Colo. 287, W. & S. (Pa.) 285, 37 Am. Dec. 464 17 Pac. 910 (1888). (1841). 2 Fay v. Pacific Improvement Co., B Cozard v. Kanawha Hardwood 93 Cal. 253, 26 Pac. 1029, 28 Pac. Co., 139 N. C. 283, 51 S. E. 932, 1 943, 16 L. R. A. 188, 27 Am. St. L. R. A. (N. S.) 969, 111 Am. St. Rep. 198 (1892). Rep. 779 (1905). 3 See Atlantic City v. Pansier, Compare Connolly v. Woods, 13 70 N. J. L. 491, 56 Atl. 119 (1904). Idaho, 591, 92 Pac. 573 (1907). 4 See Gordon v. Hutchinson, 1 [1721 UNDERTAKING OF PUBLIC EMPLOYMENT [ 207 put the company outside the general statute. "They say that it is their purpose to construct the railway for their exclusive use. This concession deprives them of the bene- fits of the statute." But when the matter comes up in another way, when duties not rights are involved, such declarations that the business is private will not prevail if the other evidence is to the contrary. Thus in a recent : case where a trucking company which had solicited busi- ness by public advertisements sought to show when sued for a loss that they had often refused to serve particular applicants and were therefore not common carriers, the court said sharply: "To claim that one is not a common carrier, because he has persistently disregarded his duty and has arbitrarily chosen whom he would serve notwith- standing that he has invited the public generally to apply is to make a public duty determinable by the pleasure of the individual, and not by principle or law." 207. Service before business begun. While preparations for establishing the service are going on the business should not be regarded as yet upon a public basis. Thus where a railroad is under construc- tion and is not yet publicly opened for passengers, it is not a common carrier of passengers. This is true though persons have occasionally been carried over the road in construction trains at their own solicitation. 2 In McRae 1 Lloyd v. Haugh & K. Storage L. R. A. 255 (1896); Albion Lumber & Transfer Co., 223 Pa. St. 148, Co. v. De Nobra, 72 Fed. 739, 44 72 Atl. 516, 21 L. R. A. (N. S.) 188 U. S. App. 347, 19 C. C. A. 168 (1909). (1896). See also Bare v. American For- Indiana. Menaugh v. Bedford warding Co., 242 111. 298, 89 N. E. Belt Ry. Co., 157 Ind. 20, 60 N. E. 1021 (1909). 694 (1901); Evansville & R. R. R. 2 United States. Shoemaker v. Co. v. Barnes, 137 Ind. 306, 36 Kingsbury, 12 Wall. 369, 20 L. ed. N. E. 1092 (1893). 432 (1870); Wade v. Lutcher Cy- Kansas. Chicago, K. & W. R. press Lumber Co., 74 Fed. 517, 41 Co. v. Frazer, 55 Kans. 582, 40 Pac. U. S. App. 45, 20 C. C. A. 515, 33 923 (1895). [1731 208 ] PUBLIC SERVICE CORPORATIONS v. Canada Pacific Railway, 1 Mr. Justice Johnson charging the jury, said: " A railway which occasionally carries goods or freight in passenger trains is not a common carrier of goods on such trains; and the same rule applies to a rail- way which occasionally carries passengers in its freight or construction trains, though when persons got on to ride, . the defendants did not put them off. If you find the de- fendants did not solicit passengers, or publicly announce they would be carried, even, if in some or many instances, they have carried passengers for hire at the request and for the special accommodation of applicants, it is clear you have no right to impose upon the defendants the severe obligations which attach to common carriers." Where, however, notwithstanding the road has not been completed the railroad has made a practice of receiving for hire goods and passengers for carriage on its construction trains it will be held to be a common carrier. 2 208. Profession made without authority. The public profession to carry must be made by the carrier himself, or some one duly authorized by him to do it. A particularly clear case is an early one in the Su- preme Court of New York. 3 There the defendant who Texas. San Antonio & A. P. Ry. S. E. 853, 21 Am. St. Rep. 169 v. Robinson, 79 Tex. 608, 15 S. W. (1890). 584 (1891). Iowa. Spence v. Chicago, R. I. 1 Tennessee. Nashville, etc., R. & P. Ry. Co., 117 la. 1, 90 X. W. R. Co. v. Messino, 1 Sneed, 220 346 (1902). (1853). Canada. Graham v. Toronto, Washington. Cogswell v. West etc., R. Co., 23 U. C. C. P. 541 St. & N. E. Elec. R. Co., 5 Wash. (1874); Sheennan v. Toronto, etc., 46, 31 Pac. 411 (1892); Co., 34 U. C. Q. B. 451 (1874). 1 Mont. L. R. 4 S. Ct. 186 (1888). Satterlee v. Groat, 1 Wend. 272 * Arkansas. Little Rock, M. R. (1828). & T. Ry. v. Glidewell, 39 Ark. See also: 487 (1882). Tennessee. Jenkins v. Picket, 9 Georgia. Chattanooga R. & C. Yerg. 480 (1836). R. Co. v. Liddell, 85 Ga. 482, 11 [174] UNDERTAKING OF PUBLIC EMPLOYMENT [ 209 had abandoned the occupation of a common carrier was engaged by a certain person to bring some goods for him. A servant was sent by the defendant to take the goods, but the goods not being ready the servant against ex- press orders solicited and obtained an order from the plain- tiff and then stole some of the goods. It was properly held that the defendant was not liable as common carrier. In a closer case where a person had been accepted as passenger on construction train of an incomplete railroad by the man in charge of the work, the Supreme Court of Indiana well said: 1 " Allen was a superintendent of con- struction and a civil engineer, and it is not shown that he had authority to receive the appellee as a passenger upon a road that had never been opened to the traveling public. The board of directors and the established rules of the company alone could make the appellant a common carrier for hire and the appellee a passenger. The power was not delegated to Allen, and it was beyond the scope of his authority to convert a construction train into a passenger train. He could not open an imperfect and incomplete road into one for passenger -traffic without the consent of his superior officers." 209. Service undertaken beyond obligation. Another point as to the making of the profession should be referred to here although it is more fully discussed later on There are many instances where service is undertaken not within the general obligation resulting Texas. Haynie v. Baylor, 18 company have no authority but by Tex. 498 (1857). virtue of their employment alone, 1 Evansville & R. R. Co. v. to carry passengers on the train, Barnes, 137 Ind. 306 (1893). still where for a period of years the In Harvey v. Deep River Log- manager of a logging company per- ging Co., 49 Oreg. 583, 90 Pac. 501, mits the carriage of passengers on 12 L. R. A. (N. S.) 131 (1907), it its trains, the corporation owes per- was held that although those in sons so carried the duty of not in- charge of the train of a logging juring them bv its negligence. [175] 210 ] PUBLIC SERVICE CORPORATIONS from the usual profession, but by special undertaking in the particular case outside of the usual limitations. The difficult problem in these cases is to determine whether the special acceptance is upon a public basis or upon a private basis, for since it is outside his obligation it is open to the proprietor of the service to extend specially his public profession to the particular case so that the pub- lic law will apply it, or to undertake the service within the private law of ordinary contract. For example, a carrier who does not generally undertake service beyond certain limits might in a particular case undertake service beyond these limits. "It has been repeatedly held that while a railroad cannot be compelled to accept and agree to carry goods to points beyond its line, yet it might do so. If the carrier contracts to convey beyond its line it would be liable as a common carrier for the whole distance." l This, however, will only be true where the railroad leaves it to be understood that it is acting as a common carrier. It may in unusual circumstances by special acceptance in the particular case exempt itself from the usual liabilities of common carriers. 2 210. Service undertaken in unusual manner. Another instance of this general problem of particular undertakings outside usual profession may be seen in a recent case dealing with the public liabilities of telephone companies. The usual business of the telephone com- panies is to put those who wish to converse in communi- cation with each other, the company never accepting a message or delivering it. But it will sometimes be found that the telephone companies have gotten in the way of accepting messages for transmission and delivering them 1 Farley v. Lavary, 107 Ky. 523, this general problem in Santa Fe 45 S. W. 840, 47 L. R. A. 383 P. & P. Ry. Co. v. Grant Bros. C. (1900). See Chapter XV. Co. (Ariz.), 108 Pac. 467 (1910). 1 See the excellent discussion of See Chapter XXII. [176] UNDERTAKING OF PUBLIC EMPLOYMENT [ 211 to the people to whom they are addressed. Of course if no more can be shown in a particular instance than that employe's have undertaken this at the instance of some patrons, the company will not be held responsible in the matter; but sometimes the facts will be stronger, show- ing that this has been so largely practiced as to hold the telephone companies responsible during its contin- uance. In the case in mind 1 it was held that although "a telephone company instructed its operator not to re- ceive messages to be by any agent of the company de- livered to the sendee, yet if it knowingly permitted its employe's, over its wires, to make arrangements for such delivery, and collected from the customer the full charge, including that for delivery, it is liable for the nondelivery, notwithstanding that under its arrangement with its dis- tant operators they were to receive the pay for the de- livery." 2 Topic B. Implicit Undertaking of Public Employment 211. Charter stipulation. In the chartering of the early public service companies, as has been seen, the cautious policy was followed of ex- pressly settling in the very charter the public duties of the chartered company; and mandatory provisions of this sort are not unknown at the present day. Such a charter provision expressly requiring public service of the gran- tee corporation makes a plain case of public obligation by voluntary assumption. The acceptance of such a charter is the voluntary undertaking of the particular corporation by which it is irrevocably bound to perform the service expressly required by the terms of the charter in consideration of the accompanying privileges. 3 This 1 Cumberland Telephone Co. v. 3 Of course the grantee in charter Brown, 104 Tenn. 56, 55 S. W. 155, offering franchises is only bound 50 L. R. A. 277 (1900). upon its acceptance of them. See: 2 See 765, infra. Illinois. Chicago Telephone Co. 12 [ 177 1 212] PUBLIC SERVICE CORPORATIONS point is really too plain for argument, and so the Con- necticut court regarded it when a railroad attempted to withdraw a service which was plainly enough com- manded by its charter: "We hardly know what doubtful principles of law are thought to be involved in this case. The respondents were certainly bound to make their road (if at all) prescribed by their charter, and having made it to put it into use every material part of it and keep it in use until discharged by the legislature." l 212. Permissive charter. The beginnings of the modern law of public service are v. Northwestern Telephone Co., 199 111. 324, 65 N. E. 329 (1902). New York. People v. Albany & Vt. R. R. Co., 24 N. Y. 261, 82 Am. Dec. 295 (1862). 1 An explicit charter provision re- quiring service must be obeyed. See: United States. Union Pacific R. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428 (1875); Atlantic Coast Line Ry. Co. v. North Carolina Corp. Comm., 206 U. S. 1, 51 L. ed. 933 (1906); United States v. Union Pac. Ry. Co., 160 U. S. 1, 40 L. ed. 319, 16 Sup. Ct. 190 (1895); Talcott v. Pine Grove, 1 Flipp. 120, Fed. Cas. No. 13,735 (1872); Farmers' Loan & Trust Co. v. Henning, 8 Fed. Cas. 4,666 (1878). Florida. State v. Jacksonville Terminal Co., 41 Fla. 377, 27 So. 225 (1899). Illinois People v. St. L., A. & T. H. R. R. Co., 176 111. 512, 52 N. E. 292 (1898). Indiana. Lake Erie, etc., R. R. Co. v. The State ex rel. Mushlitz, 139 Ind. 158, 38 N. E. 596 (1894). Iowa. The State v. Central [178] Iowa Ry. Co. et al., 71 Iowa, 410, 32 N. W. 409, 60 Am. Rep. 806 (1887). Kansas. City of Potwin Place v. Topeka Ry. Co., 51 Kans. 609, 33 Pac. 309, 37 Am. St. Rep. 312 (1893). Maine. Weymouth v. Penob- scot Log Driving Co., 71 Me. 29 (1880). Massachusetts. Brownell v. Old Colony R. R. Co., 164 Mass. 29, 41 N. E. 107, 29 L. R. A. 169, 49 Am. St. Rep. 442 (1895). Nebraska. State of Nebraska v. Sioux City, etc., R. R. Co., 7 Neb. 357 (1878). New Jersey. Bridgeton v. Trac- tion Co., 62 N. J. L. 592, 43 Atl. 715 (1898). Oklahoma. U n i t e d States v. Choctaw, O. & G. Ry. Co., 3 Okla. 404, 41 Pac. 729 (1895). Virginia. Southern Ry. Co. v. Franklin, etc., R. R. Co., 96 Va. 693, 32 S. E. 485 (1899). England. Reg. v. Bristol, et^., Ry. Co., 4 Q. B. 162 (1843). New Brunswick. Attorney Gen- eral of New Brunswick, Ex partc, 1 Pug. & Bur. 667 UNDERTAKING OF PUBLIC EMPLOYMENT [ 212 to be found in those cases just before the middle of the nineteenth century, in which it was held that although there was no express provision in chartering a supply company compelling it to serve the public, the situation was such that even where its character was permissive, the obligation was assumed. In the leading case of Lum- bard v. Stearns, 1 Chief Justice Shaw with characteristic insight held that a water company enjoying privileges under a permissive charter must give public service. "By accepting the act of incorporation," he said, " they undertake to do all the public duties required by it." And indeed it is now well-accepted doctrine that the very acceptance of a charter providing for the carrying on of a business public in character is a sufficient profession in the particular case. 2 1 4 Gush. 61 (1849). 2 United States. People v. Col- orado Central R. R. Co., 42 Fed. 638 (1890); Laighton v. Carthage, 175 Fed. 145 (1909). Connecticut. State v. Hartford & N. H. R. R. Co., 29 Conn. 538 (1861). Georgia. Savannah Canal Co. v. Shuman, 91 Ga. 400, 17 S. E. 937, 44 Am. St. Rep. 43 (1892). Kansas. Kansas Pac. Ry. Co. v. Nichols & Co., 9 Kans. 235, 12 Am. Rep. 494 (1872). Kentucky. Board of Trustees of Elizabethtown v. Chesapeake, etc., R. R. Co., 94 Ky. 377, 22 S. W. 609 (1893). Minnesota. State ex rel. City of St. Paul v. St. Paul City Ry. Co., 78 Minn. 331, 81 N. W. 200 (1899). Montana. State v. Helena P. & L. Co., 22 Mont. 391, 56 Pac. 685 (1899). New York. Root v. Great West- ern R. R. Co., 45 N. Y. 524 (1871). Ohio. East Ohio Gas Co. v. Akron, 81 Oh. St. 33, 90 N. E. 40 (1909). Oregon. Haugen v. Albina Light & Water Co., 21 Oreg. 411, 28 Pac. 244, 14 L. R. A. 424 (1891). Pennsylvania. Erie & North- East R. R. v. Casey, 26 Pa. St. 287 (1856). Tennessee. Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Rep. 841 (1897). Texas. San Antonio St. Ry. Co. v. State, 90 Tex. 520, 39 S. W. 926, 35 L. R. A. 662, 59 Am. St. Rep. 834 (1897). Virginia. Southern Ry. Co. v. Franklin, etc., R. Co., 96 Va. 693, 32 S. E. 485, 44 L. R. A. 297 (1899). Washington. State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719, 67 Am. St. Rep. 739 (1898). Wisconsin. State ex rel. v. Frost, [179] 213 PUBLIC SERVICE CORPORATIONS 213. Taking out public license. When it is a question whether a person who is engaged in a business that is public in character : has undertaken it upon a public basis, the fact that the proprietor of the enterprise has taken out the license required by public authority of all who are engaged in that business is highly probative. Thus is one case 2 where the evidence was conflicting as to whether the particular carriage was com- mon carriage, the Court of Appeals of Kentucky said: "We are of opinion that by the evidence of appellant himself it is shown that he was a common carrier within the limits of the City of Lexington. He admits that he hauled for all or any persons, and had. obtained a license 113 Wis. 623, 88 N. W. 912, 89 N. W. 915 (1902). It should be added that there are even cases where a company which has undertaken a service upon a public basis has been held to the liabilities of that position although such service is ultra vires. United States. Wade v. Lutcher & Moore Cypress Lumber Co., 74 Fed. 517, 41 U. S. App. 45, 33 L. R. A. 255, 20 C. C. A. 515 (1896). Georgia. Caldwell v. Richmond, etc., R. Co., 89 Ga. 550, 15 S. E. 678 (1892). 1 The mere fact that a license is required for the conduct of a certain business has no conclusive weight in determining the other question as to whether the business is public in character; for although such licens- ing shows that the business is one over which some degree of State control is necessary, it does not prove that the extreme regulation of the extraordinary law relating to public services is demanded. Thus lawyers, doctors, dentists and drug- [180] gists cannot usually to-day practice their callings without State license based upon special examinations; nor for that matter can electricians, plumbers, engineers and firemen act as such without a license. And yet although such licensing is proper, the law is plain that these callings are not public services in conse- quence. See Hurley v. Edding- field, 156 Ind. 416, 59 N. E. 1058, 53 L. R. A. 135, 83 Am. St. Rep. 198 (1901). 2 Farley v. Lavary, 107 Ky. 523, 54 S. W. 840, 47 L. R. A. 383 (1900). See also: Alabama. Babcock v. Herbert, 3 Ala. 392, 37 Am. Dec. 695 (1842). Illinois. Hastings Express Co. v. Chicago, 135 111. App. 268 (1907). Indiana. Fargo v. Ledger Stand- ard Co., 59 Ind. 496 (1877). New Jersey. Atlantic City v. Fonsler, 70 N. J. L. 125, 56 Atl. 119 (1903). New York. Robinson v. Corn- ish, 13 N. Y. Supp. 577 (1890). UNDERTAKING OF PUBLIC EMPLOYMENT [ 214 so to do." But a failure to take out a license although such license is required of those who are engaged in the employment in question, is not conclusive against public employment if public profession is otherwise evidenced by usual conduct. As was said in such a case by a California court: 1 "It was proven, that defendants held themselves out as public ferrymen, and were accustomed to convey persons and property across the straits, for hire; and, so far as the rights of plaintiffs were concerned, it was immaterial whether or not they were duly authorized to run such a ferry. If they were assuming to act as ferry- men, without license, they could not take advantage of their own wrong to avoid the responsibility which at- tached to their calling." 2 214. Exercise of eminent domain. A factor which if present is always seized upon first to show that the service in question is necessarily con- ducted upon a public basis, is the exercise of the right of eminent domain by the proprietors of the enterprise. This has always been considered as conclusive evidence of irrevocable profession of public employment in the ab- 1 Polk v. Coffin, 9 Cal. 56 (1858). 4 Humph. 179, 40 Am. Dec. 642 Thus the failure of an innkeeper (1843). to procure a license as required by 2 Even as to those callings which law, does not prevent him from be- may be public in character, a license ing held liable as an innkeeper. is sometimes required of those who Alabama. L a n i e r v. Young- are carrying on that business upon a blood, 73 Ala. 587 (1883). private basis; so that merely taking Iowa. Lyon v. Smith, Morris, out a license even in such businesses 184 (1843). is not conclusive evidence of public Maine. Norcross v. Norcross, 53 employment. See: Me. 163 (1865); Atwater v. Saw- Minnesota. State ex rel. v. W. yer, 76 Me. 539, 49 Am. Rep. 634 W. Cargill Co., 77 Minn. 223, 79 (1884). N. W. 962 (1899). North Carolina. State v. Wynne, New Jersey. Atlantic City v. 1 Hawks, 451 (1821). Dehn, 69 N. J. L. 233, 54 Atl. 220 Tennessee. Dickerson v. Rogers, (1903). [1811 214 PUBLIC SERVICE CORPORATIONS sence of an express disclaimer at the time of acceptance. 1 It is difficult to select one quotation to this effect from the almost innumerable decisions in which this point is made; but in one New Jersey case it is put most suc- cinctly: "The, fact that the legislature has granted the right to take private property clearly evinced the legis- lative intent to lay such companies under obligations to the public to permit the use of their lines by all persons under reasonable regulations; and, in accepting the bene- fits of this law, the recipient of them assumes the per- formance of this duty to the public." 2 1 An express disclaimer, when claiming the right of eminent do- main, of all intention to serve the public, would, of course, show that the company could not legally exer- cise that right. See Cozard v. Kanawha Hardwood Co., 139 N. C. 283, 51 S. E. 932, 1 L. R. A. 969, 111 Am. St'. Rep. 779 (1905), dis- cussed in 206, supra. 2 Quoted from State ex rel. v. American & E. News Co., 43 N. J. L. 381. The following cases in which the language is to the same effect, are selected almost at random: United States. Chicago, etc., R. R. Co. v. Ackley, 94 U. S. 179, 24 L. cd. 99 (1876). Georgia. Caldwell v. Richmond, etc., R. R. Co., 89 Ga. 550, 15 S. E. 678 (1892). Indiana. Cincinnati, I. & W. Ry. Co. v. City of Connersville, 170 Ind. 316, 83 N. E. 503 (1908); State ex rel. v. Consumers' Gas Co., 157 Ind. 345, 61 N. E. 674 (1901). Iowa. Jones & Price v. The Mahaska County Coal Co., 47 Iowa, 35 (1877). [182] Kentucky. Owensboro Gaslig'it Co. v. Hildebrand, 19 Ky. L. Rep. 983 (1897). Maine. New England Ex| Co. v. Maine Central R. R. Co., 57 Me. 188, 2 Am. Rep. 31 (1809). Montana. State v. Buttc Water Co., 18 Mont. 199, 44 Pac. 9GG, 50 Am. St. Rep. 574 (1896). Nebraska. State v. Missouri Pac. Ry. Co., 81 Neb. 174, 115 N. W. 757 (1908). Nevada. Gibson v. Mason, 5 Nev. 283 (1869). New Jersey. Rogers Locomotive & M. Works v. Erie Ry. Co., 20 N. J. Eq. 379 (1869). New York. Armour Packing Co. v. Edison Electric Illuminating Co., 115 N. Y. App. Div. 51, 100 N. Y. Supp. 605 (1906). North Carolina. Green v. Tele- graph Co., 136 N. C. 489, 49 S. E. 165 (1904). Ohio. Cincinnati, H. & D. R. R. Co. v. Village of Bowling Green, 57 Oh. St. 336, 49 N. E. 121 (1897). Oregon. Haugen v. Albina Light & Water Co., 21 Oreg. 411, 28 Pac. 244, 14 L. R. A. 424 (1891). UNDERTAKING OF PUBLIC EMPLOYMENT [ 215 216. Acceptance of municipal franchises. The household service which constitutes the character- istic type of modern employments which are public in character cannot be carried on without local franchises, as the use of the streets is almost always indispensable. Since this is true of surface railroads and other methods of urban transportation, of gas supply and electricity, of water and sewerage, the argument has often been made that the public charapter of these services is the result of the municipal franchises which they have received for the use of the public streets. But as has been seen ear- lier, this view of the matter mistakes consequence for cause; since, unless these services were public in char- acter, these franchises could not be constitutionally granted. And yet there is a certain truth in these state- ments, for granted that the service is of public necessity, the acceptance of such a franchise is certainly almost conclusive evidence of public profession, and the lan- guage referred to is usually consistent with this explana- tion. As was well said by the Supreme Court of Indiana 1 in one of the many cases dealing with gas supply: " These rights which evoke an element of sovereignty and which can only exist by grant from the public rest upon the principle that their existence will bestow a benefit upon that part of the public in whose behalf the grant is made and the benefit received by the citizen is adequate con- sideration for the right of convenience surrendered by him; the grant thus resting upon a public and reciprocal arrangement imposes upon the appellee a legal obliga- tion to serve all the members of the public contributing to its asserted right impartially." 2 Tennessee. Watauga Water Co. 2 From the almost innumerable v. Wolfe, 99 Tenn. 429, 41 S. W. cases in which this point has been 1060, 63 Am. St. Rep. 841 (1897). made the following rather wide se- ptate v. Consumers' Gas Co., lection has been made: 157 Ind. 345, 61 N. E. 674 (1901). Florida City of Tampa v. [183] 216 PUBLIC SERVICE CORPORATIONS 216. Entering into municipal contract. The obligations of public service consequent upon the acceptance of a municipal franchise are more plain of course where the service company in obtaining its privi- leges is obliged to enter into a formal contract with the governmental body unequivocally undertaking general service for all who apply upon the favorable conditions therein promised. Nevertheless, it is somewhat difficult to explain how the private citizen gains individual rights under such a contract. Various theories have been ad- vanced to give citizens individually the right to enforce the contract. None of these, as will be seen, really explain the situation. The truth of this matter, as is pointed out in a late case, 1 is probably, that the entering into this Tampa Water Works Co., 45 Fla. 600, 34 So. 631 (1903). Georgia. F r e e m a n v. Macon Gaslight & Water Co., 126 Ga. 843, 56 S. E. 61 (1906). Indiana. State ex rel. v. Con- sumers' Gas Trust Co., 157 Ind. 345, 61 N. E. 674 (1901). Kentucky. Owensboro Gaslight Co. v. Hildebrand, 19 Ky. L. Rep. 983 (1897). Maine. Brunswick Gas Light Co. v. United Gas, Fuel & Light Co., 85 Me. 532, 27 Atl. 525, 35 Am. St. Rep. 385 (1893). Michigan. Mahan v. Michigan Telephone Co., 132 Mich. 242, 93 N. W. 629 (1903). Missouri. State ex rel. v. Joplin Water Works, 52 Mo. App. 312 (1893). Montana. State v. Butte Water Co., 18 Mont. 199, 44 Pac. 966, 56 Am. St. R. 574 (1896). Nebraska. A m e r i c a n Water Works v. Nebraska, 46 Neb. 194, [184] 64 N. W. 711, 50 Am. St. Rep. 610 (1895). New York. Armour Packing Co. v. Edison Electric Illuminating Co., 115 N. Y. App. Div. 51, 100 N. Y. Supp. 605 (1906). Ohio. Cincinnati, etc., R. R. Co. v. Village of Bowling Green, 57 Ohio St. 336, 49 N. E. 121 (1897). Oregon. Haugen v. Albina Light & Water Co., 21 Oreg. 411, 28 Pac. 244, 14 L. R. A. 424 (1891). Tennessee. Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Rep. 841 (1897). Washington. State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719, 67 Am. St. Rep. 739 (1898). Wisconsin. City of Madison v. Madison Gas & Electric Co., 129 Wis. 249, 108 N. W. 65 (1906). 1 The quotation which follows is from the opinion of Evans, J., in Freeman v. Macon Gaslight & Water Co., 126 Ga. 843, 56 S. E. 61 (1906). UNDERTAKING OF PUBLIC EMPLOYMENT [ 217 formal contract with the governmental authorities is a plain commitment to public service. "The water com- pany by entering into the contract which the General Assembly authorized the city to make with that company, accepted the privilege of supplying the citizens of that city, as such, upon certain terms, and became a public service corporation with an express statutory duty to perform. This duty the company owed to every private consumer of water, independently of any contract duty it owed the municipality itself, considered as a munici- pal corporation engaged in the discharge of governmen- tal functions." 1 217. Aid from taxation. Especially is this assumption of profession to serve the public justifiable in the case of the proprietor of any business public in character who accepts aid from the public treasury, directly or indirectly, by grant or guar- anty. As public funds under our constitutional law can only be used for a public purpose, it should always be assumed that, in taking such aid, the recipient is not par- ticipating in any illegality. On the other hand, that pub- lic grants may be made to private corporations which 1 The following cases also consider 102 Mo. 472, 14 S. W. 974, 15 S. W. a municipal contract as conclusive 383 (1890). evidence of public obligation: Montana. State v. Butte Water United States. Los Angeles v. Co., 18 Mont. 199, 44 Pac. 966, 56 Los Angeles City Water Co., 177 Am. St. Rep. 574 (1896). U. S. 558, 43 L. ed. 886, 20 Sup. Ct. New Jersey Mayor of Boonton 736 (1900). v. Boonton Water Co. (N. J.), 61 Alabama. Smith v. Birmingham Atl. 390 (1904). Water Co., 104 Ala. 315, 16 So. 123 Pennsylvania. School District v. (1893). Enterprise Nat. Gas Co., 18 Pa. Michigan. Mahan & Michigan Sup. Ct. 73 (1901). Telephone Co., 132 Mich. 242, 93 Tennessee. Watauga Water Co. N. W. 629 (1903). v. Wolfe, 99 Tenn. 429, 41 S. W. Missouri. State ex rel. City of 1060, 63 Am. St. Rep. 841 (1897). St. Louis v. Laclede Gaslight Co., [185] 218] PUBLIC SERVICE CORPORATIONS have openly undertaken public service is well established. " That a railroad is a work in which the public are inter- ested to the extent that a tax imposed in aid of it must be upheld, is a proposition upon which there is no diversity of authority whatever." : And when a railway enjoys the privilege of having its property exempt from the general burden of taxation, there cannot be a clearer case of pri- vate property devoted for a valuable consideration to public use; and consequently subject to public regulation. 2 218. Governmental participation. One other situation at least justifies the natural in- ference that the business undertaken is upon a public basis. Where the State itself participates in the enter- prise whether in the ownership of the property merely or in the conduct of the enterprise it must again be true that service is to be rendered to the public indiscriminately or else participation of the State will be unjustifiable. As was said by the judges of the Massachusetts Supreme Judicial Court in advising the legislature that munici- palities might constitutionally be given the power to en- gage in the production and sale of gas and electricity: "In general it may be said that matters which concern the welfare and convenience of all the inhabitants of a city or town, and cannot be successfully dealt with with- 1 See Gibson v. Mason, 5 Nev. Ohio. Cincinnati, etc., R. R. Co. 283 (1869), citing among others, the v. Commissioners of Clinton County, following cases: 1 Oh. St. 77 (1852). Connecticut. City of Bridgeport 2 The leading case is probably v. Housatonic R. R. Co., 15 Conn, township of Pine Grove v. Talcott, 475 (1843). 19 Wall. 666, 22 L. ed. 227 (1873), Indiana. City of Aurora v. where bonds issued to aid in the West, 9 Ind. 74 (1857). construction of a railroad were held Kentucky. Talbot v. Dent, 9 valid, the court saying: "Though B. Mon. 526 (1849). the corporation was private its New York. Buffalo & New York work was public, as much so as R. R. v. Brainard, 9 N. Y. 100 if it were constructed by the (1853). State." [186] UNDERTAKING OF PUBLIC EMPLOYMENT [ 218 out the aid of powers derived from the legislature, may be subjected to municipal control when the benefits re- ceived are such that each inhabitant needs them and may participate in them, and it is for the interest of each in- habitant that others as well as himself should possess and enjoy them." * The justification for the devotion of funds raised from taxation to the conduct of these busi- nesses is that the public may demand service under lim- itations set by law. Notwithstanding occasional attempts by municipal authorities to escape from their public duties it is recognized in all the cases that when a business of this sort is carried on by governmental bodies they are necessarily subjected to the whole law governing public service by private corporations. The entrance of a pub- lic body into these businesses is therefore a plain an- nouncement that it is prepared to serve all upon proper conditions. 2 1 Opinion of the Justices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487 (1890). This represents the rule now gen- erally accepted that governmental bodies may be constitutionally em- powered to participate in, or take control of, the ownership or manage- ment of public services. See for examples of this: United States. Thompson-Hous- ton Electric Co. v. Newton, 42 Fed. 723 (1890), (electric supply). Indiana. Crawfordsville v. Bra- den, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268, 30 Am. St. Rep. 214 (1891). Michigan. Mitchell v. Negaunee, 113 Mich. 359, 71 N. W. 646, 38 L. R. A. 157, 67 Am. St. Rep. 468 (1897), (electric supply). Ohio. State v. Toledo, 48 Oh. St. 112, 26 N. E. 1061 (1891), (gas supply). Pennsylvania. Linn v. Cham- bersburg Borough, 160 Pa. St. 511, 28 Atl. 842 (1894), (electric supply). Tennessee. Smith v. Nashville, 88 Tenn. 464, 12 S. W. 924 (1890), (water supply). But see: Mauldin v. City Coun- cil of Greenville, 33 S. C. 1, 11 S. E. 434, 8 L. R. A. 291 (1889). 2 See these prominent cases sup- porting the text: Alabama. Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445 (1900). New York. Silkman v. Water Commissioners, 152 N. Y. 327, 46 N. E. 612, 37 L. R. A. 827 (1897). [187] CHAPTER VH IMPLIED PROFESSION OF PUBLIC EMPLOYMENT 220. Conduct evidencing public employment. Topic A. Public Employments and Private Enterprises 221. Potential use by the public. 222. Public access held indispensable. 223. Industrial railroads. 224. Lateral branches. 225. Public spur. 226. Private siding. Topic B. Characteristics of Public Business 227. Public service in regular course. 228. Public employment carter. 229. Regular service shipmaster. 230. Established charge expressmen. 231. Indiscriminate service irrigation. 232. Public profession warehousing. Topic C. Characteristics of Private Business 233. Private contract as the basis. 234. Occasional business householders. 235. Casual employment shipowners. 236. Intermittent employment teamsters. 237. Limited undertaking ferries. 238. Incidental service merchants. Topic D. Particular Illustrations of the Distinction 239. Public and private carriers in general. 240. Public inn and private house. 241. Public and private highways of every sort. 242. Public and private waterworks. 243. Public and private gas and electricity. 244. Public and private telephone and telegraph. 220. Conduct evidencing public employment. That public profession in last analysis is always [188] PROFESSION OP PUBLIC EMPLOYMENT [ 221 question of fact, although governed by principles of law, must now be obvious. When there is an express declara- tion, or such undertaking as is equivalent to it, that question, as has just been seen, is comparatively simple. But the undertaking to serve the public may be evidenced by conduct as well as declaration; and this will often be a very puzzling problem of the preponderance of evidence, which may establish a case of public profession, notwith- standing certain facts usually showing private employ- ment. Probably the best that can be done in this chap- ter with a subject of such importance is to collect the principal cases distinguishing public profession and pri- vate undertaking, and point out what situations are char- acteristic of each type. It should be said at the outset, however, that it is always a question upon the whole proof in the particular case whether the proprietors of the business have done enough to give people generally the impression that they are at the disposal of the public. Thus an innkeeper who declared that her house was not a public one was refuted by her own admission that she took in almost everybody who would pay her prices. 1 So a carrier did not escape the liability of an insurer by show- ing that he often refused people whom he did not think it advantageous to serve, as this would simply show that he had sometimes failed to fulfill his obligations. 2 Topic A. Public Employments and Private Enterprises 221. Potential use by the public. Public service is the fundamental thing; but wherever there is the real possibility of use as a matter of right by all within the sphere of the service, the mere fact that the service will in all probability be available to a lim- 1 Jaquet v. Edwards, 1 Jamaica, & Tr. Co., 223 Pa. St. 148, 72 4 (1867). Atl. 516, 21 L. R. A. (N. S.) 188 2 Lloyd v. Haugh & K. Storage (1909). [189] 222 ] PUBLIC SERVICE CORPORATIONS ited number of persons should not be sufficient to pre- vent it from being considered as sufficiently public. As the New York court : put it, in holding public a water- works serving a few persons: " Public use may be lim- ited to the inhabitants of a small or restricted locality, but the use must be in common and not for a particular individual." There is, however, a California irrigation case which held that the mere possibility of public use to a limited neighborhood is too illusory to justify the grant of special privileges. 2 There is also a case in Maine which held hydro-electric power development not a pub- lic service because after the water power was exhausted no more of the public could be supplied. 3 And in a recent Minnesota case 4 although the distribution of electrical power was said to be sufficiently general to be public in character it was held that the sale of water power direct from the wheels to adjoining factories was not. "A public use," said the court, "does not require that the property be capable of being used by the entire public, or any por- tion thereof; but a use which by physical conditions is restricted to a very few persons who must use it within a very restricted area, is not a public use." 222. Public access held indispensable. It seems to be established that public access to the 1 Pocantico Water Works Co. v. 61 Atl. 785, 70 L. R. A. 472 (1905). Bird, 130 N. Y. 249, 29 N. E. 246 By the great weight of authority (1891). But most courts hold in- hydro-electric power development discriminate water supply public in is a public service. See 114, character. See citations in 92, supra. supra. * Minnesota Canal & Power Co. 2 Aliso Water Co. v. Baker, 95 v. Koochiching Co., 97 Minn. 429, Cal. 268, 30 Pac. 537 (1892). Irri- 107 N. W. 405, 5 L. R. A. (N. S.) gation on a public basis is public 638 (1906). Whether the direct in character even if there be few sale of water power is public in takers. See 93, supra. character is doubtful as the author- 3 Brown v. Gerald, 100 Me. 351, ities. See 95, supra. [1901 PROFESSION OF PUBLIC EMPLOYMENT [ 222 service offered is indispensable. This is well illustrated by a peculiar case in New York 1 where both ends of a cable tramway were upon the private land of its proprie- tors; and in view of that fact alone, the Court of Appeals held that it was necessarily a private enterprise. "A contemplated possible limited use by a few, and then not as a right, but by way of permission or favor, is not a public use." Another case 2 outside the beaten track is that of a certain lumber skid-road for which, it was held, eminent domain could not be granted, as both termini of the proposed road were entirely surrounded by the prop- erty of the proprietors so that the public had no access thereto. On the other hand, if a special railway is being built to serve particular mines it will be public in char- acter if the owners of other properties through which it passes are to be free to use it. As the Superior Court of New Jersey 3 well said of such a railway: "This enterprise does not lose the character of a public use because of the fact that the projected railroad is not a thoroughfare, and that its use may be limited by circumstances to a com- paratively small part of the public. Every one of the public having occasion to send materials, implements or machinery for mining purposes into, or to obtain ores from the several mining tracts adjacent to the location of this road may use this railroad for that purpose, and of right may require the company to serve him in that respect; and that is the test which determines whether the use is public." There are other cases of indus- trial development to the same effect mining tunnels, 1 Matter of Split Rock Cable Rd., 54 Pac. 367, 882 (1898). But see 128 N. Y. 408, 28 N. E. 506 (1891). Bridal Veil Lumbering Co. v. John- See also Re Niagara Falls & W. son, 30 Oreg. 205, 46 Pac. 790, 34 Ry. Co., 108 N. Y. 375, 15 N. E. L. R. A. 368, 60 Am. St. Rep. 818 429 (1888). (1896). 2 Apex Transportation Co. v. 3 De Camp v. Hibernia R. R. Co., Garbade, 32 Oreg. 582, 52 Pac. 573, 47 N. J. L. 43 (1885). [1911 223 for example l which have been held to be public in character. 223. Industrial railroads. Of course railroad operation is, generally speaking, common carriage as appears in countless cases. But private railways are not unknown; and it is often diffi- cult to determine whether a certain railway is public or private. The difficult case is that of a railway constructed largely in the interest of the owners of a particular in- dustrial enterprise to give them necessary service. Even such a railway may be a public one, as a Minnesota case holds. "If all the people have the right to use the road it is a public use or interest although the number who have business requiring its use may be small." 2 On the other 1 In accord with the text are the following cases among others: United Stales. Baillie v. Larson, 138 Fed. 177 (1905). Colorado. Tanner v. Tr. Tun- nel, Mining & Reduction Co., 35 Colo. 593, 83 Pac. 464, 4 L. R. A. (N. S.) 464 (1906). 2 Quoted from Kettle River R. R. Co. v. Eastern Ry. Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. L. Ill (1889). Other important cases to the same effect are: Georgia. Butler v. Tifton Ry. Co., 121 Ga. 817, 49 S. E. 763 (1904). Iowa. Phillips v. Watson, 63 la. 28, 18 N. W. 659 (1884). Kentucky. Louisville, etc., R. R. Co. v. Pittsburg & K. Coal Co., Ill Ky. 960, 23 Ky. L. Rep. 1318, 64 S. W. 969, 55 L. R. A. 601, 98 Am. St. Rep. 447 (1901). Maine. Ulmer v. Lime Rock R. [192] R. Co., 98 Me. 579, 57 All. 100, 66 L. R. A. 387 (1904). Maryland. New Central Coal Co. v. George's Creek C. & I. Co., 37 Md. 537 (1872). Missouri. Dietrich v. Murdock, 42 Mo. 279 (1868). Montana. Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508 (1895). Oregon. Bridal Veil Lumbering Co. v. Johnson, 30 Oreg. 205, 46 Pac. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818 (1896). Wisconsin. Maginnis v. Knick- erbocker Ice Co., 112 Wis. 385, 88 N. W. 300, 69 L. R. A. 833 (1901). A private lumber railway by run- ning a motor car for passenger serv- ice does not become a common car- rier of freight. Edgar Lumber Co. v. Cornic Stave Co. (Ark.), 130 S. W. 452 (1910). PROFESSION OF PUBLIC EMPLOYMENT [ 223 hand, a railroad constructed and used merely in connec- tion with the conduct of a private business is not a com- mon carrier. So, where a railroad is built to haul logs from the forests to the sawmill of the owner, it is not a common carrier. It cannot be seriously contended, said the Circuit Court of Appeals, that an article of the State Constitution which dealt with corporations of public improvement and utility, 1 "was intended to, or could be so construed as to make out, of a logging railroad ap- purtenant to a sawmill, constructed wholly on private grounds, and operated for a private purpose, a common carrier charged with all the duties and responsibilities in- cumbent by the laws of the land upon common carriers, and simply because it is a railroad and the owners are incorporated as a business corporation. It seems to us, we might as well hold that a railroad on a sugar planta- tion appurtenant to the sugar mill and used for carrying cane thereto, should be declared a common carrier." 1 Quoted from Wade v. Lutcher & burg Mfg. Co., 132 N. C. 167, 43 Moore Lumber Co., 74 Fed. 517, 20 S. E. 632 (1903); Cozard v. Kana- C. C. A. 515, 33 L. R. A. 255 (1896). wha Hardwood Co., 139 N. C. 283, Other important cases to the 51 S. E. 932, 1 L. R. A. (N. S.) 969, same effect are: 111 Am. St. Rep. 779 (1905). United States. Weidenfeld v. It is perhaps not quite accurate Sugar Run Ry., 48 Fed. 615 (1892); to divide the cases as they are be- Albion Lumber Co. v. De Nobra, 72 tween the two notes above. Some Fed. 739, 19 C. C. A. 168 (1896). few of them hold that although California. Contra, Costa R. R. never committed to full service as Co. v. Moss, 23 Cal. 323 (1863). passenger carriers, such industrial Georgia. White v. Kennon & railways may become by long con- Co., 83 Ga. 343, 9 S. E. 1082 (1889); tinued action, if acquiesced in by Normandale Lumber Co. v. Knight, their proprietors, liable for not using 89 Ga. Ill, 14 S. E. 882 (1892). what care it was fair for a passenger Illinois. Litchfield & M. Ry. to expect under the circumstances. Co. v. The People, 222 111. 242, 78 Minnesota Campbell v. Duluth N. E. 589 (1906). & Northeastern R. R. Co., 107 Louisiana Williams et al. v. Minn. 358, 120 N. W. 375 (1909). Judge, 45 La. Ann. 1295, 14 So. 57 Oregon. Harvey v. Deep River (1893). Logging Co., 49 Oreg. 583, 90 Pac. North Carolina Leigh v. Garys- 501, 12 L. R. A. (N. S.) 131 (1907). 13 [ 193 ] 224 PUBLIC SERVICE CORPORATIONS 224. Lateral branches. When a public railroad builds a branch line from its road, primarily to accommodate some individual busi- ness, it is nevertheless a common carrier over the branch, and the use of the track is open to all who have occasion to use it as well as to the particular individual for whose benefit it was built. 1 The general question is perhaps more often raised by a petition to take land for this pur- pose by eminent domain. This is universally decided to be permissible, for the operation of such a branch is a public use. As the court said in one of these cases, Chi- cago & Northwestern Railway v. Morehouse, 2 "The tak- 1 United States. Interstate Com- merce Commission v. Delaware, L. & W. R. R. Co., 216 U. S. 531, 30 Sup. Ct. 415 (1910). Alabama. Agee & Co. v. Louis- ville & N. R. Co., 142 Ala. 344, 37 So. 680 (1904). Georgia Butler v. Tifton, T. & G. R. R., 121 Ga. 817, 49 S. E. 763 (1904). Illinois. Chicago & A. R. R. Co. v. Suffern, 129 111. 274, 21 N. E. 824 (1889). Kentucky. Louisville, etc., R. R. Co. v. Pittsburg & K. Coal Co., Ill Ky. 960, 23 Ky. L. Rep. 1318, 64 S. W. 969, 55 L. R. A. 601 (1901); Bedford-Bowling Green Co. v. Oman, 115 Ky. 369, 73 S. W. 1039 (1903). Louisiana. Kansas City S. & G. Ry. Co. v. Louisiana, etc., R. Co., 116 La. 178, 40 So. 627, 5 L. R. A. (N. S.) 512 (1905). Minnesota. State ex rel. R. & W. Com. v. Willmar & S. F. R. Ry. Co., 88 Minn. 448, 93 N. W. 112 (1903). Nebraska. Roby v. State ex rel. [194] Farmers' G. & L. S. Co., 76 Neb. 450, 107 N. W. 766 (1906). New York. Kellogg v. Sowerby, 87 N. Y. Supp. 412, 93 App. Div. 124 (1904). , South Carolina. A v i n g e r v. South Carolina R. Co., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716 (1888). Texas. Railroad Comm'rs v. St. Louis & S. W. Ry. (Tex.), 80 S. W. 102 (1904) . Compare Kyle v. Texas & N. O. R. R. (Tex. Civ. App.), 4 L. R. A. 275 (1889). 2 112 Wis. 1, 87 N. W. 849, 56 L. R. A. 240, 88 Am. St. Rep. 918 (1901). To the same effect are: Arkansas. St. Louis, I. M. & S. Ry. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L. R. A. 434 (1893). Maine. Ulmer v. Lime Rock R. R., 98 Me. 579, 57 Atl. 1001 (1904). Michigan. Toledo S. & M. R. R. v. East S. & S. C. R. R., 72 Mich. 206, 40 N. W. 436 (1888). Montana. Butte A. & P. Ry. v. Montana U. Ry., 16 Mont. 504, 41 PKOFESSION OF PUBLIC EMPLOYMENT [ 225 ing of land for a spur track to connect with a single in- dustry is a taking for public use, if the purpose of the company is to maintain and operate such track as an in- tegral part of its railway system, so as to serve all who may desire it, and all can demand, as a right, to be served without discrimination." 225. Public spur. The distinction between a public spur and a private siding necessarily involves similar considerations. If the track runs for any considerable distance so that by possi- bility the road may be of use to several persons, its con- struction is a public purpose, even though the immediate use of the spur is to be made by one concern which is the moving party in its construction. As the court said in one leading case in Illinois: 1 "We have not regarded the circumstances that they were laid with private funds, and that they terminated opposite or within convenient contiguity of a private manufacturing establishment, as materially affecting them and giving a private character to their use. All termini of tracks and switches are more or less beneficial to private parties, but the public char- acter of the use of the tracks is never affected by this. If they are open to public control to the extent that rail- road tracks generally are, they are tracks for public use." It may be in such cases that it is expected or even that it is intended that such tracks will be used al- most entirely by the manufacturing establishment, yet if there is no exclusion of the equal rights of use by others, and this singleness of use is simply the result of Pac. 232, 31 L. R. A. 298, 50 Am. Co. v. Johnson, 30 Oreg. 205, 46 St. Rep. 508 (1895). Pac. 790, 34 L. R. A. 368, 60 Am. New Jersey. De Camp v. Hi- St. Rep. 818 (1896). hernia R. R., 47 N. J. L. 43 x Chicago Dock, etc., Co. v. (1885). Garrity, 115 111. 155, 3 N. E. 448 Oregon. Bridal Veil Lumbering (1885). [195] 226 PUBLIC SERVICE CORPORATIONS location and convenience of access, it cannot affect the question. 1 226. Private siding. On the other hand, a private siding leading merely from private property to the line of a public railroad over which the public can have no rights is not a public util- ity. This is plainly true where the premises of the in- dividual benefited either directly adjoin the railroad or are separated only by a few feet, so that the intervening land can be accommodated from the main track. Thus in another Illinois case 2 where it appeared that a coal company desired to condemn by right of eminent domain a strip of private land in order to connect its private tramway with a railroad the court held that this could 1 In the following cases a railroad spur was held to be public in char- acter although constructed prima- rily for the benefit of particular con- cerns: Alabama. Agee & Co. v. Louis- ville & N. R. Co., 142 Ala. 344, 37 So. 680 (1904). Georgia. Jones & Co. v. Ven- able, 120 Ga. 1, 47 S. E. 549 (1904). Iowa. Morrison v. Thistle Coal Co., 119 Iowa, 705, 94 N. W. 507 (1903). Kentucky. Straight Creek Coal Mining Co. v. Straight Creek Coal & C. Co..(Ky.), 122 S. W. 842 (1909). Louisiana. Kansas City, S. & G. Ry. Co. v. Louisiana W. Ry. Co., 116 La. 178, 40 So. 627, 5 L. R. A. (N. S.) 512 (1905). Maine. Ulmer v. Lime Rock Ry., 98 Me. 579, 57 Atl. 1001 (1904). Maryland. Dulaney v. United Ry. & Electric Co., 104 Md. 423, 65 Atl. 45 (1906). Michigan. Toledo, S. & M. R. R. [196] v. East Saginaw, etc., R. R. Co., 72 Mich. 206, 40 N. W. 436 (1888). Minnesota. Chicago, B. & N. R. R. Co. v. Porter, 43 Minn. 527, 46 N. W. 75 (1890). Missouri. Brown v. Chicago G. W. Ry. Co., 137 Mo. 529, 38 S. W. 1099 (1897). Montana. Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 232, 50 Am. St. Rep. 508, 31 L. R. A. 298 (1895). New York. Clarke v. Blackmar, 47 N. Y. 150 (1871). Pennsylvania. Hays v. Rishcr, 32 Pa. St. 169 (1858). South Carolina. Avinger v. South Carolina Ry. Co., 29 S. C. 265, 7 S. E. 493, 13 Am. St. Rep. 716 (1888). Virginia. Zircle v. Southern Ry. Co., 102 Va. 17, 45 S. E. 802, 102 Am. St. Rep. 805 (1903). 2 Sholl v. German Coal Co., 118 111. 427, 10 N. E. 199, 59 Am. Rep. 379 (1887). PROFESSION OF PUBLIC EMPLOYMENT [ 227 not be done. "It is clear that the use for which the lands proposed to be taken in this case is not a public one. The coal, the coal works and the present tramway are in the strictest sense private property, and the public gen- erally have no more interest in them or in the operation of the works including the tramway than they have in any other strictly private business. The same would be equally true after the proposed extension of the tramway. The extending of it to the railroad would not change its character or the obligations of the company or the pub- lic in the slightest degree. Without the consent of the owners of it, there is not a person in the State, outside of themselves, who would have the right to ride upon it on any terms that might be proposed, or to have carried upon it a single pound of freight." 1 Topic B. Characteristics of Public Business 227. Public service in regular course. The fundamental characteristic of a public calling is 1 In the following cases the con- 28 S. W. 627 (1894); Sherlock v. K. etruction of such sidings were held C. Belt Ry. Co., 142 Mo. 172, 43 to be a private purpose: S. W. 629 (1897). United States. Chattanooga Ter- Pennsylvania. Rochester & P. C. minal Ry. v. Felton, 69 Fed. 273 . & I. Co. v. Berwind-White C. M. (1895). Co., 24 Pa. Co. Ct. 104 (1900); Arkansas. Edgar Lumber Co. v. Robbing v. Western Washington Cornie Stave Co. (Ark.), 130 S. W. R. R. Co., 31 Pitts. L. J. (N. S.) 181 452 (1910). (1900). Illinois. Koelle v. Knecht, 99 Utah. Cereghino v. Oregon. S. L. 111. 396 (1881). Ry. Co., 26 Utah, 467, 73 Pac. 634, Maine. Green v. Portland, 32 99 Am. St. Rep. 843 (1903). Me. 431 (1851). Washington. Schwede v. Hem- Minnesota. Gustafson v. Hamm, rich Bros. Brewing Co., 29 Wash. 56 Minn. 334, 57 N. W. 1054, 22 L. 21, 69 Pac. 362 (1902). R. A. 565 (1894). West Virginia. Pittsburgh W. & Missouri. Glaessner v. Anheuser K. R. R. Co. v. Benwood Iron Busch Brewing Assn., 100 Mo. 508, Works, 31 W. Va. 710, 8 S. E. 453, 2 13 S. W. 707 (1890); Knapp, Stout L. R. A. 680 (1888). & Co. v. Transfer Co., 126 Mo. 26, [1971 228 ] PUBLIC SERVICE CORPORATIONS indiscriminate dealing with the general public. As Baron Alderson said in the leading case: " Everybody who un- dertakes to carry for anyone who asks him is a common carrier. The criterion is whether he carries for particular persons only, or whether he carries for everyone. If a man holds himself out to do it for everyone who asks him, he is a common carrier; but if he does not do it for everyone, but carries for you and me only, that is a mat- ter of special contract." : This regular course of public service without respect of persons makes out a plain case of public profession by reason of the inevitable inference which the general public will put upon it. "One trans- porting goods from place to place for hire, for such as see fit to employ him, whether usually or occasionally, whether as a principal or an incidental occupation, is a common carrier." 228. Public employment carter. It sometimes happens, especially in a new country, that a farmer or other person who is driving a wagon to town on his own business may agree to carry goods for his neighbors for hire. Where he consents to carry for all per- sons indifferently, the prevailing view is that he becomes a common carrier, at least as to the particular trip in con- nection with which he makes the offer, though he might not be compelled to undertake the duty on any other occasion. In the earliest case 3 the plaintiff claimed ex- 1 Quoted from Ingate v. Christie, Kentucky. Robertson v. Ken- 3 Car. & K. 61 (1850). See defini- nedy, 2 Dana, 430, 26 Am. Dec. 466 tionsin cases cited under 160, supra. (1834). 2 Quoted from Hahl v. Laux Mississippi. Harrison v. Roy, (Tex. Civ. App.), 93 S. W. 1080 39 Miss. 396 (1860). (1906). See definitions in cases Pennsylvania. Gordon v. Hutch- cited in 238, infra. inson, 1 W. & S. 285, 37 Am. Dec. "Gisborn v. Huret, 1 Salk. 249 464 (1841). (1710). Tennessee. Moss v. Bettis, 4 See also: Heisk. 661, 13 Am. Rep. 1 (1871). [198] PROFESSION OF PUBLIC EMPLOYMENT [ 229 emption from distress upon his goods upon the ground that they were in the possession of a common carrier. The plaintiff had delivered them in London to one Rich- ardson to carry, who was not a regular carrier, but for some small time last past, brought cheese to London and in his return took such goods as he could carry back in his wagon into the country for a reasonable price and the goods were distrained in his possession by his landlord. The court held the goods exempt, for the reason that "any man undertaking for hire to carry the goods of all persons indifferently, as in this case, is, as to this privi- lege, a common carrier." But in at least one case 1 it has been held that in such a case the farmer is not a common carrier, nor, the court added, would it "make any differ- ence how many applications of this kind had been made by the party thus carrying, or to how many different persons they may have been made, they would still re- main so many special and individual transactions." The view usually taken, however, is that the farmer under such circumstances is a common carrier in spite of the fact that the occupation is merely incidental, provided the carriage is really a business with him. 229. Regular service shipmaster. It has already been seen that the transportation by water of passengers or goods, or both, is public in char- acter. Ships, steamboats, river craft and canal boats, even lighters and barges, it makes no difference what sort of vessel may be used in conducting the transpor- Texas Hahl v. Laux (Tex. Civ. New York. Fish v. Clark, 49 N. App.), 93 S. W. 1080 (1906). Y. 122 (1872). 1 Samms v. Stewart, 20 Ohio, Texas. Haynie v. Baylor, 18 *69, 55 Am. Dec. 445 (1851). Tex. 498 (question for jury), (1857). See also: England. Brind v. Dale, 8 C. & Delaware. Pennewill v. Cullen, P. 207 (1837). 5 Harr. 238 (1849). [199] 229 ] PUBLIC SERVICE CORPORATIONS tation, it will be a case of common carriage if there is sufficient evidence of the general undertaking to serve the public indifferently. 1 The clearest proof of this pub- lic profession is regular service. A vessel plying regu- larly between two ports is almost certainly engaged in general service; and the proprietors conducting the busi- ness are almost always held liable as common carriers. This was said most positively in the latest case * in- volving steamship service, "It was admitted in the an- swer of the defendant that it was a common carrier by sea, operating a certain number of vessels between the port of Savannah, Georgia, and the ports of Boston, Massachusetts, and New York city, and accustomed to carry the particular commodity offered it by the plain- tiff, and against which it is alleged to have discriminated. From the earliest tunes it has been considered that a common carrier exercises a public employment, with pub- lic duties to perform. He cannot, like a merchant receive or reject a customer at pleasure. He is bound to serve the public indifferently and this duty with respect to the commonness of service was regarded as the distinguish- ing trait of a common carrier." 1 See particularly: South Carolina. Swindler v. Hil- United States. Liverpool & G. liard, 2 Rich. L. 286, 45 Am. Dec. W. Steam Co. v. Phoenix Ins. Co., 732 (1846). 129 U. S. 397, 32 L. ed. 788 (1889) ; Tennessee. Porterfield v. The Huntress, 2 Ware, 89 (1840). Humphreys, 8 Humph. 497 (1847). Connecticut. Crosby v. Fitch, Vermont. Spencer v. Daggett, 2 12 Conn. 410, 31 Am. Dec. 745 Vt. 92 (1829). (1838). England. Richardson v. Sewell, Florida. Bennett v. Filyaw, 1 2 Smith, 205 (1805). Fla. 403 (1847). Ocean S. S. Co. v. Savannah L. Georgia Brown v. Clayton, 12 W. & S. Co., 131 Ga. 831, 63 S. E. Ga. 564 (1853). 577, 20 L. R. A. (N. S.) 867 (1909). New Jersey. Mersbon v. Hoben- See also Bassett & S. v. Aberdeen sack, 22 N. J. L. 372 (1850). Coal & M. Co., 120 Ky. 728, 88 New York. Elliott v. Rossell, 10 S. W. 318, 27 Ky. L. Rep. 1122 Johns. 1, 6 Am. Dec. 306 (1813). (1905). [200] PROFESSION OF PUBLIC EMPLOYMENT [ 230 230. Established charge expressmen. The establishment by a carrier of a regular tariff charge for the carriage of a certain article is also evidence that the carrier is a common carrier of that article. So where an express company received a dog to be shipped to a certain place for three dollars, which was found to be the regular charge, the court remarked that the fact that the company had established regular charges for such freight, tends to show that they were in the transporta- tion business. 1 The case of the city truckmen is made difficult by the usual absence of this circumstance. Some cases hold that they are not common carriers, the chief reason being that such truckmen do not carry goods with- out special agreement as to terms of carriage. 2 Other au- thorities, however, 3 hold that the truckman who holds himself out as a public truckman is a common carrier, recognizing that it is impossible for him to fix in advance a tariff of charges for all services that may be asked of 1 Southern Express Co. v. Ash- ford, 126 Ala. 591, 28 So. 732 (1899). This point is emphasized also in Santa Fe P. & P. Ry. Co. v. Grant Bros. C. Co. (Ariz.), 108 Pac. 467 (1910). 2 Missouri. Jaminet v. American S. & M. Co., 109 Mo. App. 257, 84 S. W. 128 (1904). New Hampshire. Faucher v. Wil- son, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431 (1895). South Carolina. Piedmont Mfg. Co. v. Columbia & G. R. R. Co., 19 S. C. 353 (1882). England. Scarfe v. Farrant, L. R. 10 Exch. 358 (1875). 3 Kentucky. Cayo v. Pool, 108 Ky. 124, 21 Ky. L. Rep. 1600, 55 S. W. '887, 49 L. R. A. 251 (1900); Farley v. Lavary, 107 Ky. 523, 21 Ky. L. Rep. 1252, 54 S. W. 840, 47 L. R. A. 383 (1900). Missouri. Collier v. Langan T. S. & M. Co. (Mo. App.), 127 S. W. 435 (1910). New York. Jackson Architec- tural Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899). Pennsylvania. Lloyd v. Haugh & K. Transfer Co., 223 Pa. St. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188 (1909). Utah. Benson v. Oregon S. L. Ry. Co. (Utah), 99 Pac. 1072 (1909). Washington. Gates v. Bekins, 44 Wash. 422, 87 Pac. 505 (1906). Canada. Culver v. Lester, 37 Can. L. J. 421 (1901). [201] 231,232] PUBLIC SERVICE CORPORATIONS him and that he must therefore make a separate agree- ment as to his charges in each case. 231. Indiscriminate service irrigation. The test, as will have been seen, is whether service is rendered upon special contract to certain persons selected by the owners or whether all applicants are served with- out discrimination. The irrigation cases l which at first seem bothersome turn upon this point. In a recent case 2 this distinction was made plain. "Its status is that cf either a private or public agency, depending upon whether its diversion is for the purpose of supplying owners or possessors of arable and irrigable land with whom it has fixed contractual relations, binding it to perform such service, or whether its purpose or practice be to supply owners or possessors of such land who are not its water right holders, or with whom it has not bound itself by contract to permanently render such service. If it con- fines its service as the private agent of certain appropria- tors, it cannot be compelled to render service to others. On the other hand, if it undertakes to and does divert and carry water for the use of consumers with whom it is not bound by such contracts, and hence becomes a pub- lic agency, it cannot, under the law, discriminate by giving preference otherwise than with due regard to priority of appropriation." 232. Public profession warehousing. In the same way, the proprietors of some warehouses will be found to be carrying on a public business while the owners of other warehouses will be seen to be engaged 1 Such as Wheeler v. Northern 2 Slosser v. Salt River Valley Co., Colorado Irr. Co., 10 Colo. 582, 17 7 Ariz. 376, 65 Pac. 332 (1901). Pac. 487, 3 Am. St. Rep. 603 (1887). See 242 as to public profession in See 93, supra, as to irrigation irrigation service, service in general. [202] PROFESSION OF PUBLIC EMPLOYMENT [ 232 in no public business whatever; which of these cases we have is again a question of fact, whether upon the whole proof it is shown that there has been a profession to serve the public in general or whether the owner has been using his warehouse simply in his private business. It is, con- sequently, constitutional for the State to regulate the charges of public warehousemen as was held in the leading case of Munn v. Illinois. 1 But it is obviously unconstitu- tional for the State to attempt to regulate the services of a person who simply owns a warehouse that he uses for himself, as the United States Supreme Court said in the later case of Brass ex rel. v. Stoesser. 2 Wharfs stand upon the same basis as warehouses. Such wharfage facilities are only public in character when proprietors have un- dertaken to accommodate shipping in general. 3 Such wharfingers can only charge reasonable rates as the United States Supreme Court pointed out in the early case of Transportation Company v. Parkersburg. The more common case probably is that of private wharves where the owners transact their own business and where they 1 94 U. S. 113, 24 L. ed. 77 (1876). 3 United States. Transportation See also: Co. v. Parkersburg, 107 U. S. 691, United States Budd v. New 27 L. ed. 584, 2 S. Ct. 732 (1882). York, 143 U. S. 517, 36 L. ed. 247, District of Columbia. District v. 12 S. Ct. 468 (1891). Johnson, 1 Mackey, 51 (1881). Illinois. Hannah v. The People, Florida. Indian River Steam- 198 111. 77, 64 N. E. 776 (1902). boat Co. v. East Coast Transporta- 2 153 U. S. 391, 38 L. ed. 757, 14 tion Co., 28 Fla. 387, 10 So. 480, 29 Sup. Ct. 857 (1894). Am. St. Rep. 258 (1891). See also: Georgia. Macon, D. & S. R. R. Minnesota. State v. W. W. Car- Co. v. Graham, 117 Ga. 555, 43 S. gill Co., 77 Minn. 223, 79 N. W. E. 1000 (1903). 962 (1899), affirmed in 180 U. S. Louisiana Mken & Co. v. Eager 452, 45 L. ed. 619, 21 Sup. Ct. 423 & Co., 35 La. Ann. 567 (1883). (1900). Washington. Harrington v. Com- Pennsylvania. G i r a r d Storage mercial Dock Co., 15 Wash. 170, 45 Co. v. Southwark Co., 105 Pa. St. Pac. 748, -33 L. R. A. 116 (1896). 248 (1884). [203] 233 ] PUBLIC SERVICE CORPORATIONS occasionally by special contract permit the vessels of others to moor. 1 Such wharves are private in character, as the United States Supreme Court held in the recent case of Weems Steamboat Company v. People's Steam- boat Company. Topic C. Characteristics of Private Business 233. Private contract as the basis. To make the contrast, the chief characteristic of pri- vate dealing is the usual necessity for special agreement with the proprietor, there being no regular course in such special services. "The person who occasionally enter- tains others for a reasonable compensation is no more subject to the extraordinary responsibility of an inn- keeper than he is liable as a common carrier who in cer- tain special cases carries the property of others from one place to another for hire." 2 Especially where the busi- ness is incidental, the employment being intermittent, it will usually be obvious that the business is being con- ducted upon a private basis; or, as the test is put in one of the early leading English cases: "The test is not whether he is carrying on a public employment, or whether he carries to a fixed place; but whether he holds out, either expressly or by a course of conduct, that he will carry 1 United States. Louisville & N. v. Visger, 86 N. Y. App. Div. 126, R. R. Co. v. West Coast Naval 83 N. Y. Supp. 325 (1903). Stores Co., 198 U. S. 483, 49 L. ed. Pennsylvania. Audenreid v. P. 1135, 25 S. Ct. 745 (1905); Weems & R. R. R. Co., 68 Pa. St. 370, 8 Steamboat Co. v. People's Steam- Am. Rep. 195 (1871). boat Co., 214 U. S. 345, 53 L. ed. Tennessee. Memphis Freight 1024, 29 Sup. Ct. 661 (1909); Co. v. Mayor, etc., of Memphis, 4 Leverich v. City of Mobile, 110 Cold. 419 (1867). Fed. 170 (1867). Quoted from Lyon v. Smith, New York. Woodruff v. Have- Morris (Iowa), 184 (1843). See meyer, 106 N. Y. 129, 12 -N. E. 628 106, supra, 239, infra. (1887); Thousand Island S. S. Co. [204] PROFESSION OP PUBLIC EMPLOYMENT [ 234, 235 for hire, so long as he has room, the goods of all persons indifferently who send him goods to be carried." 1 234. Occasional business householders. One of the principal characteristics of a public service is that it is almost always well established as a permanent business and not regarded as an incidental employment. Thus it ought not to be difficult to distinguish between innkeepers 2 who openly carry on that business and house- holders 3 who occasionally entertain guests. "To ren- der a person liable as a common innkeeper, it is not suf- ficient to show that he occasionally entertains travelers. Most of the farmers in a new country do this, without supposing themselves answerable for the horses or Bother property of their guests which may be stolen, or other- wise lost, without any fault of their own. Nor is such the rule in older countries, where it would operate with far less injustice, and be less opposed to good policy than with us. To be subjected to the same responsibilities attach- ing to innkeepers, a person must make tavern keeping, to some extent, a regular business, a means of livelihood. He should hold himself out to the world as an innkeeper." 4 235. Casual employment shipowners. The principle that casual employment is not common 1 Quoted from Nugent v. Smith, 1 Tennessee. Dickerson v. Rogers, C. P. D. 19 (1875). See 160, 4 Humph. 179, 40 Am. Dec. 642 supra, 238, infra. (1843). 2 California. Pinkerton v. Wood- 3 Kentucky. Southwood v. My- ward, 33 Cal. 557, 91 Am. Dec. 657 ers, 3 Bush, 681 (1868). (1867). 'New York. People v. Jones, 54 Connecticut. Walling v. Potter, Barb. 311 (1863). 35 Conn. 183 (1868). Texas. Ho wth v. Franklin, 20 Iowa. Lyon v. Smith, Morris, Tex. 798, 73 Am. Dec. 218 (1858). 184 (1843). Vermont. Clary v. Willey, 49 Kentucky. K i s t e n v. Hilde- Vt. 55 (1876). brand, 9 B. Mon. 72, 48 Am. Dec. 4 Lyon v. Smith, supra. 416 (1848). [205] 236 ] PUBLIC SERVICE CORPORATIONS carriage is well illustrated by the case of the charter of vessels. If the vessel is casually employed it is not a common carrier. The leading case on this point is Allen v. Sackrider 1 where Mr. Justice Parker said in part: "The only question in the case is, were the defendants common carriers? The facts found by the referee do not, I think, make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiffs' property falls short of proof sufficient to show them common car- riers." And generally where a vessel is chartered by the owner, the charter being necessarily an isolated transaction, the owner does not thereby become a common carrier. 2 236. Intermittent employment teamsters. Where the employment is intermittent and not a regular matter of business, the carrier is not a common carrier. It is a rule which will generally hold good, that one em- ployed for hire pro hoc vice only, who on the evidence does not make the carriage of goods his constant occupation, is not liable as a common carrier. There are a few cases which seem to hold that even in such casual employment 1 37 N. Y. 341 (1867). United States Lamb v. Park- See also: man, 1 Sprague, 343 (1857); Sum- Delaware. Pennewill v. Cullen, ner v. Caswell, 20 Fed. 249 (1884); 5 Harr. (Del.) 238 (1849). The Dan, 40 Fed. 691 (1889). New York. Aymar v. Astor, 6 Kentucky. Bassett & Stone v. Cow. 266 (1826). Aberdeen Coal & Mining Co., 120 1 Cases of this sort are: Ky, 728, 88 S. W. 318 (1905). [206] PROFESSION OF PUBLIC EMPLOYMENT [ 236 the carrier may be held liable as an insurer. 1 But upon examination these will be found to be cases of a tem- porary undertaking upon a public basis. 2 A wagoner is not often a common carrier when he carries goods of an- other along with his own. 3 And the owner of a cart who makes contracts for special jobs is plainly carrying on a private business. 4 Furniture movers are generally held to be private carriers because of the intermittent nature of their employment. 5 But there are cases of teaming which seem to be upon such a regular basis as to be com- mon carriage. 6 1 Pennsylvania. Gordon v. Hutchinson, 1 W. & S. 285, 37 Am. Dec. 464 (1841). Tennessee. Moss v. Bettis, 4 Heisk. 661, 13 Am. Rep. 1 (1871). 2 Mississippi. Harrison v. Roy, 39 Miss. 396 (1860). Texas. Chevallier v. Straham, 2 Tex. 115 (1847). 3 Louisiana. Flautt v. Lashley, 36 La. Ann. 106 (1884). Vermont. Beck with v. Frisbie, 32 Vt. 559 (1860). 4 Canada. Roussel v. Aumais, Rap. Jud. Quebec, 18 C. S. 474 (1900). Ceylon. Gibson v. Silva, Rama- Nathan, 105 (1848). 5 Illinois. Armfield v. Humph- rey, 12 111. App. 90 (1882). Missouri. Jamiet v. American Storage Co., 109 Mo. App. 257, 84 S. W. 128 (1904). New Hampshire. Faucher v. Wil- son, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431 (1895). South Carolina. Piedmont Mfg. Co. v. Columbia & G. R. R. Co., 19 S. C. 353 (1882). 6 New York. Snelling v. Yetter, 25 App. Div. 590, 49 N. Y. Supp. 917 (1898). Pennsylvania. Lloyd v. Haugh & K. Transfer Co., 223 Pa. St. 148, 72 Atl. 516, 21 L. R. A. (N. S.) 188 (1909). Utah. Benson v. Oregon S. L. Ry. Co. (Utah), 99 Pac. 1072 (1909). Washington. Gates v. Bekins, 44 Wash. 422, 87 Pac. 505 (1906). Notwithstanding the language of the earlier cases in Missouri it is now held that a company which holds itself out as ready to move furniture for all comers is a com- mon carrier pro hac vice. Collier v. Langan, T. S. & M. Co. (Mo. App.), 127 S. W. 435 (1910). Reference might here be made to the Massachusetts cases under the statute providing that liquors can- not be delivered in a no-license town except by regular expressmen. Under this statute a carter who professed a willingness to carry ex- press matter in general but who, as a matter of fact, is carrying only liquors, is held not to be within the meaning of the statute as it is held [207] 237 ] PUBLIC SERVICE CORPORATIONS 237. Limited undertakings ferries. The salient characteristics of a private business is that there is no solicitation of the custom of the general public. The many cases dealing with private ferries well illustrate this. Where a private ferry is established to convey per- sons to and from the premises of a private individual, who may refuse to receive any person upon his premises, the ferry is not operated as a public employment. A ferry es- tablished to convey persons to a picnic ground 1 is private. So is a boat operated when employe's engaged in other work are at leisure. 2 A wherry regularly conveying the laborers of its owner to then* work is a private ferry. 3 So is a skiff which is offered as a free conveyance to persons who will come to the store of its owner for trade. 4 A miller who maintains a ferry to convey customers to his mill, 5 is not a common carrier, even where other persons are sometimes transported as a matter of accommodation who give a gratuity to the servant managing the boat. 6 And where several parties joined to maintain a boat for the purpose of conveying their cattle across a river to a slaughter house the conveyance was not common car- riage. 7 In all of these cases the service maintained was to call for "fixedness and perma- 3 Tadhunter v. Buckley, 7 L. T. nenoe" in the character of the busi- (N. S.) 273 (1862). nees and probably also for stated 4 Shinn v. Cotton, 52 Ark. 90, 12 times and established routes. See S. W. 157 (1889). But see Hatten Commonwealth v. People's Exp. v. Turman, 123 Ky. 844, 97 S. W. Co., 201 Mass. 564, 88 N. E. 420 770 (1906). (1909). 6 Self v. Dunn, 42 Ga. 528, 5 Am. People v. Mago, 69 Hun, 559, Rep. 544 (1871). 23 N. Y. Supp. 938 (1893). And 6 Littlejohn v. Jones, 2 McMull. see Meisner v. Detroit, B. & I. W. L. (S. C.) 366, 39 Am. Dec. 132 Ferry Co., 154 Mich. 545, 118 N. W. (1842). 14 (1908), accord. 1 Flautt v. Lashley, 36 La. Ann. 1 Roussel v. Aumais, Rap. Jud. 106 (1884). Quebec, 18 C. S. 474 (1900). And see Blanchard v. Abraham, 115 La. 989, 40 So. 379 (1906). [208] PROFESSION OF PUBLIC EMPLOYMENT [ 238, 239 held private because of the limitations put upon its con- duct by its proprietors. 238. Incidental service merchants. One who is engaged carrying on transportation primarily for his own purposes is not engaged in common carriage. Thus one who is delivering property which is the sub- ject of a contract between himself and its owner, is at most a private carrier in view of his relations with his contracting party. So one who contracts to cut tim- ber, and transport it to the place where it is to be de- livered and used, was held not to incur the responsibility of a common carrier. 1 And, similarly, a manufacturer who purchased a machine and contracted with the seller to cart it was held not to be a common carrier. 2 In another case of this sort 3 a warehouseman delivering goods from storage was held not to be liable as a common carrier. Similarly an omnibus employed by the proprietor of a hotel in taking guests free to and from a railroad station is not a public conveyance. 4 Topic D. Particular Illustrations of the Distinction 239. Public and private carriers in general. Naturally enough there are more cases upon the dis- tinction between public and private carriers than upon any other calling. Many illustrations of this distinction have already been given in this and a preceding chap- ter. It will be sufficient, therefore, to give but a brief l New York. Pike v. Nash, 3 3 Armfield v. Humphrey, 12 111. Abb. App. Dec. 610 (1864). App. 90 (1882). Canada. Benedict v. Arthur, 6 But see Snelling v. Yetter, 25 Up. Can. Q. B. 204 (1849). N. Y. App. Div. 590, 49 N. Y. Supp. s Michigan. Allis v. Voigt, 90 917 (1898), apparently, contra. Mich. 125, 51 N. W. 190 (1892). 4 City of Oswego v. Collins, 38 England. Chattock v. Bellamy, Hun, 171 (1885). 64 L. J. Q. B. 250 (1895). 14 [ 209 1 239] PUBLIC SERVICE CORPORATIONS summary. If the carrier is commonly serving all who intrust him with goods to be taken over his route, he is in public employment. 1 It is the willingness to serve all that makes the employment a public one. And therefore the carrier who holds himself out as ready to carry for all on a particular journey or voyage is at that moment a common carrier, though this is his first journey and he has never yet carried; and this may be equally the case though he does not intend to continue the profession and makes the offer for a single journey only. If on the other hand the carrier does not deal with the public indiscrimi- nately as a matter of routine but in effect makes an indi- vidual bargain in each case, this course of business shows that the service is upon a private basis. 2 1 The following are regarded as particularly good cases on public carriage: United States. Propeller Niagara v. Cordes, 21 How. 7, 16 L. ed. 41 (1858). Alabama. Babcock v. Herbert, 3 Ala. 392, 37 Am. Dec. 695 (1842). Arizona. Santa Fe P. & P. Co. v. Grant Bros. C. Co. (Ariz.), 108 Pac. 467 (1910). California. Pfister v. Central Pacific R. R. Co., 70 Cal. 169, 11 Pac. 686, 59 Am. Rep. 404 (1886). Connecticut. Crosby v. Fitch, 12 Conn. 410, 31 Am. Dec. 745 (1838). Florida. Bennett v. Filyaw, 1 Fla. 403 (1847). "Georgia. Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393 (1847). Kentucky, Robertson v. Ken- nedy, 2 Dana, 430, 26 Am. Dec. 466 (1834). Mississippi. Harrison v. Roy, 39 Miss. 396 (1860). Missouri. Collier v. Langan T. [210] S. & M. Co. (Mo. App.), 127 S. W. 435 (1910). New Hampshire. Elkins v. Bos- ton & Maine R. R. Co., 23 N. H. 275 (1851). New York. Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665, 70 Am. St. Rep. 432 (1899). Texas. Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639 (1849). West Virginia. Gillingham v. Ohio River R. R. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827 (1891). Wisconsin. Doty v. Strong, 1 Pin. 313, 40 Am. Dec. 773 (1843). 1 The following are regarded as good cases on private carriage: United States. Lamb v. Park- man, 1 Sprague, 343, 40 Fed. 691 (1857); The Wildenfels, 161 Fed. 864 (1908). Arkansas. Shinn v. Cotton, 52 Ark. 90, 12 S. W. 157 (1889). PROFESSION OF PUBLIC EMPLOYMENT [ 240 240. Public inn and private house. The distinction between the public innkeeper and the ordinary householder turns upon the presence of public profession or its absence. The question whether a house where a guest is entertained is a public inn or a private house is a question of fact to be determined like any other fact upon all the evidence. An innkeeper, as has been seen, undertakes the entertainment of guests as a regular business, taking usually all who apply; and he is held answerable to the extent of his profession. 1 On the other hand it often happens, particularly in new countries where inns are not yet numerous, that householders occa- sionally, or even frequently, accommodate travelers, unless it is inconvenient to do so. This is not conducting a regular business upon a public basis, and such practice is wholly consistent with private action. 2 Georgia. Self v. Dunn, 42 Ga. 528, 5 Am. Rep. 544 (1871). Michigan. Allis v. Voigt, 90 Mich. 125, 51 N. W. 190 (1892). New Hampshire. Faucher v. Wilson, 68 N. H. 338, 38 Atl. 1002, 39 L. R. A. 431 (1895). New York. Allen v. Sackrider, 37 N. Y. 341 (1867). Ohio. Weaver v. Wible, 20 Ohio, 270 (1855). Vermont. Spencer v. Daggett, 2 Vt. 92 (1829). 1 California. Pinkerton v. Wood- ward, 33 Cal. 557, 91 Am. Dec. 657 (1867). Connecticut. Walling v. Potter, 35 Conn. 183 (1868). Illinois. Bullock v. Adair, 63 111. App. 30 (1895). Iowa. Lyon v. Smith, Morris, 184 (1843). Kentucky. Kisten v. Hildebrand, 9 B. Mon. 72, 48 Am. Dec. 416 (1848). Minnesota. Johnson v. Chad- bourn Furnace Co., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571 (1903). New York. W intermute v. Clarke, 5 Sandf. 242 (1851). North Carolina. State v. Mat- thews, 2 Dev. & B. 424 (1837). England. Thompson v. Lacy, 3 B. & Aid. 283 (1820). 2 United States. Beall v. Beck, Fed. Gas. 1,161 (1829). Georgia. Bonner v. Welborn, 7 Ga. 296 (1849). Kentucky. Southward v. Myers, 3 Bush, 681 (1868). North Carolina. H olstein v Phillips, 146 N. C. 366, 59 S. E 1037, 14 L. R. A. (N. S.) 475 (1907). Pennsylvania. Commonwealth v. Cuncannon, 3 Brewst. 344 (1869). [211] 241] PUBLIC SERVICE CORPORATIONS 241. Public and private highways of every sort. Even as to highways when constructed by private cap- ital there are the two possibilities. Ferries 1 and bridges 2 will be public or private according to whether the pro- Texas. Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218 (1858). Vermont. Clary v. Willey, 49 Vt. 55 (1876). 1 As to public ferries, see: Alabama. Frierson v. Frazicr, 142 Ala. 232, 37 So. 825 (1904). Arkansas. Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595 (1870). Illinois. Claypool v. McAllister, 20 111. 504 (1858). Iowa. Whitmore v. Bowman, 4 Green, 148 (1853). Kentucky. Hall v. Renfro, 3 Met. 51 (1860). Mississippi. Powell v. Mills, 37 Miss. 691 (1859). New York. Wyckoff v. Queen's County Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650 (1873). North Carolina. Spivy v. Farm- er, 2 Hawy. 339 (1805). Ohio. Wilson v. Hamilton, 4 Oh. St. 722 (1855). Tennessee. Sanders v. Young, 1 Head, 219, 73 Am. Dec. 175 (1858). As to private ferries, see: Arkansas. Shinn v. Cotton, 52 Ark. 90, 12 S. W. 157 (1889). Georgia. Self v. Dunn, 42 Ga, 528, 5 Am. Rep. 544 (1871). Louisiana. Flautt v. Lashley, 36 La. Ann. 106 (1884). Michigan. Meisner v. B. I. & W. Ferry Co., 154 Mich. 545, 118 N. W. 14 (1908). New York. People v. Mago, 69 Hun, 559,23 N. Y. Supp. 938 (1893). South Carolina. Littlejohn v. [212] Jones, 2 McMull. 366, 39 Am. Dec. 132 (1842). England. Tadhunter v. Buck- ley, 7 L. T. (N. S.) 273 (1862). Canada. R o u s s e 1 v. Aumais, Rap. Jud. Quebec, 18 C. S. 474 (1900). 2 As to public bridges, see : United States. Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 S. Ct. 198 (1896). California. People v. San Fran- cisco & A. R. R. Co., 35 Cal. 606 (1868). Georgia. McLeod v. Savannah, Albany & Gulf R. R. Co., 25 Ga. 445 (1858). Kentucky. Arnold v. Cov. & Gin. Bridge Co., 1 Duval, 372 (1864). Maine. Bussey v. Gilmore, 3 Me. 191 (1824). Massachusetts. Central Bridge Corporation v. Sleeper, 8 Gush. 324 (1851). New York. Thompson v. Mat- thews, 2 Ed. Ch. 212 (1834). Ohio. Young v. Buckingham, 5 Ohio, 485 (1832). Pennsylvania. Pittsburg & W. E. Passenger Ry. v. Point Bridge Co., 165 Pa, St. 37, 30 Atl. 511, 26 L. R. A. 323 (1894). As to private bridges the same principles prevail: See Manning v. City of Devils Lake, 13 N. D. 47, 99 N. W. 51, 65 L. R. A. 187 (1904). PROFESSION OF PUBLIC EMPLOYMENT [ 242 prietors have manifested their intention to serve the pub- lic or not. Such of these as have accepted some special public franchise in aid of their construction cannot be heard to say that they have not undertaken public serv- ice. And those which are claiming such rights must be certain that they have never acted so as to make mani- fest any disclaimer of public employment. All this is true of canals l and turnpikes. 2 242. Public and private water supply and irrigation. Waterworks and irrigation systems will be public or private according to whether there is public profession or private dealing in the particular case. The supply of water to a city for domestic purposes will almost always be found to have been undertaken upon a public basis 3 1 As to public canals, see: Georgia. Savannah Canal Co. v. Shuman, 91 Ga. 400, 17 S. E. 937 (1893). Illinois. People v. Improvement Co., 103 111. 491 (1882). New York. Pennsylvania Coal Co. v. Del. & H. Canal Co., 31 N. Y. 91 (1865). Pennsylvania. Commonwealth v. Delaware & H. Canal Co., 43 Pa. St. 295 (1862). As to private canals, see: Louisiana. Harvey v. Potter, 19 La. Ann. 264, 92 Am. Dec. 532 ( 1867) . Michigan. Potter v. Railway Co., 95 Mich. 389, 54 N. W. 956 (1893). 2 As to public roads, see: United States. Covington & L. Turnpike Co. v. Sandford, 164 U. S. 578, 41 L. ed. 560, 17 S. Ct. 198 (1896). Kentucky. W inchester, etc., Turnpike Road Co. v. Croxton, 98 Ky. 739, 34 S. W. 518 (1896). Michigan. Attorney General v. Detroit & Erie Plank Road Co., 2 Mich. 138 (1851). Ohio. Chagrin Falls & Cleve- land Plank Road Co. v. Cane, 2 Ohio St. 419 (1853). As to private roads, see: Alabama. Sadler v. Langham, 34 Ala. 311 (1859). West Virginia. Varner v. Mar- tin, 21 W. Va. 534 (1883). 3 In the following cases dealing with water supply a special point is made of the public profession of the company: United States. Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165, 17 S. Ct. 718 (1897). Alabama. City of Mobile v. Bienville Water Co., 130 Ala. 379, 30 So. 445 (1900). California. McCrary v. Beau- dry, 67 Cal. 120, 7 Pac. 264 (1885). Georgia. Freeman v. Macon Gas [213] 242] PUBLIC SERVICE CORPORATIONS but there are cases where it has been pointed out that the works must be conducted for the use of the inhabit- ants in common and not for a particular individual. 1 There are special complications with regard to irrigation; but without going into the technical law applying to the question of water rights in those States where irrigation systems are usual, it may be pointed out here that these systems are of two sorts the one public, where the irri- gation company is engaged in selling water to others than its water right holders; 2 the other private, where no more is undertaken than the supply of water to those who have associated to construct the system. 3 & Water Co., 126 Ga. 843, 56 S. E. 61, 7 L. R. A. (N. S.) 917 (1906). Kansas. Asher v. Water, Light, & Power Co., 66 Kan. 496, 71 Pac. 813, 61 L. R. A. 52 (1903). Maine. Rockland Water Co. v. Adams, 84 Me. 472, 24 Atl. 840, 30 Am. St. Rep. 368 (1892). Massachusetts. L u m b a r d v. Stearns, 4 Gush. 60 (1849). Montana. State v. Butte Water Co., 18 Mont. 199, 44 Pac. 966, 56 Am. St. Rep. 574 (1896). New Jersey. Olmstead v. Pro- prietors of the Morris Aqueduct, 47 N. J. L. 311 (1885). North Carolina. Griffin v. Water Co., 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240 (1898). Oregon. Haugen v. Albina Light & Water Co., 21 Oreg. 411, 28 Pac. 244, 14 L. R. A. 424 (1891). Tennessee. Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. St. Rep. 841 (1897). 1 See as to the possibility of private water supply: [2141 California. McFadden v. County of Los Angeles, 74 Cal. 571, 16 Pac. 397(1888). New York. Pocantico Water Co. v. Bird, 130 N. Y. 249, 29 N. E. 246 (1891). 2 In the following cases, dealing with irrigation, the necessary con- sequences of public profession are discussed : United States. Fallbrook Irriga- tion District v. Bradley, 164 U. S. 112,41L.ed.369,17 S.Ct. 56 (1896). Arizona. Slosser v. Salt River Canal Co., 7 Ariz. 376, 65 Pac. 332 (1901). California. Price v. Riverside L. & Irrigating Co., 56 Cal. 431 (1880). Colorado. Wheeler v. Northern Colorado Irrigation Co., 10 Col. 582, 17 Pac. 487, 3 Am. St. Rep. 603 (1887). Nebraska. Paxton & II. Irrigat- ing C. & L. Co. v. Farmers' & M. Irrigation Co., 45 Neb. 884, 64 N. W. 343, 29 L. R. A. 853, 50 Am. St. Rep. 585 (1895). 3 See as to private irrigation: PROFESSION OF PUBLIC EMPLOYMENT [ 243 243. Public and private gas and electricity. That the business of supplying gas is public in char- acter is now universally recognized, provided that the company supplying is committed to supplying gas to the community in general. 1 But the case can be imagined of an institution with a generating plant for its own supply, which might even supply one neighbor without being obliged to sell to all others. 2 In the same way the busi- ness of supplying electrical energy has generally been recognized as public in character. 3 There are, however, United States. Bradley v. Fall- brook Irrigation Co., 68 Fed. 948 (1895). Arizona. Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 Pac. 598 (1904). California. Aliso Water Co. v. Baker, 95 Cal. 268, 30 Pac. 537 (1892). Colorado. Rocky Ford Canal, etc., Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638 (1894). Montana. Ellinghouse v. Tay- lor, 19 Mont. 462, 48 Pac. 757 (1897). Washington. Prescott Irrigation Co. v. Flathers, 20 Wash. 454, 55 Pac. 635 (1899). 1 The following cases among others discuss incidentally the pub- lic undertaking of gas companies: United States. Gibbs v. Con- solidated Gas Co., 130 U. S. 396, 32 L. ed. 979, 9 S. Ct. 553 (1888). Indiana. Portland Gas & Oil Co. v. State, 135 Incl. 54, 34 N. E. 818, 21 L. R. A. 639 (1893). Massachusetts. Opinion of Jus- tices, 150 Mass. 592, 24 N. E. 1084, 8 L. R. A. 487 (1890). New Jersey. Public Service Cor- poration v. American Lighting Co., 67 N. J. Eq. 122, 57 Atl. 482 (1904). West Virginia. Charleston Gas Co. v. Lowe, 52 W. Va. 662, 44 S. E. 410 (1901). 2 As to the possibility of private gas supply, see Redkey, etc., Natu- ral Gas v. Orr (Ind.), 60 N. E. 716 (1901). 3 In the following cases as to electric supply a point is made of public profession: United States. Walker v. Shasta Power Co., 160 Fed. 856, 87 C. C. A. 660 (1908). Georgia. Jones v. North Georgia Electric Co., 125 Ga. 618, 54 S. E. 85, 6 L. R. A. (N. S.) 122 (1906). Illinois. Snell v. Clinton Elec- tric Light Co., 196 111. 626, 63 N. E. 1082, 58 L. R. A. 284, 89 Am. St. Rep. 341 (1902). New Hampshire. Rockingham Light & Power Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 581 (1904). New York. Armour Packing Co. v. Edison Electric Co., 100 N. Y. Supp. 605, 115 N. Y. App. Div. 51 (1906). Ohio. Cincinnati, H. & D. R. R. [2151 5 244 ] PUBLIC SERVICE CORPORATIONS noveral cases where the company supplying electricity has not professed to sell to the public indiscriminately at regular rates, but has from the beginning adopted the policy of entering into special contracts upon its own terms; such companies are plainly engaged in private business. 1 244. Public and private telephone and telegraph. The public status of a telephone system which is at the disposal of the whole community has already been elaborately discussed; 2 but a telephone system of a pri- vate character is not unknown, as a line run between various farms in the country might often be so conducted as to show no intention to receive other persons into the association. 3 So too although the public character of the Co. v. Bowling Green, 57 Oh. St. 336, 49 N. E. 121, 41 L. R. A. 422 (1897). Oregon. Grande Ronde Elec- trical Co. v. Drake, 46 Oreg. 243, 78 Pac. 1031 (1905). 1 The following are cases of elec- tric supply upon a private basis: Vermont. A very v. Vermont Electric Co., 75 Vt. 235, 54 Atl. 179, 59 L. R. A. 817, 98 Am. St. Rep. 818 (19Q2). Virginia. Fallsburg Co. v. Alex- ander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855 (1903). 2 In most of the leading telephone cases the essential quality of public profession is emphasized; see: United States. Cumberland Tel. & Tel. Co. v. Kelly, 160 Fed. 316, 87 C. C. A. 268 (1908). Indiana. Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201 (1885). [216] Maryland. Chesapeake & P. Telephone Co. v. Baltimore & O. Telegraph Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167 (1886). Nebraska. State ex rel. Webster v. Nebraska Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404 (1885). North Carolina. People ex rel. Telegraph Cable Co. v. Hudson Riv. Telegraph Co., 19 Abb. N. C. 466 (1887). Pennsylvania. B e 1 1 Telephone Co. v. Commonwealth, 3 Atl. 825 (1886). South Carolina. State v. Tele- phone Co., 61 S. C. 83, 39 S. E. 257, 85 Am. St. Rep. 870 (1901). Vermont. Commercial Telegraph Co. v. Telephone Co., 61 Vt. 241, 17 Atl. 1071, 5 L. R. A. 161 (1888). * As to the possibility of private telephone lines, see Cumberland Tel. & Tel. Co. v. Cartwright Tel. PROFESSION OF PUBLIC EMPLOYMENT [ 244 established telegraph lines cannot be doubted l there are private wires connecting offices which are not operated for general business. 2 Co., 128 Ky. 395, 108 S. W. 875 (1908). 1 The following citations are se- lected from the many cases estab- lishing the public character of telegraph companies because the essential characteristic of public profession is mentioned: United Stales. Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. ed. 765, 21 S. Ct. 561 (1900). Maine. Ayer v. Western Union Tel. Co., 79 Me. 493, 10 Atl. 495, 1 .), 127 S. W. 856 (1910). W. 711, 30 L. R. A. 447, 50 Am. St. A rule requiring those whose Rep. 610 (1895). v.'dtcr supply has been cut off to pay l Tacoma Hotel Co. v. Tacoma a sum for having the water turned Light & Water Co., 3 Wash. 316, 28 on again upon payment is always Pac. 516, 14 L. R. A. 669, 28 Am. hold unreasonable: St. Rep. 35 (1891). Missouri. State'ex rel. v. Jones, 1 11 Mo. App. 299, 125 S. W. 1169 (1910). [390] PREPAYMENT AS A CONDITION 453 admitted that there are many cases which support this right to insist upon the payment of arrearages. 1 But it should be said, however, that in several of these cases the right to shut off the supply for past default was established by legislation or by ordinance, either by direct provision or by clause in the charter. 453. Applicant in default at other premises. In the light of the usual arguments upon which the cases divide upon the general question, it would seem that the case where the applicant is in default at other premises for the same service should fall within the general rule. And it is usual to decide this case according to the general doctrine held in the jurisdiction some cases consistently holding that arrears at other premises cannot bar the applicant for present service; other cases holding that such arrears should bar the applicant. 2 What is surpris- 1 In the following cases involving various services, it has been held that the payment of arrearages is prerequisite : California. Sheward v. Citizens' Water Co., 90 Cal. 635, 27 Pac. 439 (1891). Indiana. Irvinv.Rushville Tele- phone Co., 161 Ind. 524, 69 N. E. 258 (1903). Kansas. Shiras v. Ewing, 48 Kans. 170, 29 Pac. 320 (1892). Minnesota. State v. Board of Water Commissioners, 105 Minn. 472, 117 N. W. 827, 127 Am. St. Rep. 581 (1908). Missouri. McDaniel v. Water- works, 48 Mo. App. 273 (1892). New York. People v. Manhattan Gaslight Co., 45 Barb. 136 (1865); Brass v. Rathbone, 153 N. Y. 435, 47 N. E. 905 (1897). Ohio. Bellaire Goblet Co. v. Findlay, 5 Oh. Cir. Ct. 418 (1891). Oregon. Mackin v. Portland Gas Co., 38 Oreg. 120, 61 Pac. 134, 49 L. R. A. 596 (1900). Pennsylvania. Brumm, Appeal of (Pa.), 12 Atl. 855 (1888); Girard Life Insurance Co. v. Philadelphia, 88 Pa. St. 393 (1879); Smith v. Scranton Gas & Water Co., 5 Lack. L. News, 235 (1899). Washington. Jenkins v. Colum- bia Land Co., 13 Wash. 502, 43 Pac. 328 (1896). 2 The following cases, for exam- ple, hold that a supply may be cut off at one place for a bill owed by the applicant for supply at other premises: New York. People v. Manhattan Gaslight Co., 45 Barb. 136 (1865). Oregon. Mackin v. Portland Gas [391] 454 1 PUBLIC SERVICE CORPORATIONS ing, if not significant, is to find certain jurisdictions which hold against the applicant in general, not sure enough of their ground to hold against him in this particular case apparently within the general rule. 1 454. Payment of collateral claims cannot be demanded. It would probably be generally conceded that the pay- ment of wholly independent claims cannot be demanded as a condition of supplying present service. Certainly a gas company could not refuse to supply one who owed it for coke sold. 2 And it has been held in Tennessee 3 that a water company could not refuse to supply a customer whose bill for services and material was unpaid. "The defendant in the present case cannot justify its declination to furnish water to the plaintiff by the fact of his failure to pay the whole or a part of his outstanding duebill, given for water and piping furnished a year or two before. Upon tender of the regular rates, he was entitled to the water like other persons, and without reference to his past-due obligation. The company had given him credit for the matters covered by the duebill, and could not thereafter coerce payment by denying him a present legal right." Co., 38 Oreg. 120, 61 Pac. 134, 49 Maryland. Gaslight Co. v. Colli- L. R. A. 596 (1900). day, 25 Md. 1 (1866). Tennessee. Jones v. Mayor of Massachusetts. Turner v. Revere Nashville, 109 Tenn. 550, 72 S. W. Water Co., 171 Mass. 329, 50 N. E. 985 (1903). 634, 40 L. R. A. 657, 68 Am. St. England. Montreal Gas Co. v. Rep. 432 (1898). Cadieux, A. C. 589 (1899). New Jersey. Dayton v. Quigley, 1 The following cases hold that a 29 N. J. Eq. 77 (1878). supply cannot be refused at one 2 See Re Commercial Bank and place for arrears for supply fur- London Gas Co., 20 Up. Can. Q. B. nished the applicant at other 233 (1860). premises: 'Crumley v. Watauga Water District of Columbia. Lloyd v. Co., 99 Tenn. 420, 41 S. W. 1058 Gaslight Co., 1 Mackey, 331 (1881). (1897). [392] PREPAYMENT AS A CONDITION [ 455, 456 455. Cannot urge another's default. It is plain enough upon these principles that one cannot be required to pay claims against another. Thus the ves- sel of one owner cannot be affected by the unpaid tolls of another ship belonging to a stranger. 1 And it was re- cently held in Missouri 2 that "there is no more reason for compelling a married woman to pay her husband's debt, for the payment of which she is not legally bound, than there would be for compelling her to pay the debt of a stranger." 456. No requirement to pay arrears of predecessors. It is well agreed that this disability is a personal matter. When a householder applies to a gas or water company for a supply of gas or water at his house, and tenders the price, if it is required, or a deposit in advance, he cannot be refused because an independent earlier occupant of the premises is in arrear for his gas or water. 3 To so hold 1 Buffalo B. S. C. Co. v. Milby & 634, 40 L. R. A. 657, 68 Am. St. Dow, 63 Tex. 492, 51 Am. Rep. 668 Rep. 432 (1898). (1885). Mississippi. Burke v. City of 2 Vanderberg v. Gas Co., 126 Mo. Water Valley, 87 Miss. 732, 40 So. App. 600 (1907). 820, 112 Am. St. Rep. 468 (1905). 3 The common-law view is shown New Jersey. Dayton v. Quigley, by the following cases: 29 N. J. Eq. 77 (1878); Johnson v. Illinois. City of Chicago v. Atlantic City Gas Co., 65 N. J. Eq. Northwestern Mut. Life Ins. Co., 129, 56 Atl. 550 (1903). 218 111. 40, 75 N. E. 803, 1 L. R. A. Pennsylvania. Miller v. Wilkes- (N. S.) 770 (1905). Barre Gas Co., 206 Pa. St. 254, 55 Kentucky. Covington v. Ratter- Atl. 974 (1903). man, 128 Ky. 336, 108 S. W. 297, 17 South Carolina. Poole v. Paris L. R. A. (N. S.) 923 (1908). Mt. Water Co., 81 S. C. 438, 62 Louisiana. New Orleans G. L. S, E. 874, 128 Am. St. Rep. 923 & B. Co. v. Paulding, 12 Rob. (1908). (La.) 378 (1845). Washington. Linne v. Bredes, 43 Maryland Gaslight Co. v. Colli- Wash. 540, 86 Pac. 858, 6 L. R. A. day, 25 Md. 1 (1866). (N. S.) 707, 117 Am. St. Rep. 1068 Massachusetts. Turner v. Revere (1906). Water Co., 171 Mass. 329, 50 N. E. England. Sheffield Waterworks [393] 457] PUBLIC SERVICE CORPORATIONS would in effect decide that the supply is to the premises, not (as it plainly is) to the occupants. However, it is possi- ble for legislative action to alter this common law and to provide for such a charge upon the premises either by statute or charter provision, or by ordinance or (according to a very few cases) by regulation of which all concerned are apprised. 1 457. Assumption of predecessor's arrears. The distinction should be noted, that where the incom- ing occupant can fairly be said to have assumed the obliga- tions of his predecessor he will be held to succeed to his position and may be obliged to pay his arrears when that rule prevails. 2 Whether a trustee in bankruptcy or a receiver of a corporation, as a tenant, is independent of the bankrupt, his predecessor, has been discussed. But the usual rule is that a trustee who elects to remain in Co. v. Wilkinson, 4 C. P. D. 410 (1879). 1 The possibility of arranging this by such methods is shown in: Georgia. City of Atlanta v. Burton, 90 Ga. 486, 16 S. E. 214 (1892). Minnesota. State v. Board of Water & Light Com'rs, 105 Minn. 472, 117 N. W. 827 (1908). New Jersey. Vreeland v. O'Neil, 36 N. J. Eq. 399, affirmed in 37 N. J. Eq. 574 (1883); Hudson Trust & S. Inst. v. Carr-Curran Paper Co., 58 N. J. Eq. 59, 43 Atl. 418 (1899); Howe v. Orange, 70 N. J. Eq. 648, 62 Atl. 777 (1906). New York. Silkman v. Water Commissioners, 71 Hun, 37, 24 N. Y. Supp. 806 (1893). Pennsylvania. Altoona v. Shel- lenberger, 6 Pa. Dist. Rep. 544 (1897); Brumm v. Pottsville Water [3941 Co., 11 Cent. Rep. 792 (1888); Brumm's Appeal, 22 Wk. N. Gas. 137 (1888); Girard Life Ins. Co. v. Philadelphia, 88 Pa. St. 393 (1879); Appeal of the City of Harrisburg, 107 Pa. St. 102 (1884); Common- wealth v. Philadelphia, 132 Pa. St. 288, 19 Atl. 136 (1890); Miller v. Wilkes-Barre Gas Co., 206 Pa. St. 254, 55 Atl. 974 (1903); Girard Life Ins. Co. v. Philadelphia, 12 Phila. 293 (1878). Tennessee. Jones v. Mayor of Nashville, 109 Tenn. 550, 72 S. W. 985 (1903). England. East London Water- works Co. v. Kellerman, 2 Q. B. 72 (1892). 2 Tennessee. Jones v. Nashville, 109 Tenn. 550, 72 S. W. 985 (1902). England. Gaslight Co. v. Can- non Brewery Co., 1 K. B. 593 (1903). PREPAYMENT AS A CONDITION [458 possession after the adjudication of bankruptcy is an independent tenant, and may demand service without llrst paying the bankrupt's arrears, and so may a receiver. 1 458. Cannot shut off service for disputed arrearages. Where the doctrine is held that the company may refuse to continue service while arrearages are unpaid, the courts are seldom willing to give the company the power to compel settlement of disputed claims by refusing to deal with a customer until he comes to their terms. Here again it seems that as the exception is not far removed from the general rule, the courts do not have the courage to apply their principle in peculiarly hard cases. At all events the cases almost universally hold that a company cannot refuse to give present service or cut off existing service for refusal to settle outstanding arrearages which are in dispute. 2 Mandamus will issue to compel the giving 1 New Jersey. Coe v. New Jersey Midland Ry. Co., 30 N. J. Eq. 440 (1879). Massachusetts. Cox v. Maiden & M. Gaslight Co., 199 Mass. 324, 85 N. E. 180, 17 L. R. A. (N. S.) 1235 (1908). 2 Alabama. Bienville Water Co. v. Mobile, 112 Ala. 260, 20 So. 742, 33 L. R. A. 59, 57 Am. St. Rep. 28 (1895). Indiana. Xenia Real Estate Co. v. Macy, 147 Ind. 568, 47 N. E. 147 (1896). Iowa. Graves v. Key City. Gas Co., 83 Iowa, 714, 50 N. W. 283 (1891). Louisiana. Ernst & Co. v. New Orleans Waterworks Co., 39 La. Ann. 550, 2 So. 415 (1887). Maine. Wood v. City of Au- burn, 87 Me. 287, 32 Atl. 906, 29 L. R. A. 376 (1895). Mississippi. Cumberland Tel. & Tel. Co. v. Baker, 85 Miss. 486, 37 So. 1012 (1905). Nebraska. State v. Nebraska Telephone Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404 (1885). New York. Van Nest Land Co. v. New York Water Co., 7 N. Y. App. Div. 295, 40 N. Y. Supp. 212 (1896); Sickles v. Manhat- tan Gaslight Co., 64* How. Pr. 33 (1882); s. c., 66 How. Pr. 314 (1884); McEntee v. Kingston Water Co., 165 N. Y. 27, 58 N. E. 785 (1900); Jones v. Roches- ter Gas Co., 7 N. Y. App. Div. 474, 39 N. Y. Supp. 1110, af- firmed 158 N. Y. 678, 52 N. E. 1124 (1896). Oregon. Mackin v. Portland Gas Co., 38 Oreg. 120, 61 Pac. 134, 49 L. R. A. 596 (1900). [395] 459, 460 ] PUBLIC SERVICE CORPORATIONS of service under such circumstances or injunction to prevent a threatened shutting off. Although there thus can be no shutting off pendente lite, as soon as the obligation is settled against the consumer by judgment being cast against him, his supply can be shut off until he satisfies the judgment. 1 459. Character of the dispute. It should be added that if his claim is obviously un- reasonable he cannot insist upon protection of a court of equity to litigate a frivolous claim. 2 If, on the other hand, the charge disputed is obviously illegal the injunction may be made permanent. 3 Note also that a patron who has a counterclaim of a doubtful character cannot refuse to make further payments for service by setting this against his current bills. 4 None of these problems will bother a court which holds that there can be no shutting off for arrearages under any circumstances. 460. Waiver of right to refuse. In a few cases it has been suggested that where an old bill has been passed over and later installments ac- Pennsylvania. Sewickley School Pennsylvania. P ennsylvania Dist. v. Ohio Valley Gas Co., 154 Iron Co. v. Lancaster, 17 Lane. L. Pa. St. 539, 25 Atl. 868 (1893). R. 161 (1900). South Carolina. Poole v. Paris 3 Minnesota. Gordon & Fergu- Mt. Water Co., 81 S. C. 438, 62 S. son v. Doran, 100 Minn. 343, 111 N. E. 874, 128 Am. St.- Rep. 923 (1908). W. 272, 8 L. R. A. (N. S.) 1049 Tennessee. O'Rourke v. Citizens' (1907). Street Ry. Co., 103 Term. 124, 52 New Jersey Borough of Wash- S. W. 872, 46 L. R. A. 614, 76 Am. ington v. Washington Water Co., 70 St. Rep. 639 (1899). N. J. Eq. 254, 62 Atl. 390 (1905). 1 New York. McEntee v. Kings- * Buffalo County Telephone Co. ton Water Co., 165 N. Y. 27, 58 N. v. Turner, 82 Neb. 841, 118 N. W. E. 785 (1900); People V.Manhattan 1064, 9 L. R. A. (N. S.) 693 Gaslight Co., 45 Barb. 136 (1865). (1908). 2 Louisiana. Ernst & Co. v. See also State v. Nebraska Tele- New Orleans Waterworks Co., 39 phone Co., 17 Neb. 126, 22 N. W. La. Ann. 550, 2 So. 415 (1887). 237, 52 Am. St. Rep. 404 (1885). [396] PREPAYMENT AS A CONDITION [ 460 cepted the company cannot make such arrearages the basis for a refusal to continue service. 1 But if this has happened by inadvertence the company may, it is held, insist upon its rights, as in one case where the person in arrears changed his residence so that it was not discov- ered for a time that he was the person in arrears. 2 And where an agreement between a water company and a consumer, separate and distinct from the contract for water supply, provides that the rent shall be paid in ad- vance, the company's recovery by suit of an installment for a particular period will not preclude it from subsequently setting up a right to shut off the water during such period for nonpayment therefor. 3 And similarly where the sub- ject is covered by a special contract, it is still held that the supply may be cut off for arrears. 4 1 Wood v. City of Auburn, 87 Me. 3 Hieronymus v. Bienville Water 287, 32 Atl. 906, 29 L. R. A. 376 Co., 131 Ala. 447, 31 So. 31 (1901). (1895). < Gallagher v. Equitable Gaslight 2 People v. Manhattan Gaslight Co., 141 Cal. 699, 75 Pac. 329 Co., 45 Barb. (N. Y.) 136 (1865). (1904). [397 CHAPTER XIV PUBLIC DUTY AS TO DEPENDENT SERVICES 470. Nature of the problem. Topic A. Public Duty Involved 471. The argument is close. 472. No direct duty to the dependent service. 473. Real duty is to patrons themselves. 474. Conservative view of the duty involved. 475. Progressive view of the duty involved. 476. Necessity for the public service law. Topic B. Transportation Services in Particular 477. Express companies: conservative view. 478. Comment thereon. 479. Express companies: radical view. 480. Discussion thereof. 481. Exclusive contracts with private car lines. 482. Arrangements for hauling sleeping cars. 483. Hack service: conservative view. 484. Objections thereto. 485. Hack service: radical view. 486. Argument therefor. 487. Access to connecting steamboats. 488. No access owed except at wharf stations. 489. Treatment of baggage transfer men. 490. Rights of competing draymen. 491. Arrangements with stock yards. 492. Contracts with grain elevators. Topic C. Public Services in General 493. Exclusive arrangements by innkeepers. 494. Equal facilities for ticker service. 495. Canal company giving monopoly of towage. 496. Arrangement for sprinkling service. 497. Telephone installation in public premises. [398] DEPENDENT SERVICES [ 470, 471 Topic D. No Public Duty Involved 498. Special concessions when no public duty involved. 499. Special concessions for private business. 500. Whether service provided is necessary. 501. Additional favors beyond obligation. 502. Exclusive contracts in private capacity. 503. Private activities often held ultra vires. 470. Nature of the problem. A special problem under the general head of the true extent of public duty is whether in dealing with dependent services those who conduct the principal service can make such arrangements as they please with those who apply for such special privileges, or whether there is a public duty in the premises requiring that equal facilities shall be granted. This subject has such commercial im- portance that it is given separate treatment in this chapter; for these subsidiary services which are dependent upon special privileges from the principal service carry on a great business in recent times. Although the most of litigation upon the general issue involves the transporta- tion services, because of their importance as a commercial matter, still the same problem at times presents itself in certain other public callings, so that it really constitutes a general problem of public service. Topic A. Public Duty Involved 471. The argument is close. There has always been and there remains a square conflict of authority as to whether the law extends so far as to cover this situation. On one side are the jurisdictions conservative in attitude, which hold that there is no pub- lic duty involved and that therefore the carrier may, for example, discriminate among expressmen. On the other hand are the progressive jurisdictions which hold that there is a public obligation involved and that the inn- [3991 472 ] PUBLIC SERVICE CORPORATIONS keeper may not, therefore, admit certain hackmen to its premises while excluding others. And in various other subsidiary businesses of the same sort, where those who offer a service to the public are dependent to a considerable extent for opportunity to conduct their calling upon ob- taining special privileges, there is the same conflict of authority. 472. No direct duty to the dependent service. At the beginning of the controversy the ground may be cleared by the admission that there is no direct duty owed to those who conduct these dependent services. The railroad company surely owes no duty to hackmen who would ply their trade upon station premises; its sole duty is to its passengers. 1 Similarly a telegraph company owes no duty to a telephone company which wishes to install an instrument, 2 its sole duty being to its patrons. It can- not be said that the principal business has ever undertaken the reception of the subordinate servitors upon a public basis. Not even in the case of the expressman can it usually be said that the railroad has undertaken to be a common carrier of common carriers. 3 For the plain fact is that it does not purport to act as such but only makes special contracts with particular forwarders for special kinds of business conducted in an unusual way. And certainly an innkeeper owes no duty to coachmen who would solicit business from his guests. For those hackmen 1 Thus solicitors driving special 8 Thus a man carrying a bag of omnibuses for particular hotels may express packages may be kept off a be kept off railroad premises. line of boats as a passenger. Arkansas. Hot Springs v. Curry, United States. The R. D. Mar- 64 Ark. 152, 41 S. W. 55 (1897). tin, 11 Blatch. 233 (1873). Missouri. Laddonia v. Poor, 73 New York. Barney v. Oyster Mo. App. 465 (1898). Bay & H. Steamboat Co., 67 N. Y. 1 People v. Western Union Tele- 301 (1876). graph Co., 166 111. 15, 46 N. E. 731 (1897). [400] DEPENDENT SERVICES [ 473 are not wayfarers seeking necessary entertainment, neither do they tender the innkeeper his usual rates for entertain- ment. 1 473. Real duty is to patrons themselves. On the other hand that there is some public duty in the premises is plain. In the case of the express service the modern railroad owes a duty of some sort in respect to the transportation of small and valuable parcels safely and quickly. But to whom is this duty owed? Certainly not to the subordinate carrier, as has been seen. The duty, if any, that it owes, seems to be rather to the general pub- lic who ship through the expressman. "An express com- pany engaged in the business of transporting small pack- ages has as good a right to the benefits of the railroad as the owners of the packages possess in person. It is im- possible 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." 2 So of the hackmen at rail- way stations, the duty is plainly to the passenger himself. Thus it is admitted by all that a railroad owes such duties to its incoming and outgoing passengers that it cannot exclude from its station driveways hackmen bringing pas- sengers, or hackmen directed by passengers to call for them. 3 For of course no one would go so far as to deny the 1 See State v. Steele, 106 N. C. motives offered it for transporta- 766, 11 S. E. 478, 8 L. R. A. 516, 19 tion. It was held that plaintiff, a Am. St. Rep. 573 (1890). shipper of locomotives, could ob- 2 Per Lewis, C. J., in Sandford v. ject to this scheme to defeat him in Catawissa R. R. Co., 24 Pa. St. 378, his individual right to have his 64 Am. Dec. 667 (1855). property transported. In Rogers Locomotive & Machine * Rhode Island. Griswold v. Works v. Erie Ry. Co., 20 N. J. Eq. Webb, 16 R. I. 649, 19 Atl. 143, 7 379 (1869), the defendant railroad L. R. A. 302 (1889). company entered into an arrange- Tennessee. Summit v. State, 8 ment with a locomotive express Lea, 413, 41 Am. Rep. 637 (1881). concern for the handling of all loco- 26 [ 401 ] 474, 475 ] PUBLIC SERVICE CORPORATIONS duty of the carrier of passengers to permit free access and egress for those whom it is serving. Indeed in this aspect the duty to give passengers access to hackmen is the -same as the duty to admit persons assisting pas- sengers. 474. Conservative view of the duty involved. Even when it is once established that there is a public duty toward their own patrons in respect to the subordi- nate service involved, there remains the conflict of author- ity as to the extent to which this duty goes. According to the conservative view, the principal company fulfills its duty by making provision for the service desired, which may be done by an exclusive contract with one concern. The decisions permitting this were first made upon the elementary ground plainly avowed that as such, service was not within any real public profession, there was no public obligation in the premises whatsoever. 1 But of late years those who support these decisions have felt obliged to defend them upon grounds of public policy. They point to the public inconvenience involved in having boisterous hackmen of all sorts at railway stations; they insist upon the waste of duplication of express services over the same railroad. And very recently pressed further they suggest that it may be that in making these exclusive arrangements public interests should not be left without consideration. 2 475. Progressive view of the duty involved. According to the progressive view the whole law of public service applies to the situation throughout; and the exclusive contract is held illegal as a necessary con- 1 For example, see the Express 2 For example, read Hedding v. Cases, 117 U. S. 1, 29 L. ed. 791, 6 Gallagher, 72 N. H. 377, 57 Atl. 225, Sup. Ct. 542, 628 (1886). 64 L. R. A. 811 (1903). [402] DEPENDENT SERVICES [ 476 sequence of that law. 1 It is believed by these radical persons who take the progressive view that however much it is modified the conservative view of this matter cannot give the public service the full protection which this progressive view assures. For if the public duty does not go to the extent of preventing discrimination in per- forming it, it seems that none of the law of public service can be applied between the railroad company and the express company, for example. And it would seem to follow that any express company, therefore, may be justi- fied in charging extortionate prices. Whatever may be the inconveniences of competition, it is usually worth more than it costs. Moreover these services are not of that class where enormous sums must be spent in providing a duplicate equipment, nor where the public can only get adequate service by the establishment of a legalized monopoly. Even if hack rates are regulated by law it is the maximum that is fixed and the public loses the chance of reaching the minimum by competition. 476. Necessity for the public service law. That the monopoly system works well in particular instances does not alter the fact that there is real danger in leaving the situation without the full restraint of the whole law; without the whole law the monopolist will be able to exploit to some extent those whom it is his duty to serve. But even if the common carrier at times exercises his discretion by seeing to it that the dependent service is provided under fair conditions, the danger remains in leaving this important situation without law. For if there is abuse of discretion and those who need the de- pendent service are systematically exploited, there will be no law in reserve by which redress is possible. And if 1 See the language in McDuffee v. Portland & R. R. R. Co., 52 N. H. 430, 13 Am. Rep. 72 (1873). [4031 477 ] PUBLIC SERVICE CORPORATIONS experience in dealing with the public service companies is teaching anything, it is showing that only the most comprehensive law will prove effectual; for if a way of escape is left, it will be found. The time has long since passed when laissez faire may be put forward as the better method of dealing with any problem of public duty. 1 Topic B. Transportation Services in Particular 477. Express companies : conservative view. As a matter of fact this problem of the extent of the duty of the principal service to those conducting a subor- dinate service has arisen almost exclusively as yet in re- spect to transportation services; and the most important instance of this is the express service carried on over the railroad systems. The leading authority upon this whole subject is undoubtedly the Express Cases. 2 These suits were all begun by expressmen against railways to compel them to give them respectively the express facilities on the several lines of railway which they had previously enjoyed by contract and of which they had been dis- possessed by notice given in accordance with the terms of exclusive contracts made with favored companies. Judg- ments below had been rendered in favor of the express companies from which the railroad companies appealed. 3 The cases were elaborately argued; and the whole history of the course of dealings that had gone on between the express companies and the railroad companies was dis- cussed. The decision of the majority of the court went 1 See the language in Montana eral courts. See Southern Express Union Ry. Co. v. Langois, 9 Mont. Co. v. Memphis R. R. Co., 2 Mc- 419, 24 Pac. 209, 8 L. R. A. 753, 18 Crary, 570 (1881); Wells, Fargo & Am. St. Rep. 745 (1890). Co. v. O. Ry. & Navigation Co., 8 2 117 U. S. 1, 29 L. ed. 791, 6 Sawyer, 600 (1883); United States Sup. Ct. 542, 628 (1886). v. M. & L. R. R. R. Co., 6 Fed. 237 * The Express Cases, supra, over- (1881); Wells Fargo & Co. v. North- ruled what had just previously been ern Pac. Ry. Co., 23 Fed. 469 the weight of authority in the Fed- (1884). [404] [478 off upon this evidence, as may be seen in Mr. Chief Justice Waite's conclusion in the majority opinion: "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 uniformly been the habit of railroad coii-panies to arrange, at the earliest practical moment, to take one express company on some or all of their pas- senger trains, or to provide some other way of doing an express business on their lines, it has never been the prac- tice to grant such a privilege to more than one company at the same time, unless a statute * or some special circum- stances made it necessary or desirable." 2 478. Comment thereon. The arguments from policy that are urged in support 1 This is governed by statute in some jurisdictions; for example, to- day in Massachusetts by statute, such number of local expressmen shall be permitted to operate over a given route as the railroad commis- sioners shall decide. (Rev. Laws, chap. Ill, sec. 241.) See Kidder v. Fitchburg Ry. Co., 165 Mass. 398, 43 N. E. 115 (1896). As to a general Canadian statute, see Vickers v. Canadian Pacific Ry. Co., 13 Ont. App. 210 (1908). 2 In accord with the Express Cases, supra, are: United States. Baltimore & O. Ry. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. ed. 560 (1900). California. Pfister v. Central Pac. R. R. Co., 70 Cal. 169, 11 Pac. 686, 59 Am. Rep. 404 (1886). Illinois. Blank v. 111. Cent. R. R. Co., 182 111. 332, 55 N. E. 332 (1899), semble. Indiana. Louisville, N., A. & C. Ry. Co. v. Keefer, 146 Ind. 21, 44 N. E. 796, 58 Am. St. Rep. 348, 38 L. R. A. 93 (1896), semble. Kentucky. Davis v. Chesapeake & O. Ry. Co., 29 Ky. L. Rep. 53, 92 S. W. 339, 5 L. R. A. (N. S.) 458 (1906), semble. Maryland. Dulaney v. United Ry. & El. Co., 104 Md. 423, 65 Atl. 45 (1906). Massachusetts. Sargent v. Bos- ton & L. R. R., 115 Mass. 416 (1874). North Carolina. Atlantic Ex- press Co. v. Wilmington & W. R. R. Co., Ill N. C. 463, 16 S. E. 393 (1892), overruling Alsop v. South- ern Exp. Co., 104 N. C. 278, 10 S. E. 297 (1889). Vermont. Robinson v. St. Johns- bury & L. C. Ry. Co., 80 Vt. 129, 66 Atl. 814, 9 L. R. A. (N. S.) 129 (1907), semble. [405] 479 ] PUBLIC SERVICE CORPORATIONS of these conservative cases are not conclusive, although they have a certain force. It is true that it is somewhat more difficult for the railroads to handle three distinct expresses than one, but not more difficult than many problems of railroading that are part of every day traffic handling. Subdivision of express cars upon light runs, and more development of the special train for express matter, would solve the difficulty; and the railroad is pro- tected in any event by the right to charge a fair price for its services based upon the cost of service. Again, it is said that large express companies are better than a greater number of smaller companies. It should be pointed out, however, that the doctrine of the Express Cases may be used to exclude the national express companies with their full equipment from any railroad system, the directors of which favor some local company. 479. Express companies : radical view. To bring out the difference of opinion upon this im- portant matter it may be well to give at some length, one of the leading cases upon the other side of this con- troversy. The most radical decision upon this side is to be found in McDuffee v. Portland and Rochester Rail- road. 1 This was an action on the case by the plaintiff, an expressman, against the defendant railway for not furnishing the plaintiff terms, facilities, and accommoda- tions for his express business on the defendants' road, reasonably equal to those furnished by the defendants to the Eastern Express Company. The defendants demurred to the declaration, which demurrer the Supreme Court finally discharged. The gist of Chief Justice Doe's opinion may be seen from the following extract: "A railroad cor- poration, carrying one expressman, and enabling him to do all the express business on the line of their road, do 1 52 N. H. 430, 13 Am. Rep. 72 (1873). [406] DEPENDENT SERVICES [ 480 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 per- form 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 nomi- nal one, and is in no danger of being destroyed by a quibble. 1 480. Discussion thereof. The strongest argument for the progressive view may be developed from the principles laid down in the opinion just quoted. If the public duty in this matter does not go to the extent of preventing discrimination in perform- ing it, none of the law of public service applies between the railroad company and the express company; and it follows that any express company may be charged extor- tionate prices. Such unreasonable charges, if not for- bidden, will inevitably react upon the general shipping public to whom, by the hypothesis, a public duty is owed to provide adequate service for reasonable rates. It may be urged that the express business itself is a public calling, and that therefore the express companies themselves are bound to give satisfactory service at reasonable rates. But their duty is relative; if they must pay extortionate prices, they may charge these against the general shipping 1 In accord see: wissa R. R. Co., 24 Pa. St. 378, 64 Maine. New England Exp. Co. Am. Dec. 667 (1855). v. Maine C. R. R., 57 Me. 188, 2 Texas. State v. Missouri, K. & Am. Rep. 31 (1869); International T. Ry. Co., 99 Tex. 516, 91 S. W. Exp. Co. v. Grand Trunk Ry., 81 214, 5 L. R. A. (N. S.) 783 (1906). Me. 92, 16 Atl. 370 (1888). England. Pickford v. Grand New Jersey. Rogers L. & M. Junction Ry. Co., 10 M. & W. 399 Wks. v. Erie R. R. Co., 20 N. J. (1842); Parker v. Great Western Eq. 379 (1869). Ry. Co., 7 M. & G. 253 (1844); Pennsylvania. Sanford v. Cata- Parker v. Great Western Ry., 11 C. B. 545, 583 (1851). [407] 481 ] PUBLIC SERVICE CORPORATIONS public as necessary operating expenses. Therefore if the whole law governing public duty is not applied between the railways and the expressmen it would seem to be impossi- ble in any entirely satisfactory way to protect by the law the shippers of express matter from the machinations of those who are concerned with transporting it. 481. Exclusive contracts with private car lines. The doctrine of the Express Cases is continually ham- pering the common law in dealing with interstate trans- portation. Within the last few years public opinion has been much aroused against the exclusive arrangements entered into between the railways and the various private car lines. It is pretty generally agreed that what ought to be done in dealing with the private car lines is to apply to the whole situation the coercive law that regulates public calling. Either the railways ought to be obliged to conduct these special services themselves, furnishing then* own cars, or if they decide upon a different policy they should be obliged to haul the cars of as many private car lines as choose to undertake the business. But the conservative doctrines held by the Supreme Court of the United States stand in the way of the immediate appli- cation to interstate commerce of any such progressive views as these. In the meantime, in the absence of effi- cient regulation by thorough-going law, those private car lines, the refrigerator car lines particularly, that have exclusive agreements with the railways are showing very clearly what may happen when a common carrier is per- mitted to foster a monopoly in a dependent service. Similar issues have been raised as to private car lines for the transportation of live stock; but the Federal courts have applied the doctrine of the Express Cases to them as in duty bound. The leading case on this point seems to be United States ex rel. Morris v. Delaware, Lacka- [408] DEPENDENT SERVICES [ 482 wanna & Western Railroad Company l in which Mr. Justice Wallace said: "It is no part of the common-law obligation of railway companies to furnish the same facili- ties or instrumentalities of transportation to all alike, and while it is unquestionably their duty to furnish suit- able and adequate facilities for all reasonable necessities of the business they engage in, they may nevertheless choose their own appropriate means of carriage." 2 482. Arrangements for hauling sleeping cars. Another important case since the Express Cases which came up for decision in the Supreme Court of the United States relating to sleeping car service really involves the same general issue. 3 In the leading case an exclusive con- tract was held valid by the terms of which a railroad company gave a palace-car company the exclusive right for fifteen years to furnish parlor and sleeping cars on all passenger trains of the railroad company, the railroad company binding itself not to contract with any other company to run the same class of cars over its lines during that period. The court felt that there was no public policy violated as there was no public duty involved. An extract from the opinion of Mr. Justice Harlan shows that this law still continues: "The defendant was under a duty arising from the public nature of its employment to furnish for the use of passengers upon its lines, such accommodations as were reasonably required by the ex- 1 40 Fed. 101 (1889). 79, 35 L. ed. 97, 11 Sup. Ct. 490 2 But the railroad in making its (1890). special contract with a private car There have recently been cases line cannot stipulate against lia- holding the same doctrine: bility for personal injuries to those Colorado. Denver & R. G. R. R. concerned. See Baker v. Boston & Co. v. Whan, 39 Colo. 230, 89 Pac. M. R. R. Co., 74 N. H. 100, 65 Atl. 39, 11 L. R. A. (N. S.) 432 (1908). 386 (1908). Texas. Fort Worth & D. C. Ry. 8 Chicago, St. L. & N. O. R. Co. Co. v. State, 99 Tex. 34, 87 S. W. v. Pullman Car Co., 139 U. S. 336, 70 L. R. A. 950 (1905). [409] 483 ] PUBLIC SERVICE CORPORATIONS isting conditions of passenger traffic. Its duty, as a car- rier of passengers, was to make suitable provisions for their comfort and safety. Instead of furnishing its own drawing-room and sleeping cars, as it might have done, it employed the plaintiff, whose special business was to provide cars of that character, to supply as many as were necessary to meet the requirements of travel. It thus used the instrumentality of another corporation in order that it might properly discharge its duty to the public. So long as the defendants' lines were supplied with the requisite number of drawing-room and sleeping cars, it was a matter of indifference to the public who owned them." ! 483. Hack service: conservative view. It is maintained by many courts that the railroad com- pany is under no public duty to admit hackmen to its station grounds to solicit business. One of the strongest cases for the railway in this matter in recent years is New York, New Haven & Hartford Railroad Company v. Scovill. 2 In that case it appeared from the complaint that the plaintiff by its board of directors adopted a regulation excluding from its station grounds all persons who, without special permission in writing, should come to solicit the carriage of passengers or their luggage. The defendant, knowing the regulation, soon afterwards en- tered upon its station grounds in Middletown to solicit 1 It has been remarked of this 705, 1 L. R. A. (N. S.) 674, 106 Am. situation as of other relationships St. Rep. 187 (1905). of this sort that as a railroad com- Indiana. Russell v. Pittsburg, pany is under no legal duty to re- C., C. & St. L. Ry. Co., 157 Ind. ceive a sleeping car from the Pull- 305, 01 N. E. 678, 87 Am. St. Rep. man Company with its employes 214 (1901). thereon it may make special con- 2 71 Conn. 136, 41 Atl. 246, 42 tracts limiting its liability. L. R. A. 157, 71 Am. St. Rep. 159 Illinois. Chicago, R. I. & P. Ry. (1898). Co. v. Hamler, 215 111. 525, 74 N. E. [410] DEPENDENT SERVICES [ 483 business of that description. This was a bill for an in- junction to stop this practice. The injunction was granted in the lower court, but in the higher court this was set aside. Mr. Justice Baldwin holding that the regulation was reasonable: "Such a grant was within its lawful powers, provided its terms were not inconsistent with the reasonable accommodation of the passengers upon its road. Nothing appears on the record to indicate any such inconsistency. It may well be more convenient for them to deal with a single local carrier than to be met, on alighting from their train, by importunate solicitations from a number of rival competitors for their custom; and, in the absence of averments to the contrary, it is to be presumed that the prices at this stand are fair, and the service sufficient. If any of them prefer that of some other person, they can secure it by an order in advance, which would justify his entrance on the grounds; or by passing by the stand established there, and going into the streets outside, to engage whomsoever they think fit." 1 1 To the same effect are: 230, 58 N. E. 689, 83 Am. St. Rep. United States. Donovan v. Penn- 275 (1900) . sylvania Co., 199 U. S. 279, 50 L. Minnesota. Godbout v. Union ed. 192, 26 Sup. Ct. 91 (1905), Depot Co., 79 Minn. 188, 81 N. W. affirming 124 Fed. 1016, 60 C. C. A. 835, 47 L. R. A. 532 (1900). 168, 120 Fed. 215, 57 C. C. A. 362, New Hampshire. Hedding v. 116 Fed. 907. Gallagher, 72 N. H. 377, 57 Atl. 225, Colorado. Union Depot & Ry. 64 L. R. A. 811 (1903), overruling Co. v. Meeking, 42 Colo. 89, 94 Pac. on rehearing 69 N. H. 650, 45 Atl. 16, 126 Am. St. Rep. 145 (1908). 96, 76 Am. St. Rep. 204. Georgia. Kates v. Atlanta Bag. New York. Brown v. New York & Cab Co., 107 Ga. 636, 34 S. E. C. & H. R. R. R. Co., 151 N. Y. 674, 372, 46 L. R. A. 431 (1898). 46 N. E. 1145 (1897); New York C. Massachusetts. Old Colony R. & H. R. R. R. Co. v. Flynn, 74 Hun, R. v. Tripp, 147 Mass. 35, 17 N. E. 124, 26 N. Y. Supp. 859 (1893); 89, 9 Am. St. Rep. 661, B. & W. 166 New York C. & H. R. R. R. Co. v. (1888); Boston & A. R. R. Co. v. Sheeley, 27 N. Y. Supp. 185 (1893); Brown, 177 Mass. 65, 58 N. E. 189, New York C. & H. R. R. R. Co. v. 52 L. R. A. 418 (1900); Boston & Warren, 64 N. Y. Supp. 781, 31 M. R. R. Co. v. Sullivan, 177 Mass. Misc. Rep. 571 (1900). '411] 484 PUBLIC SERVICE CORPORATIONS 484. Objections thereto. The practical inconvenience that the Justice feels could be met by some reasonable regulation of the sort uni- versally supported, confining all hackmen behind a bar in the station and by other requirements of orderly con- duct. 1 And if the railroad company does not take this up, the city may pass ordinances to this end. 2 But regu- lations which arbitrarily admit one line of hacks to the station and exclude another or give one a better position than another are different matters, and whether they Ohio. Snyder v. Depot Co., 19 Ohio Cir. Ct. 368 (1899); State v. Union Depot Co., 71 Ohio St. 379, 73 N. E. 633, 68 L. R. A. 792 (1905). Rhode Island New York, N. H. & H. R. R. Co. v. Bork, 23 R. I. 218, 49 Atl. 965 (1901). Utah. Oregon Short Line Ry. v. Davidson, 33 Utah, 370, 94 Pac. 10, 16 L. R. A. (N. S.) 777 (1908). England. Painter v. London, B. & S. C. Ry. Co., 2 C. B. (N. S.) 702 (1857). Australia. Borsum v. Hardie, 23 Viet. Sup. Ct. 479 (1898). 1 Regulations of the company of this sort are valid: Indiana. Lucas v. Herbert, 148 Ind. 64, 47 N. E. 146, 37 L. R. A. 376 (1897). Massachusetts. Commonwealth v. Power, 7 Met. 596, 41 Am. Dec. 465 (1844). Michigan. Cole v. Rowen, 88 Mich. 219, 50 N. W. 138, 13 L. R. A. 848 (1891). Pennsylvania. Smith v. N. Y., L. E. & W. R. R. Co., 149 Pa. St. 249, 24 Atl. 304 (1892). 2 Municipal ordinances of this sort are valid: [4121 Alabama. Lindsay v. Mayor & City Council of Anniston, 104 Ala. 257, 16 So. 545, 27 L. R. A. 436, 53 Am. St. Rep. 44 (1893). Arkansas. Emerson v. McNeil, 84 Ark. 552, 106 S. W. 479, 15 L. R. A. (N. S.) 715 (1907). Colorado. Colorado Springs v. Smith, 19 Colo. 554, 36 Pac. 540 (1894). Illinois. Danville v. Noone, 103 111. App. 290 (1901). Indiana. Veneman v. Jones, 118 Ind. 41, 20 N. E. 644, 10 Am. St. Rep. 100 (1888). Kansas. Ottawa v. Bodley, 67 Kan. 178, 72 Pac. 545 (1903). Minnesota. St. Paul v. Smith, 27 Minn. 364, 7 N. W. 734, 38 Am. Rep. 296 (1880). Ohio. Moerder v. Fremont, 19 Ohio Cir. Ct. 394 (1899). Texas. Vance, Ex parte, 42 Tex. Cr. App. 619, 62 S. W. 568 (1901). But see: Georgia. Cosgrove v. City Coun- cil of Augusta, 103 Ga. 835, 31 S. E. 445, 68 Am. St. Rep. 149, 42 L. R. A. 711 (1898). Michigan. Napman v. People, 19 Mich. 352 (1869). DEPENDENT SERVICES [485 are valid or not depends upon whether it is consistent with the general duty of the carrier or not to so arrange matters. 485. Hack service : radical view. On the other hand, the position that a railroad may not admit favored hackmen to solicit business upon the sta- tion grounds and exclude other hackmen from equal privileges is held in many cases. The argument for this view is stated very clearly in State v. Reed : by Mr. Chief Justice Woods: "The question is one that affects the interests of the public. The upholding of the grant of this exclusive privilege would prevent competition between rival carriers of passengers, create a monopoly in the privileged hackmen, and might produce inconvenience and loss to persons traveling over the railroad, or those having freights transported over it, in cases of exclusion of drays and wagons from its grounds, other than those owned by the person having the exclusive right to enter the railroad's depot grounds. To concede the right claimed by the railroad in the present case would be, in effect, to confer upon the railroad company the control of the transportation of passengers beyond its own lines, and to create a monopoly of such business, not granted by its charter, and against the interests of the public." 2 1 76 Miss. 211, 24 So. 308, 71 Am. Am. St. Rep. 274, 45 L. R. A. 427 St. Rep. 528, 43 L. R. A. 134 (1898). (1899). 2 To the same effect are: Kentucky. McConnell v. Pedigo, Florida. Indian River S. B. Co. 92 Ky. 465, 18 S. W. 15 (1892). v. East Coast Transp. Co., 28 Fla. Michigan. Kalamazoo Hack & 387, 10 So. 480, 29 Am. St. Rep. 258 Bus Co. v. Sootsma, 84 Mich. 194, (1891). 47 N. W. 667, 22 Am. St. Rep. 693, Illinois. Pennsylvania Co. v. 10 L. R. A. 819 (1890). Chicago, 181 111. 289, 54 N. E. 825, Missouri. Cravens v. Rodgers, 53 L. R. A. 223 (1899). 101 Mo. 247, 14 S. W. 106 (1890). Indiana. Indianapolis U. Ry. v. Montana. Montana U. Ry. Co. Dohn, 153 Ind. 10, 53 N. E. 937, 74 v. Langlois, 9 Mont. 419, 24 Pac. [413] 486, 487 ] PUBLIC SERVICE CORPORATIONS 486. Argument therefor. There seems to be a violation of the duty owed by the carrier to the passenger to permit free egress by these special privileges at the station which prevent the pas- senger from having equal access to all who wish to put themselves at his disposal. The right of the passenger to have ingress to the station by any carriage that he chooses to employ nobody dares to deny; it is very hard to see any essential difference from the obligation to give egress without discrimination. Moreover, to allow the grant of exclusive privilege permits the exploitation of the passenger by this monopoly; for monopoly price is always higher than competitive price. This may be shown by the fact that the favored lines are always willing to pay roundly for the exclusive privilege, even when maxi- mum fares are fixed by local ordinance. 487. Access to connecting steamboats. An analogous question is raised when a railroad having a terminus upon a wharf in a navigable stream, enters into some arrangement with one steamboat line whereby it may have exclusive access to the wharf. In the Indian River Steamboat Co. v. East Coast Transportation Com- pany, 1 a scheme to give an exclusive right was held op- posed to public duty. Mr. Justice Mabry in the opinion of the court said in one place: "The real question presented here is, can complainant corporation, engaged in carrying freight and passengers on the Indian River by means of steamboats, rent from a railroad common carrier its dock on said river, on which its track and terminal facilities are located, and exclude others from landing at said ter- minal point for the purpose of receiving freight and pas- sengers to and from said common carrier? This question, 209, 18 Am. St. Rep. 745, 8 L. R. A. ' 28 Fla. 387, 10 So. 480, 29 Am. 753 (1890). St. Rep. 258 (1891). [414] DEPENDENT SERVICES [ 488 we think, must be answered in the negative. If it be com- petent to sustain such a contract, the common carrier can select one connecting line of boats, and exclude all others from doing business with it. Such a doctrine would lead to the legalizing of a monopoly, and the sanction of an un- fair and unjust preference between connecting and com- peting lines of transportation. We do not understand that a common carrier ever had such power as this." l 488. No access owed except at wharf stations. It should be said, however, that as no access or egress is owed except at established stations by a railroad to its patrons, the only legal wrong in such discrimination against connecting steamboats at terminal wharves will be at such wharves as are regular stations. This was the deciding point in the final decision in Ilwaco Railway and Navigation Company v. Oregon Short Line Railway Company 2 where the Circuit Court of Appeals held that a transportation company operating a railway and a line of steamboats connecting at the company's wharf need not permit the steamboats of a competitor to land at such wharf. Mr. Justice McKenna pointed this out: " We may add that the wharf does not seem to be a public station. It is a convenience, only, in connecting its rail- roads and boats; the general station being at Ilwaco, where ample facilities exist." 3 1 There is other authority to the (1903), where it was held that if a same effect: Macon, D. & S. R. R. railroad provided adequate wharf- Co, v. Graham & Ward, 117 Ga. age facilities, it might at a particu- 555, 43 S. E. 1000 (1903). lar wharf exclude all but one line. 2 57 Fed. 673, 15 U. S. App. 173, 6 Gulf, C. & S. F. Ry. Co. v. Miami C. C. A. 495 (1893), overruling 51 S. S. Co., 86 Fed. 407, 52 U. S. App. Fed. 611 (1892). 732, 30 C. C. A. 142 (1898), accord. 1 See Louisville & N. R. R. Co. v. But see The Davidson, 122 Fed. West Coast N. S. Co., 198 U. S. 483, 1006 (1903). 49 L. ed. 1135, 25 Sup. Ct. 745 There are two New York cases on (1905), overruling 121 Fed. 645 this point. One holds that a rail- [415] 489 ] PUBLIC SERVICE CORPORATIONS 489. Treatment of baggage transfer men. This question, whether access to the station may be granted exclusively to one baggage-transler line and alto- gether denied to others, is another case under the general problem. There is upon this issue, therefore, the same bitter controversy conducted along the same lines with the same arguments advanced with the result that some ju- risdictions will permit the exclusion of all but the favored line, while others allow equal access to all. On one side it may be said, as before, that there is no direct duty owed by the company to the baggage-transfer lines or any of them; and that, therefore, the railroad may make any discriminations that it pleases. For, as is pointed out in the principal cases cited below if there is no public duty in the matter, a public service company may bestow its favors as it pleases; and to many courts it seems that the railways may deal as they please with the baggage- transfer people. 1 On the other hand, in many other juris- dictions it would certainly be held that the general duty owed by the railway company to its passengers to allow them free egress from its station, involved the duty to allow them free access within the station to those who road which permits one steamboat Georgia. Kates v. Atlanta Bag. company to use a wharf upon which Co., 107 Ga. 636, 34 S. E. 372, 46 its tracks terminate is not bound to L. R. A. 431 (1899). See further permit another line to do so. Hart v. Atlanta Terminal Co., 128 Alexandria Bay Sb. Co. v. New Ga. 754, 58 S. E. 452 (1908). York C. & H. R. R. R. Co., 45 N. Y. Massachusetts. Old Colony R. Supp. 1091, 18 N. Y. App. Div. 527 R. Co. v. Tripp, 147 Mass. 35, 17 (1897). In the other it was held N. E. 89, 9 Am. St. Rep. 661, B. & that where a special franchise to W. 166 (1888). maintain a public wharf was granted New Hampshire. Hedding v. the rule was otherwise. Thousand Gallagher, 72 N. H. 377, 57 Atl. 225, Island Sb. Co. v. Visgar, 86 N. Y. 64 L. R. A. 811 (1903). App. Div. 126, 83 N. Y. Supp. 325 Virginia Norfolk & W. Ry. v. (1903). Old Dominion Bag. Co., 99 Va. Ill, 1 Such is the doctrine of the fol- 37 S. E. 784, 50 L. R. A. 722 lowing cases, for example: (1901). [4161 DEPENDENT SERVICES [ 490 might wish to put themselves at their disposal to aid them in getting their belongings away. 1 490. Rights of competing draymen. On analogous principles to those discussed in regard to baggage transfer it would seem that the railroad may not permit certain draymen to have access to its freight houses to cart goods to consignees, and refuse all access to other carters. For example, if a consignee sends to a freight house for his freight by a drayman of his own selection, it should be clear that the railroad would act contrary to its duty if it refused such a drayman access to the goods. On the other hand, it may be granted that if the carrier chooses to extend its route in effect by undertaking per- sonal delivery of freight to the consignee at his address, it may do this by its own carts and men, and need not employ in that service all who wish to engage in it. But whether if it offers delivery beyond its own route to its patrons, and to that end enters into an exclusive contract with one line of drays to perform this service, the owners of other drays may complain if they are excluded from offering their services to shippers in this behalf, is the question of the duties of a common carrier in dealing with a dependent service presented in still another form. The Federal courts, as might be expected, see nothing wrong in such an arrangement. The point is thus made in St. Louis Dray age Company v. Louisville and Nashville Railroad Company 2 where the facts involved the issue 1 Such is the doctrine of the fol- 182, 19 L. R. A. (N. S.) 756 lowing cases, for example: (1909). Indiana. Indianapolis U. Ry. Michigan. Kalamazoo Hack & Co. v. Dohn, 153 Ind. 10, 53 N. E. Bus Co. v. Sootsuma, 84 Mich. 194, 937, 74 Am. St. Rep. 274, 45 L. R. 47 N. W. 667, 22 Am. St. Rep. 693, A. 427 (1899). 10 L. R. A. 819 (1890). Kentucky. Palmer Transfer Co. Missouri. Cravens v. Rodgers, v. Anderson, 131 Ky. 217, 115 S. W. 101 Mo. 247, 14 S. W. 106 (1890). 2 65 Fed. 39 (1894). 27 [417] 491 ] PUBLIC SERVICE CORPORATIONS which has just been raised. In that case Mr. Justice Phillips said : " It was essential that, in selecting a company for the transfer of its freights between St. Louis and East St. Louis, it should secure one fully equipped for doing the business, solvent and reliable. It could not afford to take chances in so grave a matter. It might be unsafe to trust to the caprice of competing transfer companies, or to sporadic rivalries." l 491. Arrangements with stock yards. The relative positions of the railroads and the stock yards will be discussed later at greater length. It will then be seen that although the decision at first was other- wise it now seems to be held that there is no duty owed to the owner of cattle to make special delivery of them at any place along the line that he wishes. Consequently it is held that the railroad may designate certain points of delivery reasonably convenient, as it may of other freight which it has undertaken to carry. Upon this basis the courts have been willing to permit the railroad to designate one of several stock yards as its cattle station in effect, where it will deliver cattle consigned to that point and have accordingly justified it in refusing to deliver at other stock yards. This was well enough so long as the courts held strictly as they once did 2 that no charge could be made under such circumstances against the shipments for yardage if the consignee was ready to take the cattle away. But under the latest decisions the courts have permitted the stock yards company to make an additional charge, 1 A drayage company employed 2 Covington S. Y. Co. v. Keith, by one carrier to deliver goods in 139 U. S. 128, 35 L. ed. 73, 11 Sup. transit to another carrier is its own Ct. 461 (1891). See also Butchers' dependent service not an inde- & D. S. Y. Co. v. Louisville & N. R. pendent connecting carrier. Hooper R. Co., 67 Fed. 35, 14 C. C. A. 290 v. Chicago & N. W. R. R. Co., (1895);Coev. Louisville & N. R. R. 27 Wis. 81, 9 Am. Rep. 439 Co., 3 Fed. 775 (1880), is practically (1870). ^ overruled on this point. [418] DEPENDENT SERVICES [ 492 considering it to be a connecting service. 1 It would seem, therefore, that there is danger in the present situation that the railroad will not fulfill its duty. And should it persist in handing its patrons over to the particular stock yards, with which it has exclusive arrangements, the dan- ger of exploitation which has been discussed earlier in this chapter will sometime become apparent. 492. Contracts with grain elevators. As to grain elevators the rule is practically established that the railroad must deliver at their private siding to all of them that are along its route. Grain in bulk is a peculiar kind of freight, which as a commercial matter requires special delivery. And as this is a duty owed by the railroad to its patrons, it would not be legal for it to make a discrimination in favor of one grain elevator re- quiring its patrons to receive grain consigned to them through it and pay to its proprietor his fixed charge. 2 Against such a possibility more than one court has ur- gently protested. "May such railroad companies, in like manner, discriminate between grain elevators in the same place, constitute one elevator its depot for the delivery 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 refractory manufacturer, exterminate, or very materially cripple competition, and 1 Interstate Comm. Comm. v. 2 Illinois. Chicago & North- Chicago, B. & Q. R. R. Co., 186 western Ry. Co. v. People of llli- U. S. 320, 46 L. ed. 1182, 22 Sup. nois, 56 111. 365 (1870). Ct. 824 (1902). See also Central Iowa. Richmond v. Dubuque & S. Y. Co. v. Louisville & N. R. R. S. C. R. R. Co., 26 Iowa, 191 (1868). Co., 192 U. S. 568, 48 L. ed. 565, 24 Minnesota,. State v. Chicago, M. Sup. Ct, 339 (1904). See further & St. P. Ry. Co., 36 Minn. 402, 31 Louisville & N. R. R. Co. v. Central N. W. 365 (1887). S. Y. Co., 212 U. S. 132, 53 L. ed. Nebraska. Roby v. State ex rel., 441, 29 Sup. Ct. 246 (1909). 76 Neb. 450, 107 N. W. 766 (1906). [4191 493 ] PUBLIC SERVICE CORPORATIONS in large measure monopolize and control these several branches of useful commerce, and dictate such terms as avarice may suggest. We think they possess no such power to kill and make alive." 1 Topic C. Public Services in General 493. Exclusive arrangements by innkeepers. The same problems present themselves to a limited extent in connection with the hotel keeper's business, and it is submitted that they should be solved upon the principles that have been defended. Thus as there is a duty to incoming or outgoing guests, it would seem that innkeepers should give the proprietors of competing carriage services equal access to guests. An innkeeper may not of course refuse admission to the grounds to guests who come in any sort of vehicle by whomsoever owned; and by the view here defended they ought to give equal privileges to common carriers who wish to take departing guests. In a leading case in New Hampshire 2 it was decided that proprietors of stagecoaches should be given equal facilities within the inn. The court held that the defendant had clearly a right to establish a line of stagecoaches, and to go to the plaintiff's inn with travelers; and he might of course lawfully enter it for the purpose of leaving their baggage and receiving his fare. "And we are of opinion that, so long as others were per- mitted to do the same, the defendant had an equal and lawful right, notwithstanding any prohibition by the plaintiff, to enter the plaintiff's inn for the purpose of tendering his coach for the use of travelers, and soliciting them to take passage with him; and for that purpose to go into the common public rooms of the inn, where guests 1 Coe v. Louisville & N. R. R. z Markham v. Brown, 8 N. H. Co., 3 Fed. 775 (1880). 523, 31 Am. Dec. 209 (1837). See generally 816, infra. [420] DEPENDENT SERVICES [ 494, 495 were usually placed to await the departure of the stages, although he was not requested by such guests; provided there was a reasonable expectation that passengers might be there, and he came at a suitable time, in a proper manner, demeaned himself peaceably, and remained no longer than was necessary, and was doing no injury to the plaintiff." 1 494. Equal facilities for ticker service. It seems to be held that the stock exchanges are so affected with a public interest as to be under a duty to give the public access to their quotations. Having devoted these quotations to public use they may be bound to see that they are furnished to all concerned without dis- crimination. 2 And yet according to the decision 3 on this point the stock exchanges may make an exclusive contract with one telegraph service to handle its news. "Even assuming that the New York Stock Exchange is under an obligation to make public the prices at which stocks are sold on its floor, it has a right to control absolutely the channel through which such quotations shall be given out. It may, therefore, select one 'Ticker' Company, and give to it all the privileges of connecting news upon its floor and exclude all others." 495. Canal company giving monopoly of towage. The general issue was involved in a very recent case 4 ' In a recent New York case a 2 See New York Stock Exchange clause in a contract between a tele- v. Chicago Board of Trade, 127 111. phone company and an innkeeper 153, 19 N. E. 855 (1889). by which it was provided that no See the language in National other telephone company should be Telegraph N. Co. v. Western Union permitted to install stations in the Telegraph Co., 119 Fed. 294, 55 hotel was held void as against pub- C. C. A. 198 (1902). lie policy. Central New York Tel. 3 Wilson v. The Telegram Co., 18 & Tel. Co. v. Averill, 55 N. Y. N. Y. State Rep. 78, 3 N. Y. Supp. Misc. 346, 105 N. Y. Supp. 378 633 (1888), semble. (1907). Chesapeake & D. Canal Co. v. [4211 496 J PUBLIC SERVICE CORPORATIONS in which among other regulations of the Chesapeake and Delaware Canal one prohibiting barges not the property of the owner of the tug from being towed through the canal by a tugboat hired for the purpose (virtually requir- ing such barges to be turned over to a particular towing company to be taken through) was held void, the United States District Judge saying: "We concur in the opinion of the court below that this regulation is not reasonable or necessary, and therefore beyond the powers of the canal company. In justification of this regulation the canal company claims that in order to accommodate the absolute necessities of three-fourths of the commerce passing through the canal, it was necessary to have a towing company whose charges shall be low, and which will be ready at all tunes to take barges through without delay, and that it found that, in order to get such service, it was necessary to secure to such towing service a suffi- cient amount of business at the low prices charged to pay the expenses of the necessary equipment. We find nothing in the charter of the company which justifies it in prevent- ing a tug of proper dimensions from towing through the canal any barge of suitable dimensions and equipment upon the payment of the lawful toll. The canal is a pub- lic highway and the public has the right to the free use of it provided the legal tolls are paid." 1 496. Arrangements for sprinkling service. One of the most interesting cases upon the whole sub- ject is the recent case of Louisville Water Company v. Wiemer, 2 in which it was held that the elaborate regula- Gring, 159 Fed. 662, 86 C. C. A. 530 not refuse to let a vessel pass in tow (1908). on the ground that the owners of 1 In Buffalo Bayou Ship Channel the towboat owed the canal com- v. Milby & Dow, 63 Tex. 492, 51 pany for unpaid tolls. Am. Rep. 668 (1885), it was held * 130 Fed. 257, 64 C. C. A. 503 that the proprietors of a canal could (1904). [422] DEPENDENT SERVICES [ 497 tions of a water company requiring persons engaged in sprinkling of streets to obtain a license from the company, and providing that more than one license would not be granted covering the same street or part of a street, which should be granted to the applicant having the largest list 'of petitioning owners of abutting property were entirely reasonable. The course of reasoning followed is well worth study. "Certainly it cannot be said that there would be any propriety in granting licenses to any and all comers who should demand it to do the same thing. In this particular service it is obvious that this would lead to chaos, would embarrass the service to the public, and would be inconvenient and prejudicial to the company. We see nothing, therefore, that could be injurious to any lawful right of others in restricting the grant of the license to one person for a definite locality, so long as that person accomplished the duty of the company to the public in a proper way. The concession of this place to the one who could bring the largest approval of those of the other party who were most interested, seems fair. We are therefore unable to find any satisfactory ground for hold- ing the rule adopted by the appellant for determining to what person the license should be granted to be void as either beyond its powers or unreasonable." 1 It is not beyond the range of probability that this whole problem might at some time long distant be worked out along the lines of this decision, avoiding the waste of duplication of service by granting an exclusive right to the concern which will make the best terms with the public. 497. Telephone installation in public premises. A most interesting modern instance of this general problem has come up in several ways in late years by 1 Gallery v. Waterworks Co., 35 arrangements with one sprinkler La. Ann. 798 (1883), also allows a concern, water company to make exclusive [423] 498 ] PUBLIC SERVICE CORPORATIONS reason of the prevalent use of the telephone in all affairs. Where there are several telephone systems in a community, it has been desired at various times to have installed in public premises such as railroad stations and hotel lobbies the various telephone systems which serve the com- munity. In a Canadian case l it was held by a divided Commission that a railroad might make an exclusive arrangement with one telephone system, the majority judge concluding "so far as I can discover the general interests of the public are not prejudicially affected." But in a recent New York case 2 it was held that an exclusive arrangement made by a hotel keeper with one telephone system was against public policy as the judge saw it. " Telephonic communication has become a necessity in commerce and business; and, while there are disadvan- tages in two systems in one territory, a monopoly of such a common necessity, with the lessened incentive to good service and the best equipment which follows, is a greater evil." Topic D. No Public Duty Involved 498. Special concessions when no public duty involved. It is obvious that the outside limits of the public duty which the principal service owes in respect to dependent services have now been reached. So long as there was a question of the right of the public in respect to their service a public duty seems to be involved; within these limits there should not be even opportunity for exploita- 1 The Telephone Case, 3 Can. Ry. 2 Central New York Tel. & Tel. 'Gas. 205 (1904). In People v. Co. v. Averill, 55 N. Y. Misc. Western Union Telegraph Co., 166 346, 105 N. Y. Supp. 378 (1907). 111. 15, 46 N. E. 731 (1897) it was In Idaho Independent Telephone held that a telegraph company was Co. v. Oregon Short Line R. R. not obliged to let a telephone com- Co., 8 Idaho, 175, 67 Pac. 318 pany put an instrument in the office (1901), the question was left unde- although another telephone com- cided. pany was in. [424] DEPENDENT SERVICES [ 499 tion, but once outside public duty the principal company should be free to carry on its own business in its own way. 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 may 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 company, may well allow an individual to open a restaurant or a bar on their conveyance, or to do the business of boot 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." 1 It is because it owes no duty to passengers to see to the provision of flowers, magazines, cigars and souvenirs, that a railroad may grant exclusive privileges for the sale of these articles upon its trains, and that it may grant in a station exclu- sive rights to barbers and bootblacks and to advertisers and solicitors. 2 499. Special concessions for private business. Likewise in respect to private services of all sorts, the innkeeper owes no duty to his guests and may therefore enter into such exclusive arrangements as he pleases with 1 The D. R. Martin, 11 Blatch. Conn. 371, 4 Atl. 261, 55 Am. Rep. 233 (1873). The same parties were 115 (1885). involved in Barney v. Oyster Bay Illinois. Chicago, R. I. & P. R. & H. Steamboat Co., 67 N. Y. 301 R. Co. v. Moran, 117 111. App. 42 (1876), with the same result. (1904). 2 As it owes no public duty in the Louisiana. Higgins v. New Or- premises the common carrier in its leans, M. & C. R. R. Co., 28 La. special contracts with train boys Ann. 133 (1876). may stipulate against liability for Missouri. Padgitt v. Citizens' personal injuries. See: Ry. Co., 159 Mo. 143, 60 S. W. 121, Connecticut. Griswold, Adm., v. 52 L. R. A. 854, 81 Am. St. Rep. 347 New York & N. E. R. R. Co., 53 (1900). [4251 500 ] PUBLIC SERVICE CORPORATIONS those who wish to carry on such businesses with guests. In a leading case in North Carolina x it was held that a proprietor of a hotel could exclude from his premises a drummer for a livery stable, as he had entered into an exclusive arrangement with one livery stable which had an office there. "An innkeeper has unquestionable right to establish a news stand or barber's shop in his hotel, and to exclude persons who come for the purpose of vend- ing newspapers, or books, or 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 a 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." It should be noted in this connection that all of the incidental services that have been mentioned under this topic are private in character. This is a significant fact, for it shows that none of them are so necessary to the patrons of the principal service as to be affected with a public interest. 2 500. Whether service provided is necessary. The point has been raised a few tunes whether there is a duty in respect to the provision of food for passengers. If there is a public duty it is to the traveling passenger; and it can hardly be denied that those who carry pas- 1 State v. Steele, 106 N. C. 766, 2 The cases are plain that agents 11 S. E. 478, 8 L. R. A. 516, 19 Am. in general may be prevented from St. Rep. 573 (1890). See also as to soliciting on the premises: the granting of similar concessions United States. Jenkes v. Cole- in common carriage the language man, 2 Sumner, 221, Fed. Gas. No. used in Memphis News Publishing 7258 (1835). Co. v. Southern Ry. Co., 110 Tenn. Louisiana. Ford v. East Louisi- 684, 75 S. W. 941, 63 L. R. A. 150 ana R. Co., 110 La. 414, 34 So. 585 (1903). (1903). [426] DEPENDENT SERVICES [ 501 sengers over long distances owe them the duty to make provision for food for them. The rule is thus stated in Peniston v. Chicago, St. Louis Railroad Company, 1 by Mr. Justice Poche: "In conveying passengers through long journeys, such as from Chicago to New Orleans, at great speed and with rapidity, a common carrier is required by humanity, as well as by law, to provide its passengers with easy modes and to allow them reasonable time for the purpose of sustaining life by means of food and necessary refreshments." But it seems to be the law that the railroad company fulfills its obligation in this respect by making an exclusive contract with one concern. 2 However there is clearly no duty to provide passengers with refreshments between meals. 3 " The business of selling lunches to passengers or of soliciting from them orders for the same is not one which every citizen has the right to engage in upon the tracks and premises of a railway company, and, consequently, those who do engage in it and carry it on must depend upon the company for the privilege." 4 501. Additional favors beyond obligation. Even when there is a duty in the premises to give proper accommodation to competing services, the obligation does not go beyond reasonable facilities. Thus although there is conflict of authority as to whether a railroad company is bound to give competing baggage transfer companies necessary privileges, there seems to be no doubt of its 1 34 La. Ann. 777, 44 Am. Rep. * The quotation is from Fluker v. 444 (1882). Georgia R. R. & Banking Co., 81 2 Kelly v. C., M. & St. P. Ry. Ga. 461, 8 S, E. 529, 2 L. R. A. 843, Co., 93 Iowa, 436, 61 N. W. 957 12 Am. St. Rep. 328 (1888). (1895), and Perth General Station 4 Smallman v. Whilter, 87 111. 545, Committee v. Ross A. C. 479 29 Am. Rep. 76 (1877), accord. (1897), both permit exclusive con- tracts with eating houses. [4271 501 ] PUBLIC SERVICE CORPORATIONS right to permit certain transfer men to enter upon the trains before reaching the station, while refusing this favor to others; or to permit one man to check baggage from the house of the traveler, while refusing this per- mission to others. 1 Likewise certain parties may be given office room upon public premises, this favor being refused others. Thus in Audenried v. Philadelphia & Reading Railroad Company, 2 the question was as to the right of the defendant company to so parcel or divide its wharf among other coal dealers as to exclude the complainant therefrom. After expressing great doubt as to whether the defendant, under its charter, was bound to provide wharf accommodations to any of the coal dealers in ques- tion, or was a trustee to any extent for them, the court adds: "Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the rights of all others. This was not transportation, but wharfage, the nature of which requires exclusive posses- sion temporarily." 1 Georgia. Kates v. Atlanta Bag- he has obtained his ticket or other gage, etc., Co., 107 Ga. 636, 34 S. E. evidence of the right of transporta- 372, 46 L. R. A. 431 (1899). tion, and then, upon exhibition of Texas. Lewis v. Weatherford, the same, to act as his agent to M., W. & N. W. Ry. Co., 36 Tex. check the parcel as baggage to be Civ. App. 48, 81 S. W. Ill (1904). forwarded to the point designed by 2 Audenried v. Phila. & Reading the ticket. Atlanta Terminal Co. R. R. Co., 68 Pa. St. 370, 8 Am. v. American Trans. Co., 125 Ga. :iep. 195 (1871). 678, 54 S. E. 711 (1906). See also State of Louisiana v. A lease by a railroad company of Southern Pacific Ry. Co., 52 La. its land between its tracks and a Ann. 1822, 28 So. 372 (1900). river held and treated by it as part A baggage transfer company has of its depot grounds is not for a a right to conduct in the baggage legitimate purpose but constitutes a room as an independent private en- discrimination between shippers, its terprise a special office where it re- effect being to give one company ceives and keeps on storage parcels engaged in floating ties down the of prospective passengers until they river for shipment by the railroad are called for by the passenger after an advantage over others in the [428] DEPENDENT SERVICES [ 502, 503 502. Exclusive contracts in private capacity. This is particularly plain where the business to which the exclusive contract relates is plainly private. Thus v/hefe a corporation manufacturing gas for use by in- habitants of a certain city necessarily accumulated coke i:i large quantities, and, not being engaged in the selling of fuel, contracted with a coal company to deliver to it all its accumulations of coke, and not to dispose of the same to any other person or company, it was held 1 that the agreement to sell its entire output to the coal company was not unlawful, on the ground that unless there is a public duty in the premises the company may do as it pleases. So an electric company may maintain a wiring department which may make such arrangements as it pleases with those who chose to patronize it. But it must not discriminate between those of its customers who patronize its wiring department and those who do not. 2 503. Private activities often held ultra vires. This is of course subject to the fundamental rule* of corporation law which forbids a corporation from engaging in an ultra vires business, and a public service company cannot usually get far into a purely private business without coming into conflict with this law. 3 However, the incidental powers of such companies may often fairly be measured by the universal custom prevailing in the given business, but where there is no such common prac- same business, in getting them to 3 See People ex rel. v. Illinois Cen- the cars. Hobart-Lee Tie Co. v. tral R. R. Co., 233 111. 378, 84 N. E. Stone (Mo. App.), 117 S. W. 604 368, 16 L. R. A. (N. S.) 604, 122 (1909). Am. St. Rep. 181 (1908), railroad 1 State v. St. Paul Gaslight Co., has no implied power to operate 92 Minn. 467, 100 N. W. 216 (1904). grain elevators. And Attorney 2 Snell v. Clinton Electric Light General v. Great Northern R. R. Co., 196 111. 626, 63 N. E. 1082, 89 Co., 29 L. J. Eq. (N. S.) 794 (1860), Am. St. Rep. 341, 58 L. R. A. 284 railroad has no implied power to (1902). work coal mines. [ 429 ] 503] PUBLIC SERVICE CORPORATIONS tice the case is difficult. Thus it is at present undecided what power a transportation company has to make ar- rangements for granting advertising privileges, although it would generally be agreed that if it has corporate power to make such contracts there is no reason in the public service law why it should not make exclusive arrange- ments. l 1 In New York v. Interborough Rapid Tr. Co., 53 N. Y. Misc. 126, 104 N. Y. Supp. 157 (1907), and in Burns v. St. Paul City Ry. Co., 101 Minn. 363, 112 N. W. 412, 12 L. R. A. (N. S.) 757 (1907), it was thought that such arrangements were within the implied powers of the trans- portation corporation and were at all events not in conflict with any of its public duties. In National Car Advertising Co. v. Louisville & N. R. R. Co., 110 Va. 413, 66 S. E. 88, 24 L. R. A. (N. S.) 1010 (1909), and in Pittsburg & B. Traction Co. v. Seidell, 6 Pa. Dist. R. 414 (1896), it was thought that any advertis- ing arrangements by transportation companies were ultra vires, if not indeed contrary to its public duty. See also Fifth Ave. Coach Co. v. New York, 126 N. Y. App. Div. 657, 110 N. Y. Supp. 1037 (1908), re- ferring to Pears v. Manhattan Ry. Co., N. Y. Law Jour., Feb. 3, 1900, both expressing the opinion that such arrangements were ultra vires. [430] CHAPTER XV OBLIGATION AS TO CONNECTING SERVICES 510. Public duty as to connecting services. Topic A. Basis on Which Through Service Is Undertaken 511. Through service may be undertaken. 512. English presumption of through carriage. 513. American presumption of successive service. 514. What constitutes connecting service. Topic B. Mutual Obligations in Successive Service 515. Obligation of initial service to take to connection. 516. Special law applicable thereto. 517. Special duty to make delivery to connection. 518. Further duties of the initial service. 519. Obligation of second service to accept. 520. Peculiar rules relating thereto. 521. Observance of patron's directions. 522. Results of any disobedience. 523. Discrimination permissible in granting favors. 524. Discrimination forbidden where public duty involved. Topic C. Facilities for the Interchange of Business 525. Construction of physical connections not obligatory. 526. Statutory requirements go further. 527. Obligation to have transfer facilities at junction points. 528. Whether freight must be taken in original cars. 529. Such transportation now usually held obligatory. 530. Qualifications of the doctrine. 531. Provision of cars for further service. 532. Statutory requirement of through facilities. Topic D. Joint Through Routing and Rating 533. Through arrangements not obligatory. 534. Initial company may select connecting line. 535. Limitations upon joint rates. 536. Statutory provision for through routes. [431] 510, 511 ] PUBLIC SERVICE CORPORATIONS 537. Constitutionality of such statutes. 538. Application of these statutes. 539. Statutory regulation of connecting services. 540. Policy of such legislation. 610. Public duty as to connecting services. The law relating to connecting services is quite volumi- nous, but upon the matter with which the present chapter is principally concerned there is as yet very little authority. There are, for example, many cases as to the respective liabilities of connecting carriers, but very few as to the duty of an unwilling carrier to participate in connecting carriage. The problem cannot be dismissed by saying that for a carrier to make arrangements with one con- nection while refusing to do the same with another is illegal discrimination, for that this is true only to the ex- tent that public duty is involved; so that the fundamental question is, what is the extent of the duty of a railroad in dealing with connecting railroads. It may not refuse altogether to have dealings with them, to accept goods from them, for example. Obviously this will not do; it is the duty of the railroad as a common carrier to accept from any person tendering goods. On the other hand, it can hardly be said that the railroad must accord to all rail- roads every special privilege that it gives one railroad in a joint traffic agreement; for what it does for one as a favor, another cannot demand as a right. The truth of this matter must therefore lie between two extremes in some practicable compromise that will meet the neces- sities of the public while recognizing, as far as may be, the independence of the carriers. Topic A. Basis on Which Through Service is Undertaken 511. Through service may be undertaken. The rule is generally recognized that the obligation of a carrier to transport goods is limited to the route over [432] CONNECTING SERVICES [511 which it professes service. But although a carrier there- fore cannot be called upon to undertake the transporta- tion of goods beyond its own route, it may voluntarily assume through transportation, relying upon its connec- tions as agencies to fulfil its undertaking. 1 For while a railroad cannot be compelled to accept and to agree to carry goods to points beyond its own line, yet it may do so. And if the carrier expressly or impliedly contracts to carry from the consignor to the consignee it will be liable as a common carrier for the whole distance. Another example is the acceptance of a telegram by the initial company upon the basis that it will be responsible for its delivery at its destination, although that is a point upon the lines of another company. 2 These are but two instances (although by far the most prominent) of the possibility much described later, that although a public service company may not be compelled to go outside its 1 United States. Missouri, K. & T. Ry. Co. v. McCann, 174 U. S. 580, 43 L. ed. 1093, 19 S. Ct. 755 (1898). California. C o 1 f a x Mountain Fruit Co. v. Southern Pac. Ry. Co., 46 Pac. 668 (1896), 118 Cal, 648, 50 Pac. 775, 40 L. R. A. 78 (1897). Georgia. Central R. R. Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838, 44 Am. St. Rep. 37 (1893). Illinois Toledo, W. & W. Ry. Co. v. Lockhart, 71 111. 627 (1874). Indiana. Chicago, St. L. & P. R. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451, 50 Am. St. Rep. 320. Kentucky. F a r 1 e y v. Laary, 107 Ky. 523, 54 S. W. 840, 47 L. R. A. 383 (1900). Maine. Perkins v. Portland, S. & P. R. R. Co., 47 Me. 573, 74 Am. Dec. 507 (1859). 28 Massachusetts. Hill Mfg. Co. v. Boston & Lowell R. R. Co., 104 Mass. 122, 6 Am. Rep. 202 (1870). Michigan. Johnson v. Toledo, S. & M. Ry. Co., 133 Mich. 596, 95 N. W. 724 (1903). Minnesota. Stewart v. Erie & W. Transp. Co., 17 Minn. 372 (1871). Pennsylvania. Baltimore & P. Steamboat Co. v. Brown, 54 Pa. St. 77 (1867). Wisconsin. Hansen v. Flint & P. M. R. Co., 73 Wis. 346, 41 N. W. 529, 9 Am. St. Rep. 791 (1889). 2 Texas. Jones v. Roach, 21 Tex. Civ. App. 301, 51 S. W. 549 (1899). Canada. Stevenson v. Montreal Telegraph Co., 16 Upp. Can. Q. B. 530 (1858). [433] 512 ] PUBLIC SERVICE CORPORATIONS profession it may voluntarily undertake such service upon a public basis. 612. English presumption of through carriage. In England and in some of the United States, the pre- sumption is that when goods are taken marked for a point beyond the route of the initial carrier, through service is assumed. 1 In the leading English case, Muschamp v. Lancaster and Preston Junction Railway Company 2 it was held that such acceptance of goods so marked in it- self made out a prima facie case from which the jury were justified in finding the accepting carrier liable as such even for a loss occurring beyond its own line. Lord Abin- ger thus began his discussion of the case: "The simple question in this case is, whether the learned judge mis- directed the jury in telling them that if the case were stripped of all other circumstances beyond the mere fact of knowledge by the party that the defendants were car- riers only from Lancaster to Preston, and if, under such circumstances, they accepted a parcel to be carried on to a more distant place, they are liable for the loss of it, this being evidence whence the jury might infer that they undertook to carry it in safety to that place. I think that 1 Alabama. See Lotspeich v. Ohio. Baltimore & Ohio R. R. Central R. Co., 73 Ala. 306 (1882). Co. v. Campbell, 36 Ohio St. 647, Arkansas. Kansas City, F. S. & 38 Am. Rep. 617 (1881). M. R. R. Co. v. Washington, 74 Tennessee. See Merchants' Dis- Ark. 9, 85 S. W. 406 (1905). patch Trans. Co. v. Bloch, 86 Tenn. Georgia. Mosher v. Southern 392, 6 S. W. 881, 6 Am. St. Rep. 847 Exp. Co., 38 Ga. 37 (1868). (1887). Illinois. Wabash R. R. Co. v. Washington. Allen & G. R. Co. Thomas, 222 111. 337, 78 N. E. 777, v. Can. Pac. Ry. Co., 42 Wash. 64, 7 L. R. A. (N. S.) 1041 (1906). 84 Pac. 620 (1906). Iowa. Beard v. St. Louis, A. & Wisconsin. See Tolman v. Ab- T. H. Ry. Co., 79 Iowa. 527 (1890). bot, 78 Wis. 192, 47 N. W. 264 New Hampshire. Nashua Lock (1890). Co. v. Worcester & N. R. R. Co., 48 *8 M. & W. 421, 5 Jur. 656 N. H. 339, 2 Am. Rep. 242 (1869). (1841). [434] CONNECTING SERVICES [513 in this proposition there was no misdirection." Later on in his opinion Lord Abinger defends this rule on policy saying that otherwise the shipper will not know to whom to look. 513. American presumption of successive service. By the weight of American authority, however, the natural presumption prevails that each carrier is liable only for carriage over his own route unless he has com- mitted himself clearly to through transportation. 1 The 1 United States. Insurance Co. v. Railroad Co., 104 U. S. 146, 26 L. ed. 679 (1881). California. Cavallaro v. Texas & Pac. Ry. Co., 110 Cal. 348, 42 Pac. 918, 52 Am. St. Rep. 94 (1895). Connecticut. Naugatuck R. R. Co. v. Waterbury Button Co., 24 Conn. 468 (1856). Delaware. Truax v. Philadelphia P. W. & B. R. R. Co., 3 Houst. 233 (1865). Florida. Savannah, F. & W. Ry. Co. v. Harris, 26 Fla. 148, 7 So. 544, 23 Am. St. Rep. 551 (1890). Indiana. Pittsburg, C. & St. L. R. R. Co. v. Morton, 61 Ind. 539, 28 Am. Rep. 682 (1878). Kentucky. Thomas v. Frank- fort & C. Ry. Co., 25 Ky. L. Rep. 1051, 76 S. W. 1093 (1903). Kansas. Berg v. A., T. & S. F. R. R. Co., 30 Kan. 561, 2 Pac. 639 (1883). Maine. Perkins v. Portland S. & P. R. R. Co., 47 Me. 573, 74 Am. Dec. 507 (1859). Louisiana. Vincent v. Yazoo & M. V. R. Co., 114 La. 1021, 38 So. 816 (1905). Maryland. Hoffman v. Cumber- land R. R. Co., 85 Md. 391 (1897). Michigan. Marquette, H. & 0. R. R. Co. v. Kirkwood, 45 Mich. 51, 40 Am. Rep. 453 (1880). Minnesota. Ortt v. Minneapolis & St. L. Ry. Co., 36 Minn. 396, 31 N. W. 519 (1887). Mississippi. Illinois Cent. R. R. Co. v. Kerr, 68 Miss. 14, 8 So. 330 (1890). Missouri. Crouch v. Louisville & Nashville R. R. Co., 42 Mo. App. 248 (1890). Nebraska. Chicago, B. & Q. R. Co. v. Gustin, 35 Neb. 86, 52 N. W. 844 (1892). North Carolina. Knott v. Ra- leigh & G. R. R. Co., 98 N. C. 73, 3 S. E. 735, 2 Am. St. Rep. 321 (1887). New York. Condit v. Grand Trunk R. R. Co., 54 N. Y. 500 (1873). Pennsylvania. Pennsylvania R. R. Co. v. Berry, 68 Pa. St. 272 (1871). Oregon. Toffe v. Oregon R. R. Co., 41 Oreg. 64, 67 Pac. 1015, 68 Pac. 732, 58 L. R. A. 187 (1902). Rhode Island. Knight v. Provi- dence & W. R. R. Co., 13 R. I. 572, 43 Am. Rep. 46 (1882). South Carolina. Dunbar v. Port [435] 514 ] PUBLIC SERVICE CORPORATIONS mere fact that the original carrier has accepted goods marked for a point off his own route is not sufficient to overcome this presumption. In one of the leading Amer- ican cases, Nutting v. Connecticut River Railroad Co., 1 Mr. Justice Metcalf said: "What, then, is the obligation imposed on them by law, in the absence of any special contract by them, when they receive goods at their depot in Northampton, which are marked with the names of the consignees in the city of New York? In our judgment that obligation is nothing more than to transport the goods safely to the end of their road, and there deliver them to the proper carriers, to be forwarded towards their ultimate destination. This the defendants did, in the present case, and in so doing performed their full legal duty. If they can be held liable for a loss that happens on any railroad besides their own, we know not what is the limit of their liability." It will be noticed that to this court the policy seems to be for the protection of the carrier from unreasonable liability. 514. What constitutes connecting service. It would not seem that it would be a difficult question to determine whether a particular case really involves connecting service with its accompanying obligations; and yet certain decisions will show that this problem may be very difficult. Thus a transfer company employed by one carrier to transfer the goods to the next carrier, 2 or Royal & A. Ry. Co., 36 S. C. 110, Louisville & N. R. R. Co., 98 Va. 15 S. E. 357, 31 Am. St. Rep. 860 776, 37 S. E. 310 (1900). (1891). 1 Gray, 502 (1854). Texas. Gulf, C. & S. F. Ry. Co. 2 Nebraska. Missouri Pac. R. v. Baird, 75 Tex. 256, 12 S. W. 530, Co. v. Young, 25 Neb. 651, 41 N. (1889). W. 646 (1889). Vermont. Hadd v. United States Wisconsin. Hooper v. Chicago Express Co., 52 Vt. 335, 36 Am. & N. W. R. R. Co., 27 Wis. 81, 9 Rep. 757 (1880). Am. Rep. 439 (1870) . Virginia. Virginia C. & I. Co. v. [436] CONNECTING SERVICES [ 515 a cartage company employed by the last carrier to deliver the goods to the consignee, 1 or a stock yard to which a railroad delivers cattle, 2 or a telephone used to deliver a telegram, 3 or a hackman employed by a passenger at a railroad station, 4 or a teamster employed by the con- signee to remove goods from the carrier's station, 5 are none of them connecting services. These are not all of the same class although they come to the same result. In the transfer, cartage, stock yards, and telegraph cases, there is no connecting service because the patron is deal- ing with but one service which uses the others as a sub- ordinate instrumentality to perform its service. In the hackman and teamster cases the patron employs the ad- ditional service upon a separate basis altogether. But as to both sets of cases the law is that the particular serv- ice is free to make arrangements without regard to the peculiar law governing connecting service. Topic B. Mutual Obligations in Successive Service 515. Obligation of initial service to take to connection. In successive service each party involved is not really 1 United States. St. Louis Dray- But see Western Union Tel. Co. age Co. v. Louisville & N. R. R., 65 v. Turner, 94 Tex. 304, 60 S. W. 432 Fed. 39 (1894). (1901). England. Roach v. Canadian 4 New York. Brown v. New Pacific Ry. Co., 1 Manitoba, 158 York C. & H. R. R. R. Co., 151 (1884). N. Y. 674, 46 N. E. 1145 (1897). 2 Central Stock Yards Co. v. But see: Louisville & N. Ry. Co., 192 U. S. Michigan. Kalamazoo Hack & 568, 24 Sup. Ct. 339, 48 L. ed. 565 B. Co. v. Sootsma, 84 Mich. 194, 47 (1904). N. E. 667, 10 L. R. A. 819, 22 Am. See also St. Louis S. W. Ry. Co. St. Rep. 693 (1890). v. Jackson & Co. (Tex. Civ. App.), 6 Illinois. Parmelee v. Lowitz, 48 S. W. 853 (1909). 74 111. 116, 24 Am. Rep. 276 (1874). s People v. Western Union Tele- Missouri. Nanson v. Jacob, 93 graph Co., 166 111. 15, 46 N. E. 731, Mo. 331, 6 S. W. 246, 3 Am. St. Rep. 36 L. R. A. 637 (1897). 531 (1887). [437] 515 ] PUBLIC SERVICE CORPORATIONS asked to do more than his full duty within the limits of his own profession, except that the special circumstances may seem to call for unusual action to some extent. Of the duty of the initial company to undertake service to the point of connection with the succeeding company there can be no doubt. 1 If it be a case of carriage, the initial carrier is certainly asked no more than to act within his profession if he is requested to take certain goods tendered at one point on his line to another point where that line connects with the second carrier. 2 .This ele- mentary point has been most litigated in recent times in regard to telegraph companies, the initial company sometimes disliking to accept a message to a connecting point, there to be delivered to another company, very often a competitor. But the established duty in regard to connecting carriage was too close an analogy for the telegraph company to escape it. As was said in a Texas case: 3 "The law relating to the receiving and forwarding of telegraphic messages to connecting lines is so nearly analogous to that in regard to common carriers that the established rules of law that determine the liability of the common carrier apply with equal force to telegraph com- panies. Each can restrict its liability to its own line, but each must receive and forward with diligence to the connecting line, and each will be held liable for its failure or refusal to perform that duty." 1 A contract by a carrier not to R. R. Co. v. Waters, 50 Neb. 592, receive goods destined beyond its 70 N. W. 225 (1897). own line is void. Seasongood v. Texas. San Antonio & A. P. Tennessee & O. R. Transp. Co., 21 Ry. Co. v. Stribling, 99 Tex. 319, Ky. Law Rep. 1142, 54 S. W. 193 89 S. W. 963 (1905). (1899). Wisconsin. Hooper v. Chicago 2 New York Babcock v. Lake & N. Ry. Co., 27 Wis. 81, 9 Am. S. & M. S. Ry. Co., 49 N. Y. 491 Rep. 439 (1870). (1872). See Western Union Telegraph Nebraska. Fremont, E. & M. V. Co. v. Simmons (Tex. Civ. App.), 93 S. W. 686 (1906), quoted. [438] CONNECTING SERVICES f 516, 517 516. Special law applicable thereto. There are some peculiarities in the situation because of the differences in the conditions. In case of carriage there are usually marks on the package designating its course; moreover its bills accompany it. In case of the telegraphing, however, it is a reasonable requirement by the first company that words designating the connection desired shall be sent with the message; 1 and, similarly, the second company may require that words designating its origin shall be paid for. 2 This duty resting upon the initial party to act is positive. It is no excuse that the initial carrier believes that the succeeding carrier will re- fuse to accept the goods. 3 And similarly a telephone company cannot justify its failure to handle a message promptly on the ground that it was sure that the con- necting company would delay it so long that it was use- less to try to put it through. 4 517. Special duty to make delivery to connection. In several kinds of connecting service the duty of each successive party to deliver over to the next in turn is the normal one. Thus a telegraph company undertakes de- livery in the place of address, which in this case should be at the office of the telegraph company designated as the connection. So, in certain kinds of carriage, as ex- press service, the carrier is bound to deliver to the ad- dressee. But the railroads and steamboats are not nor- mally bound to do more than deposit the goods carried on their own wharves or at their own terminals. As will be seen later, there is thereupon a conflict of authority 1 United States v. Northern Pac. lina & N. W. Ry. Co., 150 N. C. Ry. Co., 120 Fed. Rep. 546 (1903). 608, 64 S. E. 588 (1909). 2 Atlantic & Pacific Telegraph 4 Telephone Co. v. Brown, 104 Co. v. Western Union Telegraph Tenn. 56, 55 S. W. 155, 50 L. R. A. Co., 4 Daly, 527 (1873). 277, 78 Am. St. Rep. 906 (1900). 3 Wampum Cotton Mills v. Caro- [439] 518 ] PUBLIC SERVICE CORPORATIONS as to how soon they cease to be liable as common carriers; but at all events it must be very soon thereafter, without any attempt on their part to make physical delivery. But in the case of connecting carriage there is no conflict of authority, the whole matter being settled by imper- ative considerations of convenience. It is universally established that when successive carriage is involved the law necessarily throws upon each carrier in turn the duty of tendering the goods for further transportation to the succeeding carrier; and normally, until he effectuates such delivery, the original carrier remains liable as a com- mon carrier. 1 This liability would usually continue, as the cases just cited hold, until the first carrier has depos- ited the goods where the second carrier actually receives them, and given notice, as would generally be requisite, to the succeeding carrier that the goods are there await- ing his transportation. 2 618. Further duties of the initial service. initial carrier must give its successor the necessary 1 Connecticut. Palmer v. Chicago, R. Co. v. Reiss, 183 U. S. 621, 46 B. & Q. R. R. Co., 56 Conn. 137, 13 L. ed. 358, 22 Sup. Ct. 253 (1903). Atl. 818 (1888). Alabama. Selma & M. R. R. Georgia. Wallace v. Rosenthal, Co. v. Butts & Foster, 43 Ala. 385, 40 Ga. 419 (1869). 94 Am. Dec. 694 (1869). Michigan. Moore v. Michigan California. Colfax Mountain Central R. R. Co., 3 Mich. 23 Fruit Co. v. Southern Pac. Ry. Co., (1853). 118 Cal. 648, 46 Pac. 668 (1896), 50 Pennsylvania. Vannatla v. Cen- Pac. 775, 40 L. R. A. 78 (1897). tral R. R. Co., 154 Pa. St. 262, Kentucky. Louisville, St. L. & 26 Atl. 384, 35 Am. St. Rep. 823 Texas Ry. Co. v. Bourne & Embry, (1893). 16 Ky. L. Rep. 825, 29 S. W. 975 Tennessee. Insurance Co. v. (1895). Railroad Co., 8 Baxt. 268 (1874). Michigan. Rickerson Roller Mill West Virginia. Lewis v. Chesa- Co. v. Grand Rapids & I. R. R. Co., peake & Ohio Ry. Co., 47 W. Va. 67 Mich. 110, 34 N. W. 269 (1887). 656, 35 S. E. 908, 81 Am. St. Rep. New York. Sprague v. New 816 (1900). York Cent. R. R. Co., 52 N. Y. 637 2 United States. Texas & P. R. (1873). [440] CONNECTING SERVICES [519 instructions for forwarding the goods. 1 If, however, the second carrier finally refuses the goods, the first carrier has performed its duty as such. But there rests upon it still as in many other cases of unexpected interruption, the duty to store the goods 2 refused, and notify the con- signor of the situation. 3 If, thereupon, the shipper wants his goods stopped at the end of the original transit he can have this done. As in successive service neither side is committed beyond the immediate service which is being rendered, he can revoke his orders to ship further. 4 519. Obligation of second service to accept. Of the duty in each succeeding service to receive what is properly tendered to it by its predecessor in service there can also be no doubt. This really relates back to the primary duty of the original person requesting the service. 5 When, therefore, a succeeding carrier designated 1 Illinois. Michigan S. & N. I. R. R. Co. v. Day, 20 111. 375, 71 Am. Dec. 278 (1858). Michigan. Hutchings v. Ladd, 16 Mich. 493 (1868). Ohio. Little Miami R. R. Co. v. Washburn, 22 Ohio St. 324 (1872). Tennessee. R a i 1 r o a d Co. v. Southern Seating & Cabinet Co., 104 Tenn. 568, 58 S. W. 303, 50 L. R. A. 729 (1900). 2 United States. Buston v. Penn- sylvania Ry. Co., 119 Fed. 808, 56 C. C. A. 320 (1903). Louisiana. Dalzell v. Steamboat Saxon, 10 La. Ann. 280 (1855). Maryland. Baltimore & Ohio R. R. Co. v. Schumacher, 29 Md. 168, 96 Am. Dec. 510 (1868). Minnesota. Wehmann v. Minne- apolis, St. P. & S. Ste. M. Ry. Co., 58 Minn. 22, 59 N. W. 546 (1894). Missouri. Cramer v. American M. U. Express Co. & Merchants' Dispatch Co., 56 Mo. 524 (1874). Tennessee. Bird v. Railroad Co., 99 Tenn. 719, 42 S. W. 451, 63 Am. St. Rep. 856 (1897). 3 United States. In re Peterson, 21 Fed. 885 (1884). Alabama. Louisville & N. R. R. Co. v. Duncan & Orr, 137 Ala. 446, 34 So. 988 (1902). Maine. Fisher v. Boston & Maine R. R. Co., 99 Me. 338, 59 Atl. 532, 68 L. R. A. 390, 105 Am. St. Rep. 283 (1904). Indiana. Grand Rapids & I. R. R. Co. v. Diether, 10 Ind. App. 206, 53 Am. St. Rep. 385 (1894). 4 Wente v. Chicago, B. & Q. Ry. Co., 79 Neb. 175, 115 N. W. 859 (1907). 6 Illinois. Pittsburg, C., C. & St. L. Ry. Co. v. Chicago, 242 111. 178, 89 N. E. 1022 (1909). [441] 520 ] PUBLIC SERVICE CORPORATIONS by the consignor refuses to accept goods tendered by a preceeding, the default is really made to the consignor, the preceding carrier being his agent in asking this fur- ther transportation. 1 It is established law, made neces- sary from the character of the business, that it is the duty of common carriers to accept freight tendered by another common carrier, and that a consignor of goods to be car- ried over successive routes makes the first and each suc- cessive carrier his forwarding agent. This is from the necessities of the case. The consignors cannot practi- cally travel with the goods which are shipped, and there must be some one who is responsible for transactions in regard to their shipment over the different routes. 520. Peculiar rules relating thereto. Each carrier who takes charge of the goods becomes an agent of the consignor to tender the goods. 2 And a tele- graph company chosen as the connection is in default when it refuses to accept a message tendered by the ini- tial company. 3 It follows that the connecting company Iowa. McMillan v. Chicago, R. Am. St. Rep. 860 (1891). But the I. & P. Ry. Co., 124 N. W. 1069 refusing carrier is liable directly to (1910). the shipper for such refusal . Crosby Maine. Dunham v. Boston & v. Pere Marquette R. R. Co., 131 Maine R. R. Co., 70 Me. 164, 35 Mich. 288, 91 N. W. 124 (1902). Am. Rep. 314 (1879). 2 See particularly the case of An- Texas. Gulf & Interstate Ry. drus v. Columbia & O. Steamboat Co. v. Texas & N. O. Ry. Co., 93 Co., 47 Wash. 333, 92 Pac. 128, 130 Tex. 482, 56 S. W. 328 (1900); (1907). Sterling v. St. Louis, I. M. & S. Ry. 3 California. Thurn v. Alta Tele- Co. (Tex. Civ. App.), 86 S. W. 655 graph Co., 15 Cal. 472 (1860). (1905). Georgia. Conyers v. Postal Tele- 1 The initial carrier is not in cases graph Cable Co., 92 Ga. 619, 19 S. of successive carriage liable to the E. 253, 44 Am. St. Rep. 100 (1893). shipper for the refusal of the sue- Michigan. Western Union Tele- ceeding carrier to accept the. goods. graph Co. v. Carew, 15 Mich. 525 Dunbar v. Port Royal & A. Ry. (1867). Co., 36 S. C. 110, 15 S. E. 357, 31 Tennessee. Telegraph Co. v. [4421 CONNECTING SERVICES [ 521 can make no unreasonable requirement which would seriously interfere with the course of through service. A connecting railroad cannot require as to freight tendered by a connection that the shippers must themselves ap- pear at the point of connection, and rebill their goods. 1 Nor can a telegraph company make the vexatious re- quirement that it will not recognize the tendering company as the agent of the sender unless he files a written power of attorney. 2 521. Observance of patron's directions. The patron may himself decide by what successive parties he wishes the service performed and from these directions the parties would usually deviate at their peril. 3 Consequently a rule of a telegraph company that mes- sages will be taken only by the most direct connections notwithstanding the sender's instructions is inconsistent with its duty. 4 And a refusal by a railroad company to take to the connection designated is illegal. 5 But even if such explicit directions are given the forwarding party should notify the patron if he knows that the use of the connection designated will probably cause unusual delay; 6 Munford, 87 Tenn. 190, 10 S. W. New York Hinckley v. New 318, 2 L. R. A. 601, 10 Am. St. Rep. York Central & H. R. R. R. Co., 56 630 (1889). N. Y. 429 (1874). Texas. Western Union Tele- Wisconsin. Congar v. Galena & graph Co. v. Simmons (Tex. Civ. Chicago U. R. R. Co., 17 Wis. 477 App.), 93 S. W. 686 (1906). (1863). 1 Dunham v. Boston & Maine R. 4 Western Union Telegraph Co. v. R. Co., 70 Me. 164, 35 Am. Rep. Turner, 94 Tex. 304, 60 S. W. 432 314 (1879). (1901). 2 Atlantic & Pac. Tel. Co. v. . 6 San Antonio & A. P. Ry. Co. v. Western Union Telegraph Co., 4 Stribling, 99 Tex. 319, 89 S. W. 963 Daly (N. Y.), 527 (1873). (1905); Feeds River R. R. Co. v. s Georgia. Georgia R. R. Co. v. Harrington (Tex. Civ. App.), 99 Cole & Co., 68 Ga. 623 (1882). S. W. 1050 (1908); Thompson v. Minnesota. Brown & Haywood Missouri, K. & T. Ry. Co. (Tex.), Co. v. Pennsylvania Co., 63 Minn. 126 S. W. 257 (1910). 546, 65 N. W. 961 (1896). , 6 Inman & Co. v. St. L. S. W. Ry. [443] 522] PUBLIC SERVICE CORPORATIONS and if it later turns out that the route designated is im- practicable another may be chosen. 1 It is needless per- haps to add that if the patron leaves forwarding to the discretion of the initial party, he is bound to the disposi- tion which his agent makes, but even then the agent him- self will be liable for proper discretion in choosing the connection. 2 622. Results of any disobedience. It should be noted also that failure of the previous party to the transit to transmit his instructions to his successor is a breach of duty to the patron and for the consequential deviation that party is liable. 3 And if the succeeding party knew of the violation of the in- structions he is also subject to all the disabilities of one concerned in a deviation. 4 On the question of the posi- tion of a second party when a first party acts contrary Co., 14 Tex. Civ. App. 39, 37 S. W. 37 (1896). 1 Regan v. Grand Trunk Ry. Co., 61 N. H. 579 (1881); Andrus v. Columbia & O. Stb. Co., 47 Wash. 333, 92 Pac. 128 (1907). 2 Indiana. Snow v. Indiana, B. & W. Ry. Co., 109 Ind. 422 (1886). Tennessee. Post v. Railroad Co., 103 Tenn. 184, 52 S. W. 301, 55 L. R. A. 481 (1899). 3 United States. Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 210 U. S. 1, 52 L. ed. 931, 28 Sup. Ct. 607 (1908); Harding v. International Navigation Co., 12 Fed. 168 (1882). Michigan. Hutchings v. Ladd, 16 Mich. 493 (1868). New York. Dana v. New York Central & H. R. R. R. Co., 50 How. Pr. 428 (1875). Ohio. Little Miami R. R. Co. [444] v. Washburn, 22 Ohio St. 324 (1872). Pennsylvania. Forsythe v. Walker, 9 Pa. St. 148 (1848). Texas. Booth v. Missouri, K. & T. Ry. Co. (Tex. Civ. App.) 37 S. W. 168 (1896). 4 United States. Patten v. Union Pac. Ry. Co., 29 Fed. 590 (1886). Colorado Denver & R. G. Ry. Co. v. Hill, 13 Colo. 35, 21 Pac. 914 (1889). Georgia. Georgia R. R. Co. v. Cole & Co., 68 Ga. 623 (1882). Massachusetts. Briggs v. Boston & Lowell R. R. Co., 6 Allen, 246, 83 Am. Dec. 626 (1863). New York. Johnson v. New York Central R. R. Co., 33 N. Y. 610, 88 Am. Dec. 416 (1865). Pennsylvania. Philadelphia, etc. R. R. Co. v. Beck, 125 Pa. St. 620, 11 Am. St. Rep. 924 (1889). CONNECTING SERVICES [ 523 to instructions without disclosing that he is doing so, a few cases x have thought that the shipper may repudiate the subsequent transaction. But by the present weight of authority it is held that in forwarding goods to their destination by another connection than the one designated the first carrier is held out to the second carrier as having apparent authority; 2 so that the second carrier even has a lien upon the goods not only for his own charges, but for those which he had advanced against them relying upon the authority of the first carrier. 523. Discrimination permissible in granting favors. As all obligations of the succeeding party to undertake service may thus be related back to the rights of the orig- inal patron whom the preceding party represents, the succeeding party may refuse to do anything not within its duty to patrons generally for customers using partic- ular agencies. And thus it may always refuse to render its service unless its charges are tendered it or secured to it, although it does not generally insist upon prepayment; 3 and, of course, it may refuse in taking over from one con- nection to advance the previous charges, although it does this in its dealings with other connections. 4 There have 1 See Fitch v. Newberry, 1 Doug. dence & W. R. R. Co., 13 R. I. 572 (Mich.) 1, 40 Am. Dec. 33 (1843). (1882). See also Jones v. Boston & A. R. 3 Little Rock & M. Ry. Co. v. R. Co., 63 Me. 188. St. Louis, I. M. & S. Ry. Co., 59 2 Colorado. Price v. Denver & R. Fed. 400 (1894); Little Rock & M. G. Ry. Co., 12 Colo. 402, 21 Pac. Ry. Co. v. St. Louis S. W. Ry. Co., 188 (1888). 63 Fed. 775, 27 U. S. App. 380, 26 Georgia. Bird v. Georgia R. R. L. R. A. 192, 11 C. C. A. 417, affirm- Co., 72 Ga. 655 (1884). ing 59 Fed. 400 (1894). Massachusetts. Crossan v. New 4 Southern Indiana Exp. Co. v. York & N. E. R. R. Co., 149 Mass. United States Exp. Co., 92 Fed. 196, 21 N. E. 367, 3 L. R. A. 766 1022, 35 C. C. A. 172 (1899); Gulf, (1889). C. & S. F. Ry. Co. v. Miami S. S. Ohio. Bowman v. Hilton, 11 Co., 86 Fed. 407, 52 U. S. App. 732, Ohio, 303 (1842). 30 C. C. A. 142 (1898). Rhode Island. Knight v. Provi- See also Baltimore & O. Ry. Co. [445] 524 ] PUBLIC SERVICE CORPORATIONS been some cases dealing with the obligations of connect- ing express companies in recent years in which both as- pects of the problem were discussed. To quote from one 1 of them: "The same rule applies whether the articles of trade and commerce are received from the original con- signor or from a connecting carrier. An express company, in the absence of contract, is under no obligation to re- ceive and transport for the original consignor, or to con- tinue the transportation for a connecting carrier, with- out the prepayment of its charges if demanded. The furnishing of equal facilities, without discrimination, does not require a common carrier to advance money to all other carriers on the same terms, nor to give credit for the carriage of articles of trade and commerce to all carriers because it extends credit for such services to others." 2 524. Discrimination forbidden where public duty in- volved. But no policies can be adopted inconsistent with public duty whereby business coming from one connection is favored. Thus, in one of the early cases in public service, Bennett v. Button, 3 still a leading case, it was held that a stage line running from Nashua to Amherst could not adopt the rule of taking passengers who came from Lowell to Nashua on French's line and refuse those who came on Tuttle's line. In that pioneer case Chief Justice Parker, after stating the general principles of public duty, thus v. Adams Express Co., 22 Fed. 32 statute in Indiana now; and the (1884); Oregon Short Line & U. N. statute has been held to be con- Ry. Co. v. Northern Pacific R. R. etitutional. American Express Co. Co., 61 Fed. 158, 15 U. S. App. 479, v. Southern Indiana Express Co., 9 C. C. A. 409 (1894). 167 Ind. 292, 78 N. E. 1021 (1906). 1 Quoted from Southern Indiana 3 10 N. H. 481 (1839). Express Co. v. United States Ex- See also the language in Cutting press Co., 88 Fed. 659, 662 (1898). v. Florida Ry. & Nav. Co., 30 Fed. 1 It is otherwise provided by 663 (1887), as to carriers of goods. [446] CONNECTING SERVICES [ 525 applied them to the case in hand: "The defendant might well have desired that passengers 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 passenger 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 by one conveyance or another. That the plaintiff proposed to travel on- ward 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." l Topic C. Facilities for the Interchange of Business 525. Construction of physical connections not obliga- tory. One thing is as certain as anything can be at common law in this doubtful subject, and that is that those who have provided certain facilities in order to give a desig- nated service, are under no obligation to go beyond the service they have professed and substantially extend their existing facilities so as to make physical connection with another service. To require this would be wholly outside the accepted theory of the proper restriction of public obligation to the profession made. In a leading 1 Where there are two rival lines coming to or from it fifty cents a of steamboats on a river plying be- hundred more for freight than in the tween the same points, and carry- case of the other, a suit for such ing freight for hire, both bearing the discrimination can be brought, same relation to a railroad company Samuels v. Louisville & N. Ry. Co., and both seeking its services to for- 31 Ted. 57 (1887). ward their freight to the same Where a tariff of a railroad corn- points of destination, and the com- pany fixes a rate on shipments origi- pany systematically discriminates nuting on its own line, or on certain against one by charging on goods enumerated connecting lines, it as- [447] ' 526 J PUBLIC SERVICE CORPORATIONS Federal case. 1 in refusing to order a railroad company to make connections with a switching company, the court said: "Neither this nor any other provision of law requires of the common carrier of interstate commerce the duty of either forming new connections or of establishing new sta- tions for the reception and delivery of freights. The act to regulate commerce deals with such common carriers as it finds them, and leaves to them full discretion as to what extensions they will make of their lines, the connec- tions they may form, and the yards and depots they may choose to establish." 2 526. Statutory requirements go further. In some jurisdictions lately more explicit statutes have been passed providing that when two services nearly approach each other short lines for making connections should be constructed. And if this requirement is properly safeguarded it must be admitted that the leg- islation is not so outrageous as to be unconstitutional. 3 This indeed hardly goes beyond the definition of the obligation to provide proper facilities for the performance of the duty of the delivering of freight to a connection. When two lines nearly approach, it is not outrageous to consider this as virtually a connection. 4 sumes the obligation to carry at 2 See particularly Wisconsin, M. that rate for shippers whose ship- & P. R. R. Co. v. Jacobson, 179 ments originate on other lines as U. S. 287, 45 L. ed. 194, 21 Sup. Ct. well; and, if such a shipper is re- 115 (1900), both to the same effect, quired to pay for such services at a 3 Alabama. Alabama G. S. R. R. higher rate than that named in the Co. v. Thomas, 89 Ala. 294, 7 So. tariff, he is entitled to recover the 762, 18 Am. St. Rep. 119 (1889). amount of the overcharge. Mis- Nebraska. Missouri Pacific Ry. souri, K. & T. Ry. Co. v. New Era Co. v. Young, 25 Neb. 651, 41 N. W. Milling Co. (Kans.), 100 Pac. '273 646 (1889). (1909). 4 Texas. International & G. N. 1 Kentucky & I. Bridge Co. v. Ry. Co. v. Railroad Commission of Louisville & N. Ry. Co., 37 Fed. Texas, 99 Tex. 332, 89 S. W. 961 567, 2 L. R. A. 289 (1889). (1905). [448] CONNECTING SERVICES [527 527. Obligation to have transfer facilities at junction points. The traditional rule at common law has been that there is no obligation to permit connection at junction points. 1 This certainly cannot be true if there is a public station at that point, for at such a station, as has just been seen, goods must be received, whether tendered by a connection or anyone else. It may be true that there is not invariably an obligation to accept business at a private station from one connection, even if business is there accepted from another, as the Federal courts have held. 1 But can it be true that there is never an obliga- tion to stop for the exchange of business at intersecting points if the railroad company decides not to establish a station, as the United States Supreme Court has held? 2 If there is a sufficient amount of business that would usually be tendered at a junction if a station should be Vermont. Rutland R. R. Co. v. Bellows Falls & S. R. St. Ry. Co., 73 Vt. 20, 50 Atl. 636 (1900). The telephone cases furnish a close analogy. At common law at all events one telephone company was not bound to make physical connections with the lines of its rival so that through speech could be had. Matter of Baldswinsville Telephone Co., 24 N. Y. Misc. 221, 53 N. Y. Supp. 574 (1898). And consequently an arrangement by one company to give to another company all its through toll line business is not contrary to public policy. Home Telephone Co. v. North Manchester Telephone Co. (Ind. App.), 92 N. E. 558 (1910). 1 Kentucky. Shelbyville R. R. Co. v. Louisville C. & L. R. R. Co., 82 Ky. 541 (1885). But see Louis- 29 ville & N. R. R. Co. v. Central S. Y. Co., 30 Ky. L. Rep. 18, 97 S. W. 778 (1906). Maryland. Pennsylvania R. R. Co. v. Baltimore, etc., Ry. Co., 60 Md. 263 (1883). 2 Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 30 C. C. A. 142, 86 Fed. 407 (1898); Ilwaco Ry. & Nav. Co. v. Oregon Short Line Ry. Co., 6 C. C. A. 495, 15 U. S. App. 173, 57 Fed. 673 (1893). 1 Atchison, T. & S. F. Ry. Co. v. Denver & N. O. Ry. Co., 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. 185 (1884); Louisville & N. R. R. Co. v. Central S. Y. Co., 212 U. S. 132, 53 L. ed. 441, 29 Sup. Ct. 246 (1909). See further, St. Louis & S. F. Ry. Co. v. Marrs, 60 Ark. 637, 31 S. W. 42 (1895). [449] 528, 529 ] PUBLIC SERVICE CORPORATIONS opened, according to the more advanced views now held there ought to be a public station established. A New Hampshire court 1 has gone so far as to say that a union station ought to be built by two roads which made connections in a city, if it be shown that public conven- ience required it. 628. Whether freight must be taken in original cars. As to whether transportation must be given to the goods offered by a first carrier to a second carrier in the cars in which they are tendered by the first carrier, re- gardless of the desires of the second carrier, there is still some conflict of authority. In Oregon Short Line and Utah Northern Railway Company v. Northern Pacific Railroad Company, 2 the utilization of foreign cars being in question, the law as it then stood, was summarized thus by Mr. Justice Field: "As the receiving company is under no obligation to take the freight in the cars in which it is tendered, and transport it in such cars, when it has cars of its own, not in use, to transport it, there can be no cus- tom that it shall pay the owner of such cars, should it receive them in such case, car mileage for their use." 529. Such transportation now usually held obligatory. On the other hand there are cases which hold that the railroad is obliged to accept the cars of another road filled with goods and carry them through to their desti- nation. In an opinion written by Mr. Justice Cooley, in the case of Michigan Central Railroad Company v. Smithson, 3 is the following statement which probably 1 Concord & M. R. R. Co. v. Lumber Co. v. Chicago, R. I. & P. Boston & Maine R. R. Co., 67 N. Ry. Co., 102 Iowa, 292, 71 N. W. H. 464, 41 Atl. 263 (1893). 406 (1897). Note the limitation in *51 Fed. 465 (1892). See also Central of Ga. Ry. Co. v. Cook & Little Rock & M. Ry. Co. v. St. L., 4 Ga. App. 698 (1908). Louis, I. M. & S. Ry. Co., 59 Fed. >45 Mich. 212, 7 N. W. 791 400 (1894). And see Green Bay (1881). [450] CONNECTING SERVICES [ 529 represents the present law: "The primary fact that must rule this controversy is that the Michigan Central Rail- toad Company is compelled to receive and transport over its road all the varieties of freight cars which are offered to it for the purpose, and which are upon wheels adapted to its gauge. It is compelled to do so, first, because the necessities of commerce demand it. It cannot and would not be tolerated that cars loaded at New York for San Francisco, or at Boston for Chicago, should have their freight transferred from one car to another whenever they passed upon another road. Tune would be lost, expense increased, injuries to freight made more numerous, and no corresponding advantage accrue to anyone. It is compelled to do so, second, by its own interest. To attempt to stop every car offered to it at its termini, that the freight might be transferred to its own vehicles, would be to drive away from its line a large portion, of its traffic, and compel it to rely upon a local business." 1 1 See, to the same effect: ville & N. Ry. Co. v. Central S. Y. United States. Rac v. Grand Co., 30 Ky. L. Rep. 18, 97 S. W. Trunk Ry. Co., 14 Fed. 401 (1882). 778 (1906). Alabama. Louisville & N. R. R. Massachusetts. Vermont & M. Co. v. Boland, 96 Ala. 626, 11 So. R. R. Co. v. Fitchburg R. R. Co., 14 667 (1892). Allen (Mass.), 462, 92 Am. Dec. 785 Arkansas. St. Louis Southwest- (1867); Mackin v. Boston & A. R. ern Ry. Co. v. State, 85 Ark. 311, R. Co., 135 Mass. 201, 46 Am. Rep. 107 S. W. 1180 (1907). 456 (1883). Illinois. Peoria & P. M. Ry. Co. Michigan. McMillan v. Chicago v. Chicago, R. I. & Pac. Ry. Co., R. I. & P. Ry. Co., 124 N. W. 1069 109 111. 135, 50 Am. Rep. 605 (1884). (1910). Iowa. Baldwin v. Railroad Co., Missouri. Thomas v. Missouri 50 la. 680 (1879); Burlington., C. Pacific Ry. Co., 109 Mo. 187, 18 S. R. & N. Ry. Co. v. Dey, 82 la. 312, W. 980 (1891). 48 N. W. 98, 12 L. R. A. 436, 31 'Nebraska Chicago, B. & Q. R. Am. St. Rep. 477 (1891). Co. v. Curtis, 51 Neb. 442, 71 N. W. Kentucky. Louisville & N. R. R. 42, 66 Am. St. Rep. 456 (1897). Co. v. Williams, 95 Ky. 199, 15 Ky. New York. Hudson Valley Ry. L. Rep. 548, 24 S. W. 1, 44 Am. St. Co. v. Boston & Maine R. R. Co., Rep. 214 (1893). See also Louis- 45 N. Y. Misc. 520, 92 N. Y. Supp. [4511 ^.j 530, 531 ] PUBLIC SERVICE CORPORATIONS 530. Qualifications of the doctrine. It may be added that there is no duty to accept cars which are not of a character to fit in with the equipment of the company to which they are tendered or in such a de- fective condition as to be dangerous. 1 Where this duty to receive the cars is established it is certainly true that the second railroad can make no charge for hauling the cars independently of the regular freight for their con- tents. 2 On the other hand it is probably true that the second carrier is not under any more obligation to pay mileage for the use of the cars than is stated in a preced- ing paragraph. But a fair system for the interchange of cars will be respected by the courts, as will be seen in a succeeding paragraph. 531. Provision of cars for further service. However no case has ever gone so far at common law as to assert that shippers could insist that the initial car- rier should provide them with sufficient cars for the trans- portation of their goods through to any part of the con- 928 (1904), affirmed 94 N. Y. Supp. Nebraska. Chicago, B. & Q. R. 545, 106 App. Div. 375 (1905). R. Co. v. Curtis, 51 Neb. 442, 71 Texas. Gulf, C. & S. F. Ry. Co. N. W. 42, 66 Am. St. Rep. 456 v. Lone Star Salt Co., 26 Tex. Civ. (1897). App. 531, 63 S. W. 1025 (1901); Ohio. Pennsylvania Ry. Co. v. Texas & Pacific Ry. Co. v. Texas Snyder, 55 Ohio St. 342, 45 N. E. Short Line R. R. Co., 35 Tex. Civ. 559, 60 Am. St. Rep. 700 (1896). App. 387, 80 S. W. 567 (1904); Texas. Texas & Pac. Ry. Co. v. Texas & Pac. Ry. Co. v. Carlton, 60 Carlton, 60 Tex. 397 (1883). Tex. 397 (1883). Wisconsin Miltimore v. C. & 1 United Stages. Baltimore & P. N. W. Ry. Co., 37 Wis. 190 Ry. Co. v. Mackey, 157 U. S. 72, 39 (1875). L. ed. 624, 15 Sup. Ct. 491 (1895). l Harrison v. Midland Ry. Co., Georgia Centra,} of Ga. Ry. Co. 62 L. J. Q. B. (N. S.) 225 (1893). v. Cook & L. 4 Ga. App. 698 (1908). But query whether a shipper can Kentucky. Louisville & N. Ry. get his own cars hauled thus for Co. v. Williams, 95 Ky. 199, 24 S. nothing. Green Bay Lumber Co. v. W. 1, 15 Ky. Law Rep. 548, 44 Am. Chicago, R. I. & P. Ry. Co., 102 la. St. Rep. 214 (1893). 292, 71 N. W. 406 (1897). [452] CONNECTING SERVICES [ 532 tinent that can be reached by connecting lines. 1 "At common law shippers cannot insist that the initial carrier shall provide them with sufficient cars for the transporta- tion of their goods, to any point beyond its own line of road; for the carrier's obligation to provide equipments was always held limited to service over its own route." 2 But a railroad may well profess to furnish cars for serv- ice beyond its route. 3 "For one railroad company to be an Ishmaelite among its associates would operate dis- astrously to its shippers. The shippers of Arkansas ex- pect the public carriers to put their cotton to the spinners in New England and their fruits to the North, and their lumber and coal to the four quarters of the Union, with- out change from consignor to consignee." 4 532. Statutory requirement of through facilities. But it is not impossible that statutes may even go to the length of requiring such through service by reason of commercial necessity. In a very late case, 5 in declar- ing unconstitutional a statute requiring a railroad to fur- nish its cars for through transportation off its own route the United States Supreme Court based its decision simply 1 Florida. State v. Louisville & Ry. Co. v. State (Tex. Civ. App.), N. R. R. Co., 51 Fla. 311, 40 So. 120 S. W. 1028 (1909). 885 (1906). 3 It is apparently the duty of a Illinois. People ex rel. v. Chi- connecting carrier on a joint througli cago & A. R. R. Co., 55 111. 95, 8 rate to accept cars delivered to it by Am. Rep. 631 (1870). the initial carrier. Pennsylvania Indiana. Pittsburg, Cincinnati Refining Co. v. Western N. Y. & P. & St. Louis R. R. Co. v. Morton, 61 R. R. Co., 208 U. S. 208, 52 L. ed. Ind. 539, 576, 28 Am. Rep. 682 456, 28 Sup. Ct. 268 (1908). (1878). 4 Quoted from St. Louis South- Massachusetts. Pitlock v. Wells western Ry. Co. v. State, 85 Ark. Fargo & Co., 109 Mass. 452 311, 107 S. W. 1180, 122 Am. St. (1872). Rep. 33 (1907). New York. Babcock v. Lake 6 Louisville & N. R. R. Co., v Shore & M. S. Ry. Co., 49 N. Y. 491 Central S. Y. Co., 212 U. S. 132, (1872). 143, 53 L. ed. 441, 29 Sup. Ct. 246 2 Quoted from Gulf, C. & S. F. (1909). [453] 533 ] PUBLIC SERVICE CORPORATIONS upon the point that the statute did not provide sufficient safeguards, not even providing for compensation: "It was argued that the requirement that the plaintiff in error should deliver its own cars to another road was void under the Fourteenth Amendment as an unlawful taking of its property. In view of the well known and necessary prac- tice of connecting roads, we are far from saying that a valid law could not be passed to prevent the cost and loss of time entailed by needless transshipment or breaking bulk, in case of an unreasonable refusal by a carrier to interchange cars with another for through traffic. We do not pass upon the question. It is enough to observe that such a law perhaps ought to be so limited as to re- spect the paramount needs of the carrier concerned, and at least could be sustained only with full and adequate regu- lations for his protection from the loss or undue detention of cars, and for securing due compensation for their use. The constitution of Kentucky is simply a universal un- discriminating requirement, with no adequate provisions such as we have described. The want cannot be cured by inserting them in judgments under it. The law itself must save the parties' rights, and not leave them to the discretion of the courts as such." 1 Topic D. Joint Through Routing and Rating 633. Through arrangements not obligatory. At common law one public service could not be com- pelled to enter into arrangements with another for con- tinuous service as a single unit for a single rate. Through arrangements were left altogether to such private agree- ments as the parties should negotiate. 2 This is well ex- 1 Much the same language is used rates on certain commodities with- in Thompson v. Missouri, K. & T. out doing so on others. Central of Ry. Co. (Tex.) 128, S. W. 109 (1910). Ga. Ry. Co. v. Augusta Brokerage 2 Railroads can establish through Co., 122 Ga. 646, 50S. E. 473 (1905). [454] CONNECTING SERVICES [ 534 plained in the leading case of the Atchison, Topeka & Santa Fe Railroad Co. v. Denver & New Orleans Railroad Co. 1 where the Supreme Court squarely held that a rail- road might enter into through traffic agreements with one railroad, pro-rating its through rate, and at the same time refuse to enter into a similar agreement with another railroad traversing the same territory as the first and having the same terminus. 2 To quote but one paragraph from the elaborate opinion of Chief Justice Waite: "At common law, a carrier is not bound to carry except on his own line, and we think it quite clear that if he con- tracts to go beyond he may, in the absence of statutory regulations to the contrary, 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 he 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 him- self in no worse position, by extending his route with the help of others, than he would occupy if the means of trans- portation employed were all his own. He certainly may select his own agencies and his own associates for doing his own work." 3 534. Initial company may select connecting line. It follows plainly enough that the initial carrier has 1 110 U. S. 667, 28 L. ed. 291, 4 Terry (Tex. Civ. App.), 127 S. W. Sup. Ct. 185 (1884). A carrier need 567 (1910). not pro rate with one connection 3 These doctrines have prevailed upon the same terms that it does generally in the state courts, with another. Samuels v. Louis- Georgia. State v. Wrightsville & ville & N. Ry. Co., 31 Fed. 57 T. Ry. x Co., 104 Ga. 437, 30 S. E. (1887). 891 (1898). 2 Telephone companies need not Indiana. Snow v. Indiana, B. & establish through toll line connec- W. Ry. Co., 109 Ind. 422, 9 N. E. tions. Albany Telephone Co. v. 702 (1886). [455] 534] PUBLIC SERVICE CORPORATIONS entire control over the situation. 1 In the recent Citrous Fruit case in the United States Supreme Court 2 the pol- icy of the Pacific railroads under which the right of routing beyond its own terminal was reserved to the initial carrier to exercise in his discretion at any stage as the condition of guaranteeing through rates to the shipper was held its right beyond question. As the court tersely said in its decision: "The important facts that control the situ- ation are that the carrier need not agree to carry beyond its own road, and may agree upon joint through tariff rates or not, as seems best for its own interests. Having these rights of contract the carrier may make such terms as it pleases, at least so long as they are reasonable and do not otherwise violate the law." 1 Citation should be made here of the many cases which held that the original Interstate Commerce Act left the railroads free as before to make such arrangements for through routing, billing, or rating as they pleased without its being a refusal of equal facilities for the interchange of traffic to make such through ar- rangements with one company while refusing to do so with another. Central S. Y. Co. v. Louisville & N. Ry. Co., 192 U. S. 568, 48 L. ed. 565, 24 Sup. Ct. 339 (1904); Ken- tucky & I. Bridge Co. v. Louisville & N. R. R. Co., 2 L. R. A. 289, 2 Int. Com. Rep. 351, 37 Fed. 567, 629, 630 (1889); Little Rock & M. R. R. Co. v. St. Louis, I. M. & S. Ry. Co., 2 Int. Com. Rep. 763, 41 Fed. 559 (1890); Chicago & N. W. Ry. Co. v. Osborne, 3 C. C. A. 347, 4 Int. Com. Rep. 257, 52 Fed. 912 (1892); Oregon Short Line & U. N. Ry. Co. v. Northern Pac. Ry. Co., 4 Int. Com. Rep. 718, 9 C. C. [456] A. 409, 15 U. S. App. 479, 61 Fed. 158 (1894), affirming 4 Int. Com. Rep. 249, 51 Fed. 465 (1892); Little Rock & M. Ry. Co. v. St. Louis & S. W. Ry. Co., 26 L. R. A. 192, 4 Int. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 280, 63 Fed. 775 (1894); St. Louis Drayage Co. v. Louisville & N. Ry. Co., 5 Int. Com. Rep. 137, 65 Fed. 39 (1894); Prescott & A. C. Ry. Co. v. Atchi- son, T. & S. F. Ry. Co., 73 Fed. 438 (1896); Gulf, C. & S. F. Ry. Co. v. Miami S. S. Co., 86 Fed. 407, 30 C. C. A. 142 (1898); Allen v. Oregon Ry. & Nav. Co., 98 Fed. 16 (1899). But see (practically overruled on this point) New York & N. Ry. Co. v. New York & N. E. Ry. Co., 50 Fed. 867 (1892); Augusta S. Ry. Co. v. Wrightsville & T. Ry. Co., 74 Fed. 522 (1896). 1 Southern Pacific Ry. Co. v. Interstate Comm. Comm., 200 U. S. 536, 50 L. ed. 585, 26 Sup. Ct. 330 (1906). CONNECTING SERVICES [ 535, 536 635. Limitations upon joint rates. It is entirely proper that two carriers should combine to form a single route and name a single rate for that haul. This will usually result in a lower rate than the sum of the two individual rates by reason of the relative economy of the long haul. For plainly a railroad may charge more for transporting its local passenger between two termini than it receives for transporting a through passenger over the same distance in the division of the through rate with other railroads. 1 When such a through rate has been established by the agreement of the carriers, every shipper is entitled to it. If some shippers are given an advantage over others in such shipment it will be a case of illegal discrimination. 2 636. Statutory provision for through routes. But the statutes are going further than to make the common law more intensive; they are making the legal obligation more extensive. The common law right of the initial company to make through traffic arrangements with some one connecting line and throw all the business which it will take at the through rate into the hands of that one line, notwithstanding the desires of the shipper, has, of late, caused such fears that statutes are being passed in recent years giving the power to the regulating body to compel the making of a joint rate. This power was given to the English Railway and Canal Commission in 1888, 3 and to the Interstate Commerce Commission in 1906. 4 Our Federal legislation was anticipated in the various 1 Union Pacific Ry. Co. v. United 231 (1897); Tozer v. United States, States, 117 U. S. 355, 6 Sup. Ct. 52 Fed. 917 (1892). 772, 29 L. ed. 920 (1886); Texas & 2 Blair v. Sioux City & P. Ry. P. Ry. Co. v. Interstate Comm. Co., 109 la. 369, 80 N. W. 673 Comm., 162 U. S. 197, 16 Sup. Ct. (1899); Bras v. McConnell, 114 la. 666, 40 L. ed. 940 (1896); Parsons 401, 87 N. W. 290 (1901). v. Chicago & N. W. Ry. Co., 167 3 51 & 52 Viet., Chap. 25 (1888). U. S. 447, 17 Sup. Ct. 887, 42 L. ed. * Act of July 29, 1906. [457] 537, 538] PUBLIC SERVICE CORPORATIONS states, Minnesota and Texas for example. It will be no- ticed that the commission by these statutes is to judge as to whether public convenience requires the additional through routes asked. The shipper, therefore, now as before has no rights in the matter until the through rate has been duly established, then of course he may demand it. 537. Constitutionality of such statutes. The problem has not been settled though it has been raised as to whether such statutes are constitutional; but in view of the later idea of the obligation of the carrier to the whole community there seems to be little doubt of the decision. In holding the Minnesota statute valid, Mr. Justice Collins said: l "We see no reason why, under the amendatory act the commission cannot lawfully com- pel a joint arrangement in a case like this. The evidence shows that the location of the Duluth road and the Minne- apolis and St. Louis road, their track facilities, equipment, etc., are such that, by operating together under joint traffic agreements, the cost of the service can be greatly lessened. The public has, at least, a right to share in the benefits of this condition. If it is judicious to do so and of public benefit to have joint traffic arrangements in any given case, why should not the public be permitted to compel that such arrangements be made?" 2 638. Application of these statutes. Two recent cases in the Supreme Court of the United States bring out the limitations under which the extension of the common law doctrines by legislation is proceeding. In the first of these cases 3 it was held that the general 1 State v. Minneapolis & St. L. Co., 14 Tex. Civ. App. 39, 37 S. W. R. R. Co., 80 Minn. 191, 83 N. 37 (1896), should be noted. W. 60, 89 Am. St. Rep. 514 "Interstate Comm. Comm. v. (1900). Delaware, L. & W. Ry. Co., 216 ' Inman v. St. Louis S. W. Ry. U. S. 531, 30 Sup. Ct. 417 (1910). [458] CONNECTING SERVICES [ 539 power given to the Interstate Commerce Commission in the recent amendments to compel an unwilling railroad to make connections with a branch line was not intended "to give a roving commission to every road that might see fit to make a descent upon a main line, but primarily, at least, to provide for shippers seeking an outlet either by a private road or branch." In the second of these cases l it was held that joint through routes may not be established by the commission except in accordance with the powers delegated to it in the statute, and that there- fore where one reasonable through route has been estab- lished by the company in question it cannot be conipelled to enter into another in which it gets a far shorter haul, simply because the public might prefer to have the ad- vantage of an alternative route. 539. Statutory regulation of connecting service. This modern conception of the fuller extent of the public duty to all concerned in relation to the making of con- nections has manifested itself of late in many statutes requiring proper arrangements for the interchange of busi- ness at junction points. These now receive more respect from the courts than they once did. 2 And in another class of cases altogether it has been held that legislation com- pelling telephone companies to make switch board con- 1 Interstate Comm. Comm. v. S. Y. Co., 97 S. W. 778, 30 Ky. Law Northern Pac. Ry. Co., 216 U. S. Rep. 18 (1906). 538, 30 Sup. Ct. 415 (1910). Minnesota. Jacobson v. Wis- 2 The possibility of constitution- consin, M. & P. R. R. Co., 71 Minn, ally compelling the interchange of 519, 74 N. W. 893, 40 L. R. A. 389 business upon equal terms is shown (1898). in various recent cases, such as: Missouri. State of Missouri v. Kentucky Louivsille & N. R. R. St. Louis & S. F. R. R. Co., 105 Mo. Co. v. Pittsburg & K. Coal Co., Ill App. 207, 79 S. W. 714 (1904). Ky. 960, 64 S. W. 969, 55 L. R. A. New York Hudson Valley Ry. 601, 98 Am. St. Rep. 447 (1901); Co. v. Boston & Maine R. R. Co., Louisville & N. Ry. Co. v. Central 106 App. Div. 375, 94 N. Y. Supp. 545 (1905). [459] 540 ] PUBLIC SERVICE CORPORATIONS nection so that through speech may be had has been held constitutional. 1 This is going to an extreme as will be seen in another connection. 540. Policy of such legislation. It is well worthy of particular remark that the powers granted commissions in this respect now go so far as to authorize the making of orders as to running of trains by the intersecting roads, so as to make convenient connec- tions. It is characteristic of the new appreciation of the extent of public duty that the United States Supreme Court finds no difficulty with these statutes. Speaking of the objection raised to the regulation of the conduct of one public service in its relations with another for the benefit of all concerned, that court said in what seems certainly destined to be a leading case: 2 "This reduces itself to the contention that, although the governmental power to regulate exists in the interest of the public, yet it does not extend to securing to the public reasonable facilities for making connection between different carriers. But the proposition destroys itself, since at one and the same time it admits the plenary power to regulate and yet virtually denies the efficiency of that authority. 3 1 Telephone companies may be U. S. 1, 22, 51 L. ed. 933, 27 Sup. compelled by statute to make Ct. 585 (1907). switchboard connections. Billings 3 A statute making it the duty of Mutual Telephone Co. v. Rocky railroad corporations to stop all Mt. Bell Telephone Co., 155 Fed. trains carrying passengers at the 207 (1907). But the common law junction of other railroads a suffi- obligation to this effect is limited cient length of time to allow the to those cases where the company transfer of passengers and their has not provided through lines of baggage, enforced. State ex rel. its own. Home Telephone Co. v. McPherson v. St. Louis & S. F. Ry. North Manchester Telephone Co. Co., 105 Mo. App. 207, 79 S. W. 714 (Ind. App.), 92 N. E. 558 (1910). (1904). 2 Atlantic Coast Line Ry. Co. v. A statute requiring common North Carolina Corp. Comm., 206 carriers to afford all reasonable, [460] CONNECTING SERVICES [ 540 proper, and equal facilities for railroad changing its times card by traffic between their respective which a connection with a connect- lines, and for receiving, forwarding, ing road which was of general con- and delivering passengers and prop- venience was discontinued. South- erty to and from their several lines ern Ry. Co. v. Commonwealth, 37 and connecting lines is violated by a S. E. 294, 98 Va. 758 (1900). [4611 PART IV. JUSTIFICATION FOR REFUSING SERVICE CHAPTER XVI INEXCUSABLE BREACHES OF PUBLIC DUTY 550. Refusal illegal without proper justification. Topic A. Distasteful Service 551. Malicious motives. 552. Malice as a factor. 553. Refusal dictated by favoritism. 554. Discrimination for its own ends. 555. Disagreeable persons. 556. Unmannerly persons. 557. Slight misbehavior. 558. Personal objections. 559. Immoral persons. 560. Undesirable persons. 561. Supposed interest of patron. 562. Wiser course for patron. 563. Unwelcome service. 564. Wrongful refusal. Topic B. Disadvantageous Service 565. Race prejudice. 566. Separation of the races. 567. Class distinctions. 568. Social differences. 569. Unpopular organizations. 570. Labor demands. 571. Assumption of peculiar risks. 572. Service involving unusual care. 573. Indirect advantage in refusing. 574. Ultimate advantage in refusing. 575. Particular service peculiarly expensive. 576. Extensions limited by profitableness. [462] INEXCUSABLE BREACHES [ 550, 551 577. Service in unprofitable ways. 578. Unprofitableness seldom an excuse. 579. Particular service not indispensable. 580. Substitute for service available. 550. Refusal illegal without proper justification. According to the primary principles discussed in the preceding chapters one is bound to serve all who come within his public profession. To excuse himself from such service he must show justification based upon public policy. Once committed to public employment he can no longer refuse his service at his whim or caprice. When the obligation of public service is clearly established by showing that there is a plain case within the public under- taking, all conditions precedent being satisfied, the only iiicthod of avoiding liability is to show that there is justifi- cation for the suspension of service in general or some special excuse for the particular refusal. And it is obvious that such justification must be upon reasonable grounds relating to the possibility of performing the service, and such excuse must show that the particular request is truly improper. A refusal to serve upon 'any other basis is a breach of public duty, no matter what plausible grounds may be urged in its defense. Such breaches are almost too obvious to be discussed as excuses; they are rather illustra- tions of the primary duty. As such the facts of the lead- ing cases are stated rather fully in this chapter. Topic A. Distasteful Service 551. Malicious motives. One engaged in a public employment must serve friends and enemies alike. This is too obviously the consequence of public duty to provoke much discussion. In one case a traveler recovered for being refused by the manager of a hotel who bore a grudge against him because he had previously attempted to procure the discharge of the [463] 552, 553 ] PUBLIC SERVICE CORPORATIONS manager. The court held the proprietor liable. 1 In an- other case a shipper recovered from a railroad for refusal to accept goods tendered for shipment, because of per- sonal disputes with the shipper. 2 And the court charged the jury that no circumstances justifying the refusal of the goods appeared. 552. Malice as a factor. It should be noted in this connection that if the request refused is one as to which there is no public duty involved it makes no difference with what motive the refusal is made. 3 But as regulations must be enforced in good faith, if service is cut off from spite the regulation will not be a defense for what is done. 4 Malice may not work a wrong. But malice may destroy a justification. 553. Refusal dictated by favoritism. It may be admitted that there are sometimes good reasons for giving one applicant for service priority over another which justify refusing one applicant in favor of another. But such refusal will constitute an illegal dis- crimination unless it is in accordance with the general rules of priority later discussed. Thus a gas company cannot give the supply of one of its stockholders priority and thereby excuse its refusal to serve one of the general public. 5 So a common carrier by sea cannot lawfully 1 Willis v. McMahan, 89 Cal. 156, * Gamble-Robinson Commission 26 Pac. 649 (1891). Co. v. Chicago & N. W. Ry. Co., See also Avinger v. South Caro- 168 Fed. 161, 94 C. C. A. 217, 21 lina R. R. Co., 29 S. C. 265, 7 S. E. L. R. A. (N. S.) 982 (1909). 493, 13 Am. St. Rep. 716 (1888). Phelan v. Boone Gas Co. 2 Lanning v. Sussex R. R. Co., 1 (Iowa), 125 N. W. 208 (1910). N. J. L. Jour. 21 (1878). B Crescent Steel Co. v. Equitable See also Western Union Tele- Gas Co., 23 Pitts. L. Jour. 316 graph Co. v. Lilliard, 86 Ark. 208, (1892). 110 S. W. 1035 (1908), holding that Compare Lafaye v. Harris, 13 La. it makes no difference with what Ann. 553 (1858). motive the refusal is made. [464] INEXCUSABLE BREACHES [ 554, 555 reject lumber, a commodity which it professes to carry, and afterwards receive and transport cotton and other goods, where, at the time of the tender, there was room in the vessel for the rejected lumber. 1 5 554. Discrimination for its own ends. In an astounding Canadian case 2 a railroad openly announced that it would not carry any more cedar lum- ber off its line. The court held that it might thus limit its undertaking, although apparently the railroad adopted this policy in order to keep the cedar timber on its line for its own uses. But in a leading American case it was held that a railroad could not discriminate against ship- pers who would not sell their ties to it at a fixed price. 3 There can be no doubt that the latter case is the correct one. 555. Disagreeable persons. The mere fact that a person is distasteful or has un- gentlemanly habits will not justify a carrier or an inn- keeper in refusing him. The question, or a very similar one, arose in Prendergast v. Compton. 4 The plaintiff, a passenger, sued the defendant, the captain of the ship in which he was being transported, for excluding him from eating in the " cuddy," upon the ground that his con- duct was vulgar and offensive. There was evidence that he was in the habit of reaching across other passengers and of taking potatoes and boiled bones in his fingers. The court held, however, for the passenger: "It would be difficult to say, if it rested here, in what degree want of 1 Ocean Steamship Co. v. Sa- * Louisville E. & St. L. R. R. Co. vannah Locomotive Works & S. v. Wilson, 132 Ind. 517, 32 N. E. Co., 131 Ga. 831, 63 S. E. 577, 20 311 (1892). L. R. A. (N. S.) 867 (1909). 8 C. & P. 454 (1837). 2 Rutherford v. Grand Trunk Ry. Co., 5 Rev. Leg. (Can.) 483 (1873). 30 [ 465 ] 556, 557 ] PUBLIC SERVICE CORPORATIONS polish would, in point of law, warrant a captain in ex- cluding a passenger from the cuddy. Conduct unbecom- ing a gentleman, in the strict sense of the word might justify him: but in this case there is no imputation of the want of gentlemanly principle." 566. Unmannerly persons. These moderate principles prevail generally. In an American case : of a person who had made himself dis- agreeable upon a street car, it was said: "It is not all con- duct which may be said to be outside the pale of good breeding that will bar a passenger from the protection of the law against the carrier for the act of the servant in ejecting him from the car." These quotations are given to show that the law is rather easy-going in these matters. Those who engage in a public service must deal with all sorts and conditions of men; and those who are being served along with the general public must not be too nice or too finical. 567. Slight misbehavior. Upon these principles slight misbehavior is not a suf- ficient excuse for a refusal to serve. As was said in one of the telephone cases - where the subscriber had made some vulgar talk: "Reasonable caution must be taken lest injustice be done. Some allowance is to be made for the infirmities of human nature. Local customs are not to be ignored. Habit sometimes excuses, if it does not justify, the use of objectionable language. Early environment more often than an evil spirit is respons- ible for bad manners. Undisclosed emergencies may 1 Eads v. Metropolitan St. Ry. In People v. McKay, 46 Mich. Co., 43 Mo. App. 536 (1891). 439 (1881), it was held that one 2 Huffman v. Marcy Mutual Tele- could not be excluded from a wait- phone Co. (Iowa), 121 N. W. 1033, ing room for spitting. 23 L. R. A. (N. S.) 1010 (1909). [4661 INEXCUSABLE BREACHES [ 558, 559 extenuate lapses from propriety." By these principles the profane retort of an exasperated traveller to an inn- keeper who was keeping him out in the night until he would answer a lot of questions was held to be no excuse for the subsequent refusal to take him in. 1 " Suppose he did add the words, ' and be damned to you,' is that a sufficient reason for keeping a man out of an inn who has travelled till midnight? I think that the prosecutor was not guilty of such misconduct as would entitle the defendant to shut him out of his house." 658. Personal objections. However much the many antics of children may wear upon the nerves of some people, boys who are skylarking 2 cannot be ejected from a street car. Nor is unconven- tionality of costume an excuse unless it be indecent. Upon this principle it was held that a woman in bloomers could not be excluded from an inn. 3 And so a railroad can- not dictate what dress its passengers shall wear. One may travel who wears the uniform of a rival line. 4 These prin- ciples go far. Even a man who has plainly been drinking cannot be rejected. 5 559. Immoral persons. An excellent illustration of this general principle 'that there can be no refusal on merely personal grounds alone if the application is proper in itself is Brown v. Memphis 1 Rex v. Ivens, 7 Car. & P. 213 St. Ry. Co., 91 N. Y. App. Div. 580, (1835). Similarly a profane retort 86 N. Y. Supp. 871 (1904). made by a passenger to a con- 3 Regina v. Sprague, 63 J. P. 233 ductor under extreme provocation (1899). was held not to be a sufficient ex- 4 South Florida R. R. Co. v. cuse for ejecting him. El Paso Rhodes, 25 Fla. 40, 5 So. 633, 3 Electric Ry. Co. v. Alderete, 36 L. R. A. 733, 23 Am. St. Rep. 506 Tex. Civ. App. 142, 81 S. W. 1246 (1889). (1904). 5 See Story v. Norfolk & S. R. R. 2 Rosenberg v. Brooklyn Heights Co., 133 N. C. 59, 45 S. E. 349 (1903). [4671 560 ] PUBLIC SERVICE CORPORATIONS & Corinth Railroad. 1 The plaintiff brought this suit for being ejected by the defendant's servants from the ladies' car, her behavior while on the car being admittedly ladylike. The defendant pleaded that the plaintiff was a notorious public courtesan; but notwithstanding this plea 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 behavior be proper while travelling." 560. Undesirable persons. Certain persons because of their personal notoriety are often undesirable customers because they injure general patronage; indeed this is true to some extent of all in certain callings prize fighters, 3 for one example. In this connection the important case of Pearson v. Duane 4 should be cited. Duane had been ordered from ftan Francisco by the Vigilance Committee and upon the 5 Fed. 499 (1880); S. C., 4 Fed. 118 N. W. 14 (1908). But see .'./ (1880). Compare Curtis v. Mur- Stevenson v. West Seattle Land & ,'hy, 63 Wis. 4, 22 N. W. 825, 53 Improvement Co., 22 Wash. 84, 60 . .m. Rep. 242 (1885), where the par- Pac. 51 (1900). ; ; ?s resorted to an inn for the pur- * See the dictum to this effect in 1 > )scs of prostitution. Nelson v. Boldt, 180 Fed. 779 - See also Meisner v. Detroit, B. (1910). ,. I. W. Ferry Co., 154 Mich. 545, 4 Wall. 605, 18 L. ed. 447 (1867). [468] INEXCUSABLE BKE ACHES [ 561, 562 discovery of that fact Pearson expelled him from his ship. The United States Supreme Court hardly knew whether there were circumstances of justification hi this case or not. "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. If there are reasonable objections to a proposed passenger, the car- rier is not required to take him. In this case Duane could have well been 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 re- turned to a, city where lawless violence was supreme." 561. Supposed interest of patron. It has been suggested that the shipmaster in the case just discussed 1 might justify himself in refusing to take the passenger to San Francisco where a violent fate prob- ably eventually awaited him by saying that the refusal was in his own interest. So a ferryman once attempted to excuse his refusal to take a passenger who apparently easily succumbed to temptation across to a city on the ground that she usually reappeared late at night in an intoxicated condition. 2 But this ground is obviously indefensible. 562. Wiser course for patron. Certainly it is not the business of the public servant to decide whether the patron is wise in pursuing the course he is setting out upon. Thus a telegraph com- pany cannot escape liability for refusal to accept a mes- sage for transmission because, in the opinion of the 1 Pearson v. Duane, 4 Wall. 605, 2 Stevenson v. West Seattle L. & I. 18 L. ed. 447 (1866). Co., 22 Wash. 84, 60 Pac. 51 (1900). [469] 563, 564 ] PUBLIC SERVICE CORPORATIONS operator, it would not have accomplished its purpose if sent. 1 And so where a telephone company has con- tracted to submit and deliver a message summoning a physician, it cannot excuse its liability for delay in de- livery by proof that it was not the custom of the physician to make professional calls at a distance without prepay- ment or guaranteed payment of his charges. 2 563. Unwelcome service. An interesting point is whether compliance with the request for a party in interest that service be discon- tinued will excuse the proprietors of the service, or whether they must undertake the often distasteful task of forcing service upon one. That a buyer has notified a railroad company not to bring any more of the seller's property consigned to the buyer, does not absolve the railway of its duty to the seller to furnish him transporta- tion requested. 3 And the fact that the sendee of a tele- gram has notified the company to deliver no telegrams at his house on Sunday will not apparently excuse the com- pany from its obligation to the sender of attempting to deliver such telegrams. 4 664. Wrongful refusal. This means that the duty to the moving party must be performed notwithstanding the expressed dissent of the receiving party. So the refusal of a connecting carrier to receive freight for a certain consignee will not relieve the initial carrier from liability for a penalty for a failure to receive such freight. 5 But a carrier may demand its pay 1 Cordell v. Western Union Tele- Campbell, 91 Tex. 551, 45 S. W. 2, graph Co., 149 N. C. 402, 63 S. E. 43 L. R. A. 225 (1898). 71 (1908) . * Brashears v. Western Union Tel- 2 Western Union Telegraph Co. v. egraph Co., 45 Mo. App. 433 (1891). Henderson, 89 Ala. 510, 18 Am. St. 6 Wampum Cotton Mills v. Caro- Rep. 148 (1889). lina & N. W. Ry. Co., 150 N. C. 608, 8 Houston, E. & W. T. Ry. Co. v. 64 S. E. 588 (1909). [470] INEXCUSABLE BREACHES [ 565, 566 in advance for goods directed to certain consignees. 1 For there is no discrimination where there is no duty. Topic B. Disadvantageous Service 565. Race prejudice. A carrier cannot refuse to carry persons because of their color or race, whatever may be the prejudices current against them in the community. 2 It must be admitted that this requirement may result in pecuniary loss. This is particularly true in the case of innkeeping; but the public duty is, nevertheless, imperative in this calling as in all others. 3 However, one southern court was so impressed with this hardship that it said in a dictum that a landlord could exclude from his inn persons so objectionable to the patrons of the house on account of the race to which they belong, that it would injure the business to admit them. 4 566. Separation of the races. However, it would seem to be the plain right of the carrier or indeed the innkeeper, to assign the different races to different accommodations, since the manage- ment of the business is left to the proprietor. 5 Therefore 1 Gamble-Robinson Commission Ry. Co., 218 U. S. 71, 30 Sup. Ct. Co. v. Chicago & N. W. Ry. Co., 168 667 (1910). Fed. 161, 94 C. C. A. 217, 21 L. R. Alabama. Bowie v. Birmingham A. (N. S.) 982 (1909). Ry. & El. Co., 125 Ala. 397, 27 So. "Brown v. Memphis & C. Ry. 1016, 82 Am. St. Rep. 247 (1899). Co., 5 Fed. 499 (1880). Arkansas. Bradford v. St. Louis 3 Younger v. Judah, 111 Mo. 303, I. M. & So. Ry. Co. (Ark.), 124 S. 19 S. W. 1109, 16 L. R. A. 558, 33 \V. 516 (1910). Am. St. Rep. 527 (1892). Kentucky. Chiles v. Chesapeake 4 State v. Steele, 106 N. C. 766, & O. Ry. Co., 30 Ky. L. Rep. 1332, 11 S. E. 478, 8 L. R. A. 516, 19 Am. 101 S. W. 386, 11 L. R. A. (N. S.) St. Rep. 573 (1890). 268 (1907). 6 United States. Houck v. South- Michigan. Day v. Owen, 5 Mich, ern Pac. Ry. Co., 38 Fed. Rep. 226 520, 72 Am. Dec. 62 (1858). (1888); Chiles v. Chesapeake & O. Missouri. Chilton v. St. Louis & [471] 567 PUBLIC SERVICE CORPORATIONS the legislation in certain States which have provided by statute that separate accommodations may be, or shall be, furnished by the railroads to colored passengers which are equal to those furnished white passengers is constitutional, so far as its being due process of law is con- cerned. 1 But at all events, public carriers until they do furnish separate accommodations equal in comfort and safety to those furnished other travellers have no right to discriminate between passengers. 2 567. Class distinctions. One who is engaged in public service cannot make a valid restriction of his service to certain classes of society. It is only as to innkeepers apparently that this general principle has ever been questioned. It is no doubt com- petent for an innkeeper to fix the character of his enter- tainment so high that his reasonable charges will shut Co. v. Catron, 102 Ky. 323, 43 S. W. 443 (1897). Louisiana. Ex parte Plessy, 45 La. Ann. 80, 11 So. 948, 18 L. R. A. 639 (1893). Mississippi. Louisville, N. O. & T. Ry. Co. v. State, 66 Miss. 662, 6 So. 203, 14 Am. St. Rep. 599 (1889). Tennessee. Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432 (1888). 2 United States. Houck v. South- ern Pacific R. R. Co., 38 Fed. 226 (1888). Illinois. Chicago & N. W. R. R. Co. v. Williams, 55 111. 185, 8 Am. Rep. 641 (1870). Iowa. Coger v. North Western Union Packet Co., 37 la. 145 (1873). Texas. Pullman P. Car Co. v. Cain, 15 Tex. Civ. App. 503, 40 S. W. 220 (1897). I. M. Ry. Co., 114 Mo. 88, 21 S. W. 458, 19 L. R. A. 269 (1892). North Carolina. Britton v. At- lanta & C. A. L. Ry. Co., 88 N. C. 536, 43 Am. Rep. 749 (1883). Pennsylvania. West Chester & Philadelphia R. R. Co. v. Miles, 55 Pa. St. 209, 93 Am. Dec. 744 (1867). South Carolina. Smith v. Cham- berlain, 38 S. C. 529, 17 S. E. 371, 19 L. R. A. 710 (1892), waiting rooms. Tennessee. Chesapeake, O. & S. W. R. R. Co. v. Wells, 85 Tenn. 613, 4 S. W. 5 (1887). 1 United States. Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 388, 45 L. ed. 244, 21 Sup. Ct. 101 (1900); McGuinn v. Forbes, 37 Fed. 639 (1889). Florida. Croons v. Shadd, 51 Fla. 168, 40 So. 497 (1906). Kentucky. Louisville & N. R. R. [4721 INEXCUSABLE BREACHES [ 568, 569 out all but wealthy or well-to-do patrons. 1 "He does not absolutely engage to receive every person who comes to his house, but only such as are capable of paying a com- pensation suitable to the accommodation provided." 2 568. Social differences. But if a person applies for such accommodation and is prepared to pay the price demanded, the innkeeper could hardly refuse to receive the guest on the ground that he was a poor man, and ought not to afford such an entertainment. Yet Baron Parke 3 once said: "A man may keep an inn for those only who come in their own carriages." This doctrine is a very doubtful one; but it is doubtless competent for an innkeeper to entertain guests of different classes in different rooms or require them to eat at separate tables, provided each gets reason- able accommodations. 4 569. Unpopular organizations. That there is a prejudice against the members of cer- tain organizations in general cannot in accordance with these principles excuse the refusal of certain members of that organization. Thus there is in some communities a deplorable prejudice against social association with enlisted men in uniform; but this cannot justify their re- fusal. In a Maine case"' this whole matter was threshed out in a case against an innkeeper who wanted to put in the defense, that others wearing the same uni- form had earlier in the day acted in a disorderly man- ner in his house, but Emery, J., said: "These plaintiffs, 1 Jaquet v. Edwards, 1 Jamaica, 4 Regina v. Sprague, 63 J. P. 233 4 (1867). (Eng., 1899). 2 Abbott, C. J., in Thompson v. 6 Atwater v. Sawyer, 76 Me. 539, Lacy, 3 B. & Aid. 283, 285 (1820). 49 Am. Rep. 634 (1884). 3 In Johnson v. Midland Ry. Co., 4 Exch. (Eng.) 367, 371 (1849). [473] 570 ] PUBLIC SERVICE CORPORATIONS though members of the militia companies, were not of this disorderly party, nor with them. It is not claimed that the plaintiffs were otherwise than sober, orderly and respectable. The only connection shown between them and the disorderly ones was their membership of the same militia companies. It is not even shown they were of the same company. The only similarity in appearance was in the uniform. Such membership was honorable, and there was not in that any reasonable cause to believe the plaintiffs intended insult. The uni- form was honorable and the rightful wearing it by the plaintiffs was no reasonable cause for apprehension of insult." l 670. Labor demands. A public servant owing a general duty to all men requiring his service cannot be permitted, if he would, to defer to the demands which the laboring class often makes upon the whole community in its labor disputes. Thus a railroad cannot refuse to take scab workmen to do their work against the violent protests of the union men, although the protection of such workmen as pas- sengers may impose upon them unusual burdens. That the carrier must put forth extraordinary efforts in such emergencies is but part of the general duty to meet all contingencies with adequate service. 2 Thus a railroad cannot refuse to take freight from a boycotted line, even if its reception may involve a sympathetic strike on its own line. 3 As the court said in a case of this extreme sort: 1 Rex v. Smith, 65 J. P. 521 B. & Q. Ry. Co. v. Burlington, C. R. (1901), accord. & N. Ry. Co., 34 Fed. 481 (1888). 2 Chicago & A. R. R. Co. v. See also Toledo, A., A. & N. M. Pillsbury, 123 111. 9, 14 N. E. 22 Ry. Co. v. Pennsylvania Co., 54 (1827). Fed. 730, 19 L. R. A. 387 (1893); But see Pounder v. North E. Ry. and Thomas v. Cincinnati, N. O. & Co., 1 Q. B. 385 (1891). T. P. Ry. Co., 62 Fed. 803 3 The quotation is from Chicago, (1894). [474] INEXCUSABLE BREACHES [ 571, 572 "Now, the question is, what shall be obeyed, the law of the land, or the order of the chiefs of the locomotive engineers? Shall a railway company refuse obedience to the express provisions of the statutory law because some of its employes threaten to quit its service, and thus stop the running of its trains? " 571. Assumption of peculiar risks. It is part of the business in public service to undertake in particular cases a service which will involve more risk than in the ordinary case. Thus in a recent Massachusetts case * it was held that a sender of a telegram might inform the company of the nature of the message and its impor- tance from a financial point of view, so that the nature and particulars of the undertaking of the company may be understood by it. And consequently the telegraph com- pany was held liable for refusing to take the message to which this notice was attached. 2 572. Service involving unusual care. More familiar illustrations of this principle may be found in the law of the carriage of passengers. For ex- ample, a railroad cannot refuse to carry a blind man who can get about after a fashion. Thus in Lackery v. Mobile & Ohio Railroad Company 3 it was said: "It is not every sick or crippled or infirm person whom a railroad regula- tion can exclude, but one so sick or so crippled or so infirm as not to be able to travel without aid." Women and children, cripples and invalids, the halt and the blind all have a right to travel. If they will put an outrageous burden upon the carrier in particular cases, that is a mat- ter of excuse. 4 1 Vermilye v. Postal Telegraph * 75 Miss. 751, 23 So. 435, 41 L. Cable Co., 205 Mass. 298, 91 N. E. R. A. 385, 65 Am. St. Rep. 617 904 (1910). (1898). 2 See generally chapter XXIX. 4 See generally chapter XVIII. [475] 573, 574 ] PUBLIC SERVICE CORPORATIONS 673. Indirect advantage in refusing. A public servant or one representing him cannot refuse service for his own private advantage or for his own profit in an outside business. A plain example of this may be seen in a late case : where a telegraph oper- ator refused to take a message complaining of his con- duct. Another aggravated case was that of a railroad which refused to handle coal of a shipper because he would not sell it to a coal company of which an officer of the road was an officer. In granting a mandamus in that case Mr. Justice Dean said: "The public duty of defendant was to carry freight and passengers. Suppose it had refused to sell him a ticket as a passenger, and notified him that such refusal would be kept up unless he sold his coal to the president's coal company; the wrong would have been a violation of a duty which de- fendant owed to the general public and a common car- rier of passengers, but it would also have been a wrong special to himself, distinct from the public of which he was one, and from which he alone specially suffered. It would have been a demand on him to do something having no connection with defendant's business of trans- portation, and, if he refused, to deprive him of a right which it had undertaken." 2 674. Ultimate advantage in refusing. A public servant should not set himself up as the con- stituted arbiter of the economic advantage of the com- munity he serves, even if it may be said that its own interests are bound upon those of the community. A railroad company, for example, could not, as one court pointed out, 3 refuse to handle the freights of a new dealer 1 Western Union Telegraph Co. v. R. R. Co., 205 Pa. St. 132, 54 Atl. Lillard, 86 Ark. 208, 110 S. W. 1035 580, 61 L. R. A. 502 (1903). (1908). Coe v. Louisville & Nashville 2 Loraine v. Pittsburg, J. E. & E. R. R. Co., 3 Fed. 775 (1880). [476] INEXCUSABLE BREACHES [ 575 upon the ground that the particular trade already had sufficient followers in that community, and was being over done to the detriment of all concerned. This was well brought out in a late case where a railroad had re- fused to accept coal for shipment from a mine on the ground that it was of such inferior quality to other coal shipped from the region over its line as to injuriously affect the sale, and subsequently the shipment of superior qualities of other mines. Here, obviously, the railroad assumed too much. That this sort of economic argu- ment is out of place in legal discussion of plain breach of established duty is plain to all lawyers when outright refusal of service is in question; but later in this treatise it will be seen that in the making of relative rates for service, apparent discrimination is often justified upon the ground of general economic advantage. 1 575. Particular service peculiarly expensive. Even in the extreme case where it is shown that in the particular case it will be unprofitable to serve the appli- cant in question as he desires, there is no excuse. For clearly it should be obvious that in a public employment all applicants must be served at established rates, even if in a particular case it is especially bothersome or even partic- ularly expensive. Those who profess a public employ- ment must fulfill their public duty to all who apply, and must realize that this will be more troublesome in some cases than in others; and indeed so long as the business as a whole is profitable they should not complain if some occasional services may result in loss. Thus a railroad cannot cancel a scheduled train because not enough busi- ness has appeared for it on a particular day to make it pay. 2 Nor can a telegraph company refuse to take a 1 Beech Creek R. R. Co. v. 2 Kansas & A. V. Ry. Co. v. Olanta Coal Mining Co., 158 Fed. Ayres, 63 Ark. 331 (1897). 36, 85 C. C. A. 148 (1907). [477] 576, 577 ] PUBLIC SERVICE CORPORATIONS telegram which it is obvious it will not be profitable to handle under the circumstances . 1 576. Extensions limited by profitableness. But although unprofitableness in a particular instance will not justify a refusal to act in accordance with the general obligation, general unprofitableness may excuse the failure to make further extension of the service in question. Particularly in those services where the gen- eral profession calls for the expansion of the facilities offered to meet increased demands, reasonable time is given. Two recent telephone cases throw light on this. In one 2 in approving the granting mandamus against a telephone company which had pleaded that its switch board was full, it was said that a reasonable time for the construction and installation of an enlargement should be allowed for. In the other 3 the court was more lenient still, holding that new trunk cables need not be installed so as to give one applicant a private line until other applications made such a considerable addition obli- gatory. 677. Service in unprofitable ways. As has been seen there may be upon proper announce- ment partial withdrawal from any separable branch of the service offered which is proving unprofitable unless a mandatory charter stands in the way. 4 But so long as public service is still professed in any branch it would seem that it was necessary to continue to give such serv- ice as the business in general, taken as a whole, really demands. 5 To a certain extent also the amount of serv- 1 Western Union Telegraph Co. 3 Cumberland Tel. & Tel. Co. v. v. Matthews, 24 Ky. L. Rep. 3 Kelly, 160 Fed. 316 (1908). (1902). See Railway Co. v. Smith, 60 2 State ex rel. v. Citizens' Tele- Ark. 221, 29 S. W. 752 (1895). phone Co., 61 S. C. 83, 39 S. E. 257, See Steenerson v.. Great North- 85 Am. St. Rep. 870 (1901). ern Ry. Co., 69 Minn. 353 (1897). [478] INEXCUSABLE BREACHES [ 578, 579 ice that must be rendered depends upon the existing demand. 578. Unprofitableness seldom an excuse. However it does not follow at all that no more need be expended in performing a service than will be profitable. Thus a railroad cannot excuse itself from running sep- arate trains for passengers by urging that it would not be sufficiently profitable. Passengers are entitled to appropriate service so long as passenger service is main- tained. 1 Nor can a canal company allow a lateral which is unprofitable to fall into disrepair; if it is bound to main- tain it, it must do so properly. 2 579. Particular service not indispensable. It is not necessary that the breach shall be upon per- sonal grounds. When service is refused for other motives than personal prejudice, there will be no defense unless there are sufficient public grounds to justify the refusal, whatever arguments, might be urged otherwise. Thus the defense that the applicant has another service avail- able will not prevail although public necessity is appar- ently not so strong in this case as in the typical case of virtual monopoly. Although there have been several cases in which this defense has been brought forward, it has failed in all. Thus an innkeeper cannot refer a traveler to other hotels, many of which are near by, because he does not wish to take him. 3 A gas company cannot refuse service to a householder upon its mains though another company with mains in that street is ready to supply him. 4 1 See People ex rel. v. St. Louis, A. * See dicta in Lamond v. Richard & T. H. R. R. Co., 176 111. 512, 52 1 Q. B. 541 (1897). N. E. 292, 35 L. R. A. 656 (1898). 4 Portland Natural Gas & O. Co. 2 See Savannah & O. Canal Co. v. v. State ex rel., 135 Ind. 54, 34 N. E. Shuman, 91 Ga. 400, 17 S. E. 937, 818, 21 L. R. A. 639 (1893). See 44 Am. St. Rep. 43 (1893). also Jones v. Rochester Gas & E. [479] 580 J PUBLIC SERVICE CORPORATIONS 580. Substitute for service available. Upon similar principles it has been held no defense to an express company's obligation to comply with the rail- road commissioners' order that shippers of money could use the United States mails, and were therefore not prejudiced by the express company's rule, requiring presentation of money packages for shipment .at un- reasonable hours . l And of course a telephone company cannot refuse to give service to one still using another telephone system as the services are not fairly equivalent. 2 And generally speaking once the law has satisfied itself that a business is public in character, the invariable conse- quence follows that a universal duty is owed to its public notwithstanding occasional competition of a limited sort. Unless this were so, the applicant might be refused in turn by the few other services available, and be left un- served without remedy. Co., 168 N. Y. 65, 60 N. E. 1044 State ex rel. v. Citizens' Tele- (1901). phone Co., 61 S. C. 83, 39 S. E. 257, 1 Platt v. Le Cocq, 150 Fed. 391 55 L. R. A. 139 (1901). (1906). [480] CHAPTER XVII REFUSAL BECAUSE OF ILLEGALITY INVOLVED 590. Illegality involved in performing service. Topic A. Subservience to Governmental Authority 591. Obedience to executive orders. 592. Subservience to military necessity. 593. Prohibitions in administrative regulations. 594. Obedience to legal processes. 595. Contravention of charter limitations. 596. Situation at expiration of franchise. Topic B. Contravention of Statutory Provisions 597. Statutes expressly controlling service. 598. The criminal law generally. 599. Sunday laws. 600. Liquor laws. 601. Game laws. 602. Health regulations. 603. Gaming statutes. Topic C. Service Promoting Illegal Transaction 604. Participation in the illegality. 605. Implication in illegality. 606. Service aiding immoral business. 607. Service indispensable to illegal business. 608. Reasonable rejection usually justified. 609. Cases holding that rejection is at peril. Topic D. Proximity to the Illegality 610. Service promoting the illegality. 611. Illegality prior to service. 612. Illegality subsequent to service. 613. Public policy the explanation. 690. Illegality involved in performing service. The plainest basis for a refusal to render service is il- 31 [ 481 ] 591,592] PUBLIC SERVICE CORPORATIONS legality. Where service of the sort asked, is plainly in the face of legal inhibitions, the propriety of the refusal is obvious. And, if in giving the service asked illegality of any kind would be directly abetted, the case is hardly less plain. Where, however, the matter involved is rather contra bones mores than prohibited by explicit law a doubt- ful problem arises. And where the illegality alleged is remote from the service requested, a still more difficult question is presented. Topic A. Subservience to Governmental Authority 591. Obedience to executive orders. Subservience to executive orders constitutes the most obvious head of justification for refusal to serve. Thus military necessity might justify the declaration of an embargo, in which case a steamship line would be obliged to tie up its vessels and refuse further freight. 1 For like reasons it was held that the railroad would have an excuse for refusing to accept food stuffs tendered it without the transit permit which the military authorities had required should be obtained from them by the shipper. 2 What is true of martial authority within the belligerent's own territory is of course still more clear of military govern- ment over conquered territory, namely, that those en- gaged in any service in that territory are subservient to the order of the military arm in accepting business. 592. Subservience to military necessity. Martial law under our system of government depends always upon showing overruling necessity, and therefore supplants the civil authorities only so far as the neces- sities of the case dictate. If, therefore, the military au- 'See Palmer v. Lorillard, 16 Phelps, 4 111. App. 238 (1879); Johns. 348 (1819). S. C. 94 111. 548 (1880). 2 Illinois Central R. R. Co. v. (482] ILLEGALITY INVOLVED [ 593 thorities forbid service, this constitutes an excuse for not accepting goods. 1 But where the military authorities are in control their interference justifies suspension of public service only to the extent that their interruption causes delay. And so even if a railroad is subjected to military supervision it is liable for delays caused by fail- ure of the company to conduct its regular service so far as it had power to do so. 2 Belligerency brings into play unusual law. Thus the furtherance of trade between enemies would be illegal. 3 And as contraband shipped by neutrals is subject to seizure, a carrier could refuse to undertake its transportation to a belligerent. 4 593. Prohibitions in administrative regulations. It must be obvious that when the refusal to serve is made necessary by the governmental authority that there is an excuse. An interesting case in point is Decker v. Atchison, Topeka & Santa Fe Railroad Company. 5 The plaintiff was not given the transportation he demanded upon the morning in question because on the 16th day of September, 1893, the defendant railroad company had prescribed a certain rule for the government of its trains entering the Cherokee Outlet on the day of its opening for settlement, providing that no train should enter said outlet within six hours of 12 o'clock noon of said day. Mr. Justice Scott held this refusal under these circum- 1 Illinois Central R. R. Co. v. Northern Pac. Ry. Co., 112 Fed. Hornberger, 77 111. 457 (1875). 829 (1902). 2 Illinois Central R. R. Co. v. In Northern Pacific Ry. Co. v. McClennan, 54 111. 58, 5 Am. Rep. American Trading Co., 195 U. S. 83 (1870). 439, 49 L. ed. 269, 25 Sup. Ct. 84 3 Dunn v. Bucknall Bros., 2 (1904), it was held that a collector K. B. 614, 71 L. J. K. B. 963 could not legally refuse a clearance (1902). to a vessel bound to a port of a See Gay's Gold, 13 Wall. 358 belligerent because it had on board (1871). articles contraband of war. 4 See Farmers' L. & T. Co. v. 6 3 Okla. 553, 41 Pac. 610 (1895). [483] 594, 595] PUBLIC SERVICE CORPORATIONS stances to be entirely justifiable; he said: "Had trains gone into the country prior to 12 o'clock, hundreds would have become violators of the law, no doubt, and, had the defendant in error permitted those already aboard when the trains arrived at the line to remain in the coaches, those waiting on the line to enter trains according to the order of the secretary of the interior and the rules pre- scribed by the company would have been placed at a disadvantage, and their rights under the law would have been unequal and prejudiced thereby." 1 594. Obedience to legal processes. The same excuse results from obedience to the lawful commands of another of the great departments exer- cising governmental authority, the judiciary. Perhaps the plainest case of this justification is where an irrigation company 2 of which the service was asked, was under an injunction ordering it not to render such service. Plainly in such case it is a good defense that compliance with the request will involve the company in contempt of court. 3 But it is almost equally plain that common-law process should be respected. 4 Thus a carrier of goods could re- fuse to accept them if subject to attachment. 5 695. Contravention of charter limitations. A public service company cannot be required to fur- nish a service which it is not authorized to perform. 6 Thus 1 Query for the constitutionality Co., 86 S. W. 676, 27 Ky. Law. Rep. of empowering the Secretary to es- 551 (1900). tablish quarantine lines. Illinois 4 Indiana, I. & I. Ry. Co. v. Central S. R. R. Co. v. McKendree, Doremeyer, 20 Ind. App. 605, 50 203 U. S. 514, 51 L. ed. 298, 27 Sup. N. E. 497, 67 Am. St. Rep. 264 Ct. 153 (1906). (1898). 2 Sample v. Fresno F. & Irriga- 5 Mitchell v. Kansas City, C. & tion Co., 129 Cal. 222, 61 Pac. 1085 S. Ry. Co., 116 Mo. App. 116, 90 (1900). S. W. 1164 (1906). 3 Nairin v. Kentucky Heating ' People v. St. Louis & B. Electric Ry. Co., 122 111. App. 422 (1905). [484] ILLEGALITY INVOLVED [ 596 it cannot be called upon to render any sort of service which it is not empowered to perform. In a recent case a peti- tioner sought to have an illuminating gas company which it had been shown in other litigation had only authority to supply heating gas. 1 Said the court: "Obviously, un- less the defendant be shown to be exercising a public fran- chise in the vending of gas for lighting purposes, there is no more ground for injunction shown here than if he had sought one to restrain Peaslee, Gaulbert & Co. from refusing to vend oil to him. But the petition on its face shows that, as to the sale of gas for lighting purposes, the defendant was not only not exercising a public franchise, but was, by the ordinance which permitted it to do busi- ness in Louisville at all, expressly forbidden to sell gas for any other than heating purposes. The plaintiff is there- fore in the position of asking an injunction requiring the defendant to violate an ordinance of the city." 596. Situation at expiration of franchise. The situation at the expiration of the franchise has al- ready been discussed. In a late case 2 a water company was held justified in preparing to discontinue service, its franchise having expired. The doctrine of the court is thus summarized in the headnote: "On the expiration of a water company's franchise by limitation, the company's right to operate its plant and use the streets of the city therefor ceased, and with it the right of the city to demand service. But where, after the expiration of a water com- pany's franchise, it continued to operate its plant and ren- der service to the public, it was bound during such period to perform the obligations growing out of such assumed quasi-public service, to the extent that it was required to supply water adequate to its reasonable capacity and at 1 Nairin v. Kentucky Heating 2 Laighton v. Carthage, 175 Fed. t '<>., 27 Ky. Law Rep. 551, 86 S. W. 145 (1909). 076 (1900). [485] 597 ] PUBLIC SERVICE CORPORATIONS reasonable rates, and to that extent it was subject to the jurisdiction of the courts to enforce its implied under- taking." 1 Topic B. Contravention of Statutory Provisions 697. Statutes expressly controlling service. Wherever there is a statute directly applying to the service in question and expressly stating the conditions under which alone service can be given, there is of course a resulting excuse whenever a service is asked which comes within its prohibitions. A clear example may be drawn from the Federal statute where the number of passengers which a vessel may carry is regulated; under the provisions of this statute, the carrier would of course have an excuse for not accepting additional passengers who offer them- selves after the vessel has its complement. 2 So if it is illegal for a railroad to let its cars stand in the street it can refuse to permit goods to be loaded upon that part of a spur which is laid through a street without liability for discrimination in so refusing. 3 Where an explicit ordinance of the Board of Health forbids the transporta- tion of corpses except when accompanied by a person in charge having a transit permit containing specified in- formation a railroad may refuse transportation when all of this information is not filled in. 4 And where a revenue law directed that a stamp should be affixed to a telegram it was held that a telegraph company could refuse to ac- cept a telegram without a stamp. 5 1 To the same effect concerning a S. W. 969, 55 L. R. A. 601, 98 Am. gas company, see East Ohio Gas St. Rep. 447 (1901). Co. v. City of Akron, 81 Ohio St. 4 Lake Erie & W. R. R. Co. v. 33 (1909). James, 10 Ind. App. 550, 38 N. E. 2 See The Charles Nelson, 149 192 (1894). Fed. 846 (1906). 6 Western Union Telegraph Co. v. 'Louisville & N. R. R. Co. v. Waters, 139 Ala. 652, 36 So. 773 Pittsbui'g & K. Coal Co., Ill Ky. (1904). Rep. 960, 23 Ky. L. Rep. 1318, 64 [486 ] ILLEGALITY INVOLVED [ 598, 599 698. The criminal law generally. Those who conduct a public service are not bound by their general obligation to serve all to abet criminals. One of the leading cases upon this question is Thurston v. Union Pacific Railroad Company, 1 where the question raised was whether the defendant railroad had the right to exclude a notorious gambler from its train. Judge Dillon said it was entirely justified. "The railway company is bound, as a common carrier, when not over-crowded, to take all proper persons who may apply for transporta- tion over its line, on their complying with all reasonable rules of the company. But it is not bound to carry all persons at all times, or it might be utterly unable to pro- tect itself from ruin. It would not be obliged to carry one whose ostensible business might be to injure the line; one fleeing from justice; one going upon the train to as- sault a passenger, commit larceny or robbery, or for inter- fering with the proper regulations of the company, or for gambling in any form, or committing any crime; nor is it bound to carry persons who travel for the purpose of gambling. As gambling is a crime under the State laws, it is not even necessary for the company to have a rule against it. It is not bound to furnish facilities for carrying out an unlawful purpose. Necessary force may be used to prevent gamblers from entering trains, and if found on them engaged in gambling and refusing to desist, they may be forcibly expelled." 599. Sunday laws. Where the service in question is forbidden on Sunday, either by legislation applying generally, or by a specific statute dealing with the particular business, there is of course an excuse as a consequence. Thus a carrier may 1 4 Dillon (U. S.), 321, Fed. Gas. fused by a carrier, Coppin v. Braith- No. 14,019 (1877). waite, 8 Jurist (Eng.), 875 (1844). 2 So a pickpocket might be re- [487] 599] PUBLIC SERVICE CORPORATIONS refuse to carry on Sunday 1 and need not even be pre- pared to carry even when necessity or charity is involved, so long as any statutory prohibition which applies to him remains. 2 Even if there is no statutory prohibi- tion, the cases hold that it does not follow that the car- rier is bound to transact business on that day unless he chooses to do so. 3 It is generally agreed that a carrier must promptly complete transportation already begun on Sunday; 4 and by a similar principle he must accept goods from a connecting carrier on Sunday. The law on this point has been elaborately worked out in relation to tele- graphing. A telegraph company if open for business must receive on Sunday all messages which it may fairly be said it is a work of necessity or charity to handle. 5 But unless the circumstances have been explained to the op- erator so that the message bears on its face evidence of its special character, it may be refused as all commercial or 1 Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376 (1877). As to the constitu- tionality of forbidding service on Sunday see Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. 1086 (1896). 2 Horton v. Norwalk Tramway Co., 66 Conn. 272, 33 Atl. 914 (1895). 3 Merchants' Wharfboat Assoc. v. Wood, 64 Miss. 661, 2 So. 76 (1887). But see Carroll v. Staten I. R. R. Co., 58 N. Y. 126 (1874), ferry should run Sunday. And see as to holidays other than Sunday, Pennsylvania R. R. Co. v. Naive, 112 Tenn. 239, 79 S. W. 124, 64 L. R. A. 443 (1903); Guinn v. W. St. L. & Pac. Ry. Co., 20 Mo. App. 453 (1886). The same rule applies to tele- [488] graph companies. Western Union Telegraph Co. v. McLaurin, 70 Miss. 26, 13 So. 36 (1892). 4 Philadelphia, W. & B. R. R. Co. v. Lehman, 56 Md. 209 (1881). 6 Alabama. Western Union Tele- graph Co. v. Wilson, 93 Ala. 32, 9 So. 414, 30 Am. St. Rep. 23 (1890). Indiana. Western Union Tele- graph Co. v. Yopst, 118 Ind. 248, 20 N. E. 222, 3 L. R. A. 224 (1888). Mississippi. Western Union Telegraph Co. v. McLaurin, 70 Miss. 26, 13 So. 36 (1892). Missouri. Burnett v. Western Union Telegraph Co., 39 Mo. App. 599 (1890). South Carolina. Smith v. West- ern Union Telegraph Co., 72 S. C. 116, 51 S. E. 537 (1905). Texas. Gulf, C. & S. F. Ry. Co. v. Levy, 59 Tex. 542 (1883). ILLEGALITY INVOLVED [ 600 social messages may. 1 As to the other services, there is not as yet much authority. Some services it is generally agreed should be open to the public on all days; inns 2 and canals 3 are examples to which a citation may be given. And it is most obvious that in many other callings service should be given regardless of days, such is the imperative necessity. Gas and electric supply, water and sewerage service, are plain examples of services where modern necessity overbears the Sunday policy. 600. Liquor laws. Some difficult problems arise as to the duty of com- mon carriers to transport liquors into prohibition terri- tory. It is certain that if the delivery would involve the carrier hi an illegal transaction he may refuse to undertake it. In the leading case on this topic, State v. Goss 4 Mr. Justice Rowell said: " Although express companies are common carriers, and liable as such, yet the law neither requires nor permits them to do illegal acts; and they are not bound to transport and deliver intoxicating liquor or other commodities, if thereby they would commit an offence or incur a penalty. They can- not be allowed, any more than other people, knowingly and with impunity, to make themselves agents for others to break the laws of the State." This is especially clear where the local legislation goes so far as to forbid the transportation of intoxicating liquors. 5 The carrier may 1 Georgia. Western Union Tele- 3 McArthur v. Green Bay & Miss, graph Co. v. Hutcheson, 91 Ga. 252, Canal Co., 34 Wis. 139 (1874). 18 S. E. 297 (1892). 59 Vt. 266, 9 Atl. 829, 59 Am. Indiana. Western Union Tele- St. Rep. 706 (1886). graph Co. v. Henley, 23 Ind. 14, 54 5 The carrier must make out the N. E. 775 (1899). validity of such legislation at his Missouri. Burnett v. Western peril. Adams Exp. Co. v. Common- Union Telegraph Co., 39 Mo. App. wealth, 29 Ky. L. Rep. 224, 29 599 (1890). S. W. 932 (1906); Southern Express 2 Rex v. Ivens, 7 C. & P. 213 Co. v. Rose Co., 124 Ga. 581, 53 S. (1835). E. 185, 5 L. R. A. (N. S.) 619 (1905). [489] 601 ] PUBLIC SERVICE CORPORATIONS then, of course, refuse to accept them; l and, more- over, as one case 2 holds, the carrier has discretionary power to determine whether the liquors offered are in- toxicating in the sense of the law. But while the carrier is not liable as a violator of such statutes if he had no cause to know that he was transporting liquors, 3 he must act in good faith upon reasonable suspicions. 4 If the final selling only is illegal the carrier probably cannot refuse to bring liquors on the ground of the possibility that they might be resold illegally. 5 Thus, where the sale of liquor in original packages was lawful in South Carolina, though it was forbidden in any other form, the carrier could not refuse to receive liquor in the orig- inal packages for delivery in South Carolina. 6 601. Game laws. Where it is made illegal by statute to transport game or fish, a carrier may refuse to accept such game or fish, if acceptance would promote the violation of the statute or impede its administration. But it will not itself be guilty of violating the act if it has in its possession such game or fish which it has received in packages in regular course without reasonable grounds of suspicion. 7 If in 1 State legislation of this sort may Co., 109 Va. 22, 63 S. E. 6 be unconstitutional. American Exp. (1908). Co. v. Kentucky, 206 U. S. 139, 51 s United States. Crescent Liquor L. ed. 993, 27 Sup. Ct. 609 (1907); Co. v. Platt, 148 Fed. 894 (1906). 8. c., sub nom. American Exp. Co. Georgia. Southern Exp. Co. v. v. Commonwealth, reversing 30 State, 107 Ga. 670, 33 S. E. 637, 73 Ky. L. Rep. 207, 97 S. W. 807 Am. St. Rep. 146 (1899); Southern (1906). Exp. Co. v. Rose Co., 124 Ga. 581, 2 Milwaukee M. E. Co. v. Chi- 53 S. E. 185, 5 L. R. A. (N. S.) 619 cago, R. I. & P. Ry. Co., 73 la. 98, (1905). 34 N. W. 761 (1887). Blumenthal v. Southern Ry. 1 Adams Exp. Co. v. Common- Co., 84 Fed. 920 (1898). wealth, 33 Ky. L. Rep. 967, 112 S. 7 State v. Swett, 87 Me. 99, 32 W. 577 (1908). Atl. 806, 29 L. R. A. 714, 47 Am. 4 Brewing Co. v. Southern Exp. St. Rep. 306 (1895). [490] ILLEGALITY INVOLVED [ 602 obedience to orders of game inspectors or fish wardens it delivers up such game or fish for seizure, it will have a sufficient excuse; but no protection apparently if these officers acted without authority of law. 1 602. Health regulations. Quarantine regulations duly established by law will excuse a carrier from accepting passengers destined be- yond the quarantine barriers which are set up against all passengers coming from a certain district to a certain district, 2 or any passengers, association with whom would detain other passengers; 3 and the same is true of freight against which quarantine is legally declared. 4 However, a carrier who knows of the quarantine and accepts business without disclosing it at the time of acceptance, will be liable to his patrons 5 unless the quarantine is so notorious that he may assume that it is known. 6 But it is usually provided that under certain conditions certif- icates may be obtained, in which case they should be duly notified. 7 Similar in character are those regula- tions providing that water shall not be turned on until an officer of the Board of Health is satisfied as to the plumbing arrangements. 8 And so if a Board of Health 1 Merriman v. Great Northern R. R. Co., 77 Miss. 789, 28 So. 957 Exp. Co., 63 Minn. 543, 65 N. W. (1900). 1080 (1896). 4 Fort Worth & D. C. Ry. Co. v. 2 A patron cannot maintain an ac- Masterson, 95 Tex. 262, 66 S. W. tion against a railroad company on 833 (1902). the ground that he was wrongfully 6 Hasseltine v. Southern Ry. Co., expelled from its train, which he 75 S. C. 141, 55 S. E. 142 (1906). left, in obedience to the order of a 6 St. Clair v. Kansas City, M. & quarantine or health officer, before B. R. R. Co., 76 Miss. 473, 24 So. reaching his destination, the con- 904, 71 Am. St. Rep. 534 (1899). ductor pointing him out. Baldwin 7 St. Louis & S. F. Ry. Co. v. v. Seaboard Air Line Ry. Co., 58 S. Roane, 93 Miss. 7, 46 So. 711 E. 35, 128 Ga. 567 (1907). (1908) 3 St. Clair v. Kansas City M. & B. 8 But see Johnson v. Belmar, 58 N. J. Eq. 354, 44 Atl. 166 (1899). [491] GOL, J PUBLIC SERVICE CORPORATIONS should close an inn, the proprietor would doubtless have an excuse for not entertaining guests. 1 603. Gaming statutes. Gaming laws were involved in a notable case lately. 2 The New York police department had ordered a telephone instrument removed from certain premises, on the ground that pools were being sold there; and the telephone com- pany had thereupon refused to reinstate the telephone in these premises for a new applicant without assurance as to his intentions accompanied by references as to his character. This attitude the court held justifiable: ''Under the circumstances, this does not seem to us to have been an unreasonable requirement. The New York Telephone Company had been informed by the police department that the premises had been used as a pool room. It was also aware that a telephone which it had previously installed therein had been removed therefrom by the police. The officers of the company might not unreasonably apprehend that they would render themselves liable for aiding and abetting a viola- tion of the law if they furnished further telephone serv- ice to the premises in view of this information. 3 It 1 See Gilbert v. Hoffman, 66 fusing to give its service to "bucket Iowa, 205 (1885). shops" maintained in defiance of 2 Matter of Cullen, 106 N. Y. express statutes. See: App. Div. 250, 94 N. Y. Supp. 290 United States Board of Trade v. (1905). In the leading case of Christie Grain & Stock Co., 198 Thurston v. Union Pacific R. R. U. S. 236, 49 L. ed. 1031, 25 Sup. Co., 4 Dillon (U. S.), 321, Fed, Gas. Ct. 637 (1905); Bryant v. Western No. 14,019 (1877), it was held that Union Telegraph Co., 17 Fed. 825 one reason why the notorious (1883) ; Sullivan v. Postal Telegraph gambler could be refused passage Cable Co., 123 Fed. 411, 61 C. C. A. was that the company might make 1 (1903). itself liable for maintaining prem- Illinois. Central S. & G. Exch. ises for gambling. v. Board of Trade, 196 111. 396, 63 3 There are numerous cases ex- N. E. 740 (1902). casing a telegraph company for re- Indiana. Western Union Tele- [492] ILLEGALITY INVOLVED [ 604, 605 was quite proper, therefore, for them to request the assurance from the appellant which the contracting agent suggested, and for them, also, to require the ap- pellant to furnish a reference as to his character." Topic C. Service Promoting Illegal Transaction 604. Participation in the illegality. Of course one engaged in public employment should refuse to take any action which would make him liable for abetting illegality. Thus a carrier of passengers could refuse to take upon the train one fleeing from justice, one going upon the train to assault a passenger, or to commit larceny. 1 In an analogous case it was assumed that the carrier might refuse to take a rebel officer going to the front to join his command. 2 But, if the carrier does not know of the illegal nature of the re- quest he is not legally liable to the owner for taking goods according to his prima facie duty. 3 However, a railroad company which negligently permitted slaves to be trans- ported without the authority of their owner, was held liable for their value by reason of being concerned in their escape. 4 605. Implication in illegality. Upon similar principles a telegraph company should graph Co. v. State, 165 Ind. 492, 76 Pennsylvania. Sterrett v. Phila- N. E. 100, 3 L. R. A. (N. S.) 153 delphia Local Telegraph Co., 18 (1905). Wk. N. Gas. 77 (1886). Kentucky. Smith v. Western l See the dicta in Thurston v. Union Telegraph Co., 84 Ky. 664, Union Pac. Ry. Co., 4 Dill. (U. S.) 2 S. W. 483 (1887). But see Louis- 321 (1877). ville v. Wehmhoff, 116 Ky. 812, 79 2 Turner v. North Carolina R. R. S. W. 201, 25 Ky. L. Rep. 1924 Co., 63 N. C. 522 (1869). (1903). 3 Jackson v. Railway Co., 87 Mo. Ohio. Cain v. Western Union 422, 56 Am. Rep. 460 (1885). Telegraph Co., 18 Cinn. Wk. Bui. 4 Louisville & N. R. R. Co. v. 267 (1887). Young, 1 Bush (Ky.), 401 (1866). [493] 606 ] PUBLIC SERVICE CORPORATIONS refuse to transmit messages which would implicate it in illegality. While it is true there can be no discrim- ination where the business is lawful, no one can be com- pelled to aid unlawful undertakings in any way whatever. 1 "A telegraph company should refuse to send libelous 2 or obscene 3 messages, or those which clearly indicate the furtherance of an illegal act, or the perpetration of some crime. But recently in New York the telephone and telegraph instruments were taken out of 'pool rooms' which were used for the purpose of selling bets on horse races." 4 Thus a telegraph company will be liable for transmitting a forged message knowing it to be such; it is, therefore, its undoubted right to refuse unauthorized messages 5 since it might thereby become involved in the perpetration of frauds. 6 606. Service aiding immoral business. There are several cases involving prostitution which test these principles, some of which have been mentioned. 7 In none of them is the general problem so well worked out as in a recent case 8 where a telephone company 1 Quoted from Gray v. Western 7 United States. Brown v. Mem- Union Telegraph Co., 87 Ga. 350, phis & C. Ry. Co., 4 Fed. 37 (1880). 13 S. E. 562 (1891). Texas. Pullman Palace Car Co. 2 See Dominion Telegraph Co. v. v. Bales, 80 Tex. 211, 15 S. W. 785 Silver, 10 Can. Sup. Ct. 238 (1881). (1891). 3 See Archambault v. Great North Unless these women notoriously Western Telegraph Co., 14 Quebec, habitually misconduct themselves. 8 (1886). Iowa. Beeson v. Chicago, R. I. < See Matter of Cullen, 106 N. Y. & Pac. Ry. Co., 62 la. 173, 17 N. W. App. Div. 250, 94 N. Y. Supp. 290 448 (1883). (1905), and other cases cited in Washington. Stevenson v. West 603, supra. Seattle Land Co., 22 Wash. 84, 60 5 Western Union Telegraph Co. Pac. 51 (1900). v. Totten, 141 Fed. 533, 72 C. C. A. Godwin v. Carolina Tel. & Tel. 591 (1905). Co., 136 N. C. 258, 48 S. E. 636 6 Bank of Havelock v. Western (1904). Union Telegraph Co., 141 Fed. 522, See, however, Western Union 72 C. C. A. 580 (1905). Telegraph Co. v. Ferguson, 57 Ind. [494] ILLEGALITY INVOLVED [ 607 : .fused to give service to a bawdyhouse upon general .inciples fully discussed. The opinion of Chief Justice Clark is, therefore, well worth the quotations which fol- low. "It is argued that a common carrier would not be authorized to refuse to convey the plaintiff because she keeps a bawdyhouse. Nor is the defendant refusing her a telephone on that ground, but because she wishes to place the telephone in a bawdyhouse. A common car- rier could not be compelled to haul a car used for such purpose. If the plaintiff wished to have the phone placed in some other house used by her, or even in a house where she resided, but not kept as a bawdyhouse, she would not be debarred because she kept another house for such unlawful and disreputable purpose. It is not her character, but the character of the business at the house where it is sought to have the telephone placed, which required the court to refuse the mandamus. In like manner, if a common carrier knew that passage was sought by persons who are traveling for the execu- tion of an indictable offense, or a telegraph company that a message was tendered for a like purpose, both would be justified in refusing; and certainly when the plaintiff admits that she is carrying on a criminal busi- ness in the house where she seeks to have the telephone placed, the court will not, by its mandamus, require that facilities of a public nature be furnished to a house used for that business. For like reason a mandamus will not lie to compel a water company to furnish water, or a light company to supply light, to a house used for carrying on an illegal business. The courts will enjoin or abate, not aid, a public nuisance." 607. Service indispensable to illegal business. What surely may be refused upon general principles 495, in which it was held that a might be refused but not an am- message sending for prostitutes biguous one upon mere suspicion. [495] 607 ] PUBLIC SERVICE CORPORATIONS is a service which is necessary to the conduct of an illegal business. It would seem plain, for example, that a tele- graph company is not obliged to furnish a service inti- mately connected with illegal operations. Where the running of a bucket shop is held an illegal business, it is therefore held in most cases that the telegraph company is not bound to furnish it with market reports, 1 either by virtue of its duties as a public servant to serve all customers without discrimination, or even by virtue of any contract which it may have entered into with such a subscriber as this. And so obedience to the regulation of an exchange designed to prevent such distribution of -its quotations is held reasonable. "It is simply a restraint on the acquisition for illegal purposes of the fruits of the plaintiff's work," as the United States Supreme Court recently said. 2 Where the business is simply against public policy, the question is more difficult. The cases are somewhat divided as to whether a tele- graph company can refuse to handle messages in relation to the sale of options or futures in jurisdictions where the law simply refuses to enforce such contracts as contra bonos mores. There are cases 3 which imply that the company is assuming too much in refusing to transmit such message, but by the weight of authority it is justi- 1 United Slates. Bryant v. West- Union Telegraph Co., 84 Ky. 664, ern Union Telegraph Co., 17 Fed. 2 S. W. 487 (1887). 825 (1883); Sullivan v. Postal Tele- Ohio. Cain v. Western Union graph Cable Co., 123 Fed. 411, 61 Telegraph Co., 18 Cinn. Wk. Bull. C. C. A. 1 (1903). 267 (1887). Illinois. Central S. & G. Exch. Pennsylvania. Sterrett v. Phila- v. Board of Trade, 196 111. 396, 63 delphia Local Telegraph Co., 18 N. E. 740 (1902). Wk. N. Cas. 77 (1886). Indiana. Western Union Tele- 2 United States. Board of Trade graph Co. v. State, 165 Ind. 492, 76 v. Christie Grain & Stock Co., 198 N. E. 100, 3 L. R. A. (N. S.) 153 U. S. 236, 49 L. ed. 1031, 25 Sup. (1905). Ct. 637 (1905). Kentucky. Smith v. Western 3 Gray v. Western Union Tele- [496] ILLEGALITY INVOLTED [ 608 fied. 1 These last cases seem to the writer fundamentally right. 608. Reasonable rejection usually justified. If as things appear to the company there is real danger that it will be involved in an illegal transaction if it renders the service asked, it would seem that it should be justified in refusing to perform the service asked, although in fact there is no illegality on foot. The most striking case of this sort was one against a sleeping car company. 2 Husband and wife had dealt separately with the company, procuring different berths, and late at night the wife went to the husband's berth clandestinely. It was finally held that the company was justified in refusing to permit them to occupy the berth together that night. "It may be admitted," said the upper court, "that there was nothing improper in the conduct of the plaintiff and his wife, when their relationship to each other is considered. And yet it cannot be affirmed that their actions were not under the circumstances calculated to excite the suspicion and arouse the vigilance of defendant's servants." In what is probably the lead- ing case 3 on this point where the exclusion of a notorious graph Co., 87 Ga. 350, 13 S. E. 562, 290 (1905), holding that a telegraph 14 L. R. A. 95, 27 Am. St. Rep. 259 company may insist upon reason- (1891). And see Western Union able assurances that its news service Telegraph Co. v. Hill (Tex. Civ. is not wanted for use in an illegal App.), 65 S. W. 1123 (1902). business, by the successor of a per- 1 Gist v. Telegraph Co., 45 S. C. son who had run a bucket shop at 344, 23 S. E. 143 (1895). And see these premises. Western Union Telegraph Co. v. So a pickpocket may be refused Harper, 15 Tex. Civ. App. 37, 39 transportation as is said in a case S. W. 599 (1896). which holds that if he is accepted 2 Pullman Palace Car Co. v. he cannot afterwards be ejected. Bales, 80 Tex. 211, 14 S. W. 855, 15 Coppin v. Braithwaite, 8 Jurist, 875 S. W. 785 (1891). (1844). Sed qtuere as to the actual See also Matter of Cullen, 106 decision. N. Y. App. Div. 250, 94 N. Y. Supp. 3 Thurston v. Union Pac. R. R. 32 [ 497 1 609, 610 ] PUBLIC SERVICE CORPORATIONS gambler from a passenger train was justified the general principle was thus stated by the court. "Whether the plaintiff was going upon the train for gambling purposes, or whether, from his previous course, the defendant might reasonably infer that such was his purpose, is a question of fact for the jury." 609. Cases holding that rejection is at peril. There are, however, cases which hold that refusal is always made at peril of mistake as to the true conditions; for it is said unequivocally that proper applicants can never be refused. Thus in an early telegraph case l where it was admitted that the telegraph company had ground to believe that the message refused "Send me four girls on first train to Francesville to tend fair,"- was addressed by a keeper of prostitutes to a procurer of such women, the court held that the telegraph com- pany could not refuse the message upon mere suspicion. And in another telegraph case 2 it was held that the com- pany could not justify itself for its default in handling the message in question on the ground that it believed that the message was being sent to direct an illegal operation in stocks. It is submitted that both of these decisions are erroneous. Topic D. Proximity to the Illegality 610. Service promoting the illegality. In the cases which have been discussed in the preced- ing paragraphs the service asked might fairly be said to promote the illegality directly. In such cases the policy justifying refusal is sufficiently plain. But when the Co., 4 Dillon (U. S.), 321, Fed. Gas. 2 Gray v. Western Union Tele- No. 14,019 (1877). graph Co., 87 Ga. 350, 13 S. E. 562, 1 Western Union Telegraph Co. v. 14 L. R. A. 95 (1891). Ferguson, 57 Ind. 495 (1877). [498] ILLEGALITY INVOLVED [ 611 illegality is far remote from the service asked it was assumed that the request cannot be refused. Thus, to illustrate this distinction, innkeepers can refuse to harbor an immoral woman who is entertaining her com- panions in her rooms. 1 But a railroad cannot refuse to transport a prostitute to a new field. 2 To make another distinction, it has been held that a carrier could refuse to take money intended for use in the contraband trade 3 while, as has been said, it might be obliged to transport a bundle of stationery intended by the consignee for use in his business of dealing in futures. 4 This last point is interesting as it shows another aspect of this principle. When the business which will be aided is illegal in a high degree it taints transactions much removed from it, but where the business is simply against public policy the taint does not even touch collateral transactions. For example, a carrier cannot refuse to accept goods for transportation even if it is known that the owner intends to dispose of them on Sunday; 5 but it would seem that a carrier might refuse to bring firearms into a district where mob violence prevailed. 6 611. Illegality prior to service. Whatever illegality there may have been, previous to the time when the service is requested, should not affect the right to have present service if the illegal conduct has ceased to operate. Thus where a man who had brought a prostitute to an inn remained after the woman 1 See Curtis v. Murphy, 63 Wis. graph Co., 87 Ga. 350, 13 S. E. 562, 4, 22 N. W. 825, 53 Am. Rep. 242 14 L. R. A. 95 (1891). (1885). 6 Waters v. Railroad Co., 110 N. 2 Brown v. Memphis & C. R. Co., C. 338, 14 S. E. 802, 16 L. R. A. 834 4 Fed. 37 (1880). (1892). J Cantu v. Bennett, 39 Tex. 303 6 See, however, Railroad Co. v. (1873). O'Donnell, 49 Ohio St. 489, 32 N. E. 4 Gray v. Western Union Tele- 476 (1892). [499] 612 ] PUBLIC SERVICE CORPORATIONS had left the inn, and lost his goods, it was held that he might recover from the innkeeper. Even assuming that such misconduct would have barred him while the misconduct continued, the loss here happened after his misconduct ceased, and his previous immorality could not affect his subsequent status as a guest. 1 On the same principle, in a case where it appeared that the defendant was received at the inn on Sunday, and that to reach the inn on that day he had broken the statute which forbade traveling on Sunday, he was held to be a guest nevertheless, since the relationship was estab- lished by acts not necessarily connected with traveling on Sunday. 2 That the guest had been long a prize fighter, most of his battles being in violation of law, it would seem should not justify refusing to entertain him. 3 Even a man with a jail record has a right to travel. 4 612. Illegality subsequent to service. To go to the other extreme it makes no difference to the right to service that illegal conduct may happen after the service is complete, provided that such conduct will be really independent of the service asked. Thus a railroad cannot excuse itself for failure to transport liquor by showing that the consignee may probably resell it in violation of the prohibition law. 5 It is no ex- cuse that a passenger may get into trouble upon her arrival at her destination, it being usual for her to get intoxicated there. 6 This is not so plain upon the authori- 1 Lucia v. Omel, 46 N. Y. App. ton, 8 C. & P. 654 (1837), going too Div. 200 (1899), affirmed in 53 N. far in favor of the applicant. Y. App. Div. 641 (1900). "Southern Express Co. v. State, 2 Cox v. Cook, 14 Allen (Mass.) 107 Ga. 670, 33 S. E. 637, 46 L. R. 165 (1867). A. 417, 73 Am. St. Rep. 146 3 But see Nelson v. Boldt, 180 (1899). Fed. 779 (1910), going too far against ' Stevenson v. West Seattle Land the applicant. & Imp. Co., 22 Wash. 84, 60 Pac. 51 4 And see Prendergast v. Comp- (1900). [500] ILLEGALITY INVOLVED [ 613 ties as it seems it ought to be. In one early leading case it seems to have been held that a competitor might be refused transportation to a point where he intended to take return passage for the purpose of soliciting business in violation of proper regulations. 1 In a later case 2 much cited, it was said that a passenger who had been banished by the vigilance committee might be refused transportation back to San Francisco where a violent fate probably awaited him. But there are additional elements in each of these cases. 613. Public policy the explanation. It will have been noted throughout this chapter, that this excuse which one engaged in public service has by reason of illegality, is not confined to those obvious cases where rendering the service would subject the proprietor to legal proceedings as a participant in the illegality. The defense is plainly wider, it justifies the proprietor in refusing to render a service which would promote illegality although he might not be liable person- ally to legal proceedings, if he should render the service in question. Considered broadly, then, the defense is rather the general one of public policy than a particular one of illegality. Upon the whole it would seem to be clear that the law relating to the various matters dis- cussed in this chapter is being worked out very well, if one may judge it by the closest analogy in established law. The true extent of public duty depends in last analysis upon public policy just as does the real extent of contractual obligation. Whatever policy is strong enough to excuse one from the performance of a con- tract obligation ought surely to justify one in refusing to perform this common-law obligation. 1 Jencks v. Coleman, 2 Sumn. 221 S.) 605, discussed 18 L. ed. 447 (1835). (1866). 2 Pearson v. Duane, 4 Wall. (U. [501] CHAPTER XVIII REJECTION FOR PERSONAL DISQUALIFICATION 620. Right of protection the basis of the defense. Topic A. Self-Protection 621. Dangerous service. 622. Risk of possible liability. 623. Fraudulent customers. 624. Abuse of privileges. 625. Interference with the service. 626. Persons bringing dangerous things. Topic B. Protection of Others Served 627. Dangerous persons. 628. Suspected criminals. 629. Violent passengers. 630. Disorderly guests. 631. Persons having contagious disease. 632. Intoxicated persons 633. Profane patrons. 634. Ejection governed by same general principles as rejection. Topic C. Applicant Under Disability 635. Disabled persons in general. 636. Persons subject to an incapacity. 637. Blind persons. 638. Sick persons. 639. Insane persons. 640. Arrested persons. Topic D. Basis for Rejection 641. Rejection for present misconduct. 642. Rejection for past misconduct. 643. Rejection upon probable cause. 644. Ejection before actual misconduct. 645. Whether refusal should be at peril. 646. Rejection for misconduct of companion. [502] PERSONAL DISQUALIFICATION [ 620, 621 620. Right of protection the basis of the defense. For the protection of others being served as well as for the protection of its own interests, an applicant for service who will endanger person or property may be re- jected at the outset, or ejected afterwards. Thus one who is attacking another passenger may be ejected by the carrier, 1 principally, of course, for the protection of the others then receiving service. But even if no guests should happen to be present, for his own protection the innkeeper may refuse to take in one who has attempted to break down his door. 2 This duty and right to pro- tect combined calls upon the carrier or the innkeeper to use due diligence and good faith. If, therefore, they act reasonably and honestly it would seem that they make out their justification in all cases. Topic A . Self-Protection 621. Dangerous service. It requires no argument to establish the justification of self-protection. A carrier of goods may refuse freight which would injure his vehicle, or his employes. Thus he may refuse high explosives, 3 at least as ordinary freight, or tainting liquids, 4 particularly when contained in leaking barrels, to cite two examples. Another way of explaining his right to refuse goods under such cir- cumstances would be to say that if he took such freight with knowledge, or even with reasonable suspicion, and injuries subsequently followed, to other persons or other 1 Louisville & N. R. R. Co. v. See generally chapter XXVII. Logan, 88 Ky. 232, 10 S. W. 655, 21 J Nitroglycerine Case, 15 Wall. Am. St. Rep. 332, 3 L. R. A. 80 (U. S.) 524, 21 L. ed. 206 (1872). (1889). See Boston & Albany R. R. Co. See generally this chapter. v. Shanly, 107 Mass. 568 (1871). 2 Goodenow v. Travis, 3 Johns. 4 The Montana, 22 Fed. 715 (N. Y.) 427 (1808). (1884). [503] 622, 623 ] PUBLIC SERVICE CORPORATIONS property, he might be held liable, and, therefore, he might well refuse to put himself in a position where such liability might be attributed to him. It may be added that a carrier is not necessarily under liability when he does take such goods, unless he is blameworthy, 1 or should have his suspicions as to what the packages contain. 2 622. Risk of possible liability. Similarly an electric company could refuse to make connections with a building improperly wired, upon the ground of their possible liability for explosion or fire. 3 Indeed, it was recently held, 4 that a gas company could refuse to supply a house improperly piped by reason of the danger that if an explosion should occur they might be charged with liability. This is perhaps the best basis for those cases previously discussed where it was held that a service company might make installation according to certain rules or equipment within certain specifications, conditions precedent. Such regulation may thus be de- fended. To recall one example, there is the case where a water company was allowed to refuse to supply a house unless a certificate from a reputable plumber were pro- duced. 5 And to cite another instance, a gas company was held entitled to regulate the installation of governors. 6 623. Fraudulent customers. For its own protection also, one engaged in public em- 1 See Farrant v. Barnes, 11 C. B. Co., 108 La. 67, 32 So. Rep. 179 (N. S.) 553 (1856). (1902). 2 But see Norfolk & Western R. But see Franke v. Paducah Water R. Co. v. Irvine, 85 Va. 217, 7 S. E. Supply Co., 88 Ky. 467, 11 S. W. 233, 1 L. R. A. 110 (1888). 432, 4 L. R. A. 265 (1889). 3 Benson v. American Illuminat- 6 Foster v. Gas Works of Phila- ingCo., 102 N.Y.Supp. 206(1907). delphia, 12 Phila. 511 (1878). 4 Bastain v. Keystone Gas Co., 50 See also Blondell v. Consolidated N. Y. Supp. 537, 27 App. Div. 584 Gas Co., 89 Md. 732, 43 Atl. 817 (1898). (1899). 6 State v. New Orleans Gas Light [504] PERSONAL DISQUALIFICATION 624 ployment may refuse to serve those who design to defraud him, or who are actually engaged in defrauding him. Thus a carrier of passengers may eject those attempting to beat their way; 1 and a carrier of freight does not owe his special duties to those who have concealed valuable goods bearing a higher rate of freight in deceptive pack- ages. 2 An innkeeper likewise owes no duty, as such, to those who are imposing upon him. 3 One who is engaged in a scheme of defrauding a supply company as by tapping the mains, or by tampering with the meter, cannot com- plain if his service is cut off. 4 624. Abuse of privileges. A customer who abuses his privileges in getting service may be refused further service on that ground. A passen- 1 See among the many cases to this effect: Illinois. Chicago, B. & Q. R. R. Co. v. Mehlsack, 131 111. 61, 22 N. E. 812, 19 Am. St. Rep. 17 (1889). Iowa. Way v. Chicago, R. I. & Pac. Ry. Co., 64 la. 48, 19 N. W. 828, 52 Am. Rep. 431 (1884). Kansas. Union Pac. Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475 (1871). Maryland. State v. Baltimore & O. R. R. Co., 24 Md. 84, 87 Am. Dec. 600 (1865). Massachusetts. Planz v. Boston & Albany R. R. Co., 157 Mass. 377, 32 N. E. 356, 17 L. R. A. 835 (1892). Missouri. Muehlhausen v. St. Louis R. R. Co., 91 Mo. 332, 2 S. W. 315 (1886). Montana. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450 (1878). Neio York. Barry v. Union Ry., 105 N. Y. App. Div. 520, 94 N. Y. Supp. 449 (1905). England. Great Northern Ry. Co. v. Harrison, 10 Exch. Rep. 376 (1854). 2 See among the many cases to this effect: Georgia. Southern Express Co. v. Everett, 37 Ga. 688 (1868). Illinois. Chicago & A. R. R. Co. v. Thompson, 19 111. 578 (1858); Chicago & A. R. R. Co. v. Shea, 66 111. 471 (1873). New York. Warner v. Western Trans. Co., 5 Robt. 490 (1868). England. Batson v. Donovan, 4 B. & Aid. 21 (1820); Gibbon v. Paynton, 4 Burr. 2298 (1769); Bradley v. Waterhouse, 3 C. & P. 318 (182S). 3 Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242 (1885). 4 Reasonable suspicion that the consumer is taking water surrepti- tiously is sufficient ground for tak- ing action. Krumenaker v. Dough- erty, 77 N. Y. Supp. 467, 74 App. Div. 452 (1902). [505] 625 ] PUBLIC SERVICE CORPORATIONS ger in a sleeping car is responsible for decent care of his berth. 1 Where water is supplied upon tap basis, a water company may refuse to continue serving one who wantonly wastes water. 2 One who permits unauthorized access to his telephone in contravention of the basis upon which service is rendered, may be refused further service, 3 And one who resells his ticker quotations may be cut off in- stantly. 4 625. Interference with the service. It is obvious that in general those who interfere with the service as arranged may be refused service. Thus as a telephone company undertakes to provide all the apparatus necessary for its service, it may positively for- bid any interference with the instruments. As one case held 5 it can prevent a subscriber from attaching to his instrument his own wires for an extension service in some other part of the building. It is justification enough for this regulation that the company may protect its circuit from possible interference. Again, a telephone company may cut out a subscriber who persists in breaking in upon a party line when others are using it. 6 The proper main- tenance of the whole service demands that those who thus interrupt others who are using the wires shall be summa- rily dealt with. 1 Nevin v. Pullman Palace Car graph Co., 38 Hun (N. Y.), 338 Co., 106 111. 222, 46 Am. Rep. 688 (1885). (1883). And see National Tel. News Co. v. 2 Harbison v. Knoxville Water Western Union Telegraph Co., 119 Co. (Tenn.), 53 S. W. 993 (1899). Fed. 294, 55 C. C. A. 198 (1902). Robbins v. Bangor Ry. & Elec. 6 Gardner v. Providence Tele- Co., 100 Me. 496, 62 Atl. 136 (1905), phone Co., 23 R. I. 312, 50 Atl. 1014 accord. (1901). * See People v. Hudson River * Huffman v. Marcy Mutual Telephone Co., 19 Abb. N. C. 466 Telephone Co., 143 la. 590, 121 N. (1887). W. 1033, 23 L. R. A. (N. S.) 1010 4 Shepard v. Gold & S. & Tele- (1909). [506] PERSONAL DISQUALIFICATION [ 626, 627 626. Persons bringing dangerous things. A carrier is justified in excluding from the vehicle any person who insists upon bringing into it articles that are dangerous to the carrier, or obnoxious to other passengers. Thus, those may be refused entrance to a boat who have with them guns with bayonets. 1 One who has valises which will block the aisles may be ordered from a car. 2 And one may be forbidden entrance who is trying to bring cumbrous parcels into a street car. 3 For the same reason a rule is proper and legal which excludes from a passenger car a person accompanied by a dog. 4 And plainly a pas- senger cannot insist upon entering a street car accompanied by a goat. 5 Upon like principles an innkeeper may re- fuse to accept a guest bringing a large dog although he had him on a leash. 6 A street car conductor may order a workman with heavy tools to go upon the platform. 7 But a street car company must permit a passenger to carry in the car a cake of ice securely wrapped. 8 Topic B. Protection of Others Served 627. Dangerous persons. The right of a common carrier of passengers or of a 1 Flint v. Transportation Co., 6 B Daniel v. North Jersey St. Ry. Blatch. 158, Fed. Gas. No. 4873, 34 Co., 64 N. J. Law, 603, 46 Atl. 625 Conn. 554, (1868). (1900). 2 Chicago & A. R. R. Co. v. 6 Regina v. Rymer, 2 Q. B. D. 136 Buckmaster, 74 111. App. 575 (1897). (1877). 3 Dowd v. Albany Ry. Co., 47 7 See Mittleman v. Philadelphia N. Y. App. Div. 202, 62 N. Y. R. T. Co., 70 Atl. 828, 18 L. R. A. Supp. 179 (1900). See also Ray v. (N. S.) 503, 221 Pa. 485 (1908). United Traction Co., 96 N. Y. App. But the train men cannot throw Div. 48, 89 N.Y. Supp. 49(1904). his tools off the cars. Smith v. 4 Gregory v. Chicago & N. W. Atchison, T. & S. F. Ry. Co., 112 Ry. Co., 100 Iowa, 345, 69 N. W. Mo. App. 85, 97 S. W. 1007 532 (1896). See further, Wescott v. (1907). Seattle, R. & S. Ry. Co., 84 Pac. 8 Mclntosh v. Augusta & A. Ry. 588, 41 Wash. 618, 4 L. R. A. (N. Co. (S. C)., 69 S. E. 159 (1910). S.) 947 (1906.) See also Runyan v. Central R. R. [507] 628 ] PUBLIC SERVICE CORPORATIONS public innkeeper to exclude or reject applicants who openly threaten violence to the other patrons then being served is perhaps too plain to require explanation. This explana- tion is plainly to be seen in the law making the proprietors of those services in which the patrons are taken in charge liable for not exercising due care in protecting their pa- trons not merely from actual assault and fear of injury, but from insult and shock. So it is easy to understand why the law not only justifies the proprietors of such services in refusing to serve such persons as are openly threatening injury to others being served, but in refusing to accept such persons as it is reasonable to suppose may do injury to others. If they are liable for not taking all reasonable steps to protect their patrons, they should certainly have the right not merely to reject those who it is reasonable to suppose might injure their patrons, but also to eject those already accepted who it is reason- able to suppose may injure their patrons. As Judge Dillon said in one of the leading cases l on this branch of the law of carriers, a railroad is not bound to receive on its cars or to permit to remain upon its cars one going upon a train or staying upon it to assault a passenger, commit larceny or robbery, or perpetrating any other crime. 2 628. Suspected criminals. The right of an innkeeper to exclude those who are actually dangerous to the others who are being served at the same time may seem to be obvious. The plainest case of this excuse is the rejection of evil-disposed persons who might prey upon the persons whom the proprietor Co., 65 N. J. L. 228, 47 Atl. 422 2 So a pickpocket may be rejected (1900). as is held in a case which (wrongly 1 Thurston v. Union Pacific Ry. as it seems) holds that he may not Co., 4 Dillon (U. S.), 321, Fed. Gas. be ejected. Coppin v. Braithwaite, No. 14,019 (1877). 8 Jurist (Eng.), 875 (1844). [508] PERSONAL DISQUALIFICATION [ 629 is bound to protect. As Judge Parsons said in one of the earliest American cases discussing the right of the inn- keeper 1 to exclude dangerous persons: " Where is the distinction to be drawn? If one may enter the inn and tarry there, all may. The pickpocket, the burglar, gam- bler and horse thief, can come and take his seat by the side of the most virtuous man in the community in the gentleman's common parlor at the hotel, and the proprie- tor cannot eject him (no matter how annoying it may be to the guest) without being indicted for an assault and battery. Nor would the line of distinction be drawn here the filthy and unclean would claim the same right. It is only necessary to state such a proposition to show its absurdity." 2 629. Violent passengers. That violent persons may be excluded from a common service would seem to be obvious. This is particularly plain when the person in question is actually threatening an assault. In one of the leading cases of this sort, 3 where the passenger ejected drew a knife the Court of Ap- peals of Kentucky held the railroad justified in putting him off, giving a full review of the various points usually involved in such cases. " The law makes it the duty of a railroad company to use all reasonable care in operating trains for both the safety and protection from molestation and insult of passengers; otherwise elderly and infirm persons and females, who, upon the faith of such protection, frequently travel unattended, would have no security against turbulent, bad men. And as 1 Commonwealth v. Mitchel, 2 3 Louisville & N. Ry. Co. v. Parsons (Pa.), 431 (1850). Logan, 88 Ky. 232, 10 S. W. 655, 21 2 The same points are made in a Am. St. Rep. 332, 3 L. R. A. 80 still earlier case as to the duties of (1889). innkeepers. Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209 (1837). [509] 630, 631 ] PUBLIC SERVICE CORPORATIONS it is obvious a train must be run with skill and system in order to assure safety and comfort, the conduct of any- one who interferes with the management, or without just cause attempts to do bodily injury to, or put in fear, those in charge, is reprehensible, and unlawful." 1 630. Disorderly guests. If the guest after being received misconducts himself so as to annoy the other guests, he may for that cause be ejected from the inn. 2 "If a man conies into a public house and conducts himself in a disorderly manner, and the landlord requests him to go out, and he will not, the landlord may turn him out. There is no doubt that a landlord may turn out a person who is making a disturb- an.ce in a public house, though such disturbance does not amount to a breach of the peace." 3 Thus one could be kept out who came avowedly to assault a guest. 4 And if one who has gained admission commits violence he may be treated as a trespasser ab initio. 5 631. Persons having contagious disease. For the protection of all concerned the right is obvious also to exclude those having a contagious disease, or who are in loathsome condition. It is well established that a carrier of passengers may refuse to carry any persons in this condition, even if they have bought tickets. 6 And 1 See also to the same effect : 2 The quotation which follows is Kansas. Atchison, T. & S. F. - from Parke, B., in Howell v. Jack- R. R. Co. v. Weber, 33 Kan. 543, son, 6 Car. & P. (Eng.) 723, 725 6 Pac. 877, 52 Am. Rep. 543 (1885). (1834). Missouri. Leonard v. St. Louis 8 See also Goodenow v. Travis, 3 Transit Co., 115 Mo. App. 349, 91 Johns. (N. Y.) 427 (1808). S. W. 452 (1905). * See Markham v. Brown, 8 N. H. Ohio. Scioto Valley Traction 523, 31 Am. Dec. 209 (1837). Co. v. Graybill, 29 Ohio Cir. Ct. B The Six Carpenters' Case, 8 (1906). Coke, 146a (1610). Texas. Atchison, T. & S. F. Ry. 8 See dicta in Jencks v. Coleman, Co. v. Wood (Tex. Civ. App.), 77 2 Sumn. 221, Fed. Gas. No. 7258 S. W. 964 (1903). (1835), and in Thurston v. Union [510] PERSONAL DISQUALIFICATION [ 632 so he may eject them after acceptance as passengers when the occasion arises. 1 Upon similar principles, an inn- keeper may plainly refuse entertainment to a person with contagious disease. 2 "Where a guest is taken ill at a hotel with a contagious disease, likely to be communi- cated to others, the proprietor, after notifying the sick guest to leave, has the right to remove such guest in a careful and becoming manner, and at an appropriate hour, 3 to some hospital or other place of safety, provided the life of the guest be not imperilled thereby. This is not only a right inherent in the hotel keeper, but a duty owing to other guests, and to the preservation of public health." 4 This reasoning was followed hi a recent case where it was held that a sleeping car company might under proper conditions exclude passengers apparently suffering from contagious disease from its cars to avoid the danger they cause to other passengers. 5 632. Intoxicated persons. According to the general principles governing the proper conduct of a public service, it would seem plain that a carrier is justified in refusing to transport an intoxicated Pacific R. R. Co., 4 Dill. (U. S.), 2 See dicta in Markham v. Brown, 321, Fed. Gas. No. 14,019 (1877). 8 N. H. 523, 31 Am. Dec. 209 1 United States. Paddock v. At- (1837). chison, T. & S. F. R. R. Co., 37 See also what is said in State v. Fed. 841 (1889). Steele, 106 N. C. 766, 11 S. E. 478, Louisiana. Conolly v. Crescent 19 Am. St. Rep. 573, 8 L. R. A. 516 City R. R. Co., 41 La. Ann. 57, 5 (1890). So. 259, 6 So. 526, 3 L. R. A. 133, 17 3 McHugh v. Schlosser, 159 Pa. Am. St. Rep. 389 (1889). 480, 28 Atl. 291, 39 Am. St. Rep Massachusetts. Connors v. Cu- 699, 34 Wkly. Notes Cas. 33 nard S. S. Co., 204 Mass. 310, 90 (1894). N. E. 601 (1910), semble. * McAdam, C. J., charging jur> Minnesota. Groom v. Chicago, in Levy v. Corey, 1 City Ct. Rep M. & St. P. Ry. Co., 52 Minn. 296, Supp. 57 (1884). 53 N. W. 1128, 18 L. R. A. 602, 38 Pullman Co. v. Krauss, 145 Am. St. Rep. 557 (1893), semble. Ala. 395, 40 So. 398 (1906). [511] 632] PUBLIC SERVICE CORPORATIONS person. Those who are engaged in serving the public may well justify themselves for refusing to serve persons so intoxicated as to be dangerous or obnoxious to the proprietors of the service or to the others who are being served at the same time. Such persons are apt to be dan- gerous and likely to be unruly. If they are really intoxi- cated it would seem plain that they may be rejected. 1 And it seems equally clear that if they are really obnoxious they may be ejected. 2 Upon both points there is a con- siderable body of authority, although there is now little 1 United States. Jencks v. Cole- man, 2 Sumn. 221, Fed. Cas. No. 7258 (1835). Arkansas. Price v. St. Louis, I. M. & S. Ry. Co., 75 Ark. 479, 88 S. W. 575, 112 Am. St. Rep. 79 (1905). Indiana. Pittsburg, C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68 (1877). Kentucky. Louisville & E. Ry. Co. v. McNally, 31 Ky. L. Rep. 1357, 105 S. W. 124 (1907). Minnesota. Harrold v. Winona & St. P. Ry. Co., 47 Minn. 17, 49 N. W. 389 (1891), semble. New York. Freedon v. N. Y. Central & H. R. R. R. Co., 24 App. Div. 306, 48 N. Y. Supp. 584 (1897). North Carolina. Story v. Nor- folk & S. R. R. Co., 133 N. C. 59, 45 S. E. 349 (1903). Pennsylvania. Pittsburg & C. Ry. Co. v. Pillow, 76 Pa. 510, 18 Am. Rep. 424 (1874). Texas. Paris & G. N. Ry. Co. v. Robinson (Tex. Civ. App.), 114 S. W. 658 (1909). Washington. Stevenson v. West Seattle Land & Improvement Co 22 Wash. 84, 60 Pac. 51 (1900). [512] 2 Alabama. Johnson v. Louis- ville & N. R. R. Co., 104 Ala. 241, 16 So. 75, 53 Am. St. Rep. 39 (1893). District of Columbia. Converse v. Washington & G. R. R. Co., 2 MacAr. 504 (1876). Georgia. Peavy v. Georgia R. R. & Banking Co., 81 Ga. 485, 8 S. E. 70, 12 Am. St. Rep. 334 (1888). Illinois. Chicago City Ry. Co. v. Pelletier, 134 111. 120, 24 N. E. 770 (1890). Kentucky. Chesapeake & O. Ry. Co. v. Saulsberry, 112 Ky. 915, 66 S. W. 1051, 112 Ky. 915, 23 Ky. L. Rep. 2341, 56 L. R. A. 580 (1902). Maine. Robinson v. Rockland, T. & C. St. Ry. Co., 87 Me. 387, 32 Atl. 994, 29 L. R. A. 530 (1895). Massachusetts. Hudson v. Lynn & Boston R. R. Co., 178 Mass. 64, 59 N. E. 647 (1901). New Hampshire. Edgerly v. Un- ion St. Ry. Co., 67 N. H. 312, 36 Atl. 558 (1892). Texas. Missouri Fac. Ry. Co. v. Evans, 71 Tex. 361. 9 S. W. 325, 1 *_,. R. A. 476 (1888;. West Virginia. Fisher v. West Virginia Co., 42 W. A1O U* XUJB UINlJJliKTAKlJNU I < ' O clerks may be taken upon a public or a private basis, as the facts may show. 778. Express messengers. The same things are true of an express messenger. If he is being carried by the railroad in a special car, under the contract with the express company, he is usually held to be a passenger, except so far as he accepts the risk of being carried in an express car. 1 But by the weight of authority he also will be affected by a contract providing that the company shall not be liable to him as a carrier of passengers would be, 2 although there are some cases to N. E. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348 (1896). Massachusetts. Bates v. Old Colony R. R. Co., 147 Mass. 255, 17 N. E. 633 (1888). Ohio. But see Pennsylvania Co. v. Woodworth, 26 Ohio St. 585 (1875). Pennsylvania. Pennsylvania R. R. Co. v. Price, 96 Pa. St. 256 (1880). Wisconsin. But see Chamber- lain v. Milwaukee & Miss. R. R. Co., 11 Wis. 238 (1860). But see Illinois Central R. R. Co. v. Crudup, 63 Miss. 291 (1885). And see Schuyler v. Southern Pacific Ry. Co. (Utah), 109 Pac. 458 (1910). 1 The foregoing statements are supported by the following cases: Arkansas. Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597 (1892). California. Yeomans v. Contra C. S. Nav. Co., 44 Cal. 71 (1872). Indiana. Cleveland, C., C. & St. L. Ry. Co. v. Ketcham, 133 Ind. 346, 33 N. E. 116, 19 L. R. A. 339, 86 Am. St. Rep. 550 (1893). Kansas. Union Pacific Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475 (1871). Kentucky. Davis v. Chesapeake & O. Ry. Co., 29 Ky. Law Rep. 53, 92 S. W. 339, 5 L. R. A. (N. S.) 458 (1906). Missouri. Jones v. St. Louis Southwestern Ry. Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514 (1894). New York. Blair v. Erie Ry. Co., 66 N. Y. 313, 23 Am. Rep. 55 (1876). Ohio. Pennsylvania Co. v. Woodworth, 26 Ohio St. 585 (1875). Texas. Gulf, C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345 (1891). Wisconsin. Peterson v. Chicago & Northwestern Ry. Co., 119 Wis. 197, 96 N. W. 532, 100 Am. St. Rep. 897 (1903). 2 United States. Chicago & N. W. Ry. Co. v. O'Brien, 132 Fed. 593, 67 C. C. A. 421 (1904). Delaware. Perry v. Philadelphia B. & W. R. R. Co. (Del. Supr.), 77 Atl. 725 (1910). [6511 779 ] PUBLIC SERVICE CORPORATIONS the contrary that deserve attention. 1 The conditions of the transportation are as before peculiar, and the rail- road may therefore insist upon making it a private ar- rangement with special terms. Some of these cases insist that the individual messenger must be brought into this understanding by contract to that effect with his em- ployers, 2 but others say that he is affected by knowledge of the agreement. 3 These problems are not worked out; and it seems to the writer that they will never be satis- factorily worked out until the attempt to explain them upon the basis of contracting is given up in favor of the theory of the character of the acceptance. 779. Employes of car companies. The same law governs the liability of railroad com- panies to the employe's of car companies on duty. Such employe's are held presumptively passengers, 4 compen- sation for their transportation being included in the whole Illinois. Blank v. Illinois Cent. 2 United Stales. Chamberlain v. R. R. Co., 182 111. 332, 55 N. E. 332 Pierson, 87 Fed. 420, 59 U. S. App. (1899). 55, 31 C. C. A. 157 (1898). Indiana. Louisville N. A. & C. New York. Brewer v. New York, Ry. Co. v. Keefer, 146 Ind. 21, 44 L. E. & W. R. R. Co., 124 N. Y. 59, N. E. 796, 38 L. R. A. 93, 58 Am. 26 N. E. 324, 21 Am. St. Rep. 647, St. Rep. 348 (1896). 47 Am. & Eng. R. Gas. 485 (1891). Massachusetts. Bates v. Old Col- 3 Illinois. Blank v. Illinois Cent, ony R. R. Co., 147 Mass. 255, 17 R. R. Co., 182 111. 332, 55 N. E. 332 N. E. 633 (1888). (1899). New Jersey. Dodd v. Central Indiana. Pittsburg, C., C. & R. R. of N. J. (N. J. L.), 76 Atl. 544 St. L. Ry. Co. v. Mahoney, 148 (1910). Ind. 196, 47 N. E. 917, 62 Am. St. Vermont. Robinson v. St. Johns- Rep. 503, 40 L. R. A. 101 (1897). bury & L. C. Ry. Co., 80 Vt. 129, 4 See to this effect, among others: 66 Atl. 814, 9 L. R. A. (N. S.) 1249 United States. McDermon v. (1907). Southern Pacific Co., 122 Fed. 669 1 See Davis v. Chesapeake & O. (1903). Ry. Co., 29 Ky. Law Rep. 53, 92 Illinois. Blank v. Illinois Cent. S. W. 339, 5 L. R. A. (N. S.) 458 R. R. Co., 182 111. 332, 55 N. E. 332 (1906). (1899). [652] BASIS OF THE UNDERTAKING [780 transaction. But here again the cases allow the railroad, in making arrangements to have sleeping car facilities for the public, to obtain an indemnity contract from the sleeping car company and an exemption contract from the employe's of the sleeping car company. 1 780. Owners accompanying their shipments. Where public duty is involved no special arrangement can be insisted upon. The established basis upon which cattle shipments are made being that representatives of the owners may accompany them, such drovers are prop- erly considered passengers, their fare being included in the rate. Therefore any contract that provides for exemption of the railroad from liability with respect to them is void. The most that the peculiar method of traveling results in is that they must submit to whatever special disabilities that there may be necessarily incident to the undertaking. 2 1 See to this effect, among others: Illinois. Chicago, R. I. & P. Ry. Co. v. Hamler, 215 111. 525, 74 N. E. 705, 1 L. R. A. (N. S.) 674, 106 Am. St. Rep. 187 (1905). Ind'iana. Russell v. Pittsburg, C., C. & St. L. Ry. Co., 157 Ind. 305, 61 N. E. 678, 87 Am. St. Rep. 214 (1901). The right to obtain such an in- demnity contract results from the fact that a railroad company is un- der no legal duty to receive a sleeping car from a Pullman com- pany, nor its employ^ thereon. Rus- sell v. Pittsburg, C., C. & St. L. Ry. Co., 157 Ind. 305, 61 N. E. 678, 87 Am. St. Rep. 214 (1901). 2 These general propositions may be found in the following cases, among others: United States. Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357, 21 L. ed. 627 (1873); Delaware, L. & W. R. R. Co. v. Ashley, 67 Fed. 209, 28 U. S. App. 375, 14 C. C. A. 368 (1895). A rkansas Little Rock & Ft. S. Ry. Co. v. Miles, 40 Ark. 298, 48 Am. Rep. 10 (1883). Delaware. Flinn v. Philadelphia W. & B, R. R. Co., 1 Houst. (Del.) 469 (1857). Illinois. Illinois Cent. R. R. Co. v. Anderson, 184 111. 294, 56 N. E. 331 (1900). Indiana. Louisville N. A. & C. R. R. Co. v. Taylor, 126 Ind. 126, 25 N. E. 869 (1890). Kentucky. Louisville & N. R. R. Co. v. Bell, 100 Ky. 203, 38 S. W. 3, 18 Ky. L. Rep. 735 (1896). Minnesota. Olson v. St. Paul & D. R. R. Co., 45 Minn. 536, 48 [6531 781] PUBLIC SERVICE CORPORATIONS And similarly where by an arrangement between a lumber company and a railroad company it was agreed that the lumber company's employe's should be carried to and from work, an employe* riding to work on a logging train was entitled to the rights of a passenger. 1 781. Employe's of contracting shippers. There are some extreme cases where the fundamental principle in all this is said to be that the carrier cannot make stipulations against liability for injuries to persons being transported in connection with matters as to which he owes a duty, obliging him to permit persons to travel in the way described as a matter of right. 2 Thus in a late New Hampshire case, 3 it was held that the railroad could not by special contract relieve itself of its liabilities to employe's of milk contractors traveling in their milk cars. The court pointing out that in regard to such trans- N. W. 445, 22 Am. St. Rep. 749 (1891). Missouri. Carroll v. Missouri Pac. Ry. Co., 88 Mo. 239, 57 Am. Rep. 382 (1885). Nebraska. Missouri Pac. Ry. Co. v. Tietken, 49 Neb. 130, 68 N. W. 336, 59 Am. St. Rep. 526 (1896). Ohio. Cleveland P. & A. R. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362 (1869). Texas. Gulf, C. & S. F. Ry. Co. v. Cole, 8 Tex. Civ. App. 635, 28 S. W. 391 (1894). Wisconsin. Lawson v. Chicago, St. P., M. & O. Ry. Co., 64 Wis. 447, 24 N. W. 618, 54 Am. Rep. 634 (1885). But see: New York. Poucher v. New York Cent. R. R. Co., 49 N. Y. 263, 10 Am. Rep. 364 (1872). South Dakota. Meuer v. Chicago [654] M. & St. P. Ry. Co., 5 S. D. 568, 59 N. W. 945, 25 L. R. A. 81, 45 Am. St. Rep. 898 (1894). 1 Trinity Val. Ry. Co. v. Stewart (Tex. Civ. App.), 62 S. W. 1085 (1901). 2 See the uncompromising rea- soning in such cases as: United States. Voight v. Balti- more, O. & S. W. Ry. Co., 79 Fed. 561 (1897). Kentucky. Davis v. Chesapeake & O. Ry. Co., 122 Ky. 528, 92 S. W. 339, 5 L. R. A. (N. S.) 458 (1906). Minnesota. Starr v. Gt. North- ern Ry. Co., 67 Minn. 18, 69 N. W. 632 (1896). Ohio. Pennsylvania Ry. Co. v. Woodworth, 26 Ohio St. 585 (1875). 3 New Hampshire. Baker v. Bos- ton & M. R. R. Co., 74 N. H. 100, 65 Atl. 386 (1906). BASIS OF THE UNDERTAKING [ 782, 783 portation the company owes the special duty to accom- modate this peculiar service, which means special cars properly equipped. 782. Concessionaires in general. On the other hand, unless such a duty can be made to appear there is no obligation to receive the persons con- cerned upon a passenger basis and they may therefore be properly taken upon a special basis with limited liability. Thus a street railway would not in any case owe a duty similar to that which it owes to passengers, to newsboys whom it permits to jump on and off of its cars while in motion, since the conditions are so different from those under which passengers are carried. 1 And generally the contract with a train boy permitting him to do business on board would not be upon the basis of his acceptance as a passenger; at all events as the railroad owes no duty to accept him, it may stipulate that it shall not be liable as it would to a passenger. 2 783. Employes while on duty. The question has been much discussed whether a serv- ant of the company who is being carried gratuitously is entitled to be regarded as a passenger. If the carriage is directly in connection with his work he is really engaged v, iiile being carried in his employment and his relation to the carrier is that of servant and certainly not that of a passenger; as where a workman on a construction or a gravel train is taken from place to place on the road, as 1 Illinois. Chicago, R. I. & Pac. * Connecticut. Griswold, Admr., R. R. Co., v. Moran, 117 111. App. v. New York, & N. E. R. R. Co. 53 42 (1904). Conn. 371, 4 All. 261, 55 Am. Rep. Missouri. Padgitt v. Moll. & 115 (1885). Citizens' Ry. Co., 149 Mo. 143, 60 Louisiana. Higgins v. New Or- S. W. 121, 52 L. R. A. 854, 81 Am. leans, M. & C. R. R. Co., 28 La. St. Rep. 347 (1900). Ann. 133 (1876). [655] 783 ] PUBLIC SERVICE CORPORATIONS his services are needed. 1 If he is not actually working at his employment, but is being carried to or from the place of employment, by agreement with the company, as an assistance to his work, he would seem equally to be en- gaged in his employment, and not to be a passenger. 2 1 Georgia. Travelers' Ins. Co. v. Austin, 116 Ga. 264, 42 S. E. 522, 59 L. R. A. 107, 94 Am. St. Rep. 125 (1902). Indiana. Evansville & Rich- mond R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092 (1893). Louisiana. Dobson v. New Or- leans & W. R. R. Co., 52 La. Ann. 1127, 27 So. 670 (1900). Massachusetts. Gillshannon v. Stony Brook R. R. Corp., 10 Gush. 228 (1852); Kilduff v. Boston Elev. Ry. Co., 195 Mass. 307, 81 N. E. 191, 9 L. R. A. (N. S.) 873 (1907), employ^ being brought from work in special cars, not passengers. New York. Streets v. Grand Trunk Ry. Co., 178 N. Y. 553, 76 App. Div. 480, aff'd 70 N. E. 1109 (1904). Pennsylvania. Benignia v. Penn- sylvania R. R. Co., 197 Pa. 384, 47 Atl. 359 (1900). Though not a passenger, yet being rightfully on the train, he can have damages for an injury caused by actual negligence imputable to the carrier, unless he is barred by the fact that the negligence was that of a fellow servant. Indiana. Evansville & R. R. R. Co. v. Maddux, 134 Ind. 571, 33 N. E. 345, 34 N. E. 511 (1893). Louisiana. Dobson v. New Or- leans & W. R. R. Co., 52 La. Ann. 1127, 27 So. 670 (1900). [656] Texas. Texas & P. Ry. Co. v. Scott, 64 Tex. 549 (1885). West Virginia. Sanderson v. Panther L. Co., 50 W. Va. 42, 40 S. E. 368, 55 L. R. A. 908, 88 Am. St. Rep. 841 (1901). 1 Illinois Chicago T. T. R. R. Co. v. O'Donnell, 213 111. 545, 72 N. E. 1133 (1905). Indiana. Columbus & I. Cent. Ry. Co. v. Arnold, 31 Ind. 174, 99 Am. Dec. 615 (1869). Massachusetts. Kilduff v. Bos- ton Elev. Ry. Co., 195 Mass. 307, 81 N. E. 191, 9 L. R. A. (N. S.) 873 (1907). New York. Ross v. New York Cent. & H. R. R. R. Co., 74 N. Y. 617 (1878). North Carolina. Wright v. Northampton & H. R. R. Co., 122 N. C. 852, 29 S. E. 100 (1898). Ohio. Manville v. Cleveland & T. R. R. Co., 11 Ohio St. 417 (1860). Rhode Island. lonnone v. Now York, N. H. & H. R. R. Co., 21 R. I. 452, 44 Atl. 592, 79 Am. St. Rep. 812 (1899). Wisconsin. Ewald v. Chicago R. A. (N. S.) 604, 122 76 Ga. 209, 2 Am. St. Rep. 31 Am. St. Rep. 181 (1908). (1886). [690] PROVISION OF ADEQUATE FACILITIES [ 814 as has been said, is whether the existing freight stations are so situated as to meet the reasonable demands of shippers from that district, and is not whether the freight business that probably will be offered at the place pro- posed for a new station is enough to justify the require- ment of the new station. 1 Indeed in large cities the pas- senger stations may be in one district, while the freight terminals may properly be in another. 2 Moreover freight stations may be specialized, some for the reception of package freight, others for bulk freight. 3 And a railroad may have cattle stations and mineral stations, for exam- ple, or special sidings for the reception of special freight. 4 But if the business will not justify this differentiation it may concentrate all at one point with appropriate prem- ises properly equipped. 814. Establishing offices in other services. This law is applicable to other services besides carriage. 1 People v. Delaware & H. Canal bulk need not be taken except from Co., 52 N. Y. Supp. 850, 32 App. the shipper's tipple. Div. 120 (1898). 4 Thus the cases permit the rail- 2 Maintaining a special freight road to compel cattle to be handled station at a terminal city while through a stock yard station but it merely side tracking cars at a way may not make a special charge for station is justifiable. Michie v. terminal facilities. Covington S. New York, N. H. & H. R. Co., 151 Y. Co. v. Keith, 139 U. S. 128, 35 Fed. 694 (1907). L. ed. 73, 11 Sup. Ct. 461 (1891); 3 This matter of the establish- but see Central S. Y. Co. v. Louis- ment of separate stations for ape- ville & N. Ry. Co., 192 M. S. 568, cial freight should obviously be left 48 L. ed. 565, 24 Sup. Ct. 339 almost entirely to the discretion of (1904). the company. The cases thus far But the cases as to providing hold simply that the company may facilities for handling cattle only do so. Robinson v. Baltimore & O. require that proper equipment Ry. Co., 129 Fed. 753, 64 C. C. A. must be provided at regular Bta- 281 (1904). tions. See Missouri, K. & T. Ry. See further Harp. v. Choctaw, O. Co. v. Byrne, 100 Fed. 359, 40 C. C. & G. R. R. Co., 125 Fed. 445, 61 A. 402 (1900), and Flint v. Boston C. C. A. 405 (1903), going to the & M. R. R. Co., 73 N. H. 141, 59 extreme of holding that coal in Atl. 938 (1905). [691] 815] PUBLIC SERVICE CORPORATIONS The location of telegraph offices for example, is plainly subject to similar principles. While these must be estab- lished at reasonable intervals, their establishment is within the discretion of the company. These offices may be closed if experience shows that they are not required, and their location may be shifted later, unless the change is distinctly contrary to the interests of the public served. 1 Courts would always hesitate to give orders in regard to these matters on their own initiative, and some would refuse altogether. But the orders of proper authorities must be respected unless obedience would mean practical confisca- tion. 2 All this is doubtless true of the pay stations of a telephone company, although, there is not much by way of judicial opinion as yet. Topic D. Provision of Private Installation 815. No right to private sidings generally. The general rule as has just been seen is that those having freight to ship must bring it to the regularly estab- lished freight stations, just as travelers wishing to be trans- ported must present themselves at the regularly established passenger stations. At common law no shipper or con- signee of ordinary freight, no matter how large the busi- ness which he does with the railroad may be in the aggre- gate, has any right to have freight trains stopped at his premises or freight cars spotted at his siding, even if his premises abut upon the right of way or he has constructed a siding to the railroad grade ready for connection with the through tracks. 3 Even if a patron is enjoying the 1 Kansas. State v. Western Un- Telegraph Co. v. Mississippi R. R. ion Telegraph Co., 75 Kan. 609, Commission, 74 Miss. 80, 21 So. 15 90 Pac. 299 (1907). (1896). North Carolina. Railroad Com- Ohio. Railroad Co. v. Telegraph missioners v. Western Union Tele- Co., 38 Ohio St. 24 (1882). graph Co., 113 N. C. 213, 18 S. E. 3 United States. Bedford B. G. 389 (1893). S. Co. v. Oman, 134 Fed. 441 2 Mississippi. Western Union (1904). [692] PROVISION OF ADEQUATE FACILITIES [ 816 privilege of having cars left upon a siding for him and taken away when loaded, the railroad may discontinue this service on short notice. 1 Indeed since there is no duty in the matter it is not discrimination to permit one shipper to have a private switch while others similarly situated are not allowed the same privilege. 2 What has been said in this paragraph does not apply to the peculiar case of the terminal railroad as the peculiar business of such railroads is to switch loaded cars to and from sidings. 8 816. Rights of the railroad paramount. It is certainly true that under no circumstances can anyone insist that there shall be a switch connection, when it would interfere with the business of the railroad if there should be such an intermediate switch at that point. 4 So the railroad is excused in all cases where it appears that there would be danger in maintaining the 1 Burden v. Southern Ry. Co., 2 Ga. App. 66, 58 S. E. 299 (1907). 2 Cedar Rapids & I. C. Ry. & L. Co. v. Chicago, R. I. & P. R. R. Co. (Iowa), 124 N. W. 323 (1910). 3 Interstate Stock Yards Co. v. Indianapolis U. Ry. Co., 99 Fed. 472 (1900). It does not subject a railroad company to indictment under the Interstate Commerce Act for it to refuse to furnish a switch connec- tion to a shipper tendering in- terstate traffic for transportation, although such connections are fur- nished to other shippers, especially where the indictment does not charge that the connections de- manded are reasonably practicable and could be put in with safety and would furnish sufficient busi- ness to justify the expense of their construction and maintenance, nor that the person or company ask- ing for the same offered to pay such portion of the cost as is usual and reasonable. United States v. Bal- timore & O. R. Co., 153 Fed. 997 (1907). An order of the Interstate Com- merce Commission which forbids a carrier to allow or pay to the owner of an elevator any compen- sation for elevation in transit of grain which he ships, unless he re- fuses to clean, clip, mix, inspect or grade the grain while it is passing through the elevator, is beyond its powers. Peavey & Co. v. Union Pac. Ry. Co. 176 Fed. 409 (1910). 4 Jones v. Newport, N. & M. V. Co., 65 Fed. 736, 31 U. S. App. 92, 13 C. C. A. 95 (1895), switch con- nection at dangerous point from the operating point of view. [693] PUBLIC SERVICE CORPORATIONS switch service desired. 1 However, evidence on behalf of the applicant for a switch, that a few years before the defendant railroad had maintained a side track at this point for two years without any inconvenience or accident resulting is competent to show the practicability of a side track being continued at this point. 2 Upon similar principles it has been held that wherever a railroad has been delivering freight of a certain class for certain ship- pers at certain places beside its track that have been designated, it may be considered as professing to do so and it cannot then refuse in a particular case on the ground that it is impracticable. 3 817. When private switches must be granted. On the other hand there are exceptional businesses where the commercial necessity for private switches is recognized by the common law to be overruling. 4 This is 1 Mercantile Trust Co. v. Co- lumbus, S. & H. R. R. Co., 90 Fed. 148 (1898), siding itself in danger- ous condition. 1 Industrial Siding Case, 140 N. C. 239, 52 S. E. 941 (1905). See also St. Louis, I. M. & S. Ry. Co. v. Wynne, H. & C. Co., 81 Ark. 373, 99 S. W. 375 (1907). 3 State ex rel. Ellis v. Atlantic, C. L. R. Co., 52 Fla. 646, 41 S. O. 705 (1906); Cumberland Tel. & Tel. Co. v. Morgan's L. & T. Ry. Co., 51 La. Ann. 29, 24 So. 803, 72 Am. St. Rep. 442 (1899), accord. 4 United States. Harp v. Choc- taw, O. & G. R. R. Co., 125 Fed. 445, 61 C. C. A. 405 (1903), collieries; Olanta Coal M. Co. v. Beech Creek R. R. Co., 144 Fed. 150 (1906), collieries. Illinois. Vincent v. Chicago & A. R. R. Co., 49 111. 33 (1868), [694] grain elevators; Chicago & N. W. Ry. Co. v. People, 56 111. 365, 8 Am. Rep. 690 (1870), grain eleva- tors. Kentucky. B e d f o r d - Bowling Green Stone Co. v. Oman, 115 Ky. 369, 73 S. W. 1038 (1903), quarries. Iowa. Richmond v. Dubuque & Sioux City R. R. Co., 26 Iowa, 191 (1868), grain elevators. Louisiana. Cumberland Tel. & Tel. Co. v. Morgan's L. & T. R. R. Co., 51 La. Ann. 29, 24 So. 803, 72 Am. St. Rep. 442 (1889), semble, timbers. Nebraska. Roby v. State ex rel. Farmers' G. & L. S. Co., 76 Neb. 450, 107 N. W. 766 (1906), grain elevators. Pennsylvania. Continental Coal Co. v. Pennsylvania R. R. Co., 13 Pa. Dist. Ct. 702 (1904), collier- ies. PROVISION OF ADEQUATE FACILITIES [ 818 peculiarly true of those who ship or receive freight in bulk. Thus private switches should be permitted at grain elevators, coal tipples, ore smelters, and oil tanks, provided the shipments from them are of reasonable size. And the same is true of those who are shippers and re- ceivers in considerable quantities of such freight as it would be actually impracticable or peculiarly disadvan- tageous to transport by teams over the roads. Examples of this would be iron castings and heavy machinery, blocks of marble and great timbers. As Mr. Justice Baxter said, in discussing this whole question in Coe v. Louisville & Nashville Railroad Company: 1 "This rule is just and convenient, and necessary to an expeditious and econom- ical delivery of freights. It has regard to then* proper classification, and to the circumstances of the particular case. Under it articles susceptible of easy transfer may be delivered at a general delivery 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." 818. The problem of stock yards. In the quotation just given live stock was included among the bulky articles which a carrier must receive and deliver beside its track. This is apparently not law now. The cost of transporting live stock through a town to a single station is not prohibitive, since the animals go on their own legs. It is therefore permissible for the carrier to establish a single station for the reception of live stock, provided such a station is properly equipped for the pur- pose and furnishes sufficient facilities for the neighborhood. Consequently it is now held that there is no duty owed to the owner of cattle to make special delivery of them at any place along the line that he designates. On the 1 3 Fed. 775(1880). [695] 819] PUBLIC SERVICE CORPORATIONS contrary it is held that the railroad may designate certain points of delivery if reasonably convenient, as it may for other freight which it has undertaken to carry. Upon this basis the courts have permitted the railroad to designate one of several private stock yards as its cattle station where it will deliver cattle consigned to that point and have accordingly justified it in refusing to deliver at other stock yards. 1 This was well enough so long as the courts held strictly that no charge could be made under such circumstances for yardage if the consignee was ready to take the cattle away. 2 Under a late decision the United States Supreme Court has permitted a stock yards com- pany to make an additional charge as a connecting carrier. 3 But in the latest Supreme Court case it is held that the railway may make connections with the trackage of one stock yard while refusing to make such connection with another. 4 819. Constitutionality of further legislation. Legislation along these lines has become somewhat common, as indeed it has become generally in relation to the provision of facilities. Legislation is not so un- reasonable as to be unconstitutional if it ignores the com- mon law distinction between movable and immovable freights which has just been discussed. 5 Thus a railroad Butchers & D. S. Y. Co. v. Louisville & N. R. R. Co. v. Louisville & N. R. R. Co., 67 Fed. Central S. Y. Co., 212 U. S. 132, 35, 14 C. C. A. 290 (1895); Walker 53 L. ed. 441, 29 S. Ct. 246 (1909). v. Keenan, 73 Fed. 758, 19 C. C. A. See also Central S. Y. Co. v. Louis- 668 (1896). ville & N. Ry. Co., 192 U. S. 568, 'Covington S. Y. Co. v. Keith, 48 L. ed. 565, 24 Sup. Ct. 339 139 U. S. 128, 35 L. ed. 73, 11 Sup. (1904). Ct. 461 (1891). 5 This is assumed in Mays v. Sea- 3 Interstate Commerce Comm. v. board Air Line Ry. Co., 75 S. C. Chicago, B. & Q. R. R. Co., 186 455, 56 S. E. 30 (1906). U. S. 320, 46 L. ed. 1182, 22 Sup. Ct. 824 (1902). [696] PROVISION OF ADEQUATE FACILITIES [ 820 commission may be given power to give orders for the installation of switches or to prohibit the removal of private switches where the commercial necessity for them sufficiently appears. 1 There is the possibility that an order of the commission for the establishment of a switch connection may be held outrageous if it would interfere too much with the business of the railroad. 2 But cer- tainly legislation can confirm the right of shippers of bulky freights to have switch connections. 3 820. Railroad never obliged to construct siding. The extent to which such legislation in regard to sidings may go has been under examination in several recent cases both State and Federal. These cases establish be- yond question that the utmost extent to which the duty may be pressed is to permit the making of the switch con- nection. Neither the legislature nor its commission can compel the railroad to construct the sidings at its own ex- pense, as was pointed out in one of the recent State cases. 4 And therefore a statute was recently held unconstitutional by a State court which although requiring the individual to build provided that he should be repaid that cost by a reduction of twenty per cent from his freight bills for each year. 5 Two cases finally reaching the United States Supreme Court settled this side of the general problem for the Federal courts. In the earlier case 6 a Nebraska statute requiring every railroad to permit all those who 1 For example, see Railroad Com- M. Co. v. Beech Creek R. R. Co., mission of La. v. Kansas City So. 144 Fed. 150 (1906). Ry. Co., Ill La. 133, 35 So. 487 * Northwestern Warehouse Co. (1903). v. Oregon Ry. & Nav. Co., 32 Wash. * This is assumed in the Indus- 218, 73 Pac. 388 (1903). trial Siding Case, 140 N. C. 239 Mays v. Seaboard Air Line Ry. (1905). Co., 75 S. C. 455, 56 S. E. 30 (1906). J For example, see Olanta Coal Missouri Pacific Ry. Co. v. Ne- braska, 164 U. S. 403 (1896). [697] 821 ] PUBLIC SERVICE CORPORATIONS desired to build a grain elevator upon the right of way of a railroad was held to deprive the company of its prop- erty without due process of law. In the later case l the Nebraska statute as amended permitting the railroad to refuse to grant a location if it would construct a siding to any elevator established on land adjoining its right of way was held unconstitutional as compelling the railroad to pay for a private facility. 821. Duty confined to permitting connection. At common law the duty of the railroad as a carrier of freight is confined to taking up or setting down freight along its route, or more exactly beside its tracks as con- structed. The most that the common law requires of a railroad in any case is to receive or leave cars at the point where the spur constructed by the shipper comes upon the right of way of the railroad. Doubtless the railroad must put in the switch itself, and certainly it can decide upon the details of its location. As to the matter of opera- tion, the railroad must plainly move the car on and off the switch, since it would not permit the shipper to break in upon its own operation over its public tracks. But cer- tainly as a common law matter the railroad cannot be 1 Missouri Pacific Ry. Co. v. Co. v. Chicago, R. I. & P. Ry. Co. Nebraska, 217 U. S. 196 (1910). (Iowa), 124 N. W. 323 (1910). A contract between two railroad But in Chesapeake & O. Ry. Co. companies providing for the con- v. Standard Lumber Co., 174 Fed. struction of a spur track to a cus- 107, 98 C. C. A. 81 (1909), it was tomer and the switching of cars held that refunding to a certain over the same for a specified charge shipper ten per cent of his freight has been held not to violate the bills until his expenditures in con- Interstate Commerce Act, it not structing his siding and its equip- appearing that any discrimination ment were paid for constituted a was made against other customers violation of the Interstate Corn- seeking to have like privileges. Ce- merce Act, although the siding and dar Rapids & I. C. Ry. & Light its equipment were thus to become the property of the railroad. [698] PROVISION OF ADEQUATE FACILITIES [ 822 compelled to perform the shunting service over the private spur of the shipper, as it cannot be compelled to haul be- yond its own rails. 1 On the other hand if it undertakes such service generally it must apparently perform the service for all shippers indifferently at reasonable rates. 2 As this is so close a question it is probable that a legisla- tive requirement or a commission ruling requiring such service would not be outrageous. And there are cases enough that show that when the service is undertaken the charges for switching can be regulated and discrimination in them forbidden. 822. Obligation to receive upon spurs. Another distinction remains, which may explain much. Public spurs which are really part of the railroad's trackage and operated as such should be distinguished from special sidings which are the private property of individual ship- pers. A railroad in operating a public lateral must deal with all shipments offered or consigned to it without discrimination. It may not treat one patron located upon it differently from another. 3 On the other hand the owners 1 Brooks Mfg. Co. v. Southern Louisiana. Kansas City, S. & Ry. Co. (N. C.), 68 S. E. 243 (1910). G. Ry. Co. v. Louisiana, etc., Ry. 1 Missouri Pac. Ry. Co. v. Lar- Co., 116 La. 178, 40 So. 627, 5 L. abee Flour Mills Co., 211 U. S. 612, R. A. (N. S.) 512 (1905). 29 Sup. Ct. 214 (1909). Minnesota. State ex rel. R. & Alabama. Agee & Co. v. Louis- W. Com. v. Willmar & S. F. R. Ry. ville & N. Ry. Co., 142 Ala. 344, 37 Co., 88 Minn. 448, 93 N. W. 112 So. 680 (1904). (1903). Georgia. Butler v. Tifton, T. & Nebraska. Roby v. State ex rel. G. R. R. Co., 121 Ga. 817, 49 S. E. Farmers' G. & L. S. Co., 76 Neb. 763 (1904). 450, 107 N. W. 766 (1906). Illinois. Chicago & A. R. R. New York. Kellogg v. Sowerby, Co. v. Suffem, 129 111. 274, 21 N. 87 N. Y. Supp. 412, 93 App. Div. E. 824 (1889). 124 (1904). Kentucky. Louisville, etc., R. R. South Carolina. Avingerv.South Co. v. Pittsburg & K. Coal Co., Ill Carolina Ry. Co., 29 S. C. 265, 7 Ky. 960, 23 Ky. L. Rep. 1318, 64 S. S. E. 493, 13 Am. St. Rep. 716 W. 969, 55 L. R. A. 601 (1901). (1888). [699] 823 ] PUBLIC SERVICE CORPORATIONS of a private siding may refuse to let any other shipper utilize it. 1 This distinction is well brought out by two cases both involving one Oman and the Bedford-Bowling Green Stone Company. In the earlier case in the Ken- tucky court 2 it appeared that the siding had been con- structed by the railroad which still owned some of the abutting lands and it was held that freight must be ac- cepted from the complainant if tendered on these lands. In the later case 3 in the Federal courts it transpired that the railroad in the interval had sold the trackage and all the adjoining lands to the favored concern; and the court thereupon felt constrained to hold that this was a private switch upon which no one else but the owner had any right to be offering freight. 823. The company need only provide requisite facil- ities. It may seem an obvious proposition that the company need only provide the facilities requisite for giving the service it is under obligation to provide. And yet in its .application this is not a matter free from difficulty when the limits of the doctrine are approached. In the case of the carrier of passengers for example, it is plain that the railroad must provide a safe and comfortable car. It Texas. Railroad Commissioners 3 Bedford-Bowling Green Stone v. St. Louis & S. W. Ry., 80 S. W. Co. v. Oman, 134 Fed. 441 (1904). 102 (1904). This of course means that a sid- 1 See particularly: ing may always be abandoned. Arkansas. Edgar Lumber Co. v. United States. Mercantile Trust Cornie Stave Co., 130 S. W. 452 Co. v. Columbus, S. & H. R. R. Co., (1910). 90 Fed. 148 (1898); Jones v. New- Michigan. Mann v. Pere Mar- port News & M. V. R. R. Co., 13 quette R. R. Co., 135 Mich. 210, C. C. A. 95, 65 Fed. 736, 31 U. S. 97 N. W. 721 (1903). App. 92 (1895). 1 Bedford-Bowling Green Stone Georgia. Burden v. Southern Co. v. Oman, 115 Ky. 369, 73 S. W. Ry. Co., 2 Ga. App. 66, 58 S. E. 1038 (1903). 299 (1907). [700] PROVISION OF ADEQUATE FACILITIES [ 824 must even see to the provision, upon a long journey, of facilities for eating and sleeping, 1 but it does not have to provide overcoats and toothbrushes. In the case of the municipal services the supplying company must, of course, construct the necessary plant; the electric company must supply its station, and the gas company must construct its retorts. The supply wires of the electric company and the street mains of the gas company, it is plain, are in the same category. On the other hand the electroliers and chandeliers as well as the bulbs and burners are provided by the consumer. 2 Of course it is all a question of degree, the test being in any particular case what is the usual undertaking of the company engaged in that business as it is conducted. A telephone company for example, need provide at the regular rate only the necessary facilities for speaking and hearing; it need not provide additional equipment. 3 A turnpike company, at the other extreme, provides nothing but an open road, the customer furnish- ing his own vehicles. 4 824. Provision of service pipes and feed wires. In regard to the supply services, there is, however, a debatable ground between these extremes. For example it is not settled whether a water company is obliged to lay and pay for the service pipes from the street mains to the premises of the consumer, or whether the consumer 'See for example: Peniston v. * See Chesapeake & P. Telephone Chicago, St. L. & N. O. R. R. Co., Co. v. Manning, 186 U. S. 238, 22 34 La. Ann. 777, 44 Am. St. Rep. S. Ct. 881, 46 L. ed. 1144 (1902), 444 (1882), responsibility for ap- such as telephone cabinets and ex- proaches to eating houses. tension seta. 2 See for example: Snell v. Clin- 4 See Downing v. Mt. Washing- ton Electric L. H. & P. Co., 196 ton Road Co., 40 N. H. 230 (1860), 111. 626, 63 N. E. 1082, 89 Am. St. ultra vires for turnpike company Rep. 341, 58 L. R. A. 284 (1902), to run stage line over it. no concern with the interior elec- tric fittings. [701] 824 ] PUBLIC SERVICE CORPORATIONS himself must pay for the service pipes. There are some cases which are positive that the company should lay the service pipe and make the necessary connections at its own expense. 1 It is well argued in these cases that the main and all laterals, fixtures and connections to the fran- chise limit of the lot line belong to the company, and alto- gether constitute the water system. It does not seem to be the business of the consumer to construct any part of the company's system, any more than it is the company's business to place the pipes and fixtures in the consumer's premises. On the other hand there is as much authority, if not more, to the effect that the requirement by legis- lation or even by the regulation of the company that the consumer shall pay for his service pipe is not outrageous, as this installation is peculiarly for his benefit and no part of the general facilities of the system in the use of which all share to some degree. 2 This argument will also apply to gas supply; and obviously that case is correct which holds in effect that the gas company has no obligation with regard to rising pipes within the building. 3 Upon similar principles an electric company has nothing to do with the interior wiring. 4 1 Idaho. Hatch v. Consumers' Danville, 154 111. 156, 38 N. E. 1067 Co., 17 Idaho, 204, 104 Pac. 670 (1894). (1909); Pocatello Water Co. v. North Dakota. Jackson v. Ellen- Standley, 7 Idaho, 155, 61 Pac. 518 dale, 4 N. D. 478, 61 N. W. 1030 (1900) ; Bothwell v. Consumers' Co., (1894). 13 Idaho, 568, 24 L. R. A. (N. S.) Wisconsin. Gleasonv.Waukesha 485, 92 Pac. 533 (1907). County, 103 Wis. 225, 79 N. W. 249 New York. Alvord v. Syracuse, (1899). 163 N. Y. 158, 57 N. E. 310 (1900). Ferguson v. Metropolitan Gas Texas. International Water Co. Light Co., 37 How. Pr. 189 (1868). v. El Paso (Tex. Civ. App.), 112 Snell v. Clinton Electric L. H. S. W. 816 (1908). & P. Co., 196 111. 626, 63 N. E. 1082, 2 Illinois. Prindiville v. Jack- 89 Am. St. Rep. 341, 58 L. R. A. son, 79 111. 337 (1875); Warren v. 284 (1902). Chicago, 118 111. 329, 9 N. E. 883, Where a city, operating a system 11 N. E. 218 (1887); Palmer v. of waterworks furnishing water to [702] PROVISION OF ADEQUATE FACILITIES [ 825 825. Provision of transformers and meters. Must the electric company provide a transformer, or the gas company supply a meter? There are conflicting decisions as to this matter. In the case of the transformer it was apparently held in a recent case l that the provi- sion of a transformer was involved in the service proposed; and this is believed to be sound because it would seem that the electric company must provide all facilities neces- sary for delivering current to the consumer. 2 However, there are various cases as to meters which hold that the supplying company can compel the consumer to provide his own meter, or pay rental, as such, for the meter pro- vided by the company. 8 But by other, and it is believed better, authorities it is held improper for the supplying company to compel the consumer to provide a meter, or to charge meter rent as such. 4 Many of the former cases, its citizens, controlled the cock at the junction of service pipes and the main pipe, by which water was let on and off, it must remove an obstruction therein within a reason- able time. City of Jackson v. An- derson (Miss.), 51 So. 896 (1910). ^nell v. Clinton Electric Co., 196 111. 626, 63 N. E. 1082, 58 L. R. A. 284, 89 Am. St. Rep. 341 (1902). 2 The cost of the transformer may be taken into account in determin- ing the minimum charge against the particular consumer. Gould v. Edison Electric Co., 29 N. Y. Misc. 241, 60 N. Y. Supp. 559 (1899). 3 California. Smith v. Capital Gas Co., 132 Cal. 209, 64 Pac. 258, 54 L. R. A. 769 (1901), regulation. Kansas. Cooper v. Goodland, 80 Kan. 121, 102 Pac. 244, 23 L. R. A. (N. S.) 410 (1909), ordi- nance. Illinois. Anderson v. Village of Berwyn, 135 111. App. 8 (1907), or- dinance. Massachusetts. Shaw Stocking Co. v. Lowell, 199 Mass. 118, 85 N. E. 90, 18 L. R. A. (N. S.) 746 (1908). Missouri. Mallon v. Board of Water Commrs., 144 Mo. App. 104, 128 S. W. 764 (1910), munic- ipal charter. New York. Hill v. Thompson, 18 Jones & S. 165 (1884), statute; Swanberg v. New York, 123 App. Div. 774, 108 N. Y. Supp. 364 (1908), municipal supply. Wisconsin. State ex rel. v. Goe- nell, 116 Wis. 606, 93 N. W. 542, 61 L. R. A. 33 (1903), ordinance; State ex rel. v. Manitowoc Water- works Co., 114 Wia. 487, 90 N. W. 442 (1902), regulation. 4 Alabama. Smith v. Birming- ham Waterworks Co.. 104 Ala. 315, 16 So. 123 (1893). [703] 825 ] PUBLIC SERVICE CORPORATIONS however, really go no further than to hold that when this requirement is imposed upon customers by legislation or regulation, this policy is not so unreasonable as to be invalid. Others of them hold that if the consumer wishes the privilege of getting by measure instead of by estimate he must furnish the meter. Few cases of these cited would go so far as to permit the company to force a meas- ured taking upon a consumer against his will and make him pay for the meter. As to these typical municipal services, the writer is rather inclined to go to some length in favor of the consumer, insisting that the supply com- pany should deliver to him what is sold, usable elec- tricity at the house, measured gas at the cellar. These companies are engaged in a public service, and all the equip- ment necessary to perform that service, it would seem, should be provided by the supply company, within rea- sonable limits. This may involve a larger capitalization; but that is not sufficient reason in itself why the public company should not provide all equipment necessary to give the service offered. On the other hand, it may be argued fairly enough, that if the company provides all the facilities which are for the service of the whole public, such as the street mains, the separate takers may not un- reasonably be obliged to provide their individual installa- tion. Arkansas. W i 1 s o n Water & Nebraska. Albert v. Davis, 49 Elec. Co. v. Arkadelphia, 129 S. W. Neb. 579, 68 N. W. 945 (1896). 1091 (1910). New Jersey. Red Star Steam- Kentucky. Capital Gas & Elec. ship Co. v. Jersey City, 45 N. J. L. L. Co. v. Gaines, 20 Ky. L. R. 1464, 246 (1883). 49 S.W. 462 (1899). See also Louis- New York. Buffalo v. Buffalo ville Gas Co. v. Dulaney & Alex- Gas Co., 81 App. Div. 505, 80 ander, 100 Ky. 405 (1897). N. Y. Supp. 1093 (1903). Missouri. State ex rel. v. Se- Texas. Walker v. McDonald, dalia Gaslight Co., 34 Mo. App. 49 Tex. 458 (1878). 501 (1889). [7041 PROVISION OF ADEQUATE FACILITIES [826 826. Dictation as to fittings. It would seem to follow that where the obligation of the company to provide facilities ceases, its right to dictate to its patron as the character of his own facilities would also cease. And this, indeed, is the general principle. This will often be found to be modified by the right of the com- pany to protect its own interests, when these are involved. Thus a gas company may regulate the placing of governors upon his pipes by the owner himself if there is danger that their operation may affect the operation of the meter; but its right to interfere cannot go further than this. 1 Surely an electric company cannot give orders to its cus- tomers as to the fittings they shall use, unless they might be of such a construction as to interfere with its circuits. 1 It should be noted in connection with all of these cases that where the service company makes a regulation as to the fittings to be used, it will be supported unless plainly outrageous. Thus the cases as to water companies hold that they may by regulation determine what style of shut- off hydrant shall be used. 3 This is particularly true as has been seen in telephone service where a regulation forbid- 1 It may regulate the placing of mating Co., 102 N. Y. Supp. 206 governors and mixers. Blondell v. (1907). Consolidated Gas Co., 89 Md. 732, State ex rel. v. Goodfellow, 1 43 Atl. 817 (1899). But not pro- Mo. App. 495 (1876). hibit them altogether. Indiana Thus an applicant for service Natural & Illuminating Gas Co. v. may be required to present a cer- Anthony, 26 Ind. App. 307, 58 N. tificate from a reputable plumber E. 868 (1900). that his interior installation has * Thus it may not insist that the been properly made. State ex rel. wiring shall be done by its own de- v. New Orleans Gaslight Co., 108 partment. Snell v. Clinton Elec- La. 67, 32 So. 179 (1902). But it trie L. H. & P. Co., 196 111. 626, would be unreasonable for a com- 63 N. E. 1082, 58 L. R. A. pany to insist that certain plumb- 284, 89 Am. St. Rep. 341 (1902). ers should be employed. Franke But it can refuse to supply elec- v. Paducah Water Supply Co., 88 tricity to premises dangerously Ky. 467, 11 S. W. 432, 4 L. R. A. wired. Benson v. American Ilium- 265 (1889). 45 [ 705 ] 826 ] PUBLIC SERVICE CORPORATIONS ding the attachment of devices to the instruments sup- plied is held reasonable. 1 1 Gardner v. Providence Tele- era furnished their own instruments, phone Co., 23 R. I. 312, 50 Atl. the company was held nevertheless 1014, 23 R. I. 262, 49 Atl. 1004, 55 entitled, if it so desired, to furnish L. R. A. 113 (1901). its instruments making no extra Where hi the franchise of a tele- charge therefor. Wright v. Glen phone company it was provided Telephone Co., 112 App. Div. 745, that it should furnish service at a 99 N. Y. S. 85 (1906). certain rate, provided the subscrib- [706] This book is DUE on the last date stamped below JUN li 1935 Form L-9-35m-8,'28 LAW LIBRARY UNIVERSITY OF CALIFORNIA ANGELES j "!( IIMI mil mil mil in ii muffin .1 UNIVERSITY of rALIFORNU LOS ANGELES LIBRARY