UNIVERSITY OF CALIFORNIA AT LOS ANGELES UMVERSITY of CALIFORNIA \" p LOS ANGELES LIBRARY CASES ON PUBLIC SERVICE COMPANIES THIKD EDITION BY BRUCE WYMAN SOMETIME PROFESSOR OF LAW IN HARVARD UNIVERSITY CAMBRIDGE HARVARD UNIVERSITY PRESS 1920 153039 Copyright, 1902 BY JOSEPH HENRY BEALE, JR. Copyright, 1909 BY BRUCE WYMAN Copyright 1909 BY JOSEPH HENRY BEALE Copyright, 1919 BY JOSEPH HENRY BEALE Copyright, 1CSO BY BRUCE WYMAN PREFACE THIS collection of cases is designed to show the development of the law of public service in its most modern forms : the public O carriers, the public works, and the other public utilities. The ) . distinction between the private callings the rule and the 1 public callings the exception is a striking feature of the law "~ governing business relations as it is to-day. The causes of the O division are economic rather than strictly legal. Free competition, the very basis of the modern social organization, superseded almost completely medieval restrictions, but it has just come to be recognized that the process of free competition fails in some o cases to secure the public good, and it has been reluctantly admitted that some control is necessary over such lines of indus- E^try as are affected with a public interest. At this point the f problem of public callings becomes a legal one. c No one can carefully study the authorities on this subject oj without feeling that we are just entering upon a great and impor- jstant development of the common law. What branches of industry f>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 economic problems, it would be rash to predict. Enormous business combinations, virtual monopolization of the necessaries of life, the strife of labor and capital, now the concern of the economist and the statesman, may prove susceptible of legal con- trol through the doctrines of the law of public callings. These doctrines are not yet clearly defined. General rules, to be sure, iv PREFACE. 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. As a result of the present state of the law it has seemed essen- tial to bring together examples of every sort of public calling. Here will be found decisions concerning coaches and ships, the turnpike and the toll-bridge, the railway and the tram, the inn and the warehouse, the telegraph and the telephone, the purvey- ors of light and water. Materials are thus provided for analogy and comparison, and for a careful study of the rights and duties of persons engaged in every sort of public employment. When this preface was first written in 1902 this unity of the public service law had not been generally perceived ; now it is a recognized branch of the law, recognized by all as of overshadow- ing importance. An impressive instance of this growth in the law is the number of fundamental cases which the last few years have produced that have been added to this new edition. This collection is intended primarily for use as a basis for class discussion in a law school, and the choice and arrangement of cases have been directed to that end. Cases have been abridged with freedom, but the fact has always been indicated. The anno- tation is not exhaustive, but is intended to draw the attention of students to a variety of cases, valuable for purposes of study, which bear upon the subjects discussed in the text. The subdi- visions are kept few and general so as to leave the student to formulate the law for himself without the interference of the editor. B. W. TABLE OF CONTENTS CHAPTER I PAGE NATURE OF PUBLIC CALLING .... 1 CHAPTER II EXTENT OF PUBLIC PROFESSION 75 CHAFPER III OBLIGATIONS OF PUBLIC DUTY 128 CHAPTER IV EXCUSES FOR REFUSING SERVICE 220 CHAPTER V PROVISION OF ADEQUATE FACILITIES . 279 CHAPTER VI REGULATION OF THE SERVICE ,... 344 CHAPTER VII DETERMINATION OF REASONABLE RATES 411 CHAPTER VIII PROHIBITION OF UNJUST DISCRIMINATION ... ... 483 TABLE OF CASES. Allen v. Sackrider Allnutt v. Inglis Anonymous . . Atchison T. & S. F. Ry. v. D. & N. 0. R. R Atlantic City v. Fonsler .... Atlantic C. L. R. R. Co. v. No. C. C. C v. Florida Atwater v. Sawyer Ayres v. Chicago & N. Ry. . . B Bailey v . Fayette Gas-Fuel Co. . Ballentine v. No. Mo. R. R. Co. Barrett v. Market St. Ry. . . . Bennett v. Dutton Billings M. & T. Co. v. Rocky Mt. T. Co Birmingham Water Co. v. Bir- mingham Blumenthal v. Southern Ry. Co. Bradshaw v. South Boston R. R. Co Brass v. North Dakota Breddon v. Great Northern Ry. Co Bridal Veil L. Co. v. Johnson Brown v. Memphis & C. R. R. . v. Western U. Tel. Co. . . Browne v. Brandt Brymer v. Butler Water Co. . . Buckland v. Adams Exp. Co. . . Bush Electric Co. v. Subway Co. Bussey t;. Mississippi V. T. Co. Canada So. Ry. Co. v. Bridge Co. Central E. Co. v. People .... Chesapeake & P. T. Co. v. B. & O. T. Co Chicago & N. Ry. v. People . . v. Williams Chicago B. & Q. R. Co. v. Gustin Page 78 2 102 113 1 201 81 297 432 233 299 545 298 413 197 272 111 241 371 61 285 91 230 393 281 449 183 17 180 434 275 261 319 227 405 Page Chicago, M. & St. P. Ry. p. War bash Ry 267 Cincinnati & H. Ry. v. Bowling Green 27 Cincinnati, N. O. & T. P. R. R. v. Interstate Commerce Com. 557 Citizens Bank v. Nantucket S. B. Co 177 City of Mobile v. Bienville . . 550 Commonwealth v. Delaware & H. Co 538 Concord & M. Ry. v. B. & M. Ry 315 Connors v. Cunard SS. Co. . . 242 Getting v. Goddard 435 Coup v. Wabash St. L. & P. Ry. 107 Covmgton Stock-Yards Co. v. Keith 335 Cross v. Andrews 128 Crouch v. Arnett 119 Cumberland Tel. & Tel. Co. v. Brown 188 v. Kelley 289 D Daniel v. New Jersey St. Ry. Co. 357 Dickerman t;. St. Paul D. Co.. . 359 Dittmar v. New Braunfels ... 521 Doyle v. Walker 280 Dunn v. Western Union Tele- graph Co 34 E East 0. St. Ry. Co. v. Godola Evergreen C. Assn. v. Beecher Express Cases 11 12 160 Farley v. Lavary 117 Farnsworth v. Groot 285 Faucher v. Wilson 85 Fay v. Pacific I. Co 86 Fell v. Knight 279 Ferguson v. Metro. G. L. Co. . 140 Fitchburg R. R. v. Gage .... 483 Fleming v. Montgomery L. Co. . 134 Forsee v. Alabama Gt. So. Ry. . 366 vm TABLE OF CASES. Pace Frazier A Cooper v. K. C. Ry. 145 v. N. Y. N. H. A H. R. R 219 Fuller v. Coats 351 Funderburg v. Augusta & A. Ry. 411 Gardner v. Providence Tel. Co. . 282 German A. Ins. Co. v . Kansas . 73 Gibson v. Silva 82 Gisbron v. Hurst 75 Gloucester Water Co. v. Glou- cester 447 Godwin v. Carolina T. A. T. Co. 234 Goodridge v. Union Pac. Ry. Co. 494 Gordon v. Hutchinson 76 Gould v. Edison Electric Co. . . 424 Griffin v. Goldsboro Water Co. . 536 Harrison v. Knoxville Water Co. 388 Hart v. Southern Ry. Co. ... 360 Haugen v . Albina L. & W. Co. . 95 Hays v. The Pennsylvania Co. . 499 Hoover v. Pennsylvania R. R. Co. 543 Houston & T. C. Ry. Co. v. Storey 457 Houston, E. & W. Tex. R. R. v. U. S 610 Howth v. Franklin 89 Hurley. Administrator v. Edding- field 72 Illinois Cent. R. R. v. Interstate Commerce Comm 455 Ilwaco R. & N. Co. v. Oregon Short L. & U. N. Ry 211 Ingate ;. Christie 80 Intel-mountain Rate Case . . . 614 Inter-Ocean Pub. Co. v. Asso- ciated Press 41 Interstate Commerce Comm. v. Alabama M. Ry 595 r.B.AO.R.R 525 p. Chicago C. W. Ry. ... 441 . Delaware, L. & W. Ry. Co 432 v. Detroit, G. H. Ry. ... 593 Jackson v. Rogers 2 Jencks v. Coleman 220 Joest v. Packet Co 218 Johnson v. Dominion Express Co. 274 v. Midland Ry. Co 103 Jones v. Newport N. & M. V. Co. 317 v. North G. E. Co. . 30 Page Kansas City So. Ry. v. U. S. . . 443 Kansas Pac. R. R. Co. v. Nichols, K. &Co 105 Kates v. Atlanta B. & C. Co. . 173 Kennebec Water Co. v. Waterville 479 King v. Luelin 128 Knoxville v. Knoxville W. Co. . 481 Ladd v. Boston 547 Lamond v. Gordon Hotels . . . 131 Lawrence v. Pullman Palace Car Co 143 Lecors v . New York Sleeping Car Co 187 Levi v. Lynn & Boston R. R. Co. 106 Little R. & M. R. R. v. St. L. S. W. Ry 213 Long Branch v. Tintern W. Co. . 456 Los Angeles Switching Case . . 332 Lough v. Outerbridge 511 Louisville & N. R. R. Co. v. Cen- tral Stock Yards Co 328 Louisville, C. & C. Ry. v. Chap- pell 9 Louisville Gas Co. v. Dulaney . . 422 Lumbard v. Stearns . . 4 M Majestic C.&C. Co. v. 111. C.Ry. 295 Mays v. Seaboard Air Line Ry. . 329 McDuffee v. Portland & Roch- ester R. R 153 Meancho v. Ward 503 Messenger v. Pennsylvania R. R. Co 486 Metropolitan Trust Co. v. Hous- ton, etc. R. R 467 Michigan Cent. R. R. Co. v, Michigan Commission .... 341 v. Pere Marquette R. R. Co. 271 Milwaukee El. Ry. etc. Co. v. Mil- waukee 459 Minneapolis v. St. Louis R. R. Co 477 Minnesota Rate Cases .... 446 Mobile & O. R. R. v. People . . 306 Montgomery v. Buffalo Ry. Co. 356 Munn v. Illinois. 44 N Narin v. Kentucky H. Co. ... 240 News Publishing Co. v. So. Ry. 114 Nicholson v. N. Y. City Ry. Co. 137 Nolton v. Western Corp. ... 191 Northern P. R. R. v. Washington 307 TABLE OF CASES. IX Page Ocean S.S. Co. v. Savannah L.Wks. 608 Ohage v. No. Pac. Ry 408 Old Colony R. R. v. Tripp ... 169 Owens v. Macon & B. R. R. Co. 239 Owensboro Gas Co. v. Hilder- brand 382 Ozark Bell T. Co. v. Springfield 478 Paterson Gas Co. v. Brady ... 6 Pearson v. Duane 226 Pennington v. Philadelphia Ry. . 379 Pennsylvania C. Co. v. Canal Co. 344 Pennsylvania R. R. Co. v. Phila- delphia County 480 v. Shaft Co 331 People v. Budd 51 v. Chicago & A. R. R. . . . 302 ex rel. v. Hudson R. Tel. Co. 257 v. Manhattan Gas Light Co. 373 v. New York C. R. R. . . . 248 Philadelphia W. & B. R. R. v. Rice 369 Phillips v. Southern Railway . . 407 Phipps v. L. & N. W. Ry. . . . 553 Pipe Lane Cases 74 Platt v. Lecocq 348 Pope v. Hall 350 Portland N. Gas & O. Co. v. State 254 Public S. Corp. v. American L. Co. 135 Pullman Co. v. Krauss . . 236 R Ralston Assn. v. Bush .... 330 Ratcliff v. Wichita Stockyards Co. 67 Reasor v. Ferry Co 243 Reese v. Pennsylvania R. R. . . 362 Regins v. Sprague 232 Rex v. Ivens 129 Robertson & Co. v. Kennedy . . 84 Robinson v. B. & O. R. R. Co. . 147 Root v. Long Island R. R. . . . 508 S St. Louis, I.JV1. & S. Ry. v. Ren- froe 292 Sammons v. Kearney P. & I. Co. 25 Savannah & O. C. Co. v. Shuman 121 Searles v. Mann B. C. Co. ... 283 Sears v. Eastern R. R 401 Seasongood v. Tenn. & Ohio Co. 196 Seaver v. Bradley 190 Self v. Dun & Brown 83 Shepard v. Gold Stock & Tel. Co. 40 Page Silkman v. Water Commissioners 492 Slosser v. Salt River V. C. Co. . 98 Smith v. Capital Gas Co 430 Smyth v. Ames 470 Snell v. Clinton Power Co. ... 427 ex rel. v. Benson 112 State ex rel. v. Butte City W. Co. 136 v. Campbell 377 exreLv.C. B.&Q.Ry. . . 293 v. Cincinnati, New Orleans, etc. Ry 533 ex rel. v. Citizens' Telephone Co 36 ex rel. v. Consumers G.T. Co. 244 ex rel. v. Dodge City Ry. . 123 v. Edwards 21 ex rel. v. Gas Co 264 v. Jacksonville Terminal Co. 69 v. Nebraska Tel. Co. ... 374 ex rel. v. Sedalia Co. , . . 383 ex rel. v. Texas R. R. . . 549 Steenerson v. Great Northern Ry. 453 Tap Line Cases 333 Texas & P. Ry. v. Interstate Commerce Comm 564 Tierney v. N. Y. C. & H. R. R. R 287 Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co 251 318M Tons of Coal 495 Transportation Co. v. Standard Oil Co 71 Tunnel & S. v. Petti John ... 104 Turner v. North Carolina R. R. Co 225 U United States v. American W. W. Co 270 v. B. & O. R. R 614 v. Chicago & A. Ry. Co.. . 518 ex rel. v. Delaware & H. R. R. Co 277 ex rel. v. Vinon Stock Yards 612 Van Dyke v. Arizona 127 Virginia Ry. & P. Co. v. OTlaherty 410 W Watauga W. Co. v. Wolfe ... 386 Weld v. Gas & E. L. Comm. . . 125 Western Union Tel. Co. v. Call Publishing Co 493 TABLE OF CASES. Page Page Western Union Tel. Co. v. Dozier 144 Willcox v . Consolidated Gas Co. . 457 v. Frotler 116 Williams v. Mutual Gas Co. . . 415 v. McGuire 381 v. Neel ......... 397 Weymouth v. Log Driving Co. . 13 Wheeler v. No. Colo. Irr. Co. . 417 Wight v. United States .... 591 Zacheryr. Mobile &O.R.R. Co. 238 CASES ON PUBLIC SERVICE COMPANIES, CHAPTER I. NATURE OF PUBLIC CALLING. ANONYMOUS. COMMON PLEAS, 1441. [Y.B.19H. VI. 49, P l. 5.] WRIT of Trespass on the case against one R., a horse doctor, to the effect that the defendant assumed to him at London to cure his horse of a certain trouble, and that he then so negligent!} 1 and carelessly gave the medicines, etc., that the horse, etc. . . . PASTON, J. You have not shown that he is 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. ANONYMOUS. KING'S BENCH, 1450. [Keilway, 50, pi. 4.] NOTE, That it was agreed by the court, that where a smith declines to shoe my horse, or an innkeeper refuses to give me entertainment at his inn, I shall have an action on the case, notwithstanding no act is done ; for it does not sound in covenant. . . . Note, That in this case a man shall have no action against innkeeper, but shall make complaint to the ruler, by 5 Ed. IV. 2 ; contra, 14 Hen. VII. 22. ALLNDTT V. INGLIS. JACKSON v. ROGERS. KING'S BENCH, 1683. [2 Shower, 327.] Action on the case, for that whereas the defendant is a common car- rier from London to Lymmington et abinde retrorsum, and setting it forth as the custom of England, that he is bound to cany goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by JEFFERIES, C. J., that the action is maintainable, as well as it is against an innkeeper 1 for refusing a guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. NOTE, That it was alleged and proved that he had convenience to carry the same ; and the plaintiff had a verdict. ALLNUTT v. INGLIS. KING'S BENCH, 1810. [12 East, 527.] Lord ELLENBOROUGH, C. J. 2 The question on this record is whether the London Dock Company have a right to insist upon receiving wines into their warehouses for a hire and reward arbitrary and at their will and pleasure, or whether they were bound to receive them there for a reasonable reward only. There is no doubt that the general principle is favored both in law and justice, that every man may fix what price he pleases upon his own property or the use of it : but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will 1 " Because he hag made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the king's subjects that will em- ploy him in the way of his trade." HOLT, C. J., in Lane v. Cotton, 12 Mod. 484. Eu * This opinion only is given ; it sufficiently states the case. ED. ALLNUTT V. INGLIS. 3 'take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. The question then is, whether circumstanced as this company is by the combination of the warehous- ing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord HALE, obliged to limit themselves to a reasonable compensation for such warehousing? And according to him, wherever the accident of time casts upon a party the benefit of having a legal monopol}* of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable com- pensation only for the use of the wharf. Lord HALE puts the case either way ; where the king or a subject have a public wharf to which all persons must come who come to that port to unlade their goods, either " because they are the wharfs only licensed by the queen, or because there is no other wharf in that port, as it may fall out : in that case (he says) there cannot be taken arbitrary and excessive duties for cranage, wharfage, &c. : neither can they be enhanced to an immoderate rate ; but the duties must be reasonable and moderate, though settled by the king's license or charter." And then he assigns this reason, "for now the wharf and crajjg^Tmd o ( thfiii_c.on venieacea_are affected with a .public interest, and they cease to be juris privati only." Then were the company's warehouses juris privati only at this time? The legislature had said that these goods should only be warehoused there ; and the act was passed not merely for the benefit of the company, but for the good of trade. The first clause (43 G. 3, c. 132, the general warehousing act) says that it would greatly tend to the encouragement of the trade and commerce of G. B. , and to the accommodation of merchants and others, if certain goods were permitted to be entered and landed and secured in the port of London without payment of duties at the time of the first entry : and then it says that it shall be lawful for the im- porter of certain goods enumerated in table A. to secure the same in the West India dock warehouses : and then by s. 2 other goods enumer- ated in table B. may in like manner be secured in the London dock warehouses. And there are no other places at present lawfully author- ized for the warehousing of wines (such as were imported in this case) except these warehouses within the London dock premises, or such others as are in the hands of this company. But if those other ware- houses were licensed in other hands, it would not cease to be a monopoly of the privilege of bonding there, if the right of the public were still narrowed and restricted to bond their goods in those particular ware- houses, though they might be in the hands of one or two others besides the compan}''s. Her then the company's warehouses were invested wilh-lhe monopoly of a public privilege, and therefore they must by law confine themselves^ to takejceasonable ratea for the ugej)f themTToFtBat purpjose. If the crown should hereafter think it advisable to extend the privilege more generally to other persons and places, so far as that 4 LUMBABD V. STEABNS. the public will not be restrained from exercising a choice of ware-' houses for the purpose, the company may be enfranchised from the re- striction which attaches upon a monopoly: but at present, while the public are so restricted to warehouse then* goods with them for the purpose of bonding, they must submit to that restriction ; and it is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid down by Lord HALE in the passage referred to, which includes the good sense as well as the law of the subject. Whether the company be bound to continue to apply their warehouses to this purpose may be a nice question, and I will not say to what extent it may go ; but as long as their warehouses are the only places which can be resorted to for this purpose, the}- are bound to let the trade have the use of them for a reasonable hire and reward. 1 LUMBARD v. STEARNS. SUPREME COURT OP MASSACHUSETTS, 1849. [4 Cush. 60.] SHAW, C. J. This bill was originally brought by the plaintiff as an owner of mills on the lower part of Town brook, in Springfield, against the defendant Stearns, alleging that by means of an aqueduct, on his own land, he had diverted some portion of the water of two springs, being some of the sources of said brook, and thereby diminished the plaintiffs water power. Whilst this bill was pending and before answer filed, an act was passed by the legislature on the 10th of May, 1848, (St. 1848, c. 303,) entitled "An act to incorporate the Springfield Aqueduct Company." This act authorized the taking of the springs before mentioned of Stearns, by purchase, and with certain other springs, the laying of an aqueduct for the purpose, expressed in the act, of supplying the village of Springfield with pure water. The act contains the provisions usual in such acts, for forming a company and raising a capital ; for taking springs and lands, paying all damages ; for digging up roads and ways ; providing hydrants ; for a gratuitous supply of water, in case of fire ; a penalty for corrupting the water; and vesting certain superintending powers in the board of health of Springfield, and the county commis- sioners of Hampden, respectively. After the passage of this act, a * GROSE, LE BLANC, and BAYLET, JJ., delivered concnrring opinions. E. LUMBAKD V. STEARNS. 5 supplemental bill was filed, making the aqueduct company a part)-, and insisting 011 the same grounds against them, as stated in the original bill. It is contended that this act is unconstitutional and void, because it in effect authorizes the corporation to take private rights of property for a use which is not a public one, and, therefore, not within the au- thority of the legislature, even though provision is therein made for a compensation for any such damage. It ma}' be very questionable, whether the plaintiff, taking the use of the brook for a mill power, does not take it subject to the reasonable use of all proprietors above, in or near whose premises it passes, for domestic purposes, for such ordi- nary trades as require the use of water, such as tanning, bleaching, dyeing, and the like, and also for the extinguishment of fires. If such be the right of the inhabitants to the use of the water, it may be a question, whether it is a greater encroachment on the plaintiff's rights, to take water b}' conduits and hydrants, than by buckets and engines. But as this right may involve a question of fact, which this case has not reached, in its present stage, we lay no stress on this consideration, but merely suggest it in passing. But we can perceive no ground, on which to sustain the argument, that this act does not declare a public use. It is so expressed in its title, and in the first enacting clause, and the entire act is conformable to this view. The supply of a large number of inhabitants with pure water is a public purpose. But it is urged, as an objection to the con- stitutionalit)* of the act, that there is no express provision therein re- quiring the corporation to supply all families and persons who should apply for water, on reasonable terms; that they may act capriciously and oppressive!)' ; and that by furnishing some houses and lots, and refusing a supply to others, they ma}* 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 pub- lic duties required by it. When an individual or a corporation is guilty of a breach of public duty, by misfeasance or nonfeasance, and the law has provided no other specific punishment for the breach, an indictment will lie. Perhaps also, in a suitable case, a process to revoke and annul the franchise might be maintained. But it is the less important to de- termine this question, because this charter is subject to the provision in the Rev. Sts. c. 44, 23 ; by which it is competent for the legislature to make such alterations and amendments, as more effectually to carry into effect all the purposes of the act. The court are of opinion that this act is not open to the objections made to it, and that it is not unconstitutional. Bill dismissed. PATERSON GAS LIGHT CO. V. BRADY. PATERSON GAS LIGHT CO. v. BRADY. SUPREME COURT OF NEW JERSEY, 1858. [27 N. J. L. 245.] ELMER, J. The question arises in this case, whether the Paterson Gas Light Company was bound, upon general principles, or as a duty imposed upon them by their charter, to furnish gas to all buildings on the lines of their main pipes, upon the applicants therefor agreeing to pa}' the fixed price, and to comply with such reasonable regulations as the company had established, as the court held in their charge, and as is assumed in the plaintiff's state of demand, and was insisted on in the argument before the court. That no such duty arises out of the mere facts that the company made gas, laid pipes in the streets, and actually furnished it to many persons, may be safely assumed. Inn-keepers and common carriers are bound to receive all who properly apply to them, but this is a duty peculiar to them. I fully concur with what is said by Judge Bronson, delivering the opinion of the court in Wells v. Steam Nav. Co., 2 Comst. 209. " Other bailees and persons engaged in other employ- ments are not, like common carriers and inn-keepers, bound to accept employment when offered ; nor, like them, tied down to a reasonable reward for their services. They are at liberty to demand an unreason- able price before the}' will undertake any work or trust, or to reject employment altogether." And see Redfield on Railways, 293-94, and note. But the court, in the charge, rested this duty on the terms of the act of incorporation. The language is, " they were incorporated with the special powers of their charter for the purpose of lighting the streets, buildings, manufactories, and other places in this city, not such par- ticular streets, buildings, and mills as the caprice of their stockholders or officers may elect." Upon looking into the charter, (Acts of 1825, p. 102,) it appears to be simply an act of incorporation, giving the company " power and authority to manufacture, make, and sell gas, for the purpose of light- ing the streets, buildings, manufactories, and other places situate in the said town of Paterson," and for that purpose to purchase, take, and hold real estate, and to make contracts ; provided, that the said real estate shall not exceed what may be absolutely necessary to effect the purposes of said company, and that no public or private land shall be dug into, or in any way injured or defaced, without permission being first obtained in writing from the owner or owners thereof. No monop- PATERSON GAS LIGHT CO. V. BKADY. 7 oly or special privileges are granted, except that the company is enti- tled to recover double damages for any wilful injury done to the pipes or other works. The state of demand does not assume, nor was it insisted on in the argument, that the charter imposes upon the company the duty of sup- plying gas to all the town, but only to persons having buildings on the line of their pipes. In my opinion it imposes no duty of either descrip- tion, but simply empowers the incorporation to do what private indi- viduals might have done without any charter. There is nothing in the act indicating any intention to impose an}* duty that would not have devolved on an individual erecting gas works ; nor is there anything to prevent another company, or any individual who can obtain the per- mission of the cit}* and owners of the land, from setting up a rival manufacture, and placing pipes alongside of those belonging to the company. Most of the acts incorporating gas companies do, what this does not, authorize the company, in express terms, to place their pipes in the public streets ; but I am not aware that an}- of them impose the express duty of furnishing gas to all the persons demanding it, or to any of them. The Paterson company is authorized to make and sell gas, which, in the absence of an}' indication to the contrary, implies that they may fix their own price, and choose their own customers, like any other manufacturer. If the duty of furnishing gas to those requir- ing it was meant to be imposed, it would doubtless be expressed, and not be left to mere inference. If it is to be inferred, what is to be the limit ? Why have not all the inhabitants of the town the same right to demand it as those having buildings on the streets along which the pipes are placed ? The charter sets forth the general purpose of light- ing all the streets and buildings, and the court below seems to have held that the company has no choice in the matter. But what company in the state, or elsewhere, could have ventured to assume such a respon- sibility as that? The language of the charter is throughout permissive, and not com- pulsory. 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 incorporated to cany 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 commun- ity have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like inn-keepers 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 incorporated 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. 8 PATERSON GAS LIGHT CO. V. BRADY. Had the plaintiff averred that the company had held out to the per- sons occupying buildings on the streets along which the pipes are laid, that it was ready to furnish gas to those providing the requisite fixtures and accepting the prescribed terms, and that he had done this, and that in consequence of a breach of a contract, thus or otherwise entered into, he had suffered damages, the case would have been very different. But this is not the nature of his claim. He claimed and has recovered damages and it would seem exemplary damages, simply on the ground that it was the duty of the company to furnish gas on the streets where the pipes are laid, to all persons demanding it, and offering to pay a reasonable price. Assuming this principle, it was left to the jury to say whether one of the rules of the company was reason- able. Being of opinion that the state of demand discloses no good cause of action, and that the court eired in the charge, I think the judg- ment must be reversed. There is also another error in the proceedings. It appears that, before'the hearing of the appeal, the court discharged the jurors in atten- dance from two townships, without drawing them, as required by the 28th section of the act relative to juries. Nix. Dig. 385. When the appeal was called, a jury was demanded, and the sheriff having returned a panel, the defendant below objected, and the objection being over- ruled, the jury was sworn. The correctness of this ruling can only be maintained by holding that when the sheriff returns a panel in the Court of Common Pleas for the trial of an appeal, as required by the 48th section of the small cause act, he is not required to draw them from the box, but may return a special panel. The act relative to juries, whether considered as contemporaneous with the small cause act, or as subsequent, according to its actual date, applies to all jury cases not specially excepted, and includes appeals. The language is unqualified, and an}' other construction would be inconvenient, if not impracticable. The uniform practice has been to draw jurors in such cases. To depart from this practice will be to introduce a needless exception from the general policy of the law, designed to secure an impartial jury. POTTS, J., concurred. LOUISVILLE, CINCINNATI & CHARLESTON K.R. CO. V. CHAPPELL. 9 LOUISVILLE, CINCINNATI & CHARLESTON RAILROAD COMPANY v. CHAPPELL. COURT OP ERRORS OF SOUTH CAROLINA, 1838. [Rice, 383.] RICHARDSON, J. This court has weighed the argument so well pre- sented on the part of the appellants, and appreciate its force. The practical power confided to the railroad companj- by their charter, is great; and, from its very nature, such power might be abused or perverted, and landholders annoyed. Because the route of this great commercial way is, from necessity, left to the understanding, skill and discretion of the company ; and their authority might be prac- tically enforced, with too little consideration for individual justice, or human feelings. But, for any such abuse of power, the laws supply ample remedy. An independent jury is a refreshing sight and sure refuge in every instance, and is secured by the charter ; and for con- tinued abuse, or misuse, any charter may be repealed. But when the legislature have confided express power, it is. not for this court to an- ticipate abuses and offer to restrain them, when our judicial province might be hereafter required in their supervision and correction. All powers, great and small, may be made oppressive. Yet, still, our ne- cessities require them to exist in some tribunal. If the railroad route had been given for a common highway, and surveyors named to locate its track through the entire State, and con- tractors hired to construct such road, with the emolument of toll gates, provided for compensation, the objections offered would be of similar character to those offered in the argument for the present defendants There would be no difference in principle or degree. The true substantial difficulty felt by the court, is in coming to the conclusion that the railroad is to be put on the footing and character of a highway, and is erected, not for private, but for such general pur- poses, as to render it an institution for such public purposes. But, according to the view taken in the circuit decision, that the application of the eminent domain of government is, from its essential nature, very various ; and to be made according to the successive exigencies of the State, it may be rationally assumed, that railroads, although of recent orjginrhavelilready become of incalculable public importance : That the enlarged ends and objects of this great railroad especially, is, for the transportation and intercourse, commercial and social, of several differ- ent States, whose interests are to be ever regarded, and the mutual confidence that belongs to such a work sacredly fulfilled. This charac- teristic is irreconcilable with the proper conception of a mere~pnvate way. 10 LOUISVILLE, CINCINNATI & CHARLESTON R.R. CO. V. CHAPPELL. Again : Railroads have been recognized as highways in other States, with whose adjudications upon great subjects of commerce and recipro- cal advantage, a liberal coinit3' ought to be observed throughout the States : and the same great objects steadily kept in view by all who value railroads, a new moral cement of the American Union, as well as the useful vehicles of our vast and increasing internal commerce : and thus uniting in their natural operation pecuniary profit with moral fit- ness, and the politic establishment of so many independent States. May not railroads, then, be fairly considered, in character and ob- jects, (and ours more especially,) as international, and therefore public highways? With such sentiments, and for such purposes, we are bound to con- sider the great ends of our own railroad system, and to inquire, under their guidance, whether the eminent domain of government may not be fairly and rationally applied for its advancement, in the very way pointed out by the present charter of the Louisville, Cincinnati and Charleston Railroad Company. In such an instance, we should espe- cially require, that the charter shall be clearly unconstitutional, before we put it in the power of any one freeholder to arrest the progress of so great a work of usefulness and high considerations. It is not enough that the human mind may balance on the subject But take another point of view, which I cannot help thinking of last- ing importance. Such a railroad as ours, should be held as a highway on account of its great objects : and for the same reasons, to be kept under public control. Is it not wise to hold such a company, as the guardians, or lessees, of a great highway, endowed with a public fran- chise : yet subject to the control which their purposes indicate as neces- sary and proper for such an establishment, and which the general right to use the road absolutely requires ? Such a road must be held as a part of the public domain, farmed out to individual men, for its practical administration and order alone and if placed aloof from such control, it would inevitably become sus- pected of partialit}-, and odious to the people. Since the argument before this court, our attention has been turned to the case of Beekman v. The Saratoga and Schenectady Railroad Company. It is found in Paige's Ch. Rep., 3 vol., 45, and is a learned decision of Chancellor Wai worth, of New York. It will be satisfactory to the parties concerned in interest, to know, that the following points were ably discussed and decided in that case: 1. "Acts authorizing railroad companies to take private property, for the purposes of the road, upon paying full compensation, are constitutional." 2. " Rail- roads are public improvements ; and the legislature can appropriate private property for such improvements, or authorize a corporation thus to appropriate it, upon full compensation to the owner." 3. ^JTbe public have an interest in the use of the railroad and the company are liable to respond in damages if they refuse to transport an individ- ual, or his property, without reasonable excuse, upon being paid the EAST OMAHA STREET RAILWAY COMPANY V. GODOLA. 11 proper rate of transportation." 4. "The legislature maj- regulate the use of the franchise, and limit the amount of tolls, unless they have de- prived themselves of that power by the contract." 5. " It belongs to the legislature to decide, whether the public benefit is of sufficient im- portance to justify the exercise of the eminent domain in such cases." 6. " And the only restriction is, that private property cannot be taken without full compensation and in the mode prescribed." Thus, then, the decision of this court concurs in every material re- spect, with those of other American judicatures, who have considered the great modern establishments of railroads. And, it may be seen, that the manner of reasoning in each court has been drawn from the same great principles inherent in, and consecrated by the American constitutions. And thus, too, we have increasing evidence of our homogeneous principles of their moral influence and sure fruits, in the harmony of opinions and the consequent union in action, which engender reciprocal regard and tend so much to confirm the success of so many independent States, united together by such principles. The appeal is dismissed on all the grounds taken. EAST OMAHA STREET RAILWAY COMPANY v. GODOLA. SUPREME COURT OF NEBRASKA, 1897. [50 Neb. 906.1] POST, C. J. Complaint is made of the exclusion of evidence to prove that the defendant's line of road is constructed upon private propert} r . The purpose of the evidence offered was, if we understand the position of counsel, to prove that the defendant company is not liable as a com- mon carrier ; but that proposition is not, it seems to us, entitled to serious consideration. The defendant, by undertaking to transport passengers for hire between Courtland Beach and the city of Omaha, assumed the relation toward its patrons of a common carrier, and the character of the easement in the right of way is wholly immaterial. Affirmed. 1 Only one point is printed. ED. 12 EVERGREEN CEMETERY ASSOCIATION V. BEECHER. EVERGREEN CEMETERY ASSOCIATION v. BEECHER. SUPREME COURT OF CONNECTICUT, 1885. [53 Conn. 551.1] PARDEE, J. This is a complaint asking leave to take land for ceme- tery purposes by right of eminent domain. The case has been reserved for our advice. The plaintiff is the owner of a cemetery, and desires to enlarge it by taking several adjoining pieces of land, each owned by a different per- son, and has made these owners joint defendants. Because of this joinder they demur. But we think that it is in harmony with our prac- tice in analogous proceedings and with the spirit of the Practice Act, and that it promotes speedy, complete, and inexpensive justice, with- out placing any obstruction in the way of any defendant in protecting his rights. Each carries his own burden only; he is not made to carry that of any of his associates. Therefore the complaint, so far forth as this objection is concerned, is sufficient. The safety of the living requires the burial of the dead in proper time and place; and, inasmuch as it may so happen that no individual may be willing to sell land for such use, of necessity there must remain to the public the right to acquire and use it under such regulations as a proper respect for the memory of the dead and the feelings of survivors demands. In order to secure for burial places during a period extend- ing indefinitely into the future that degree of care universally demanded, the legislature permits associations to exist with power to discharge in behalf and for the benefit of the public the duty of providing, main- taining, and protecting them. The use of land by them for this pur- pose does not cease to be a public use because they require varying sums for rights to bury in different localities ; not even if the cost of the right is the practical exclusion of some. Corporations take land by right of eminent domain primarily for the benefit of the public, in- cidentally for the benefit of themselves. As a rule men are not allowed to ride in cars, or pass along turnpikes, or cross toll-bridges, or have grain ground at the mill, without making compensation. One man asks and pays for a single seat in a car; another for a special train; all have rights ; each pays in proportion to his use ; and some are excluded because of their inability to pay for any use ; nevertheless, it remains a public use as long as all persons have the same measure of right for the same measure of money. But it is a matter of common knowledge that there are man}' ceme- teries which are strictly private ; in which the public have not, and can- not acquire, the right to bury. Clearly the proprietors of these cannot take land for such continued private use by right of eminent domain. 1 Opinion only is printed. EJX WEYMOUTH V. PENOBSCOT LOG DRIVING CO. 13 The complaint alleges that the plaintiff is an association duly organized under the laws of this State for the purpose of establishing a burying ground ; that it now owns one ; that it desires to enlarge it ; and that such enlargement is necessary and proper. There is no allegation that the land which it desires to take for such enlargement is for the public use in the sense indicated in this opinion. Therefore the Superior Court is advised that for the reason that the complaint does not set out any right in the plaintiffs to acquire title to the land of the defendants otherwise than by their voluntary deed, the demurrer must be sustained. In this opinion the other judges concurred. 1 WEYMOUTH v. PENOBSCOT LOG DRIVING CO. SUPREME COURT OF MAINE, 1880. [71 Me. 29. 2 ] AN action on the case to recover damages of the defendant corpora- tion for carelessly and negligently preventing the plaintiffs from season- ably delivering 751,290 feet of spruce logs, and 48,780 feet of pine logs, cut and hauled by them in the winter of 1872-3, on landings on the stream between Caribou lake and Chesuncook lake, at the outlet of Chesuncook lake, in consequence of which 600,000 feet of the plaintiffs logs were not driven to market in the year 1873, but were left behind in an exposed position, where many were lost, and there was a great shrinkage in quantity and quality. The writ is dated December 8, 1877. Plea, general issue. The verdict was for plaintiff for $1,496.51, and the defendants move to set the same aside as against law, and against evidence and the weight of evidence. The defendants also allege exceptions to refusals of the presiding judge to give certain requested instructions. DANFORTH, J. It is contended that this action is not maintainable, and the court was requested to instruct the jury that, " The corporation is not by their charter under any legal obligation to drive the logs; but the charter gives them the power to drive, and for all such logs as they do drive, the corporation is to be paid." It is claimed that this instruction is required by a fair construction of the terms of the charter. It is unquestionably true, that when any doubt exists as to the mean- ing of any language used, it is to be interpreted in the light afforded by the connection in which it is used, the several provisions bearing upon 1 Compare : Lumbard v. Stearns, 4 Cush. 60. ED. 2 This case is abridged. ED. 14 WEYMOUTH V. PENOBSCOT LOG DRIVING CO. the same subject matter, the general purpose to be accomplished, as well as the manner in which it is to be accomplished. It is also true that when the terms of an act are free from obscurity, leaving no doubt as to the meaning of the legislature, no construction is allowed to give the law a different meaning, whatever may be the reasons therefor. The first ground taken in support of the request, is that the defendant company is a " mutual association combined together for mutual benefit to aid each other in the accomplishment of a given object in which all are equally interested," and the inference drawn is, that each is equally responsible for the doings of all. This view is endeavored to be sus- tained by the alleged facts that "it is not a stock company, has no capital, no power to do anything for others than its own members, no permanent stockholders, no stock, and no provision for raising money to pay any charges or expenses except the expense of driving." If these suggestions are found to be apparent from the provisions of the charter, the}*, or a portion of them, will be entitled to great weight, and might perhaps be considered conclusive. The most important of them are not so found. It may be that the charter was obtained for the mutual benefit of the log owners. Nevertheless, by its express terms it constitutes its members a corporation with all the rights, lia- bilities, and individuality attached to corporations of a similar nature. The first section provides that certain persons named, with their asso- ciates and successors, " are hereby made and constituted a body politic and corporate," and as such it ma}' sue and be sued, prosecute and de- fend, may hold real and personal estate, not exceeding fifty thousand dollars at any one time, and may grant and vote money. Thus the charter gives all the attributes of a corporation and none of a simple association. It may not have stock, and if not, it can have no stock- holders. But that is not necessary to a corporation, and does not con- stitute an element in any approved definition of it. If it has no stock, it may have a capital, and though it may assess only a certain amount upon the logs driven, the charter does not preclude money from being raised in other ways. Nor is the amount which may be assessed upon the logs driven limited to the expense of driving. The amendment of 1865 provides for a toll, not exceeding a certain amount, upon the logs driven " sufficient to cover all expenses, and such other sums as may be necessary for the purposes of the company." Nor do we find any provision " that it may not do anything for others than its own members." By the charter it may drive all the logs and other tinker to be driven down the west branch of the Penobscot river, while all owners of such logs may not be members of the company. It does not appear whether the first corporators were such owners or otherwise. In the charter we find no provision prescribing the qualifi- cation of the members. The by-laws provide, not that the member shall be an owner of logs to be driven, but he must be an " owner of timber lands or engaged in a particular lumbering operation on the west branch WEYMOUTII V. PENOBSCOT LOG DRIVING CO. 15 of the Penobscot river, or its tributaries," and can then be a member only on application and receiving a majority of the votes of the mem- bers present. Hence the company may be acting for others, not mem- bers, while its members may not own a single log in the drive. There is then no ground upon which this defendant can be held to be a mutual association, acting as a partnership for the benefit of its own members only, each bound by the acts of the others, but it must be held as a corporation acting as such, for the benefit of its own members, perhaps, but also for such other owners of logs as ma}' not choose to become members, or may not possess the required qualification of " being a land owner, or a practical operator/' or may not be able to get the requisite number of votes to make them such. It is a significant fact that in this case it does not appear that the plaintiff is a member of the defendant company, and until that does appear he cannot be subjected to the liabilities of one. The fact that there is no specific provision for raising money to meet such a liability, as is here claimed, is immaterial. It cannot affect the plaintiff's right to a judgment. The liability of the log owners to be assessed, and its limits, are fixed by law, as also the purposes to which such assessments may be applied. Any recover}' against the defendant will not change that law in the slightest degree. No assessment here- after made can be increased to meet any contingency not contemplated by the charter, and if the plaintiff, after having obtained judgment, is unable to find means wherewith to satisfy it in accordance with the law, he will simpl}' be in the condition of many other judgment creditors before him who have paid largel}' for that which affords them no benefit. It is further contended that the action cannot be maintained, because, while the defendant under its charter has the right to drive all the logs to be driven, the obligation to do so is not imposed upon it. In other words, by the provision of the charter, it is left optional with the com- pany to drive such as it may choose to do. The language is, " and said company may drive all logs and other timber that may be in the west branch of the Penobscot river," &c., and it is contended that the word "may" must be construed as permis- sive and not as imperative. If any argument were needed to show that such is its proper construction, it would seem that the able and exhaus- tive discussion of this point by the counsel, would leave no room for doubt. The charter was granted as a privilege and not for the purpose of imposing an obligation, and when granted it has no binding effect until accepted by those for whom it was intended. But when accepted it becomes of binding force and must be taken with all its conditions and burdens, as well as its privileges. It cannot be accepted in part, but must be taken as a whole. 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 03* the company, it became a vested and also an exclusive right. It is therefore taken not only 16 BRUSH ELECTRIC, ETC. CO. V. CONSOLIDATED, ETC. SUBWAY CO. from all other corporations, but excludes the owner as well. If this exclusion was beyond the power of the legislature, it is not for this de- fendant to complain, for the right has been given to and accepted by it By its acceptance and exclusion of the owner from the privilege, in justice and in law it assumed an obligation corresponding to, and com- mensurate with its privilege. It accepted the right to drive all the logs, and that acceptance was an undertaking to drive them all, or to use reasonable skill and diligence to accomplish that object. This duty is not one imposed by the charter* certainly not by that alone, but is the result of the defendant's own act ; it is its own undertaking ; virtually a contract on its part, to accomplish that which it was authorized to do. Motion and exceptions ovemiled. 1 BRUSH ELECTRIC ILLUMINATING CO. v. CONSOLIDATED TELEGRAPH AND ELECTRICAL SUBWAY CO. SUPREME COURT, NEW YORK, 1891. [15 N. Y. S. 81.] ACTION by the Brush Electric Illuminating Company against the Consolidated Telegraph and Electrical Subway Company. Plaintiff moves for an injunction. INGRAHAM, J. The judgment demanded by plaintiff in this action is that the defendant, its officers, agents, and servants, and all others having notice, be perpetual!} 7 enjoined and restrained from removing, cutting out, or in any manner whatsoever interfering with the cables and conductors or the property of the plaintiff, and from interfering with the plaintiff, or its officers, agents, and servants, in operating or maintaining the said cables and conductors, and in having access to them or any of the plaintiff's property in the subways of the defendant, or elsewhere, and that this court determine and adjudge what would be a just and reasonable rental for the use of the ducts and subwa3's by the plaintiff and the terms upon which such rentals must be paid, and that defendant be enjoined from committing any of said acts during the pendency of the action. An inspection of the complaint shows that the theory upon which the plaintiff brought the action was that in some way this court had power to fix what, in its judgment, would be a reasonable rental for the plaintiff to pay for the use of the ducts occu- pied by it It seems to me clear that this court has no such power to fix or determine what rental plaintiff should pay, or what would be a rea- sonable compensation to be paid by plaintiff, for its use of the subways. The defendant has constructed these subways in pursuance of two con- tracts, known as the contracts of July, 1886, and of April, 1887. The 1 Compare : Mann v. Log Co., 46 Mich. 38. ED. BRUSH ELECTRIC, ETC. CO. V. CONSOLIDATED, ETC. SUBWAY CO. 17 contract of April, 1887, was, in terras, a modification of the contract of 1886, and under its provisions the defendants were authorized to build, equip, maintain, and operate the subways in the contract men- tioned and referred to. The defendant, by the contract, agreed that spaces in said subways shall be leased by the parties of the first part (the board of electrical subways) to any company or corporation having lawful power to operate electrical subways in the streets in the city of New York that may apply for the same. It does not appear, however, that the board have ever acted under this authority. The contract, however, further provides that the party of the second part (this defend- ant) ma} r fix a fair scale of rent to be charged, but the scale of rents or any charges fixed or made by defendant shall at all times be subject to the control, modification, and revision by the board of electrical con- trol, and that no contract shall be made between the party of the second part (the defendant) and any company or corporation on any terms which shall not require the payment by such other companies or corporations of rents at the rates so fixed. This contract was expressly ratified by chapter 716, Laws, 1887, and it must control the right of the defendant to the use of the subways constructed by the defendant. It will be seen that the provisions of this contract gave to the defendant in the first instance the authority to fix a uniform rate to be paid by all persons occupying its subways. That rate must be a fair one, but the corporation is to say, in the first instance, what is a fair charge for the use of the subway ; and it is clear that until the rate fixed is modified by the board of electrical control, who are the successors of the com- missioners of the electrical subways, the rate so fixed must be paid by all persons using the subways. It is thus left to the commissioners to determine whether or not the rate fixed by the defendant is a fair and reasonable rate, and this court is given no power to review the exercise of that discretion ; and since the commencement of this action the board of electrical control has passed upon the question, and fixed the rent that the plaintiff is to pay for the use of the subways. I think, therefore, that the court cannot determine what would be a just and reasonable rental for the use of the subways by plaintiff. Nothing in section 7 of the act of 1887 would justify the court in reviewing the action of the board of electrical control, for it was the evident intent of that section to give to the court power by mandamus to compel the defendant to comply with its contract, and furnish just and equal facili- ties to corporations applying for the use of the subways, not to fix the rent that was to be paid, which was, by the express terms of the con- tract, to be fixed by defendant, subject to the review of the board, and the rate thus fixed must be paid by each corporation using the subways. Nor do I think that the plaintiff would be entitled to an injunction restraining the defendant from removing, cutting out, or in an}- manner interfering with the cables and conductors of the plaintiff. The exact relation that exists between plaintiff and defendant is not easy to deter- mine. The defendant being the owner of these subways, or ducts, 18 BRUSH ELECT UIC, ETC. CO. V. CONSOLIDATED, ETC. SUBWAY CO. built under the surface of the streets in the city of New York, the plaintiff being desirous of using such subways for its wires or cables with which to supply electricity to its customers, presented to the de- fendant an instrument in writing whereby application was made for space in the electrical subway (specifying the street or avenue) for the term of one year, to be used for electrical light and power purposes. In some of these applications the rate or rental was fixed at $1,000 per duct per mile per annum; in other applications the amount of rent was not mentioned. The rates fixed by defendant had, however, been com- municated to the plaintiff prior to making of the applications in ques- tion. No agreement or contract of any kind appears to have been signed by defendant, nor did it agree to allow the plaintiff to continue to use the duct or subway for an}' specified term. At most it was an acceptance of the application, and a verbal permission to use the duct for the purpose mentioned. So far as the plaintiff can claim under an}' grant or contract made by defendant, this would constitute a mere license to the plaintiff to use the subway or duct for the period men- tioned. By such license the plaintiff acquired no interest in the sub- way, and, under the contractual relations between the parties, the defendant was, I think, entitled to revoke the license at any time, and upon the revocation of the license all rights of the plaintiff in the sub- way ceased. The distinction between a license and an easement is stated in Wiseman v. Lucksinger, 84 N. Y. 42, and I think, under the rule there laid down, this permission to use these ducts could be nothing more than a license, and revokable at the pleasure of the licensor. The plaintiff, however, claims that the defendant is a quasi public corporation, and has only such rights as are given to it by charter, and, as it is nowhere expressly given the right to withdraw the plaintiff's wires from its ducts, when they are once there it must allow them to remain there forever; and the only remedy that the defendant has against the plaintiff, or any one using its ducts, is an action at law for the recovery of the rent reserved. It has been held, however, that this principle has reference to remedies or processes of a judicial nature only, and does not affect the right of a person to do such material acts as are necessary to protect his rights. Jordan, etc. Co. v. Morley, 23 N. Y. 554. But the statutes and contracts in question conferred upon defendant no remedy in case of the refusal of a person using its sub- ways to pay the rate fixed, and I can see no reason why it should not have the same rights that any other person would have under simi- lar circumstances. It seems to me, however, that this position arises out of a misconception of the defendant's real position. The defendant is not a common carrier, nor has it received from the State a franchise such as is conferred upon a ferry company or a turnpike road. Defendant, it is true, obtained permission from the public authorities to build these subways in the public streets, and it has bound itself by contract to furnish to such corporations or individuals as have authority to use the public streets for electrical purposes the use of its BRUSH ELECTRIC, ETC. CO. V. CONSOLIDATED, ETC. SUBWAY CO. 19 subwaj-s, but such obligation rests entirely upon its contract under which it received its authority to build its subways. Irrespective of that contract, and section 7 of the Acts of 1887, the plaintiff would have no right, against the will of the defendant, to use its subways, nor would the public authorities, nor the courts, have power to compel the defendant to give an}- rights to the plaintiff. Whatever right, there- fore, the plaintiff acquired, it is under the contract under which the defendant had authority to build the subways, and the statutes under which such contract was made, and there can be nothing found in these statutes or contract that would justify the claim of the plaintiff. On the contraiy, the utmost care is taken to provide for the payment of compensation to the defendant for the use of the subways, and defend- ant is expressly prevented from giving any one the right to use them, except upon the payment of the rate fixed ; and to say that a corpora- tion getting permission to use the subwa3's upon an agreement to pay the rate fixed for its use, under the provisions of the statute, could, by simply refusing to pay, defeat the express provisions of the contract by using the subway without paying for it the rate fixed or paying a less rate, would subvert the whole scheme under which the subwaj's have been built. The conduct of the plaintiff has not been such as to commend it to the favorable consideration of a court of equity. Although well know- ing the rates fixed by defendant for the use of its subways, and where in the application the amount of rent is stated, no application was made to the board of electrical control to review the action of the defend- ant in fixing the rent, nor did the plaintiff pay or tender to the defendant any sum as compensation for the use of the subway by it. It simply held on to the subway, paying nothing for its use until the defendant threatened to revoke the permission given to use the subway, and then, without paying or offering to pay to the defendant anything, it applies to the court for an injunction, under which it could continue to use the subways indefinitely, without paying anything for the right it enjo3*s. Under such circumstances, it would require a clear case, and one free from doubt, to justify the interference of the court. I have examined carefully the elaborate arguments submitted on behalf of the plaintiff, and, while it has been impracticable to notice all of the points made, I have come to the conclusion that upon no ground can the plaintiff be entitled to any relief in this action. The motion for injunction must therefore be denied, and temporary injunction vacated. 20 JOHNSTON'S APPEAL. JOHNSTON'S APPEAL. SUPREME COUBT OF PENNSYLVANIA, 1886. [7 Atl. 167.] APPEAL of Henry M. Johnston from decree of common pleas No. 2, Allegheny county, dismissing his bill in equity filed against the People's Natural Gas Company and others. PER CDRIAH. It is a curious objection to set up against the act of May 29, 1885, in view of the present consumption of natural gas, that its use is not a public one, and that, therefore, those corporations which are engaged in its transportation may not be vested with the right of eminent domain. As well might this objection be urged against the vesting of this power in those companies which have been incorporated for the purpose of supplying our towns and villages with water, in which the public interest is found, not in the transportation, but in the use of that fluid after it has, by these agencies, been transported. Nor would it seem to us as of the slightest materiality that the water thus produced had been drawn from a single spring, well, or basin. Just so with natural jjas. It has become L a _public_ necessity ; but, as it cannot be used except it be piped to the manufactories and residences of the people, it follows that, as the piping of it is necessary to its use, the means so used for its transportation must be of prime importance to the public, and directh' affect its welfare. The decree of the court below is affirmed, and the appeal dismissed, at the costs of the appellant. STATE V. EDWARDS. 21 STATE v. EDWARDS. SUPREME COURT OF MAINE, 1893. [86 Me. 102.] HASKELL, J. The defendants were convicted under R. S., c. 57, 5 and 6, as amended by the Act of 1885, c. 332, on two several counts ; first, of refusing to receive grain at their grist-mill there tendered to be ground ; second, of taking excessive toll. The defend- ants have exception to the ruling of the court that they were bound to receive the grists of grain offered, and grind the same for the toll specified by the statute, and that an agreement for toll in excess of that fixed by statute would be no defence. The case does not show what kind of a mill the defendants operated, nor whether it was a public or private mill, nor whether it was a water- mill, steam-mill or wind-mill. It assumes, however, that it was a grist- mill, used for grinding grain for the public. Exceptions must show sufficient facts to make the ruling erroneous. Reed v. Reed, 70 Maine, 504. In this case, therefore, if the ruling excepted to be correct, and the statute under which the conviction was had be constitutional when applied to any kind of a grist-mill, judg- ment must be entered on the verdict. And it may be assumed that defendants' mill was a public grist-mill, propelled by a head of water obtained under authority of the mill act, R. S., c. 92. Assuming the mill to be a public mill, and the statute under which the conviction was had to be valid, an agreement between the owner of the grain and the defendants, for toll in excess of the statute quantit}', can be no defence. The act of the defendants in taking excessive toll was just as much in defiance and violation of the statute, when taken by agreement with the owner of the grist, as if taken without his con- sent. The defendants' act is prohibited by the statute. They wer> required to run their public mill for statute toll, with equal dispatch for all the patrons of their mill. They were required to receive grists and grind them in their turn, without motive for unequal dispatch to those willing to pa}' an extra price for it. The taking of usury b}- agreement with the borrower of money is analogous. Freedom from blame OR the part of the lender is not a bar to the borrower's right to recover back the usur}'. Houghton v. Stowcll, 28 Maine, 215. The statute under which the conviction was had imposes no such condition. But it is stoutly asserted that the statute is unconstitutional as an invasion of the private right of enjoyment of property. The mill act or Maine applies to all water-mills ; and whether its validity results from the exercise of eminent domain, as supposed by man}- cases, Jordan t. Woodard, 40 Maine, 317 ; Great Falls Mfg. Co. v. Fernald, 47 N. II. 22 STATE V. EDWARDS. 444 ; Olmstead v. Camp, 33 Conn. 532, and others cited by Gould on Waters, 253, and by the Supreme Court in Head v. Amoskeag Mfg. Co., 113 U. S. 9, or from the proper regulation of the rights of riparian owners, so ns to best serve the public welfare, having due regard to the interests of all, as held in Head i\ the Amoskeag Mfg. Co. supra, and in Murdock v. Stickney, 8 Cusb. 114, and remarked by the Court in Lowell r. Boston, 111 Mass. 466, it is unnecessary now to consider. It is conceded by all authorities that the public use of property by the individual is within the scope of legislative control. And it matters not whether the use be authorized by express statute or dedicated by the individual proprietor. If it be a public use, it is within the super- vision and control of the legislature. The troublesome question is, whether the use be public. Tyler v. Beacher, 44 Vt. 648. In most branches of business the public has an interest. That interest varies according to the surrounding conditions of the particular business in question. If it be a monopoh*, the interest of the public to be fairly and conveniently served is much greater than when the monopoly ends by force of wholesome competition. A distinction must be made between a public use and a use in which the public has an interest. In the former case, the public may control, because it is a use within the function of government to establish and maintain. In the latter case, it is a private enterprise that serves the public and in which it is inter- ested to the extent of its necessities and convenience. The former is clearly within the control of the legislature, while the latter ma\- not be. Many authorities, however, go to that extent. Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517, and cases cited. The public is interested to be well and reasonably served at the store of the tradesman, the shop of the mechanic and the office of the professional man, and yet, all these vocations are private. The goods on sale in the store, material furnished by the mechanic, and the skill emplo\ T ed by the professional man are the individual property of each one respec- tively. Their vocations are exercised for their own gain, and they have a right to the fruits of their own industry without legislative control. It must not be understood that each one may not be properly subjected to suitable police regulations as to the manner of his business; 2 Kent, 340; but the business cannot be thereby controlled and the profits to be gained therefrom destroyed, taken away or limited by the establish- ment of prices ; otherwise we should have a paternal government that might crush out all individual liberty, and the declaration of our con- stitution would become as valueless as stubble. It is conceded by all authorities that common carriers, common ferries, common roads, common wharves, common telegraphs and common telephones, etc., and common grist-mills and common lumber mills are of that public nature to be put under public control, whether operated under the authority of charters from the state, or by indi- vidual enterprise. Each of those cases is within the function of STATE V. EDWARDS. 23 government to establish and maintain, and, therefore, to control, by whomsoever exercised. Blair v. Cuming Count}-, 111 U. S. 363; Head v. AmoskeagxMfg. Co., 113 U. S. 9; Stone v. Farmer's Loan and Trust Co., 116 U. S. 307 ; Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418. 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. Burlington v. Beasley, 94 U. S. 310. They have always been considered so neces- sary for the existence of the community that it was proper for govern- ment 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 maintain 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. In the present case, the mill must be considered a public mill and rightfully within legislative control. No suggestion is made that the statute regulation is unreasonable, and therefore it is unimportant to consider whether the reasonableness of the statute regulation be a legislative or judicial function. Exceptions overruled. 24 SAMMONS V. KEARNEY POWER 10L Ind. 250; Telephone Co. v. Talley, 118 Ind. 194; State v. Telephone Co., 17 Neb. 126; State v. Telephone Co., 36 Oh. St. 296 ; Telephone Co. v. Com., 3 Atl. 825 ; Telephone Co. t. Telephone Co., 61 Vt. 241. ED. INTER-OCEAN PUBLISHING CO. V. ASSOCIATED PKESS. 41 defendants to the public. The proof shows that plaintiff habitually caused the quotations, when received upon defendant's instrument, to be transmitted by private wire to Lawrence Gross & Co., at 574 Fifth Avenue. Plaintiff seeks to justify this breach of the conditions upon which he received the instrument by alleging that he is interested in business with that firm. We think this affords no justification. If plaintiff, by entering into business relations with another firm, could gain a right to repeat the quotations he might, if diligent, absorb a great share of de- fendant's business. Plaintiffs attempted justification brings out clearly the reasonableness of the clause in the contract to which we have referred. The violation by plaintiff of the stipulation upon which he received the instrument amply sustains the order vacating the injunction. Order affirmed, with costs. 1 Present PRATT and DTKMAN, JJ. ; BARNARD, P. J., not sitting. Order vacating injunction affirmed, with costs. THE INTER-OCEAN PUBLISHING CO. v. THE ASSOCIATED PRESS. SUPREME COURT OF ILLINOIS, 1900. [184 III. 438.] MR. JUSTICE PHILLIPS 2 delivered the opinion of the court : The Inter-Ocean Publishing Company, a corporation organized un- der the laws of the State of Illinois, is engaged in publishing two newspapers in the city of Chicago, known as " The Daily Inter-Ocean " and " The Weekly Inter-Ocean," which have a wide circulation in the States and Territories of the United States. The Associated Press is a corporation organized under the laws of the State of Illinois in 1892. The object of its creation was, " To buy, gather, and accumulate infor- mation and news ; to vend, supply, distribute, and publish the same ; to purchase, erect, lease, operate, and sell telegraph and telephone lines and other means of transmitting news ; to publish periodicals ; to make and deal in periodicals and other goods, wares, and merchan- dise." It has about eighteen by-laws with about seventy-five subdi- visions thereof. The stockholders of the Associated Press are the pro- prietors of newspapers, and the only business of the corporation is that enunciated in its charter, and is mainly buying, gathering, and accumulating news and furnishing the same to persons and corpora- tions who have entered into contract therefor. It may furnish news 1 Compare: Grain and Stock Exchange v. Board of Trade, 127 111. 153; Telegraph Co. v. Hyer, 22 Fla. 637 ; Telegraph Co. v. Wilson, 108 Ind. 308 ; Brown v. Telegraph, 6 Utah, 236. 2 The case is abridged. ED. 42 INTER-OCEAN PUBLISHING CO. V. ASSOCIATED PRESS. to persons and corporations other than those who are its stockholders, and the term " members," used in its by-laws, applies to proprietors of newspapers, other than its stockholders, who have entered into con- tracts with it for procuring news. It does not appear that it has availed itself of any of the powers conferred by its charter other than that of gathering news and distributing the same to its members. Under the by-laws of appellee the Inter-Ocean Publishing Company became a stockholder. Among the by-laws having reference to stockholders are the following : * Article 11. Sec. 8. Sale or purchase of specials. No member shall furnish, or permit any one to furnish, its special or other news to, or shall receive news from, any person, firm, or corporation which shall have been declared 03- the board of directors or the stockholders to be antagonistic to the association; and no member shall furnish news to any other person, firm, or corporation engaged in the business of col- lecting or transmitting news, except with the written consent of the board of directors." . . . The bill set up the facts hereinbefore stated, and set out the by-laws of the appellee in full, and alleged that the appellee had been able to control the business of buying and accumulating news in Chicago and selling the same, and has thus created in itself an exclusive monop- oly in that business, and to preserve such monopoly had declared the Sun Printing and Publishing Association a rival or competitor in busi- ness and antagonistic to it, and sought to prohibit its members from buying news therefrom under pain of suspension or expulsion ; alleged that appellee had at various times, by threats of suspension and ex- pulsion, compelled divers of its members to cease buying the special news of the Sun Printing and Publishing Association under its con- tracts with its members. The bill set out the contracts and names of such members, and alleged that the notice served on appellant for a hearing on the complainants against it is similar to the action of ap- pellee against other members who were forced to cease buying special news from the Sun Printing and Publishing Association ; that appel- lant is in duty bound, both to its patrons and to the public, to publish all the news it can gather, and if not able to obtain such news from one source, it must, in justice to its patrons and the public, resort to other sources ; that the news which it obtained from appellee it was unable to obtain from an}* other source, and appellee would not fur- nish the same to appellant unless it executed the contract hereinbefore mentioned, because of which appellant was forced to and did execute such contract ; that appellee does not furnish all the news obtainable and desired by appellant under that contract, and to obtain such other news appellant was forced to resort to the Sun Printing and Publishing Association of New York ; that the right to receive the news gathered by appellee and publish the same in its newspaper is a valuable prop- erty and property right, and appellant is forced to obtain the news not obtainable from appellee, and which is absolutely needed in publishing INTER-OCEAN PUBLISHING CO. V. ASSOCIATED PRESS. 43 its newspapers, from the Sun Printing and Publishing Association ; that the appellee is attempting to force appellant to cease taking news from the latter association, but to do so would work irreparable damage and injury to appellant, and would prevent it from furnishing needed, im- portant, and necessary news to the public, and would tend to create in favor of appellee a monopoly. 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 dissemination of that news, requires the expendi- ture of vast sums of mone}*. 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 news- papers of the countn-. Scarcely any newspaper could organize and conduct the means of gathering the information that is centred 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 such an associa- tion as appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an associa- tion, 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 time of its organization and establishment in business, sold its news reports to various newspapers who became members, and the publica- tion of that news became of vast importance to the public, so that pub- lic 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 public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its pri- vate property. The sole purpose for which news was gathered was that the same should be sold, and all newspaper publishers desiring to purchase such news for publication are entitled to purchase the same without discrimination against them. We hold that the Circuit Court of Cook Counts* erred in entering a decree dismissing the bill for want of equitj', and the Appellate Court for the First District erred in affirming the same. The judgment of the Appellate Court for the First District and the decree of the Circuit Court of Cook Count}' are each reversed, and the cause is remanded to the Circuit Court of Cook County, with directions to enter a decree as prayed for in the bill. Reversed and remanded. 1 1 Compare : State v. Associated Press, 159 Mo. 410. ED. 44 MUNN V. ILLINOIS. MUNN v. ILLINOIS. SUPREME COURT OF THE UNITED STATES, 1876. [94 U. S. 113.1] From an agreed statement of facts, made a part of the record, it appears that Munn & Scott leased of the owner, in 1862, the ground occupied by the "North-western Elevator," and erected thereon the grain warehouse or elevator in that year, with their own capital and means ; that they ever since carried on, in said elevator, the business of storing and handling grain for hire, for which the} 7 charged and received, as a compensation, the rates of storage which had been, from year to year, agreed upon and established by the different eleva- tors and warehouses in the city of Chicago, and published in one or more newspapers printed in said city, in the month of Januar}- in each year, as the established rates for the year then next ensuing such pub- lication. On the twenty-eighth day of June, 1872, Munn & Scott were the managers and proprietors of the grain warehouse known as "The North-western Elevator," in Chicago, 111., wherein grain of dif- ferent owners was stored in bulk and mixed together ; and they then and there carried on the business of receiving, storing, and delivering grain for hire, without having taken a license from the Circuit Court of Cook County, permitting them, as managers, to transact business as public warehousemen, and without having filed with the clerk of the Circuit Court a bond to the people of the State of Illinois, as required by sects. 3 and 4 of the act of April 25, 1871. The city of Chicago then, and for more than two years before, had more than one hundred thousand inhabitants. Munn & Scott had stored and mixed grain of different owners together, only by and with the express consent and permission of such owners, or of the consignee of such grain, they having agreed that the compensation should be the published rates of storage. Munn & Scott had complied in all respects with said act, except in two particulars : first, they had not taken out a license, nor given a bond, as required by sects. 3 and 4 ; and, second, they had charged for storage and handling grain the rates established and published in Jan- uary, 1872, which were higher than those fixed by sect. 15. The defendants were found guilty, and fined $100. The judgment of the Criminal Court of Cook County having been affirmed by the Supreme Court of the State, Munn & Scott sued out this writ, and assign for error : 1. Sects. 3, 4, 5, and 15 of the statute are unconstitutional and void. 1 This case id somewhat abridged. ED. MUNN V. ILLINOIS. 45 2. Said sections are repugnant to the third clause of sect. 8 of art. 1, and the sixth clause of sect. 9, art. 1, of the Constitution of the United States, and to the Fifth and Fourteenth Amendments. Mr. Chief Justice WAITE delivered the opinion of the court. The question to be determined in this case is whether the general assembly of Illinois can, under the limitations upon the legislative power of the States imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in ware- houses at Chicago and other places in the State having not less than one hundred thousand inhabitants, "in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved." It is claimed that such a law is repugnant 1. To that part of sect. 8, art. 1, of the Constitution of the United States which confers upon Congress the power "to regulate commerce with foreign nations and among the several States ; " 2. To that part of sect. 9 of the same article which provides that " no preference shall be given by any regulation of commerce or rev- enue to the ports of one State over those of another ; " and 3. To that part of amendment 14 which ordains that no State shall " deprive an}- person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal pro- tection of the laws." We will consider the last of these objections first. Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word "deprive," as used in the Fourteenth Amendment. To determine its signification, therefore, it is necessary to ascertain the effect which usage has given it, when employed in the same or a like connection. While this provision of the amendment is new in the Constitution of the United States, as a limitation upon the powers of the States, it is old as a principle of civilized government. It is found in Magna Charta, and, in substance if not in form, in nearly or quite all the con- stitutions that have been from time to time adopted by the several States of the Union. By the Fifth Amendment, it was introduced into the Constitution of the United States as a limitation upon the powers of the national government, and by the Fourteenth, as a guaranty against any encroachment upon an acknowledged right of citizenship by the legislatures of the States. When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their govern- ment. They retained for the purposes of Government all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, undertook to give practical effect to such as 46 MUNX V. ILLINOIS. the)* deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terras or by implication reserved to themselves. Subsequent!) 1 , when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, ex- cept such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibi- tions of the constitutions. When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A bod)- politic," as aptly de- fined in the preamble of the Constitution of Massachusetts, " is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143 ; but it does author- ize the establishment of laws requiring each citizen to so conduct him- self and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non Icedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, "are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things." Under these powers 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 coun- try from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, &c., and in so do'ing to fix a maximum of charge to be made for services rendered, accom- modations 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 legisla- tion came within any of the constitutional prohibitions against inter- ference with private property. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of Washington " to regulate . . . the rates of wharfage at private wharves, . . . the sweep- ing of chimneys, and to fix the rates of fees therefor, . . . and the weight and quality of bread," 3 Stat. 587, sect. 7 ; and, in 1848, " to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagon- MUNN V. ILLINOIS. 47 ers, carmen, and draymen, and the rates of commission of auctioneers," 9 Stat. 224, sect. 2. From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulat- ing the use, or even the price of the use, of private property neces- sarily deprived an owner of his property without due process of law. Under some circumstances the}- may, but not under all. The amend- ment does not change the law in this particular : it simply prevents the States from doing that which will operate as such a deprivation. 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 b}- Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Propert}- does become clothed 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 controlled 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 maintains the use, he must submit to the control. Enough has alread}' been said to show that, when private property is devoted to a public use, it is subject to public regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle. For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that "the great producing region of the West and North-west sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to the sea- board by the Great Lakes, and some of it is forwarded by railway to the Eastern ports. . . . Vessels, to some extent, are loaded in the Chicago harbor, and sailed through the St. Lawrence directly to Europe. . . ". The quantit}' [of grain] received in Chicago has made it the greatest grain market in the world. This business has created a demand for means by which the immense quantit}' of grain can be handled or stored, and these have been found in grain warehouses, which are commonly called elevators, because the grain is elevated from the boat or car, by machinery operated b}' steam, into the bins prepared for its reception, and elevated from the bins, by a like process, into the vessel or car which is to carry it on. ... In this way the 48 MUNN V. ILLINOIS. largest traffic between the citizens of the country north and west of Chicago and the citizens of the country lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago. In this way the trade in grain is carried on by the inhabi- tants of seven or eight of the great States of the West with four or five of the States lying on the sea-shore, and forms the largest part of inter-state commerce in these States. The grain warehouses or ele- vators in Chicago are immense structures, holding from 300,000 to 1,000,000 bushels at one time, according to size. They are divided into bins of large capacity and great strength. . . . They are located with the river harbor on one side and the railway tracks on the other ; and the grain is run through them from car to vessel, or boat to car, as ma}' be demanded in the course of business. It has been found im- possible to preserve each owner's grain separate, and this has given rise to a system of inspection and grading, by which the grain of dif- ferent owners is mixed, and receipts issued for the number of bushels which are negotiable, and redeemable in like kind, upon demand. This mode of conducting the business was inaugurated more than twenty years ago, and has grown to immense proportions. The railways have found it impracticable to own such elevators, and public policy forbids the transaction of such business by the carrier ; the ownership has, therefore, been by private individuals, who have embarked their capi- tal and devoted their industry to such business as a private pursuit." In this connection it must also be borne in mind that, although in 1874 there were in Chicago fourteen warehouses adapted to this par- ticular business, and owned by about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such " as have been from year to year agreed upon and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the year then next ensuing such publication." Thus it is apparent that all the elevating facilities through which these vast productions "of seven or eight great States of the West" must pass on the way ' ' to four or five of the States on the seashore " may be a " virtual " monopoly. Under such circumstances it is difficult to see why, if the common carrier, or the miller, or the ferryman, or the innkeeper, or the wharf- inger, or the baker, or the cartman, or the hackney-coachman, pursues a public employment and exercises " a sort of public office," these plaintiffs in error do not. The}' stand, to use again the language of their counsel, in the very "gateway of commerce," and take toll from all who pass. Their business most certain!}' " tends to a common charge.' and is become a thing of public interest and use." Every bushel of grain for its passage " pays a toll, which is a common charge," and, therefore, according to Lord Hale, every such warehouseman "ought to be under public regulation, viz., that he ... take but reasonable toll." MUNN V. ILLINOIS. 49 Certainly, if any business can be clothed " -with a public interest, and cease to be juris privati only," this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts. We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the duty of the general assembly to pass laws " for the protection of producers, shippers, and receivers of grain and prod- uce," art. 13, sect. 7 ; and by sect. 5 of the same article, to require all railroad companies receiving and transporting grain in bulk or other- wise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such company, and that all railroad companies should permit connections to be made with their tracks, so that any public warehouse, &c., might be reached by the cars on their railroads. This indicates very clearty that during the twenty }"ears in which this peculiar business had been assuming its present "immense proportions," something had occurred which led the whole body of the people to suppose that remedies such as are usually employed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actu- ally did exist when the statute now under consideration was passed. For us the question is one of power, not of expedienc}'. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legis- lature is the exclusive judge. Neither is it a matter of any moment that no precedent can be found for a statute precisely like this. It is conceded that the busi- ness is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply ex- tends the law so as to meet this new development of commercial prog- ress. There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner. It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regulations complained of were adopted. What they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not wish to submit themselves to such interference, they should 4 50 MUNN V. ILLINOIS. not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hackne}'- carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and carriage and established his business before the statute or the ordinance was adopted. It is insisted, however, that the owner of property is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question. As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customarj' from time immemorial for the legislature to declare what shall be a reason- able compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. -Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But this is because the legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. But a mere common-law regulation of trade or business may be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of munic- ipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process ; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office ot statutes is to remed\' defects in the common law as the}- are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the use of the property in which the public has an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one. We know that this is a power which may be abused ; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts. After what has already been said, it is unnecessary to refer at length to the effect of the other provision of the Fourteenth Amendment which is relied upon, viz., that no State shall k4 deny to any person within its PEOPLE V. BUDD. 51 jurisdiction the equal protection of the laws." Certainty, it cannot be claimed that this prevents the State from regulating the fares of hack- men or the charges of draymen in Chicago, unless it does the same thing in every other place within its jurisdiction. But, as has been seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what cannot be done in the one case in this particular cannot be done in the other. Judgment affirmed. 1 Mr. Justice FIELD and Mr. Justice STRONG dissented. PEOPLE v. BUDD. COURT OF APPEALS, NEW YORK, 1889. [117 N. Y. 1.2] APPEAL from judgment of the general term of the Superior Court of the city of Buffalo entered upon an order made December 31, 1888, which affirmed a judgment of a criminal term of said court entered upon a verdict, convicting defendant of a misdemeanor in violating the provisions of the act (chap. 581, Laws of 1888) known as the Elevator Act. The material facts are stated in the opinion. Decided October 15, 1889. ANDREWS, J. The main question upon this record is whether the legislation fixing the maximum charge for elevating grain, contained in the act (chapter 581, Laws 1888), is valid and constitutional. The act, in its first section, fixes the maximum charge for receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this State at five-eighths of one cent a bushel, and for trimming and shovelling to the leg of the elevator, in the process of handling grain by means of elevators, " lake ves- sels, or propellers, the ocean vessels or steamships, and canal boats," shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the act a misdemeanor, punishable by fine of not less than $250. The third section gives a civil remedy to a party injured by a violation of the act. The fourth section excludes from the operation of the act an}' village, town, or city having less than 130,000 population. The defendant, the 1 Compare : Davis v. State, 68 Ala. 58; Breechbill v. Randall, 102 Ind. 528 ; Nash c. Paige, 80 Ky. 539 ; Dock Co. v. Garrity, 115 111. 155 ; State v. Edwards, 86 Me. 105 ; 1?. R. i7. Stock Yard Co., 45 N. J. Eq. 50; Ryan v. Terminal Co., 102 Tenn. 119; Bar rington v. Dock Co., 15 Wash. 175. ED. 2 This case is abridged. ED. 52 PEOPLE V. BUDD. manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transpor- tation Company, for elevating, raising, and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator the carrier was charged and compelled to pay $4 for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed, pursuant to an arrangement made sjnce the passage of the act of 1888, by a body of men known as the Shovelers' Union, who pay the elevator 81.75 a thousand bushels for the use of the steam-shovel, a part of the machinery connected with the elevator, operated by steam, and who for their services, and the expense of the steam-shovel, charge the carrier for each thousand bushels of grain shoveled the sum of $4. The defendant was indicted for a violation of the act of 1888. The indictment contains a single count, charging a violation of the first section in two particulars, viz., in exacting more than the statute rate for elevating the cargo, and exacting more than the actual cost for shoveling the grain to the leg of the elevator. . . . The question is whether the power of the legislature to regulate charges for the use of property, and the rendition of services con- nected with it, depend in every case upon the circumstance that the owner of the property has a legal monopoly or privilege to use the property for the particular purpose, or has some special protection from the government, or some peculiar benefit in the prosecution of his business. Lord HALE, in the treatises De Portibus Maris and De Jure Maris, so largely quoted from in the opinions in the Munn Case, used the language that when private property is " affected with a public interest it ceases to be juris privati only," in assign- ing the reason why ferries and public wharves should be under public regulation, and only reasonable tolls charged. The right to establish a ferry was a franchise, and no man could set up a ferry, although he owned the soil and landing places on both sides of the stream, without a charter from the king, or a prescription time out of mind. The franchise to establish ferries was a royal prerogative, and the grant of the king was necessary to authorize a subject to establish a public ferry, even on his own premises. When w"e recur to the origin and purpose of this prerogative, it will be seen that it was vested in the king as a means by which a business in which the whole community were interested could be regulated. In other words, it was simply one mode of exercising a prerogative of government that is to say, through the sovereign instead of through Parliament in a matter of public concern. This and similar prerogatives were vested in the king for public purposes, and not for his private ad- vantage or emolument. Lord KEXAOX in Rorke v. Dayrell, 4 Term R. 410, said: " The prerogatives [of the crown] are not given for the PEOPLE V. BUDD. 53 personal advantage of the king, but they are allowed to exist because they are beneficial to the subject; " and it is said in Chitty on Prerog- atives (page 4): "The splendor, rights, and power of the crown were attached to it for the benefit of the people, and not for the pri- vate gratification of the subject." And Lord HALE, in one of the passages referred to, in stating the reason why a man may not set up a ferry without a charter from the king, says: " Because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and evei-y man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation." The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord HALE says, could not be taken without lawful title by charter or prescription. De Port. Mar. 77. But the king, if he maintained a public wharf, was under the same obligation as a subject to exact only reasonable tolls, nor could the king authorize unreasonable tolls to be taken by a subject. The language of Lord HALE is explicit upon both these points: " If the king or subject have a public wharf into which all persons that come to that port must come to unload their goods, as for the pur- pose, because they are the wharves only licensed by the queen, according to the statute of 1 Eliz. c. 11, or because there is no other wharf in that port, as it may fall out when a port is newly erected, in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, passage, etc. Neither can they be enhanced to an immoderate degree, but the duties must be reasonable and moder- ate, though settled by the king's license or charter." The contention that the right to regulate the charges of ferrymen or wharfingers was founded on the fact that tolls could not be taken without the king's license does not seem to us to be sound. It rested on the broader basis of public interest, and the license was the method by which persons exercising these functions were subjected to governmental supervision. The king, in whom the franchise of wharfage was vested as a royal prerogative, was himself, as has been shown, subject to the same rule as the subject, and could only exact reasonable wharfage, nor could he by express license authorize the taking of more. The language of Lord HALE, that private property may be affected by a public interest, cannot justly, we think, be restricted as meaning only property clothed with a public character by special grant or charter of the sovereign. The control which by common law and by statute is exercised over common carriers is conclusive upon the point that the right of the legislature to regu- late the charges for services in connection with the use of property does not in every case depend upon the question of legal monopoly. From the earliest period of the common law it has been held that common carriers were hound to carry for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and, even where the price of carriage was fixed by the contract or conven- tion of the parties, the contract was not enforceable beyond the point 54 PEOPLE V. BUDD. of reasonable compensation. From time to time statutes have been enacted in England and in this countrj 7 fixing the sum which should be charged by carriers for the transportation of passengers and prop- erty, and the validity of such legislation has not been questioned. But the business of common carriers until recent times was conducted almost exclusively by individuals for private emolument, and was open to every one who chose to engage in it. The state conferred no fran- chise, and extended to common carriers no benefit or protection, except that general protection which the law affords to all persons and property within its jurisdiction. The extraordinary obligations imposed upon carriers, and the subjection of the business to public regulation, were based on the character of the business; or, in the language of Sir William Jones, upqji the consideration " that the calling is a public employment." Jones, Bailm. App. It is only a public employment in the sense of the language of Lord HALE, that it was " affected with a public interest," and the imposition of the character of a public business upon the business of a common carrier was made because public policy was deemed to require that it should be under public regulation. The principle of the common law, that common carriers must serve the public for a reasonable compensation, became a part of the law of this state, and from the adoption of the constitution has been part of our municipal law. It is competent for the legislature to change the rule of reasonable com- pensation, as the matter was left by the common law, and prescribe a fixed and definite compensation for the services of common carriers. This principle was declared in the Munn Case, which was cited with approval on this point in Sawyer v. Davis, 136 Mass. 239. It accords with the language of Chief Justice SHAW in Com. v. Alger, 7 Cush. 53: " Wherever there is a general right on the part of the public, and a general duty on the part of a land-owner or any other person to respect such right, we think it is competent for the legislature, by a specific enactment, to prescribe a precise, practical rule for declaring, establishing, and securing such right, and enforcing respect for it." The practice of the legislature in this and other states to prescribe a maximum rate for the transportation of persons or property on railroads is justified upon this principle. Where the right of the legislature to regulate the fares or charges on railroads is received by the charter of incorporation, or the charter was granted subject to the general right of alteration or repeal by the legislature, the power of the legislature in such cases to prescribe the rate of compensation is a part of the contract, and the exercise of the power does not depend upon any general legislative authority to regulate the charges of common carriers. But the cases are uniform that where there is no reservation in the charter the legislature may nevertheless interfere, and prescribe or limit the charges of railroad corporations. The Granger Cases, 94 U. S. 113; Dow v. Beidelman, 125 U. S. 680; EARL, J , m People r. Railroad Co., 70 N. Y. 569; RUGER, C. J., in Railroad Co. v. Railroad Co., Ill N. Y. 132. PEOPLE V. BUDD. 55 The power of regulation in these cases does not turn upon the fact that the entities affected by the legislation are corporations deriving their existence from the state, but upon the fact that the corporations are common carriers, and therefore subject to legislative control. The state, in constituting a corporation, may prescribe or limit itf< powers, and reserve such control as it sees fit, and the body accepting the charter takes it subject to such limitations and reservations, and is bound by them. The considerations upon which a corporation holds its franchise are the duties and obligations imposed by the act of incorporation. But when a corporation is created it has the same rights and the same duties, within the scope marked out for its action, that a natural person has. [ts property is secured to it by the same constitutional guaranties, and in the management of its prop- erty and business is subject to regulation by the legislature to the same extent only as natural persons, except as the power may be extended by its charter. The mere fact of a corporate character does not extend the power of legislative regulation. For illustration, it could not justly be contended that the act of 1888 would be a valid exercise of legislative power as to corporations organized for the pur- pose of elevating grain, although invalid as to private persons con- ducting the same business. The conceded power of legislation over common carriers is adverse to the claim that the police power does not in any case include the power to fix the price of the use of private property, and of services connected with such use, unless there is a legal monopoly, or special governmental privileges or protection have been bestowed. It is said that the control which the legislature is permitted to exercise over the business of common carriers is a sur- vival of that class of legislation which in former times extended to the details of personal conduct, and assumed to regulate the private affairs and business of men in the minutest particulars. This is true. But it has survived because it was entitled to survive. By reason of the changed conditions of society, and a truer appreciation of the proper functions of government, many things have fallen out of the range of the police power as formerly recognized, the regulation of which by legislation would now be regarded as invading personal liberty. Bnt society could not safely surrender the power to regulate by law the business of common carriers. Its value has been infinitely increased by the conditions of modern commerce, under which the carrying ttade of the country is, to a great extent, absorbed by cor- porations, and, as a check upon the greed of these consolidated in- terests, the legislative power of regulation is demanded by the most imperative public interests. The same principle upon which the con- trol of common carriers rests has enabled the state to regulate in the public interest the charges of telephone and telegraph companies, and to make the telephone and telegraph, those important agencies of commerce, subservient to the wants and necessities of society. I These regulations in no way interfere with a rational liberty, liberty regulated by law. 56 PEOPLE V. BUDD. There are elements of publicity in the business of elevating grain which peculiarly affect it with a public interest. They are found in the nature and extent of the business, its relation to the commerce of the state and country, and the practical monopoly enjoyed by those engaged in it. The extent of the business is shown by the facts to which we have referred. A. large proportion of the surplus cereals of the country passes through the elevators at Buffalo, and finds its way through the Erie Canal and Hudson River to the seaboard at New York, from whence they are distributed to the markets of the world. The business of elevating grain is an incident to the busi- ness of transportation. The elevators are indispensable instrumen- talities in the business of the common carrier. It is scarcely too much to say that, in a broad sense, the elevators perform the work of carriers. They are located upon or adjacent to the waters of the state, and transfer from the lake vessels to the canal-boats, or from the canal-boats to the ocean vessels, the cargo of grain, and thereby perform an essential service in transportation. It is by means of the elevators that transportation of grain by water from the upper lakes to the seaboard is rendered possible. It needs no argument to show that the business of elevating grain has a vital relation to com- merce in one of its most important aspects. Every excessive charge made in the course of the transportation of grain is a tax on com- merce, and the public have a deep interest that no exorbitant charges shall be exacted at any point upon the business of transportation. The state of New York, in the construction of the Erie Canal, ex- hibited its profound appreciation of the public interest involved in the encouragement of commerce. The legislature of the state, in entering upon the work of constructing a water-way between Lake Erie and the Atlantic Ocean, sets forth in the preamble of the orig- inating act of 1817 its reasons for that great undertaking. " It will," the preamble says, "promote agriculture, manufactures, and commerce, mitigate the calamities of war, and enhance the bless- ings of peace, consolidate the Union, and advance the prosperity and elevate the character of the United States." In the construction and enlargement of the canal the state has expended vast sums of money, raised by taxation; and finally, to still further promote the interests of commerce, it has made the canal a free highway, and maintains it by a direct tax upon the people of the state. The wise forecast and statesmanship of the projectors of this work have been amply demonstrated by experience. It has largely contributed to the power and influence of the state, promoted the prosperity of tne people, and to it, more perhaps than to any other single cause, is it owing that the city of New York has become the commercial centre of the Union. Whatever impairs the usefulness of the canal as a highway of com- merce involves the public interest. The people of New York are greatly interested to prevent any undue exactions in the business of transportation which shall enhance the cost of the necessaries of life, PEOPLE V. BUDD. 57 or force the trade in grain into channels outside of our state. In Hooker v. Vandewater, 4 Denio, 349, the court was called upon to consider the validity of an agreement between certain transporta- tion lines on the canal to keep up the price of freights. The court held the agreement to be illegal, and JEWETT, J., in pronouncing the judgment of the court, said : " That the raising of the price of freights for the transportation of merchandise or passengers upon our canals is a matter of public concern, and in which the public have a deep interest, does not admit of doubt. It is a familiar maxim that com- petition is the life of trade. It follows that whatever destroys, or even relaxes, competition in trade is injurious, if not fatal, to it." The same question came up a second time in Stanton v. Allen, 5 Denio, 434, and was decided the same way. In the course of its opinion the court said: "As these canals are the property of the state, constructed at great expense, as facilities to trade and com- merce, and to foster and encourage agriculture, and are, at the same time, a munificent source of revenue, whatever concerns their employ- ment and usefulness deeply involves the interests of the whole state." The fostering and protection of commerce was, even in ancient times, a favorite object of English law (Chit. Prerog. 162); and this author states that the " superintendence and care of commerce, on the success of which so materially depends the wealth and pros- perity of the nation, are in various cases allotted to the king by the constitution," and many governmental powers vested in the sovereign in England have since our Revolution devolved on the legislatures of the states. The statutes of England in earlier time were full of oppressive commercial regulations, now, happily, to a great extent abrogated ; but that the interests of commerce are matters of public concern all states and governments have fully recognized. The third element of publicity which tends to distinguish the business of elevating grain from general commercial pursuits is the practical monopoly which is or may be connected with its prosecu- tion. In the city of Buffalo the elevators are located at the junction of the canal with Lake Erie. The owners of grain are compelled to use them in transferring cargoes. The area upon which it is practi- cable to erect them is limited. The structures are expensive, and the circumstances afford great facility for combination among the owners of elevators to fix and maintain an exorbitant tariff of charges, and to bring into the combination any new elevator which may be erected, and employ it or leave it unemployed, but in either case permit it to share in the aggregate earnings. It is evident that if such a combi- nation in fact exists the principle of free competition in trade is excluded. The precise object of the combination would be to prevent competition. The result of such a combination would necessarily be to subject the lake vessels and canal-boats to any exaction which the elevator owners might see fit to impose for the service of the elevator, and the elevator owners would be able to levy a tribute on the com- munity, the extent of which would be limited only by their discretion* 58 PEOPLE V. BUDD. It is upon these various circumstances that the court is called upon to determine whether the legislature may interfere and regulate the charges of elevators. It is purely a question of legislative power. If the power to legislate exists the court has nothing to do with the policy or wisdom of the interference in the particular case, or with the question of the adequacy or inadequacy of the compensation authorized. "This court," said CIIASK, C. J., in the License Tax Cases, 5 Wall. 469, " can know nothing of public policy, except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expe- dient or inexpedient, as politic or impolitic. Considerations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here." Can it be said, in view of the exceptional circumstances, that the business of elevating grain is not " affected with a public interest," within the language of Lord HALE, or that the case does not fall within the principle which permits the legislature to regulate the business of common carriers, ferrymen, innkeepers, hackmen, and the interest on the use of money? It seems to us that speculative, if not fanciful, reasons have been assigned to account for the right of legislative regulation in these and other cases. It is said that the right to regulate the charges of hackmen springs from the fact that they are assigned stands in the pubnc~Btree'ts; that the legislature may regulate the toll on ferries iii'causc the right to establish a ferry is a franchise, and therefore the business is subject to regulation; that the right to regulate wharf- age rested upon the permission of the sovereign to extend wharves into the beds of navigable streams, the title to which was in the sovereign; that the right to regulate the interest on the use of money sprung from the fact that taking interest was originally illegal at common law, and that where the right was granted by statute it was taken subject to regulation by law. The plain reason, we think, why the charges of hackmen and ferrymen were made subject to public regulation is that they were common carriers. The reason assigned for the right to regulate wharfage in England overlooks the fact that the title to the beds of navigable streams was frequently vested in a subject, and was his private property, subject to certain public rights, as the right of navigation, and no distinction as to the power of public regulation is suggested in the ancient books between wharves built upon the beds of navigable waters, the title to which was in the sovereign, and wharves erected upon navigable streams, the beds of which belonged to a subject. The obligation of the owner of the only wharf in a newly erected port to charge only reas- onable wharfage is placed by Lord HALE on the ground of a virtual, as distinguished from a legal, monopoly. The reason assigned for the right to regulate interest takes no account of the fact that the prohibition by the ancient common law to take interest at all was a regulation, and this manifestly did not rest upon any benefit con- PEOPLE v. BUDD. 59 ferred on the lenders of money. It was a regulation springing from a supposed public interest, and was peculiarly oppressive on a certain class/ JTTaw~prohi biting the taking of interest on the use of money would now be deemed a violation df a right of property. JButjthe material point is that the prohibition, as well as the regulation, of interest 1 _was based upon public policy, and the present conceded right of regulation does not have its foundation in any grant or privilege conferred by the sovereign. The attempts made to place the right of public regulation in these cases upon the ground of special priv- ilege conferred by the public on those affected cannot, we think, be supported. The underlying principle is^jhajjjjusiness of certain kinds holds such a peculiar relation to The public interests that there is supmnduced upon it the right of public regulation. We rest the power of the legislature to control and regulate elevator charges on the nature and extent of the business, the existence of a virtual monopoly, the benefit derived from the canal, creating the business and making it possible, the interest to trade and commerce, the rela- tion of the business to the prosperity and welfare of the state, and the practice of legislation in analogous cases. These circumstances collectively create an exceptional case, and justify legislative regulation. The case of Munn v. Illinois has been frequently cited with ap- proval by courts in other states. Nash v. Page, 80 Ky. 539 ; Hockett v. State, 105 Ind. 250; Telephone Co. v. Telegraph Co., 66 Md. 399; Davis v. State, 68 Ala. 58. In Nash v. Page it was held, upon the doctrine of the Munn Case, that warehousemen, for the public sale and purchase of tobacco in Louisville, exercised a public business, and assumed obligations to serve the entire public, and could not exclude persons from buying or selling tobacco in their warehouses who were not members of the board of trade. In Hockett v. State it was held that the relations which telephone companies have assumed towards the public imposed public obligations, and that all the in- struments and appliances used by telephone companies in the prose- cution of the business were, in legal contemplation, devoted to public use. In Telegraph Co. v. Telephone Co. legislation prohibiting discrimination in the business of telegraphing was upheld on the doctrine of the Munn Case. The criticism to which the Munn Case has been subjected has proceeded mainly on a limited and strict construction and definition of the police power. The ordinary sub- jects upon which it operates are well understood. It is most fre- quently exerted in the maintenance of public order, the protection of the public health and public morals, and in regulating mutual rights of property, and the use of property, so as to prevent uses by one of his property to the injury of the property of another. These are instances of its exercise, but they do not bound the sphere of its operation. In the King Case, 110 N. Y. 418, it was given a much broader scope, and was held to be efficient to prevent discrimination on the ground of race and color in places opened for public enter* 60 PEOPLE V. BUDD. tainment. In that case the owner of the skating-rink derived no special privilege or protection from the state. The public held no right, in any legal sense, to resort to his premises. His permission, except for the public interest involved, was revocable as to the whole community or any individual citizen. But it was held that so long as he devoted his place to purposes of public entertainment he sub- jected it to public regulations. There is little reason, under our system of government, for placing a close and narrow interpretation on the police power, or in restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society, and the new circumstances as they arise, calling for legislative inter- vention in the public interest Life, liberty, and property have a substantial protection against serious invasion by the legislature in the traditions of the English-speaking race, and a pervading public sentiment which is quick to resent any substantial encroachment upon personal freedom or the rights of property. In no country is the force of public opinion so direct and imperative as in this. The legislature may transgress the principles of the Constitution. It has done so in the past, and it may be expected that it will some- times do so in the future. But unconstitutional enactments have generally been the result of haste or inadvertence, or of transient and unusual conditions in times of public excitement which have been felt and responded to in the halls of legislation. The framers of the government wisely interposed the judicial power, and invested it with the prerogative of bringing every legislative act to the test of the Constitution. But no serious invasion of constitutional guaran- ties by the legislature can for a long time withstand the searching influence of public opinion, which sooner or later is sure to come to the side of law and order and justice, however much for a time it may have been swayed by passion or prejudice, or whatever aberration may have marked its course. So, also, in that wide range of legis- lative powers over persons and property which lie outside of the pro- hibitions of the Constitution, and which inhere of necessity in the verj T idea of government, by which persons and property may be affected without transgressing constitutional guaranties, there is a restraining and corrective power in public opinion which is a safe- guard of tremendous force against unwise and impolitic legislation, hampering individual enterprise, and checking the healthful stimulus of self-interest, which are the life-blood of commercial progress. The police power may be used for illegitimate ends, although no court can say that the fundamental law has been violated. There is a remedy at the polls, and it is an efficient remedy if, at the bottom, the legislation under it is oppressive and unjust. The remedy by taking away the power of the legislature to act at will would, indeed, be radical and complete. But the moment the police power is de- stroyed or curbed by fixed and rigid rules a danger is introduced into our system which would, we think, be far greater than results from an occasional departure by the legislature from correct principles of BEASS V. NORTH DAKOTA. 61 government. We here conclude our examination of- the important question presented by this case. The division of opinion in this and other courts is evidence of the difficulty which surrounds it. But it is ever to be remembered that a statute must stand so long as an\- reason- able doubt can be indulged in favor of its constitutionality. We are of opinion that the statute of 1883 is constitutional, as a whole, and that although it may comprehend cases which, standing alone, might not justify legislative interference, yet they must be governed by the general rule enacted by the legislature. The judgment should be affirmed. 1 BRASS v. NORTH DAKOTA EX REL. STOESER. SUPREME COURT OF THE UNITED STATES, 1894. [153 U. S. 391. 2 ] NORMAN BRASS, the plaintiff in error, owns and operates a grain ele- vator in the village of Grand Harbor, in the State of North Dakota. The defendant in error, Louis W. Stoeser, owns a farm adjoining the village, on which in the year 1891 he raised about four thousand bushels of wheat. On September 30, 1891, Stoeser applied to store a part of his wheat-crop for the compensation fixed by section eleven of chapter 126 of the Laws of North Dakota for the year 1891, which Brass re- fused to do unless paid therefor at a rate in excess of that fixed by the statute. On this refusal Stoeser filed in the District Court of Ramsey Count} 7 , North Dakota, a petition for an alternative writ of mandamus. The District Court granted an alternative writ of mandamus (as follows). . . . Mr. Justice SHIRAS . . . The legislature of the State of North Da- kota, by an act approved March 7, 1891, c. 126, Laws of 1891, p. 321, and entitled "An Act to regulate grain warehouses and the weighing and handling of grain, and defining the duties of the railroad commissioners in relation thereto," enacted, in the fourth section thereof, that "all buildings, elevators, or warehouses in this State, erected and operated, or which may hereafter be erected and operated by any person or per- sons, association, copartnership, corporation, or trust, for the purpose of buying, selling, storing, shipping, or handling grain for profit, are hereby declared public warehouses, and the person or persons, associa- tion, copartnership, or trust owning or operating said building or build- ings, elevator or elevators, warehouse or warehouses, which are now or may hereafter be located or doing business within this State, as above 1 Compare : Railroad Co. v. Stockyard Co., 45 N. J. Eq. 50 ; Belcher v. Grain Ele- vator, 101 Mo. 192; McCullough v. Brown, 41 S. C. 247; Steamship Co. v. Elevator Co., 75 Minn. 312. ED. 2 This case is abridged. ED. 62 BKASS V. NORTH DAKOTA. described, whether said owners or operators reside within this State or not, are public warehousemen within the meaning of this act, and none of the provisions of this act shall be construed so as to permit discrim- ination with reference to the buying, receiving, and handling of grain of standard grades, or in regard to parties offering such grain for sale, storage, or handling at such public warehouses, while the same are in operation;" and in the fifth section, "that the proprietor, lessee, or manager of any public warehouse or elevator in this State shall file with the railroad commissioners of the State a bond to the State of North Dakota, with good and sufficient sureties, to be approved by said com- missioners of railroads, in the penal sum of not less than $5,000 nor more than $75,000, in the discretion of said commissioners, conditioned for the faithful performance of duty as public warehousemen, and a compliance with all the laws of the State in relation thereto ; " and in the eleventh section thereof, " the charges for storing and handling of grain shall not be greater than the following schedule : For receiving, elevating, insuring, delivering, and twent}' days' storage, two cents per bushel. Storage rates, after the first twenty days, one-half cent for each fifteen days or fraction thereof, and shall not exceed five cents for six months. The grain shall be kept insured at the expense of the warehousemen for the benefit of the owner ; " and by the twelfth sec- tion it is provided that " any person, firm, or association, or any repre- sentative thereof, who shall fail to do and keep the requirements as herein provided, shall be deemed guilt}* of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than two hundred dollars nor more than one thousand dollars, and be liable in addition thereto to imprisonment for not more than one 3'ear in the state peui- tentiar}*, at the discretion of the court." In October, 1891, in the District Court of the Second Judicial Dis- trict of the State of North Dakota, in proceedings the nature of which sufficient!}' appears in the previous statement of facts, the validity of this statute was sustained, and the judgment of that court was, on error, duly affirmed by the Supreme Court of the State. Brass v. North Dakota, 52 N. W. Rep. 408. In the cases thus brought to this court from the States of Illinois and New York, we were asked to declare void statutes regulating the affairs of grain warehouses and elevators within those States, and held valid by their highest courts, because it was claimed that such legislation was repugnant to that clause of the eighth section of article 1 of the Con- stitution of the United States, which confers upon Congress power to regulate commerce with foreign nations and among the several States, and to the Fourteenth Amendment, which ordains that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. In the case now before us the same contentions are made, but we are not asked to review our decisions made in the previous cases. Indeed, BRASS V. NORTH DAKOTA. 63 their soundness is tacitly admitted in the briefs and argument of the counsel of the plaintiff in error. But it is said that those cases arose out of facts so peculiar and exceptional, and so different from those of the present case, as to render the reasoning there used, and the conclu- sions reached, now inapplicable. The concession, then, is that, upon the facts found to exist by the legislatures of Illinois and New York, their enactments were by the courts properly declared valid, and the contention is that the facts upon which the legislature of North Dakota proceeded, and of which we can take notice in the present case, are so different as to call for the application of other principles, and to render an opposite conclusion necessar}". The differences in the facts of the respective cases, to which we are pointed, are mainly as follows : In the first place, what may be called a geographical difference is suggested, in that the operation of the Illi- nois and New York statutes is said to be reLiricted to the city of Chi- cago in the one case, and to the cities of Buffalo, New York, and Brooklyn in the other, while the North Dakota statute is applicable to the territory of the entire State. It is, indeed, true that while the terms of the Illinois and New York statutes embrace in both cases the entire State, yet their behests are restricted to cities having not less than a prescribed number of inhabi- tants, and that there is no such restriction in the North Dakota law. Upon this it is argued that the statutes of Illinois and New York are intended to operate in great trade centres, where, on account of the business being localized in the hands of a few persons in close prox- imity to each other, great opportunities for combinations to raise and control elevating and storage charges are afforded, while the wide ex- tent of the State of North Dakota and the small population of its country towns and villages are said to present no such opportunities. The considerations mentioned are obviously addressed to the legisla- tive discretion. It can scarcely be meant to contend that the statutes of Illinois and New York, valid in their present form, would become illegal if the law makers thought fit to repeal the clauses limiting their operation to cities of a certain size, or that the statute of North Dakota would at once be validated if one or more of her towns were to reach a popu- lation of one hundred thousand, and her legislature were to restrict the operation of the statute to such cities. Again, jt is said that the modes of carrying on the business of ele- vating and storing grain in North Dakota are not similar to those pur- sued in the Eastern cities; that the great elevators used in trans-shipping grain from the Lakes to the railroads are essential ; and that those who own them, if uncontrolled b}- law, could extort such charges as they pleased ; and great stress is laid upon expressions used in our previous opinions, in which this business, as carried on at Chicago and Buffalo, is spoken of as a practical monopoly, to which shippers and owners of grain are compelled to resort. The surroundings in an agricultural 64 BRASS V. NORTH DAKOTA. State, where land is cheap in price and limitless in quantity, are thought to be widely different, and to demand different regulations. These arguments are disposed of, as we think, by the simple observa- tion, already made, that the facts rehearsed are matters for those who make, not for those who interpret, the laws. When it is once admitted, as it is admitted here, that it is competent for the legislative power to control the business of elevating and storing grain, whether carried on by individuals or associations, in cities of one size and in some circum- stances, it follows that such power may be legally exerted over the same business when carried on in smaller cities and in other circumstances. It may be conceded that that would not be wise legislation which provided the same regulations in ever}- case, and overlooked differ- ences in the facts that called for regulations. But, as we have no right to revise the wisdom or expediency of the law in question, so we would not be justified in imputing an improper exercise of discretion to the legislature of North Dakota. It ma}* be true that, in the cases cited, the judges who expressed the conclusions of the court entered, at some length, into a defence of the propriet}- of the laws which they were considering, and that some of the reasons given for sustaining them went rather to their expedienc}' than to their validity. Such efforts, on the part of judges, to justify to citizens the wa} - s of legisla- tures are not without value, though they are liable to be met by the assertion of opposite views as to the practical wisdom of the law, and thus the real question at issue, namely, the power of the legislature to act at all, is obscured. Still, in the present instance, the obvious aim of the reasoning that prevailed was to show that the subject-matter of these enactments fell within the legitimate sphere of legislative power, and that, so far as the laws and Constitution of the United States were concerned, the legislation in question deprived no person of his prop- erty without due process of law, and did not interfere with Federal jurisdiction over interstate commerce. Another argument advanced is based on the admitted allegation that the principal business of the plaintiff in error, in connection with his warehouse, is in storing his own grain, and that the storage of the grain of other persons is and always has been a mere incident, and it is said that the effect of this law will be to compel him to renounce his princi- pal business and become a mere warehouseman for others. We do not understand this law to require the owner of a warehouse, built and used by him only to store his own grain, to receive and store the grain of others. Such a duty only arises when he chooses to enter upon the business of elevating and storing the grain of other persons for profit. Then he becomes subject to the statutory regulations, and he cannot escape them by asserting that he also elevates and stores his own grain in the same warehouse. As well might a person accused of selling liquor without a license urge that the larger part of his liquors were designed for his own consumption, and that he only sold the surplus as a mere incident OPINIONS OF THE JUSTICES. 65 Another objection to the law is found in its provision that the ware- houseman shall insure the grain of others at his own expense. This may be burdensome, but it affects alike all engaged in the business, and, if it be regarded as contrary to sound public policy, those affected must instruct their representatives in general assembly met to provide a remedy. The plaintiff in error, in his answer to the writ of mandamus, based his defence whollj' upon grounds arising under the Constitution of the State and of the United States. We are limited by this record to the questions whether the legislature of North Dakota, in regulating by a general law the business and charges of public warehousemen engaged in elevating and storing grain for profit, denies to the plaintiff in error the equal protection of the laws or deprives him of his property with- out due process of law, and whether such statutory regulations amount to a regulation of commerce between the States. The allegations and arguments of the plaintiff in error have failed to satisf} T us that any solid distinction can be found between the cases in which those ques- tions have been heretofore determined by this court and the present one. The judgment of the court below is accordingly Affirmed. Mr. Justice BREWER, with whom concurred Mr. Justice FIELD, Mr. Justice JACKSON, and Mr. Justice WHITE, dissenting. OPINIONS OF THE JUSTICES. MASSACHUSETTS SUPREME COURT, 1904. [182 Mass. 605.] [AT the time of the scarcity of coal in the early part of 1903 by rea- son of the strike of Pennsylvania miners, the Legislature of Massa- chusetts asked the judges of the Massachusetts Supreme Court a series of questions as to its power to authorize cities or towns to purchase and sell coal and wood. Extract from the replies signed by the majority of the judges is subjoined.] We do not deem it necessary to restate the reasons and arguments which have led legislatures and courts to nearly, if not quite, uniform conclusions in regard to the attitude which the government should maintain, under existing constitutions, towards the transaction of com- mon kinds of business which can be conducted successfully b}- indi- viduals, without the use of any governmental function. These can be found in numerous published opinions of the courts, some of which are cited in the opinion first above mentioned. It is established that under our Constitution private property cannot be taken from its owner except for a public use. This is equally true whether the property is a dwelling house taken by right of eminent 66 OPINIONS OF THE JUSTICES. domain, or money demanded by the tax collector. The establishment of a business like the buying and selling of fuel requires the expendi- ture of money. If this is done by an agency of the government there is no way to obtain the money except by taxation. Money cannot be raised by taxation except for a public use. Until within a few years it generally has been conceded, not onh' that it would not be a public use of money for the government to expend it in the establishment of stores and shops for the purpose of carrying on a business of manufacturing or selling goods in competition with individuals, but also that it would be a perversion of the function of government for the State to enter as a competitor into the field of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the business, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition. There may be some now who believe it would be well if business was conducted by the people collectivel}', liv- ing as a community, and represented by the government in the man- agement of ordinary industrial affairs. But nobody contends that such a system is possible under our Constitution. It is plain, however, that taxation of the people to establish a city or town in the proprietorship of an ordinary mercantile or manufacturing business would be a long step towards it. If men of property, owning coal and wood yards, should be compelled to pay taxes for the establishment of a rival coal 3'ard by a city or town, to furnish fuel at cost, the}* would thus be forced to make contributions of money for their own impoverishment ; for if the coal yard of the city or town was conducted economicall}-, they would be driven out of business. A similar result would follow if the business of furnishing provisions and clothing, and other neces- saries of life, were taken up by the government ; and men who now earn a livelihood as proprietors would be forced to work as employees in stores and shops conducted by the public authorities. Except for the severely onerous conditions from which we are now suffering, the causes of which arose outside of this State beyond the reach of our legislative enactments, there is nothing materially different between the proposed establishment of a governmental agenc}' for the sale of fuel, and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmental function, as does the distribution of water, gas, and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise with supplies ema- nating from a single source, as is required for the economical manage- ment of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary means. RATCLIFF V. WICHITA UNION STOCKYARDS COMPANY. 67 RATCLIFF v. WICHITA UNION STOCKYARDS COMPANY. SUPREME COURT OF KANSAS, 1906. [86 Pac. ISO. 1 ] ACTION by J. W. Ratcliff to recover charges on live stock beyond the statutory rate on cattle placed in and marketed at the Wichita Union Stockyards. JOHNSTON, C. J. The operation of stockyards has more of the characteristics of a public business than the carrying on of an elevator or a warehouse. It possesses the market features, including considera- tions of sanitation and health, and it also has more of the monopolistic feature. The stockyards in question are situated in a commercial center and constitute the public live stock market for a great region, largely devoted to live stock business. The principal railroads of the Southwest country enter Wichita, and their tracks all unite in the stockyards, and the business is therefore intimately related to the busi- ness of transportation. Here the stock raisers and shippers meet and deal with the packers and purchasers, and here live stock in transit from Oklahoma, Texas, and Colorado to more distant markets are unloaded for rest, feeding, and care. No other market exists nearer than Kansas City on the east, which is about 260 miles away, and the nearest ones on the west are Denver and Peublo, about 500 miles away. Because of the nature of the business and the railroad facilities the establishment of other markets at or near Wichita is impracticable, and hence these stockyards 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 com- pany 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 may choose to charge. To the com- pany is committed the feeding, watering, and weighing of cattle sent from great distances, whether accompanied by the owner or not, and this is an additional reason for regulation and control. In Getting v. Kansas City Stockyards Company (C. C.), 82 Fed. 850, it was held that " a stockyard business located in a large city at the junction of many railroad lines, which furnishes the only proper facilities for the unload- ing, resting, and feeding of live stock in transit and for the sale of cattle in said city, is affected with a public use so as to be subject to legislative control, and the proper legislative body may prescribe a maximum rate of compensation for the care and handling of stock thereat." This case was taken to the Supreme Court of the United States, where it was reversed because of a discriminatory provision of the statute under consideration. In determining that question, how- ever, Justice BREWER, who rendered the decision, in commenting on the nature of the business of stockyards and the interest of the public in it, 1 Only one extract it printed. ED. 68 RATCLIFF V. WICHITA UNION STOCKYARDS COMPANY. took occasion to say: "Tested by the rule laid down in Munn v. Illinois, it may be conceded that the state has the power to make reasonable regulation of the charges for services rendered by the stock- yards company. Its stockyards are situated in one of the gateways of the west, and so located that they furnish important facilities to all seeking transportation of cattle. While not a common carrier, nor engaged in any distinctively public employment, it is doing a work in which the public has an interest, and therefore must be considered as subject to governmental regulation." Cotting v. Kansas City Stock- yards, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. In Delaware, etc., Railroad Company v. Central Stockyards Compan}-, 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855, the court discussed the nature of the business, and held that the business of maintaining stockyards corresponds with that of warehousemen, and therefore is subject to the same general principles of law. It was held, however, that in the absence of a statute a court of chancery could not impose reg- ulations upon those engaged in the business without usurping leg- islative power. In Stock Exchange v. Board of Trade, 127 111. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107, it was held that the market quotations and reports of the board of trade of Chicago had become affected with a public interest, and so long as it continued in business it must furnish reports and quotations to all who may desire them fpr lawful purposes, and upon the same terms. In a later case before the same court it was held that the Chicago Live Stock Exchange could not be treated as a public market in the ordinary sense, but in the course of the decision it was said that the character and magnitude of its business was such as " to warrant the Legislature in the exercise of its legislative discretion in declaring a public use, and placing said business under local control and supervision, but such power, in our opinion, does not rest with the courts." American Live Stock Commission Company v. Chicago Live Stock Exchange, 143 111. 210, 32 N. E. 274, 18 L. R. A. 190, 36 Am. St. Rep. 385. See, also, Head v. Amoskeag Manufacturing Company, 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889 ; State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528, Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490 ; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128 ; Baker v. State, 54 Wis. 368, 12 N. W. 12; Breechbill v. Randall, 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695 ; State ex rel. v. Gas Co., 34 Ohio St. 572, 32 Am. Rep. 390 ; Freund on Police Power, 373 ; Cooley's Constitutional Limitations, 870 ; 1 Tiedeman on State and Federal Control, 95. We conclude that the stockyards business as conducted in Wichita is clothed with a public interest, and that the state in the exercise of its police power may, within constitutional limitations, subject it to regu- lation and control. 1 1 See also Cotting c. Kansas City Stockyards Co., 183 U. S. 79. But see Delaware 6 W. Ry. Co. v. Central Stockyards Co., 46 N. J. L. 280. ED. STATE V. JACKSONVILLE TERMINAL CO. 69 STATE v. JACKSONVILLE TERMINAL C6. SUPREME COURT OP FLORIDA, 1900. [41 Fla. 377. 1 ] XI. Ninth and eleventh grounds of the motion to quash : The reg- ulation made by the commissioners, under the power conferred upon them, in this case is in no sense an " appropriation " of any private property or right of way within the meaning of section 29, Art. XVI of the constitution, so as to require the compensation therefor to be ascertained by a jury of twelve men. The defendant in error, as we have seen, had devoted its property to a use essentially public, is per- forming services of a public nature, and is subject to be controlled by the public for public welfare. That use to which it has voluntarily devoted its property is to furnish passenger terminal facilities to rail- road common carriers. It is discriminating among the railroads that it will serve, and the commissioners under power granted them by the legislature have determined that such discrimination as against a par- ticular railroad is unjust and contrary to the best interest and conven- ience of the public. It has, therefore, made a regulation that this railroad be admitted to the facilities which the defendant in error is furnishing other railroad common carriers upon payment of reasonable compensation. It is no more an appropriation of the property of the terminal company than is the law which requires common carriers to transport all persons at a reasonable rate of compensation, or the law which requires an inn-keeper to furnish accommodations to all who apply, and at reasonable rates if fixed by the legislature. While it would seem that one was as much an appropriation of property as another, it surely will not be contended that a passenger or a traveller must condemn his way into a railroad passenger car or hotel in order to secure the transportation of the lodging to which he is by the law entitled. There is a very clear distinction between a taking or an appropriation of property for a public use and regulating the use of property devoted to a use in which the public has an interest. The latter is an exercise of the police power, as it is called ; the former of the power of eminent domain. The State in the former case compels the dedication of the property or some interest therein to a public use, or, if already dedicated to one public use, then to another. In the lat- ter, the owner has voluntarily or in pursuance of the provisions of its charter, dedicated the property to a use in which the public has an interest, and the use of that property so dedicated is merely regulated and controlled for the public welfare. In this case the regulation com- plained of does not compel the defendant in error to dedicate its prop- 1 Only one point is printed. ED. 70 TRANSPORTATION CO. V. STANDARD OIL CO. erty to the public use, or to a different public use. It has already voluntarily and presumably in pursuance of its charter powers devoted its property to a public use by undertaking to furnish for railroad common carriers and the public served by them terminal facilities to aid and enable these public agencies to perform their obligations to the public and to assist them in such performance. The State regu- lates this use of the property by requiring that the charges for such uses and privileges shall be reasonable, and by requiring the terminal com- pany in performing the services and conducting the business which it has so voluntarily assumed, to perform such services and conduct such business impartially and without discrimination wherever the pub- lic interests require them to be so performed and conducted. The regulation complained of does not appropriate property ; it merely prevents abuses, prohibits unjust discrimination and excessive charges, and is, therefore, valid. Of course if the regulation sought to be enforced is valid, its enforcement by mandamus cannot be construed as a taking or appropriation of property under the power of eminent domain, or as a deprivation of property without due process of law. TRANSPORTATION CO. v. STANDARD OIL CO. COUKT OF APPEALS, WEST VIRGINIA, 1901. [40 5. E. Rep. 591. 2 ] BRANNON, J. The West Virginia Transportation Company brought trespass on the case in Wood Count}' against the Standard Oil Company and the Eureka Pipe Line Company, all corporations, and upon demurrer to the declaration judgment was rendered for the defendants. The first count of the declaration charges that the plaintiff was engaged in the business of transporting petroleum oils by means of pipe lines and tank cars from Volcano and vicinity to Parkersburg, and in storing oil, and had expended $300,000 in acquiring land, rights of way, lines of tubing, and other things necessary in its business, and had built up a large and lucrative business, and that the defendants maliciously and wickedly contriving and intending to injure the plaintiff and ruin its business, and render its plant and property worthless, and deprive it of all its TRANSPORTATION CO. V. STANDARD OIL CO. 71 business, did confederate and conspire together and with the West Vir- ginia Oil Company, another corporation, and with C. H. Shattuck and other persons unknown to the plaintiff, to prevent all persons produc- ing, refining, selling, or transporting oils, and particularly to prevent the plaintiff from transporting oils through its pipe lines and by means of its tank cars, and from storing oil in its storage tanks, and from executing any lawful trade in connection therewith. At first blush this conduct might appear wrong; but a second thought again presents the question whether the defendants in this did any- thing unlawful. The defendant companies were all in common in- terest. Could they not unite to further their interests? Could not the Standard Oil Company buy from whom it chose? And within the pale of this right could it not impose such conditions as it chose? Can- not the village merchant say to the farmer, " I will not buy your eggs unless you buy my calico"? Cannot the big mill owner refuse to buy wheat from those who do not ship it over a railroad or steamboat line owned by him? Cannot the mill owner refuse to lease his farm to those who do not sell products to his mill? He may be exacting and oppres- sive, but can other mill owners sue him for this? Is this right not a part and parcel of his business right? It is the right, even when there is no common ownership, as there is in this case, of one man to buy of whom he chooses; and he can impose arbitrary, hard conditions, if the other party chooses to accede to them. So it is the clear right of the other party to sell to whom he chooses, and he having this right, how does the other party do a wrong in purchasing from him? The right of the one carries with it the right of the other. These producers of oil had the right to sell to whom they chose, to ship their oil by what pipe line they chose, and they had the right to submit to the terms of the Standard Oil Company, and in view of this right the company could buy from whom it chose, and on such terms as it chose; for the right of the former would bear no fruitage, would be futile, without the corresponding right of contract in the company. Observe the question here is not their own interests in lawful competition with others. If they possessed the lawful right above stated, what matters it that they did have the intent to cut down the business of others, or that they did cut it down and injure others, though they did this that they might themselves fatten? So far this first count charges only the exercise by the defendants of a right of constitutional liberty, accorded alike to all, simply the right of self-advancement in legitimate business, self-preservation, we may say. 72 HURLEY, ADMINISTRATOR V. EDDINGFIELD. HURLEY, ADMINISTRATOR v. EDDINGFIELD. SUPREME COURT OF INDIANA, 1901. [156 Ind. 415.] BAKER, J. Appellant sued appellee for $10,000 damages for wrong- fully causing the death of his intestate. The court sustained appellee's deraurrrer to the complaint ; and this ruling is assigned as errror. The material facts alleged may be summarized thus : At and for years before decedent's death appellee was a practicing physician at Mace in Montgomery count}', duly licensed under the laws of the State. He held himself out to the public as a general practitioner of medicine. He had been decedent's family physician. Decedent became danger- ously ill and sent for appellee. The messenger informed appellee of decedent's violent sickness, tendered him his fees for his services, and stated to him that no other physician was procurable in time and that decedent relied on him for attention. No other physician was procur- able in time to be of any use, and decedent did rely on appellee for medical assistance. Without an} r reason whatever, appellee refused to render aid to decedent. No other patients were requiring appellee's immediate service, and he could have gone to the relief of decedent, if he had been willing to do so. Death ensued, without decedent's fault, and wholly from appellee's wrongful act. The alleged wrongful act was appellee's refusal to enter into a con- tract of employment. Counsel do not contend that, before the enact- ment of the law regulating the practice of medicine, physicians were bound to render professional service to every one who applied. Whar- ton on Neg., 731. The act regulating the practice of medicine pro- vides for a board of examiners, standards of qualification, examina- tions, licenses to those found qualified, and penalties for practicing without license. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a compulsive, measure. In obtaining the State's license (permission) to practice medicine, the State does not require, and the licensee does not engage, that he will practice at all or on other terms than he ma}' choose to accept. Counsel's analogies, drawn from the obligations to the public*on the part of inn-keepers, common carriers, and the like, are beside the mark. Judgment affirmed. GERMAN ALLIANCE INS. CO. V. KANSAS SUPT. OF INSURANCE. 73 GERMAN ALLIANCE INSURANCE COMPANY . KANSAS SUPERINTENDENT OF INSURANCE. SUPREME COURT OF THE UNITED STATES, 1914. [233 U. S. 389. 1 ] BILL in equity to restrain the enforcement of the provisions of an act of the State of Kansas entitled, " An Act relating to Fire Insur- ance, and to provide for the Regulation and Control of Rates of Premium thereon, and to prevent Discriminations therein." Ch. 152, Session Laws of 1909. MR. JUSTICE McKENNA delivered the opinion of the court. The restrictions upon the legislative power which complainant urges we have discussed, or rather the considerations which take, it is contended, the business of insurance outside of the sphere of the power. To the contention that the business is private we have op- posed the conception of the public interest. We have shown that the business of insurance has very definite characteristics, with a reach of influence and consequence beyond and different from that of the ordinary businesses of the commercial world, to pursue which a greater liberty may be asserted. The transactions of the latter are indepen- dent and individual, terminating in their effect with the instances. The contracts of insurance may be said to be interdependent. They cannot be regarded singly, or isolatedly, and the effect of their rela- tion is to create a fund of assurance and credit, the companies becom- ing the depositories of the money of the insured, possessing great power thereby and charged with great responsibility. How necessary their solvency is, is manifest. On the other hand to the insured, in- surance is an asset, a basis of credit. It is practically a necessity to business activity and enterprise. It is, therefore, essentially different from ordinary commercial transactions, and, as we have seen, accord- ing to the sense of the world from the earliest times certainly the sense of the modern world is of the greatest public concern. It is, therefore, within the principle we have announced. The principle we apply is definite and old and has, as we have pointed out, illustrating examples. And both by the expression of the principle and the cita- tion of the examples we have tried to confine our decision to the regulation of the business of insurance, it having become "clothed with a public interest," and therefore subject " to be controlled by the public for the common good." 1 /Three Justices concurred with the opinion of the court printed in part above; Mr. Justice LAMAB wrote a dissenting opinion in which two Justices concurred. ED. 74 THE PIPE LINE CASES. THE PIPE LINE CASES. SUPREME COURT OF THE UNITED STATES, 1914. [234 U. S. 548. 1 ] The CHIEF JUSTICE concurring. Agreeing in every particular with the conclusions of the court and with its reasoning except as to one special subject, my concurrence as to that matter because of its importance is separately stated. The matter to which I refer is the exclusion of the Uncle Sam Oil Com- pany from the operation of the act. The view which leads the court to exclude it is that the company was not engaged in transportation under the statute, a conclusion to which I do not assent. The facts are these: That company owns wells in one State from which it has pipe lines to its refinery in another State, and pumps its own oil through such pipe lines to its refinery and the product of course when reduced at the refinery passes into the markets of consumption. It seems to me that the business thus carried on is transportation in in- terstate commerce within the statute. But despite this I think the company is not embraced by the statute because it would be impossi- ble to make the statute applicable to it without violating the due process clause of the Fifth Amendment, since to apply it would neces- sarily amount to a taking of the property of the company without compensation. It is shown beyond question that the company buys no oil and by the methods which have been mentioned simply carries its own product to its own refinery; in other words, it is engaged in a purely private business. Under these conditions in my opinion there is no power under the Constitution without the exercise of the right of eminent domain to convert without its consent the private business of the company into a public one. Of course this view has no application to the other companies which the court holds are subject to the act because as pointed out the prin- cipal ones were chartered as common carriers and they all either directly or as a necessary result of their association were engaged in buying oil and shipping it through their pipes; in other words, were doing in reality a common carrier business, disguised, it may be, in form, but not changed in substance. Under these conditions I do not see how it would be possible to avoid the conclusion which the court has reached without declaring that the shadow and not the substance was the criterion to be resorted to for the purpose of determining the validity of the exercise of legislative power. 1 The opinion of Mr. Justice HOLMES for the court and that of Mr. Justice McKENNA dissenting are omitted. ED. GISBOUKN V. HURST. 75 CHAPTER II. EXTENT OF PUBLIC PROFESSION. GISBOURN v. HURST. COMMON BENCH, 1710. [1 Salk. 249.] IN trover upon a special verdict the case was, the goods in the decla- ration were the plaintiff's, and by him delivered in London to one Rich- ardson, to carry down to Birmingham. This Richardson was not a common 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. When he returned home, he put his wagon with the cheese into the barn, where it con- tinued two nights and a day, and then the landlord came and distrained the cheese for rent due for the house, which was not an inn, but a pri- vate house; and it was agreed per Cur., that goods delivered to any person exercising a public trade or employment to be carried, wrought or managed in the way of his trade or employ, are for that time under a legal protection, and privileged from distress for rent ; but this being a private undertaking required a farther consideration, and it was resolved, that any man undertaking for hire to carry the goods of all persons indifferent!}', as in this case, is, as to this privilege, a com- mon carrier ; for the law has given the privilege in respect of the ti-ader, and not in respect of the carrier, and the case in Cro. El. 596 is stronger. Two tradesmen brought their wool to a neighbor's beam, which he kept for his private use, and it was held that could not be distrained. 1 1 Vide Francis v. Wyatt, 3 Bur. 1489, 1 Bl. 483, in which it was determined, that a carriage standing at livery is not exempt from distress. In the former report the general doctrine upon the subject is very fully discussed. 76 GORDON V. HUTCHINSON. GORDON v. HUTCHINSON. SUPREME COURT OF PENNSYLVANIA, 1841. [1 W. fr S. 285.] ERROR to the Common Pleas of Centre County. This was an action on the case by James B. Hutchinson against James Gordon. The defendant pleaded non assumpsit. The facts were that the defendant, being a farmer, applied at the store of the plaintiff for the hauling of goods from Lewistown to Belle- fonte, upon his return from the former place, where he was going with a load of iron. He received an order and loaded the goods. On the way the head came out of a hogshead of molasses, and it was wholly lost. In this action the plaintiff claimed to recover the price of it. There was much proof on the subject of the occasion of the loss : whether it was in consequence of expansion of the molasses from heat, or of negligence on the part of the wagoner, of which there was strong evidence. The defendant took the ground that he was not subject to the re- sponsibilities of a common carrier, but only answerable for negligence, inasmuch as he was only employed occasionally to carry for hire. But the court below (Woodward, President) instructed the jury, that the defendant was answerable upon the principles which govern the liabili- ties of a common carrier. J3lanchard, for plaintiff in error, argued the same point here, and cited in support of it 2 Kent's Com. 597 ; Story on Bail. 298; 2 Lord Raym. 909 ; 2 Marsh, 293 ; Jones on Bail. 306 ; 5 Rawle, 188 ; 1 Wend. 272; Leigh N. P. 507; 2 Salk. 249; 2 Bos. & Pul. 417 ; 4 Taunt 787. Hale, for defendant in error, cited 4 N. H, 306; Bui. N. P. 7; 1 Salk. 282 ; 1 Wils. 281; Story on Bail. 325 ; 2 Watts, 443. The opinion of the court was delivered by GIBSON, C. J. The best definition of a common carrier in its appli- cation to the business of this country, is that which Mr. Jeremy (Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249, which was the case of one who was at first not thought to be a common car- rier only because he had, for some small time before, brought cheese to London, and taken such goods as he could get to carry back into the country at a reasonable price ; but the goods having been dis- trained for the rent of a barn into which he had put his wagon for safe keeping, it was finall}- resolved that an}' man undertaking to carry the goods of all persons indifferently, is, as to exemption from distress, a common carrier. Mr. Justice Stor} T has cited this case (Commentaries on Bailm. 322) to prove that a common carrier is one who holds him- self out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hoc vice. My conclusion GORDON V. HUTCHINSON. 77 from it is different. I take it a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. It is true the court went no further than to say the wagoner was a common carrier as to the privilege of exemption from distress ; but his contract was held not to be a private undertaking as the court was at first inclined to consider it, but a public engagement, by reason of his readiness to carry for any one who would employ him, without regard to his other avocations, and he would consequently not only be entitled to the privi- leges, but be subject to the responsibilities of a common carrier : in- deed they are correlative, and there is no reason why he should enjoy the one without being burdened with the other. Chancellor Kent (2 Commentaries, 597) states the law on the authority of Robinson v. Dunmore, 2 Bos. & Pul. 416, to be that a carrier for hire in a particu- lar case, not exercising the business of a common carrier, is answerable only for ordinary neglect, unless he assume the risk of a common car- rier by express contract ; and Mr. Justice Story (Com. on Bail. 298) as well as the learned annotator on Sir William Jones's Essay (Law of Bailm. 103 d, note 3) does the same on the authority of the same case. There, however, the defendant was held liable on a special contract of warranty, that the goods should go safe ; and it was therefore not ma- terial whether he was a general carrier or not. The judges, indeed, said that he was not a common cai'rier, but one who had put himself in the case of a common carrier by his agreement ; yet even a common carrier may restrict his responsibility by a special acceptance of the goods, and may also make himself answerable by a special agreement as well as on the custom. The question of carrier or not, therefore, did not necessarily enter into the inquiry, and we cannot suppose the judges gave it their principal attention. But rules which have received their form from the business of a peo- ple whose occupations are definite, regular, and fixed, must be applied with much caution and no little qualification to the business of a peo- ple whose occupations are vague, desultory, and irregular. In_Eng- land r one who holds himself out as a general carrier is bound to take employment at the current price ; but it will not be thought that he is bound to do so here. Nothing was more common formerly, than for the wagoners to lie by in Philadelphia for a rise of wages. In Eng- land the obligation to carry at request upon the carrier's particular route, is the criterion of the profession, but it is certainly not so with us. In Pennsylvania, we had no carriers exclusively between particu- lar places, before the establishment of our public lines of transporta- tion; and according to the English principle we could have had no common carriers, for it was not pretended that a wagoner could be compelled to load for any part of the continent. But the policy of holding him answerable as an insurer was more obviously dictated by the solitary and mountainous regions through which his course for the most part lay, than it is by the frequented thoroughfares of England. But the 78 ALLEN V. SACKHIDER. Pennsylvania wagoner was not always such even by profession. No inconsiderable part of the transportation was done by the farmers of the interior, who took their produce to Philadelphia, and procured re- turn loads for the retail merchants of the neighboring towns ; and many of them passed b}' their homes with loads to Pittsburg or Wheel- ing, the principal points of embarkation on the Ohio. But no one sup- posed the}' were not responsible as common carriers ; and they always compensated losses as such. They presented themselves as applicants for employment to those who could give it ; and were not distinguish- able in their appearance, or in the equipment of their teams from carriers by profession. I can readily understand why a carpenter, en- couraged by an employer to undertake the job of a cabinetmaker, shall not be bound to bring the skill of a workman to the execution of it ; or why a farmer, taking his horses from the plough to turn teamster at the solicitation of his neighbor, shall be answerable for nothing less than good faith ; but I am unable to understand why a wagoner soliciting the employment of a common carrier, shall be prevented by the nature of any other employment he may sometimes follow, from contracting , the responsibility of one. What has a merchant to do with the private business of those who publicly solicit employment from him? The)* offer themselves to him as competent to perform the service required, and in the absence of express reservation, they contract to perform it on the usual terms, and under the usual responsibility. Now, what is the case here? The defendant is a farmer, but has occasionally done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business, and consequently on the usual conditions. His agency was not sought in consequence of a special confidence reposed in him there was nothing special in the case on the contrary, the employment was sought b}' himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury ; but independent of that, we are of opinion that he is liable as an insurer. Judgment affirmed. 1 ALLEN v. SACKRIDER. COURT OF APPEALS, NEW YORK, 1867. [37 A T . 1". 341.] PARKER, J. The action was brought against the defendants to charge them, as common carriers, with damage to a quantity of grain shipped by the plaintiffs in the sloop of the defendants, to be trans- 1 Compare: Fish . Chapman, 2 Ga. 349; Parmalee v. Lourtz, 74 111. 116; Robert- son r. Kennedy, 2 Dana, 430 ; Hanison v. Roy, 39 Miss. 396 ; Sanners v. Stewart, 20 Oh. St. 69 ; Chevallier v. Straham, 2 Tex. 115. ED. ALLEN V. SACKKIDER. 79 ported from Trenton, in the province of Canada, to Ogdensburgh, in this State, which accrued from the wetting of the grain in a storm. The case was referred to a referee, who found as follows: "The plaintiffs, in the fall of 1859, were partners, doing business at Ogdens- burgh. The defendants were the owners of the sloop " Creole," of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the ba}- of Quinte to Ogdens- burgh. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there. Being assured by the plaintiffs that she had, he engaged for the trip at three cents per bushel, and performed it with safety. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at one hundred dollars for the trip. The vessel pro- ceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34; that the injury did not result from the want of ordinary care, skill, or foresight, nor was it the result of inevitable accident, or what, in law, is termed the act of God. From these facts, my conclusions of law are, that the defendants were special carriers, and only liable as such, and not as common carriers, and that the proof does not establish such facts as would make the defendants liable as special carriers; and, therefore, the plaintiffs have no cause of action against them." The only question in the case is, were the defendants common car- riers ? The facts found b}- the referee do not, I think, make the defend- ants common carriers. The}' 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 carriers. A common carrier was defined, in Gisbourn v. Hurst, 1 Salk. 249, to be, " any man undertaking, for hire, to carry the goods of all persons indifferently;" and in Dwight v. Brewster, 1 Pick. 50, to be, "one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place." In Orange Bank v. Brown, 3 Wend. 161, Chief Justice SAVAGE said: " Even 1 person who undertakes to cany, for a compensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier. The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire ; while the latter agrees, in some special case, with some private individual, to carry for hire." (Story on Contracts, 752, a.) The employment of a common carrier is a public one, and he assumes a public duty, and is bound to receive and carr}- the goods of any one who offers. "On the whole," s&ys 80 INGATE V. CHRISTIE. Prof. Parsons, "it seems to be clear that no one can be considered as a common carrier, unless he has, in some way, held himself out to the public as a carrier, in such manner as to render him liable to an action if he should refuse to c&rry for any one who wished to employ him." (2 Pars, on Cont. [5th ed.] 166, note.) The learned counsel for the appellant in effect recognizes the necessity of the carrier holding himself out to the world as such, in order to in* vest him with the character and responsibilities of a common carrier ; and, to meet that necessity, says : "The 'Creole' was a freight vessel, rigged and manned suitably for carrying freight from port to port ; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of the referee, and, therefore, cannot, if they existed, help the appellants upon this appeal. It is not claimed that the defendants are liable, unless as common carriers. Very clearly, they were not common carriers ; and the judg- ment should, therefore, be affirmed. All the judges concurring. Judgment affirmed. 1 INGATE v. CHRISTIE. QUEEN'S BENCH, 1850. [3 Car. $ K. 61.] ASSUMPSIT. The declaration stated, that the defendant agreed to carr}* 100 cases of figs from a wharf to a ship, and that by the negli- gence of the defendant's servants the figs were lost. Plea: non assumpsit. It was proved that, on the 14th of February, 1850, the defendant was employed by the plaintiffs, who are merchants, to take 100 cases of figs in his lighter from Mills' Wharf, in Thames Street, to the " Mag- net " steamer, which lay in the River Thames, and that as the figs were on board the lighter, which was proceeding with them to the "Mag- net," the lighter was run down by the "Menai" steamer and the figs all lost It was proved that the defendant had a counting-house with his name and the word "lighterman" on the doorposts of it, and that he carried goods in his lighters from the wharves to the ships for anj-- body who employed him, and that the defendant was a lighterman and not a wharfinger. ALDEKSON, B. Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a 1 Compare: Bell v. Pidgeon, 5 Fed. 634 ; Crosby v. Fitch, 12 Conn. 410; Fish v. Clark, 49 N. Y. 122; Pennewell v. Cullen, 5 Ilarr. 238; Moss v. Bettes, 4 Heisk. 661 ; Spencer r. Daggett, 2 Vt. 92. ED. ATLANTIC CITY V. FONSLER. 81 man holds himself out to do it for every one who asks him, he is a com- mon carrier ; but if he does not do it for every one, but carries for you and me only, that is matter of special contract. Here we have a per- son with a counting-house, " lighterman " painted at his door, and he offers to carry for every one. ATLANTIC CITY v. FONSLER. SUPREME COURT OF NEW JERSEY, 1903. [SSAtl. 119.1] GARRETSON, J. The power of Atlantic City to pass ordinances reg- ulating the business of driving omnibuses, automobiles, or locomobiles, and fixing the fares to be charged, seems to be abundantly conferred by various statutes, viz. : By a supplement to the charter of Atlantic City, approved March 13, 1896 ; by another supplement approved March 22, 1871 ; and a general act applicable to all cities approved May 16, 1894, Gen. St. p. 2236, 532; and we are unable to see that any of the regulations imposed by this ordinance are unreasonable. 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 ; and a further regula- tion, such as is made in this ordinance, which provides for a convenient notification to intending passengers that the vehicle is already in actual use, which provision seems to be as well for the convenience of the driver, has nothing unreasonable in it. The judgment should be affirmed. 2 1 The statement of the ordinance in question requiring all licensed hackmen to accept passengers unless the sign " Engaged " was displayed is omitted from the opin- ion. ED. a Compare : Atlantic City v. Jehn, 69 N. J. L. 233. ED. 82 GIBSON V. S1LVA. GIBSON v. SILVA. SUPREME COURT OF CEYLON, 1848. [Rama Nathan, 105.] OLIPHANT, C. J. The judgment and sentence of the police court are set aside. The question in this case is, did the defendant use a carriage for the conveyance for hire as a public business of any goods, or did he use a carriage for the conveyance for hire, pro hac vice, of any goods. If " as a public business " the defendant ought to have had a license; if pro hac vice none was required. A certain obscurity may have crept into the ordinance by reason of the words " as a public bus- iness " being only understood and not expressed after the words " con- veyance for hire " in the 3rd line of the 6th section. If these words are not to be supplied in the 6th section, then the intention of the ordi- nance, as declared in the 2nd section, is completely altered, and even' one hiring out his cart for a job, as to bring a load of bricks or remove earth from the foundation of a house, would be obliged to have a license, whereas the words used in the 2nd section are those consti- tuting the definition of a common carrier in the English law. The defendant was a contractor with the superintendent of police to do a particular job, and he was not at the service of every individual who pleased to call upon him to carry for them, which is the case under certain restrictions with those who convey for hire as a public business, they being in fact carriers, and incurring the liabilities and responsi- bilities of that calling. Upon this ground the case is decided, but surely it is very questionable whether goods were carried. Can rubbish removed, to be shut out of the way or burnt, be called goods ? Can a person carrying away a nuisance for which he receives a remuneration for his trouble be called a carrier? The court inclines to think these questions must be answered in the negative, but it serves no purpose to consider this point. The court is clear upon the other question. SELF V. DUNN & BROWN. 83 SELF v. DUNN & BROWN. SUPREME COURT OF GEORGIA, 1871. [42 Ga. 628.] McCAY, J. As a general rule, a ferryman is a carrier, and, undei certain circumstances, he is a common carrier: Angell on Carriers, section 82. But a carrier is one who transports goods for hire : Re- vised Code, section 2039. A common carrier is one who pursues the business constantly or continuously, for any period of time or any dis- tance of transportation : Code, section 2040. One who " pursues the business." What business? The business of carrying goods for hire. A carrier is bound to ordinary diligence. A common carrier can give no excuse for loss or damage but the act of God and the enemies of the State, and even then he must use extraordinary diligence: Revised Code, sections 2039, 2040. And this is but a restatement of the com- mon law, by Jones, Story, Angell and other writers upon the subject. To make one a common carrier, he must be entitled, either by the bar- gain or by implication, to toll or hire. This whole question, in a case very like this, in all its details, was before the Supreme Court of South Carolina, in the case of Littlejohn v. Jones, 2 McMullin's Reports, 366. That was a case of a ferry a private ferry used like this, as an appendage to a mill. There, however, it often happened that persons, other than customers to the mill, passed and paid ferriage; but it was understood that the payment was optional, and went to the servant, the main purpose of the ferry being to pass the customers to the mill. The Court held, in that case, that the mere fact that persons paid was not sufficient; the circum- stances must be such, as that there is either an express or an implied promise to pay. The use of it, as an appendage to the mill, did not alter the case. The ferryman, in this case, was a mere mandatory, a bailee, not for hire, and is only liable for gross negligence : Revised Code, 2078. This was not even a chartered ferry, but a simple accommodation of the mill-owner to his customers. It is very subtle reasoning to say that the increased custom to his mill was his compensation. But one rarely does ~any act of favor to others that does not, at length, repay him. Is it fair to call that hire ? We have given a good deal of search to find a case where such incidental benefits, coming to a mandatory, have been held to change his character and make him a bailee for hire, but have found none. We think the charge was wrong on this point. The defendant was only liable for gross neglect, unless he was in the habit of charging toll : Revised Code, section 544. Judgment reversed. 84 KOBERTSON insisted, also, that, having purchased a ticket from the agent of the company, his right to a passage was perfect. Neither of these propositions is correct. In Commonwealth v. Power, (7 Met. 596,) the passenger had actually purchased his ticket, and the Chief Justice says : "If he, Hall, gave no notice of his intention to enter the car as a passenger, and of his right to do so, and if Power believed that his intention was to violate a reasonable subsisting regulation, then he and his assistants were justified in forcibly removing him from the depot." In Pearson v. Duane, (4 Wallace, 605,) Mr. Justice Davis, in giving the opinion of the court, held the expulsion of Duane to have been illegal, because it was delayed until the vessel had sailed. " But this refusal," he says, "should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board." The libellant, in this case, re- fused to give any intimation that he would abandon his trade on board the vessel. The steamboat company, it is evident, were quite willing to carry him and his baggage, and objected only to his persistent at- tempts to continue his traffic on their boat. He insisted that he had the right to pursue it, and the company resorted to the only means in their power to compel its abandonment, to wit, his removal from the boat. This was done with no unnecessary force, and was accompanied by no indignity. In my opinion, the removal was justified, and the decree must be reversed. 1 1 Ace. Barney v. Oyster Bay & H. S. B. Co., 67 N. Y. 301. ED. 152 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. McDUFFEE v. PORTLAND AND ROCHESTER RAILROAD. SUPREME JUDICIAL COURT OF NEW HAMPSHIRE, 1873. [52 N. H. 430.] CASE, by Daniel McDuffee against the Portland & Rochester Rail- road, for not furnishing the plaintiff terms, facilities, and accommoda- tions for his express business on the defendants' road, between Rochester, N. H., and Portland, Me., reasonably equal to those furnished by the defendants to the Eastern Express Company. The defendants demurred to the declaration. 1 DOE, J. I. A common carrier is a public carrier. He engages in a public employment, takes upon himself a public duty, and exercises a sort of public office. Sandford v. R. Co., 24 Pa. St. 378, 381 ; N. J. S. N. Co. v. Merchants' Bank, 6 How. 344, 382 ; Shelden v. Robinson, 7 N. H. 157, 163, 164 ; Gray v. Jackson, 51 N. H. 9, 10 ; Ansell v. Waterhouse, 2 Chitty, 1, 4; Hollister v. Nowlen, 19 Wend. 234, 239. He is under a legal obligation : others have a corresponding legal right. His duty being public, the correlative right is public. The public right is a common right, and a common right signifies a reasonabty equal right. " There are certain cases in which, if individuals dedicate their personal services, or the temporary use of their property, to the public, the law will impose certain duties upon them, and regulate their pro- ceedings to a certain extent. Thus, a common carrier is bound by law, if he have conveniences for the purpose, to carry for a reasonable compensation." Olcott v. Banfill, 4 N. H. 537, 546. 4 1'a. 378 ; New Eng. Exp. Co. v. R. R., 57 Me. 188. ED. 160 THE EXPRESS CASES. THE EXPRESS CASES. SUPREME COURT OF THE UNITED STATES, 1886. [117 U. S. i.J MR. CHIEF JUSTICE WAITE delivered the opinion of the court. 1 These suits present substantially the same questions and may prop- erly be considered together. They were each brought by an express company against a railway company to restrain the railwaj' company from interfering with or disturbing in an)- manner the facilities there- tofore afforded the express company for doing its business on the railway of the railway company. . . . The evidence shows that the express business was first organized in the United States about the year 1839. ... It has become a public necessity, and ranks in im- portance with the mails and with the telegraph. It emploj's for the purposes of transportation all the important railroads in the United States, and a new road is rarely opened to the public without being equipped in some form with express facilities. It is used in almost every conceivable way, and for almost every conceivable purpose, by the people and by the government. All have become accustomed to it, and it cannot be taken away without breaking up many of the long settled habits of business, and interfering materially with the con- veniences of social life. In this connection it is to be kept in mind that neither of the rail- road companies involved in these suits is attempting to deprive the general public of the advantages of an express business over its road. The controversy, in each case, is not with the public but with a single express company. And the real question is not whether the railroad companies are authorized 03* law to do an express business themselves ; nor whether the}' must carry express matter for the public on their passenger trains, in the immediate charge of some person specially appointed for that purpose ; nor whether they shall cany express freights for express companies as they carry like freights for the gen- eral public ; but whether it is their duty to furnish the Adams Com- pany or the Southern Company facilities for doing an express business upon their roads the same in all respects as those the} r provide for themselves or afford to any other express compan}'. When the business began railroads were in their infancy. They were few in number, and for comparatively short distances. There has never been a time, however, since the express business was started that it has not been encouraged by the railroad companies, and it is no doubt true, as alleged in each of the bills filed in these cases, that " no railroad company in the United States . . . has ever refused to transport express matter for the public, upon the application of some express company of some form of legal constitution. Every railway 1 Part of the opinion is omitted. ED. THE EXPRESS CASES. 161 company . . . has recognized the right of the public to demand trans- portation by the railway facilities which the public has permitted to be created, of that class of matter which is known as express matter." Express companies have undoubtedly invested their capital and built up their business in the hope and expectation of securing and keeping for themselves such railway facilities as they needed, and railroad com- panies have likewise relied upon the express business as one of their important sources of income. But it is neither averred in the bills, nor shown by the testimony, that an}' railroad company in the United States has ever held itself out as a common carrier of express companies, that is to say, as a common carrier of common carriers. On the contrary it has been shown, and in fact it was conceded upon the argument, that, down to the time of bringing these suits, no railroad company had taken an express company on its road for business except under some special con- tract, verbal or written, and generally written, in which the rights and the duties of the respective parties were carefully fixed and defined. These contracts, as is seen by those in these records, vary necessarily in their details, according to the varying circumstances of each particular case, and according to the judgment and discretion of the parties immedi- ately concerned. It also appears that, with very few exceptions, only one express company has been allowed by a railroad company to do business on its road at the same time. In some of the States, statutes have been passed which, either in express terms or b}* judicial inter- pretation, require railroad companies to furnish equal facilities to all express companies, Gen. Laws N. H., 1878, ch. 163, 2; Rev. Stat. Maine, 1883, 494, ch. 51, 134; but these are of comparative recent origin, and thus far seem not to have been generally adopted. . . . The reason is obvious why special contracts in reference to this busi- ness are necessary. The transportation required is of a kind which must, if possible, be had for the most part on passenger trains. It requires not only speed, but reasonable certainty as to the quantity that will be carried at any one time. As the things carried are to be kept in the personal custody of the messenger or other employe of the express company, it is important that a certain amount of car space should be specially set apart for the business, and that, this should, as far as practicable, be put in the exclusive possession of the express- man in charge. As the business to be done is " express," it implies access to the train for loading at the latest, and for unloading at the earliest, convenient moment. All this is entirely inconsistent with the idea of an express business on passenger trains free to all express carriers. Railroad companies are by law carriers of both persons and property. Passenger trains have from the beginning been provided for the transportation primarily of passengers and their baggage. This must be done with reasonable promptness and with reasonable comfort to the passenger. The express business on passenger trains is in a degree subordinate to the passenger business, and it is consequently 11 162 THE EXPRESS CASES. the dot}' of a railroad company- in arranging for the express to see that there is as little interference as possible with the wants of passengers. This implies a special understanding and agreement as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which the}* shall stop, the price to be paid, and all the varying details of a business which is to be adjusted between two public servants, so that each can perform in the best manner its own particular duties. All this must necessarily be a matter of bargain, and it by no means fol- lows that, because a railroad company can serve one express company in one way, it can as well serve another cornpan}- in the same way, and still perform its other obligations to the public in a satisfactory manner. The car space that can be given to the express business on a passenger train is, to a certain extent, limited, and, as has been seen, that which is allotted to a particular carrier must be, in a measure, under his exclu- sive control. No express company can do a successful business unless it is at all times reasonably sure of the means it requires for trans- portation. On important lines one company will at times fill all the space the railroad company can well allow for the business. If this space had to be divided among several companies, there might be occa- sions when the public would be put to inconvenience by delays which could otherwise be avoided. So long as the public are served to their reasonable satisfaction, it is a matter of no importance who serves them. The railroad company performs its whole duty to the public at large and to each individual when it affords the public all reasonable express accommodations. If this is done the railroad company owes no duty to the public as to the particular agencies it shall select for that purpose. The public require the carriage, but the company may choose its own appropriate means of carriage, always provided the}' are such as to insure reasonable promptness and security. The inconvenience that would come from allowing more than one express company on a railroad at the same time was apparently so well understood both by the express companies and the railroad com- panies that the three principal express companies, the Adams, the American, and the United States, almost immediately on their organ- ization, now more than thirty years ago, by agreement divided the territory in the United States traversed by railroads among themselves, and since that time each has confined its own operations to the par- ticular roads which, under this division, have been set apart for its special use. No one of these companies has ever interfered with the other, and each has worked its allotted territor}', always extending its lines in the agreed directions as circumstances would permit. At the beginning of the late civil war the Adams Company gave up its terri- tory in the Southern States to the Southern Company, and since then the Adams and the Southern have occupied, under arrangements between themselves, that part of the ground originally assigned to the Adams alone. In this way these three or four important and influ- THE EXPRESS CASES. 163 ential companies were able substantially to control, from 1854 until about the time of the bringing of these suits, all the railway express business in the United States, except upon the Pacific roads and in certain comparatively limited localities. In fact, as is stated in the argument for the express companies, the Adams was occupying when these suits were brought, one hundred and fifty-five railroads, with a mileage of 21,216 miles, the American two hundred roads, with a mile- age of 28,000 miles, and the Southern ninety-five roads, with a mileage of 10,000 miles. Through their business arrangements with each other, and with other connecting lines, they have been able for a long time to receive and contract for the deliver}- of any package committed to their charge at almost any place of importance in the United States and in Canada, and even at some places in Europe and the West Indies. They have invested millions of dollars in their business, and have secured public confidence to such a degree that they are trusted unhesitatingly by all who need their services. The good will of their business is of very great value, if they can keep their present facilities for transportation. The longer their lines and the more favorable their connections, the greater will be their own profits, and the better their means of serving the public. In making their investments and in extending their business, the}- have undoubtedl} 7 relied on securing and keeping favorable railroad transportation, and in this the}* were en- couraged by the apparent willingness of railroad companies to accom- modate them ; but the fact still remains that they have never been allowed to do business on any road except under a special contract, and that as a rule only one express company has been admitted on a road at the same time. The territory traversed by the railroads involved in the present suits is part of that allotted in the division between the express companies to the Adams and Southern companies, and in due time after the roads were built these companies contracted with the railroad companies for the privileges of an express business. The contracts were all in writ- ing, in which the rights of the respective parties were clearly defined, and there is now no dispute about what they were. Each contract contained a provision for its termination by either party on notice. That notice has been given in all the cases by the railroad companies, and the express companies now sue for relief. Clearly this cannot be afforded by keeping the contracts in force, for both parties have agreed that they may be terminated at any time by either party on notice ; nor by making new contracts, because that is not within the scope of judicial power. The exact question, then, is whether these express companies can now demand as a right what the)' have heretofore had only as by permission. That depends, as is conceded, on whether all railroad companies are now by law charged with the duty of carrying all express companies in the wa} T that express carriers when taken are usually carried, just as they are with the duty of carrying all passengers and freights when 164 THE EXPRESS CASES. offered in the way that passengers and freight are carried. The con- tracts which these companies once had are now out of the way, and the companies at this time possess no other rights than such as belong to any other company or person wishing to do an express business upon these roads. If they are entitled to the relief they ask it is because it is the duty of the railroad companies to furnish express facilities to all alike who demand them. The constitutions and the laws of the States in whi6h the roads are situated place the companies that own and operate them on the foot- ing of common carriers, but there is nothing which in positive terms requires a railroad compan}- to carry all express companies in the way that under some circumstances the}' may be able without inconvenience to carry one company. In Kansas, the Missouri, Kansas, and Texas Company must furnish sufficient accommodations for the transporta- tion of all such express freight as may be offered, and in each of the States of Missouri, Arkansas, and Kansas railroad companies are prob- abh" prohibited from making unreasonable discriminations in their busi- ness as carriers, but this is all. Such being the case, the right of the express companies to a decree depends upon their showing the existence of a usage, having the force of law in the express business, which requires railroad companies to carry all express companies on their passenger trains as express carri- ers are usually carried. It is not enough to establish a usage to carr} r some express company, or to furnish the public in some way with the advantages of an express business over the road. The question is not whether these railroad companies must furnish the general public with reasonable express facilities, but whether they must cany these par- ticular express carriers for the purpose of enabling them to do an express business over the lines. In all these voluminous records there is not a syllable of evidence to show a usage for the carriage of express companies on the passenger trains of railroads unless specially contracted for. While it has uni- formly been the habit of railroad companies to arrange, at the earliest practicable moment, to take one express company on some or all of their passenger trains, or to provide some other way of doing an ex- press business on their lines, it has never been the practice to grant such a privilege to more than one company at the same time, unless a statute or some special circumstances made it necessary or desirable. The express companies that bring these suits are certainly in no situ- ation to claim a usage in their favor on these particular roads, because their entr}" was originally under special contracts, and no other compa- nies have ever been admitted except by agreement. B}- the terms of their contracts they agreed that all their contract rights on the roads should be terminated at the will of the railroad company. They were willing to begin and to expand their business upon this understanding, and with this uncertainty as to the duration of their privileges. The stoppage of their facilities was one of the risks they assumed when THE EXPRESS CASES. 165 they accepted their contracts, and made their investments under them. If the general public were complaining because the railroad companies refused to carry express matter themselves on their passenger trains, or to allow it to be carried by others, different questions would be presented. As it is, we have onty to decide whether these particular express companies must be carried notwithstanding the termination of their special contract rights. The difficulty in the cases is apparent from the form of the decrees. As express companies had always been carried by railroad companies under special contracts, which established the duty of the railroad com- pany upon the one side, and fixed the liability of the express company on the other, the court, in decreeing the carriage was substantially compelled to make for the parties such a contract for the business as in its opinion the}' ought to have made for themselves. Having found that the railroad company should furnish the express company with facilities for business, it had to define what those facilities must be, and it did so by declaring that they should be furnished to the same extent and upon the same trains that the company accorded to itself or to any other company engaged in conducting an express business on its line. It then prescribed the time and manner of making the payment for the facilities and how the payment should be secured, as well as how it should be measured. Thus, by the decrees, these rail- road companies are compelled to carry these express companies at these rates, and on these terms, so long as they ask to be carried, no matter what other express companies pay for the same facilities or what such facilities ma}', for the time being, be reasonably worth, unless the court sees fit, under the power reserved for that purpose, on the application of either of the parties, to change the measure of compen- sation. In this way as it seems to us, " the court bas made an arrange- ment for the business intercourse of these companies, such as, in its opinion, they ought to have made for themselves," and that, we said in Atchison, Topeka and Santa Fd Railroad Co. v. Denver & New Orleans Railroad Co., 110 U. S. 667, followed at this term in Pull- man's Palace Car Co. v. Missouri Pacific Railway Co., 115 U. S. 587, could not be done. The regulation of matters of this kind is legisla tive in its character, not judicial. To what extent it must come, if it comes at all, from Congress, and to what extent it may come from the States, are questions we do not now undertake to decide ; but that it must come, when it does come, from some source of legislative power, we do not doubt. The legislature may impose a duty, and when im- posed it will, if necessary, be enforced by the courts, but, unless a duty has been created either by usage or by contract, or by statute, the courts cannot be called on to give it effect. The decree in each of the cases is reversed, and the suit is remanded, with directions to dissolve the injunction, and, after adjusting the accounts between the parties for business done while the injunc- tions were in force, and decreeing the payment of any amounts that may be found to be due, to dismiss the bills. 166 THE EXPRESS CASES. MR. JUSTICE MILLER dissenting. When these cases were argued before Circuit Judge McCrary and myself at St. Louis, after due consideration and consultation with him and Judge Treat, of the District Court, 1 announced certain proposi- tions as the foundations on which the decrees should be rendered. These were afterwards entered in the various circuits to which the cases properly belonged, and, I believe, in strict accordance with the principles thus announced. I am still of opinion that those principles are sound, and I repeat them here as the reasons of my dissent from the judgment of the court now pronounced in these cases. They met the approval of Judge McCrary when they were submitted to his consideration. They were filed in the court in the following language : " 1. I am of opinion that what is known as the express business is a branch of the carrying trade that has, by the necessities of com- merce and the usages of those engaged in transportation, become known and recognized. " That, while it is not possible to give a definition in terms which will embrace all classes of articles usually so carried, and to define it with a precision of words of exclusion, the general character of the business is sufficiently known and recognized to require the court to take notice of it as distinct from the transportation of the large mass of freight usually carried on steamboats and railroads. " That the object of this express business is to carry small and valu- able packages rapidly, in such a manner as not to subject them to the danger of loss and damage, which, to a greater or less degree, attends the transportation of heavy or bulky articles of commerce, as grain, flour, iron, ordinary merchandise, and the like. " 2. It has become law and usage, and is one of the necessities of this business, that these packages should be in the immediate charge of an agent or messenger of the person or company engaged in it, and to refuse permission to this agent to accompany these packages on steam- boats or railroads on which the}' are carried, and to deny them the right to the control of them while so carried, is destructive of the business and of the rights which the public have to the use of the rail- roads in this class of transportation. 41 3. I am of the opinion that when express matter is so confided to the charge of an agent or messenger, the railroad company is no longer liable to all the obligations of a common carrier, but that when loss or injury occurs, the liability depends upon the exercise of due care, skill, and diligence on the part of the railroad company. *' 4. That, under these circumstances, there does not exist on the part of the railroad company the right to open and inspect all pack- ages so carried, especially when they have been duly closed or sealed up by their owners or by the express carrier. u 5. I am of the opinion that it is the duty of every railroad com- THE EXPEESS CASES. 167 pany to provide such conveyance by special cars, or otherwise, attached to their freight and passenger trains, as are required for the safe and proper transportation of this express matter on their roads, and that the use of these facilities should be extended on equal terms to all who are actually and usually engaged in the express business. " If the number of persons claiming the right to engage in this busi- ness at the same time, on the same road, should become oppressive, other considerations might prevail ; but until such a state of affairs is shown to be actually in existence in good faith, it is unnecessary to consider it. " 6. This express matter and the person in charge of it should be carried by the railroad company at fair and reasonable rates of com- pensation ; and where the parties concerned cannot agree upon what that is, it is a question for the courts to decide. " 7. I am of the opinion that a court of equity, in a case properly made out, has the authority to compel the railroad companies to carry this express matter, and to perform the duties in that respect which I have already indicated, and to make such orders and decrees, and to enforce them by the ordinary methods in use necessary to that end. " 8. While I doubt the right of the court to fix in advance the pre- cise rates which the express companies shall pay and the railroad company shall accept, I have no doubt of its right to compel the performance of the service by the railroad company, and after it is rendered to ascertain the reasonable compensation and compel its pa}'ment. "9. To permit the railway company to fix upon a rate of com- pensation which is absolute, and insist upon the payment in advance or at the end of every train, would be to enable them to defeat the just rights of the express companies, to destroy their business, and would be a practical denial of justice. " 10. To avoid this difficulty, I think that the court can assume that the rates, or other mode of compensation heretofore existing be- tween any such companies are prima facie reasonable and just, and can require the parties to conform to it as the business progresses, with the right to either party to keep and present an account of the busi- ness to the court at stated intervals, and claim an addition to, or rebate from, the amount paid. And to secure the railroad companies in any sum which may be thus found due them, a bond from the ex- press company may be required in advance. "11. When no such arrangement has heretofore been in existence it is competent for the court to devise some mode of compensation to be paid as the business progresses, with like power of final revision on evidence, reference to master, &c. "12. I am of opinion that neither the statutes nor constitutions of Arkansas or Missouri were intended to affect the right asserted in these cases ; nor do they present any obstacle to such decrees as may enforce the right of the express companies." 168 THE EXPEESS CASES. Three years' reflection and the renewed and able argument in this court have not changed my belief in the soundness of these principles. That there may be slight errors in the details of the decrees of the Circuit Courts made to secure just compensation for the services of the railroad companies is possibly true, but I have not discovered them, and the attention of the court has not been given to them in deciding this case ; for holding, as it does, that the complainants were entitled to no relief whatever, it became unnecessary to consider the details of the decrees. I only desire to add one or two observations in regard to matters found in the opinion of this court. 1. The relief sought in these cases is not sought on the ground of usage in the sense that a long course of dealing with the public has established a custom in the nature of law. Usage is only relied on as showing that the business itself has forced its way into general recog- nition as one of such necessity to the public, and so distinct and marked in its character, that it is entitled to a consideration differ- ent from other modes of transportation. 2. It is said that the regulation of the duties of carrying by the railroads, and of the compensation they shall receive, is legislative in its character and not judicial. As to the duties of the railroad company, if they are not, as com- mon carriers, under legal obligation to carry express matter for any one engaged in that business in the manner appropriate and usual in such business, then there is no case for the relief sought in these bills. But if the}' are so bound to carry, then in the absence of an}' legislative rule fixing their compensation I maintain that that compensation is a judicial question. It is, then, the ordinary and ever-recurring question on a quantum meruit. The railroad company renders the service which, by the law of its organization, it is bound to render. The express company re- fuses to pay for this the price which the railroad company demands, because it believes it to be exorbitant. That it is a judicial question to determine what shall be paid for the service rendered, in the absence of an express contract, seems to me beyond doubt That the legislature may, in proper case, fix the rule or rate of com- pensation, I do not deny. But until this is done the court must decide it, when it becomes matter of controversy. The opinion of the court, while showing its growth and importance, places the entire express business of the country wholly at the mercy of the railroad companies, and suggests no means by which they can be compelled to do it. According to the principles there announced, no railroad company is bound to receive or carry an express messen- ger or his packages. If they choose to reject him or his packages, they can throw all the business of the country back to the crude condi- tion in which it was a half-century ago, before Harnden established his local express between the large Atlantic cities ; for, let it be remem- OLD COLONY RAILROAD V. TRIPP. 169 bered that plaintiffs have never refused to pay the railroad companies reasonable compensation for their services, but those companies refuse to carry for them at any price or under any circumstances. I am very sure such a proposition as this will not long be acquiesced in by the great commercial interests of the country and by the public, whom both railroad companies and the express men are intended to serve. If other courts should follow ours in this doctrine, the evils to ensue will call for other relief. It is in view of amelioration of these great evils that, in dissenting here, I announce the principles which I earnestly believe ought to con- trol the actions and the rights of these two great public services. MR. JUSTICE FIELD dissenting. I agree with MR. JUSTICE MILLER in the positions he has stated, although in the cases just decided I think the decrees of the courts below require modification in several particulars ; they go too far. But I am clear that railroad companies are bound, as common carriers, to accommodate the public in the transportation of goods according to its necessities, and through the instrumentalities or in the mode best adapted to promote its convenience. Among these instrumentalities express companies, by the mode in which their business is conducted, are the most important and useful. MR. JUSTICE MATTHEWS took no part in the decision of these cases. 1 OLD COLONY RAILROAD v.. TRIPP. SUPREME JUDICIAL COURT OP MASSACHUSETTS, 1888. [147 Mass. 35 ; 17 N. E. 89.] W. ALLEN, J., delivered the opinion of the court. Whatever implied license the defendant may have had to enter the plaintiff's close had been revoked by the regulations made by the plaintiff for the management of its business and the use of its property in its business. The defendant entered under a claim of right, and can justify his entry only by showing a right superior to that of the plaintiff. The plaintiff has all the rights of an owner in possession, except such as are inconsistent with the public use for which it holds its franchise; that is, with its duties as a common carrier of persons and merchandise. As concerns the case at bar, the plaintiff is obliged to be a common carrier of passengers ; it is its duty to furnish rea- sonable facilities and accommodations for the use of all persons who seek for transportation over its road. It provided its depot for the use of persons who were transported on its cars to or from the sta- 1 Ace. Pfister v. R. R., 70 Cal. 169 ; Louisville, &c. Ry. v. Keefer, 146 Ind. 21 ; 44 N. E. 796; Sargent v. R. R., 115 Mass. 416: Exp. Co. v. R. R., Ill N. C. 463; 16 S. E. 393, ED. 170 OLD COLONY RAILROAD V. TlIIPP. tion, and holds it for that use; and it has no right to exclude from it persons seeking access to it for the use for which it was intended and is maintained. It can subject the use to rules and regulations ; but by statute, if not by common law, the regulations must be such as to secure reasonable and equal use of the premises to all having such right to use them. See Pub. Stat. chap. 112, 188; Fitchburg Railroad r. Gage, 12 Gray, 393; Spofford v. Boston & Maine Railroad, 128 Mass. 326. The station was a passenger station. Passengers taking and leaving the cars at the station, and persons setting down passen- gers or delivering merchandise or baggage for transportation from the station, or taking up passengers or receiving merchandise that had been transported to the station, had a right to use the station buildings and grounds, superior to the right of the plaintiff to exclu- sive occupancy. All such persons had business with the plaintiff, which it was bound to attend to in the place and manner which it had provided for all who had like business with it. The defendant was allowed to use the depot for any business that he had with the plaintiff. But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to the plaintiff or to receive from it. His purpose was to use the depot as a place for soliciting contracts with incoming passengers for the trans- portation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for procuring transportation for himself and his baggage from the station, where his transit ends. What conveniences shall be furnished to passengers within the station for that purpose is a matter wholly be- tween them and the company. The defendant is a stranger both to the plaintiff and to its passengers, and can claim no rights against the plaintiff to the use of its station, either in his own right or in the right of passengers. The fact that he is willing to assume relations with any passenger, which will give him relations with the plaintiff involving the right to use the depot, does not establish such rela- tions or such right; and the right of passengers to be solicited by drivers of hacks and job-wagons is not such as to give to all such drivers a right to occupy the platforms and depots of railroads. If such right exists, it exists, under the statute, equally for all; and railroad companies are obliged to admit to their depots, not only persons having business there to deliver or receive passengers or merchandise, but all persons seeking such business, and to furnish reasonable and equal facilities and conveniences for all such. The only case we have seen which seems to lend any countenance to the position that a railroad company has no right to exclude per- sons from occupying its depots for the purpose of soliciting the patronage of passengers is Markham v. Brown, 8 N. H. 523, in which it was held that an innholder had no right to exclude from his inn a Htagedriver who entered it to solicit guests to patronize his stage in opposition to a driver of a rival line who had been admitted OLD COLONY RAILROAD V. TRIPP. 171 for a like purpose. It was said to rest upon the right of the passen- gers rather than that of the driver. However it may be with a guest at an inn, we do not think that passengers in a railroad depot have such possession of a right in the premises as will give to carriers of baggage, soliciting their patronage, an implied license to enter, irrev- ocable by the railroad company. Barney v. Oyster .Bay H. Steam- boat Co. 67 N. Y. 301, and Jencks v. Coleman, 2 Sumn. 221, are oases directly in point. See also Com. v. Power, 7 Met. 596, and Harris v. Stevens, 31 Vt. 79. It is argued that the statute gave to the defendant the same right to enter upon and use the buildings and platforms of the plaintiff, which the plaintiff gave to Porter & Sons. The plaintiff made a contract with Porter & Sons to do all the service required by incoming passen- gers, in receiving from the plaintiff, and delivering in the town, bag- gage and merchandise brought by them; and prohibited the defendant and all other owners of job-wagons from entering the station for the purpose of soliciting from passengers the carriage of their baggage and merchandise, but allowed them to enter for the purpose of deliv- ering baggage or merchandise, or of receiving any for which they had orders. Section 188 of the Pub. Stats, chap. 112, is in these words: "Every railroad corporation shall give to all persons or companies reasonable and equal terms, facilities, and accommodations for the transportation of themselves, their agents, and servants, and of any merchandise and other property, upon its railroad, and for the use of its depot and other buildings and grounds, and, at any point where its railroad connects with another railroad, reasonable and equal terms and facilities of interchange." A penalty is prescribed in 191 for violations of the statute. The statute, in providing that a railroad corporation shall give to all persons equal facilities for the use of its depot, obviously means a use of right. It does not intend to prescribe who shall have the use of the depot, but to provide that all who have the right to use it shall be furnished by the railroad company with equal conveniences. The statute applies only to relations between railroads as common carriers, and their patrons. It does not enact that a license given by a railroad company to a stranger shall be a license to all the world. If a railroad company allows a person to sell refreshments or news- papers in its depots, or to cultivate flowers on its station-grounds, the statute does not extend the same right to all persons. If a railroad company, for the convenience of its passengers, allows a baggage expressman to travel in its cars to solicit the carriage of the baggage of passengers, or to keep a stand in its depot for receiving orders from passengers, the statute does not require it to furnish equal facilities and conveniences to all persons. The fact that the defend- ant, as the owner of a job-wagon, is a common carrier, gives hinr no special right under the statute; it only shows that it is possible for him to perform for passengers the service which he wishes to solicit of them. 172 OLD COLONY RAILROAD V. TRIPP. The English Railway & Canal Traffic Act, 17 & 18 Viet. chap. 31, requires every railway and canal company to afford all reasonable facilities for traffic, and provides that "no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular descrip- tion of traffic, in any respect whatsoever." Marriott v. London & S. W. R. Co. 1 C. B. N. S. 499, was under this statute. The complaint was that the omnibus of Marriott, in which he brought passengers to the railroad, was excluded by the railway company from its station grounds, when other omnibuses, which brought passengers, were admitted. An injunction was ordered. Beadell v. Eastern Counties R. Co. 2 C. B. N. S. 509, was a complaint, under the statute, that the railway company refused to allow the complainant to ply for passengers at its station, it having granted the exclusive right of taking up passengers within the station, to one Clark. The respond- ent allowed the complainant's cabs to enter the station for the purpose of putting down passengers, and then required him to leave the yard. An injunction was refused. One ground on which the case was dis- tinguished from Marriott's was that the complainant was allowed to enter the yard to set down passengers, and was only prohibited from remaining to ply for passengers. See also Painter v. London, B. & S. C. R. Co. 2 C. B. N. S. 702; Barker v. Midland R. Co. 18 C. B. 46. Besides Marriott's Case, supra, Palmer v. London, B. & S. C. R. Co. L. R. 6 C. P. 194, and Parkinson v. Great Western R. Co. L. R. 6 C. P. 554, are cases in which injunctions were granted under the statute: in the former case, for refusing to admit vans containing goods to the station-yard for delivery to the railway company for transportation by it; in the latter case, for refusing to deliver at the station, to a carrier authorized to receive them, goods which had been transported on the railroad. We have not been referred to any decision or dictum, in England or in this country, that a common carrier of passengers and their baggage to and from a railroad station has any right, without the consent of the railroad company, to use the grounds, buildings, and platforms of the station for the purpose of soliciting the patronage of passengers; or that a regulation of the company which allows such use by particular persons, and denies it to others, violates any right of the latter. Cases at common law or under statutes to determine whether railroad companies in particular instances gave equal terms and facilities to different parties to whom they furnished transporta- tion, and with whom they dealt as common carriers, have no bearing on the case at bar. The defendant, in his business of solicitor of the patronage of passengers, held no relations with the plaintiff as a com- mon carrier, and had no right to use its station-grounds and buildings. A majority of the court are of the opinion that there should be Judgment on the verdict ' 1 Ace. Brown o. N. Y C. & H. R. R. R., 27 N. Y. Sup. 69. En. KATES V. ATLANTA BAGGAGE AND CAB CO. 173 KATES v. ATLANTA BAGGAGE AND CAB CO. SUPREME COURT OP GEORGIA, 1899. [107 Go. 636. 1 ] LITTLE, J. . . . The evidence was in direct conflict on many points. As to the truth of the allegations about which the evidence is con- flicting, it is, so far as we are concerned, settled by the determination of the judge, and the right of the petitioner to have the judgment re- fusing the injunction reversed must depend on the application of legal principles to such of the allegations as are not contested by evidence, and these are : First, that the defendants permit the cab company to enter the passenger-trains before reaching the city, for the purpose of soliciting baggage, and refuse the same privilege to the petitioner. Second, that the servants of the cab company are allowed access to the passenger-station for the purpose of soliciting patronage and for more conveniently attending to its business, and this privilege is re- fused to petitioner. Third, that the privilege of using an office in the baggage-room of the defendants for the transaction of its business is granted to the cab company and refused to Kates. Fourth, the privi- lege of checking the baggage of prospective passengers at hotels and residences in advance of delivery of the baggage at the passenger-sta- tion ; each of which privileges is refused to petitioner. It cannot successfully be maintained that the grant of these privileges to the cab company is in violation of law, nor do the concessions of themselves create a monopoly, nor are they in any sense an interference with the right of the travelling public. On the contrary, it will be recognized that the exercise of the facilities named tends to the public convenience and the prompt and safe handling of the baggage of the passenger. Un- der no view of the case would the petitioner be entitled to the aid of the courts in restricting these conveniences and lessening the facilities for the safe and convenient handling of the effects of a passenger. The law would hardly undertake to declare that a railroad company should not, if it so desired, through its representative deliver to one at his home in the city of Atlanta a check insuring the delivery of his trunk in the city of New York for which he was bound, and subject the pas- senger to the inconvenience of personally appearing at the baggage- room, pointing out his trunk, and there receiving the railroad company's check. We know of no obligation which requires that a railroad com- pany shall furnish such a facility, but certainly there can be no reason to forbid its doing so, if it will ; and likewise the privilege afforded to an incoming passenger before arrival to deliver to a responsible person the check for his baggage, with an obligation on the part of the latter to deliver the same at the residence or hotel of the passenger, infringes nobody's rights, but does promote the convenience of the travelling public ; and rather than forbid, the law's administrators will encourage 1 This case is abridged. ED. 174 KATES V. ATLANTA BAGGAGE AND CAB CO. such a facility. It is not the right of the plaintiff in error, by injunc- tion or otherwise, to take away or disturb any reasonable means tend- ing to promote the convenience and comfort of the public. The merit of his complaint, if any exists, must be found in the fact of the refusal of the defendants to grant to him the opportunities so to serve the pub- lic and thereby better his business. Whether the refusal so to do is proper or unlawful does not depend upon the favor or inclination of the railroad company, but upon the plaintiff's right. If it should depend upon favor, then the plaintiff in error has no cause of com- plaint, because favor is essentially free and voluntary, and may not be demanded ; and it is in this view that we come to measure by the legal standard what are the rights of the petitioner under the allegations he makes, as against the rights of the defendants to control propert}- to which they have title and consequently the right of use, and the plain- tiff in error, to succeed, must establish the proposition that the de- fendants as common carriers are in law bound to afford to him the same conveniences and facilities for carrying on his business which they afford to others engaged in the same calling. It is claimed that the grant of the enumerated privileges to the cab company, and the refusal of them to petitioner, is the exercise of an undue preference on the part of the carrier against the business of petitioner, and that such grant and refusal establishes a monopoly which is forbidden by law. In entering into the consideration of these important questions, we find that the field of inquiry has been fre- quently traversed, with the result of adjudicated cases not entirety in harmony. In some of .these, the decisions are based on .the common law ; in very many more, on the terms of various statutes ; and it may be well to inquire whether our own organic or statute law deals par- ticularly with such questions. It is undeniably true that the whole spirit of our constitution and laws is directed against any restriction of competition. Constitution of Ga., art. 4, section 2, par. 4. Sec- tion 2,214 of the Civil Code declares against discrimination in rates of freight and in the furnishing of facilities for interchange of freights, &c., as do also sections 2,188, 2,307, 2,268, and 2,274 of the Civil Code, in a greater or less degree. While it is perhaps true that there are no express rules of any of our statutes which enact penalties for unjust discrimination exercised by carriers to the detriment of the busi- ness of another, yet the scope and intent of the provisions* to which we have referred are broad enough to afford a remedy. But in the ab- sence of any statutory declaration, we are remitted to the principles of the common law to determine whether the refusal to grant the plain- tiff in error the exercise of the facilities afforded to another in the same business is an unjust discrimination, or an unequal and illegal preference. The defendant railroad companies are common carriers and are under obligation to serve the public equally and justly. Hav- ing accepted their right of existence from the public, they owe a duty to the public, and their conduct must be equal and just to all. The KATES V. ATLANTA BAGGAGE AND CAB CO. 175 very definition of a common carrier excludes the right to grant mo- nopolies or to give special or unequal preferences. It implies indiffer- ence as to whom he may serve and an equal readiness to serve all who may apply in the order of their application. 57 Me. 188. From these characteristics, which apply to all common carriers, it is a sound legal principle that a railway company as a common carrier cannot grant to any person or persons, or to any part of the public, rights or privileges which it refuses to others, but must treat all alike. Receiving and dis- charging baggage is one of the duties of a public passenger-carrier, and the obligations before enumerated apply in full force in the re- ceipt and discharge of baggage at the union passenger-station in the city of Atlanta ; and if it should be found to be true that the defend- ant railroad companies, either in the receipt or delivery of baggage by their baggage- master or other agents, discriminated against any pas- senger or the agent of an}' passenger in the time or manner in which baggage was received or discharged either through a S3'stem of claim- checks or otherwise, such discrimination would be a palpable violation of their public duties, for which the law affords ample remed}' by injunction and full redress in the nature of damages. So of injury to or undue interference with the baggage presented. Neither should discourteous language or personal ill-treatment by the agents of the carrier in the performance of his business be tolerated. As these charges were denied, and the judgment sought to be reversed necessa- rily included a finding against their truth, nothing more than a recog- nition of the principle need now be adverted to ; but, inseparably connected with the transaction of its public business, a common car- rier is invested with the ownership of property, for the safe and effi- cient exercise of the franchises which the public has for its own benefit given to it. Railroad companies have rights of way, stations, depots, cars, engines, &c., as their equipment to serve the public. In the use of such property as public carriers, no one of the public ought to be favored more than another, nor is it lawful to impose any restriction, or make any discrimination in such use, against any one, which does not apply to all ; but this rule of impartiality applies to railroad com- panies in their public capacity, and it b\- no means follows that such reasonable rules and regulations which a carrier may make for the pro- tection of its property, for the safety and convenience of its pas- sengers or freights, are subject to the same unqualified condition. This court in the case of Fluker v. Georgia R. R. Co., 81 Ga. 461, recognized the distinction which exists between the duty which a rail- road compan}' owes to the public and the private right to regulate and control its property. In that case the railroad compam- had leased to one individual the right of serving lunches to passengers on its trains at a given place. Another claimed the right to exercise the same priv- ilege, which the company denied, and the claimant was expelled as an intruder. As in our opinion this case goes very far in determin- ing the legal questions now presented, we freely refer to the opinion ren- dered by Chief Justice Bleckley as sound in principle, and authority 176 KATES V. ATLANTA BAGGAGE AND CAB CO. binding upon us. Through him the court s&ys : " It is contended that the company has no such exclusive dominion over the tracks and spaces embraced in its right of way as to entitle it to exclude therefrom an}- person entering thereon in an orderly manner and upon lawful business ; and especially that it cannot discriminate against one person and in favor of another. We have discovered no authority for this position, either in its more limited or more extended form. On the contrary, it would seem that the very nature of property involves a right to exclusive dominion over it in the owner. We cannot believe that there is a sort of right of common lodged in the public at large to enter upon lands on which railroads are located, and over which they have secured the right of way. Such lands the railroad companies may inclose by fences if they choose to do so, and exclude any and all persons whom- soever. Their dominion over the same is no less complete or exclu- sive than that which every owner has over his property. If they do not choose to erect fences and make enclosures, they may, by mere orders, keep off intruders, and they may treat as intruders all who come to transact their own business with passengers or with persons other than the companies themselves. . . . 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." Citing 67 N. Y. 301 ; 31 Ark. 50 ; 2 Gray, 577 ; 88 Penn. St. 424; 128 Mass. 5 ; 29 Ohio St. 364. This is the exposi- tion of the law in force in this State, from which, as we believe, there has been no departure. If the principles declared are applicable to the facts of the present record, it would seem that the contention of the plaintiff that he should be allowed, as a matter of right, access to the depot-grounds and trains of the defendant railroad companies to pi} 7 his business, must fail. The case clearly rules the principle that a railroad company has the right to exclude from its premises persons going thereon for the purpose of transacting private business ; and a second proposition is equally as clearly stated to be, that the privilege of doing so ma} r be granted to one and refused to another without violating any principle of law which governs the conduct of carriers and regulates their duty to the public. CITIZENS' BANK v. NANTUCKET STEAMBOAT co. 177 CITIZENS' BANK w. NANTUCKET STEAMBOAT CO. CIRCUIT COURT OP THE UNITED STATES, 1811. [2 Story, 16. 2 ] STORY, J. This cause has come before the court under circumstances, involving some points of the first impression here, if not of entire nov- elty ; and it has been elaborately argued by the counsel on each side on all the matters of law, as well as of fact, involved in the controversy. I have given them all the attention, both at the argument and since, which their importance has demanded, and shall now proceed to deliver my own judgment. The suit is in substance brought to recover from the Steamboat Com- pany a sum of money, in bank bills and accounts, belonging to the Citizens' Bank, which was intrusted by the cashier of the bank to the master of the steamboat, to be carried in the steamboat from the Island of Nan tucket to the port of New Bedford, across the intermediate sea, which money has been lost, and never duly delivered by the master. The place where, and the circumstances under which it was lost, do not appear distinctly in the evidence ; and are no otherwise ascertained, than by the statement of the master, who has alleged that the money was lost by him after his arrival at New Bedford, or was stolen from him; but exactly how and at what time he does not know. The libel is not in rem, but inpersonam, against the Steamboat Compan}* alone j and no question is made (and in my judgment there is no just ground for any such question), that the cause is a case of admiralty and mari- time jurisdiction in the sense of the Constitution of the United States, of which the District Court had full jurisdiction ; and, therefore, it is properly to be entertained b} T this court upon the appeal. There are some preliminary considerations suggested at the argu- ment, which it may be well to dispose of, before we consider those, which constitute the main points of the controversj'. In the first place, there is no manner of doubt, that steamboats, like other vessels, may be emplo}*ed as common carriers, and when so emploj'ed their owners are liable for all losses and damages to goods and other propert}' in- 1 Compare : East India Co. v. Fallen, 2 Strange, 690 ; Brind v. Dale, 8 C. & P 207 ; Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338. ED. 8 This case is abridged. ED. 178 CITIZENS' BANK v. NANTUCKET STEAMBOAT co. trusted to them as common carriers to the same extent and in the same manner, as any other common carriers by sea. But whether they are so, depends entirely upon the nature and extent of the employment of the steamboat, either express or implied, which is authorized by the owners. A steamboat may be employed, although I presume it is rarely the case, solely in the transportation of passengers ; and then the liabilit}* is incurred only to the extent of the common rights, duties, and obligations of carrier vessels of passengers by sea, and carrier vehicles of passengers on land ; or they may be emplo}-ed solely in the transportation of goods and merchandise, and then, like other carriers of the like character at sea and on land, they are bound to the common duties, obligations, and liabilities of common carriers. Or the employ- ment may be limited to the mere carriage of particular kinds of prop- erty and goods ; and when this is so, and the fact is known and avowed, the owners will not be liable as common carriers for an}* other goods or property intrusted to their agents without their consent. The trans- portation of passengers or of merchandise, or of both, does not neces- sarily imply, that the owners hold themselves out as common carriers of money or bank bills. It has never been imagined, I presume, that the owners of a ferry boat, whose ordinur}' employment is merely to carry passengers and their luggage, would be liable for the loss of money intrusted for carriage to the boatmen or other servants of the owners, where the latter had no knowledge thereof, and received no compensation therefor. In like manner the owners of stage-coaches, whose ordinary employment is limited to the transportation of pas- sengers and their luggage, would not be liable for parcels of goods or merchandise intrusted to the drivers employed by them, to be carried from one place to another on their route, where the owners receive no compensation therefor, and did not hold themselves out as common carriers of such parcels. A fortiori, they would not be liable for the' carriage of parcels of mone}*, or bank bills, under the like circumstances. So, if money should be intrusted to a common wagoner not authorized to receive it by the ordinary business of his employers and owners, at their risk, I apprehend, that they would not be liable for the loss thereof as common carriers, any more than they would be for an injury done by his negligence, to a passenger, whom he had casualty taken up on the road. In all these cases, the nature and extent of the employ- ment or business, which is authorized by the owners on their own account and at their own risk, and which either expressly or impliedly they hold themselves out as undertaking, furnishes the true limits of their rights, obligations, duties, and liabilities. The question, therefore, in all cases of this sort is, what are the true nature and extent of the employment and business, in which the owners hold themselves out to the public as engaged. They may undertake to be common carriers of passengers, and of goods and merchandise, and of money ; or, they may limit their employment and business to the carriage of any one or more of these particular matters. Our steamboats are ordinarily em- CITIZENS' BANK v. NANTUCKET STEAMBOAT co. 179 ployed, I believe, in the carriage, not merely of passengers, but of goods and merchandise, including specie, on freight ; and in such cases, the owners will incur the liabilities of common carriers as to all such mat- ters within the scope of their employment and business. But in respect to the carriage of bank bills, perhaps very different usages do, or at least may, prevail in different routes, and different ports. But, at all events, I do not see, how the court can judicially say, that steamboat owners are either necessarily or ordinarily to be deemed, in all cases, common carriers, not only of passengers, but of goods and merchandise and money on the usual voyages and routes of their steamboats ; but the nature and extent of the employment and business thereof must be established as a matter of fact by suitable proofs in each particular case. Such proofs have, therefore, been very properly resorted to upon the present occasion. In the next place, I take it to be exceedingly clear, that no person is a common carrier in the sense of the law, who is not a carrier for hire ; that is, who does not receive, or is not entitled to receive, any recom- pense for his services. The known definition of a common carrier, in all our books, fully establishes this result. If no hire or recompense is payable ex debito justitice, but something is bestowed as a mere gra- tuity or voluntary gift, then, although the party may transport either persons or propert}', he is not in the sense of the law a common car- rier; but he is a mere mandatary, or gratuitous bailee; and of course his rights, duties, and liabilities are of a very different nature and char- acter from those of a common carrier. In the present case, therefore, it is a very important inquiry, whether in point of fact the respondents were carriers of money and bank notes and checks for hire or recom- pense, or not. I agree, that it is not necessary, that the compensation should be a fixed sum, or known as freight ; for it will be sufficient if a hire or recompense is to be paid for the service, in the nature of a quantum meruit, to or for the benefit of the company. And I farther agree, that it is by no means necessary, that if a hire or freight is to be paid, the goods or merchandise or mone\ r or other property should be entered upon any freight list, or the contract be verified by any writ- ten memorandum. But the existence or non-existence of such circum- stances may nevertheless be very important ingredients in ascertaining what the true understanding of the parties is, as to the character of the bailment. In the next place, if it should turn out, that the Steamboat Company are not to be deemed common carriers of money and bank bills ; still, if the master was authorized to receive money and bank bills as their agent, to be transported from one port of the route of the steamboat to another at their risk, as gratuitous bailees, or mandataries, and he has been guilty of gross negligence in the performance of his duty, whereby the money or bank bills have been lost, the company are un- doubtedly liable therefor, unless such transportation be beyond the scope of their charter; upon the plain ground, that they are responsible 180 BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. for the gross negligence of their agents within the scope of their em- ployment. [Having stated these preliminary doctrines, which seem necessary to a just understanding of the case, we may now proceed to a direct consideration of the merits of the present controversy. And in my judgment, although there are several principles of law involved in it, yet it mainly turns upon a matter of fact, namely, the Steamboat Company were not, nor held themselves out to the public to be, common carriers of money and bank bills, as well as of passengers and goods and merchandises, in the strict sense of the latter terms ; the em- ployment of the steamboat was, so far as the company are concerned, limited to the mere transportation of passengers and goods and mer- chandises on freight or for hire ; and money and bank bills, although known to the company to be carried by the master, were treated by them, as a mere personal trust in the master by the owners of the money and bank bills, as their private agent, and for which the corn- pan}' never held themselves out to the public as responsible, or as being within the scope of their employment and business as carriers. . . . Judgment for defendant. 1 "] BUSSEY & CO. v. MISSISSIPPI VALLEY TRANSPORTATION CO. SUPREME COURT OF LOUISIANA, 1872. [24 La. Ann. 165.] APPEAL from the Fourth District Court, parish of Orleans. THEARD, J. HOWE, J. The plaintiffs, a commercial firm, sued the defendants, a corporation, whose business is to transport merchandise in their own model barges, and to tow the barges of other parties for hire between St Louis and New Orleans. The bill of lading, given by defendants to plaintiffs, recites the receipt from plaintiffs of one barge loaded with hay and corn, "in apparent good order in tow of the good steamboat ' Bee' and barges," "to be de- livered without delay in like good order (the dangers of navigation, fire, explosion, and collision excepted) to Bussey & Co., at New Orleans, Louisiana, on levee or wharf boat, he or they paying freight at the rate annexed, or $700 for barge, and charges $267.50." ... "It is agreed with shippers," the bill continues, "that the 'Bee' and barges are not accountable for sinking or damage to barge, except from gross carelessness." It was alleged by plaintiffs that defendants had neglected to deliver the barge and her valuable cargo according to their contract. The de- fendants answered by a general denial, and by a recital of what they claimed to be the circumstances of the loss of the barge and cargo, in BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. 181 which they contended the}* were without blame ; and that loss did not result from gross carelessness on their part, and they were not liable under the bill of lading. Other defences were raised by the answer which have been abandoned. The court a qua gave judgment for plaintiffs for the amount claimed as the value of the barge and cargo, $15,272.60, with interest from judicial demand, and defendants appealed. The appellants contend, as stated in their printed argument, " First That they are not common carriers, or rather that their undertaking in this, or like cases, is not that of a common carrier. " Second That they are liable, if liable at all, only in case of gross carelessness. " Third That the restriction of liability contained in the agree- ment to tow the barge in question exonerates them, except in case of gross carelessness as the appellants were bound to use but ordinary prudence, even if they were common carriers. " Fourth That the judgment rendered is for a larger amount than the testimony will authorize." The question whether a towboat under the circumstances of this par- ticular case is a common carrier has been long settled in the affirmative in Louisiana ; and the reasoning by which Judge Matthews supported this conclusion in the leading case of Smith v. Pierce, 1 La. 354, is worth}' of the sagacity for which that jurist was pre-eminent. The same opinion was clearly intimated by the Supreme Court of Massachusetts in the case of Sproul v. Hemmingway, 14 Pick. 1, in which Chief Justice Shaw was the organ of the court. In the case also of Alexander v. Greene, 7 Hill, 533, the Court of Errors of New York seem to have been of the same opinion. Four of the senators in giving their reasons distinctly state their belief that the towboat in that case was a common carrier, and Judge Matthews' decision is referred to in terms of commendation as a precedent. It is true that Mr. Justice Bronson, whose opinion was thus reversed, in a subsequent case declares (2 Corns. 208) that nobody could tell what the Court of Errors did decide in Alexander v. Greene, but the facts remain as above stated, and the effect of the case cannot but be to fortify the authority of the decision in 1 La. In addition to these authorities we have the weighty opinion of Mr. Kent who includes " steam towboats " in his list of common carriers, 2 Kent, 599, and of Judge Kane in 13 L. R. 399. On the other hand, Judge Story seems to be of a different opinion (Bailments, 496), and Mr. Justice Grier differed from Judge Kane. So, too, the Supreme Court of New York, in Caton v. Rumney, 13 Wend. 387, and Alexander v. Greene, 3 Hill, 9 ; the Court of Appeals of the same State in Well v. Steam Nav. Co., 2 Corns. 207 ; the Supreme Court of Pennsylvania in Leonard v. Hendrickson, 18 State, 40, and Brown 17. Clegg, 63 State, 51 ; and the Supreme Court of Maryland in Penn. Co. v. Sandridge, 8 Gill & J. 248, decided that tugboats in these 182 BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. particular cases were not common carriers. We are informed that the same decision was made in the case of the " Neaffie," lately decided in the United States Circuit Court in New Orleans. Such conflict of authority might be very distressing to the student, but for the fact that when these writers and cases cited by them are examined the discrepancy, except in the decision in 63 Penn., 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 ma}' be employed as a mere means of locomotion under the entire control of the towed vessel ; or the owner of the towed vessel and goods therein ma} 7 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. Such were the facts in some form as stated or assumed in Caton v. Ruraney, 13 Wend., and Alexander v. Greene, 3 Hill, cited by Judge Story in the case of the " Neaffie," and in the cases above quoted from 2 Corns., 18 Penn. St., and 8 Gill & J.; and 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 regularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, aud out of the control of the bailor the property thus trans- ported. Such is the case at bar. It seems to satisfy every requirement in the definition of a common carrier. Story on Bail. 495. And it was probably to a towboat employed in this way that Mr. Kent referred in the passage quoted above ; and that the Supreme Court of Massa- chusetts had in mind in the 14 Pick. ; and see also Davis v. Housen, 6 Rob. 259, and Clapp v. Stanton, 20 An. 495. We must think that in all reason the liability of the defendants under such circumstances should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug. But conceding that this case as a contract of affreightment must be determined by the law of Missouri (4 Martin, 584), and that by that law the defendants are not common carriers as to the plaintiffs, we think it clear from the evidence of the defendants' own witnesses that they were guilty of "gross carelessness" in their attempt to deliver the plaintiffs' barge with its cargo at the port of New Orleans, and that by this gross carelessness she was sunk, and, with her cargo, destroyed. What is "gross carelessness"? In an employment requiring skill, it is the failure to exercise skill. New World v. King, 16 How. 475. The employment of the defendants certainly required skill. A lack of that dexterity which comes from long experience only, might be swiftly fatal, for but a single plank intervenes between the costly cargo and instant destruction. We have but to read the testimony of defendants' own witnesses, and especially Couley, Turner, Burdeau, and Sylvester, BUCKLAND V. ADAMS EXPRESS CO. 183 to see that the attempt to land the barge was made without skill, and that it might easily have been effected with entire safety. We are of opinion that the judgment was correctly rendered in favor of plaintiffs, but that the amount is somewhat excessive. We find the value of the property lost at this port, less the freight and charges, and a small amount realized from the wreck, to be $13,268.50. It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof to the sum of thirteen thousand two hundred and sixty-eight dollars and fifty cents, with legal interest from judicial demand and costs of the lower court, and that as thus amended it be affirmed, appellees to pay costs of appeal. 1 BUCKLAND v. ADAMS EXPRESS CO. SUPREME COURT OF MASSACHUSETTS, 1867. [97 Mass. 124 2 .] CONTRACT to recover the value of a case of pistols. BIGELOW, C. J. We are unable to see any valid reason for the sug- gestion that the defendants are not to be regarded as common carriers. The name or style under which they assume to carry on their business is wholly immaterial. The real nature of their occupation and of the legal duties and obligations which it imposes on them is to be ascer- tained from a consideration of the kind of service which they hold themselves out to the public as read}' to render to those who may have occasion to employ them. Upon this point there is uo room for doubt. They exercise the 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. In this capacity they take prop- erty from the custody of the owner, assume entire possession and con- trol of it, transport it from place to place, and deliver it at a point of destination to some consignee or agent there authorized to receive it. This statement embraces all the elements essential to constitute the relation of common carriers on the part of the defendants towards the persons who employ them. Dwight v. Brewster, 1 Pick. 50, 53 ; Lowell Wire Fence Co. v. Sargent, 8 Allen, 189 ; 2 Redfield on Railways, 1-1 G. But it is urged in behalf of the defendants that they ought not to be held to the strict liability of common carriers, for the reason that the contract of carriage is essentially modified by the peculiar mode in which the defendants undertake the performance of the service. The main ground on which this argument rests is, that persons exercising the employment of express carriers or messengers over railroads and by steamboats cannot, from the very nature of the case, exercise any 1 Compare: The Neaffie, 1 Abb. C. C. 465 ; White . Winnisimmet Co., 7 Cash, 155 ; White v. Mary Ann, 6 Cal. 462. ED. 184 BUCKLAXD V. ADAMS EXPRESS CO. care or control over the means of transportation which they are obliged to adopt ; that the carriages and boats in which the merchandise in- trusted to them is placed, and the agents or servants by whom they are managed, are not selected b}* them nor subject to their direction or supervision; and that the rules of the common law, regulating the duties and liabilities of carriers, having been adapted to a different mode of conducting business by which the carrier was enabled to select his own servants and vehicles and to exercise a personal care and over- sight of them, are wholly inapplicable to a contract of carriage by which it is understood between the parties that the service is to be performed, in part at least, by means of agencies over which the car- rier can exercise no management or control whatever. But this argu- ment, though specious, is unsound. Its fallacy consists in the assumption that at common law, in the absence of any express stipulation, the contract with an owner or consignor of goods delivered to a carrier for transportation necessarily implies that they are to be carried by the party with whom the contract is made, or by servants or agents under his immediate direction and control. But such is not the undertaking of the carrier. The essence of the contract is that the goods are to be carried to their destination, unless the fulfilment of this undertaking is prevented b}* the act of God or the public enemy. This, indeed, is the whole contract, whether the goods are carried by land or water, by the carrier himself or by agents employed b}- him. The contract does not imply a personal trust, which can be executed only by the contracting party himself or under his supervision by agents and means of trans- portation directly and absolutely within his control. Long before the discovery of steam power, a carrier who undertook to convey merchan- dise from one point to another was authorized to perform the service through agents exercising an independent employment, which they car- ried on by the use of their own vehicles and under the exclusive care of their own servants. It certainly never was supposed that a person who agreed to carry goods from one place to another by means of wagons or stages could escape liability for the safe carriage of the prop- erty over any part of the designated route by showing that a loss hap- pened at a time when the goods were placed by him in vehicles which he did not own, or which were under the charge of agents whom he did not select or control. The truth is that the particular mode or agency by which the service is to be performed does not enter into the contract of carriage with the owner or consignor. The liability of the carrier at common law continues during the transportation over the entire route or distance over which he has agreed to carry the property in- trusted to him. And there is no good reason for making any distinc- tion in the nature and extent of this liability attaching to carriers, as between those who undertake to transport property by the use of the modern methods of conveyance, and those who performed a like ser- vice in the modes formerly in use. If a person assumes to do the busi- ness of a common carrier, he can, if he sees fit, confine it within such PINKERTON V. WOODWARD. 15 limits that it may be done under his personal care and supervision or by agents whom he can select and control. But if he nndertakes to extend it further, he must either restrict his liability by a special con- tract or bear the responsibility which the law affixes to the species of contract into which he voluntarily enters. There is certainly no hardship in this, because he is bound to take no greater risk than that which is imposed by law on those whom he employs as his agents to fulfil the contracts into which he has entered. Exceptions overruled. CLARK v. BURNS. SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1875. [118 Mass. 275.] CONTRACT, for the value of a watch, against the owners of a steam- ship as common carriers, with counts in tort for negligence, and also counts charging them as innkeepers. 1 GRAY, C. J. The liabilities of common carriers and innkeepers, though similar, are distinct. No one is subject to both liabilities at the same time, and with regard to the same property. The liability of an innkeeper extends only to goods put in his charge as keeper of a public house, and does not attach to a carrier who has no house and is engaged only in the business of transportation. The defendants, as owners of steamboats carrying passengers and goods for hire, were not innkeepers. They would be subject to the liability of common carriers for the baggage of passengers in their custody, and might perhaps be so liable for a watch of the passenger locked up in his trunk with other baggage. But a watch, worn by a passenger on his person by day, and kept by him within reach for use at night, whether retained upon his person, or placed under his pillow, or in a pocket of his clothing, hanging near him, is not so intrusted to their custody and control as to make them liable for it as common carriers. Steam- boat Crystal Palace v. Vanderpool, 16 B. Mon. 302; Tower v. Utica Railroad, 7 Hill, 47 ; Abbott v. Bradstreet, 55 Maine, 530 ; Pullman Palace Car Co. v. Smith, 7 Chicago Legal News, 237. PINKERTON v. WOODWARD. SUPREME COURT, CALIFORNIA, 1867. [33 Cal 557.] RHODES, J. a The definition of an inn, given by Mr. Justice Bayley, in Thompson v. Lacy, 3 B. & Aid. 286, as " a house where a travel- 1 The evidence is omitted. Only so much of the opinion as discussed the liability of the defendants on the counts as innkeepers is given. ED. 3 Only so much of the opinion as describes the nature of an inn is given. ED. 186 PINKERTON V. WOODWARD. ler is furnished with everything which he has occasion for while on his way," is comprehensive enough to include every description of an inn ; but a house that does not fill the full measure of this definition may be an inn. It probably would not now be regarded as essential to an inn that wine or spirituous or malt liquors should be provided for the guests. At an inn of the greatest completeness entertainment is furnished for the traveller's horse as woll as for the traveller, but it has long since been held that this was not essential to give charac- ter to the house as an inn. (See Thompson v. Lacy, supra ; 2 Kent, 595 ; 1 Smith Lead. Cases, notes to Coggs v. Bernard ; Sto. on Bail. Sec. 475 ; Kisten v. Hildebrand, 9 B. Mon. 74.) In Wintermute v. Clarke, 5 Sandf. 247, an inn is defined as a public house of entertain- ment for all who choose to visit it. The defendant insists that the " What Cheer House " was a lodging house and not an inn ; because, as he says, the eating department was distinct from the lodging depart- ment. It appears that in the basement of the "What Cheer House," and connected with it by a stairwa\", there was a restaurant, which was conducted by the defendant and two other persons jointly, and that the three shared the profits. Where a person, by the means usually employed in that business, holds himself out to the world as an innkeeper, and in that capacity, is accustomed to receive travellers as his guests, and solicits a continuance of their patronage, and a trav- eller relying on such representations goes to the house to receive such entertainment as he has occasion for, the relation of innkeeper and guest is created, and the innkeeper cannot be heard to say that his professions were false, and that he was not in fact an innkeeper. The rules regulating the respective rights, duties and responsibilities of innkeeper and guest have their origin in considerations of public pol- icy, and were designed mainly for the protection and security of trav- ellers and their property. They would afford the traveller but poor security if, before venturing to intrust his property to one who by his agents, cards, bills, advertisements, sign, and all the means by which publicity and notoriety can be given to his business, represents himself as an innkeeper, he is required to inquire of the employees as to their interest in the establishment, or take notice of the agencies or means by which the several departments are conducted. The same consid- erations of public policy that dictated those rules demand that the innkeeper should be held to the responsibilities which, by his repre- sentations, he induced his guest to believe he would assume. We think the jury were fully warranted by the evidence in finding that the " What Cheer House " was an inn, and that the defendant was an inn- keeper ; and the Court correctly instructed the jury in respect to those facts. LEWIS V. SEW YORK SLEEPING GAR CO. 187 LEWIS v. NEW YORK SLEEPING CAR CO. SUPREME JUDICIAL COUKT OF MASSACHUSETTS, 1887. [143 Mass. 267.] MORTON, C. J. The use of sleeping cars upon railroads is modern, and there are few adjudicated cases as to the extent of the duties and liabilities of the owners of such cars. They must be ascertained by applying to the new condition of things the comprehensive and elastic principles of the common law. When a person buys the right to the use of a berth in a sleeping car, it is entirely clear that the ticket which he receives is not intended to, and does not, express all the terms of the contract into which he enters. Such ticket, like the ordinary rail- road ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning the car, by which he is entitled to passage in the car named on the ticket. Ordinarily, the only communication between the parties is, that the passenger buys, and the agent of the car company sells, a ticket between two points ; but the contract thereby entered into is implied from the nature and usages of the emplo3'ment of the company. A sleeping car company holds itself out to the world as furnishing safe and comfortable cars, and, when it sells a ticket, it impliedly stipu- lates to do so. It invites passengers to pay for, and make use of, its cars for sleeping, all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has with him from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, yet it is its duty to use reasonable care to guard the passen- gers from theft, and if, through want of such care, the personal effects of a passenger such as he might reasonably carry with him are stolen, the company is liable for it. Such a rule is required by public policy, and by the true interests of both the passenger and the compan}- ; and the decided weight of authority supports it. Woodruff Sleeping Parlor Coach Co. v. Diehl, 84 Ind. 474 ; Pullman Car Co. v. Gardner, 3 Penny. 78 ; Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg. (N. S.) 788. The notice by which the defendant company sought to avoid its lia- bility was not known to the plaintiff, and cannot avail the defendant. The defendant contends that there was no evidence of negligence on 188 CUMBERLAND TELEPHONE CO. V. BROWN. its part. The fact that two larcenies were committed in the manner described in the testimony is itself some evidence of the want of proper watchfulness by the porter of the car ; add to this the testimony that the porter was found asleep in the earl}' morning, that he was required to be on duty for thirty-six hours continuous!}', which included two nights, and a case is presented which must be submitted to the jury. We have considered all the questions which have been argued in the two cases before us, and are of opinion that the rulings at the trial were correct. Exceptions overruled. 1 GRAT, C. J., in Grinnell v. Western Union Telegraph Co., 113 Mass. 299 (1873). The liabilitj* of a telegraph company is quite unlike that of a common carrier. A common carrier has the exclusive possession and control of the goods to be carried, with peculiar opportunities for embezzlement or collusion with thieves ; the identity of the goods re- ceived with those delivered cannot be mistaken ; their value is capable of easy estimate, and may be ascertained by inquiry of the consignor, and the carrier's compensation fixed accordingly ; and his liability in damages is measured by the value of the goods. A telegraph company is intrusted with nothing but an order or message, which is not to be carried-in the form in which it is received, but is to be transmitted or repeated by electricit}', and is peculiarly liable to mistake ; which cannot be the subject of embezzlement ; which is of no intrinsic value ; the importance of which cannot be estimated except by the sender, nor ordinarily dis- closed by him without danger of defeating his own purposes ; which may be wholly valueless, if not forwarded immediate!}' ; for the trans- mission of which there must be a simple rate of compensation ; and the measure of damages for a failure to transmit or deliver which, has no relation to any value which can be put on the message itself. CUMBERLAND TELEPHONE CO. v. BROWN. SUPREME COURT OP TENNESSEE, 1900. [104 Tenn. 56.] CALDWELL, J. 2 Brown was a resident of the city of Nashville, but was temporarily at Hickman, a small village about fifty -eight miles from Nashville, and two miles beyond Gordonsville. The telephone com- pany had an office at Nashville and one at Gordonsville, but none at Hickman. In tlie afternoon of September 16, 1897, Brown's son went into the office at Nashville and stated to the operator there that he had an im- 1 Arc. Blum r. So. P. P. C. Co., 1 Flip. 500 ; Pnllman P. C. Co. v. Adams, 120 Ala. 581 ; Pullman P. C. Co. v. Smith, 73 111. 360 ; Woodruff S. & P. C. Co. v. Dieul, 84 Ind. 474. ''ontra, Pnllman P. C. Co. v. Lowe, 28 Neb. 239. ED. * Part of the opinion ouly is giveu. ED. CUMBERLAND TELEPHONE CO. V. BROWN. 189 portant message for his father at Hickman. The operator called the company's agent at Gordonsville, and put the son in communication with him. The son, availing himself of the instrument and connection thus afforded, communicated his message to the Gordonsville agent, who agreed to deliver it at Hickman ; and thereupon, according to the usual custom, the Nashville agent demanded and received sixty-five cents in payment of total charges, being twenty-five cents for the trans- mission of the message to Gordonsville and forty cents for its delivery at Hickman. The message, as written by the agent at Gordonsville, was as follows : " NASHVILLE, TENNESSEE, 9-16-97. " Mr. J. Thomas Brown, Hickman, Tennessee. " Come home immediately. Your daughter is dangerously ill. " (Signed) TOM BROWN." Though received at Gordonsville at 5.15 p. M. of that da}-, and so marked on its face, the message was not delivered until about 8 or 8.30 A. M. the next day, which was near fifteen hours after the agent got it, and some five hours after the sendee's daughter's death, of which he learned thirty minutes later through another message transmitted over the same line, and likewise delivered at Hickman. The compan} 7 virtually concedes the foregoing facts ; but, neverthe- less, denies its liability in this case upon the ground that it had in- structed its operators not to receive messages from any one to be by any agent of the company delivered to the sendee, and that the under- taking of the Gordonsville operator to deliver this message at Hickman was, therefore, without authority, and not binding on his principal. It was in relation to this phase of the case that the trial judge gave the charge against which the first assignment of error in this court is directed. That charge is in this language, namely : " In the opinion of the court this instruction to employees is of little consequence, under the conceded facts of this case. If the company knowingly permitted its employees, over its own wires, to make such arrangements with cus- tomers, ascertained from such employees the cost of deliver}' beyond the terminus of the line, and there collected from the customer com- pensation for the entire work, then the fact that under its arrangement with its distant operators they were to receive the pay for the delivery beyond the terminus, could make no difference so far as the customer was concerned ; and the negligence of such operator, if proven, would be the negligence of the company itself." We are not able to perceive any error in this charge, but on the con- trary we regard it as entirely sound. No instruction of the company to its operators, however formal and peremptory, could prejudice the rights of a customer if it knowingly permitted those agents to conduct its affairs upon a plan in direct con- flict with that instruction. The course of business actually pursued by 190 SEAVER V. BRADLEY. the company's agents with its knowledge is the proper and legal cri- terion of its responsibility to its customers. As to the public its legal relation is that indicated by its recognized course of business, so long as the latter does not contravene some rule of positive law or some public policy. The habitual breach and disregard of the instruction by the operators of the company, with its knowledge, amounts to a practical abrogation of the instruction (Railroad v. Reagan, 96 Tenn. 129, 140), and makes the status of the company that which its real course of business imports. This is equally true, though the company was not bound in the first instance to receive and deliver messages at all, but only to furnish suitnble instrumentalities for verbal communication between separated members of the public ; for, it had the legal power to assume the addi- tional duty, and could do so as well in the manner indicated as by the promulgation of formal notice of such purpose. Nor is it of any legal consequence in the present case that the Nash- ville operator ma}- have testified that he told the sender of this message that the company would not undertake to deliver it, since he concedes that he furnished the connection with the express understanding that the Gordonsville operator was to be requested to deliver it, and with the assurance that he would do whatever he agreed to do about it, and after the arrangement was consummated, collected the charges for de- liver}' as well as for tolls, and turned the same into the treasury of the company. The formal statement that the company would not undertake to deliver the message, if made, must go for nothing in the face of the undisputed facts which show that it did in reality, and according to its custom, undertake and agree by its Gordonsville agent to do it. SEAVER v. BRADLEY. SUPREME COURT OF MASSACHUSETTS, 1901. [179 Mass. 329.] TORT under Pub. Sts. c. 73, 6, to recover for the loss of life of the plaintiff's intestate by reason of the negligence of the defendant, alleged to be a common carrier of passengers, operating a passenger elevator in the building owned and managed by him as trustee numbered 171 A on Tremont Street in Boston. Writ dated December 7, 1898. HOLMES, C. J. Those who maintain a passenger elevator in an office building are not " common carriers of passengers" within the meaning of Pub. Sts. c. 73, 6. We assume that that section is not prevented from applying because it represents a statute passed before such eleva- tors were iu familiar use. But the words do not describe the owners of NOLTON V. WESTERN RAILROAD CORPORATION. 191 an elevator. The modern liability of common carriers of goods is a resultant of the two long accepted doctrines that bailees were answer- nble for the loss of goods in their charge, although happening without their fault, unless it was due to the public enemy, and that those ex- ercising a common calling were bound to exercise it on demand and to show skill in their calling. Both doctrines have disappeared, although the}* have left this hybrid descendant. The law of common carriers of passengers, so far as peculiar to them, is a brother of the half blood. It also goes back to the old principles concerning common callings. Carriers not exercising a common calling as such are not common car- riers 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 plaintiffs face and arbitrarily have refused to carry him without incurring any liability to him. Apart from that consideration, manifestly it would be contrary to the ordinary usages of English speech to describe by such words the maintaining of an elevator as an inducement to tenants to occupy rooms which the defendant wished to let. The only question before us is the meaning of words. Therefore de- cisions that the liability of people in the defendant's position is not less than that of railroad companies do not go far enough to make out the plaintiff's case. Exceptions overruled. NOLTON v. WESTERN RAILROAD CORPORATION. COURT OF APPEALS, NEW YORK, 1857. [15 N. Y. 444.] DEMURRER TO COMPLAINT. The complaint stated that the plaintiff was a mail agent on the defendant's railroad, in the employment of the United States, and the defendant a carrier of passengers and freight, for fare and reward, by railroad and cars, between Greenbush and Bos- ton. That defendant was bound by contract between it and the United States, for a stipulated time and price, to carry the mails, and also the mail agent, without further charge ; that in pursuance and in consider- ation of such contract, the defendant received the plaintiff into a car fitted up for the accommodation of the mail and mail agent ; and the plaintiff, for the consideration aforesaid, became and was a passenger in the said cars, to be by the defendant, thereby, safely and with due care and skill, carried and convej-ed to Worcester, which the defend- ant then and there undertook and was bound to do. It then states a bodily injury received by the plaintiff, by the running of the car, con. taining the plaintiff, off the track, and breaking it, through defective- ness of machinery, want of care, skilJ, &c. The defendant demurred, and after final judgment for the plaintiff, by the Supreme Court at gen- 192 NOLTON V. WESTERN RAILROAD CORPORATION. eral term, appealed to this court. The case was submitted on printed briefs. SELDEN, J. As the onh' objection which can be taken to the com- plaint upon this demurrer is, that it does not contain facts sufficient to constitute a cause of action, it is entirely immaterial whether the action be considered as in form ex contractu or ex delicto. The only question is, whether upon the facts stated, the plaintiff can maintain an action in any form. The plaintiff cannot, I think, avail himself of the contract between the defendant and the government, so as to make that the gravamen of his complaint, and the foundation of a recovery. This is not like the cases in which a third person has been permitted to recover upon a con- tract made by another party for his own benefit. The distinction- be- tween them is plain. Those were cases where the defendant, for a consideration, received from the party to the contract, had undertaken to do something ostensibly and avowedly, for the direct benefit of the plaintiff, and when the advantage to the latter was one object of the agreement. Here the parties had no such intention. In contracting for the transportation of the mail agent, the parties had no more in view any benefit or advantage to him, than if the contract had been to transport a chattel. The government took care of the public interests, and left those of the mail agent to such protection as the law would afford. Another distinction is, that in the cases referred to, the party claim- ing the benefit of the contract, and seeking to enforce it, was one who was specifically mentioned and pointed out in the contract itself, while here no one is designated ; and to entitle the plaintiff to recover upon it, it must be regarded as a shifting contract, which can be made to enure to the benefit of anj* person who may temporarily assume the duties of mail agent. I think there is no precedent for such a con- struction of such a contract. If, then, the plaintiff can recover at all, it must be upon the ground of some implied contract, or of some legal obligation or duty resting upon the defendants, to exercise proper care and skill in the transpor- tation of passengers ; and the question is, whether, under the circum- stances of this case, such a contract is implied, or such a duty imposed for the benefit of the plaintiff. It would seem a startling proposition, that in all those cases where persons travel upon railroads engaged not in their own business, but that of others, and where their fare is paid by their employer, they are entirely at the mercy of the railroad agents, and without redress, if injured through their recklessness and want of care and skill. If, how- ever, railroad companies are liable, in cases like the present, it is im- portant to ascertain the precise nature and extent of that liability. In the first place, then, it is clear that they are not liable, by virtue of that custom or rule of the common law, which imposes special and peculiar obligations upon common carriers. Persons engaged in the NOLTON V. WESTERN RAILROAD CORPORATION. 193 conveyance of passengers, are not common carriers, within the mean- ing of that rule, which applies solely to those whose business it is to transport goods. (Bac. Abr., tit. Carriers ; 2 Kent's Com. , 40 ; Story on Bail., 498, and note.) If the complaint in this case, after stating that the defendant was a carrier of passengers and freight from Greenbush to Boston, for hire and reward, had simply averred that the plaintiff became a passenger in the cars of the defendant, and was so received by it ; an implied contract would have arisen on the part of the defendant, to transport the plaintiff with all due diligence and skill; because the law would have inferred from those facts, that the defendant was to receive a com- pensation from the plaintiff himself. But this inference is repelled by the contract set forth, and the statement that the plaintiff was received as a passenger under it. It was suggested by the plaintiffs counsel, upon the argument, that a contract might be implied, of which the agreement between the defend- ant and the government should form the consideration and basis. But although that agreement ma}' be resorted to, for the purpose of show- ing that the plaintiff became a passenger upon the cars by the consent of the defendant, and not as a mere intruder, it cannot, I think, be made available by the plaintiff, as the consideration of an implied assumpsit. As to him, that agreement is res inter alias acta. He is not a party to it, or mentioned in it. His employment by the govern, ment may have taken place long after the agreement was made, and have had no reference to it. If any contract can be implied from that agreement, in favor of the plaintiff, it must be a contract to transport him from place to place, according to the terms of the agreement. Suppose, then, the cause of action, instead of being for an injury re- ceived through the negligence of the defendant, had been for not fur- nishing the necessary cars, or not running any train, could the plaintiff recover in such an action ? Would the defendant be liable for its fail- ure to perform the contract, not only to the party with whom the con- tract was made, and from whom the consideration was received, but to a third party not named in it, and' from whom they had received noth' ing? No one would claim this. It may be said that the implied contract with the plaintiff, is limited to an undertaking to transport safely or with due care- It is difficult to see, however, how there can be a contract to transport safely where there is no contract to transport at all. My conclusion therefore is, that this action cannot be maintained upon the basis of a contract express or implied. It necessarily follows, that it must rest exclusivel}- upon that obliga- tion which the law always imposes upon every one who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken. The leading case on this subject, is that of Coggs u. Bernard (Ld. Ray. 909). There the defendant had undertaken to take severaJ 194 NOLTON V. WESTERN RAILROAD CORPORATION. hogsheads of brandy belonging to the plaintiff, from one cellar in London, and to deposit them in another ; and in the process of mov- ing, one of the hogsheads was staved and the brandy lost, through the carelessness of the defendant or his servants. Although it did not appear that the defendant was to receive anything for his services, he was, nevertheless, held liable by the whole court. The principle of this case has never since been doubted, but there has been some confusion in the subsequent cases as to the true nature of the obligation, and as to the form of the remedy for its violation. In man}- instances suits have been brought, upon the supposition that an implied contract arises, in all such cases, that the party will exercise due care and diligence ; and the language of Lord HOLT, in Coggs v. Bernard, undoubtedly gives countenance to this idea. He seems to treat the trust and confidence reposed, as a sufficient consideration to support a promise. This doctrine, however, can hardly be considered as in consonance with the general principles of the common law. In addition to the difficult}' of bringing mere trust and confidence within any legal definition of valuable consideration, there is a manifest incon- gruity in raising a contract, to do with care and skill, that which the party is under no legal obligation to do at all. The duty arises in such cases, I apprehend, entirely independent of any contract, either expressed or implied. The principle upon which a party is held responsible for its violation does not differ very essen tially, in its nature, from that which imposes a liability upon the owner of a dangerous animal, who carelessly suffers such animal to run at large, by means of which another sustains injury ; or upon one who digs a ditch for some lawful purpose in a highway, and carelessly leaves it uncovered at night, to the injury of some traveller upon the road. It is true, it may be said that, in these cases, the duty is to the public, while in the present case, if it exists at all, it is to the individ- ual ; but the basis of the liability is the same in both cases, viz., the culpable negligence of the party. All actions for negligence presup- pose some obligation or duty violated. Mere negligence, where there was no legal obligation to use care, as where a man digs a pit upon his own land, and carelessly leaves it open, affords no ground of action. But where there is anything in the circumstances to create a duty, either to an individual or the public, any neglect to perform that duty, from which injury arises, is actionable. The present case falls clearly within this principle of liability. There can be no material difference between a gratuitous undertaking to transport property, and a similar undertaking to transport a person. If either are injured through the culpable carelessness of the carrier v he is liable. If, according to the case of Coggs v. Bernard (supra), and the subsequent cases, an obligation to exercise care arises in one case, it must also in the other. It is true that, according to the authorities, the party in such cases is only liable for gross negligence. But what will amount to gross negli- MARSHALL V. THE YORK, NEWCASTLE, AND BERWICK RY. CO. 195 gence depends upon the special circumstances of each case. It has been held that, when the condition of the party charged is such as to imply peculiar knowledge and skill, the omission to exercise such skill is equivalent to gross negligence. Thus, it was said 03- Lord LOUGH- BOROUGH, in Shiells v. Blackburne (1 Hen. Bl., 158), that "if a man gratuitously undertakes to do a thing to the best of his skill, when his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence." The same doctrine is advanced by PARKE, B., in Wilson v. Brett (11 Mees. & Wels., 113). He says: "In the case of a gratuitous bailee, where his profession or situation is such as to imply the posses- sion of competent skill, he is equally liable for the neglect to use it." I regard this principle as peculiarly applicable to railroad companies, in view of the magnitude of the interests which depend upon the skill of their agents, and of the utter powerlessness of those who trust to that skill to provide for their own security. This case is not like that of "Winterbottom v. Wright (10 Mees. & Wels., 109). There the defendant had not undertaken to transport the plaintiff, either gratuitously or otherwise. He was simply bound by contract with the government to furnish and keep in repair the car- riages used by the latter in transporting the mails. The relations of the parties in that case and in this are very different, and the cases cannot be considered as governed by the same principles. I entertain no doubt that in all cases where a railroad company vol- untarily undertakes to convey a passenger upon their road, whether with or without compensation, in the absence, at least, of an express agreement exempting it from responsibility, if such passenger is in- jured by the culpable negligence or want of skill of the agents of the company, the latter is liable. The matter of compensation may have a bearing upon the degree of negligence for which the company is liable. That question, however, does not arise here. Degrees of negligence are matters of proof, and not of averment. The allegations of negli- gence in this complaint are sufficient, whether the defendant is liable for ordinary or only for gross negligence. The judgment should be affirmed. BROWN, J., also delivered an opinion for affirmance. All the judges concurring. Judgment affirmed. 196 SEASONGOOD V. TENNESSEE 4 OHIO TRANSPORTATION CO. SEASONGOOD v. TENNESSEE & OHIO TRANSPORTATION COMPANY. COURT OF APPEALS OF KENTUCKY, 1899. [54 S. W. 1931.] GUFFT, J. The principal grounds relied on by appellants for a reversal are as to the instructions given and refused. It will be seen from the pleadings (and the testimony conduces to prove the same) that one McGrew was the owner of a warehouse at the mouth of Hurricane creek, which was the only point at which the goods were delivered to and from steamboats in that immediate vicing, and that it was the custom of appellee, as well as other boats, to receive freight from said warehouse, and that McGrew was furnished blank bills of lading, and collected freight bills. The collection, however, was done at the cost of the debtors. He was also employed by appellee to carry the United States mail from the steamboat landing to the post office at Tolou. It appears from the testimony that on a certain evening appellee's boat landed at the landing aforesaid, and that the clerk of the boat asked McGrew what he had, and McGrew replied that he had " some chickens and eggs for Evansville, and a box for Cincinnati, and do you want them?" The clerk replied, in substance, that he would take the chick- ens and eggs, but would not take the box; that appellee had an arrangement with another company that carried freight between New Orleans and Cincinnati not to take freight to any point beyond Evans- ville, and that the other company would not take freight within the boundary between Evansville and Cairo or Paducah ; and it further appears that the goods were stolen the same night that appellee refused to take them. It is the contention of appellee that it was not required by law to accept the box tendered, for the reason, as now relied on, that it could not be required to receive freight destined to a point beyond the end of its own line, which it appears in this case was Evansville, Ind. It is true that the appellee was not bound to undertake to deliver the box to the consignee at Cincinnati, but it was its duty to accept the box, if tendered to it as a common carrier ; for it was then its duty to carry the same to the end of its line, and there deliver, or offer to deliver, the box to some common carrier engaged in such business, to be by it forwarded or carried to Cincinnati. It is clear that the agree- ment between appellee fand the other company did not furnish any excuse for its failure to receive the goods. Such an agreement is ille- gal and not enforceable even between parties thereto. Much less can it excuse a party for refusing to discharge its duty as a common car- rier as to the third party. Anderson p. Jett, 89 Ky. 375, 12 S. W. 670, 6 L. R. A. 390. 2 1 The principal point is printed. ED. 2 See Western Union Telegraph Co. v. Simmons (Tex. Civ. App.), 93 S. W. 688. ED. BENNETT V. BUTTON. 197 BENNETT v. BUTTON. SUPREME COURT OF NEW HAMPSHIRE, 1839. [10 N. H. 481.] CASE. The declaration alleged that the defendant was part owner, and driver, of a public stage coach, from Nashua to Amherst and Francestown that on the 31st January, 1837, the plaintiff applied to him to be received into his coach, at Nashua, and conveyed from thence to Amherst, offering to pay the customary fare ; and that the defend- ant, although there was room in his coach, refused to receive the plaintiff. It appeared in evidence that at the time of the grievance alleged there were two rival lines of daily stages, running between Lowell, in Massachusetts, and Nashua that Jonathan B. French was the pro- prietor of one of these lines, and Nelson Tuttle of the other that Tuttle's line ran no farther than from Lowell to Nashua that French and the proprietors of the defendant's line were interested in a contract for carrying the United States mail from Lowell to Francestown, through Amherst (dividing the mail money in proportion to the length of their respective routes), so as to form one continuous mail route from Lowell to Francestown that French and the proprietors of the defendant's line had agreed to run their respective coaches so as to form a contin- uous line for passengers from Lowell, through Amherst, to Frances- town, and that their agents and drivers might engage seats for the whole distance, at such rates of fare as they thought expedient ; and the amount thus received, in instances where they thought proper to receive less than the regular fare, was to be divided between said pro- prietors, in proportion to the length of their respective routes that it was also agreed that if the defendant's line brought down to Nashua an extra number of passengers, French should see them through, and be at the expense of furnishing extra coaches and horses, if necessary, to convey them to Lowell ; and, on the other hand, if French's line brought up an extra number of passengers from Lowell to Nashua, the proprietors of the defendant's line were to do the same, for the conve3 - ance of sucli passengers above Nashua and that it was further agreed (as Tuttle's line ran no farther than from Lowell to Nashua) by the proprietors of the defendant's line, that they would not receive into their coaches, at Nashua, passengers for places above Nashua, who came up from Lowell to Nashua on the same da}', in Tuttle's line ; the time of start- ing from Lowell and arriving at Nashua being the same in both lines. One of the requisitions of mail contracts is, that each line of stage coaches running into another, so as to form a continuous mail line, shall give preference to passengers arriving in the line with which it connects, and shall forward them in preference to any others. There were several other lines which started from Lowell at the same time with the lines before mentioned, running to other places, through 198 BENNETT V. BUTTON. Nashua ; and it was generally the understanding between their respec- tive proprietors that one line should not take, for a part of the distance where the route was the same, passengers who were going on further in another line ; though this understanding had been occasionally interrupted. The plaintiff being at Lowell on the 31st of January, 1837, took pas- sage and was conveyed to Nashua in Turtle's line ; and immediately on his arrival at Nashua applied to be received into the defendant's coach, and tendered the amount of the regular fare. There was room for the plaintiff to be conveyed on to Amherst, but the defendant refused to receive him. The plaintiff was notified by the agent for the line of French and the defendant, at Lowell, previous to taking passage in Turtle's coach for Nashua, that if he wished to go from Nashua to Amherst on that day, in the regular mail line, he must take the mail line at Lowell ; and that if he took passage in Turtle's line from Lowell to Nashua he would not be received at Nashua into the defendant's coach. The parties agreed that judgment should be rendered for the plaintiff for nominal damages, or for the defendant, according to the opinion of this court upon these facts. Clark & G. Y. Sawyer, for the plaintiff, cited Storj' on Bailment, 380 ; 2 Ld. Kaym. 909, Coggs v. Bernard ; Jones on Bailment, 109 ; 2 Barn. & Adolph. 803, Kent v. Shuckard. Baker (with whom was C. G. Athertori), for the defendant. It is not denied that anciently a common carrier was liable for refusing to carry goods ; a common innkeeper for refusing to receive a guest ; a common ferryman for refusing to carry a passenger ; and generally, perhaps, that there was an implied obligation upon every one standing before the public in a particular profession or employment to undertake the duties incumbent upon it ; though no case is recollected in which it has been determined that the proprietor of a stage coach is liable for refusing to receive a passenger. 2 Black. 451 ; 3 Black. 165 ; 1 Bac. Ab. 554 : 1 Vent. 333 ; 2 Show. 327 ; Hard. 163 ; Rob. Ent. 103. Formerly it was held that where a man was bound to any duty, and chargeable to a certain extent by operation of law, he could not, by any act of his own, discharge himself (1 Esp. R. 36; Noy's Maxims, 92; Doc. & Stud. 270), though it is now well settled that this obligation may be limited. A liability for refusing to receive a passenger may be qualified by notice. Without notice a common carrier stands in the situation of an insurer. This obligation the law imposes upon him the moment he takes upon himself the duties of carrier. His contract with the public is as an insurer; and if goods are committed to his care while stand- ing in this relation, he is liable as such. 6 Johns. 160; 3 Esp. 127; Selw. N. P. 395; 1 Wife. 181; 1 Inst 89; IT. R. 33, 57; 5 T. R. 389 ; Story on Bailment, 328 ; 11 Pick. 42 ; 4 N. H. Rep. 306. But this contract, which is general with the public, may be made BENNETT V. BUTTON. 199 special. One who proposes to carry goods may undertake the business, not of a common, but of a special, carrier. He may give notice, when he commences business, that he does not assume all the responsibilities of a common carrier, technically so called ; that he will be liable to a certain extent, and upon certain conditions, and no farther. He may thus discharge himself from all responsibility, except perhaps in cases of gross negligence. 3 Stark. 337 ; 3 Camp. 27; Story on Bail. 338, 357; 3 Taunt. 271 ; 4 Camp. 41 ; Jones on Bail. 104 ; 6 East, 564 ; 4 Esp. 178 ; 1 H. Black. 298. But the carrier is not liable for refusing to receive what he is under no obligation to cany (16 East, 244), so that the carrier of goods may not only qualify his responsibility for the safe transportation of goods, but his liability for refusing to receive them. The principle to be derived from these cases, and upon which they ell rest, is, that although the law imposes certain obligations upon one who undertakes the duties of a particular profession or employment, he is at liberty to assume those duties but in part, and thus limit his re- sponsibility, provided he gives notice of his intention, generally, and that notice is brought home to the knowledge of the party interested. The principle is confined to no one branch or department of business ; to no one case or class of cases. Nothing more is required than that public notice should be given how far the carrier intends to limit his responsibility, and that it should be known to the person to be affected by it in season to save his interest. The main point is to show the in- tention of the carrier, and to communicate knowledge of his terms, seasonably, to the individual interested. 5 East, 510; 2 Camp. 108; 1 Stark. Cas. 418 ; 2 Ditto, 461 ; 4 Burr. 2298 ; 1 Str. 145 ; 1 Bac. Abr. 556 ; 2 Stark. Ev. 338 ; 1 Pick. 50. And, provided the intention be manifest, it is not material whether any other person may have known the conditions, except the party whose interest they may affect. 1 Str. 145 : 4 Burr. 2298 ; 2 Stark. Cas. 461. But, yielding these points, it is contended that the defendant is not liable. It was competent for him to make all such rules and regula- tions as might be necessary for the convenient and successful prosecu- tion of the employment in which he was engaged. To prosecute this employment, to discharge his duties to the public, and particularly to the post-office department, it became necessary that some such arrange- ment as this should be made. It was as proper that he should prescribe the place where a passenger should be received as the time when he should be received. It was not a refusal to receive all passengers, or this one in particular, but merely the regulation of the mode in which they would be received. Persons going from Nashua to Francestown were received at Nashua. Persons going from Lowell to Francestown were received at Lowell. This was all that the defendant did. It was a mere regulation ; not a refusal to discharge a duty imposed by law. PARKER, C. J. It is well settled that so long as a common carrier has convenient room he is bound to receive and carry all goods which 200 BENNETT V. DUTTON. are offered for transportation, of the sort he is accustomed to carry, if they are brought at a reasonable time, and in a suitable condition. Story on Bailment, 328 ; 5 Bing. R. 217, Riley v. Home. And stage coaches, which transport goods as well as passengers, are, in respect of such goods, to be deemed common carriers, and respon- sible accordingly. Story, 325. Carriers of passengers, for hire, are not responsible, in all particulars, like common carriers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. For an injury happening to the person of a passenger by mere accident, without fault on their part, they are not responsible ; but are liable only for want of due care, diligence, or skill. This results from the different nature of the case. But in relation to the baggage of their passengers, the better opinion seems to be that they are responsible like other common carriers of goods. And we are of opinion that the proprietors of a stage coach, for the regular transportation of passengers, for hire, from place to place, are, as in the case of common carriers of goods, bound to take all passengers who come, so long as they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for a refusal. 2 Sumner, 221 ; Jencks v. Coleman ; 19 Wend. R. 239. The principle which requires common carriers of goods to take all that are offered, under the limitations before suggested, seems well to apply. Like innkeepers, carriers of passengers are not bound to receive all comers. 8 N. H. Rep. 523, Markham v. Brown. The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion. And his object at the time ma}' furnish a sufficient excuse for a refusal ; as, if it be to commit an assault upon another passenger, or to injure the business of the proprietors. The case shows the defendant to have been a general carrier of pas- sengers, for hire, in his stage coach, from Nashua to Amherst, at the time of the plaintiff's application. It is admitted there was room in the coach, and there is no evidence that he was an improper person to be admitted, or that he came within any of the reasons of exclusion before suggested. It has been contended that the defendant was only a special carrier of passengers, and did not hold himself out as a carrier of persons gen- erally ; but the facts do not seem to show a holding out for special em- ployment. He was one of the proprietors, and the driver, of a line of stages, from Nashua to Amherst and Francestown. The}' held them- selves out as general passenger carriers between those places. But by reason of their connection with French's line of stages from Lowell to Nashua, they attempted to make an exception of persons who came from Lowell to Nashua in Tuttle's stage, on the same day in which they applied for a passage for the north. It is an attempt to limit their re- sponsibility in a particular case or class of cases, on account of their agreement with French. ATCH., TOP. 4 S. F. R. V. DENVER & NEW ORLEANS R. 201 It is further contended, that the defendant and other proprietors had a right to make rules for the regulation of their business, and among them a rule that passengers from Lowell to Amherst and onward should take French's stage at Lowell, and that by a notice brought home to the individual the general responsibility of the defendant, if it existed, is limited. But we are of opinion that the proprietors had no right to limit their general responsibility in this manner. It has been decided in New York that stage coach proprietors are answerable, as common carriers, for the baggage of passengers, that they cannot restrict their common law liability by a general notice that the baggage of passengers is at the risk of the owners, and that if a carrier can restrict his common law liability, it can only be by an ex- press contract. 19 Wend. 234, Hollister v. Nowlen. And this prin- ciple was applied, and the proprietors held liable for the loss of a trunk, in a case where the passenger stopped at a place where the stages were not changed, and he permitted the stage to proceed, without any in- quiry for his baggage. 19 Wend. 251, Cole v. Goodwin. However this may be, as there was room in the defendant's coach, he could not have objected to take a passenger from Nashua, who applied there, merely because he belonged to some other town. That would furnish no sufficient reason, and no rule or notice to that effect could limit his duty. And there is as little legal reason to justify a refusal to take a passenger from Nashua, merely because he came to that place in a par- ticular conveyance. The defendant might well have desired that pas- sengers at Lowell should take French's line, because it connected with his. But if he had himself been the proprietor of the stages from Lowell to Nashua he could have had no right to refuse to take a pas- senger from Nashua, merely because he did not see fit to come to that place in his stage. It was not for him to inquire whether the plaintiff came to Nashua from one town or another, or by one conveyance or another. That the plaintiff proposed to travel onward from that place could not injuriously affect the defendant's business ; nor was the plaintiff to be punished because he had come to Nashua in a particular manner. The defendant had good right, by an agreement with French, to give a preference to the passengers who came in French's stage ; and as the}- were carriers of the mail on the same route, it seems he was bound so to do, without an agreement. If, after they were accommodated, there was still room, he was bound to carry the plaintiff, without in- quiring in what line he came to Nashua. ATCHISON, TOPEKA AND SANTA FE RAILROAD v. DEN VER AND NEW ORLEANS RAILROAD. SUPREME COURT OF THE UNITED STATES. 1884. [no U. S. 667.] 202 ATCH., TOP. & S. F. R. V. DENVER &\ NEW ORLEANS R. BILL in equity by the Denver & New Orleans Railroad Company, owning and operating a railroad between Denver and Pueblo, about one hundred and twenty-five miles, against the Atehison, Topeka & Santa Fe Railroad Company, a Kansas corporation, owning and operating a railroad in that State from the Missouri River, at Kan- sas City, westerty to the Colorado State line, and also operating from there, under a lease, a road in Colorado from the State line to Pueblo, built by the Pueblo & Arkansas Valley Railroad Company, a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe Company formed a continuous line of communication from Kansas Cit}' to Pueblo, about six hundred and thirty-four miles. The general purpose of the suit was to compel the Atchison, Topeka & Santa Fe Company to unite with the Denver & New Orleans Company in forming a through line of railroad transportation to and from Den- ver over the Denver & New Orleans road, with all the privileges as to exchange of business, division of rates, sale of tickets, issue of bills of lading, checking of baggage and interchange of cars, that were or might be customary with connecting roads, or that were or might be granted to the Denver & Rio Grande Railroad Company, another Col- orado corporation, also owning and operating a road parallel to that of the Denver & New Orleans Company between Denver and Pueblo, or to any other railroad company competing with the Denver & New Orleans It appeared that when the Atchison, Topeka & Santa Fe Company reached Pueblo with its line it had no connection of its own with Den- ver. The Denver & Rio Grande road was built and running between Denver and Pueblo, but the gauge of its track was different from that of the Atchison, Topeka & Santa Fe. Other companies occupying different routes had at the time substantially the control of the trans- portation of passengers and freight between the Missouri River and Denver. The Atchison, Topeka & Santa Fe Company, being desirous of competing for this business, entered into an arrangement, as early as 1879, with the Denver & Rio Grande Company for the formation of a through line of transportation for that, purpose. By this arrange- ment a third rail was to be put down on the track of the Denver & Rio Grande road, so as to admit of the passage of cars continuously over both roads, and terms were agreed on for doing the business and for the division of rates. The object of the parties was to establish a new line, which could be worked with rapidity and economy, in compe- tition with the old ones. In 1882 the Denver & New Orleans Company completed its road between Denver and Pueblo, and connected its track with that of the Atchison, Topeka & Santa Fe\ in Pueblo, twelve or fifteen hundred feet easterly from the junction of the Denver & Rio Grande, and about three-quarters of a mile from the union depot at which the Atchison, Topeka & Santa Fe and the Denver & Rio Grande interchanged their business, and where each stopped its trains regularly to take on and let off passengers and receive and deliver freight. The Denver & ATCH., TOP. & S. F. R. V. DENVER & NEW ORLEANS R. 203 New Orleans Company erected, at its junction with the Atchison, To- peka & Santa Fe, platforms and other accommodations for the inter- change of business, and before this suit was begun the general super- intendent of the Denver & New Orleans Company made a request in writing of the general manager of the Atchison, Topeka & Santa Fe, as follows : . , " That through bills of lading be given via your line and ours, and that you allow all freight consigned via D. & N. O. R. R. to be deliv- ered this company at point of junction, and on such terms as exist between your road and any other line or lines ; that you allow your cars, or cars of any foreign line, destined for points reached by the D. & N. O. R. R., to be delivered to this company and hauled to desti- nation in same manner as interchanged with any other line. That you allow tickets to be placed on sale between points on line of D. & N. O. R. R. and those on line of A. T. & S. F. R. R., or reached by either line ; that a system of through checking of baggage be adopted ; that a transfer of U. S. mail be made at point of junction. In matter of settlements between the two companies for earnings and charges due, we will settle daily on delivery of freight to this line ; for mileage due for car service, and for amounts clue for tickets interchanged, we agree to settle monthl}-, or in any other manner adopted by your line, or as is customary between railroads in such settlements." This request was refused, and the Atchison, Topeka & Santa Fe Company continued its through business with the Denver & Rio Grande as before, but declined to receive or deliver freight or pas- sengers at the junction of the Denver & New Orleans road, or to give or take through bills of lading, or to sell or receive through tickets, or to check baggage over that line. All passengers or freight coming from or destined for that line were taken or delivered at the regular depot of the Atchison, Topeka & Santa Fe Companj- in Pueblo, and the prices charged were according to the regular rates to and from that point, which were more than the Atchison, Topeka & Santa Fe received on a division of through rates to and from Denver under its arrange- ment with the Denver & Rio Grande Compan}-. . . . Upon this state of facts the Circuit Court entered a decree requiring the Atchison, Topeka & Santa Fe Company to stop all its passenger trains at the platform built by the Denver & New Orleans Company where the two roads joined, and to remain there long enough to take on and let off passengers with safety, and to receive and deliver express matter and the mails. It also required the Atchison, Topeka & Sante Fe Company to keep an agent there, to sell tickets, check baggage, and bill freight. All freight trains were to be stopped at the same place whenever there was freight to be taken on or delivered, if proper notice was given. While the Atchison, Topeka & Santa Fe Company was not required to issue or recognize through bills of lading embracing the Denver & New Orleans road in the route, or to sell or recognize through tickets of the same character, or to check baggage 204 ATCIL, TOP. & S. F. R. V. DENVER & NEW ORLEANS K. in connection with that road, it was required to carry freight and pas- sengers going to or coining from that road at the same price it would receive if the passenger or freight were carried to or from the same point upon a through ticket or through bill of lading issued under any arrangement with the Denver & Rio Grande Company or any other competitor of the Denver & New Orleans Company for business. In short, the decree, as entered, establishes in detail rules and regulations for the working of the Atchison, Topeka & Santa F6" and Denver & New Orleans roads, in connection with each other as a connecting through line, and, in effect, requires the Atchison, Topeka & Santa F6 Company to place the Denver & New Orleans Company on an equal footing as to the interchange of business with the most favored of the competitors of that company, both as to prices and facilities, except in respect to the issue of through bills of lading, through checks for bag- gage, through tickets, and perhaps the compulsory interchange of cars. From this decree both companies appealed ; the Atchison, Topeka & Santa Fe Company because the bill was not dismissed ; and the Denver & New Orleans Company because the decree did not fix the rates to be charged by the Atchison, Topeka & Santa Fe Corapan}* for freight and passengers transported by it in connection with the Denver & New Orleans, or make a specific division and apportionment of through rates between the two companies, and because it did not require the issue of through tickets and through bills of lading, and the through checking of baggage. Mr. H. C. Thatcher, Mr. Charles E. Gust, Mr. George R. Peck, and M>\ William M. Evarts for the Atchison, Topeka & Santa Fe Railroad Company. Mr. E. T. Wetts for the Denver & New Orleans Railroad Company. Mr. CHIEF JUSTICE WAITE delivered the opinion of the court. 1 After reciting the facts in the foregoing language he continued: The case has been presented by counsel in two aspects : 1. In view of the requirements of the Constitution of Colorado alone ; and 2. In view of the constitutional and common-law obligations of rail- road companies in Colorado as common carriers. We will first consider the requirements of the Constitution; and here it may be premised that sec. 6 of art. 15 imposes no greater obligations upon the company than the common law would have im- posed without it. Every common carrier must carry for all to the extent of his capacity, without undue or unreasonable discrimination either in charges or facilities. The Constitution has taken from the legislature the power of abolishing this rule as applied to railroad companies. So in sec. 4 there is nothing specially important to the present inquiry except the last sentence : " Every railroad company shall have the right with its road to intersect, connect with, or cross any 1 Part of the opiuiou is omitted. ED. ATCH., TOP. A S. F. R. V. DENVER & NEW ORLEANS R. 205 other railroad." Railroad companies are created to serve the public as carriers for hire, and their obligations to the public are such as the law attaches to that service. The only exclusively constitutional ques- tion in the case is, therefore, whether the right of one railroad com- pany to connect its road with that of another company, which has been made part of the fundamental law of the State, implies more than a mechanical union of the tracks of the roads so as to admit of the con- venient passage of cars from one to the other. The claim on the part of the Denver & New Orleans Company is that the right to connect the roads includes the right of business intercourse between the two companies, such as is customary on roads forming a continuous line, and that if the companies fail or refuse to agree upon the terms of their intercourse a court of equity may, in the absence of statutory regulations, determine what the terms shall be. Such appears to have been the opinion of the Circuit Court, and accordingly in its decree a compulsory business connection was established between the two com- panies, and rules were laid down for the government of their conduct towards each other in this new relation. In other words, the court has made an arrangement for the business Intercourse of these companies such as, in its opinion, they ought in law to have made for themselves. There is here no question as to how or where the physical connec- tion of the roads shall be made, for that has already been done at the place, and in the wa}*, decided upon by the Denver & New Orleans Company for itself, and the Atchison, Topeka & Santa Fe Company does not ask to have it changed. The point in dispute upon this branch of the case, therefore, is whether, under the Constitution of Colorado, the Denver & New Orleans Company has a constitutional right, which a court of chancery can enforce by a decree for specific performance, to form the same business connection, and make the same traffic arrangement, with the Atchison, Topeka & Santa Fe Company as that company grants to, or makes with, any competing company operating a connected road. The right secured by the Constitution is that of a connection of one road with another, and the language used' to describe the grant is strikingly like that of sec. 23 of the charter of the Baltimore & Ohio Railroad Company, given by Maryland on the 28th of February, 1827, Laws of Maryland, 1826, c. 123, which is in these words: " That full right and privilege is hereby reserved to the citizens of this State, or any company hereafter to be incorporated under the authority of this State, to connect with the road hereby provided for, any other railroad leading from the main route, to any other part or parts of the State." At the time this charter was granted the idea prevailed that a rail- road could be used like a public highway b}' all who chose to put car- riages thereon, subject only to the payment of tolls, and to reasonable regulations as to the manner of doing business, Lake Sup. & Miss. R. R. Co. v. United States, 93 U. S. 442 ; but that the word " sonnect," aa 206 ATCH., TOP. & S. F. R. V. DENVER 4 NEW ORLEANS R. here used, was not supposed to mean anything more than a mechanical union of the tracks is apparent from the fact that when afterwards, on the 9th of March, 1833, authority was given the owners of certain fac- tories to connect roads from their factories with the Washington branch of the Baltimore & Ohio Company, and to erect depots at the junc- tions, it was in express terms made " the duty of the company to take from and deliver at said depot any produce, merchandise, or manufac- tures, or other articles whatsoever, which the}' (the factory owners) may require to be transported on said road." Maryland Laws of 1832, c. 175, sec. 16. The charter of the Baltimore & Ohio Company was one of the earliest ever granted in the United States, and while from the beginning it was common in most of the States to provide in some form by charters for a connection of one railroad with another, we have not had our attention called to a single case wjiere, if more than a connection of tracks was required, the additional requirement was not distinct!}' stated and defined by the legislature. Legislation regarding the duties of connected roads because of their connection is to be found in man}' of the States, and it began at a very early day in the history of railroad construction. As long ago as 1842 a general statute upon the subject was passed in Maine, Stats, of Maine, 1842, c. 9 ; and in 1854, c. 93, a tribunal was established for determining upon the " terms of connection " and " the rates at which passengers and merchandise coming from the one shall be transported over the other," in case the companies themselves failed to agree. Other States have made different provisions, and as railroads have increased in number, and their relations have become more and more complicated, statutory regulations have been more frequently adopted, and with greater particularity in matters of detail. Much litigation has grown out of controversies between connected roads as to their respective rights, but we have found no case in which, without legisla- tive regulation, a simple connection of tracks has been held to estab- lish any contract or business relation between the companies. . . . To our minds it is clear that the constitutional right in Colorado to connect railroad with railroad does not itself imply the right of con- necting business with business. The railroad companies arc not to be connected, but their roads. A connection of roads may make a con- nection in business convenient and desirable, but the one does not necessarily carry with it the other. The language of the Constitution is that railroads may " intersect, connect with, or cross" each other. This clearly applies to the road as a physical structure, not to the cor- poration or its business. This brings us to the consideration of the second branch of the case, to wit, the relative rights of the two companies at common law and under the Constitution, as owners of connected roads, it being conceded that there are no statutory regulations applicable to the subject. The Constitution expressly provides : ATCH., TOP. & S. F. li. V. DENVER & NEW ORLEANS B. 207 1. That all shall have equal rights in the transportation of persons and property ; 2. That there shall not be any undue or unreasonable discrimination in charges or facilities ; and 3. That preferences shall not be given in furnishing cars or motive power. It does not expressly provide : 1. That the trains of one connected road shall stop for the exchange of business at the junction with the other ; nor 2. That companies owning connected roads shall unite in forming a through line for continuous business, or haul each other's cars ; nor 3. That local rates on a through line shall be the same to one con- nected road not in the line as the through rates are to another which is ; nor 4. That if one company refuses to agree with another owning a con- nected road to form a through line or to do a connecting business a court of chancery may order that such a business be done and fix the terms. The question, then, is whether these rights or any of them are im- plied either at common law or from the Constitution. At common law, a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go beyond he may, in the absence of statutory regulations to the 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 cany in that way for all alike, he ma}" nevertheless confine himself in carrying to the particular route he chooses to use. He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of transportation employed were all his own. He certainly ma}" select his own agencies and his own asso- ciates for doing his own work. The Atchison, Topeka & Santa Fe Company, as the lessee of the Pueblo & Arkansas Valley Railroad, has the statutory right to estab- lish its own stations and to regulate the time and manner in which it will carry persons and property and the price to be paid therefor. As to all these matters, it is undoubtedly subject to the power of legisla- tive regulation, but in the absence of regulation it owes only such duties to the public, or to individuals, associations, or corporations, as the common law, or some custom having the force of law, has estab- lished for the government of those in its condition. As has already been shown, the Constitution of Colorado gave to ever}' railroad com- pany in the State the right to a mechanical union of its road with that of any other company in the State, but no more. The legislature has not seen fit to extend this right, as it undoubtedly may, and conse- quently the Denver & New Orleans Company comes to the Atchison, Topeko & Santa Fe Company just as any other customer does, and 208 ATCH., TOP. A S. F. R. V. DENVER & NEW ORLEANS R. with no more rights. It has established its juiiction and provided itself with the means of transacting its business at that place, but as yet it has no legislative authority to compel the other company to adopt that station or to establish an agency to do business there. So far as statu- tory regulations are concerned, if it wishes to use the Atchison, To- peka & Santa Fe road for business, it must go to the place where that company takes on and lets off passengers or property for others. It has as a railroad company no statutory or constitutional privileges in this particular over other persons, associations, or corporations. It saw fit to establish its junction at a place away from the station which the Atchison, Topeka & Santa Fe Company had, in the exercise of its legal discretion, located for its own convenience and that of the public. It does not now ask to enter that station with its tracks or to inter- change business at that place, but to compel the Atchison, Topeka & Santa Fe Company to stop at its station and transact a connecting business there. No statute requires that connected roads shall adopt joint stations, or that one railroad company shall stop at or make use of the station of another. Each company in the State has the legal right to locate its own stations, and so far as statutory regulations are concerned, is not required to use any other. A railroad compan}' is prohibited, both by the common law and by the Constitution of Colorado, from discriminating unreasonably in favor of or against another compan}- seeking to do business on its road ; but that does not necessarily imply that it must stop at the junction of one and interchange business there, because it has established joint depot accommodations and provided facilities for doing a connecting business with another company at another place. A station ma}* be established for the special accommodation of a particular customer; but we have never heard it claimed that every other customer could, by a suit in equit}*, in the absence of a statutory or contract right, compel the corn- pan}' to establish a like station for his special accommodation at some other place. Such matters are, and always have been, proper subjects for legislative consideration, unless prevented by some charter con- tract ; but, as a general rule, remedies for injustice of that kind can only be obtained from the legislature. A court of chancery is not, any more than is a court of law, clothed with legislative power. It may enforce, in its own appropriate way, the specific performance of an existing legal obligation arising out of contract, law, or usage, but it cannot create the obligation. In the present case, the Atchison, Topeka & Santa Fe and the Den- ver & Rio Grande Companies formed their business connection and established their junction or joint station long before the Denver & New Orleans road was built. The Denver & New Orleans Company saw fit to make its junction with the Atchison, Topeka & Santa Pe* Company at a different place. Under these circumstances, to hold that, if the Atchison, Topeka & Santa Fe continued to stop at its old station, after the Denver & New Orleans was built, a refusal to stop ATCH., TOP. e no taking in the sense of exclusion of defendant company from en- joyment or control of it's property ; but rather a limited use such as a company operating a telephone system offers to and necessarily sur- renders to a patron when its lines are being used for conversation. Defendant, having erected its system subject to reasonable imposi- tions that might be put upon it by the Constitution and laws of the state, is under a duty to allow such a connection and use as is outlined above. The motion is granted. JOHNSON v. DOMINION EXPRESS COMPANY. HIGH COURT OF JUSTICE, ONTARIO, 1896. [208 Ontario, 203. 1 ] THIS was an action brought by William Johnson and others trading under the name of the National Package Dispatch Company, to compel the defendants to carry goods tendered to them for transportation, under the circumstances set out in the judgment. [It appeared that plaintiffs were engaged in gathering together small packages from ship- pers charging lower rates than the plaintiffs for small packages, and packing them into 100 Ib. packages for which they demanded the 100 Ib. rate for large packages.] ROSE, J. It seems to me that the question comes simply down to this, did the defendant company hold itself out as a carrier to earn' goods for persons in the position of the plaintiffs, and for the purposes for which the plaintiffs desired them to be carried ; and, secondly, if it did : does the tariff rate or rates charged to others, on the evidence be- fore me, establish that the amount tendered by the plaintiffs, was a reasonable amount, or that the defendant company might not well charge for each parcel in a packed parcel according to its ordinary 1 Only the conclusion of the judge is printed. ED. CENTRAL ELEVATOR CO. ET AL. V. PEOPLE. 275 rates? I find as a fact that the rates tendered by the plaintiffs, or which they were willing to pay, were not reasonable under the circum- stances. I do not find it necessary to determine whether or not the defendant has the right absolutely to decline to carry parcels so packed for the plaintiffs, but I say I do not think the defendant even intended to hold itself out to the public as the carrier of the goods of a rival ex- press compan}-, making use of its capital and its facilities for doing business to the aggrandizement of its rival and its own destruction. An argument which would lead to the conclusion that Mr. McCarthy candidly, but boldly, avowed on behalf of his clients, seems to me so unjust as to show that it is not logically sound. In my opinion the action should be dismissed. CENTRAL ELEVATOR COMPANY ET AL. v. PEOPLE. SUPREME COURT OP ILLINOIS, 1898. [174 ///. 203. 1 ] INFORMATIONS filed by the Attorney General praying an injunction to restrain the defendants, as warehousemen, from storing grain in their own warehouses in contravention of their public duty. MR. JUSTICE CARTWRIGHT. It is a firmly established rule that where one person occupies a relation in which he owes a dut}' to another he shall not place himself in any position which will expose him to the temptation of acting contrary to that duty or bring his interest in con- flict with his duty. This rule applies to every person who stands in such a situation that he owes a duty to another, and courts of equity have never fettered themselves by defining particular relations to which, alone, it will be applied. They have applied it to agents, partners, guardians, executors, administrators, directors and managing officers of corporations, as well as to trustees, but have never fixed or defined its limits. The rule is founded upon the plain consideration that the one charged with duty shall act with regard to the discharge of that duty, and he will not be permitted to expose himself to temptation or be brought into a situation where his personal interests conflict with his duty. Courts of equity have never allowed a person occupying such a relation to undertake the service of two whose interests are in conflict, and then endeavor to see that he does not violate his duty, but forbid such a course of dealing irrespective of his good faith or bad faith. If the duty of the defendants, as public warehousemen, stands in opposition to personal interest as buyers and dealers in grain storing the same in their own warehouses, then the law interposes a preventive check against an} 7 temptation to act from personal interest by prohibiting them from occupying an}' such position. 1 Only the general argument of the court is here reprinted. ED. 276 CENTRAL ELEVATOR CO. ET AL. V. PEOPLE. The public warehouses established under the law are public agencies, and the defendants, as licensees, pursue a public employment. They are clothed with a duty toward the public. The evidence shows that defendants, as public warehousemen storing grain in their own ware- houses, are enabled to, and do, overbid legitimate grain dealers by exacting from them the established rate for storage while they give up a part of the storage charges when they buy or sell for themselves. By this practice of buying and selling through their own elevators the position of equality between them and the public whom they are bound to serve is destroyed, and by the advantage of their position they are enabled to crush out, and have nearly crushed out, competition in the largest grain market of the world. The result is, that the warehouse- men own three-fourths of all the grain stored in the public warehouses of Chicago, and upon some of the railroads the only buyers of grain are the warehousemen on that line. The grades established for different qualities of grain are such that the grain is not exactly of the same quality in each grade, and the difference in market price in different qualities of the same grade varies from two cents per bushel in the better grades to fifteen cents in the lower grades. The great bulk of grain is brought b}- rail and in car-loads and is inspected on the tracks, and the duty of the warehousemen is to mix the car-loads of grain as they come. Such indiscriminate mixing gives an average quality of grain to all holders of warehouse receipts. Where the warehouseman is a buyer the manipulation of the grain may result in personal advan- tage to him. Not only is this so, but the warehouse proprietors often overbid other dealers as much as a quarter of a cent a bushel and im- mediately re-sell the same to a private buyer at a quarter of a cent less than they paid, exacting storage which more than balances their loss. In this way they use their business as warehousemen to drive out com- petition with them as bu3'ers. It would be idle to expect a warehouse- man to perform his duty to the public as an impartial holder of the grain of the different proprietors if he is permitted to occupy a position where his self-interest is at variance with his duty. In exercising the public employment for which he is licensed he cannot be permitted to use the advantage of his position to crush out competition and to com- bine in establishing a monopoly by which a great accumulation of grain is in the hands of the warehousemen, liable to be suddenly thrown upon the market whenever the}', as speculators, see profit in such course. The defendants are large dealers in futures on the Chicago Board of Trade, and together hold an enormous suppl}- of grain ready to aid their opportunities as speculators. The warehouseman issues his own warehouse receipt to himself. As public warehouseman he gives a receipt to himself as individual, and is enabled to use his own receipts for the purpose of trade and to build up a monopoly and de- stroy competition. That this course of dealing is inconsistent with the full and impartial performance of his duty to the public seems clear. The defendants answered that the practice had a beneficial effect upon UNITED STATES EX REL. V. DELAWARE & H. R. CO. ET AL. 277 producers and shippers, and naturally were able to prove that when, by reason of their advantages, they were overbidding other dealers there was a benefit to sellers, but there was an entire failure to show that in the general average there was any public good to producers or shippers. Decree affirmed. UNITED STATES EX REL v. DELAWARE & HUDSON RAIL- ROAD COMPANY ET AL. SUPREME COURT OF THE UNITED STATES, 1909. [29 Sup. Ct. 527. !] Six writs of error to the Circuit Court of the United States for the Eastern District of Pennsylvania to review judgments denying manda- mus to compel certain railway carriers to refrain from interstate trans- portation of coal from the Pennsylvania anthracite regions. Reversed and remanded for further proceedings. Also six appeals from the Cir- cuit Court of the United States for the Eastern District of Pennsj'lvania to review decrees dismissing bills in equity seeking to accomplish the same result by injunction. Reversed and remanded for further pro- ceedings. That it uses, in the conduct of its business as a common carrier, approximately 1,700,000 tons of anthracite coal, of pea size or smaller, annually, and will require more for such use in the future ; that to obtain this coal in these economic sizes it is necessary to break up coal, leaving the larger sizes, which must be disposed of otherwise ; that great waste would result if it were forbidden to transport to market in interstate commerce these larger sizes thus resulting. That defendant's rights to acquire its holding of coal land, its rights to own and mine coal and to transport the same to market in other states as well as in Pennsylvania, and its leases of other railroads, were acquired many years prior to the enactment of the so-called " interstate commerce act," and of the said amendment thereto known as the " com- modities clause." Mr. Justice WHITE delivered the opinion of the court: We then construe the statute as prohibiting a railroad company engaged in inter- state commerce from transporting in such commerce articles or com- modities under the following circumstances and conditions : (a) When the article or commodity has been manufactured, mined, or produced by a carrier or under its authority, and, at the time of transportation, the carrier has not, in good faith, before the act of transportation, dis- sociated itself from such article or commodity ; (b) When the carrier owns the article or commodity to be transported, in whole or in part ; 1 Only the conclusions are printed. ED. 278 UNITED STATES EX REL. V. DELAWARE A H. R. CO. ET AL. (c) When the carrier, at the time of transportation, has an interest, direct or indirect, in a legal or equitable sense, in the article or com- modity, not including, therefore, articles or commodities manufactured, mined, produced, or owned, etc. , by a lona fide corporation in which the railroad company is a stockholder. The question then arises whether, as thus construed, the statute was inherently within the power of Congress to enact as a regulation of commerce. That it was, we think is apparent ; and if reference to authority to so demonstrate is necessary, it is afforded by a considera- tion of the ruling in the New York, N. H. & H. R. Co. Case, to which we have previously referred. We do not say this upon the assumption that, by the grant of power to regulate commerce, the authority of the government of the United States has been unduly limited, on the one hand, and inordinately extended, on the other, nor do we rest it upon the hypothesis that the power conferred embraces the right to abso- lutely prohibit the movement between the states of lawful commodities, or to destroy the governmental power of the states as to subjects within their jurisdiction, however remotely and indirectly the exercise of such powers may touch interstate commerce. On the contrary, putting these considerations entirely out of mind, the conclusion just previous!)' stated rests upon what we deem to be the obvious result of the statute as we have interpreted it ; that it merely and unequivocal!}* is confined to a regulation which Congress had the power to adopt and to which all pre-existing rights of the railroad companies were subordinated. Armor Packing Co. v. United States, 209 U. S. 56, 52 L. ed. 681, 28 Sup. Ct. Rep. 428. 1 1 Compare New York, N. H. & H. R. R. Co. v. Interstate Com. Com., 200 U. S. 361. ED. FELL V.. KNIGHT. 279 CHAPTER V. PEG VISION OF ADEQUATE FACILITIES. FELL v. KNIGHT. EXCHEQUER, 1841. [8 M. Sr W. 269. J [CASE. The declaration stated that the defendant did keep a certatn common inn for the reception of travellers, that the defendant had suf- ficient room and accommodation for the plaintiff, that the plaintiff was ready and willing to pay therefor; nevertheless that the defendant not regarding his duty as such innkeeper, denied the plaintiff accommo- dation, etc. Plea. That the defendant offered to the plaintiff to allow him to sleep in any one of certain bedrooms ; but the plaintiff refused to sleep in any of said bedrooms, but requested that candles might be brought him in order that he might sit up all night in another upstairs room in said inn, which the defendant then reasonably refused.] Lord ABINGER, C. B. I am of opinion that the plea is sufficient. I do not think a landlord is bound to provide for his guest the precise room the latter may select. Where the guest expresses a desire of sit- ting up all night, is the landlord bound to supply him with candle-light in a bedroom, provided he offers him another proper room for the pur- pose? The plea shows, that the landlord did everything that was reasonable. The short question is, is a landlord bound to comply with the caprice of his guests, or is he justified in saying, You shall not stay in a room in this way, and under these circumstances? I think he is not bound to do so. All that the law requires of him is, to find for his guests reasonable and proper accommodation ; if he does that, he does all that is requisite. I am also inclined to think, notwithstanding the case which has been cited of Rex v. Jones, that the declaration is bad for want of an allegation of a tender of the amount to which the inn- keeper would be reasonably entitled for the entertainment furnished to his guest; it is not sufficient for the plaintiff to allege that he was ready to pay ; he should state further that he was willing and offered to pay. There may be cases where a tender may be dispensed with ; as, for instance, where a man shuts up his doors or windows, so that no tender can be made ; but I rather think those facts ought to be stated in the indictment or declaration ; and I have, therefore, some doubt as to the complete correctness of the judgment of my Brother Coleridge, in the case cited: but it is not necessarj- to decide that point in the present case. This rule must be discharged. ALDERSON, B., and ROLFE, B., concurred. Mule discharged. 280 DOYLE V.. WALKER. DOYLE v. WALKER. QUEEN'S BENCH, UPPER CANADA, 1867. [29 Upp. Can. Q. B. 502.] DRAPER, C. J., delivered the judgment of the Court. The plaintiff neither asserts nor proves an}- special contract. He rests his case upon what he assumes to be his right resulting from his being a guest in an inn, and the defendant being the innkeeper. He assumes that having been let into possession of a room, he has acquired such an exclusive right of possession as against his landlord, so long as he continues to oc- cupy it, that the latter is liable as a trespasser for entering and removing his trunks out of it. We do not so understand the law. The contention appears to us to be inconsistent with the well settled duties, liabilities, and rights of the innkeeper. Whatever ma}' be the traveller's rights to be received as a guest and to be reasonably entertained and accom- modated, the landlord has, in our opinion, the sole right to select the apartment for the guest, and, if he finds it expedient, to change the apartment and assign the guest another, without becoming a trespasser in making the change. If, having the necessary convenience, he re- fuses to afford reasonable accommodation he is liable to an action, but not of trespass. There is no implied contract that a guest to whom a particular apartment has been assigned shall retain that particular apartment so long as he chooses to pay for it. We think the contention on the plaintiff's part involves a confusion between the character and position of an innkeeper and a lodging housekeeper. It appears to us further, that although the innkeeper is bound to re- ceive, the guest must not only be ready and willing, and before he can insist as of right to be received that he must offer, to pa}' whatever is the reasonable charge ; and that a guest who has been received loses the right to be entertained if he neglects or refuses to pay upon reasonable demand. The plaintiffs bill accrued due de die in diem, and had been in arrear though frequently demanded. On both points, we think, upon the evidence the plaintiff failed, and that there should be a new trial without costs. BROWNE V. BRANDT. 281 BROWNE v. BRANDT. KING'S BENCH DIVISION, ENGLAND, 1902. [1902, 1 K. B. 696. 1 ] LORD ALVERSTONE, C. J. The plaintiff in this case contends that the defendant has broken his common law duty as an innkeeper to provide accommodation for travellers, and that this action can be main- tained if the defendant had a room at the inn in which the plaintiff could have passed the night. The county court judge has found that the defendant's house was full as regarded proper sleeping accommo- dation ; that there was no empty bedroom ; that there were two rooms available for the accommodation of the plaintiff, and that that accommo- dation was refused. I do not think the question whether the plaintiff demanded to take the one sitting-room was submitted to the county court judge, but I do not wish to decide this case on narrow grounds ; we must assume that there was some place in the house where the defendant might have permitted the plaintiff to stay for the night. I think that we should be straining the common law liability of an inn- keeper if we were to hold that the plaintiff has a good cause of action. The true view is, in my opinion, that an innkeeper may not pick and choose his guests ; he must give the accommodation he has to persons who come to the inn as travellers for rest and refreshment. I cannot think that the authorities to which we have been referred shew that where an innkeeper provides a certain number of bedrooms and sitting- rooms for the accommodation of guests he is under a legal obligation to receive and shelter as many people as can be put into the rooms with- out overcrowding. I think a person who comes to the inn has no legal right to demand to pass the night in a public sitting-room if the bed- rooms are all full, and I think that the landlord has no obligation to receive him. The landlord must act reasonably; he must not cap- tiously or unreasonably refuse to receive persons when he has proper accommodation for them. Here the county court judge has found, in effect, that the defendant did act reasonably. For these reasons I am of opinion that the appeal must fail. 1 Only the opinion of Lord Alverstone, C. J., is printed. The other justices con- curred. ED. 282 GARDNER V. PROVIDENCE TELEPHONE CO. GARDNER v. PROVIDENCE TELEPHONE CO. SUPREME COURT OF RHODE ISLAND, 1901. [50 Atl. Rep. 1014.] PER CURIAM. The evidence shows, as stated bj* the complainant, that the defendant refuses to furnish a long-distance extension set in connection with a grounded telephone circuit. The evidence does not convince a majority of the court that such a combination can be made generally without impairment of the service. The uniform practice of the company is against this contention. The compan}' offers to annex to the complainant's grounded circuit, for a reasonable price, such an extension set as is appropriate for the circuit, and which it contends will give satisfactory service. This is all that the complainant can demand. He is in default in not requesting the company to provide what it says it is willing to give him, and in insisting on the exact form of apparatus which he has installed. It is for the company, not for the subscriber, to determine the t} - pe of apparatus it shall use, and there is no evidence that the type it offers is inadequate. These points were fully considered b}* the court upon the former hearing, as a careful examination of the opinion will show. It may further be observed that in this case there is no evidence that the defendant's charge for a metallic circuit combined with a long-distance set is exorbitant. The well-known superiority of a metallic circuit to a grounded one in all essential features, and the greater cost of construction, make it reason- able to charge more for the use of the metallic circuit than for the other. The question of price is not strictly before the court, for the complain- ant does not desire this kind of service, and the defendant will not tolerate the combination which the complainant has made at any price. The motion for re-argument is denied. SEARLES V. MANN BOUDOIR CAR CO. 283 SEARLES v. MANN BOUDOIR CAR CO. CIRCUIT COURT OF THE UNITED STATES, 1891. [45 Fed. Rep. 330.] ACTION to recover damages for alleged wrongful refusal of defendant's conductor to sell plaintiff a berth in a sleeping-car. On the 30th day of June, 1888, plaintiff entered defendant's sleeping-car at Meridian, Miss., and applied to the sleeping-car conductor for a berth. He re- ceived answer that all the space was sold, and he could not be accom- modated. He claimed that there was a vacant upper berth that he should have. This upper berth was part of a section that had been bought by a Mr. Watson, to whom plaintiff applied for the upper berth, and was refused. There was a rule of defendant companj- to the effect that no one party could retain an entire section when there was appli- cants for berths. HILL, J. (charging jury). The issues which }-ou are to determine from the evidence, are : First. Did the conductor of the sleeping-car then owned and operated by the defendant company unlawfully and wrongfully refuse to sell to the plaintiff a ticket entitling him to the use and occupation of one berth in said car from Meridian, in this State, to Cincinnati, in the State of Ohio, as alleged in the declaration, and denied in the plea of defendant? To entitle the plaintiff to a verdict in his favor the burden is upon him to reasonably satisfy you from the evidence that the conductor then in charge of said car did unlawfully and wrongfullj' refuse to sell plaintiff such ticket, and place him in. possession of one berth in said car. The uncontradicted testimony is that soon after the train to which the sleeper was attached left Meridian the plaintiff did apply to the conductor for a berth in the sleeper from Meridian to Cincinnati, and tendered him the money for the fare ; to which the conductor replied that he had no vacant berth at his disposal, but that there was one berth in a section (or room, as they are con- structed on this class of sleepers), all of which section had been pur- chased and paid for in New Orleans, and which upper berth was not then occupied by the purchaser, and who had only purchased the berth to Birmingham, Ala. ; that if plaintiff would apply to Mr. Watson, the purchaser and occupant, he thought he would let plaintiff have it ; to which plaintiff replied that he had the right to it, and demanded it on such right ; to which the conductor replied that Mr. Watson had the right to its use to Birmingham, and that he could not deprive him of it, but that he would ask him for it for the use of the plaintiff. He did so appl}", and Watson refused to surrender the use of the berth to the plaintiff. These facts being admitted, you are instructed that the defendant compan}' had the right to sell the use of the whole section or room to Watson, and, having done so, and received the pa}- for it, 284 SEARLES V. MANN BOUDOIR CAR CO. Watson was entitled to the use of the entire section for himself and such other persons as he might choose, and who was otherwise a proper person to occupy the sleeper to Birmingham, Ala., and that the conductor was guilt}' of no wrong in refusing to sell the use of this berth to the plaintiff, and put him in possession of it; and therefore you are instructed to return your verdict in favor of the defendant on the issue on the first count in the declaration. The second issue which you will determine from the evidence is : Did the conductor unlawfully and wrongfully refuse to sell the plaintiff a ticket entitling him to the use of one berth on the sleeper from Bir- mingham to Cincinnati, as alleged in the second count in the declara- tion, and denied by the plea of the defendant? The burden of proving this allegation in the plaintiff's declaration is on him. There being some conflict in the testimony on this point, you are instructed that, while the conductor might have sold to plaintiff a ticket entitling him to the use of this berth from Birmingham to Cincinnati before reaching the former place, he was not under any obligation to do so, and his refusal so to do created no liability upon the defendant ; but that, when the train arrived at Birmingham, and Watson's right of occupancy had ceased, and the plaintiff had applied for this or any other vacant and unoccupied berth in the sleeper, and tendered the usual fare for the use of it, and was refused by the conductor, then such refusal would have been wrongful, and the finding on this issue should be for the plaintiff, and entitle him to such reasonable, actual damages as in your judgment, from the proof, he has sustained by reason of being deprived of the use of the berth from Birmingham to Cincinnati, less the amount of the fare. You are further instructed that if the proof shows that application had been made for a berth in the sleeper by another man at Meridian, before the plaintiff made application, then the conductor had the right to sell the ticket for the berth to him in preference to the plaintiff. You are the sole judges of the weight to be given to the testimony of the witnesses on both sides. You will reconcile any con- flict that may exist in the testimony of the witnesses, if you can ; if not, then you will determine from all the testimony which most prob- ably gave the facts truly. In considering the testimony you will con- sider the interest each witness may have in the result of your verdict, the manner in which they have testified, and the reasonableness of their statements in connection with all the testimony. The jury returned a verdict in favor of defendant on both counts of the declaration. 1 1 Compare : Boudoir Car Co. v. Dupre, 54 Fed. 646 ; Palace Car Co. . Taylor, 65 Ind. 153. ED. FARNSWORTH V. GROOT. 285 BREDDON v. GREAT NORTHERN RAILWAY COMPANY. EXCHEQUER, ENGLAND, 1858. [28 L. J. Exch. N. S. 51.1] POLLOCK, C. B. The question was substantially left to the jury whether, under all the circumstances, the detention of these cattle was the result of the snow, or was owing to the negligence or supineness of the company's servants. The jury have found upon that question in favor of the defendants, and rightly. There is a distinction between trains for passengers and for goods or cattle. The owners of goods or cattle have no right to complain that extraordinary efforts which are made to forward passengers are not used to forward cattle or goods. The rates of carriage are different, and the cattle or goods sent by goods trains pa}' at a lower rate then the.y would if sent by passenger trains. The contract entered into was to carry the cattle to Nottingham without delay, and in a reasonable time under ordinary circumstances. If a snowstorm occurs which makes it impossible to cany the cattle, except b}" extraordinary efforts, involving additional expense, the com- pany are not bound to use such means and to incur such expense. FARNSWORTH v. GROOT. SUPREME COURT OF NEW YORK, 1827. [6 Cow. 698.] ON error from the Schenectady C. P. Groot sued Farnsworth in a justice's court, in trespass, for obstructing the former in passing a lock on the Erie canal, and recovered $5. On appeal to the Schenectady C. P., Groot recovered $15. In the latter court it was proved at the trial that Groot had arrived at the lock before Farnsworth, both passing west. It was regularly Groot's turn to pass the lock, which was not more than a quarter empty when Farnsworth arrived. Groot commanded a freight boat, and Farns- worth a packet boat. Farnsworth, on coming up, asked permission of Groot to pass first, which Groot refused. Farnsworth then demanded it as a right. On being refused, he ordered his hands to push back Groot's boat, which, on seeing the packet boat approaching, the latter had hauled up into the jaws of the lock. The boats were thus both wedged into the lock. Farnsworth's hands attempted to push back Groot's boat, but it was held fast by his hands. This was substantially the case, as made out by Groot, the plaintiff below. According to the defendant's witnesses, he (the defendant below) gave no orders to in- 1 Only one opinion is printed. ED. 286 FARNSWORTH V. GROOT. terfere with Groot's boat ; but it was some of the passengers who pushed the boat. After about half an hour's detention, the defendant below ordered his boat back, and the plaintiff below passed first. The court below denied a motion for a non-suit, at the close of the plaintiff's testimony ; and after the defendant had closed his case, decided that his matters of defence were insufficient ; and so instructed the jury, who found for the plaintiff below. The defendant below excepted ; and the cause came here on the record and bill of exceptions. Curia, per SAVAGE, C. J. It is important, first, to ascertain the rela- tive rights of the parties. 63- the fourth section of the act for the main- tenance and protection of the Erie and Champlain canals, and the works connected therewith, passed April 13, 1820 (sess. 43, c. 202), it is, among other things, enacted that, " if there shall be more boats, or other flouting things, than one below, and one above any lock, at the same time, within the distance aforesaid (100 yards), such boats and other floating things shall go up and come down through such lock by turns as aforesaid, until they shall have passed the same ; in order that one lock full of water may serve two boats or other floating things." By the tenth section (p. 186), it is enacted, " that, in all cases in which a boat, intended and used chiefly for the carriage of persons and their baggage, shall overtake any boat, or other floating thing, not intended or used chiefly for such purpose, it shall be the duty of the boatman, or person having charge of the latter, to give the former even- practicable facility for passing ; and, whenever it shall become necessary for that purpose, to stop, until such boat for the carriage of passengers shall have fully passed." And a penalty of $10 is imposed for a violation of this duty. It was evidently the intention of the legislature, that packet boats should not be detained by freight boats; as it was known that the packets would move faster than the freight boats ; and, in the language of the act, every facility was intended to be afforded them. But the right of passing when both are in motion might be of little use if the packets must be detained at every lock until all the freight boats there have passed before it The fair construction of the act undoubtedly is, that the packets shall have a preference on an}- part of the canal ; and, to be of an}' use, this right must exist at the locks as well as on any other part of the canal. In my judgment, therefore, the defendant below had the right of entering the lock first, and the plaintiff below was the aggressor in attempting to obstruct the exercise of that right. Did the defendant, then, do more than he lawfully might in endeavoring to enforce his rights? No breach of the peace is pretended. No injury to the boat was done. The plaintiff below was detained, and so was the defendant; but the detention was occasioned by the fault and misconduct of the plaintiff himself. What right, under this view of the subject, has the plaintiff below to complain ? The defendant below was the injured TIERNEY V. N. Y. CENTRAL AND HUDSON RIVER R. R. 287 part}*. The plaintiff below was indeed liable to a penalty ; but that could not prevent the defendant below from using proper means to propel his boat, and to remove the obstruction caused by the plaintiff below. Suppose, in any part of the canal, the defendant below had overtaken the plaintiff below, and the latter had refused to permit the former to pass, and had placed his boat across the canal, would not the defendant below have been justified in attempting to remove the ob- struction, without injury or breach of the peace? This, I presume, will not be denied. The defendant below has done no more. I think, therefore, the court below erred in refusing to instruct the jury that the plaintiff was not entitled to recover ; and the judgment should be reversed. Judgment reversed. 1 TIERNEY v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD CO. COURT OF APPEALS, NEW YORK, 1879. [76 N. Y. 305.2] APPEAL from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of plain- tiff, entered upon a verdict. Mem. of decision below, 10 Hun, 569. This action was brought to recover damages to a car load of cab- bages, delivered to defendant for transportation, alleged to have been sustained through the negligence of the defendant in not forwarding in due time. DANFORTH, J. On receiving the cabbages in question and payment of freight, the defendants were bound to forward them immediate!} 7 to their destination, such was the duty of a carrier of goods at common law, for if he had not the means of transportation he might refuse to receive the goods, and such is the duty of a railroad corporation. This is so under the statute. By its terms the corporation is required to furnish "accommodations" only for such property as shall be offered a reasonable time before the arrival of the time fixed b} r public notice for the starting of its trains. Laws of 1850, chap. 140, 36. And in the absence of a legal excuse the carrier is answerable for any delay beyond the time ordinarily required for transportation by the kind of conveyance which he uses. Blackstock v. N. Y. & Erie R. R. Co., 20 N.Y. 48; Mann v. Burchard, 40 Vt. 326; Illinois C. R. R. Co. v. McClennan, 54 III. 58. None of the exceptions to the charge were well taken. The learned 1 Compare : Briddon v. R. R., 28 L. J. (N. S.) Ex. 51 ; Heilliwell v. R. R., 7 Fed. 68 ; Johnson v. R. R., 90 Ga. 810; Galena Co. v. Rae, 18 111. 488 ; Selver v. Hall, 2 Mo. App. 557 ; Express Co. . Smith, 33 Oh. St. 511 ; R. R. v. Nelson, 1 Cold. 272. ED. 2 This case is abridged. ED. 288 TIERNEY V. N. Y. CENTRAL AND HUDSON RIVER R. R. trial judge instructed the jury " that it was the duty of the defendant to transport the property in question to New York by the first train, unless a reasonable and proper excuse for the delay is shown." To this there was an exception ; * ' and in case there was a pressure of freight cars, the car in question should be forwarded before forwarding ordinary non-perishable property." " They made this contract in re- gard to perishable property, and it was their duty to forward it by the first train, unless there was such a pressure upon them of property of a similar kind to be transported, and which had arrived before this, to make it impossible," and again he says, " it would be a good excuse if there was a pressure of a similar kind of property to be forwarded, but it would not be an excuse if there was a pressure of other non- perishable property to be forwarded." To this defendant excepted. The defendant's counsel requested the judge to charge "that de- fendant is not liable for delay, if such delay was caused by an unusual press of business, and an accumulation of cars beyond the ordinary capacity of the road," and the judge replied, " within the limitations I have now given, I so charge" to this qualification there was an exception. It will be seen that the attention of the trial court was not called to the question of right of priority to transportation among freights received at different times. The whole charge is applicable to property received at the same time, and does not necessarily, nor by any fair implication, direct a discrimination in favor of perishable prop- erty received after non-perishable ; no request to charge in regard to it was made ; the testimony did not indicate when the property was received which was sent forward on the 8th and on the 9th before 3.20 in the afternoon. The plaintiff's car left Albany at seven, and to make the question available to the defendant the judge should have been asked to direct the jury in regard to it. El wood v. W. U. Tel. Co., 45 N. Y. 549. I do not think that the question is before us, nor indeed that the evidence was sufficient to raise it in the trial court. The case as presented is that of freight at East Albany ; when it, except that of the plaintiffs, reached there does not appear. It was all in the pos- session and control of the defendant at one and the same time. But if the charge of the trial judge is construed as instructing the jury that the pressure of non-perishable property should not excuse the delay, I am of the opinion that he was right, and the principle of law enunciated by him sound. Wibert's Case, supra, is not to the contrary. There the question was not presented as to the duty of a carrier to discrimi- nate in favor of perishable freight over non-perishable. That decision, therefore, should not control this case. It is itself placed upon a quali- fication to the peremptory direction of the statute, and while it should be followed in similar cases, is not to be extended. The distinction suggested by the charge exists. In Cope v. Cordova, 1 Rawle, 203, the court, while holding that the liability of the carrier by vessel ceases when he lands the goods at a proper wharf, adds, "it is beside the question to say that perishable articles may be landed at improper CUMBERLAND TELEPHONE AND TELEGRAPH CO. V. KELLY. 289 times to the great damage of the consignee, when such special cases arise the}- will be decided on their own circumstances." Such a case was presented to this court in McAndrew v. Whitlock, 52 N. Y. 40, where a carrier was held liable for the loss of certain perishable prop- erty, licorice, under circumstances which would have exonerated him from liability if it had not been perishable. In Marshall v. N. Y. C. R. R. Co., 45 Barb. 502 (affirmed by this court, 48 N. Y. 660), it was held by the Supreme Court that where two kinds of property, one per- ishable and the other not, are delivered to a carrier at the same time by different owners for transportation and he is unable to carry all the property, he may give preference, and it is his duty to do so, to that which is perishable. In this court the case turned upon other points ; but referring to the rule above stated, Hunt, J., says: "The principle laid down is a sound one, and in a proper case would I think be held to be the law. It is not here important." The rule is a correct one and is equally applicable to the duty of the carrier in whose hands freight has so accumulated that he must give priority to one kind over another. In requiring the defendant to receive all kinds of property, including perishable, the statute may be construed as imposing upon it such obli- gations and duties as are required for the proper and safe carriage of that kind of goods. In that respect assimilating a railway corporation to a common carrier, bound by the obligations of the common law to carry safely and immediately the goods intrusted to him, having in the exercise of care, speed, and priority of transportation, some reference to the natural qualities of the article and the effect upon it of exposure to the elements. McAndrew v. Whitlock, 52 N. Y. 40; Marshall v. N. Y. C. R. R. Co., 48 N. Y. 660 ; Peet v. Chicago & N. W. R. R. Co., 20 Wis. 594. We may also take into consideration the fact that the freight in question was not only perishable but was known to be so by both parties and was shipped as such and with knowledge on the plain- tiff's part of the custom of the defendant to give a preference in trans- portation to such goods, and the parties, though silent, may be regarded as adopting the custom as part of the contract. CUMBERLAND TELEPHONE & TELEGRAPH COMPANY v. KELLY. CIRCUIT COURT OF APPEALS OF THE UNITED STATES, 1908. [160 Fed. 316. 1 ] LURTON, C. J. What, then, was the basis for the claim of a viola- tion of this statute ? For one thing it is said that, during the time of 1 The principal point is extracted. ED. 290 CUMBERLAND TELEPHONE AND TELEGRAPH CO. V. KELLY. delay, other applicants in other parts of the city were given connec- tion. But as these other applicants were within other cable districts in which the cables were not congested, this cannot be said to be a dis- crimination. This is not evidence of partiality shown them, and was not a discrimination against Kelly, who was not similarly situated. Of course, if we are to construe this statute as one which overrides the business methods under which the company carried its wires in cables to the different areas to be served, distributing the wires from stations conveniently located within such business or cable districts, then, to serve any applicant anywhere ahead of Kelly would be an illegal dis- crimination. But such a construction would lead to most unjust results,' and practically destroy every such company. If such a company, in good faith, determines for itself the limits within which it will con- duct such a business, and if, in accordance with the usual and approved methods of well-managed companies, it divides that area into districts to be served by wires carried in cables to a point within it convenient for distribution, there is no discrimination at common law or under the statute, unless an applicant within a particular district is discriminated against and others served within the same general area, in like situa- tion and under like conditions with himself. This was the view of the matter entertained by the court below, for the jury were instructed that the question of discrimination depended upon the conduct of the company in "the territory where he was situated," and the case was made to turn by the charge upon the question, " Had the company fur- nished other men on applications for service in that locality when their cable lines were filled?" " Could they make arrangements to supply other men and did they do it? Or, on the other hand, did they treat them all alike when that condition of things appertained?" The sug- gestion made here in argument, that it was the immediate duty of the company to provide additional wires if all those in the existing cable were in use, and that the failure to do this was a discrimination under the statute, was not by any charge given or refused raised below, and is only relevant here as arising under the alleged general purpose of the statute to compel the service of all applicants regardless of con- ditions and methods of carrying on such a business. We have already expressed our view of this above. There might be much in the sug- gestion, if the business of the company had been carried on by giv- ing to each applicant an aerially supported pair of wires running direct from the exchange to each private telephone. If it had also appeared that it was the practice and custom of the company to put up such a pair of wires whenever service was required, there would be evidence tending to show discrimination if such connection should be denied or unduly delayed to one and furnished to others. That method of doing business, as we may judicially take notice, does prevail where the patrons are few in number. But there was evidence tending to show that where the patrons run up into the thousands, the cable system, to avoid confusion of wires, becomes necessary for efficient service. In CUMBERLAND TELEPHONE AND TELEGRAPH CO. V. KELLY. 291 Memphis the city ordinance compelled the wires to go underground through the business part of the city, and this, aside from other con- siderations, involved the carrying of the wires deemed necessary for the business of a particular district in leaden-covered cables and their distribution from a box conveniently situated within the district. If the cable in particular district should become congested it was usual, if the new business promised a fair return, to carry another cable to the same district and make a new point of distribution. Telephone companies, like similar quasi public corporations, are under a general common-law obligation to supply reasonably adequate facilities for supplying the service which they hold themselves out to do. This obligation in a proper proceeding, may be enforced by compelling an enlargement of the plant, or by an action for damages due to dis- regard of this duty. The principle applicable to common carriers proper is sufficiently stated with its qualifications in 5 Am. & Eng. Cyc. of Law, 167, 168, and many illustrative cases are cited. But we cannot conceive that this common-law obligation is within the intent and purpose of this severe penal act. If, as we have before stated, the business of the company was conducted by individual wires aeri- ally supported between the exchange and the telephones of the patrons, and it was its usual custom to string a pair of wires upon the plant already provided when a new customer desired a telephone, a very different question would be presented. There was evidence tending to show that to put in a new cable in order to serve Kelly would have taken some weeks at least, and would have cost the company about $7000, if such a cable was strung as they were using. We cannot believe that the Tennessee Legislature ever intended that the common law duty of providing facilities reasonably adapted to the business which might have with reason been anticipated should be enforced by the imposition of an arbitrary penalty of $100 per day from the time when such connection might have been supplied had the company's cable capacity not been full. This construction would operate to ruin any ordinary company, with profit only to such as might choose to prosecute a penal action against them. No such construction ought to be placed upon such a penal statute if it be susceptible of a more just and reasonable one. This we have no difficulty in doing, inasmuch as we regard the statute as intended only to prevent a partial and dis- criminating service, having regard to the capacity of the company, and the usual and customary method under which its operations were con- ducted. 292 ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RY. CO. V. RENFROE. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. RENFROE. SUPREME COURT OF ARKANSAS, 1907. [82 Ark. 145.] WOOD, J. (after stating the facts). The contract of shipment, as evidenced by the bill of lading, was entered into between appellant and appellee. It was for free shipment over appellant's line and con- necting carriers from Alma, Ark., to Kansas City, Mo. Appellant having accepted the berries for through transportation, it was its duty to furnish cars suitable for the purpose. Strawberries were perishable goods, and appellant having undertaken to transport them to market, it was its duty to furnish cars especially adapted to the preservation of such goods during the time required for their transition from the place of shipment to the place of destination under the contract. " If," says Mr. Hutchinson, "the goods are of such a nature as to require for their protection some other kind of car than that required for ordinary goods, and cars adapted to the necessity are known and in customary use by carriers, it is the duty of the carrier, where he ac- cepts the goods, to provide such cars for their carriage. Hutch. Car. (3d ed.) 505, 508 ; Beard v. 111. Cent. Ry. Co., 79 la. 518 ; Chicago & A. Rd. Co. v. Davis, 159 111. 53 ; St. Louis, I. M. & S. Ry. Co. r. Marshall, 74 Ark. 597. It is the contention of appellant that it discharged its duty to ap- pellees when it furnished a refrigerator car, and that the duty of icing the car, under the evidence, devolved upon the American Refrigerator Transit Company, the owner of the car. The contention is unsound, as shown in New York, Philadelphia & Norfolk R. Co. v. Cromwell, 49 L. R. A. 462. That was a case that involved the transportation of strawberries. The court said : " The California Fruit Transportation Company, for a consideration, furnished its cars to the plaintiff in error [the railway company]. These cars were agencies or means employed by the plaintiff in error for carrying on its business and per- forming its duty to the public as a common carrier, one of which was to provide suitable cars for the safe and expeditious carriage and pres- ervation of the freight it undertook to carry. A railway company cannot escape responsibility for its failure to provide cars reasonably fit for the conveyance of the particular class of goods it undertakes to carry by alleging that the cars used for the purposes of its own transit were the property of another. The undertaking of the plaintiff in error [railway company] was to properly care for and safely carry the fruit of the defendant in error, and it is immaterial that the cars in which it was carried were owned by the California Fruit Transportation Company, or that such company undertook to ice said cars or to pay for the ice. As between the plaintiff in error and defendant in error, STATE EX EEL CRANDALL V. CHICAGO, ETC., R.R. CO. 293 the California Fruit Transportation Company and its employees were the agents of the plaintiff in error. So far as the defendant in error was concerned, the plaintiff in error was under the same obligations to care for the fruit that it would have been had the refrigerator cars belonged to it." It matters not in the case at bar that the refrigerator car belonged to the American Refrigerator Transit Company, an independent con- tractor. Appellees had no contract with it to furnish cars or to ice them when furnished. Their contract was with appellant to furnish suit- able cars ; and' the evidence was ample to support the verdict, that ap- pellant not only undertook to furnish the car, but also to ice the same. Even if the law did not impose this upon appellant as a duty, the proof shows that it undertook, for a valuable consideration, to furnish refrig- eration as well as the car. The sum of $50 was charged and paid for that service to appellant. The evidence was sufficient to warrant the jury in finding that ap- pellant negligently failed to perform this service, that it failed to carry out its contract to ice the car and thus to furnish a suitable car. True, in the case of connecting carriers the presumption is that the delivering carrier caused the injury. Kansas City S. Ry. Co. v. Em- bry, 76 Ark. 589 ; St. Louis, I. M. & S. Ry. Co. v. Marshall, supra ; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 114; St. Louis S. "W. Ry. Co. v. Birdwell, 72 Ark. 502. But this presumption only obtains in the absence of proof locating the negligent carrier. Here the evidence warranted the jury in finding that appellant was negligent in failing to use ordinary care to see that the car was kept properly iced at Van Buren before it started for Kansas City. Finding no en % or, the judgment is affirmed. , STATE EX REL CRANDALL v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. SUPREME COURT OF NEBRASKA, 1904. [72 Neb. 542. 1 ] THE record shows that considerable ill feeling exists between some of the members of the Farmers' Grain & Lumber Company and Mr. Cran- dall, and that certain charges and complaints had been made to the railway company that Crandall had been shipping grain under the guise of mill products by covering part of the contents of the car, and thereby obtaining more than his shai'e of cars. We are convinced, however, that these charges are not warranted by the evidence, and that Crandall was honest and sincere in his opinion that as a miller he was entitled to all the cars the railroad could furnish for his use in shipping all kinds 1 The first part of the opinion reviewing the facts is omitted. ED. 294 STATE EX REL CRANDALL V. CHICAGO, ETC., R.R. CO. of mill products, including therein " cracked corn," and that as a grain dealer he was entitled to an equal number of cars with his competitor, excluding cars used for " cracked corn," " chop," etc. We are further convinced that no intention on the part of the respondent's agents or officers to discriminate unfairly against Mr. Crandall has been shown, and that the}- have been placed in the difficult position of trying to do business with two active and jealous competitors in such a manner as to remain upon good terms with both, a task almost beyond human power. " How happy could " they " be with either, Were t'other dear charmer away 1 " The brief of the relator is largely devoted to the proposition that a common carrier of goods is required to provide facilities for and to re- ceive and ship goods tendered at its stations on payment or tender of the usual tariff rates ; that it has no right to discriminate or favor one shipper over another in rates or facilities, and that such duties of com- mon carriers are enforceable by mandamus. With this proposition we agree. Since the briefs in this case were filed, the case of State ex rel McComb v. Chicago, B. & Q. By. Co., 99 N. W. 309, has been decided by this court. That decision is in accord with the principles contended for by relator, but with the further qualification that, when the carrier lias furnished itself with the appliances necessary to transport the amount of freight which may, in the usual course of events, be reason- ably expected to be offered to it for carriage, taking into consideration the fact that at certain seasons more cars are needed, it has fulfilled its duty in that regard, and it will not be required to provide for such a rush of grain or other goods for transportation as may only occur in any given locality temporarily, or at long intervals of time. It appears that ordinarily the respondent has cars enough to meet the usual re- quirements of shippers, but that, owing to the long coal strike in the East, conditions had been abnormal, and the railroad company had at this time been unable to have returned to its line a large number of its cars which had been sent to points upon other railroads, and that it had found it necessary to impose an extra charge in the nature of a per diem for cars which were retained by other lines for more than thirty days, with the purpose of procuring an expeditious return of the cars ; that, owing to this scarcity, it was impossible to furnish at this time all the cars necessary for use, not only by the relator, but by all other grain shippers along its lines in this state. Under this state of facts the modifying principle above quoted applies, and, if no unjust discrimina- tion appears, no shipper has the right to complain because he has not been able to obtain carriage for all the goods which he may desire transported. We are of the opinion that no failure of duty or unjust discrimination has been shown upon the part of respondent, and that the judgment of the district court should be affirmed. MAJESTIC COAL AND COKE CO. V. ILLINOIS CENTRAL R.R. CO. 295 MAJESTIC COAL AND COKE COMPANY v. ILLINOIS CENTRAL RAILROAD COMPANY. CIRCUIT COURT OF APPEALS OF THE UNITED STATES, 1908. [162 Fed. 810.] KOHLSAAT, Circuit Judge. This cause is now before the court on demurrer and motion to dissolve temporary injunction. Complainant filed its bill to restrain defendant from including certain private cars and certain so-called " foreign fuel cars" in estimating the distributive share or quota of complainant in and to defendant's " system cars," so called. From the bill it appears that heretofore complainant has been awarded its pro rata number of "system cars" without reference, and in addition to the private and foreign fuel cars employed in connection with its business. It is alleged in the bill that in this way it has been able to work its mine at its full capacity, whereb} 7 it could produce coal at reduced rates. This rate manifestly would be available for in- terstate shipments, although the bill alleges, and the demurrer admits, that the private and foreign fuel cars were engaged solely in intrastate trade. It further appears from the bill that complainant has entered into contracts on the basis of the old allotment of cars, which it cannot afford to carry out on the new basis of distribution of system cars. It is claimed for complainant that, inasmuch as the private and for- eign fuel cars deal only with intrastate transactions, the transactions in question do not come within the terms or spirit of the interstate commerce act. It is the plain intent of the act that railroad com- panies shall not extend any advantage to any shipper. It follows, therefore, that any act of a railroad company which directly or in- directly results in the extension of advantage to any one or more shippers over other shippers dealing with that road in interstate com- merce is forbidden by the statute. It appears from the bill that the defendant is engaged in such commerce. There exists, therefore, this situation, viz. : The railroad is giving to the coal company facilities, in intrastate commerce, it may be, which enable the latter to place its coal upon the market for interstate shipment at a less price than that at which other coal mines can afford to sell coal. Of course, such a situation might arise from other causes, as, for instance, more acces- sible strata or greater quantities of coal or better mining facilities or lower wages. These advantages might be lawful in themselves, and not at all within the statute, and would be proper data to be considered in fixing the quota of cars. The law, however, deals with the interstate carrier. It may not in any way become a party to complainant's unfair advantage over other shippers in affording greater facilities pro rata to one shipper than to another. It is a creature of the law, and amend- able to the varying provisions thereof. It was quite within the power 296 MICHIGAN CENTRAL RAILROAD COMPANY V. SMITHSON. of Congress to enact that a railroad shall not lend its great advantages to any enterprise which in any way seems to discriminate in favor of or against any person dealing with it. That it is doing so in this case is beyond question. The fact that the new rule would work hardship upon complainant or place it at disadvantage is one which the court may not consider. Complainant's claim in the premises, as appears from the bill, comes within, and is repugnant to, the statute, and cannot be sustained. This finding is in accordance with the decisions in U. S. ex rel. Pitcairn Coal Company v. B. & O. R. R. Co. (C. C.), 154 Fed. 108, and Logan Coal Co. v. Penn. R. R. Co. (C. C.), 154 Fed. 497, and by the decision of the Interstate Commerce Commission July 11, 1907, in the cases of Railroad Commission of Ohio v. Hocking Valley Ry. Co. and Wheel- ing & Lake Erie R. R. Co., 12 Interst. Com. R. 398. Considerable space is given in the briefs to the question of jurisdic- tion. In view of what has been said above, it becomes unnecessar}* to pass upon that question further than to sa}- that the demurrer is sustained, the bill dismissed for want of equity, and the temporary in- junction dissolved. Mr. H. B. Arnold, counsel for the interstate commission, was allowed to, and did, file a brief herein. MICHIGAN CENTRAL RAILROAD COMPANY v. SMITHSON. SUPREME COURT OF MICHIGAN, - 1881. [45 Mich. 212. 1 ] COOLET, J. The primary fact that must rule this controversy is that the Michigan Central Railroad 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. Time would be lost, expense in- creased, injuries to freight made more numerous, and no correspond- ing advantage accrue to any one. It is compelled to do so, second, by its own interest. To attempt to stop every car offered to it at its own 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 for which it must increase its charges to make up if possible for what it would lose. But third, the statute itself requires it. It is provided by General Laws 1873, p. 99, that " every corporation owning a road in use, shall, at reasonable 1 Only the dictum for which thia case is chiefly known is printed. ED. ATLANTIC COAST LINE R.K. CO. V. N. C. COKP. COMM. 297 times and for a reasonable compensation, draw over the same the merchandise and cars of any other corporation." The necessities of commerce require this with such imperative force that there could scarcely be a more flagrant breach of corporate duty than would be a refusal to obey this law ; and the interference of the State to punish could hardly fail to be speedy and effectual. ATLANTIC COAST LINE RAILROAD COMPANY v. NORTH CAROLINA CORPORATION COMMISSION. SUPREME COURT OF THE UNITED STATES, 1907. [206 U. S. l.l] 2. THE order was arbitrary and unreasonable, because when properly considered it imposed upon the Coast Line a duty foreign to its obliga- tion to furnish adequate facilities for those travelling upon its road. This rests upon the assumption that as the order was based not upon the neglect of the Coast Line to afford facilities for travel over its own road, but because of the failure to furnish facilities to those travelling on the Coast Line who desired also to connect with and travel on the Southern road, therefore the order was in no just sense a regulation of the business of the Coast Line. 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 reason- able 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. That power, as we have seen, takes its origin from the quasi public nature of the business in which the carrier is engaged, and embraces that business in its entirety, which of course includes the duty to require carriers to make reasonable connections with other roads, so as to promote the convenience of the travelling public. In considering the facts found below as to the connection in question, that is, the pop- ulation contained in the large territory whose convenience was subserved by the connection, and the admission of the railroad as to the impor- tance of the connection, we conclude that the order in question, consid- ered from the point of view of the requirements of the public interest, was one coming clearly within the scope of the power to enforce just and reasonable regulations. 1 In his opinion, Mr. Justice WHITE reduces the objections to the order of the com- mission directing the roads to make its time-table fit in with that of a connecting road to several italicized propositions which he then proceeds to refute. Only one of these is printed here. ED. 298 BALLENTINE V. NORTH MISSOURI RAILROAD CO. BALLENTINE v. NORTH MISSOURI RAILROAD CO. SUPREME COURT OF MISSOURI, 1886. [40 Mo. 49 1. 1 ] FAGG, J., delivered the opinion of the court. The law defining and regulating the duties of railroad companies as common carriers, is so well settled now as to admit of little doubt or controversy. As preliminary, however, to the determination of the questions involved in this case, it may be stated that the laws of the State require each railroad corporation to "furnish sufficient accommo- dations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, be offered for trans- portation," &c. R. C. 1855, p. 435, 44. The sufficiency of such accommodations must be determined by the amount of freight and the number of passengers ordinarily transported on any given line of road. The duty of a company to the public, in this respect, is not peculiar to anj r season of the year, or to any particular emergency that may pos- sibly arise in the course of its business. The amount of business ordinarily done by the road is the only proper measure of its obligation to furnish transportation. If by reason of a sudden and unusual de- mand for stock or produce in the market, or from any other cause, there should be an unexpected influx of business to the road, this obli- gation will be fully met by shipping such stock or produce in the order and priority of time in which it is offered. Galena & Chicago R. R. Co. v. Rae et al., 18 111. 488 ; Weibert v. N. Y. & Erie R. R. Co., 19 Barb. 36. Any other construction of the statute would be.unjust to the railroad companies without benefiting the public. It seems to have been the theory upon which the petition proceeded in this case, that it was the duty of the defendant to have shipped the live stock in the order of time in which it was offered with reference to the entire line of its road, and not to any particular station. This is altogether unreasonable, and in its practical operation would work great hardships upon all companies. Its duty in this respect, then, must be understood in reference to each particular station, and not to the opera- tion of the road as a whole. Whilst it may be difficult to lay down any general rule upon this subject sufficiently accurate in its terms to cover all cases that may possibly occur, still we think it can be approximated by saying that its means of transportation must be so distributed at the various stations 1 This case is abridged. ED. AYRES V. CHICAGO AND NORTHWESTERN RAILWAY. 299 for receiving passengers and freight along the entire line of its road, as to afford a reasonable amount of accommodation for all. Or, to state it differently, no one station should be furnished with means of transportation to the prejudice of another, but a distribution should be made among all in something like a just proportion to the amount of business ordinarily done at each. Its duty is to receive all freight that may be offered, and within a reasonable time, and in the order in which it is offered, to transport the same to any other point on the line of its road that ma}- be designated by the owner or other person having charge of it. This duty to the public must be performed in good faith, and without partiality or favor to any one. Every individual in the com- munity, by complying with the prescribed rules and regulations of the company, has an equal right to demand the performance of this dot}*, and the law does not excuse a discrimination in this respect any more than it does a discrimination in favor of an}- particular station on the line of its road. In every proceeding, therefore, against a railroad company for neglect of its duty, either in receiving or shipping freight in the order in which it is offered, the good faith of its conduct in the matter complained of is a proper subject of inquiry, and if found to be wanting, should receive the severest condemnation and censure from the courts of the country. 1 AYRES v. CHICAGO AND NORTHWESTERN RAILWAY. SUPREME COURT OF WISCONSIN, 1888. [71 Wis. 372: 37 N. W. 432.] THE amended complaint is to the effect that the defendant, being a common carrier engaged in the transportation of live stock, and accus- tomed to furnish cars for all live stock offered, was notified by the plaintiffs, on or about October 13, 1882, to have four such cars for the transportation of cattle, hogs, and sheep at its station La Valle, and three at its station Reedsburg, ready for loading on Tuesday morning, October 17, 1882, for transportation to Chicago; that the defendant neglected and refused to provide such cars at either of said stations for four days, notwithstanding it was able and might reasonably have done 1 Helliwell v. Grand Trunk, 17 Fed. 68; Chicago Co. v. Fisher, 31 III. App. 36; Deming t>. Grand Trunk, 48 N. H. 155; Tennessee R. R. v. Nelson, 1 Cold. 272; R. R. v. Nicholson, 61 Tex. 491. ED. 300 AYRES V. CHICAGO A NORTHWESTERN RAILWAY. so ; and also neglected and refused to carry said stock to Chicago with reasonable diligence, so that they arrived there four days later than the} 1 otherwise would have done ; whereby the plaintiffs suffered loss and damage, by decrease in price and otherwise, Si, TOO. 1 CASSODAY, J. We are forced to the conclusion that at the time the plaintiffs applied for the cars the defendant was engaged in the business of transporting live stock over its roads, including the line in question, and that it was accustomed to furnish suitable cars therefor, upon reasonable notice, whenever it was within its power to do so ; and that it held itself out to the public generally as such carrier for hire upon such terms and conditions as were prescribed in the written con- tracts mentioned. These things, in our judgment, made the defendant a common carrier of live stock, with such restrictions and limitations of its common-law duties and liabilities as arose from the instincts, habits, propensities, wants, necessities, vices, or locomotion of such animals, under the contracts of carriage. This proposition is fairly deducible from what was said in Richardson v. C. & N. W. R. Co., 61 Wis. 601, and is supported by the logic of numerous cases. North Penn. R. Co. v. Commercial Bank, 123 U. S. 727 ; Moulton v. St. P., M. & M. R. Co., 31 Minn. 85, 12 Am. & Eng. R. Cas. 13 ; Lindsley v. C., M. & St. P. R. Co., 36 Minn. 539 ; Evans v. F.R. Co., Ill Mass. 142 ; Kimball v. R. & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567 ; Rixford . Smith, 52 N. H. 355 ; Clarke v. R. & S. R. Co., 14 N. Y. 570, 67 Am. Dec. 205 ; South & N. A. R. Co. v. Henlein, 52 Ala. 606 ; Baker i>. L. & N. R. Co., 10 Lea, 304, 16 Am. & Eng. R. Cas. 149 ; Philadelphia W. & B. R. Co. v. Lehman, 56 Md. 209 ; McFadden v. M. P. R. Co., 92 Mo. 343 ; 3 Am. & Eng. Cyclop. Law, pp. 1-10, and cases there cited. This is in harmony with the statement of PARKE, B., in the case cited by counsel for the defendant, that u at common law a carrier is not bound to carry for every person tendering goods of any description, but his obligation is to carry according to his public profession." Johnson v. Midland R. Co., 4 Exch. 372. Being a common carrier of live stock for hire, with the restrictions and limitations named, and holding itself out to the public as such, the defendant is bound to fur- nish suitable cars for such stock, upon reasonable notice, whenever it can do so with reasonable diligence without jeopardizing its other busi- ness as such common carrier. Texas & P. R. Co. v. Nicholson, 61 Tex. 491 ; Chicago & A. R. Co. v. Erickson, 91 111. 613; Ballentine r. N. M. R. Co., 40 Mo. 491 ; Guinn v. W., St. L. & P. R. Co., 20 Mo. App. 453. Whether the defendant could with such diligence so furnish upon the notice given, was necessarily a question of fact to be determined. The plaintiffs, as such shippers, had the right to command the defendant to furnish such cars. But the}' had no right to insist upon or expect com- pliance, except upon giving reasonable notice of the time when they would be required. To J>e reasonable, such notice must have been suf- 1 The statement of facts and part of the opinion are omitted. ED. AYRES V. CHICAGO & NORTHWESTERN RAILWAY. 301 ficient to enable the defendant, with reasonable diligence under the cir- cumstances then existing, to furnish the cars without interfering with previous orders from other shippers at the same station, or jeopardizing its business on other portions of its road. It must be remembered that the defendant has many lines of railroad scattered through several dif- ferent States. Along each and all of these different lines it has stations of more or less importance. The company owes the same duty to shippers at any.one station as it does to the shippers at any. other station of the same business importance. The rights of all shippers applying for such cars under the same circumstances are necessarily equal. No one station, much less any one shipper, has the right to command the entire resources of the company to the exclusion or pre- judice of other stations and other shippers. Most of such suitable cars must necessarily be scattered along and upon such different lines of railroad, loaded or unloaded. Many will necessarily be at the larger centers of trade. The conditions of the market are not always the same, but are liable to fluctuations, and may be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such cars should be distributed along the different lines of road, and the several stations on each, as near as ma}' be in proportion to the ordinary business requirements at the time, in order that shipments may be made with reasonable celerity. The require- ment of such fair and general distribution and uniform vigilance is not only mutually beneficial to producers, shippers, carriers, and purchasers, but of business and trade generally. It is the extent of such business ordinarily done on a particular line, or at a particular station, which properly measures the carrier's obligation to furnish such transporta- tion. But it is not the duty of such carrier to discriminate in favor of the business of one station to the prejudice and injury of the business of another station of the same importance. These views are in harmony with the adjudications last cited. The important question is whether the burden was upon the plaintiffs to prove that the defendant might, with such reasonable diligence and without thus jeopardizing its other business, have furnished such cars at the time ordered and upon the notice given ; or whether such burden was upon the defendant to prove its inability to do so. We find no direct adjudication upon the question. Ordinarily, a plaintiff alleging a fact has the burden of proving it. This rule has been applied by this court, even where the complaint alleges a negative, if it is susceptible of proof b}* the plaintiff. Hepler v. State, 58 Wis. 46. But it has been held otherwise where the only proof is peculiarly within the control of the defendant. Mecklem v. Blake, 16 Wis. 102; Beckmann v. Henn, 17 Wis. 412; Noonan v. Ilsley, 21 Wis. 144; Great Western R. Co. v. Bacon, 30 111. 352 ; Brown v. Brown, 30 La. Ann. 511. Here it may have been possible for the plaintiffs to have proved that there were at the times and stations named, or in the vicinity, empty cars, or cars which had reached their destination and might have been emptied with 302 PEOPLE V. CHICAGO AND ALTON RAILROAD. reasonable diligence, but they could not know or prove, except by agents of the defendant, that any of such cars were not subject to prioi orders or superior obligations. The ability of the defendant to so fur- nish with ordinary diligence upon the notice given, upon the principles stated was, as we think, peculiarly within the knowledge of the defend- ant and its agents, and hence the burden was upon it to prove its in- ability to do so. Where a shipper applies to the proper agency of a railroad company engaged in the business of such common carrier of live stock for such cars to be furnished at a time and station named, it becomes the duty of the company to inform the shipper within a reasonable time, if practicable, whether it is unable to so furnish, and if it fails to give such notice, and has induced the shipper to believe that the cars will be in readiness at the time and place named, and the shipper, relying upon such conduct of the carrier, is present with his live stock at the time and place named, and finds no cars, there would seem to be no good reason why the company should not respond in damages. Of course these observations do not involve the question whether a railroad company may not refrain from engaging in such business as a common carrier ; nor whether, having so engaged, it may not discontinue the same. The court very properly charged the jury, in effect, that if all the cars had been furnished on time, as the two were, it was reasonable to presume, in the absence of any proof of actionable negligence on the part of the defendant, that they would have reached Chicago at the same time the two did to wit, Thursday, October 19, 1882, A. M., whereas they did not arrive until Friday evening. This was in time, however, for the market in Chicago on Saturday, October 21, 1882, This necessarily limited the recovery to the expense of keeping, the shrinkage, and depreciation in value from Thursday until Saturday. Chicago & A. R. Co. v. Erickson, 91 111. 613. The trial court, how- ever, refused to so limit the recover}', but left the jury at liberty to in- clude such damages down to Monday, October 23, 1882. For this manifest errror, and because there seems to have been a mistrial in some other respects, the judgment of the circuit court is reversed, and the cause is remanded for a new trial. By the Court. Ordered according!}'. PEOPLE v. CHICAGO AND ALTON RAILlvOAD. SUPREME COURT OF ILLINOIS, 1889. [ISO III. 175: 22 N. E. 857.] BAILET, J. This was a petition for a mandamus^ brought by the people of the state of Illinois, on the relation of the attorney-general, against the Chicago & Alton Railroad Company, to compel said com- pany to establish and maintain a station for the receipt and discharge of passengers and freight at Upper Alton, in Madison County. . . PEOPLE V. CHICAGO AND ALTON RAILBOAD. 303 There is, so far as we have been able to discover, no provision of any statute which can be appealed to in support of the prayer of the petition. Neither in the defendant's charter nor in any other act of the general assembly does there seem to be any attempt to prescribe the rules by which the defendant is to be governed in the location of its freight and passenger stations, or to confer upon the Circuit Court the power to interpose and direct as to their location. It is plain that the act of 1877, the only one to which we are referred in this connection, can have no application. That act provides "'that all railroad companies in this state, carrying passengers or freight, shall, and they are hereby required to, build and maintain depots for the comfort of passengers, and for the protection of shippers of freight, where such railroad companies are in the practice of receiving and delivering passengers and freight, at all towns and villages on the line of their roads having a population of five hundred or more." 2 Starr & C. St. 1924. While it is true that Upper Alton is a town having a population of more than 500, it affirmatively appears that it is not a place where the defendant has been in the practice of re- ceiving and delivering passengers and freight, and so is not within the provisions of said act. The petition seeks to have the defendant compelled to establish a station where none has heretofore existed, while the statute merely requires the erection of suitable depot buildings at places where the railway company has already located its stations, and is in the practice of receiving and discharging passen- gers and freight. In point of fact, the attorney-general, in his argu- ment upon the rehearing, admits that there is no statute upon which his prayer for a mandamus can be based; the position now taken by him being that upon the facts alleged in the petition and admitted by the demurrer, the legal duty on the part of the defendant to establish a freight and passenger station on its line of railway in the town of Upper Alton arises by virtue of the principles of the common law. It is undoubtedly the rule that railway companies, in the absence of statutory provisions limiting and restricting their powers, are vested with a very broad discretion in the matter of locating, constructing, and operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the condition that it must be exercised in good faith, and with a due regard to the necessities and conven- ience of the public. Railway companies, though private corporations, are engaged in a business in which the public have an interest, and in which such companies are public servants, and amenable as such. This doctrine has been repeatedly announced by this and other courts. Thus, in Marsh v. Railroad Co., 64 111. 414, which was a bill for the specific performance of a contract by which the railway company agreed to locate its passenger and freight depots at a par- ticular point in a certain town, and at no other point in said town, 304 PEOPLE V. CHICAGO AND ALTON RAILROAD. we said: " This is not a case which concerns merely the private inter- ests of two suitors. It is a matter where the public interest is in- volved. Railroad companies are incorporated by authority of law, not for the promotion of mere private ends, but in view of the public good they subserve. It is the circumstance of public use which justifies the exercise on their behalf of the right of eminent domain in the taking of private property for the purpose of their construction. They have come to be almost a public necessity; the general welfare being largely dependent upon these modes of intercommunication, and the manner of carrying on their operations." In the same case, in holding that the contract there in question ought not to be specifi- cally enforced, we further said: "Railroad companies, in order to fulfil one of the ends of their creation, the promotion of the public welfare, should be left free to establish and re-establish their depots wheresoever the accommodation of the wants of the public may require. " In Railway Co. v. People, 120 111. 200, which was a petition for a mandamus to compel the railway company to repair, generally, a certain portion of its road, and to increase its passenger trains thereon, we said: "There can be no doubt of the duty of a railway company to keep its road in a reasonable state of repair, and in a safe condition. Nor is there any doubt of its duty to so operate it as to afford adequate facilities for the transaction of such business as may be offered it, or at least reasonably be expected. . . . The company, however, is given, as it should be, a very large discretion in deter- mining all questions relating to the equipment and operation of its road; hence courts, as a general rule, will not interfere with the management of railways in these respects, except where the act sought to be enforced is specific, and the right to its performance in the manner proposed is clear and undoubted." It is in recognition of the paramount duty of railway companies to establish and maintain their depots at such points, and in such man- ner, as to subserve the public necessities and convenience that it has been held by all the courts, with very few exceptions, that contracts materially limiting their power to locate and relocate their depots are against public policy, and therefore void. Railroad Co. v. Mathers, 71 111. 592; Railroad Co. v. Mathers, 104 111. 257; Bestor v. Wathen, 60 111. 138; Linder v. Carpenter, 62 111. 309; Railroad Co. v. Ryan, 11 Kas. 602; Railroad Co. v. Seely, 45 Mo. 212; Holladay v. Patter- son, 5 Or. 177; Tayl. Corp. 162, and authorities cited. We have now to consider whether in the light of the principles above laid down, a right to the relief prayed for is sufficiently shown by the petition. There can be no doubt that the act sought to be enforced (the establishment and maintenance of a freight and passen- ger station on the defendant's line of railway at a convenient point within the town of Upper Alton) is sufficiently specific to be enforced by mandamus; and it only remains to be seen whether the right to PEOPLE V. CHICAGO AND ALTON RAILROAD. 305 have its performance enforced is shown to be clear and undoubted. It should be observed that there is no controversy as to the facts ; the allegations of the petition being, for all the purposes of this appeal, conclusively admitted by the demurrer. The petition undertakes to show the public importance and neces- sity of the station asked for in two ways: First, by alleging the facts and circumstances which tend to prove it; and, secondly, by directly averring it. It cannot be doubted, we think, that the facts alleged make out a clear and strong case of public necessity. They show that Upper Alton is a town of over 1,800 inhabitants, situated on the line of the defendant's railway about midway between two other stations seven miles apart. The residents of the town and vicinity are shown to be possessed of at least the ordinary inclination to travel by railway, and it is averred that many of them have occasion and desire to travel by the defendant's railway between Upper Alton and other points on the line of said railway. Various manufacturing and other business enterprises are shown to be carried on within the town, creating a necessity for the use of said railway for the transportation of manufactured articles, merchandise, and other freights. To avail themselves of transportation upon trains which pass by their doors, the inhabitants of Upper Alton are compelled to go and transport their freights by other conveyances to a neighboring town about three and one-half miles away. Then, as we have already said, the petition directly avers, and the demurrer admits, that the accommodation of the public living in and near said town requires, and long has required, the establishment of a passenger and freight depot on the line of its road within said town. Unless, then, there is some explanation for the course pursued by the defendant which the record does not give, we cannot escape the conviction that its conduct in the premises exhibits an entire want of good faith in its efforts to perform its public functions as a common carrier, and an unwarrantable disregard of the public interests and necessities. It cannot be admitted that the discretion vested in the defendant in the matter of establishing and maintaining its freight and passenger sta- tions extends so far as to justify such manifest and admitted disre- gard of its duties to the public. "We are of the opinion that the petition shows a clear and undoubted right on the part of the public to the establishment and maintenance of a freight and passenger station on the line of the defendant's rail- way in the town of Upper Alton, and it therefore follows that the demurrer to the petition should have been overruled. 306 MOBILE & OHIO RAILROAD V. PEOPLE. MOBILE & OHIO RAILROAD v. PEOPLE. SUPREME COURT OF ILLINOIS, 1890. [132 ///. 559 : 24 N. E. 643.] SCHOLFIELD, J. 1 Railway stations for the receipt and discharge of passengers and freight are for the mutual profit and convenience of the company and the public. Their location at points most desirable for the convenience of travel and business is alike indispensable to the efficient operation of the road and the enjoyment of it as a high- way by the public. Necessarily, therefore, the company cannot be compelled, on the one hand, to locate stations at points where the cost of maintaining them will exceed the profits resulting therefrom to the company, nor allowed, on the other hand, to locate them so far apart as to practically deny to communities on the line of the road reasonable access to its use. The duty to maintain or continue sta- tions must, manifestly, rest upon the same principle, and a company cannot, therefore, be compelled to maintain or continue a station at a point where the welfare of the company and the country in general require that it should be changed to some other point. And so we have held that a railway company cannot bind itself by contract with individuals to locate and maintain stations at particular points, or to not locate and maintain them at other points. Bestor v. Wathen, 60 111. 138; Linder v. Carpenter, 62 111. 309; Marsh v. Railroad Co., 64 111. 414; Railroad Co. v. Mathers, 71 111. 592; Same Case again in 104 111. 257; Snell v. Pells, 113 111. 145. The power of election in the location of the line of the railway referred to in People v. Louisville & N. R. Co., 120 111. 48, results from the fran- chise granted by the charter to exercise the right of eminent domain, and is therefore totally different from the power of locating stations, which, from its very nature, is a continuing one. And so we said in Marsh v. Railroad Co., supra, where a bill had been filed for the spe- cific performance of a contract to locate and maintain a station at a particular part: "Railroad companies, in order to fulfil one of the ends of their creation the promotion of the public welfare should be left free to establish and re-establish their depots whereso- ever the accommodation of the wants of the public may require." And so, again, we said in Railroad Co. v. Mathers, supra: "When- ever the public convenience requires that a station on a railroad should be established at a particular point, and it can be done without detriment to the interests of the stockholders of the company, the law authorizes it to be established there, and no contract between a board of directors and individuals can be allowed to prohibit it." And in the very recent case of People v. Chicago & A. R. Co., 130 111. 175, where we awarded a mandamus commanding the location and 1 Part of the opinion only is given. ED. NORTHERN PACIFIC RAILROAD V. WASHINGTON. 307 maintaining of a station at a point where no station had before been located and maintained, we said: "It is undoubtedly the rule that railway companies, in the absence of statutory provisions limiting and restricting their powers are vested with a very broad discretion in the matter of locating, constructing, and operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the con dition that it must be exercised in good faith, and with a due regard to the necessities and convenience of the public." The rule has been so often announced by this court that it is unnecessary to cite the cases ; that a mandamus will never be awarded unless the right to have the thing done which is sought is clearly established. If the right is doubtful, the writ will be refused. The burden was on the relator to prove a case authorizing the issuing of the writ, and in our opinion that proof has not been made. . . . The judgment of the Circuit Court is reversed, and the cause is remanded to that court with direction to enter judgment for the respondent. NORTHERN PACIFIC RAILROAD v. WASHINGTON. SUPREME COURT OF THE UNITED STATES, 1892. [142 U. S. 492.] A petition in the name of the Territory of Washington, at the rela- tion of the prosecuting attorney for the county of Yakima and four other counties in the territory, was filed in the District Court of the fourth judicial district of the territory on February 20, 1885, for a mandamus to compel the Northern Pacific Railroad Company to erect and maintain a station at Yakima City, on the Cascade branch of its railroad, extending from Pasco Junction, on the Columbia River, up the valley of the Yakima River and through the county of Yakima, towards Puget Sound, and to stop its trains there to receive and deliver freight, and to receive and let off passengers. 1 Mr. JUSTICE GRAY, after stating the case as above, delivered th.-. opinion of the Court. A writ of mandamus to compel a railroad corporation to do a par- ticular act in constructing its road or buildings, or in running ilj trains, can be issued only when there is a specific legal duty on its part to do that act, and clear proof of a breach of that duty. If, as in Railroad n. Hall, 91 U. S. 343, the charter of a railroad corporation expressly requires it to maintain its railroad as a contin- uous line, it may be compelled to do so by mandamus. So if the charter requires the corporation to construct its road and to run its cars to a certain point on tide-water (as was held to be the case IP 1 Part of the statement of the case is omitted. ED. 308 NORTHERN PACIFIC RAILROAD V. WASHINGTON. State f. Railroad, 29 Conn. 538), and it has so constructed its road and used it for years, it may be compelled to continue to do so. And mandamus will lie to compel a corporation to build a bridge in accordance with an express requirement of statute. Railway v. Mis- sissippi, 112 U. S. 12; People v. Railroad, 70 N. Y. 569. But if the charter of a railroad corporation simply authorizes the corporation, without requiring it, to construct and maintain a railroad to a certain point, it has been held that it cannot be compelled by mandamus to complete or to maintain its road to that point when it would not be remunerative. Railway Co. v. Queen, 1 El. & Bl. 858; Id. 874; Com. v. Railroad, 12 Gray, 180; States. Railroad, 18 Minn. 40. The difficulties in the way of issuing a mandamus to compel the maintenance of a railroad and the running of trains to a terminus fixed by the charter itself are much increased when it is sought to compel the corporation to establish or to maintain a station and to stop its trains at a particular place on the line of its road. The loca- tion of stations and warehouses for receiving and delivering passen- gers and freight involves a comprehensive view of the interests of the public, as well as of the corporation and its stockholders, and a consideration of many circumstances concerning the amount of popu- lation and business at, or near, or within convenient access to one point or another, which are more appropriate to be determined by the directors, or, in case of abuse of their discretion, by the legis- lature, or by administrative boards intrusted by the legislature with that duty, than by the ordinary judicial tribunals. The defendant's charter, after authorizing and empowering it to locate, construct, and maintain a continuous railroad " by the most eligible route, as shall be determined by said company," within limits described in the broadest way, both as to the terminal points and as to the course and direction of the road, and vesting it with "all the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set forth," enacts that the road "shall be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turnouts, stations, and watering places, and all other appurtenances." The words last quoted are but a general expression of what would be otherwise implied by law, and cover all structures of every kind needed for the completion and maintenance of the railroad. They cannot be construed as imposing any specific duty, or as controlling the discretion in these respects of a corporation intrusted with such large discretionary powers upon the more important questions of the course and the termini of its road. The contrast between these gen- eral words and the specific requirements, which follow in the same section, that the rails shall be manufactured from American iron, and that "a uniform gauge shall be established throughout the entire length of the road," is significant. NORTHERN PACIFIC RAILROAD V. WASHINGTON. 309 To hold that the directors of this corporation, in determining the number, place, and size of its stations and other structures, having regard to the public convenience as well as to its own pecuniary interests, can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority in analogous cases. The constitution of Colorado, of 1876, art. 15, 4, provided that "all railroads shall be public highways, and all railroad companies shall be common carriers;" and that "every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad." Section 6 of the same article was as follows : "All individ- uals, associations, and corporations shall have equal rights to have persons and property transported over any railroad in this state, and no undue or unreasonable discrimination shall be made in charges or facilities for transportation of freight or passengers within the state, and no railroad company, nor any lessee, manager, or employee thereof, shall give any preference to individuals, associations, or corporations in furnishing car or motive power." The General Laws of Colorado, of 1877, c. 19, 111, authorized every railroad company "to cross, intersect, or connect its railways with any other railway," "to receive and convey persons and property on its railway," and "to erect and maintain all necessary and convenient buildings and sta- tions, fixtures and machinery, for the convenience, accommodation, and use of passengers, freights, and business interests, or which may be necessary for the construction or operation of said railway." This court held that section 6 of article 15 of the constitution of Colorado was only declaratory of the common law; that the right secured by section 4 to connect railroads was confined to their con- nection as physical structures, and did not imply a connection of business with business; and that neither the common law, nor the constitution and statutes of Colorado, compelled one railroad corpora- tion to establish a station or to stop its cars at its junction with the railroad of another corporation, although it had established a union station with the connecting railroad of a third corporation, and had made provisions for the transaction there of a joint business with that corporation. Chief Justice WAITE, in delivering the opinion, said: "No statute requires that connected roads shall adopt joint stations, or that one railroad company shall stop at or make use of the station of another. Each company in the state has the legal right to locate its own stations, and, so far as statutory regulations are concerned, is not required to use any other. A railroad company is prohibited, both by the common law and by the constitution of Colorado, from discriminating unreasonably in favor of or against another company seeking to do business on its road; but that does not necessarily imply that it must stop at the junction of one and interchange business there because it has established joint depot accommodations and provided facilities for doing a connecting busi- 310 NORTHERN PACIFIC RAILROAD V. WASHINGTON. ness with another company at another place. A station may be established for the special accommodation of a particular customer; but we have never heard it claimed that every other customer could, by a suit in equity, in the absence of a statutory or contract right, compel the company to establish a like station for his special accom- modation at some other place. Such matters are, and always have been, proper subjects for legislative consideration, unless prevented by some charter contract; but, as a general rule, remedies for in- justice of that kind can only be obtained from the legislature. A court of chancery is not, any more than is a court of law, clothed with legislative power." Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 681, 682. The Court of Appeals of New York, in a very recent case, refused to grant a mandamus to compel a railroad corporation to construct and maintain a station and warehouse of sufficient capacity to accom- modate passengers and freight at a village containing 1,200 inhabi- tants, and furnishing to the .defendant at its station therein a large freight and passenger business, although it was admitted that its present building at that place was entirely inadequate; that the absence of a suitable one was a matter of serious damage to large numbers of persons doing business at that station; that the railroad commissioners of the state, after notice to the defendant, had adjudged and recommended that it should construct a suitable building there within a certain time; and that the defendant had failed to take any steps in that direction, not for want of means or ability, but because its directors had decided that its interests required it to postpone doing so. The court, speaking by Judge DANFORTH, while recogniz- ing that " a plainer case could hardly be presented of a deliberate and intentional disregard of the public interest and the accommoda- tion of the public," yet held that it was powerless to interpose, be- cause the defendant, as a carrier, was under no obligation, at common law, to provide warehouses for freight offered, or station-houses for passengers waiting transportation, and no such duty was imposed by the statutes authorizing companies to construct &nd maintain railroads "for public use in the conveyance of persons and property," and to erect and maintain all necessary and convenient buildings and stations "for the accommodation and use of their passengers, freight, and business," and because, under the statutes of New York, the proceedings and determinations of the railroad commissioners amounted to nothing more than an inquest for information, and had no effect beyond advice to the railroad company and suggestion to the legislature, and could not be judicially enforced. The court said: " As the duty sought to be imposed upon the defendant is not a specific duty prescribed by statute, either in terms or by reasonable construction, the court cannot, no matter how apparent the necessity, enforce its performance by mandamus. It cannot compel the erection of a station-house, nor the enlargement of one." "As to that, the NORTHERN PACIFIC RAILROAD V. WASHINGTON. 311 statute imports an authority only, not a command, to be availed of at the option of the company in the discretion of its directors, who are empowered by statute to manage k its affairs,' among which must be classed the expenditure of money for station buildings or other structures for the promotion of the convenience of the public, hayjng regard also to its own interest. With the exercise of that discretion the legislature only can interfere. No doubt, as the respondent urges, the court may by mandamus also act in certain cases affecting corporate matters, but only where the duty concerned is specific and plainly imposed upon the corporation." "Such is not the case before us. The grievance complained of is an obvious one, but the burden of removing it can be imposed upon the defendant only by legisla- tion. The legislature created the corporation upon the theory that its functions should be exercised for the public benefit. It may add other regulations to those now binding it, but the court can interfere only to enforce a duty declared by law. The one presented in this case is not of that character; nor can it by any fair or reasonable construction be implied." People v. Railroad, 104 N. Y. 58, 66, 67. In Com. v. Railroad, the Supreme Judicial Court of Massachusetts, in holding that a railroad corporation, whose charter was subject to amendment, alteration, or repeal at the pleasure of the legislature, might be required by a subsequent statute to construct a station and stop its trains at a particular place on its road, said: "If the direc- tors of a railroad were to find it for the interest of the stockholders to refuse to carry any freight or passengers except such as they might take at one end of the road and carry entirely through to the other end, and were to refuse to establish any way stations, or do any way business for that reason, though the road passed for a long distance through a populous part of the state, this would be a case manifestly requiring and authorizing legislative interference under the clause in question ; and on the same ground, if they refuse to provide rea- sonable accommodation for the people of any smaller locality, the legislature may reasonably alter and modify the discretionary power which the charter confers upon the directors, so as to make the duty to provide the accommodation absolute. Whether a reasonable ground for interference is presented in any particular case is for the legislature to determine, and their determination on this point must be conclusive." 103 Mass. 254, 258. Upon the same principle, the Supreme Judicial Court of Maine compelled a railroad corporation to build a station at a specified place on its road in accordance with an order of railroad commis- sioners, expressly empowered by the statutes of the state to make such an order, and to apply to the court to enforce it. Laws Me. 1871, c. 204; Commissioners v. Portland & O. R. Co., 63 Me. 270. In Railway Co. v. Commissioners, a railway company was held by Lord Chancellor SELBORNE, Lord Chief Justice COLERIDGE, and Lord Justice BRETT, in the English Court of Appeal, to be under no obliga 312 NORTHERN PACIFIC RAILROAD V. WASHINGTON. tion to establish stations at any particular place or places unless it thought fit to do so, and was held bound to afford improved facilities for receiving, forwarding, and delivering passengers and goods at a station once established and used for the purpose of traffic only so far as it had been ordered to afford them by the railway commis- sioners, within powers expressly conferred by Act of Parliament. 6 Q. B. Div. 586, 592. The decision in State v. Railroad Co., 17 Neb. 647, cited in the opinion below, proceeded upon the theory (inconsistent with the judgments of this court in Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., and of the Court of Appeals of New York in People v. Railroad Co., above stated) that, independently of any statute re- quirements, a railroad corporation might be compelled to establish a station and to stop its trains at any point on the line of its road at which the court thought it reasonable that it should. The opinions of the Supreme Court of Illinois, though going fur- ther than those of most other courts in favor of issuing writs of mandamus to railroad corporations, afford no countenance for grant- ing the writ in the case at bar. In People v. Railroad Co., 120 111. 48, a mandamus was issued to compel the company to run all its passenger trains to a station which it had once located and used in a town made a terminal point by the charter, and which was a county seat, because the corporation had no legal power to change its loca- tion, and was required by statute to stop all trains at a county seat. In People v. Railroad Co., 130 111. 175, in which a mandamus was granted to compel a railroad company to establish and maintain a station in a certain town, the petition for the writ alleged specific facts making out a clear and strong case of public necessity, and also alleged that the accommodation of the public living in or near the town required, and long had required, the establishment of a station on the line of the road within the town; and the decision was that a demurrer to the petition admitted both the specific and the general allegations, and must therefore be overruled. The court, at pages 182, 183, of that case, and again in Railroad Co. v. People, 132 111. 559, 571, said: "It is undoubtedly the rule that railway com- panies, in the absence of statutory provisions limiting and restrict- ing their powers, are vested with a very broad discretion in the matter of locating, constructing, and operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the condi- tion that it must be exercised in good faith, and with a due regard to the necessities and convenience of the public." But in the latter case the court also said: "The company cannot be compelled, on the one hand, to locate stations at points where the cost of maintaining them will exceed the profits resulting therefrom to the company, nor allowed, on the other hand, to locate them so far apart as to practi- cally deny to communities on the Hue of the road reasonable access to NORTHERN PACIFIC RAILROAD V. WASHINGTON. 313 its use. The duty to maintain or continue stations must manifestly rest upon the same principle, and a company cannot, therefore, be compelled to maintain or continue a station at a point when the welfare of the company and the community in general requires that it should be changed to some other point." Page 570. "The rule has been so often announced by this court that it is unnecessary to cite the cases, that a mandamus will never be awarded unless the right to have the thing done which is sought is clearly established." Page 572. And upon these reasons the writ was refused. Section 691 of the Code of Washington Territory of 1881, follow- ing the common law, defines the cases in which a writ of mandamus may issue as "to any inferior court, corporation, board, officer, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." By the same code, in mandamus, as in civil actions, issues of fact may be tried by a jury; the verdict may be either general or special, and, if special, may be in answer to questions submitted by the court ; and material allegations of the plaintiff not denied by the answer, as well as material allegations of new matter in the answer not denied in the replication, are deemed admitted, but a qualified admission cannot be availed of by the other party, except as qualified. Sections 103, 240, 242, 694, 696; Breemer v. Burgess, 2 Wash. T. 290, 296; Gil- dersleeve v. Landon, 73 N. Y. 609. The replication filed in this case, not being copied in the record sent up, may be assumed, as most favorable to the defendant in error, to have denied all allegations of new matter in the answer. The leading facts of this case, then, as appearing by the special verdict, taken in connection with the admissions, express or implied, in the answer, are as follows: The defendant at one time stopped its trains at Yakima City, but never built a station there, and, after com- pleting its road four miles further, to North Yakima, established a freight and passenger station at North Yakima, which was a town laid out by the defendant on its own unimproved land, and thereupon ceased to stop its trains at Yakima City. In consequence, appar- ently, of this, Yakima City, which at the time of filing the petition for mandamus was the most important town, in population and busi- ness, in the county, rapidly dwindled, and most of its inhabitants removed to North Yakima, which at the time of the verdict had be- come the largest and most important town in the county. No other specific facts as to North Yakima are admitted by the parties or found by the jury. The defendant could build a station at Yakima City, but the cost of building one would be $8,000, and the expense of maintaining it $150 a month, and the earnings of the whole of this division of the defendant's road are insufficient to pay its run- ning expenses. The special verdict includes an express finding (which appears to us to be of pure matter of fact, inferred from various cir- cumstances, some of which are evidently not specifically found, and 314 NORTHERN PACIFIC RAILROAD V. WASHINGTON. to be in no sense, as assumed by the court below, a conclusion of law) that there are other stations for receiving freight and passengers between North Yakima and Pasco Junction, which furnish sufficient facilities for the country south of North Yakirna, which must include Yakima City, as well as an equally explicit finding (which appears to have been wholly disregarded by the court below) that the passen- ger and freight traffic of the people living in the surrounding country, considering them as a community, would be better accommodated by a station at North Yakima than by one at Yakima City. It also appears of record that, after the verdict and before the district court awarded the writ of mandamus, the county seat was removed, pur- suant to an act of the territorial legislature, from Yakima City to North Yakima. The mandamus prayed for being founded on a suggestion that the defendant had distinctly manifested an intention not to perform a definite duty to the public, required of it by law, the petition was rightly presented in the name of the territory at the relation of its prosecuting attorney (Attorney-General v. Boston, 123 Mass. 460, 471); Code Wash. T. 2171); and no demand upon the defendant was necessary before applying for the writ (Com. v. Commissioners, 37 Pa. St. 237 ; State v. Board, 38 N. J. Law, 259 ; Mottu v. Prim- rose, 23 Md. 482; Attorney-General v. Boston, 123 Mass. 460, 477). But upon the facts found and admitted no sufficient case is made for a writ of mandamus, even if the court could, under any circum- stances, issue such a writ for the purpose set forth in the petition. The fraudulent and wrongful intent charged against the defendant in the petition is denied in the answer, and is not found by the jury. The fact that the town of North Yakima was laid out by the defend- ant on its own land cannot impair the right of the inhabitants of that town, whenever they settled there, or of the people of the surrounding country, to reasonable access to the railroad. No ground is shown for requiring the defendant to maintain stations both at Yakima City and at North Yakima; there are other stations furnishing suffi- cient facilities for the whole country from North Yakima southward to Pasco Junction; the earnings of the division of the defendant's road between those points are insufficient to pay its running expenses; and to order the station to be removed from North Yakima to Yakima City would inconvenience a much larger part of the public than it would benefit, even at the time of the return of the verdict; and, before judgment in the district court, the legislature, recognizing that the public interest required it, made North Yakima the county seat. The question whether a mandamus should issue to protect the interest of the public does not depend upon a state of facts existing when the petition was filed, if that state of facts has ceased to exist when the final judgment is rendered. In this regard, as observed by Lord Chief Justice JERVIS in Railway Co. v. Queen, already cited, "there is a very great difference between an indictment for no* CONCORD, ETC. KAILUOAD V. BOSTON AND MAINE KAILliOAD. 315 fulfilling a public duty, and a mandamus commanding the party liable to fulfil it." 1 El. & Bl. 878. The court will never order a railroad station to be built or maintained contrary to the public in- terest. T. & P. Railway ?;. Marshall, 136 U. S. 393. For the reasons above stated, the judgment of the Supreme Court of the territory must be reversed, and the case remanded, with direc- tions to enter judgment for the defendant, dismissing the petition; and, Washington having been admitted into the Union as a state by Act of Congress passed while this writ of error was pending in this court, the mandate will be directed as the nature of the case requires, to the Supreme Court of the state of Washington. Act Feb. 22, 1889, c. 180, 22, 23 (25 St. 682, 683). Judgment reversed, and mandate accordingly. Mr. JUSTICE BREWER (with whom concurred Mr. Justice Field and Mr. Justice Harlan), dissenting. CONCORD AND MONTREAL RAILROAD v. BOSTON AND MAINE RAILROAD. SUPREME COURT OF NEW HAMPSHIRE, 1893. [67 N. H. 465.] PETITION, for the location of a union station at Manchester. All the parties desire the erection of such a station, which, it is conceded, the public good requires ; but they are unable to agree upon a location. The defendants claim that the court has no jurisdiction. PER CURIAM. The legislature has not authorized the railroad com- missioners to locate railroad stations (P. S., c. 155, 11-23, c. 159, 21, 22), and no other tribunal is directly invested with that power. It is conceded that the public good requires that there should be a union passenger station in the city of Manchester, to be used b}' the railroads connecting at that point, for the accommodation of the public as well as for their own convenience and advantage. From this con- cession it necessarily follows that it is the legal duty of the parties to locate, erect, and maintain such a depot as public necessity requires. The fact that they are unable to agree upon a suitable location does not relieve them from that duty ; and the question is, whether this obligation is an unenforceable one in the absence of express legislation upon the subject, or whether the right, which each has in the perform- ance of its public function, to locate a union station at a reasonably convenient point cannot be vindicated and enforced by the orders and decrees of this court. The right of these parties and the public to have the union sta- 316 JONES V. NEWPORT NEWS AND MISSISSIPPI VALLEY CO. tion at Manchester located in the proper place is a legal right, the enforcement of which is not prevented by the circumstance that the remedial power is not conferred upon a tribunal of special and limited jurisdiction. It is a right which can be judicially determined at the trial term upon a petition or bill in equity seeking such relief. The procedure will be such as is considered most appropriate for the work to be done. Walker v. Walker, 63 N. H. 321. Case discharged. 1 JONES v. NEWPORT NEWS & MISSISSIPPI VALLEY CO. CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT, 1895. [65 Fed. 736. 2 ] ACTION by H. M. Jones against the Newport News & Mississippi Valley Company for injury to and discontinuance of a railroad switch to plaintiff's warehouse. A demurrer was sustained to that part of the petition which claimed damages for discontinuance of the switch, and plaintiff brings error. TAFT, Circuit Judge. Plaintiff bases his claim for damages First, on the violation of an alleged common-law duty; and, second, on the breach of a contract. 1. The proposition put forward on plaintiff's behalf is that when a railroad company permits a switch connection to be made between its line and the private warehouse of any person, and delivers mer- chandise over it for years, it becomes part of the main line of the railroad, and cannot be discontinued or removed, and this on common-law principles and without the aid of a statute. It may be safely assumed that the common law imposes no greater obligation upon a common carrier with respect to a private individual than with respect to the public. If a railroad company may exercise its dis- cretion to discontinue a public station for passengers or a public ware- house for freight without incurring any liability or rendering itself subject to judicial control, it would seem necessarily to follow that it may exercise its discretion to establish or discontinue a private warehouse for one customer. In Northern Pac. Ry. Co. v. Washington, 142 U. S. 492, it was held that & mandamus would not lie to compel a railroad company to establish a station and stop its trains at a town at which for a time it did stop its trains and deliver its freight. In Com. v. Fitchburg R. Co., 12 Gray, 180, it was attempted to compel a railroad company to run regular passenger trains over cer- l Compare: R. R. v. Commissioners, 6 Q. B. D. 586; P. r. 'R. R., 120 111. 48; Commissioners r. R. R., 63 Me. 273 ; P. v. R. R., 104 N. Y. 58. ED. * This case is Abridged. ED. JONES V. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 317 tain branch lines upon which they had been run for a long time, but had been discontinued because they were unremuuerative. The court held that mandamus would not lie because the maintenance of such facilities was left to the discretion of the directors. 1 It is true that the foregoing were cases of mandamus, and that the court exercises a discretion in the issuance of that writ which cannot enter into its judgment in an action for damages for a breach of duty. But the cases show that the reason why the writ cannot go is because there is no legal right of the public at common law to have a station established at any particular place along the line, or to object to a discontinuance of a station after its establishment. They make it clear that the directors have a discretion in the interest of the public and the company to decide where stations shall be, and where they shall remain, and that this discretion cannot be controlled in the absence of statutory provision. Such uncontrollable discretion is utterly inconsistent with the existence of a legal duty to maintain a station at a particular place, a breach of which can give an action for damages. If the directors have a discretion to establish and discon- tinue public stations, a fortiori have they the right to discontinue switch connections to private warehouses. The switch connection and transportation over it may seriously interfere with the conven- ience and safety of the public in its use of the road. It may much embarrass the general business of the company. It is peculiarly within the discretion of the directors to determine whether it does so or not. At one time in the life of the company, it may be useful and .consistent with all the legitimate purposes of the company. A change of conditions, an increase in business, a necessity for travel at higher speed, may make such a connection either inconvenient or dangerous, or both. We must therefore dissent altogether from the proposition that the establishment and maintenance of a switch con- nection of the main line to a private warehouse for any length of time can create a duty of the railroad company at common law forever to maintain it. There is little or no authority to sustain it. The latest of the Illinois cases which are relied upon is based upon a constitutional provision which requires all railroad companies to permit connections to be made with their track, so that the con- signee of grain and any public warehouse, coal bank, or coal yard may be reached by the cars of said railroad. The supreme court of that state has held that the railroad company has a discretion to say in what particular manner the connection shall be made with its main track, but that this discretion is exhausted after the completion of the switch and its use without objection for a number of years. Railroad Co. v. Stiffern, 129 111. 274. But this is very far from holding that there is any common-law liability to maintain a side track forever 1 An extract from the opinion in Ry. ?. Washington is omitted. The Court also cited Peo. v. N. Y. L. E. & W. R. R., 104 N. Y. 58 ; Florida, C. & P. R. R. v. State, 31 Fla. 482. ED. 318 JONES 1). NEWPORT NEWS A MISSISSIPPI VALLEY CO. after it has once been established. The other Illinois cases (Vincent v. Railroad Co., 49 111. 33; Chicago & N. W. Ry. Co. v. People, 56 111. 365) may be distinguished in the same way. They depended on stat- utory obligations, and were not based upon the common law, though there are some remarks in the nature of obiter dicta which gives color to plaintiff's contention. But it will be seen by reference to Mr. Justice GRAY'S opinion, already quoted from, that the Illinois cases have exercised greater power than most courts in controlling the discretion of railroads in the conduct of their business. In Barre R. Co. v. Montpelier & W. R. Co., 61 Vt. 1, the question was one of condemnation. The law forbade one railroad company to condemn the line of another road, and the question was whether the side tracks of the railroad company, which, with the consent of the owners of the granite quarry, ran into a quarry in which a great busi- ness was done, were the line of the railroad within the meaning of the statute. It was held that they were so far as to impose obligations on and create exemptions in favor of the railroad company operating the side tracks. We may concede, for the purpose of this case, without deciding, that, as long as a railroad company permits a side track to be connected with its main line for the purpose of delivering merchandise in car-load lots to the owner of the side track, the obli- gation of the railroad company is the same as if it were delivering these cars at its own warehouse, on its own side track. But this we do not conceive to be inconsistent with the right of the directors of the railroad company, exercising their discretion in the conduct of the business of the company for the benefit of the public and the shareholders, to remove a side-track connection. The recital of the facts in the petition in this case is enough to show that the switch connection of the plaintiff was one of probable or possible danger to the public using the railroad, and to justify its termination for that reason. It was made on a high fill, on the approach to a bridge across a stream, and the switch track ran on to a trestle 15 feet above the ground, and terminating in the air. Even if the discretion reposed in the directors to determine where switch connections shall be made or removed were one for the abuse of which an action for damages would lie, the petition would be defective, be- cause it does not attempt in any way to negative the dangerous char- acter of the switch which the facts stated certainly suggest as a good ground for the action of the company complained of. ... The judgment of the circuit court is affirmed, with coste. CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 319 CHICAGO AND NORTHWESTERN s RAILROAD v. PEOPLE. SUPREME COURT OF ILLINOIS, 1870. [56 ///. 365.] MR. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court : This was an application for a mandamus, on the relation of the owners of the Illinois River elevator, a grain warehouse in the city of Chicago, against the Chicago and Northwestern Railroad Company. The relators seek by the writ to compel the railway company to deliver to said elevator whatever grain in bulk may be consigned to it upon the line of its road. There was a return duly made to the alternative writ, a demurrer to the return, and a judgment pro forma upon the demurrer, directing the issuing of a peremptory writ. From that judg- ment the railway company has prosecuted an appeal. The facts as presented by the record are briefly as follows : The company has freight and passenger depots on the west side of the north branch of the Chicago River, north of Kinzie Street, for the use, as we understand the record and the maps which are made a part thereof, of the divisions known as the Wisconsin and Milwaukie divi- sions of the road, running in a northwesterly direction. It also has depots on the east side of the north branch, for the use of the Galena division, running westerly. It has also a depot on the south branch near Sixteenth Street, which it reaches by a track diverging from the Galena line on the west side of the city. The map indicates a line running north from Sixteenth Street the entire length of West Water Street, but we do not understand the relators to claim their elevator should be approached by this line, as the respondent has no interest in this line south of Van Buren Street. Under an ordinance of the city, passed August 10, 1858, the Pitts- burgh, Fort Wayne, and Chicago Companj-, and the Chicago, St. Paul, and Fond Du Lac Company (now merged in the Chicago and North- western Company) constructed a track on West Water Street, from Van Buren Street north to Kinzie Street, for the purpose of forming a con- nection between the two roads. The Pittsburgh, Fort Wayne, and Chicago Company laid the track from Van Buren to Randolph Street, and the Chicago, St. Paul, and Fond Du Lac Company, that portion of the track from Randolph north to its own depot. These different portions of the track were, however, constructed by these two com- panies, by an arrangement between themselves, the precise character of which does not appear, but it is to be inferred from the record that they have a common right to the use of the track from Van Buren Street to Kinzie, and do in fact use it in common. The elevator of the rela- tors is situated south of Randolph Street, and north of Van Buren, and is connected with the main track by a side track laid b} r the Pittsburgh Company, at the request and expense of the owners of the elevator, and connected at each end with the main track. 320 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. Since the 10th of August, 1866, the Chicago and Northwestern Com- pany, in consequence of certain arrangements and agreements on and before that day entered into between the company and the owners of certain elevators, known as the Galena, Northwestern, Munn & Scott, Union, City, Munger and Armor, and Wheeler, has refused to deliver grain in bulk to any elevator except those above named. There is also in force a rule of the company, adopted in 1864, forbidding the carriage of grain in bulk, if consigned to any particular elevator in Chicago, thus reserving to itself the selection of the warehouse to which the grain should be delivered. The rule also provides that grain in bags shall be charged an additional price for transportation. This rule is still in force. The situation of these elevators, to which alone the company will deliver grain, is as follows : The Northwestern is situated near the depot of the Wisconsin division of the road, north of Kinzie Street ; the Munn & Scott on West Water Street, between the elevator of rela- tors and Kinzie Street ; the Union and City near Sixteenth Street, and approached only by the track diverging from the Galena division, on the west side of the city, already mentioned ; and the others are on the east side of the north branch of the Chicago River. The Munn & Scott elevator can be reached only by the line laid on West Water Street, under the city ordinance already mentioned ; and the elevator of rela- tors is reached in the same way, being about four and a half blocks further south. The line of the Galena division of the road crosses the line on West Water Street at nearly a right angle, and thence crosses the North Branch on a bridge. It appears by the return to the writ, that a car coming into Chicago on the Galena division, in order to reach the elevator of relators, would have to be taken by a drawbridge across the river on a single track, over which the great mass of the business of the Galena division is done, then backed across the river again upon what is known as the Milwaukie division of respondent's road, thence taken to the track on West Water Street, and the cars, when unloaded, could only be taken back to the Galena division by a similar, but reversed, process, thus necessitating the passage of the drawbridge, with only a single line, four times, and, as averred in the return subjecting the company to great loss of time and pecuniary damage in the delay that would be caused to its regular trains and business on that division. This seems so apparent that it cannot be fairly claimed the elevator of relators is upon the line of the Galena division, in any such sense as to make it obligatory upon the company to deliver upon West Water Street freight coming over that division of the road. The doctrine of the Vincent Case, in 49 111., was, that a railway company must deliver grain to any elevator which it had allowed, by a switch, to be connected with its own line. This rule has been reaffirmed in an opinion filed at the present term, in the case of The People ex rel. Hempstead ?'. The Chi. & Alton R. R. Cornpan}', 5o 111. 95, but in the last case we have CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 321 also held that a railway company cannot be compelled to deliver beyond its own line simply because there are connecting tracks over which it might pass by paying track service, but which it has never made a part of its own line by use. So far as we can judge from this record, and the maps showing the railway lines and connections, filed as a part thereof, the Wisconsin and Milwaukie divisions, running northwest, and the Galena division, running west, though belonging to the same corporation and having a common name, are, for the purposes of transportation, substantially different roads, constructed under different charters, and the track on West Water Street seems to have been laid for the convenience of the Wisconsin and Milwaukie divisions. It would be a harsh and unrea- sonable application of the rule announced in the Vincent Case, and a great extension of the rule bej'ond anything said in that case, if we were to hold that these relators could compel the company to deliver at their elevator grain whicli has been transported over the Galena divi- sion, merely because the delivery is physically possible, though causing great expense to the company and a great derangement of its general business, and though the track on West Water Street is not used by the company in connection with the business of the Galena division. What we have said disposes of the case so far as relates to the deliver}* of grain coming over the Galena division of respondent's road. As to such grain, the mandamus should not have been awarded. When, however, we examine the record as to the connection between the relators' elevator and the Wisconsin and Milwaukie divisions of respondent's road, we find a very different state of facts. The track on West Water Street is a direct continuation of the line of the Wisconsin and Milwaukie division ; cars coming on this track from these divisions do not cross the river. The Munn & Scott elevator, to which the re- spondent delivers grain, is, as already stated, upon a side track con- nected with this track. The respondent not only uses this track to deliver grain to the Munn & Scott elevator, but it also delivers lumber and other freight upon this track, thus making it not only legally, but actuall}', by positive occupation, a pai't of its road. The respondent, in its return, admits in explicit terms, that it has an equal interest with the Pittsburgh, Fort Wayne, and Chicago Railroad in the track laid in West Water Street. It also admits its use ; and the only allegation made in the return for the purpose of showing any difficulty in deliver- ing to relators' elevator the grain consigned thereto from the Wisconsin and Milwaukie divisions, is, that those divisions connect with the line on West Water Street only by a single track, and that respondent can- not deliver bulk grain or other freight to the elevator of relators, even from those divisions, without large additional expense, caused by the loss of the use of motive power, labor of servants, and loss of use of cars, while the same are being delivered and unloaded at said elevator and brought back. As a reason for non-deliveiy on the ground of diffi- culty, this is simply frivolous. The expense caused by the loss of the 21 322 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. use of motive power, labor, and cars, while the latter are being taken to their place of destination and unloaded, is precisely the expense for which the company is paid its freight. It has constructed this line on West Water Street, in order to do the very work which it now, in general terms, pronounces a source of large additional expense ; yet it does not find the alleged additional expense an obstacle in the way of delivering grain upon this track at the warehouse of Munn & Scott, or delivering other freights to other persons than the relators. Indeed, it seems evident, from the diagrams attached to the record, that three of the elevators, to which the respondent delivers grain, are more difficult of access than that of the relators, and three of the others have no appreciable advantage in that respect, if not placed at a decided dis- advantage by the fact that they can be reached only by crossing the river. We presume, however, from the argument that the respondent's counsel place no reliance upon this allegation of additional expense, so far as the Wisconsin and Milwaukie divisions are concerned. The}' rest the defence on the contracts made between the company and the elevators above named, for exclusive delivery to the latter to the extent of their capacity. This brings us to the most important question in the case. Is a contract of this character a valid excuse to the company for refusing to deliver grain to an elevator, upon its lines and not a party to the contract, to which such grain has been consigned? In the oral argument of this case it was claimed, by counsel for the respondent, that a railway company was a mere private corporation, and that it was the right and duty of its directors to conduct its busi- ness merely with reference to the pecuniary interests of the stockholders. The printed arguments do not go to this extent, in terms, but they are colored throughout by the same idea, and in one of them we find coun- sel applying to the Supreme Court of the United States, and the Supreme Court of Pennsylvania, language of severe, and almost contemptuous, disparagement, because those tribunals have said that " a common car- rier is in the exercise of a sort of public office." N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 381 ; Sanford v. Railroad Co., 24 Pa. 380. If the language is not critically accurate, perhaps we can pardon these courts, when we find that substantially the same language was used by Lord HOLT, in Coggs v. Bernard, 2 Lord Raymond, 909, the leading case in all our books on the subject of bailments. The language of that case is, that the common carrier " exercises a public employment." We shall engage in no discussion in regard to names. It is immate- rial whether or not these corporations can be properly said to be in the exercise of " a sort of public office," or whether the}' are to be styled private, or quasi public corporations. Certain it is, that they owe some important duties to the public, and it only concerns us now to ascertain the extent of these duties as regards the case made upon this record. It is admitted by respondent's counsel that railway companies are CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 323 common carriers, though even that admission is somewhat grudgingly made. Regarded merely as a common carrier at common law, and in- dependently of any obligations imposed by the acceptance of its charter, it would owe important duties to the public, from which it could not release itself, except with the consent of every person who might call upon it to perform them. Among these duties, as well defined and settled as anything in the law, was the obligation to receive and carry goods for all persons alike, without injurious discrimination as to terms, and to deliver them in safety to the consignee, unless prevented by the act of God or the public enemy. These obligations grew out of the relation voluntarily assumed by the carrier toward the public, and the requirements of public policy, and so important have they been deemed that eminent judges have often expressed their regret that common carriers have ever been permitted to vary their common-law liability, even by a special contract with the owner of the goods. Regarded, then, merely as a common carrier at common law, the respondent should not be permitted to say it will deliver goods at the warehouse of A and B, but will not deliver at the warehouse of C, the latter presenting equal facilities for the discharge of freight, and being accessible on respondent's line. But railway companies may well be regarded as under a higher obligation, if that were possible, than that imposed by the common law, to discharge their duties to the public as common carriers fairly and impartially. As has been said by other courts, the State has endowed them with something of its own sovereignty, in giving them the right of eminent domain. B}* virtue of this power they take the lands of the citizen against his will, and can, if need be, demolish his house. Is it supposed these great powers were granted merely for the private gain of the corporators? On the contrary, we all know the companies were created for the public good. The object of the legislature was to add to the means of travel and commerce. If, then, a common carrier at common law came under obligations to the public from which he could not discharge himself at his own volition, still less should a railway company be permitted to do so, when it was created for the public benefit, and has received from the public such extraordinary privileges. Railway charters not only give a perpetual existence and great power, but they have been con- stantly recognized by the courts of this country as contracts between the companies and the State, imposing reciprocal obligations. The courts have always been, and we trust always will be, read}- to protect these companies in their chartered rights, but, on the other hand, we should be equally ready to insist that the}' perform faithfully to the public those duties which were the object of their chartered powers. "We are not, of course, to be understood as saying or intimating that the legislature, or the courts, may require from a railway company the performance of any and all acts that might redound to the public benefit, 324 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. without reference to the pecuniary welfare of the company itself. We hold simply that it must perform all those duties of a common carrier to which it knew it would be liable when it sought aqd obtained its charter, and the fact that the public has bestowed upon it extraordi- nary powers is but an additional reason for holding it to a complete performance of its obligations. The duty sought to be enforced in this proceeding is the delivery of grain in bulk to the warehouse to which it is consigned, such warehouse being on the line of the respondent's road, with facilities for its delivery equal to those of the other warehouses at which the company does deliver, and the carriage of grain in bulk being a part of its regular business. This, then, is the precise question decided in the Vincent Case, in 49 111., and it is unnecessary to repeat what was there said. We ma}' remark, however, that, as the argument of counsel necessaril}' brought that case under review, and as it was decided before the re- organization of this court under the new constitution, the court as now constituted has re-examined that decision, and fully concurs therein. That case is really decisive of the present, so far as respects grain transported on the Wisconsin and Milwaukie divisions of respondent's road. The only difference between this and the Vincent Case is in the existence of the contract for exclusive delivery to the favored ware- houses, and this contract can have no effect when set up against a person not a party to it, as an excuse for not performing toward such person those duties of a common carrier prescribed by the common law, and declared by the statute of the State. The contract in question is peculiar!}- objectionable in its character, and peculiarly defiant of the obligations of the respondent to the public as a common carrier. If the principle implied in it were conceded, the railway companies of the State might make similar contracts with indi- viduals at every important point upon their lines, and in regard to other articles of commerce besides grain, and thus subject the business of the State almost wholly to their control, as a means of their own emolument. Instead of making a contract with several elevators, as in the present case, each road that enters Chicago might contract with one alone, and thus give to the owner of such elevator an absolute and complete monopoly in the handling of all the grain that might be transported over such road. So, too, at every important town in the interior, each road might contract that all the lumber carried by it should be con- signed to a particular yard. How injurious to the public would be the creation of such a system of organized monopolies in the most important articles of commerce, claiming existence under a perpetual charter from the State, and, by the sacredness of such charter, claiming also to set the legislative will itself at defiance, it is hardly worth while to specu- fate. It would be difficult to exaggerate the evil of which such a system would be the cause, when fully developed, and managed by unscrupulous hands. Can it be seriously doubted whether a contract, involving such a CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 325 principle, and such results, is in conflict with the duties which the company owes to the public as a common carrier? The fact that a contract has been made is really of no moment, because, if the com- pany can bind the public by a contract of this sort, it can do the same thing by a mere regulation of its own, and say to these relators that it will not deliver at their warehouse the grain consigned to them, because it prefers to deliver it elsewhere. The contract, if vicious in itself, so far from excusing the road, only shows that the policy of delivering grain exclusively at its chosen warehouses is a deliberate policy, to be followed for a term of years, during which these contracts run. It is, however, urged very strenuously by counsel for the respondent, that a common carrier, in the absence of contract, is bound to carry and deliver only according to the custom and usage of his business ; that it depends upon himself to establish such custom and usage ; and that the respondent, never having held itself out as a carrier of grain in bulk, except upon the condition that it may itself choose the consignee, this has become the custom and usage of its business, and it cannot be required to go beyond this limit. In answer to this position, the fact that the respondent has derived its life and powers from the people, through the legislature, comes in with controlling force. Admit, if the respondent were a private association, which had established a line of wagons, for the purpose of carrying grain from the Wisconsin boundary to the elevator of Munn & Scott in Chicago, and had never offered to carry or deliver it elsewhere, that it could not be compelled to depart from the custom or usage of its trade. Still the admission does not aid the respondent in this case. In the case supposed, the carrier would establish the terminal points of his route at his own discretion, and could change them as his interests might demand. He offers him- self to the public only as a common carrier to that extent, and he can abandon his first line and adopt another at his own volition. If he should abandon it, and, instead of offering to carry grain only to the elevator of Munn & Scott, should offer to carry it generally to Chicago, then he would clearly be obliged to deliver it to any consignee in Chicago, to whom it might be sent and to whom it could be delivered, the place of delivery being upon his line of carriage. In the case before us, admitting the position of counsel that a com- mon carrier establishes his own line and terminal points, the question arises, at what time and how does a railway company establish them? We answer, when it accepts from the legislature the charter which gives it life, and by virtue of such acceptance. That is the point of time at which its obligations begin. It is then that it holds itself out to the world as a common carrier, whose business will begin as soon as the road is constructed upon the line which the charter has fixed. Suppose this respondent had asked from the legislature a charter au- thorizing it to carry grain in bulk to be delivered only at the elevator of Munn & Scott, and nowhere else in the city of Chicago. Can an}' one suppose such charter would have been granted ? The supposition is 326 CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. preposterous. But, instead of a charter making a particular elevator the terminus and place of delivery, the legislature granted one which made the city of Chicago itself the terminus, and when this charter was ac- cepted there at once arose, on the part of the respondent, the corre- sponding obligation to deliver grain at any point within the city of Chicago, upon its lines, with suitable accommodations for receiving it, to which such grain might be consigned. Perhaps grain in bulk was not then carried in cars, and elevators may not have been largely intro- duced. But the charter was granted to promote the conveniences of commerce, and it is the constant duty of the respondent to adapt its agencies to that end. When these elevators were erected in Chicago, to which the respondent's line extended, it could only carry out the obligations of its charter by receiving and delivering to each elevator whatever grain might be consigned to it, and it is idle to say such obligation can be evaded by the claim that such delivery has not been the custom or usage of respondent. It can be permitted to establish no custom inconsistent with the spirit and object of its charter. It is claimed by counsel that the charter of respondent authorizes it to make such contracts and regulations as might be necessary in the transaction of its business. But certainly we cannot suppose the legis- lature intended to authorize the making of such rules or contracts as would defeat the very object it had in view in granting the charter. The company can make such rules and contracts as it pleases, not in- consistent with its duties as a common carrier, but it can go no further, and any general language which its charter may contain must neces- sarily be construed with that limitation. In the case of The Cit}* of Chicago v. Rumpff, 45 111. 94, this court held a clause in the charter, giving the common council the right to control and regulate the business of slaughtering animals, did not authorize the city to create a monopoly of the business, under pretence of regulating and controlling it. It is unnecessary to speak particularly of the rule adopted by the company in reference to the transportation of grain. What we have said in regard to the contract applies equally to the rule. The principle that a railroad compan}- can make no injurious or arbitrary discrimination between individuals in its dealings with the public, not only commends itself to our reason and sense of justice, but is sustained by adjudged cases. In England, a contract which admitted to the door of a station, within the yard of a railway company, a certain omnibus, and excluded another omnibus, was held void. Marriot r. L. & S. W. R. R. Co., 1 C. B. (N.S.), 498. In Gaston v. Bristol & Exeter Railroad Company, 6 C. B. (N. S.) 641, it was held, that a contract with certain ironmongers, to carry their freight for a less price than that charged the public, was illegal, no good reason for the discrimination being shown. In Crouch v. The L. & N. W. R. Co., 14 C. B. 254, it was held a rail- way company could not make a regulation for the conveyance of goods which, in practice, affected one individual only. CHICAGO AND NORTHWESTERN RAILROAD V. PEOPLE. 327 In Sandford v. Railroad Company, 24 Pa. 382, the court held that the power given in the charter of a railway company to regulate the transportation of the road did not give the right to grant exclusive privileges to a particular express company. The court say, "If the company possessed this power, it might build up one set of men and destroy others ; advance one kind of business and break down another, and make even religion and politics the tests in the distribution of its favors. The rights of the people are not subject to any such corporate control." We refer also to Rogers' Locomotive Works v. Erie R. R. Co., 5 Green, 380, and State v. Hartford & N. H. R. Co., 29 Conn. 538. It is insisted by counsel for the respondent that, even if the relators have just cause of complaint, they cannot resort to the writ of manda- mus. We are of opinion, however, that they can have an adequate remedy in no other way, and that the writ will therefore lie. The judgment of the court below awarding a peremptory mandamus must be reversed, because it applies to the Galena division of respon- dent's road, as well as to the Wisconsin and Milwaukie divisions. If it had applied only to the latter, we should have affirmed the judgment. The parties have stipulated that, in case of reversal, the case shall be remanded, with leave to the relators to traverse the return. We there- fore make no final order, but remand the case, with leave to both parties to amend their pleadings, if desired, in view of what has been said in this opinion. Judgment reversed. 328 LOUISVILLE AND NASHVILLE R.R. CO. V. CENT. STOCK. CO. LOUISVILLE & NASHVILLE RAILROAD COMPANY v. CENTRAL STOCKYARDS COMPANY. SUPREME COURT OF THE UNITED STATES, 1909. [212 U. S. 132.1] THE facts are stated in the opinion. Mr. Justice HOLMES delivered the opinion of the court. It was argued, however, 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 practice 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 respect the paramount needs of the carrier concerned, and at least could be sustained only with full and adequate regulation for his protection from the loss or undue detention of cars, and for securing due compen- sation for their use. The constitution of Kentucky is simply a universal, undiscriminating requirement, with no adequate provisions such as we have described. The want cannot be cured by inserting them in judg- ments under it. The law itself must save the parties' rights, and not leave them to the discretion of the courts as such. See Security Trust & Safety Vault Co. v. Lexington, 203 U. S. 323, 333; Roller v. Holly, 176 U. S. 398, 409 ; Connecticut River R. R. Co. v. County Commis- sioners, 127 Massachusetts, 50, 57; Ash v. Cummings, 50 N. H. 591 ; Moody v, Jacksonville, Tampa & Key West R. R. Co., 20 Florida, 597; Ex parte Martin, 13 Arkansas, 198; St. Louis v. Hill, 116 Mis- souri, 527. It follows that the requirement of the state constitution cannot stand alone under the Fourteenth Amendment, and that the judgment in this respect also, being based upon it, must fall. We do not mean, however, that the silence of the constitution might not be remedied by an act of legislature or a regulation bj* a duty authorized subordinate body if such legislation should be held consistent with the state constitution by the state court. We should add that the require- ment in the first part of the judgment, which we have been discussing, is open to the objections mentioned in the former decision so far as it practically requires the Louisville and Nashville Railroad to deliver cars at Louisville elsewhere than at its own terminus. 192 U. S. 570, 571. 1 Only one point is printed. ED. MAYS V. SEABOARD AIR LINE RAILWAY. 329 MAYS .v. SEABOARD AIR LINE RAILWAY. SUPREME COURT OF SOUTH CAROLINA, 1906. [75 S. C. 455. 1 ] MR. CHIEF JUSTICE POPE. Thus, we see both b}* the Federal and State Constitutions that full protection is herein provided against any infraction of the rights of citizens. This should be so. Any disregard of these constitutional provisions aims a death blow at the preservation of private rights, and it falls to the lot of the courts to uphold and pro- tect these provisions of law. A corporation in the eyes of the law is a private individual so far as property rights are concerned. In this instance, the defendant railroad has alread}* had measured to it under the law its right to maintain its property rights in its tracks, in its engines and other property, and its franchises laid out and measured and admitted. By this act of the Legislature it is sought to confer upon a private individual the right, within the distance of one-half mile, to require this railway company to connect its railway track with a private brick mill against the railway company's consent. It is re- quired by this act that the railroad shall lay out a track from its line of railway to the brick mill of the plaintiff. It is true, that the act provides that the plaintiff shall pa} 7 the costs of trackage, but this, eveiy dollar of it, must be returned by the railroad to the owner of the brick mill in instalments of twenty per cent, each for five successive years, thus taking from the railroad's pocket money which it has al- ready earned. If this is not an infraction of law, what is it? Thus it violates the requirements of our Federal and State Constitutions. While the Legislature is empowered to alter or amend the charter of the de- fendant, it is imperative upon it to respect the property of defendant under the guarantees of the Constitution in so doing. Subdivision (a), therefore, must be overruled. 1 The principal point is printed. ED. 330 RALSTON BUSINESS MEN'S ASSOCIATION V. BUSH. RALSTON BUSINESS MEN'S ASSOCIATION v. BUSH. SUPREME COURT OF NEBRASKA, 1918. [167 Northwestern Reporter, 727.] ROSE, J. The Nebraska State Railway Commission ordered de- fendant to provide at the village of Ralston a station and other ship- ping facilities near the intersection of Seventy-Seventh street and the Missouri Pacific Railway track. The case is presented here upon an appeal by defendant. Three-fourths of a mile from the industrial part of Ralston defendant has a building and a team track. The Chicago, Burlington & Quincy Railroad Company has a station at the village itself, where three em- ployes are engaged in the railway service. The sufficiency of existing shipping facilities and the necessity for improvements were contro- verted issues. On appeal the decision of the Nebraska State Railway Commission is challenged as unreasonable. The order was made before the United States engaged in the present war. As a military measure the federal government is now controlling defendant's railway system. The en- forcement of the order challenged on appeal will require labor, mate- rials, and money. Owing to the exigencies of war, the government is making extraordinary demands for funds, men, materials, and rail- road equipment. Defendant's lines of railroad transportation are con- necting links between a granary of the nation and millions of men now engaged in the common defence. In this emergency the general welfare should be considered in adjusting between private suitors controversies involving expenditures for the improvement of local railroad facilities. When the order was made there was no occasion or opportunity to present or consider these features of the questions presented by the appeal. The new situation grew out of facts re- quiring the judicial notice of the appellate court. The Nebraska State Railway Commission should have an opportunity for further inquiry in view of changed conditions. To that end, following Marshall v. Bush, 102 Neb. , 167 N. W. 59, the order challenged by defendant is vacated, and the proceeding remanded to the Ne- braska State Railway Commission for further consideration. Reversed and remanded. LETTON, J., not sitting. PENNSYLVANIA RAILROAD CO. V. SONMAN SHAFT COAL CO. 331 PENNSYLVANIA RAILROAD COMPANY . SONMAN SHAFT COAL COMPANY. SUPREME COURT OF THE UNITED STATES, 1916. [242 U. S. 120. 1 ] MR. JUSTICE VAN DEVANTER delivered the opinion of the court. Upon the trial the carrier offered to prove by a witness then under examination . . . "that during all of the period of this action the de- fendant had in effect . . . through routes and joint rates to points outside the State of Pennsylvania on the lines of other common car- riers; that it was obliged to permit cars loaded by its shippers with bituminous coal consigned to such points outside the State of Penn- sylvania to go through to destination, even when on the lines of other railroad companies; that as a result of doing this it had continuously throughout the period of this action a large number of cars off its own lines and on the lines of other common carriers, which cars would other- wise have been available for shippers of coal on the railroad lines of the defendant and these cars if not on other railroad lines would have in- creased the equipment available for distribution to the plaintiff's mine and would consequently have diminished the damage which plaintiff claims to have sustained by reason of the fact that it did not receive more cars than it did receive." But on the coal company's objection the evidence was excluded. We think the ruling was right. The offer did not point to any unusual or abnormal condition, not reasonably to have been foreseen, but, on the contrary, to a situation which was described as continuous through- out the four year period to which the action relates. It did not indi- cate that this condition was even peculiar to that period, or was caused by an extraordinary volume of coal traffic or an unusual detention of cars on other lines of railroad, or that it was other than a normal in- cident of the coal transportation in which the carrier was engaged. Without doubt the cars of this carrier when loaded with coal often went forward to destinations on the lines of other carriers. It is com- mon knowledge that coal transportation has been conducted quite generally in this way for many years. Besides, a carrier extensively engaged in such transportation from mines along its lines, as this one was, naturally would expect to have k a considerable number of cars on other lines in the ordinary course of business. Judgment affirmed. 1 Part of the opinion dealing with another question is omitted. ED. 332 LOS ANGELES SWITCHING CASE. LOS ANGELES SWITCHING CASE. SUPREME COURT OF THE UNITED STATES, 1914. [234 V. S. 294. 1 ] MR. JUSTICE HUGHES delivered the opinion of the court. On the other hand, it cannot be maintained that the delivery and receipt of goods on industrial spur tracks within the switching limits in a city is necessarily an added service for which the carrier is entitled to make, or should make, a charge additional to the line-haul rate to or from that city, when the line-haul rate embraces a receiving and delivering service for which the spur-track service is a substitute. It is said that carriers are bound to carry only to or from their ter- minal stations. But when industrial spur tracks have been established within the carrier's switching limits, within which also various team tracks are located, these spurs may in fact constitute an essential part of the carrier's terminal system. It was stated by the Commission that carriers throughout the country treat industry spurs of the kind here in question 'as portions of their terminals, making no extra charge for service thereto when the carrier receives the benefit of the line haul out or in.' It was added that while this general statement covered perhaps ten thousand cities and towns in the United States, the carriers before the Commission could name only three exceptions, to wit, the cities of Los Angeles, San Francisco and San Diego. But, laying the generalization on one side, it is plain that the question whether or not there is at any point an additional service in connec- tion with industrial spur tracks upon which to base an extra charge, or whether there is merely a substituted service which is substantially a like service to that included in the line-haul rate and not received, is a question of fact to be determined according to the actual conditions of operation. Such a question is manifestly one upon which it is the province of the Commission to pass. 1 Only one point is printed. ED. TAP LINE CASES. 333 TAP LINE CASES. SUPREME COURT OF THE UNITED STATES, 1914. [234 U. S. I.*] t MR. JUSTICE DAY delivered the opinion of the court. As we have said, the Commission by its order herein required the trunk lines to reestablish through routes and joint rates as to property to be transported by others than the proprietary owners over the tap lines. This order would of itself create a discrimination against pro- prietary owners, for lumber products are carried from this territory upon blanket rates applicable to all within its limits. It follows that independent owners would get this blanket rate for the entire haul of their products while proprietary owners would pay the same rate plus the cost of getting to the trunk line over the tap line. The Commis- sion, by the effect of its order, recognizes that railroads organized and operated as these tap lines are, if owned by others than those who own the timber and mills, would be entitled to be treated as common carriers and to participate in joint rates with other carriers. We think the Commission exceeded its authority when it condemned these roads as a mere attempt to evade the law and to secure rebates and preferences for themselves. Because we reach the conclusion that the tap lines involved in these appeals are common carriers, as well of proprietary as non-proprietary traffic, and as such entitled to participate in joint rates with other common carriers that determination falls far short of deciding, indeed does not at all decide, that the division of such joint rates may be made at the will of the carriers involved and without any power of the Commission to control. That body has the authority and it is its duty to reach all unlawful discriminatory practices resulting in favorit- ism and unfair advantages to particular shippers or carriers. It is not only withiji its power but the law makes it the duty of the Com- mission to make orders which shall nullify such practices resulting in rebating or preferences, whatever form they take and in whatsoever guise they may appear. If the divisions of joint rates are such as to amount to rebates or discriminations in favor of the owners of the tap lines because of their disproportionate amount in view of the service rendered, it is within the province of the Commission to reduce the amount so that a tap line shall receive just compensation only for what it actually does. For the reasons stated, we think the Commerce Court did not err in reaching its conclusion and decision, and its judgment is Affirmed. 1 Only the conclusion of the opinion is printed. ED. 334 CHICAGO, ETC. RY. CO. V. MINN. CIVIC & COMMERCE ASSOC. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO. v. MINNEAPOLIS CIVIC & COMMERCE ASSOCIATION. SUPREME COURT OF THE UNITED STATES, 1918. [247 U. S. 490. 1 ] MR. JUSTICE CLARKE delivered the opinion of the court. Satisfied as we are by the evidence that the Eastern Company is a completely controlled agency of the two companies which own its capital stock, we agree with the Supreme Court of Minnesota that the fact that the legal title to what are obviously terminal or spur delivery tracks is in the Eastern Company should not be permitted to become the warrant for permitting a charge upon shippers greater than they would be required to pay if that title were in the owning companies. The order of the Commission affirmed by the Supreme Court of Min- nesota, so far from being arbitrary, is plainly just, and clearly it does not deprive the plaintiffs in error of their property without compensa- tion or without due process of law, by requiring, as it does, that for ratemaking purposes the Milwaukee and Omaha companies shall ex- tend to shippers over their tracks the legal title to which is in the Eastern Company, equality of treatment with that which they give to shippers over their separately owned tracks, where similar service is rendered. The claim that an unlawful burden is imposed upon interstate com- merce by requiring that the one delivery track here involved shall be treated with respect to intrastate traffic precisely as many other similarly used and situated tracks have always been treated by the owning companies is too unsound to merit consideration. The judgment of the Supreme Court of Minnesota is Affirmed. 1 The statement of facts in the opinion is omitted. ED. COVINGTON STOCK-YARDS COMPANY V. KEITH. 335 COVINGTON STOCK-YARDS COMPANY v. KEITH. SUPREME COURT OP THE UNITED STATES, 1891. [139 U. S. 128.] MR. JUSTICE HARLAN delivered the opinion of the court. On the 28th of January, 1886, George T. Bliss and Isaac E. Gates instituted in the court below a suit in equity against the Kentucky Central Railroad Company, a corporation of Kentucky, for the fore- closure of a mortgage or deed of trust given to secure the payment of bonds of that company for a large amount ; in which suit a receiver was appointed who took possession of the railroad, with authority to operate it until the further order of the court. The present proceeding was begun on the 18th of June, 1886, by a petition filed in the foreclosure suit by Charles W. Keith, who was engaged in buying and selling on commission, as well as on his own account, live stock brought to and shipped from the city of Covington, Kentucky, over the Kentucky Central Railroad. The petition pro- ceeded upon the ground that unjust and illegal discrimination had been and was being made against Keith by the receiver acting under and pursuant to a written agreement made November 19, 1881, between the railroad compan}* and the Covington Stock- Yards Company, a corpora- tion created under the general laws of Kentucky ; the yards of the latter company located in Covington, and connected with the railroad tracks in that city, being the only depot of the railway company that was pro- vided with the necessary platforms and chutes for receiving or discharg- ing live stock on and from its trains at that city. The petition alleged that Keith was the proprietor of certain live-stock lots and } T ards in that cit}* immediately west of those belonging to the Covington Stock- Yards Company, and separated from them by only one street sixty feet in width ; that he was provided with all the necessar} 7 means of re- ceiving, feeding, and caring for such stock as he purchased, or as might be consigned to him by others for sale ; and that his lots and yards were used for that purpose subsequently to March 1, 1886, and until, by the direction of the receiver, the platforms connecting them with the railroad were torn up and rendered unfit for use. The praj'er of the petitioner was for a rule against the receiver to show cause why he should not deliver to him at some convenient and suitable place outside of the lots or yards of the said Covington Stock-Yards Com pan}* free from other than the customary freight charges for transportation, all stock owned by or consigned to him and brought over said road to Covington. The receiver filed a response to the rule, and an order was entered giving leave to the Covington Stock -Yards Companj' to file an inter- vening petition against the railroad company and Keith, and requiring the latter parties to litigate between themselves the question of the 336 COVINGTON STOCK-YARDS COMPANY V. KEITH. validity of the above agreement of 1881. The Stock-Yards Company filed such a petition, claiming all the rights granted by the agreement referred to, and alleging that it had expended sixty thousand dollars in constructing depots, platforms, and chutes, as required by that agreement. Referring to that agreement it appears that the Stock- Yards Com- pany stipulated that its yards on the line of the railroad in Covington should be maintained in good order, properly equipped with suitable fencing, feeding-pens, and other customary conveniences for handling and caring for live stock, and to that end it would keep at hand a suf- ficient number of skilled workmen to perform the operations required of it, and generally to do such labor as is usually provided for in stock yards of the best class, namely, to load and unload and care for " in the best manner all live stock delivered to them by the party of the first part [the railroad company] at their own risk of damage while so doing, and in no event to charge more than sixty cents per car of full loads for loading and sixty cents per car for unloading, and no charges to be made for handling less than full loads, as per way-bills." The Stock- Yards Company also agreed to become liable for those charges, and to collect and pay over to the railroad company, as demanded from time to time, such money as came into its hands, the charges for feeding and caring for live stock not to be more than was charged for similar services and supplies at other stock }'ards of the country. The railroad company, upon its part, agreed to pay the Stock-Yards Company the above sums for loading and unloading and otherwise acting as its agent in the collection of freights and charges upon such business as was turned over to it by the railroad company ; that it would require all cars loaded at yards for shipment South or East to be carefully bedded, which the Stock-Yards Company was to do at the rates usually charged in other yards ; that it would make the yards of the Stock-Yards Company its "depot for delivery of all its live stock," during the term of the con- tract, and not build, " nor allow to be built, on its right of way, any other depot or yards for the reception of live stock." The delivery of stock in cars on switches or sidings provided for the purpose was to be considered a deliver}' of the stock to the Stock-Yards Company, which, from that time, was to be responsible for the stock to the railroad corn- pan}*. To protect the business of the Stock-Yards Company from dam- age in case the railroad extended its track over the Ohio River, the railroad company agreed that during the term of the contract the rate of freight from all points on its road and connections should " not be less than five dollars per car more to the Union Yards of Cincinnati than the rate to Covington yards from the same points ; " that its busi- ness arrangements with any other railroad or transportation line should be subject to this agreement ; and that the yards of the Stock-Yards Company " shall be the depot for all live stock received from its con- nections for Cincinnati or Eastern markets." The agreement by ita terms was to remain in force for fifteen vears. COVINGTON STOCK-YARDS COMPANY V. KEITH. 337 In the progress of the cause E. W. Wilson, by consent of parties, was made a co-petitioner and co-respondent with Keith. By the final decree it was found, ordered, and decreed as follows: " It is the duty and legal obligation of the Kentucky Central Railroad Company, as a common carrier of live stock, to provide suitable and convenient means and facilities for receiving on board its cars all live stock offered for shipment over its road arid its connections from the city of Covington, and for the discharge from its cars of all live stock brought over its road to the said city of Covington, free of any charge other than the customary transportation charges to consignors or consignees ; and that the said petitioners, Keith and Wilson, live- stock dealers and brokers, doing business at the city of Covington, and proprietors of the Banner Stock- Yards at that place, are entitled to so ship and receive over said road such live stock without being subject to any such additional charges imposed by said receiver, said railroad company, or other person or corporation. The court further finds and decrees that the alleged contract entered into by and between the saici railroad company and the said Covington Stock-Yards Company, 01 date the 19th day of November, 1881, does not entitle the said Stock- Yards Compan} r to impose upon any shipper of live stock over said road, passing such stock through the yards of said compan}' to and from the cars of said railroad company, any charge whatever for such passage. It is stipulated in said contract that said Stock- Yards Corn- pan} 7 shall establish and maintain suitable yards or pens for receiving, housing, feeding, and caring for live stock, and to receive all such stock, and load and unload the same upon and from the cars of said company transported on or to be transported over said road for a com- pensation of sixt}" cents per car load, to be paid by said railroad company for and during the period of fifteen years from the date of said contract, which has not }"et expired, while the said railroad company agreed that it would not during said period establish or allow to be established on the line of its road or on its right of way in said city of Covington any other platform or depot than that of said Stock- Yards Company for the receipt or delivery of such live stock. . . .- The court doth further find that the general freight depot of the said railroad company in the said city of Covington, at the terminus of its road between Pike and Eighth Streets, is not a suitable or convenient place for the receipt and delivery of live stock brought to the said city or to be shipped therefrom over said road, and neither said railroad company nor said receiver having provided such suitable depot or place therefor, except the yards of said Stock -Yards Company, it is now ordered and decreed that the said rail- road company and said receiver shall hereafter receive and deliver from and to the said Keith & Wilson at and through the said Covington stock yards all such live stock as may be brought to them or offered by them for shipment over said road and its connections, upon the consent of said stock yards, in writing, that it may be so done, being filed in this court and cause on or before the 1st day of January next after th 338 COVINGTON STOCK-YARDS COMPANY V. KEITH. entry of this decree, free of any charge for passing through said yards to and from the cars of said railroad company. In default of such con- sent being so filed, it is ordered and decreed that upon said Keith & Wilson putting the platform and chute erected 03' them on the land of said Keith adjacent to the live-stock switch of said railroad company north of said stock yards the said railroad company and said receiver shall receive and deliver all such live stock to said Keith & Wilson :is shall be consigned to them or either of them or be offered by them or either of them for shipment at said platform. The said Keith & Wilson shall provide an agent or representative at said platform to receive such cattle as they may be notified by said railroad company or said receiver are to be delivered to them thereat, and they shall give the said rail- road company or said receiver reasonable notice of any shipment desired to be made b}* them from said platform to conform to the de- parture of live-stock trains on said road." The railroad company, holding itself out as a carrier of live stock, was under a legal obligation, arising out of the nature of its employ- ment, to provide suitable and necessary means and facilities for receiv- ing live stock offered to it for shipment over its road and connections, as well as for discharging such stock after it reaches the place to which it is consigned. The vital question in respect to such matters is, whether the means and facilities so furnished by the carrier or by some one in its behalf are sufficient for the reasonable accommodation of the public. But it is contended that the decree is erroneous so far as it compels the railroad company to receive live stock offered by the ap- pellees for shipment and to deliver live stock consigned to them, free from any charge other than the customary one for transportation, for merely passing into and through the yards of the Covington Stock- Yards Company to and from the cars of the railroad company. As the decree does not require such stock to be delivered in or through the yards of the appellant, except with its written consent filed in this cause ; as such stock cannot be properly loaded upon or unloaded from cars within the limits of the citj*, except by means of inclosed lots or yards set apart for that purpose, and conveniently located, in or through which the stock may be received from the shipper or delivered to the consignee, without danger or inconvenience to the public in the vicinity of the place of shipment or discharge ; and as the appellant has volun- tarily undertaken to discharge the duty in these matters that rests upon the railroad company, the contention just adverted to, is, in effect, that the carrier may, without a special contract for that purpose, require the shipper or consignee, in addition to the customary and legitimate charges for transportation, to compensate it for supplying the means and facilities that must be provided by it in order to meet its obligations to the public. To this proposition we cannot give our assent. When animals are offered to a carrier of live stock to be transported it is its duty to receive them ; and that duty cannot be efficiently dis- charged, at least in a town or city, without the aid of yards in which COVINGTON STOCK-YARDS COMPANY V. KEITH. 339 the stock offered for shipment can be received and handled with safety and without inconvenience to the public while being loaded upon the cars in which they are to be transported. So, when live stock reach the place to which they are consigned, it is the duty of the carrier to deliver them to the consignee ; and such delivery cannot be safely or effectively made except in or through inclosed yards or lots, convenient to the place of unloading. In other words, the duty to receive, trans- port, and deliver live stock will not be fully discharged, unless the carrier makes such provision, at the place of loading, as will enable it to properly receive and load the stock, and such provision, at the place of unloading, as will enable it to properly deliver the stock to the consignee. A railroad company, it is true, is not a carrier of live stock with all the responsibilities that attend it as a carrier of goods. North Penn. Railroad v. Commercial Bank, 123 U. S. 727, 734. There are recog- nized limitations upon the duty and responsibility of carriers of inani- mate property that do not apply to carriers of live stock. These limitations arise from the nature of the particular propertj 1 transported. "But," this court said, in the case just cited, "notwithstanding this difference in duties and responsibilities, the railroad company, when it undertakes generally to carry such freight, becomes subject, under similar conditions, to the same obligations, so far as the delivery of the animals which are safely transported is concerned, as in the case of goods. They are to be delivered at the place of destination to the party designated to receive them if he presents himself, or can with reasonable efforts be found, or to his order. No obligation of the car- rier, whether the freight consists of goods or live stock, is more strictly enforced." * The same principle necessarily applies to the receiving of live stock by the carrier for transportation. The carrier must at all times be in proper condition both to receive from the shipper and to deliver to the consignee, according to the nature of the property to be transported, as well as to the necessities of the respective localities in which it is received and delivered. A carrier of live stock has no more right to make a special charge for merely receiving or merely delivering such stock, in and through stock yards provided by itself, in order that it may properly receive and load, or unload and deliver, such stock, than a carrier of passengers may make a special charge for the use of 1 Myrick v. Michigan Central Railroad, 107 U. S. 102, 107 ; Hall & Co. v. Renfro, 3 Met (Ky.) 51, 54; Mynard v. Syracuse & Binghamton Railroad, 71 N. Y. 180; Smith v. New Haven & Northampton Railroad, 12 Allen, 531, 533 ; Kimball v. Rutland & Burlington Railroad, 26 Vt. 247 ; South & North Alabama Railroad Company v. Heulein, 52 Ala. 606, 613 ; Wilson r. Hamilton, 4 Ohio St. 722, 740 ; Ayres r. Chicago & Northwestern Railroad, 71 Wis. 372, 379, 381 ; McCoy v. K. & D. M. R. Co., 44 Iowa, 424, 426 ; Maslin v. B. & O. R. R. Co., 14 W. Va. 180, 188; St. Louis & South- eastern Railway v. Dorman, 72 111. 504 ; Moulton v. St. Paul, Minneapolis, &c. Rail- way, 31 Minn. 85, 87 ; Kansas Pacific Railway r. Nichols, 9 Kas. 235, 248 ; Clarke r. Rochester & Syracuse Railroad, 14 N. Y. 570, 573; Palmer v. Grand Junction Railway, 4 M. & W. 749. 340 COVINGTON STOCK-YARDS COMPANY V. KEITH. its passenger depot by passengers when proceeding to or coming from its trains, or thau a carrier may charge the shipper for the use of its general freight depot in merely delivering his goods for shipment, or the consignee of such goods for its use in merely receiving them there within a reasonable time after they are unloaded from the cars. If the carrier ma)' not make such special charges in respect to stock yards which itself owns, maintains, or controls, it cannot invest another cor- poration or company with authority to impose burdens of that kind upon shippers and consignees. The transportation of live stock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be deliv- ered, to the consignee, if to be found, at such place as admits of their being safely taken into possession. We must not be understood as holding that the railroad company, in this case, was under an}* legal obligation to furnish, or cause to be fur- nished, suitable and convenient appliances for receiving and delivering live stock at every point on its line in the city of Covington where per- sons engaged in buying, selling, or shipping live stock, chose to estab- lish stock yards. In respect to the mere loading and unloading of live stock, it is only required by the nature of its employment to furnish such facilities as are reasonably sufficient for the business at that c'\iy. So far as the record discloses, the yards maintained by the appellants are, for the purposes just stated, equal to all the needs, at that city, of shippers and consignees of live stock ; and if the appellee had been permitted to use them, without extra charge for mere " yardage," they would have been without just ground of complaint in that regard ; for it did not concern them whether the railroad company itself maintained stock yards, or employed another company or corporation to supply the facilities for receiving and delivering live stock it was under obli- gation to the public to furnish. But as the appellant did not accord to appellees the privileges they were entitled to from its principal, the carrier, and as the carrier did not offer to establish a stock yard of its own for shippers and consignees, the court below did not err in requir- ing the railroad company and the receiver to receive and deliver live stock from and to the appellees at their own stock yards in the imme- diate vicinity of appellant's yards, when the former were put in proper condition to be used for that purpose, under such reasonable regulations as the railroad compan}' might establish. It was not within the power of the railroad company, b}- such an agreement as that of November 19, 1881, or by agreement in an)' form, to burden the appellees with charges for services it was bound to render without an}' other compen- sation than the customary charges for transportation. Decree affirmed. MICHIGAN CENTRAL R. R. CO. V. MICHIGAN R. R. COMMISSION. 341 MICHIGAN CENTRAL RAILROAD COMPANY v. MICHIGAN RAILROAD COMMISSION. SUPREME COURT OF THE UNITED STATES, 1915. [236 U. S. 615. 1 ] MR. JUSTICE PITNEY delivered the opinion of the court. It is said the statute as construed and enforced by the Commission and the Supreme Court is repugnant to the "due process" clause because it in effect requires a delivery by the Michigan Central at points off its own lines. By its terms, however, the order does not re- quire the Michigan Central to haul the cars to points on the Detroit United, but only to permit them to be hauled by the latter company. At common law a carrier was not bound to carry except on its own line, and probably not required to permit its equipment to be hauled off the line by other carriers. A., T. & S. F. R. R. v. D. & N. O. R. R., 110 U. S. 667, 680; Kentucky &c. Bridge Co. v. Louis. & Nash. R. R., 37 Fed. Rep. 567, 620; Oregon Short Line v. Northern Pacific Ry., 51 Fed. Rep. 465, 472, 475; affirmed, 61 Fed. Rep. 158. But in this, as in other respects, the common law is subject to change by legisla- tion; and, so long as the reasonable bounds of regulation in the public interest are not thereby transcended, the carrier's property cannot be deemed to be "taken" in the constitutional sense. Minn. & St. Louis R. R. v. Minnesota, 193 U. S. 53, 63; Atlantic Coast Line v. N. Car. Corp. Com'n, 206 U. S. 1, 19; Grand Trunk Ry. v. Michigan Ry. Com., 231 U. S. 457, 470; Wisconsin &c. R. R. v. Jacobson, supra; Chi., Mil. & St. P. Ry. v. Iowa, supra. The insistence that the property of plaintiff in error in its cars is taken by the order requiring it to deliver them to the Detroit United Railway involves, as we think, a fundamental error, in that it over- looks the fact that the vehicles of transportation, like the railroad upon which they run, although acquired through the expenditure of private capital, are devoted to a public use, and thereby are subjected to the reasonable exercise of the power of the State to regulate that use, so far at least as intrastate commerce is concerned. Munn v. Illinois, 94 U. S. 113. That it is not as a rule unreasonable to require such interchange of cars sufficiently appears from the universality of the practice, which became prevalent before it was made compulsory, and may be considered as matter of common knowledge, inasmuch as a freight train made up wholly of the cars of a single railroad is, in these days, a rarity. In Michigan, car interchange has long been a 1 Part of the opinion is omitted. ED. 342 MICHIGAN CENTRAL R. R. CO. X. MICHIGAN R. R. COMMISSION. statutory duty. Mich. Gen. Acts 1873, No. 79, 15, p. 99; No. 198, 28, p. 521; Michigan Central R. R. v. Smithson, 45 Michigan, 212, 221. And see Peoria & P. U. Ry. v. Chicago, R. I. & P. Ry., 109 Illi- nois, 135, 139; Burlington &c. Ry. v. Dey, 82 Iowa, 312, 335; State v. Chicago &c. Ry., 152 Iowa, 317, 322; affirmed, 233 U. S. 334; Pitts- burgh &c. Ry. v. R. R. Commission, 171 Indiana, 189, 201 ; Jacobson v. Wisconsin &c. R. R., 71 Minnesota, 519, 531; affirmed, 179 U. S. 287. To speak of the order as requiring the cars of plaintiff hi error to be delivered to the Detroit United "for the use of that company" involves a fallacy. The order is designed for the benefit of the public having occasion to employ the connecting lines in through transporta- tion. The Detroit United, like the Michigan Central, acts hi the matter as a public agency. The contention that no provision is made for the paramount needs of plaintiff in error for the use of its own equipment, nor for the prompt return or adjustment for loss or damage to such equipment, nor for compensation for the use thereof, is not substantial. The order is to receive a reasonable interpretation, and according to its own recitals is to be read in the light of the opinion of the Commission, which shows that it is not intended to have an effect inconsistent with the other operations of the company. It was expressly found that there was no special ground for apprehending loss or damage to the equip- ment. Certainly the order does not exclude the ordinary remedies for delay in returning cars or for loss or damage to them. Nor does it contemplate that plaintiff in error shall be required to permit the use of its cars (or of the cars of other carriers for which it is responsible) off its line without compensation. The state court expressly held that section 7, c, provides for reasonable compensation to the carrier whose cars are used in the interchange. The finding of the Commis- sion, approved by the court, was that the Michigan Central would merely have to expend its proportion of the amount necessary to in- stall the connection between the two roads, and would be called upon for no further expenditure in the premises, and that the business to be derived by it from Ortonville, Goodrich, and the surrounding country via the Detroit United Railway, promised to be considerable in amount, and thereby the Michigan Central would be a beneficiary from the proposed connection and interchange. It was, we think, permissible for the court to find, as in effect it did find, that the bene- fits thus derived would include compensation for the use of the cars of the Michigan Central for purposes of loading and delivery along the line of the Detroit United. We are unable to see that any question as to the adequacy of the compensation was raised in the state court. Plaintiff in error relies upon Central Stock Yards v. Louis. & Nash. MICHIGAN CENTRAL R. R. CO. V. MICHIGAN R. R. COMMISSION. 343 R. R., 192 U. S. 568, and Louis. & Nash. R. R. v. Stock Yards Co., 212 U. S. 132. The former of these was an action in the federal court and came here by appeal from the Circuit Court of Appeals. This court held as a matter of construction that the constitution of Ken- tucky did not require that the railroad company should deliver its own cars to another road. The second case was a review of the judg- ment of the court of last resort of the State. That court having held that the state constitution did require the carrier to deliver its own cars to the connecting road, it was contended that this requirement was void under the Fourteenth Amendment as an unlawful taking of property. This court said (212 U. S. 143) : " In view of the well-known and necessary practice 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 respect the paramount needs of the carrier concerned, and at least could be sustained only with full and adequate regulations for his protection from the loss or undue detention of cars, and for securing due com- pensation for their use. The constitution of Kentucky is simply a universal undiscriminating requirement, with no adequate provisions such as we have described. . . . We do not mean, however, that the silence of the constitution might not be remedied by an act of legisla- ture or a regulation by a duly authorized subordinate body if such legislation should be held consistent with the state constitution by the state court." The case now before us is plainly distinguishable, as appears from what we have said. And, upon the whole, we see no sufficient ground for denouncing the regulation in question as either arbitrary or unreasonable. 344 PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. CHAPTER VI. REGULATION OF THE SERVICE. PENNSYLVANIA COAL CO. v. DELAWARE AND HUDSON CANAL CO. COURT OF APPEALS, NEW YORK, 1865. [31 N. Y. 91.] DAVIES, J. The defendant is the owner of a canal extending from tide water on the Hudson River, to the interior of the State of Pennsyl- vania. The plaintiff is the owner of extensive coal mines, bordering on the defendant's canal, which it mines for transportation to market. For such purpose, it is the owner of a large number of canal boats navigating the defendant's canal. By an agreement or deed, made and entered into between the parties to this action, dated 29th July, 1851, the defendant covenanted and agreed with the plaintiff, to furnish to any and all boats owned or used by the plaintiff for the purpose of transporting coal entering the said canal, by railroad connecting with the said canal, at or near the mouth of the Wallenpaupack River, or containing coal, entering as aforesaid, belonging to or transported by or on account of the plaintiff, in which coal, or the transportation thereof, the plaintiff might be in any manner interested, all the facili- ties of navigation and transportation which the said canal should fur- nish, when in good, navigable condition and repair, to boats used by any other company or person, or belonging to or used by or containing coal transported by or for or on account of the defendant. The plaintiff alleged a breach of said contract or agreement in this, that the number of boats employed by the plaintiff in the transportation of coal upon said canal, was greater than the number employed by the defendant therein, and that the boats of the plaintiff, and those emploj^ed by it, made their trips in much shorter time than the boats of the defendant, and therefore the act of the defendant in neglecting and refusing to p:iss the boats of the plaintiff through the locks on said canal in the order in which they arrived at the locks respectively, but delaying them PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. 345 until one of the boats of the defendant, or of some individual, arriving after the plaintiff's boat at such lock, had been passed, was highly in- jurious and of great detriment to the plaintiff. The plaintiff prays judgment, that the defendant may be decreed and adjudged to use and manage said canal and the locks thereon, in such manner as not to im- pede, hinder, or delay the boats of the plaintiff navigating the said canal, and used for the purpose of transporting coal entering said canal at or near the mouth of the Wallenpaupack River, or containing coal, and entering as aforesaid, belonging to or transported by or on account of the plaintiff, and may be restrained from giving the preference of passage through any lock thereon to some other boat than the plaintiff's, although the latter arrived first at such lock, and that the defendant might be decreed specifically to perform its said agreement with the plaintiff. The case was tried by the court without a jurj T , and the court found as matter of fact, that the plaintiff had not proven a breach of the con- tract, and the court thereupon gave judgment for the defendant, de- nying the relief asked for, and denying the injunction prayed for and dismissing the complaint with costs. The General Term, on appeal, affirmed this judgment, and the plaintiff now appeals to this court. The only ground upon which the plaintiff could invoke the aid of a court of equit}' to decree a specific performance of the contract, and to restrain the defendant from its violation, was that there had been a breach of the contract and a violation, or a threatened violation of it. This was the foundation of the plaintiff's edifice, the corner stone upon which it rested. The finding by the court, that no breach or violation of the contract had been proven, entirely demolishes all claim of the plaintiff to any equitable relief. No threatened violation of the con- tract is alleged or pretended, and it follows that the judgment of the Supreme Court on this state of facts was correct, and the same should be affirmed. MULLIN, J. Two questions only are presented for consideration on this appeal. These are : 1st. Whether the contract between the parties had been violated. And if it has, then, 2d. Are the plaintiffs entitled to a specific performance of the contract. 1. Have the defendants broken the contract? The defendants obligated themselves by the agreement to furnish to the plaintiffs' boats all the facilities of navigation and transportation which their canal should afford, when in good and navigable condition and repair, to boats owned or used by any other company or person, or owned or used by the defendants for the transportation of coal. The contract, it will be perceived, is not, as the plaintiffs' counsel seems to construe it, that the defendants will afford to the plaintiffs' boats all the facilities of navigation that the canal, when in good order, shall afford, but it is to furnish all the facilities to the plaintiffs that the canal, when in good order, shall afford to any other person's or com- pany's boats, including defendants' own boats. 346 PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. Before the plaintiffs can insist that the contract has been violated as to its boats, they were bound to show what facilities were afforded by the canal, when in good order, to other boats. No difference is shown to have been made between the plaintiffs' boats and those of other owners, in the facilities extended in the business of navigating the canal. The defendants, as owners, had the right to prescribe such reason- able rules and regulations for the government of vessels passing along their canal, as their directors deemed best calculated to promote their own interests and the interests of those engaged in navigating the canal. Such regulations must embrace the order in which boats should pass through the locks. Such regulations, while resting largely in the discretion of the officers of the company, must, nevertheless, be rea- sonable. Now, it appears that all boats passing to the Hudson River, were locked through the Edd3 - ville lock in the order of their arrival at such lock. This regulation is not complained of; but it is insisted that the same rule should be observed in locking up through the same lock the empty boats, and that the omission to do so is a breach of the agreement. It is claimed that the detention of plaintiffs' boats, if they first arrive at the lock, until boats of the defendants, subsequently arriving, are locked through alternately with plaintiffs', causes unrea- sonable delay, and is an unjust detention of the plaintiffs' boats. When the plaintiffs' boats arrive at the lock first, it does seem to be oppressive to require any of them to be delayed until the boats of other persons, subsequently arriving, are locked through. But it must sometimes happen that the defendants' boats arrive first, and if they are delayed until the plaintiffs' boats, subsequently arriving, have been passed through, the plaintiffs have the benefit of the same rule which operated injuriously when their boats were first at the lock. While the rule is uniformly and impartially applied, it is difficult to see how it operates to the prejudice of the plaintiffs rather than to that of all others navigating the canal. While it is true that the plaintiffs owned the largest number of boats, it does not follow, nor is it proved, that their boats are uniformly first at the lock on their way back to the mines. If they are not, then the}' must take the delay imposed upon them by the regulation in compensation for the benefit derived from passing alternately with boats arriving at the lock before those of the plaintiffs. It does not appear that the regulation complained of was a new one. It may have been, and in the absence of both allegation and proof to the contrary, I think we are bound to presume that it had been in force from the making of the contract; and if so if the plaintiffs had ac- quiesced in it for so long a time it is somewhat late to complain of it. If the regulation was designed to embarrass the plaintiffs, it is diffi- cult to see why it should not have been applied to the boats coming to as well as to those going from the Hudson. There would seem to have PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. 347 been some reason for the discrimination, but what it is is not disclosed by the case. A reason is suggested by the respondents' counsel which would seem to account for the regulation, and is probably the true one, and that is, that as but a single boat, or at most but a very limited num- ber of boats is being laden at the same time, by either party, it is no cause of dela}' that the empty boats arrive one after the other, at in- tervals of twenty minutes ; for if twenty or thirty boats arrive at one time, they must be detained until those ahead are loaded, and the re- sult would be, that while nothing would be gained by the plaintiffs, considerable time would be lost by the other boats compelled to wait until all of plaintiffs' boats had passed through. By the regulation, it would seem that plaintiffs' boats are passed up as fast as they are re- quired to be loaded, and that unnecessary delay to the defendants' boats is avoided. A preference seems to be given to transient boats over those of either the plaintiffs or defendants. In what business these transient boats were employed, or their number, or who were the owners, does not ap- pear. But it is probable that they were boats engaged in the trans- portation of property other than coal, and that the number was small compared with the number owned by the plaintiffs or defendants. If these conjectures are correct, they would account for the preference given to such boats in passing the lock. It would be very harsh to re- quire a man, owning a single boat, to be detained until thirty or forty boats, arriving ahead of him, were got through the lock. And, when a preference was given to one such boat, it became necessary to ex- tend it to all, and it does not appear that the preference delayed the loading of any of the plaintiffs' boats. This delay, and not that at the lock, would be the cause of damage of which the plaintiffs could justly complain. If the boats, on arriving at their place of destination, would have been detained as long before being loaded as they lay at the lock, it is not perceived how the plaintiffs could be damnified. In a word, the regulation is one that the defendants had the right to make ; it is not shown to be either unreasonable or unjust, nor that it has been the cause of any real injury to the plaintiffs. It seems to have been acquiesced in for a long time, and no reason is perceived why it should now be repudiated or annulled. 1 Judgment affirmed. 1 The learned judge also held that no case had been shown for equitable jurisdic- tion. ED. 348 PLATT V. LECOCQ. PLATT v. LECOCQ. CIRCUIT COURT OP APPEALS OF THE UNITED STATES, 1907. [158 Fed. 723. 1 ] THIS is an appeal from a decree of the court below that an order of the Board of Railroad Commissioners that the United States Ex- press Company receive at its offices in Aberdeen, S. D., from the Aberdeen National Bank, all moneys tendered to it by that bank for carriage on certain trains which leave Aberdeen at 6:30, 7:00, and 7:45 a. m., during all reasonable business hours of the day preceding the departure of these trains, be enforced. SANBORX, Circuit Judge. The safe-keeping overnight and delivery in the morning before the trains start of the specie and currency which the bank might desire to ship by this express company upon these morning trains will entail no more expense upon the bank than their delivery the day before, while the receipt of them on the latter day and their storage overnight will cause the express company additional expense, and will make its business of handling this money a losing one. The risk of keeping these packages of mone}' overnight is less to the bank than to the express company, because it has a burglar proof vault, and trusty messengers for the purpose of keeping large amounts of money safely, and protecting them against robbers and fire in the city of Aberdeen, while the express company has no such safeguards and facilities in that city, and, finally, the business of the bank is to receive and keep safely for its depositors in the city of Aberdeen, and to send to them and to others who buy or borrow it, the specie or currency deposited with it, and it has a suitable vault and trust}' officers and servants to carry on this business and to protect this mone}-. The business of the express company, on the other hand, is to transport money, to keep it safely, and to insure it against loss during its transportation, and for this purpose it has specially constructed stationary safes in cars and trusty messengers to travel with it, but it is no part of its business to store or to keep valuable packages of specie or currency for any length of time greater than is reasonably necessary to conduct its transportation. The trains under consideration do not leave Aberdeen at very early hours in the morning, and it is neither impossible nor impracticable for the bank to deliver its packages of money to the express company in the morning of the day before the trains start. To require the express company to receive these packages on the preceding day. and to store them and to insure their safe-keeping overnight is to transfer to the ex- press company a part of the risk, responsibility, and business of the bank, a part of the safe-keeping of specie and currency in the city of Aberdeen, a part of its business which it has adequate safeguards to conduct, which it undertakes to carry on, and for which it presumably 1 Only the concluding part of the opinion is printed. ED. PLATT V. LECOCQ. 349 receives reasonable compensation, while the express company, which has no such facilities, can secure no such compensation, and does not offer or undertake to do any such business. In view of these facts, rules, and considerations, the evidence in this case falls far short of convincing proof that the rules and practice of the express company upon this subject which have been assailed here were unreasonable or unjust. Indeed, in our opinion, it would be far more unreasonable to require the express company to receive these packages of specie and currency for transportation on the morning trains the day before they start, and thereby to compel it to store and insure them overnight, than it would be to refuse so to do, and thus to leave the bank to send them insured by mail at a lower rate, or to deliver them to the express company in the morning before the trains depart. There is another consideration which leads to the same conclusion. Courts and commissions ought not to interfere with the established rules and practice of transportation companies on account of incidental inconveniences and trivial troubles to which the conduct of all business is necessarily subject. The business of railroad companies and express companies cannot be conducted for the purpose of carrying on the business of their customers exclusively, nor without some discomforts and inconveniences to all parties engaged in any of these occupations. Unless a clear injustice is perpetrated or a substantial injury is inflicted, or there is an imminent threat of them, the anno} - ances and inconven- iences in the transaction of the business of the transportation com- panies should be left for correction in the pecuniary interests and business instincts of the respective parties concerned, and their laud- able anxiet} r to secure, retain, and increase their business. No injustice has been perpetrated in this case. No serious damage has been, or is likely to be, inflicted upon the bank by the refusal of the express com- pany to receive money until the morning of the day when the trains depart, in view of the pregnant fact that it has elected to cause its incoming currency to be shipped to it by mail for more than a } r ear, and to the amounts of hundreds of thousands of dollars, when it could have caused it to have been sent by this express company. No other shipper is complaining, and the practice of the express com pan}- creates no preference or prejudice to party, locality, or description of traffic, while the practice which the bank seeks to enforce will inevitably compel other parties and other descriptions of traffic to bear a part of the burden of storing and keeping overnight the mone3 r s it seeks to send out. There is no equity in this case of the bank, and it is entitled to no relief. 1 Reversed. 1 Compare : Alsop v. Southern Express Company, 104 N. C. 278, contra. 350 POPE V. HALL. POPE v. HALL. SUPREME COURT OF LOUISIANA, 1859. [14 La. Ann. 324.] MERRICK, C. J. This suit has been brought against Messrs. Hall & Hildretb, the proprietors of the well-known St. Charles Hotel, of this city, to recover of them three hundred and forty-five dollars, for a watch and chain and gold coin, alleged to have been stolen from the trunk of the plaintiff whilst lodging with the defendants as a traveller. The case was tried without the intervention of a jun - , and an elabo- rate examination of the law and facts by the learned judge of the District Court resulted in a judgment in favor of the plaintiff for $300 ; defendants have appealed. At the head of each stair way a large card was posted, cautioning the boarders to beware of hotel thieves, and requesting them to deposit all mone} 1 , jewelry, watches, plate, or other valuables, in the safe at the office, and notifying the guests that the proprietors would not be responsible for any such articles stolen from the rooms. The regulations of the hotel were posted in print in each of the rooms. Among other regulations, is stated that " money and articles of value maj- be deposited and a receipt taken, and no remuneration ma\' be expected if lost when otherwise disposed of." The defendants contend that the innkeeper has the right to say where the property shall be kept as a sequence of his responsibility ; that if he is to be held responsible as a custodian, he must be permitted to guard the property in his own way, and they derive this right to limit the responsibility from the Roman law, and cite the concluding paragraph to law 7. Dig., lib. 4, tit. 9, De protestatione exercitoris. It is as follows : Item si prcedixerit, et unusquisque rectorum res suas servet, neque damnum se prcBStaturum, et consenserint vectores predictioni, non convenitur. It will be observed in the text cited, that the master of the ship limits his liability only by the actual consent of the passengers. In the present case, this right is claimed to the innkeeper without such express consent of the traveller. Without reviewing the cases, or entering into the prolix discussions which this question has given rise to in France, England, and the United States, it is sufficient to say that we think the district judge very cor- rectly took a distinction between articles of value and those ordinarily worn, together with such small sums of money as are usually carried about the person. He says, in conclusion : " They(innkeepers) have no right to require a traveller to deliver up to them his necessary FULLER V. COATS. 351 baggage, his watch, which adorns his person and is a part of his per- sonal apparel, and the money which he has about him for his personal use. Such a regulation is contrary to law and reason. If he had large sums of money or valuables the rules might be different. Under this view of the case, which we adopt, it is a matter of indif- ference whether the plaintiff did or did not read the notices posted in the hotel. The traveller who arrives at the inn where he intends to lodge during the night, ought not to be required to part with his watch which may be necessary to him to regulate his rising, or to know when the time of departure of the morning train or boat has arrived. Neither ought he to be required to deposit with the innkeeper such small sums of money as are usually carried by the majority of persons in the like condition in life visiting such hotel. The innkeeper should provide safe locks or fastenings to the rooms, and in default of the same, he must be held responsible for the loss of such articles of apparel and small sums of money as are usually carried or worn by the class of persons favoring the hotel with their patronage. The estimate of the damage sustained by the plaintiff is justified by the proof. Judgment affirmed. VOORHIES, J., absent FULLER v. COATS. SUPREME COURT OF OHIO, 1868. [18 Oh. St. 343.] THE original action was brought by the plaintiff to recover of the defendants the value of an overcoat and articles in the pockets thereof, alleged to have been lost from the hotel of the defendants while the plaintiff was a guest therein. The petition contains the ordinary aver- ments to charge upon the innkeepers a liability for the loss of the goods of their guest. The answer denies the material averments in the petition ; and, by way of defence, alleges that the defendants " had prepared a place in their office for the deposit of overcoats, and other articles of personal apparel not left in the rooms as baggage, and kept there a person to receive such articles and give to the owner a check therefor, and they required guests to so deposit such articles ; of all which the plaintiff had notice ; that the plaintiff neglected and omitted to leave his over- coat, with its contents, in the custod}' of defendants, but carelessly and negligent!}' hung the same up in the open hall of the inn without any notice to the defendants, and without any knowledge on their part that he had so negligently exposed the same ; and that while so carelessly exposed by the plaintiff, said overcoat was, without the knowledge or 352 FULLER V. COATS. fault of the defendants, stolen, as they suppose. And so the defend- ants say that said overcoat was lost through and by reason of care- lessness and negligence of the plaintiff, and that the negligence of the plaintiff contributed to the loss thereof." The plaintiff denies, in his reply, that he had " notice that defend- ants required their guests to deposit overcoats in a place which de- fendants had prepared for tha*t purpose ; and denies that he negligently or carelessly left said overcoat in an open hall, or that he in any way, by any carelessness of himself, contributed to its loss." The case was tried to a jury. On the trial the plaintiff proved that he was a guest at the hotel of the defendants on the 12th of December, 1865, when the coat was lost ; that he came down from his room, late in the morning, to breakfast, with his overcoat, and, instead of going to the office, he hung up his coat in the hall, where there were three or four rows of hooks, and went into breakfast from the hall ; and that when he came out his coat was gone. The plaintiff testified, on cross- examination, that he knew there was a place at the office where carpet- bags and coats were taken and checks given therefor, and that he had before deposited coats at the office. One of the defendants testified that the} 1 kept a place back of the counter, in the office, where the}' kept and checked coats and satchels ; that he had frequently checked the plaintiffs satchel there before the 12th of December; that they kept some one there to receive these articles and give checks therefor ; that the plaintiff had stayed there at different times before for several days at a time ; and that when the coat was lost, a general search was made for it, and it could not be found ; that the hooks in the hall were for hats, and were placed in three or four rows, beginning two or three feet from the floor; that they had large printed notices in the office and some other rooms (but not in the hall), that " persons stopping at this hotel will please have their bag- gage checked, carpet-bags, and coats ; and if they have any diamonds, precious stones, watches, or jewelry, they must be kept in the office, in order to make the proprietors responsible." The court charged the jury as follows : ** 4. The defendants had a right to require that the plaintiff should place his overcoat, &c., in a designated place in the office, or keep it in his own room when it is not on his own person, or in his own per- sonal custody ; and if they did so require, and brought this requirement to the knowledge of the plaintiff; and if you shall find that the require- ment was a reasonable one, and that the property was lost in conse- quence of the refusal or neglect of the plaintiff to comply with such reasonable precaution, he is not entitled to recover in this action. " 5. The defendants had the right to make reasonable rules and regulations for their own protection, and to limit, to some extent, their liability ; but, in order to so limit their liability in this case, it must he shown that the knowledge of the existence of such a rule or regulation was brought home to the plaintiff before the loss of his property. FULLER V. COATS. 353 "6. A printed request merely posted in the rooms of the house, requesting or asking guests to leave their overcoats, carpet-sacks, or other baggage in the care of the landlord or his servants in the office, will not relieve the defendants from liability in case of its loss. To have this effect, the notice must state in clear and unequivocal terms that they will not be responsible for the loss unless the property is left in the office, or other designated place ; and must be brought to the knowledge of the guest." The jury returned a verdict for the defendants. The plaintiff moved for a new trial, on the ground [among others] that the court erred in the charge to the jury. The court overruled the motion for a new trial ; to which exception was taken. 1 DAY, C. J. Three classes of questions are raised in this case in which, it is claimed, the court below erred : 1. In permitting the de- fendant to ask his witnesses on the trial illegal questions ; 2. In the refusal of the court to charge the jury as requested by the plaintiff, and in the charge given ; 3. In overruling the motion for a new trial. Nothing practically will be gained by considering here at length the separate questions raised by the objections of the plaintiff to the ques- tions propounded by the defendants to their witnesses on the trial ; for some of the objections are based upon grounds that must be considered in another form, arising upon the charge to the jur}* ; some of the questions were unobjectionable, and of little or no importance ; but chiefly for the reason that the testimony elicited on all the questions in no way tended to prejudice the plaintiff ; and for that reason, under the provisions of the 138th section of the code, the ruling of the court on that class of questions will not afford sufficient ground to disturb the judgment. Did the court erroneously charge the jury? By the statute of this State the common-law responsibility of inn- keepers, as to all goods therein enumerated, is materially modified. The goods sued for in this case are not mentioned in the act ; it has, therefore, no application to the case, further than the reason of the legislative policy on which it is based may be regarded in deciding cases between conflicting constructions of the rules of common law, by which this case must be determined. It is claimed that the common law makes an innkeeper an insurer of the goods of his guest, as it does a common carrier of goods, against all loss, except that occasioned by act of God or the public enemy. The rules of the law controlling both these classes of liabilit} T have their foundation in considerations of public utility ; but it does not therefore follow that the rule in every case is precisely the same. It would seem, rather, that where the circumstances of the two classes differ, public utility might reasonably require a corresponding modifi- cation of the rules applicable to the case. 1 Only so much of the case as involves the validity of the regulations is given. ED. 23 354 FULLER V. COATS. Common carriers ordinarily have entire custody and control of the goods intrusted to them, with every opportunity for undiscoverable negligence and fraud ; and are therefore held to the most rigid rules of liability. Innkeepers may have no such custody of the goods of their guests. In many instances their custody of the goods is mixed with that of the guest. In such cases it would be but reasonable that the guest, on his part, should not be negligent of the care of his goods, if he would hold another responsible for them. The case of a carrier and that of an innkeeper are analogous ; but, to make them alike, the goods of the guest must be surrendered to the actual custody of the innkeeper; then the rule would, undoubtedly, be the same in both cases. We are not, however, disposed to relax the rules of liability ap- plicable to innkeepers, nor to declare that they are different from those applying to carriers, further than a difference of circumstances between innkeeper and guest may reasonably necessitate some care on the part of the latter. The charge of the court below is not inconsistent with a recognition of the same extent of liability in both classes of cases ; for it is well settled that an action against a carrier cannot be maintained where the plaintiff's negligence caused, or directly contributed to the loss or injury. Upon this theory, and assuming to the fullest extent the prima facie liability of the innkeeper, by reason of the loss, the court said to the jury: "The only question for your consideration is whether the plaintiffs negligence caused, or directl}' contributed to, the loss of the property." It was thus held bj' the court, and conceded by the counsel for the plaintiff, that if the property was " lost b}* reason of the negligence of the plaintiff to exercise ordinary care for its safety," the defendants were not liable. The essential question, then, between the parties is, what, on the part of the guest, is ordinary care, or what may be attributed to him as negligence. It is claimed that the court erred in relation to this point, in two particulars : 1. In holding that the guest might be chargeable with negligence, in the care of his goods, in any case where they were not actually upon his person ; 2. In holding that the innkeeper could, in any manner, limit his liability for the loss of the goods of his guest, except by contract with him. If the guest take his goods into his own personal and exclusive con- trol, and they are lost, while so held by him, through his own neglect, it would not be reasonable or just to hold another responsible for them. This is conceded to be true as to the clothes on the person of the guest, but is denied as to property otherwise held b}* him. There is no good reason for the distinction ; for the exemption of the innkeeper from liability is based upon the idea that the property is not held as that of a guest, subject to the care of the innkeeper, but upon the responsi- FULLER V. COATS. 355 bility of the guest alone ; and, therefore, it makes no difference, in principle, whether it is on his person or otherwise equally under his exclusive control. But this must be an exclusive custody and control of the guest, and must not be held under the supervision and care of the innkeeper, as where the goods are kept in a room assigned to the guest, or other proper depository in the house. The public good requires that the property of travellers at hotels should be protected from loss ; and, for that reason, innkeepers are held responsible for its safetj*. To enable the innkeeper to discharge his duty, and to secure the property of the traveller from loss, while in a house ever open to the public, it ma}-, in many instances, become absolutel} 7 necessary for him to provide special means, and to make necessary regulations and requirements to be observed by the guest, to secure the safety of his property. "When such means and requirements are reasonable and proper for that purpose, and they are brought to the knowledge of the guest, with the information that, if not observed by him, the innkeeper will not be responsible, ordinary prudence, the interest of both parties, and public policy, would require of the guest a compliance therewith ; and if he should fail to do so, and his goods are lost, solely for that reason, he would justly and properly be chargeable with negligence. To hold otherwise, would subject a party without fault to the payment of damages to a part} 1 for loss occasioned by his own negligence, and would be canning the liability of innkeepers to an unreasonable extent. Story's Bail. sees. 472, 483 ; Ashill v. Wright, 6 El. & Bl. 890 ; Purvis v. Coleman, 21 N. Y. Ill ; Berk- shire Woolen Co. v. Proctor, 7 Gush. 417. Nor does the rule thus indicated militate against the well-established rule in relation to the inability of carriers to limit their liabilit}- ; for it rests upon the necessity that, under different circumstances of the case, requires the guest to exercise reasonable prudence and care for the safety of his property. In connection with the two foregoing propositions, the correctness of the holding of the court below, as stated in the seventh paragraph of the charge, is questioned. Without repeating that paragraph here, it is only necessary to say that upon the hypothesis there stated, the guest, by what he did and neglected to do, would directly contribute to the loss of his property. The charge was therefore right. Taking the whole charge together, so far as it related to the case, and is controverted, it is in harmony with the views herein expressed, and must therefore be approved. It also follows, from what has been said, that the court did not erroneously refuse to charge the jury as re- quested by the plaintiff. The request contained a connected series of propositions, some of which, at least, were unsound in law. It is well settled that in such a case the court may properly refuse the whole. 356 MONTGOMERY V. BUFFALO RAILWAY COMPANY. MONTGOMERY v. BUFFALO RAILWAY COMPANY. COURT OF APPEALS OF NEW YORK, 1900. [165 N. Y. 139.] THIS action was brought by the plaintiff against the defendant, a street railway company, to recover damages for an assault and battery, alleged to have been committed upon him by a conductor in forcibly expelling him from the car. He had paid his fare, upon entering one of the defendant's cars upon a connecting line, and with a transfer ticket, got upon the car in question. He placed himself upon the rear platform and tendered his transfer ticket to the conductor. One of the company's rules provided that conductors should "not allow pas- sengers to sit, or stand on, or to crowd the rear platform, but will politely request them to take seats or to stand inside the car," and the conductor, calling plaintiffs attention to it, directed him to go inside the car. The plaintiff declined to do so ; stating that he had a sick headache, was nauseated, and that he expected to be affected activeh* by the nausea at any moment. The conductor, however, insisted upon his compliance with the rule and, the plaintiff refusing compliance, the car was stopped and the plaintiff was ejected therefrom ; but with no excessive force, or physical injury. GRAY, J. The company not only had the right, but it was bound, to make rules and regulation to insure the safe, effective, and comfort- able operation of its corporate business, and whether an\' particular rule is lawful and reasonable is a question of law for the court. The appel- lant concedes that the rule of the company was a reasonable one and thus the question is whether, because it was enforced by the conductor, in the expulsion of the plaintiff from the car upon his refusal to sub- mit to it, the company can now be made answerable in damages by reason of the conductor's action. The proposition would seem to furn- ish its own answer. The appellant, however, insists that, even if this rule was a reason- able regulation of the company, all rules, even if reasonable, " must have their exceptions," and whether it was reasonable to enforce the rule upon this occasion, was a question to be passed upon by a jury. In other words, it is claimed that the right of enforcement may depend upon the particular circumstances and, as the plaintiff had an excuse for non-compliance, in the present case, its reasonableness, or that of the conductor's conduct, became a question for the determination of the jury. I am unable to assent to the proposition. I think that, if the rule was a reasonable one, the passenger was bound to submit to it and that it was the duty of the conductor to enforce it. Therefore, in ejecting him from the car upon his refusal to submit, the conductor DANIEL V. NEW JERSEY STREET RAILWAY CO. 357 was acting lawfully in the discharge of his dut}'. The passenger, by his conduct, had forfeited his right to be carried any further. In Hibbard v. N. Y. & E. R. R. Co. (15 N. Y. 455), an early and lead- ing case, the question was fully discussed and its doctrine has been followed in this court. (Pease v. D., L. & W. R. R. Co., 101 N. Y. 367.) Barker v. Central Park, N. & E. R. R. R. Co. (151 N. Y. 237), is a recent case, in which the right of the carrier to make and to enforce its reasonable rules is distinctly recognized. It might be observed that there is quite a difference between such a case as the appellant's counsel mentions, where a passenger is ejected for failure to produce his ticket upon the conductor's request, which another con- ductor had previously taken up and retained, and such a case as this.' In the former case it could be argued, with more force, that the pas- senger's inability to comply with the conductor's request was caused by the mistake, or fault of another of the company's servants, and the theory of the corporate liability would be rested upon different propo- sitions. A railway company is not obliged to carry persons, unless they are willing to submit to, and to be bound b} T , the reasonable rules and regu- lations which it has established. The plaintiff, if in the ph}-sical con- dition described by him upon the da}- in question, was not obliged to travel upon the defendant's street car; but if he chose to do so, he was bound to submit to its regulations. He has no sufficient reason in law for complaining, because the conductor performed his duty and compelled him to leave the car. I think the order and judgment were right and should be affirmed, with costs. PARKER, C. J., O'BRIEN, LANDON and WERNER, JJ., concur ; HAIGHT and CULLEN, JJ., not voting. Order and judgment affirmed. DANIEL v. NEW JERSEY STREET RAILWAY COMPANY. COURT OF ERRORS OF NEW JERSEY, 1900. [64 N. J. L. 603.] GARRISON, J. The plaintiff, carrying in his arms in plain view a small goat, got on one of the cars of the defendant and paid his fare ; later he paid a second fare and received from the conductor a token that entitled him to be transferred to another car of the defendant com- pany. At the proper junction he presented this token to the conductor on the transfer car who refused to allow him to board the car with the goat. This was the plaintiff's case. A regulation of the defendant corporation forbidding the carrying of animals in its cars was proved, and the case went to the jury. The jury were told by the trial court that if the regulation in question was an unreasonable one, the defend- 358 DANIEL V. NEW JERSEY STREET RAILWAY CO. ant would be liable in damages for enforcing it, and that if it was a reasonable one the defendant, before enforcing it, must call the atten- tion of the passenger to it, which was not done in this case. In effect this directed a verdict for the plaintiff, without regard to the finding of the juiy upon the onl}' question submitted to it, viz., whether the regu- lation of the defendant allowing no animals to be carried in their cars was a reasonable one. Inasmuch as the court is unanimously of the opinion that it was error to submit this question to the jury, the judgment will be reversed for that error without reference to the assignment touching the necessity of giving notice of a reasonable regulation before enforcing it. The unanimity with which this result is reached does not, however, extend to the line of reasoning pursued in reaching it. Hence, no gen- eral rule upon the question of the relative functions of court and jury with respect to the reasonableness of corporate regulations can be laid down at this time. A majority of the court, however, are of opinion that the defendant company might lawfully adopt some regulation with respect to the carrying of animals on its cars, and that the reasonable- ness of such a rule, would be a question for the trial court and not for the jury. Whether, as a class, questions as to the reasonableness of corporate regulations are for the jury, to be taken from it only when deemed to be free from doubt ; or whether they are primarily court questions, to be left to jurors onh" when some other standard than that of reasonableness enters into the test of corporate duty, is a point upon which the majorit}' is not agreed inter sese. It suffices for the decision of the present case to sa}* that in either of these views it was error to leave to the jury the reasonableness of this regulation. It should have been decided by the court. To this extent the cases of State ?'. Overton, 4 Zab. 435 ; Morris CHANCELLOR (Earl of SELBOURNE). ... It certainly appears to their Lordships that the principle must be, when reasonable- ness comes in question, not what profit it may be reasonable for a corn- pan}- to make, but what it is reasonable to charge to the person who is charged. That is the only thing he is concerned with. They do not say that the case may not be imagined of the results to a company being so enormously disproportionate to the money laid out upon the undertaking as to make that of itself possibly some evidence that the charge is unreasonable, with reference to the person against whom it is charged. But that is merely imaginary. Here we have got a per- fectly reasonable scale of charges in everything which is to be re- garded as material to the person against whom the charge is made. 1 This case is abridged. ED. f COTTING V. GODDARD. 435 One of their Lordships asked counsel at the bar to point out which of these charges were unreasonable. It was not found possible to do so. In point of fact, every one of them seems to be, when examined with reference to the service rendered and the benefit to the person receiving that service, perfectly unexceptionable, according to any standard of reasonableness which can be suggested. That being so, it seems to their Lordships that it would be a very extraordinary thing indeed, unless the Legislature had expressly said so, to hold that the persons using the bridge could claim a right to take the whole accounts of the company, to dissect their capital account, and to dissect their income account, to allow this item and disallow that, and, after manipulating the accounts in their own way, to ask a court to say that the persons who have projected such an nndertaking as this, who have encountered all the original risks of executing it, who are still subject to the risks which from natural and other causes every such undertaking is subject to, and who may possibly, as in the case alluded to by the learned judge in the court below, the case of the Tay Bridge, have the whole thing swept away in a moment, are to be regarded as making unreason- able charges, not because it is otherwise than fair for the railway com- pany using the bridge to pay those charges, but because the bridge company gets a dividend which is alleged to amount, at the utmost, to fifteen per cent. Their Lordships can hardly characterize that argu- ment as anything less than preposterous. Their Lordships will, therefore, humbly advise Her Majesty that the judgment of the Court of Appeal of the Province of Ontario should be affirmed, and both these appeals dismissed with costs. COTTING v. GODDARD. SUPREME COURT OF THE UNITED STATES, 1901. [22 s. C. Rep. so. 1 ] APPEAL from a decree of the Circuit Court of the United States for the District of Kansas dismissing a complaint in a suit to restrain the enforcement of a statute. Reversed. Statement by Mr. Justice BREWER : In March, 1897, Charles U. Getting, a citizen of the State of Massa- chusetts, filed in the Circuit Court of the United States for the district of Kansas, a bill of complaint against the Kansas City Stock-Yards Company, a corporation of the State of Kansas, and certain officers of that company, and Louis C. Boyle, Attorney-General of the State of Kansas. A few days later Francis Lee Higginson, a citizen of the 1 This case is abridged. ED. 436 COTTING V. GODDARD. i State of Massachusetts, filed a bill of complaint in the same court and against the same parties. These suits were subsequently ordered by the court to be consoli- dated, and were thereafter proceeded in as one. The plaintiffs respectively alleged that they were stockholders of the Kansas City Stock- Yards Company, and that the suits were brought in their own behalf and that of other stockholders having a like interest, who might thereafter join in the prosecution thereof. The main pur- pose of the suits was to have declared invalid a certain act of the Legislature of the State of Kansas approved March 3, 1897, entitled " An Act Defining What shall Constitute Public Stock-Yards, Defining the Duties of the Person or Persons Operating the Same, and Regulat- ing All Charges thereof, and Removing Restrictions in the Trade of Dead Animals, and Providing Penalties for Violations of This Act." A temporary restraining order was granted, and subsequently a motion for a preliminary injunction was made. Pending that motion the court appointed a special master, with power to take testimony and report the same, with his findings, as to all matters and things in issue upon the hearing of the preliminary injunction prayed for. 79 Fed. 679. On August 24, 1897, the special master filed his report. On October 4, 1897, the motion for a preliminary injunction was heard on affidavits, the master's report, exceptions thereto on behalf of both parties, and arguments of counsel. The motion was refused and the restraining order, which had remained in force in the meantime, was set aside. 82 Fed. 839. A stipulation was thereupon entered into that the defendants should forthwith file their answers to the bills ; that replications thereto should be immediately filed ; and that the cases thus put in issue should be heard on final hearing, upon the pleadings, proofs, master's report, and exhibits, without further testimony from either partj". On October 28, 1897, after argument, the court dismissed the bills of complaint 82 Fed. 850. Mr. Justice BREWER. ... In this case, as heretofore indicated, a volume of testimony has been taken, mainly upon the question of the cost and value of the stock-yards, and the effect upon the income of the company by reason of the proposed reduction. This testimony was taken before a master, with instructions to report the cost of the stock- yards, the present value of the property, the receipts and expenditures thereof, the manner of operation, and such other matters as might be pertinent for a determination of the case. Stated in general terms, his findings were that the value of the property used for stock-yard pur- poses, including the value of certain supplies of feed and materials which were on hand December 31, 1896, is $5,383,003.25; that the gross income realized by the stock-yards compan}' during the year 1896, which was taken as representing its average gross income, was $1,012,271.22. The total expenditures of the company for all purposes during the same period amounted to $535,297.14, thus indicating a COTTING V. GODDARD. 437 net income for the j-earof $476,974.08. The court, however, increased the estimate of the net income by adding to the expenditures the sum of $13,584,65, expended in repairs and construction, thus placing the net income at the amount of $590,558.73. If the rates prescribed by the Kansas statute for yarding and feeding stock had been in force dur- ing the year 1896 the income of the stock-yards company would have been i-educed that year $300,651.77, leaving a net income of $289,916.96. This would have yielded a return of 5.3 per cent on the value of property used for stock-yard purposes, as fixed by the master. Or if the capital stock be taken after deducting therefrom such portion thereof which represents property not used for stock-yard purposes, the return would be 4.6 per cent. Counsel for appellants challenge the correctness of these findings, and seek to show by a review of the testimony that no such per cent of re- turn on the real value of the investment would be received by the com- pany in case the proposed reduction is put into effect. But, without stopping to enter into the inquiry suggested b}- their contention, it is enough for our present purpose to state in general the conclusions of the master and the court. On the other hand, it is shown by the findings, approved by the court, that the prices charged in these stock-yards are no higher, and in some respects lower, than those charged in any other stock-yards in the country, and finding 37 is ; ' The other stockyards heretofore enumerated are operated gen- erally in the same manner as those at Kansas Cit}-, and there is and was for a long time prior to March 12, 1897, active and growing compe- tition among their owners to attract and secure to each the shipment of live-stock from competitive territories. Kansas City is the greatest stocker and feeder market in the world, and while Chicago exceeds it as a general market, yet, because of the expense of transportation from Kansas City there, and the loss in weight by shrinkage during such transportation, the live-stock shipped to and sold at Kansas City in 1896 realized for its owners more than $1,500,000 in excess of the amount which would have been realized if forwarded from Kansas City to and sold on the Chicago market." Now, in the light of these decisions and facts, it is insisted that the same rule as to the limit of judicial interference must apply in cases in which a public service is distinctly intended and rendered and in those in which, without any intent of public service, the owners have placed their property in such a position that the public has an interest in its use. Obviously there is a difference in the conditions of these cases. In the one the owner has intentionally devoted his property to the dis- charge of a public service. In the other he has placed his property in such a position that, willingly or unwillingl}-, the public has acquired an interest in its use. In the one he deliberately undertakes to do that which is a proper work for the State. In the other, in pursuit of merely private gain, he has placed his property in such a position that the 438 COTTING V. GODDARD. public has become interested in its use. In the one it may be said that he voluntarily accepts all the conditions of public service which attach to like service performed by the State itself; in the other, that he sub- mits to only those necessary interferences and regulations which the public interests require. In the one he expresses his willingness to do the work of the State, aware that the State in the discharge of its pub- lic duties is not guided solely by a question of profit. It may rightfully determine that the particular service is of such importance to the public that it may be conducted at a pecuniary loss, having in view a larger general interest. At any rate, it does not perform its services with the single idea of profit. Its thought is the general public welfare. If in such a case an individual is willing to undertake the work of the State, may it not be urged that he in a measure subjects himself to the same rules of action, and that if the body which expresses the judgment of the State believes that the particular services should be rendered without profit he is not at liberty to complain ? While we have said again and again that one volunteering to do such services cannot be compelled to expose his property to confiscation, that he cannot be com- pelled to submit its use to such rates as do not pay the expenses of the work, and therefore create a constantly increasing debt which ultimately works its appropriation, still is there not force in the suggestion that as the State may do the work without profit, if he voluntarily undertakes to act for the State he must submit to a like determination as to the paramount interests of the public ? Again, wherever a purely public use is contemplated, the State may and generally does bestow upon the part}' intending such use some of its governmental powers. It grants the right of eminent domain, by which property can be taken, and taken, not at the price fixed bj* the owner, but at the market value. It thus enables him to exercise the powers of the State, and, exercising those powers and doing the work of the State, is it wholly unfair to rule that he must submit to the same conditions which the State ma}* place upon its own exercise of the same powers and the doing of the same work ? It is unneces- sary in this case to determine this question. We simply notice the arguments which are claimed to justify a difference in the rule as to property devoted to public uses from that in respect to property used solely for purposes of private gain, and which only by virtue of the conditions of its use becomes such as the public has an interest in. In reference to this latter class of cases, which is alone the subject of present inquir}', it must be noticed that the individual is not doing the work of the State. He is not using his property in the discharge of a purely public service. He acquires from the State none of its governmental powers. His business in all matters of purchase and sale is subject to the ordinary conditions of the market and the freedom of contract. He can force no one to sell to him, he cannot prescribe the price which he shall pay. He must deal in the market as others deal, buying only when he can buy and at the price at which the owner is COTTING V. GODDARD. 439 willing to sell, and selling only when he can find a purchaser and at the price which the latter is willing to pay. If under such circum- stances he is bound by all the conditions of ordinarj' mercantile transac- tions he may justly claim some of the privileges which attach to those engaged in such transactions. And while by the decisions heretofore referred to he cannot claim immunity from all State regulation he may rightfully say that such regulation shall not operate to deprive him of the ordinary privileges of others engaged in mercantile business. Pursuing this thought, we add that the State's regulation of his charges is not to be measured by the aggregate of his profits, determined b}* the volume of business, but by the question whether any particular charge to an individual dealing with him is, considering the service rendered, an unreasonable exaction. In other words, if he has a thousand transactions a day, and his charges in each are but a reason- able compensation for the benefit received by the party dealing with him, such charges do not become unreasonable because by reason of the multitude the aggregate of his profits is large. The question is not how much he makes out of his volume of business, but whether in each particular transaction the charge is an unreasonable exaction for the services rendered. He has a right to do business. He has a right to charge for each separate service that which is reasonable compensation therefor, and the Legislature may not deny him such reasonable com- pensation, and ma} 7 not interfere simply because out of the multitude of his transactions the amount of his profits is large. Such was the rule of the common law, even in. respect to those engaged in a quasi- public service, independent of legislative action. In any action to re- cover for an excessive charge, prior to all legislative action, who ever knew of an inquiry as to the amount of the total profits of the party making the charge ? Was not the inquiry alwaj-s limited to the par- ticular charge, and whether that charge was an unreasonable exaction for the services rendered ? Again, the findings show that the gross receipts for the year 1896 were $1,012,271.22 ; that the total number of stock received during the same time was 5,471,246. In other words, the charge per capita was eighteen cents and five mills. So that one shipping to the stock-yards one hundred head of stock was charged $18.50 for the privileges of the 3*ard, the attendance of the employees, and the feed furnished. While from these figures alone we might not say that the charges were reason- able or unreasonable, we cannot but be impressed with the fact that the smallness of the charge suggests no extortion. Further, as here- tofore noticed, the findings show that the establishment of these yards has operated to secure to the shippers during a single year $1,500,000 more than they would have realized in case of their non-existence and a consequent shipment to Chicago, the other great stock market of the country. " Another reason \vhy the classification should be based upon the vol- ume of business done is that rates which are reasonable and proper and COTTING V. GODDARD. furnish a sufficient return upon the capital invested can very properly be made lower and different in a plant where the volume of business is large, while in a smaller plant doing a smaller volume of business higher rates ma}' be necessary in order to afford adequate returns." If the average daily receipts of a stock-yard are more than one hun- dred head of cattle, or more than three hundred head of hogs, or more than three hundred head of sheep, it comes within the purview of this statute. If less than the amount it is free from legislative restriction. No matter what yards it may touch to-day or in the near or far future, the express declaration of the statute is that stock-yards doing a busi- ness in excess of a certain amount of stock shall be subjected to this regulation, and that all others doing less business shall be free from its provisions. Clearly the classification is based solely on the amount of business done, and without any reference to the character or value of the services rendered. Kindred legislation would be found in a stat- ute like this : requiring a railroad company hauling ten tons or over of freight a da}' to charge only a certain sum per ton, leaving to other railroad companies hauling a less amount of freight the right to make any reasonable charge ; or, one requiring a railroad company hauling one hundred or more passengers a day to charge only a specified amount per mile for each, leaving those hauling ninety -nine or less to make any charge which would be reasonable for the service ; or if we may indulge in the supposition that the Legislature has a right to inter- fere with the freedom of private contracts, one which would forbid a dealer in shoes and selling more than ten pairs a day from charging more than a certain price per pair, leaving the others selling a less number to charge that which they deemed reasonable ; or forbidding farmers selling more than ten bushels of wheat to charge above a spec- ified sum per bushel, leaving to those selling a less amount the privi- lege of charging and collecting whatever they and the buyers may see fit to agree upon. In short, we come back to the thought that the classification is one not based upon the character or value of the ser- vices rendered, but simply on the amount of the business which the party does, and upon the theory that although he makes a charge which everybody else in the same business makes, and which is perfectly rea- sonable so far as the value of the services rendered to the individuals seeking them is concerned, yet if by the aggregation of business he is enabled to make large profits his charges may be cut down. Reversed. INTERSTATE COMMERCE COM. V. CHICAGO, ETC. RY. CO. 441 INTERSTATE COMMERCE COMMISSION t>. CHICAGO GREAT WESTERN RAILWAY COMPANY. CIKCUIT COURT OF APPEALS, 1905. [141 Fed. 1004. 1 ] BETHEA, C. J. A careful examination of the opinions of that court (as well as the evidence taken in these cases) shows that there are a great many factors and circumstances to be considered in fixing a rate. Noyes, Am. R. R. Rates, pp. 61 et seq., 85-109. Among other things: (1) The value of the service to the shipper, including the value of the goods and the profit he could make out of them by shipment. This is considered an ideal method, when not interfered with by competition or other factors. It includes the theory so strenuously contended for by petitioners, the commission, and its attorneys, of making the fin- ished product carry a higher rate than the raw material. This method is considered practical, and is based on an idea similar to taxation. Interstate Commerce Commission v. B. & O. Ry. Co. (C. C.) 43 Fed. 37, 53; Noyes, Am. R. R. Rates, 53. (2) The cost of service to the carrier would be an ideal theory, but is not practical. Such cost can be reached approximately, but not accurately enough to make this factor controlling. It is worthy of consideration, however. Inter- state Commerce Commission v. B. & O. Ry. Co., supra; Ransome v. Eastern Railway Company (1857) 1 C. B. 437, 26 L. J. C. P. 91; Judson on Interstate Commerce, 148, 149; Western Union Tele- graph Co. v. Call Publishing Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; Interstate Commerce Commission v. Detroit, Grand Haven & Milwaukee Railroad Co., 167 U. S. 633, 17 Sup. Ct. 986, 42 L. Ed. 306. (3) Weight, bulk, and convenience of transportation. (4) The amount of the product or the commodity in the hands of a few persons to ship or compete for, recognizing the principle of selling cheaper at wholesale than at retail. Interstate Commerce Commis- sion v. B. & O. Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699. (5) General public good, including good to the shipper, the railroad company and the different localities. Interstate Commerce Commis- sion v. B. & O. Ry. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699. (6) Competition, which the authorities, as well as the experts, in their testimony in these cases, recognize as a very important factor. Pick- ering Phipps v. London & Northwestern Railway Company, 2 Q. B. D. (1892) 229 (this case construes section 2 of the English Act of 1854, 1 An extract only is printed. ED. 442 INTERSTATE COMMERCE COM. V. CHICAGO, ETC. RY. CO. which is almost like section 3 of our Interstate Commerce Act) ; Inter- state Commerce Commission v. B. & O. Ry. Co., supra; Cincinnati, "New Orleans & Texas Pacific Railway Company v. Interstate Com- merce Commission, 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935; Interstate Commerce Commission v. Alabama Midland Railway Com- pany, 168 U. S. 144, 18 Sup. Ct. 45, 42 L. Ed. 414; Louisville & Nash- ville Railroad Co. . Behlmer, 175 U. S. 648, 20 Sup. Ct. 209, 44 L. Ed. 309; East Tennessee, Virginia & Georgia Railway Co. v. Inter- state Commerce Commiss on, 181 U. S. 1, 21 Sup. Ct. 516, 45 L. Ed. 719; Texas & Pacific Railway Co. v. Interstate Commerce Commis- sion, 162 U. S. 197, 16 Sup. Ct. 666, 40 L. Ed. 940; Interstate Com- merce Commission t. Louisville & Nashville Railroad Co., 190 U. S. 273, 23 Sup. Ct. 687, 47 L. Ed. 1047. The Supreme Court has also held that it may be presumed that Congress, in adopting the language of the English act, had in mind the constructions given to the words "undue preference" by the courts of England. Interstate Commerce Commission v. B. & O. Ry. Co., 145 U. S. 284, 12 Sup. Ct. 844, 36 L. Ed. 699. None of the above factors alone are considered necessarily control- ling by the authorities. Neither are they all controlling as a matter of law. It is a question of fact to be decided by the proper tribunal in each case as to what is controlling. In every case the Supreme Court has held that competition may be controlling. In only one case has it, as a matter of fact, been held not to be a defense. KANSAS CITY SOUTHERN RAILWAY CO. V. UNITED STATES. 443 KANSAS CITY SOUTHERN RAILWAY COMPANY t>. UNITED STATES. SUPREME COURT OF THE UNITED STATES, 1913. [231 U. 8. 423. 1 ] MR. JUSTICE PITNEY delivered the opinion of the court. It is further insisted that even the theory upon which the account- ing regulations rest does not, when analyzed, justify a charge of aban- doned property to operating expenses, but at most a charge to profit and loss. The suggestion apparently has force; but, upon considera- tion, we are unable to see that it furnishes ground for judicial inter- ference with the course pursued by the Commission. Except for the contention (already disposed of) that the value of the abandoned parcels should be permanently carried in the property account as part of the cost of progress, it is and must be conceded that sooner or later it must be charged against the operating revenue, either past or future, if the integrity of the property accounts is to be maintained; and it becomes a question of policy whether it should be charged in solido to profit and loss (an account presumptively representative of past accumulations) or to the operating accounts of the present and future. If abandoned property is not charged off in one way or the other it remains as a permanent inflation of the property accounts, and tends to produce, directly or indirectly, a declaration of dividends out of capital. If it be charged off to the surplus account, it tends to prevent the declaration of dividends based upon a supposed accumulation of past earnings. If charged to operating expenses of the current and future years, it has a tendency to prevent the declaration of dividends from current earnings until the amount of the depreciation shall have been made up out of the earnings. 1 Only one point is printed. ED. 444 OPINION OF THE JUSTICES. OPINION OF THE JUSTICES. SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1919. [231 Mass. 60S. 1 ] We are of opinion that that act was constitutional and for these reasons: The means of transportation for people at large is a matter of public interest. In earlier times turnpikes and toll bridges in pri- vate ownership and management afforded facilities for travel. Grad- ual'y these mostly have been taken over by counties, cities and towns and the tolls abolished. Andover & Medford Turnpike Corp. v. County Commissioners, 18 Pick. 486. Murray v. County Commissioners, 12 Met. 455. Central Bridge Corp. v. Lowell, 4 Gray, 474; S. C. 15 Gray, 106. The ownership and operation of a ferry by a municipality con- travenes no constitutional limitation. Attorney General v. Boston, 123 Mass. 460. Steam railroads in their last analysis are highways for the use of the public. The Commonwealth has in several instances lent its aid to the construction of such railroads. See Kingman, petitioner, 153 Mass. 566, 570, for references to statutes. Numerous special statutes and finally a general law have been enacted authoriz- ing cities and towns to subscribe for stock of railroads. Kittredge v. North Brookfield, 138 Mass. 286. Commonwealth v. Williamstown, 156 Mass. 70. Such legislation is constitutional. Prince x. Crocker, 166 Mass. 347, 361. The Commonwealth contributed toward the construction of the Hoosac Tunnel and ultimately acquired the owner- ship and assumed the management of the Troy and Greenfield Rail- road. Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43. Amstein T. Gardner, 134 Mass. 4. Nearly forty early statutes incor- porating street railways contained a section whereby the municipality within which such railway was .constructed might acquire its prop- erty. The construction of the Boston subway for street railway pur- poses was held a public use for which money raised by taxation lawfully might be expended. Prince v. Crocker, 166 Mass. 347. The same is true of the East Boston Tunnel. Browne v. Turner, 176 Mass. 9. Property invested in street railways by private investors has been held to become thereby affected with a public interest. Donham v. Public Service Commission, 232 Mass. 309. It has been decided in other jurisdictions that the construction, acquisition and operation of street railways may be made a municipal function. 1 This opinion was unanimous; the full statement of the proposed enactments submitted which prefaces this opinion is omitted. ED. PENNSYLVANIA RAILROAD V. PHILADELPHIA COUNTY. 445 PENNSYLVANIA RAILROAD v. PHILADELPHIA COUNTY. SUPREME COURT OF PENNSYLVANIA, 1907. [220 Pa. St. HO. 1 ] Opinion of MR. CHIEF JUSTICE MITCHELL. But independently of this, true business principles require that the passenger and freight traffic not only may, but should be separately considered. The intelligent business of the world is done in that way. Every merchant and manufacturer examines and ascertains the un- profitable branches of his business with a view to reducing or cutting them off entirely, and there is no reason why a railroad or other cor- poration should not be permitted to do the same thing as long as its substantial corporate duties under its franchise are performed. While the public has certain rights which in case of conflict must prevail, yet it must not be forgotten that even so-called public service cor- porations are private property organized and conducted for private corporate profit. And unless necessary for the fulfillment of their corporate duties they should not be required to do any part of their business in an unbusinesslike way with a resulting loss. If part is un- profitable it is neither good business nor justice to make it more so because the loss can be offset by profit on the rest. To concede that principle would, as the court below indicated, permit the legislature to compel the carriage of passengers practically for nothing though the inexorable result would be that freight must pay inequitable rates that passenger travel may be cheap. The corporation is entitled to make a fan* profit on every branch of its business subject to the limi- tation that its corporate duties must be performed even though at a loss. What is a fair profit is, as already said, a highly complicated and difficult question. The learned court below availed themselves of all the best evidence that was offered or shown to be attainable, con- sidered it with exemplary patience and care, and their conclusion that the enforcement of the Act of 1907 against the complainant would do injustice to the corporators is beyond just criticism. Decree affirmed. 1 Only the concluding part of the opinion is printed. ED. 446 THE MINNESOTA RATE CASES. THE MINNESOTA RATE CASES. SUPREME COURT OF THE UNITED STATES, 1912. [230 U. S. 352. 1 ] MR. JUSTICE HUGHES delivered the opinion of the court. The interblending of operations in the conduct of interstate and local business by interstate carriers is strongly pressed upon our at- tention. It is urged that the same right-of-way, terminals, rails, bridges, and stations are provided for both classes of traffic; that the proportion of each sort of business varies from year to year and, in- deed, from day to day; that no division of the plant, no apportionment of it between interstate and local traffic, can be made to-day, which will hold to-morrow; that terminals, facilities and connections in one State aid the carrier's entire business and are an element of value with respect to the whole property and the business hi other States; that securities are issued against the entire line of the carrier and cannot be divided by States; that tariffs should be made with a view to all the traffic of the road and should be fair as between through and short- haul business; and that, in substance, no regulation of rates can be just, which does not take into consideration the whole field of the car- rier's operations, irrespective of state lines. But these considerations are for the practical judgment of Congress in determining the extent of the regulation necessary under existing conditions of transportation to conserve and promote the interests of interstate commerce. If the situation has become such, by reason of the interblending of the interstate and mtrastate operations of inter- state carriers, that adequate regulation of their interstate rates can- not be maintained without imposing requirements with respect to their intrastate rates which substantially affect the former, it is for Congress to determine, within the limits of its constitutional authority over interstate commerce and its instruments the measure of the regu- lation it should supply. It is the function of this court to interpret and apply the law already enacted, but not under the guise of construction to provide a more comprehensive scheme of regulation than Congress has decided upon. Nor, in the absence of Federal action, may we deny effect to the laws of the State enacted within the field which it is en- titled to occupy until its authority is limited through the exertion by Congress of its paramount Constitutional power. 1 Only an extract is printed. ED. GLOUCESTER WATER SUPPLY CO. V. GLOUCESTER. 447 GLOUCESTER WATER SUPPLY CO. u GLOUCESTER. SUPREME COURT OF MASSACHUSETTS, 1901. [179 Mass. 365. 1 ] PETITION to determine the value of the petitioner's water plant pur- chased by the respondent on September 24, 1895, under St. 1895, c. 451, 16, filed October 29, 1895. Commissioners were appointed under the provisions of the act, who reported that the value of the plant, exclusive of any allowance for the franchise and rights other than the water rights of the company, and excluding all evidence as to the past earning capacity of the company, was $600,500, and that the petitioner should recover that amount with interest from September 24, 1895, less the sum of $3,955.40, which it was agreed should be deducted therefrom. LORING, J. ... It will be convenient to consider the respondent's contention that the commissioners had no right to award the $75,000 allowed by them in addition to the cost of duplication of the water company's plant, less depreciation, in connection with the water com- pany's contention that evidence of past earnings of the water company should have been admitted in evidence. The act under which the award was made (St. 1895, c. 451) is an act enabling the city of Gloucester to " supply itself and its inhabitants with water." By 16 of that act, that right is made conditional on its, the city's, purchasing the property of the water company in case the water company elects to sell its property to the city. In case the city agrees to buy the water compan}''s property, under an offer of the water company made under the provisions of that section, it is provided that "said city shall pay to said company the fair value thereof. . . . Such value shall be estimated without enhancement on account of future earning capacity, or future good will, or on account of the franchise of said company." In determining the true construction of these provisions of 16, it is important to bear in mind the purpose, which the Legislature had, in making the right of the city to supply itself with water conditional on its buying the company's property, in case the company elected to sell it to the city, and in providing that in ascertaining the "fair value " of that property, it should not be enhanced " on account of future earning capacity, or future good will, or on account of the fran- chise of said company." On the one hand, it is plain that a private water company organized for net profits cannot hope to compete with a city, which can rely upon taxes to supply a deficit in operating expenses. For that reason, it is also plain that if the Legislature had not required the city to buy the 1 This case is abridged. ED. 448 GLOUCESTER WATER SUPPLY CO. V. GLOUCESTER. water company's propert}-, the company's property would have been practically, though not legally, confiscated. No doubt, therefore, can arise as to the reasons for the insertion of the clause in 16 providing that the value shall not be enhanced " on account of the franchise of said compan}'." The franchise of the Gloucester Water Supply Com- pany was not an exclusive franchise. The grant of a similar franchise to the city of Gloucester to supply itself and its inhabitants with water was not a violation of the franchise rights of the Gloucester Water Supply Company; and finally, the sale to the city was not obligatory on the water company. The company was given the option of selling its property to the city or of going on in competition with the city, under the act in question. Under these circumstances, it is plain that the value of the company's property, which the city is compelled to buy, ought not to be enhanced "on account of the franchise of said company." It is also plain, so long as a water company has no competitor in supplying a town or city with water, it is practically in the enjoyment of an exclusive franchise, although its franchise is not legally an ex- clusive one. For that reason, the past earnings of this company -were not evidence of the " fair value " of this property. The earnings of a company which is in the enjoyment of what is practically an exclusive franchise are not a criterion of the " fair value" of the property apart from an exclusive franchise. We are of opinion that the evidence of past earnings offered by the water company' was properly excluded. Newburyport Water Co. v. Newburyport, 168 Mass. 541. It is argued by the petitioner that the admissibility of such evidence derives support from St. 1891, c. 370, 12, which provides that in determining the " fair market value " of a gas or electric plant under similar circumstances " the earning capacity of such plant based upon the actual earnings being derived from such use at the time of the final vote of such city or town to establish a plant" is to be included " as an element of value ; " but this clause as to the earning capacitj' being considered as an element of value was omitted from the act in question. The only doubt as to the propriety of the allowance of a sum in addition to the cost of duplication, less depreciation, of the water com- pany's plant is whether the principles on which the commissioners proceeded were sufficiently favorable to the water company. It is plain that the real, commercial, market value of the property of the water company is, or may be, in fact, greater than " the cost of duplication, less depreciation, of the different features of the physical plant." Take, for example, a manufacturing plant : Suppose a manu- facturing plant has been established for some ten j'ears and is doing a good business and is sold as a going concern ; it will sell for more on the market than a similar plant reproduced physically would sell for immediately on its completion, before it had acquired any business. National Waterworks Co. v. Kansas City, 62 Fed. Rep. 853. BRYMER V. BUTLER WATER CO. 449 We think it is plain that there is nothing in the provisions of 16 of the act in question, St. 1895, c. 451, forbidding the commissioners considering this element of value which, as we have seen, in fact exists. The provisions of the act are that the " fair value . . . shall be estimated without enhancement on account of future earning capacit}-, or future good will, or on account of the franchise of said company." Whether that would allow present earning capacity and present good will, apart from the franchise, to be taken into account, as distinguished from future earning capacity and future good will, need not be considered. It is plain that the element of value, which comes from the fact that the property is sold as a going concern, in which case it has, or may have, in fact, a greater market value than the same property reproduced in its physical features, is not excluded from consideration by that provision of the statute. It is also plain that the commissioners, in allowing the $75,000 allowed by them in addition to the cost of duplication, less deprecia- tion, of the plant in its physical features, did not go beyond this. They state that in their opinion " the cost of duplication, less deprecia- tion, of the. different features of the physical plant, . . . does not represent a fair valuation of this plant, welded together, not only fit and prepared to do business, but having brought that business into such a condition that there is an enhanced value created thereby, so that the city in purchasing it, without considering its income or right to do business, but having the power to cany it on on its own account, should pay more for the property as such than as if this consideration did not obtain. This is a value that we have found to be seventy-five thousand dollars ($75,000) that has been imported into the plant, which seems to us as much a part of the property valuation as any other part of it." Report affirmed. BRYMER v. BUTLER WATER CO. SUPREME COURT OF PENNSYLVANIA, 1897. [179 Pa. St. 231.1] WILLIAMS, J. . . . A provision in the third section of the Act of June 2, 1887, relating to the jurisdiction of the courts over gas and water companies is supplemental to the Act of 1874, and defines some- what more distinctly the duty of such companies to furnish the public with pure gas and water, but it contains no allusion to the subject of price. The power of the court to interfere between the seller and the buyer of water is conferred only by the provisions already quoted from the Act of 1874 ; and that act authorizes the court to entertain the 1 This case is abridged. ED. 29 450 BRYMER V. BUTLER WATER CO. complaint of the buyer, to investigate the reasonableness of the price charged, and to " dismiss the complaint," or to order that the charges complained of, if found to be unreasonable and unjust, " shall be decreased." The water company prepares its schedule of prices in the first instance, and makes its own terms with its customers ; but if these are oppressive, so that in the exercise of the visitorial power of the State the just protection of the citizen requires that they be reduced, then the court is authorized to say " this charge is oppressive. You must decrease it. You are entitled to charge a price that will yield a fair compensation to you, but you must not be extortionate." This is not an authority to manage the affairs of the company, but to restrain illegal and oppressive conduct on its part in its dealings with the public. It may be that the power to order that any particular item of charge shall " be decreased " includes the power to fix the extent of the reduction that must be made, or to name the maximum charge for the particular service in controversy, which the court will approve, but the decree is that the item shall " be decreased " either general! y or to a sum named. The schedule of charges must be revised accordingly by the company defendant, and such revision may be compelled in the same manner that the decree of the same court ma}' be enforced in other cases. We do not think this supervisory power would justify the court in preparing a tariff of water rents and commanding a corporation to furnish water to the public at the rates so fixed. This would involve a transfer of the management of the property, and the business of a solvent corporation, from its owners to a court of equity, for no other reason than that the court regarded some one or more of the charges made by the company as too high. The Act of 1874 contemplates no such radical departure from established rules as this, but provides simply for the protection of the citizen from extortionate charges specifically pointed out and complained of by petition. This leads us to the second question raised, viz. : by what rule is the court to deter- mine what is reasonable, and what is oppressive? Ordinarily that is a reasonable charge or system of charges which }'ields a fair return upon the investment. Fixed charges and the costs of maintenance and operation must first be provided for, then the interests of the owners of the property are to be considered. They are entitled to a rate of return, if their property will earn it, not less than the legal rate of interest ; and a system of charges that yields no more income than is fairty required to maintain the plant, pa)- fixed charges and operating expenses, provide a suitable sinking fund for the payment of debts, and pay a fair profit to the owners of the property, cannot be said to be unreasonable. In determining the amount of the investment by the stockholders it can make no difference that money earned b}* the cor- poration, and in a position to be distributed by a dividend among its stockholders, was used to pa}* for improvements and stock issued in lieu of cash to the stockholders. It is not necessary that the money BRYMER V, BUTLER WATER CO. 451 should first be paid to the stockholder and then returned by "him in paj-ment for new stock issued to him. The net earnings, in equity, belonged to him, and stock issued to him in lieu of the money so used that belonged to him was issued for value, and represents an actual investment b}* the holder. If the company makes an increase of stock that is fictitious, and represents no value added to the property of the corporation, such stock is rather in the nature of additional income than of additional investment. This whole subject was brought to the attention of the learned judge by a request that he should find as a matter of law that the reasonableness of the charges must be deter- mined with reference to the expenditure in obtaining the supply, and providing for a fund to maintain the plant in good order, and pay a fair profit upon the money invested by the owners, and that a rate which did no more than this was neither excessive nor unjust. This the learned judge refused to find, saying in reply to the request, " we have no authorit}' for such a ruling, und it would be unjust to the consumer who would have to pay full cost of the water, provide a sinking fund, secure a reasonable profit upon the investment, and have no voice in the management of the business of the company. The act of assembly in this regard can bear no such construction." This ruling cannot be sustained. The cost of the water to the com- pany includes a fair return to the persons who furnished the capital for the construction of the plant, in addition to an allowance annuallj' of a sum sufficient to keep the plant in good repair and to pa\- any fixed charges and operating expenses. A rate of water rents that enables the company to realize no more than this is reasonable and just. Some towns are so situated as to make the procurement of an ample supply of water comparatively inexpensive. Some are so situated as to make the work both difficult and expensive. What would be an extortionate charge in the first case might be the ver}- least at which the water could be afforded in the other. The law was correctly stated in the defend- ant's request, and the court was in error in refusing it. But we think the court had no power to adopt for, and enjoin upon, the company a comprehensive schedule like that incorporated into the decree in this case. The decree found that the water supply furnished b} T the defend- ant company was abundant and "reasonably pure and fit for public use," but, without any adjudication that any particular charge or charges complained of were excessive and must be decreased, he made a decree that " the water rates of the defendant company from March 1, 1896, to be charged and collected from the plaintiffs for water by the defend- ant company to the plaintiffs shall be as follows : " Then follows a table filling two and a half pages of the appellant's paper-book, and providing specifically for domestic rates, for livery, hotel, and trading stables, for hotels and boarding houses, for fountains, steam engines, schools, motors, public buildings, special rates, and meter rates, sub- ject to provision that "when the water" which the same decree had just pronounced to be reasonably pure and suitable for domestic use 452 STEEXERSON V. GREAT NORTHERN RAILWAY. " is properly filtered the charges may be increased twenty per cent." The school district of Butler was not a party complainant in this case v nor was the county of Butler, but both were taken under the protection of the court and specificallj' provided for by the decree. Fountains are luxuries. The question whether the police power of the State can be successfully invoked to cheapen the price of water furnished for purposes of display or the mere gratification of one's taste, is at least open to discussion, but, without discussion, it is disposed of by this decree, and the price reduced. In short, upon a general complaint that the rates charged by the defendant were too high, without specifi- cation of the particular charges that were alleged to be excessive, the court has undertaken to revise the entire schedule of prices, and instead of directing the company to decrease the objectionable charges, has formulated an entirely new schedule of prices, covering all of the business of the company. This new schedule it has framed upon the mistaken basis adopted and stated in the third conclusion of law already considered. This action is not authorized by the Act of 1874. It is not the hearing of a complaint against the charges made by the company and a decision of the controversy so arising, but it is the assumption of a power to frame a schedule of prices covering the entire business of the company, with all its customers, man}- of whom are not even complaining of the rates paid by them. The framing of such a general schedule is ordinarily the right of the company. The correction of this schedule when framed, whenever it may work injus- tice and hardship is the prerogative of the court, and one which should be fearlessl}- exercised. For reasons now given this decree cannot be affirmed, but under the peculiar circumstances surrounding this case we cannot enter a simple decree of reversal. STEENERSON v. GREAT NORTHERN RAILWAY CO. SUPREME COURT OF MINNESOTA, 1897. [69 Minn. 353.1] THE plaintiff, Elias Steenerson, in 1893 filed a complaint with the Railroad and Warehouse Commission, complaining that the tariff of charges of the Great Northern Railway Company for the transportation of wheat, oats, barley, and other grains from Crookston, Fisher, and East Grand Forks, to the terminals Minneapolis, Duluth, and St. Paul, were unjust and unreasonable, in that they were at least one-third too high, and asked that the same be reduced to and fixed at twelve cents per hundred pounds between Crookston and either of said terminals, 1 This case is abridged. ED. STEENERSON V. GREAT NORTHERN RAILWAY. 453 and between other stations on said railway and said terminals in pro- portion, or to a just and reasonable rate. The defendant company made answer to such complaint, admitted the existence of charges as alleged in the complaint, and alleged that its rates and charges, ''in- cluding those in question," were in all respects reasonable and just. MITCHELL, J. . . . 1. It must now be accepted as the settled law that, when rates of charges by railway companies have been fixed by the legislature or a commission, the determination of the question whether such rates are " reasonable "or " unreasonable " is a judicial function. But this is so, not because the fixing of rates is a judicial function (for all the authorities agree that it is a legislative one), but solel}* by virtue of the constitutional guarant}' that no one shall be de- prived of his property without due process of law. Therefore the only function of the courts is to determine whether the rates fixed violate this constitutional principle. Courts should be ver} T slow to interfere with the deliberate judgment of the legislature or a legislative commission in the exercise of what is confessedly a legislative or administrative function. To warrant such interference, it should clearly appear that the rates fixed are so grossly inadequate as to be confiscatory, and hence in violation of the constitu- tion. It is not enough to justify a court in holding a rate " unreason- able," and hence unconstitutional, that, if it was its province to fix rates, it would, in its judgment, have fixed them somewhat higher. Any such doctrine would result, in effect, in transferring the power of fixing rates from the legislature to the courts, and making it a judicial, and not a legislative, function. When there is room for a reasonable difference of opinion, in the exercise of an honest and intelligent judg- ment, as to the reasonableness of a rate, the courts have no right to set up their judgment against that of the legislature or of a legislative commission. In my opinion, it is only when a rate is manifestly so grossly inadequate that it could not have been fixed in the exercise of an honest and intelligent judgment that the courts have any right to declare it to be confiscatory. This seems to be substantially the doc- trine suggested in Spring v. Schottler, 110 U. S. 347-354, 4 Sup. Ct. 48, which, so far as I can discover, is the first case in which that court suggested any modification or limitation of the doctrine of the so-called " Granger Cases." And I think it is the doctrine which the courts must finally settle down on, unless they are prepared to assume the function of themselves fixing rates. 2. What is a reasonable rate is a most difficult question, and it is doubtful whether any single rule for determining it can be laid down that would be complete, and alike applicable to all cases. But as good a general rule as I have found is that stated by counsel for the North- ern Pacific Railway Company in this case, to wit : *' If a railroad is built and operated wisely and economically ; if it is located where public need requires it, where there is business to justif}- its existence, and constructed so as to be fit and well adapted for the 454 STEENERSON V. GREAT NORTHERN RAILWAY. business which it aims to accommodate, it should be entitled to re- turn as good interest [on the cost of the reproduction of the road] as capital invested in the average of other lines of enterprise." It seems to me that it follows, as corollaries from this rule, that First, the cost of reproduction must be estimated on a present cash basis, and that it can make no difference whether a road was originally built with cash capital paid In by the stockholders, or with borrowed money secured by mortgage on the property ; and, second, a rate ma}- be reasonable during times of general financial and business depression, when capital invested in all lines of enterprise is yielding a small re- turn, which would be unreasonable in prosperous times, when capital invested in business enterprises is yielding a much larger return. There is no constitutional principle which guarantees the capital in- vested in railroads immunity from business vicissitudes to which capital invested in all other enterprises is subject. These propositions are fully discussed in the opinion. The courts should take notice of the general depression in business prevailing in 1894. 3. Where capital (including labor) invested in the production of any article or commodity is comparatively uuremunerative, yielding but a small return, a rate for the transportation of such article or com- modity may be reasonable, although, if the carrier was required to do all his business, at rates fixed on a corresponding basis, such rates would be unreasonable, to the extent of being confiscatory. This is but an enlarged application of a principle already suggested. It is a principle upon which railroads themselves act every day in fixing rates, recognizing as they do that rates are largely dependent upon compe- tition among producers or shippers. Of course, this proposition has its limitations, but it is unnecessary to discuss them here. The courts, I think, should take notice of the small profit in raising grain in Min- nesota in and about 1894, owing to the comparatively low prices then prevailing. I will not go into any discussion of the evidence, or any analysis of the labyrinth of figures and estimates presented in the testimony. That has been very exhaustively, and, as I think, correctl}', done by Justice CANTY. Applying the rules I have suggested to the evidence, I do not think any court would be justified in holding that the railroad company has satisfactorily proved that the rates fixed by the commis- sion for the transportation of grain are " unreasonable ; " that is, if enforced, they would be confiscatory. ILLINOIS CENTRAL R.R. CO. V. INTERSTATE COMMERCE COMM. 455 ILLINOIS CENTRAL RAILROAD COMPANY v. INTERSTATE COMMERCE COMMISSION. SUPREME COUKT OF THE UNITED STATES, 1907. [206 U. S. 4U. 1 ] APPEAL from the Circuit Court of the United States for the Eastern District of Louisiana to review a decree enforcing an order of the Inter- state Commerce Commission requiring carriers to desist from charging an increased freight rate on lumber. Affirmed. MR. JUSTICE McKENNA. This comment, it may be said, is not applicable to the ninth and tenth propositions of appellants, as they present propo- sitions of law which were not only disregarded by the Commission, but the antithesis of them was asserted in the eighth finding. This contention must be specifically considered. The Commission finds that the net and gross earnings of the appellants have grown from year to year, and also that what they have reported as operating expenses have also grown. But in these operating expenses there were included "expenditures for real estate, right of way, tunnels, bridges, and other strictly permanent improvements, and also for equipment, such as locomotives and cars." The Commission expressed the opinion that such expenditures should not be charged to a single year, but " should be, as far as practicable and so far as rates exacted from the public are concerned, ' projected proportionately over the future.'" And it was said: "If these large amounts are deducted from the annual operating expenses reported by the defendants (appellants), it will be found that the percentage of op- erating expenses to earnings has in some instances diminished and in others increased to no material extent." The exact effect of the differ- ence of view between appellants and the Commission as to operating expenses there is no test ; but it cannot be said, even if the commission was wrong as to such expenses, that error in its ultimate conclusion is demonstrated or that the correctness of the conclusion is made so doubtful as to justify a reversal. The findings show that the old rates were profitable and that dividends were declared even when permanent improvements and equipment were charged to operating expenses. But may they be so charged? Appellants contend that the answer should be so obviously in the affirmative that it should be made an axiom in transportation. On principle it would seem as if the answer should be otherwise. It would seem as if expenditures for additions to construction and equipment, as expenditures for original construction and equipment, should be reimbursed by all of the traffic they accommo- date during the period of their duration, and that improvements that will last man}' years should not be charged wholly against the revenue of a single year. 1 Only one point is printed. ED. 456 LONG BRANCH COMMISSION V. TINTERN MANOR WATER CO. LONG BRANCH COMMISSION o. TINTERN MANOR WATER COMPANY. COURT OP CHANCERY OP NEW JERSEY, 1905. [70 N.J.Eg.71*] ACTION by the Long Branch Commission against the Tintern Manor Water Company, to restrain defendant from cutting off water supply to the city of Long Branch, and to fix reasonable rates for sucb supply- Decree for complainant. PITNEY, V. C. The supplying company is, as we have seen, under obligation to keep in advance of the present demand and take liberal account of the probable increase of demand due to increase of popula- tion. I think the language of Mr. Justice DIXON, in Slingerland v. Newark, 54 N. J. Law, 62, at page 69, 23 Atl. 129, at page 131, is apt on this point : " It would, of course, be absurd for the city to construct water works adequate only for its present wants, and the prosecutor does not assert that the works now contemplated are unreasonably large in view of the city's prospective growth." This is in strict accord with what was said (and above referred to) by Justice VAN SYCKEL, in Olm- stead v. Morris Aqueduct, 47 N. J. Law, 329, as follows : " In a matter of extreme necessity all contingences must be provided for, and the supply must be so ample that a lack of water cannot be apprehended." To the same effect are the more extended remarks of Judge PARKER in the Supreme Court in the same case, reported in 46 N. J. Law, 500. The learned judges in these cases were discussing the question of ne- cessity for the exercise of the eminent domain. The argument from such premises to the present is a fortiori. These considerations lead to the conclusion that the water company when it starts with new works, or a large addition to the original supply, is entitled to an income there- from somewhat greater than what is due to the cost of work sufficient merely to meet the present demands. I say "somewhat greater" for I do not mean to be understood as holding that capitalists ought to expect an immediate compensatory income from an enterprise of this character. But on the other hand it would be manifestly unjust to expect them to invest their money in a plant necessarily larger than present demands require and take as an income therefor such a sum as would satisfy an in- vestment sufficient to meet present demands. For here comes in again* 1 This opinion BO elaborately discusses the testimony that it was thought to be too unwieldy for inclusion here. The analysis of his problem with which the rice chancellor begins this discussion is particularly noteworthy. " First. What annual compensation ought the defendant to have for the supply of water which it is giving, and agrees to continue to give, to the inhabitants of the territory covered by the Long Branch Com- mission ' Second. How shall that compensation be distributed between the municipal- ity, as such, for public purposes on the one hand, and the private consumers on the other ? Third. As between the private consumers themselves 1 " On the point of proper capitalization there is one point for which the case will often be quoted ; and an extract from the introduction to this is included. ED. WILLCOX ET AL V. CONSOLIDATED GAS COMPANY. 457 with great force, the consideration previously mentioned, that the mu- nicipality cannot bind itself for more than 10 years ; and, in fact, need not bind itself at all for any period, and it holds in its hands the abso- lute power to oust the water company at any time it shall so choose and may exercise that power as soon as by the increase of population and demand, the investment by the capitalists shall have become actually profitable. HOUSTON & TEXAS CENTRAL RAILWAY COMPANY v. STOREY ET AL. CIRCUIT COURT OF THE UNITED STATES, 1906. [149 Fed. 499.] ON demurrers to bills to enjoin the schedule of passenger rates pre- scribed by the railroad commission. MAXEY, District Judge. 8. The ninth demurrer challenges the right of the plaintiff, as claimed in paragraph 10 of the bill, to earn an amount sufficient to provide a sinking fund for the discharge of its in- debtedness, in addition to paying the interest thereon. This claim of the plaintiff was doubtless based upon the decision of the Supreme Court of Pennsylvania. See Brymer v. Butler Water Co., 179 Pa. 251, 36 Atl. 249, 36 L. R. A. 260. With due respect for the opinion of that high tribunal, this court is unable to concur in the view expressed by it, and therefore sustains the demurrer. WILLCOX ET AL CONSTITUTING THE PUBLIC SERVICE COMMISSION OF NEW YORK v. CONSOLIDATED GAS COMPANY. SUPREME COURT OF THE UNITED STATES, 1909. [212 U. S. 19. 1 ] THE appellee, complainant below, filed its bill May 1, 1906, in the United States Circuit Court for the Southern District of New York 1 Only a part of the opinion is printed. ED. 458 WILLCOX ET AL V. CONSOLIDATED GAS COMPANY. against the city of New York, the Attorney General of the State, the District Attorney of New York County and the Gas Commission of the State, to enjoin the enforcement of certain acts of the legislature of the State, as well as of an order made by the Gas Commission, Feb- ruary 23, 1906, to take effect May 1, 1906, relative to rates for gas in New York City. MR. JUSTICE PECKHAM. We think that under the above facts the courts ought to accept the valuation of the franchises fixed and agreed upon under the act of 1884 as conclusive at that time. The valuation was provided for in the act, which was followed by the companies, and the agreement regarding it has been always recognized as valid, and the stock has been largely dealt in for more than twenty years past on the basis of the validity of the valuation and of the stock issued by the company. But although the State ought, for these reasons, to be bound to rec- ognize the value agreed upon in 1884 as part of the property upon which a reasonable retjirn can be demanded, we do not think an increase in that valuation ought to be allowed upon the theor}* sug- gested by the court below. Because the amount of gas supplied has increased to the extent stated, and the other and tangible property of the corporations has increased so largely in value, is not, as it seems to us, any reason for attributing a like proportional increase in the value of the franchises. Real estate may have increased in value very largely, as also the personal property, without any necessary increase in the value of the franchises. Its past value was founded upon the oppor- tunity of obtaining these enormous and excessive returns upon the property of the company, without legislative interference with the price for the supply of gas, but that immunity for the future was, of course, uncertain, and the moment it ceased and the legislature reduced the earnings to a reasonable sum the great value of the franchises would be at once and unfavorably affected, but how much so it is not possi- ble for us now to see. The value would most certainly not increase. The question of the regulation of rates did from time to time thereafter arise in the legislature and finally culminated in these acts which were in existence when the court below found this increased value of the franchises. We cannot, in any view of the case, concur in that finding. MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. 459 MILWAUKEE ELECTRIC RAILWAY AND LIGHT CO. v. CITY OF MILWAUKEE. CIRCUIT COURT OF THE UNITED STATES, 1898. [87 Fed. 577. !] FINAL hearing in two actions, one wherein the street railway com- pany is complainant, and the other brought by the trustee for the bondholders, each seeking a decree declaring null and void, in re- spect of the complainant, a purported ordinance of the defendant city entitled "An ordinance to regulate the rate of fare upon the street railways in the city of Milwaukee, and providing for the sale of pack- ages of tickets thereon," approved June 11, 1896, and to perpetually enjoin its enforcement. SEAMAN, District Judge. . . . The difficulties presented in this case do not, therefore, rest in any doubt as to the general principles which must be observed, nor in ascertaining the actual facts disclosed by the testimony as a whole, so far as material to this controversy. Although the testimony on the part of complainant makes a volume of 1,445 printed pages, and that of the defendant 163 pages, the only sub- stantial contentions of fact relate to items of expenditure and claims of credit by way of depreciation, presented on behalf of the complain- ant as entering into the showing of net revenue, and to the present or reproduction value of the plant. And it may be remarked, in passing, that this testimony is so well classified and indexed, with such fair summaries in the briefs, that the task of examination has been materi- ally lightened. But the sole embarrassment in the inquiry arises from the wide divergence which appears between the actual and undisputed amount of the cash investment in the undertaking, and the estimates, on either hand, of the amounts for which the entire plant could now be reproduced, in the view that the line of authorities referred to does not attempt to define or specify an exact measure or state of valuation, and leaves it, within the principles stated, that " each case must de- pend upon its special facts." Therefore the twofold inquiries of reasonableness above indicated are of mixed law and fact, and start with the presumption, in favor of the ordinance, (1) that the prevailing rates exacted too much from the public, and (2) that those prescribed are reasonable. 1. Are the terms and rates fixed by the company excessive demands upon the public, in view of the service rendered? The Milwaukee Street Railwa}' Compam*, of which the complainant is the successor in interest, was organized in December, 1890, for the purpose of establishing an electric street railway system, which should cover the entire field for the city of Milwaukee. There were then in operation 1 This case is abridged. ED. 460 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. five distinct lines, owned separately, operated mainly by horse or mule power, each charging separate fares, and having no system of transfers. It is conceded that the service was slow and antiquated, was not well arranged for the wants of the city, and was generally inadequate and unsatisfactory. As the old lines occupied the principal thoroughfares, and the public interest prevented the allowance of double lines in such streets, the improvement could not be made effective unless those lines were purchased, or in some manner brought into the proposed system. The}* were gradually acquired, at prices which may appear excessive when measured by results, and during the ensuing period of about three years the work of installing the new system was carried on, involving an entire reconstruction and rearrangement of the old lines and extensions, and new and improved equipments throughout, at an expenditure of over $3,000,000, aside from the cost of the old lines. As a result, at the time the ordinance was adopted, the mileage of tracks had increased from the previous aggregate of 110 miles to 142.89 miles, reaching every section of the city, with shorter and better routes, and furnishing 38 transfer points, with a universal transfer system, a feature of special value to the public, as a single fare of five cents gives a maximum length of ride more than double the old arrangement. The service was improved in speed and regularity 50 per cent or more, with better cars and less inconvenience, and it appears beyond question that it was generally more satisfactory and economical from the standpoint of the public. In other words, the service was materially enhanced in its value to the public, without any increase in either normal or maximum charges, affording rides for five cents which had previous!}' cost two and even three fares ; and against all these advantages there appears only a single benefit extended by three out of the five constituent companies which is not given under the new arrangement, namely, in the sale of commutation tickets, an omission for which there seems to be plausible excuse and offset in the universal system of transfers, aside from the other advantages. Surely, therefore, no imposition upon the public appears through any compari- son between the old and the new service and rates. Nor does it find any countenance in comparison with either service or rates which pre- vail in other cities, for it is shown in this record, and is undisputed, that the five-cent rate is almost universal ; that commutations are exceptional in cities of like class, and arise out of exceptional condi- tions, which are not fairly applicable here ; and that instances of lower rates are so clearly exceptional that they cannot have force for any affirmative showing of reasonableness in the instant case. Neverthe- less, with the burden of proof on the defendant, these considerations are not controlling, unless it further appears that the earnings of the company are insufficient, in view of the amount which may justly be regarded as the investment in the undertaking, to warrant the making of rates and terms which are more advantageous to the public. The interests of the public in its highways are paramount, and, if the service MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. 461 can reasonably be afforded more cheaply in Milwaukee than in other cities of like class, the community is entitled to the just benefit of any possible conditions which may tend to that result. The issue in that regard must be met under the second branch of inquir}', but I am clearly satisfied that this first question must be answered in favor of the complainant, if the evidence sustains its claim that lower rates would be confiscatory, and not compensatory. 2. Are the earnings of the property insufficient, in view of all the conditions, to justify this reduction in the rates of fare? Solution of this inquiiy depends upon the showing (1) of earning capacity at exist- ing rates, and (2) of the " amount really and necessarily invested in the enterprise," and upon the conclusion (3) whether the ratio of return upon the investment is excessive. In the statements which are referred to both parties have adopted a ratio, so far as necessary, to separate the electric lighting plant owned by the complainant, so that the statements which follow relate exclusively to the street railway plant, except where otherwise mentioned. First. The question of earning capacity is confined by the testimony to the results of three years' operation, being after the system was fairlj* installed, and inclusive of the year in which the ordinance was adopted, namely, 1894, 1895, and 1896. It is suggested on behalf of the defendant that those years were exceptional, for one cause and an- other, and are not a fair criterion for future earnings under more favorable circumstances ; but the suggestion is without force in this case, because the ordinance operates upon these very conditions, and must, of course, be predicated upon them, upon existing facts, and not upon mere future possibilities, and, so determined, the instant case cannot affect rights under new conditions. The proofs on the part of the complainant furnish, in detail, from the books of account, the gross earnings, the various items of expense and of charges for which deduction is claimed, excluding any payments of, or allowance for, interest on the bonded indebtedness, and state the net earnings as follows: In 1894, $64,868.77; in 1895, $269,202.30; in 1896, $100,628.81. In this showing it appears that deduction of $247,324.88 is made in 1894 for " depreciation," being the amount apportioned in that year to meet the alleged annual loss by phj-sical depreciation of the plant, to keep the capital intact. No such deduc- tion is made in 1895 and 1896, because not shown in the books, although it is insisted that like credit is due in each year, for the purposes of this case. The defendant concedes the correctness of the showing as to the gross earnings, but disputes certain large items for which deductions are made in the above statement, corrects some items, and denies that any allowance should be made for depreciation. Aside from the fact that reports and statements of financial condition made from time to time by the company 7 omit many of the deductions here asserted, these contentions on the part of the defendant rest solely upon the books of 462 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. account kept by the company, and the testimony of Mr. De Grasse, stating his conclusions as an expert accountant from examination of such books, with the following result as to net earnings : In 1894, 8387,074.70; in 1895, $479,621.11; in 1896, $66,520.99. But this total for 1896 erroneously includes an allowance of $1 GO, 550 paid for interest on bonds, which should be excluded on the basis assumed, and would make the net earnings for that year, on his computation, $227,070.99. In this statement the allowance for depreciation in 1894 is excluded by Mr. De Grasse, because that item was in fact charged off upon change in the system of bookkeeping. He also excludes large amounts of undoubted expenditures upon the hypothesis that they belong to "construction account," as covering permanent improve- ments, and not to " expense of maintenance," as stated ; rejects certain payments as accruing on account of previous years, and certain sums apportioned and charged off to meet damage claims ; and makes corrections as to taxes, for which the book entries were made in advance upon estimates by way of apportioning the expenses of the year, pending litigation and other causes. However valuable this testimony is for analysis of the bookkeeping methods and for correction of certain charges, it is clearly insufficient, without other support, to contradict the undisputed testimon}*, both positive and expert, on the part of complainant, which verifies substantially its contention upon the disputed subjects of deduction, namely, that the expenditures so charged were largely, if not wholly, of such nature as to justify de- duction for " maintenance ; " and that depreciation is a well-recognized fact in all such plants, for which allowance must be made to save the capital from impairment, without regard to any question of its entry upon the books. Making allowances for maintenance alone, in accordance with the analysis presented by the expert witnesses Goodspeed, Coffin, McAdoo, and Beggs, taking in each instance the estimate most favorable to the defendant, I am satisfied that the defendant's claim of net earnings must be materially reduced, and that the largest amounts which can be assumed upon its theory, excluding any allowance for depreciation (except that for 1894 the "maintenance" allowance is increased, to bring it the general allowance up to the minimum estimate by the experts), would approximate the following sums : In 1894 $230,000 In 1895 340,000 In 1896 115,000 $685,000 making the average earnings per year, say, $228,333. In reference to the element of depreciation, the witness Beggs gives the following explanation : "' I think experience has demonstrated that the utmost life that can be expected from the best road-bed that can be laid to-day would be, MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. 463 at the outside, ten to twelve j'ears, when it would have to be almost entirely renewed. The Milwaukee Company is in that condition to- day, because of the different periods that their track went down, and due to the fact that it was not all put down at one time, and it must now of necessity commence to lay about 12 miles of track annually, being about one-twelfth of its total mileage ; and will be required, whether they wish to or not, to lay that amount annually hereafter, and will thereby be keeping their tracks fairly up to the standard. The same applies, I might say, to the equipment. In my estimate I have calculated that the Milwaukee Compan} 7 must do this 3*ear, which, as a matter of fact, it is doing, what it did last year, in other words, put on not less than 20 of the most modern, best-constructed equip- ments, thereb} 7 keeping its standard up to the minimum it has now, of 240 equipments ; because I think it is fair to assume that the average life of the double equipment, taken as a whole, will not exceed twelve years, the life of the motor being somewhat less than that, and that of the car we hope may exceed it possibly several years, I mean the car bodies ; but that, in the main, we hope that we will get an average life of twelve years out of them. So, taking 20 equipments annually, }-ou would keep to your standard of 240 equipments, which is absolutely necessary to maintain to operate the Milwaukee Street Railway. I mean cars complete, with motors and complete electrical equipment." For the causes thus stated, within general rules which are well known, it is manifest that this element must be taken into account before it can be determined that earnings derived from a plant are excessive ; and in the same line there is much force in the argument of counsel that consideration should also be given to the factor of depreciation by amortization of franchises, as all the franchises in question terminate in the year 1924. The latter item, if allowed, would be a matter of simple computation ; but a just measure of pb3'sical depreciation seems, to some extent, although only partially, involved in provisions for maintenance, and, while the testimonj^ is very full and instructive upon this subject, it does not clear the case from serious difficulties in the way of stating a definite ratio or sum for such allowance. I am, however, clearly of opinion that neither of these elements is essential to the determination of the issues upon any aspect presented by the testimony, and that depreciation may be left to serve as an important factor of safety, in either view. Second. As to valuation : For purposes of the company, the value of the property, including both railwaj' and lighting plants, appears to have been placed at $14,250,000, represented by the issue of bonds for $7,250,000; preferred stock, $3,500,000; and common stock $3,500,000 ; but this aggregate was clearly excessive, after excluding the electric lighting department, and on no view can it be taken as the basis for the present consideration. The statements of the actual cost of the constituent street railway properties, including the cash invest- ment for improvements, are necessarily complicated, from the fact that 464 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. payments were partly made in stocks and bonds, and the aggregate amount varies according to the ratio of valuation placed upon the bonds alone, in two statements in which the stock is excluded, and in one statement which values both stock and bonds, the minimum being $9,024,107.85, and the maximum $11,313,829.84. The former amount was subsequently modified (page 465, Complainant's Proof), making the statement of cost $8,885,644.17; and as this excludes an}- valuation of stock, and places the value of the bonds at the dis- count agreed upon between the parties, which also seems fair, it ma} r justly be taken as representing the true amount invested. But adop- tion of this purchase amount does not meet the issue, as it is the value of the investment, and not the amount paid, which must control. On the other hand, both parties introduce testimony placing valuations upon the various items of the plant as it exists in fact, upon the basis of its reproduction value. This amount, as stated by the witnesses for complainant, aggregates $5,153,287.76 ; while, on the face of defend- ant's proofs, the value of the tracks and equipment is placed at $2,358,799 ; the real estate and buildings being valued separately, and the highest valuation of the real estate being $236,949, and of the buildings $208,449, making the aggregate $2,804,197. It appears, however, that these estimates on behalf of the defendant omit 27 miles of track, many parcels of real estate, and other items, so that counsel for defendant concedes that this aggregate should be increased to $3,679,631. The wide difference in these amounts is mainly due to divergence in the estimates upon tracks and equipment. So the amounts on real estate and buildings, after allowance for the omis- sions, would appear higher on the valuations submitted by the defend- ant than those of the other side. For the valuation of tracks and equipment, the defendant relies upon the estimate made by Mr. Partenheimer, a witness of apparent ability and experience as a street railway contractor, engaged in business at Chicago ; but his examina- tion of the plant was cursory, being made within three days, and could not give the detailed information upon which a just estimate for this inquiry must be based, and it is conceded that he left out of considera- tion many important items (aside from the error in mileage) which should enter in and would greatly increase the amount as estimated on his basis. Both upon its face and by reference to other source of infor- mation, this estimate is far below any fair valuation, for the purpose in view, either at the sum stated by the witness, or with the additions conceded on behalf of the defendant ; the former amount being in fact $320,000 short of the actual cash expenditures by the company for construction and equipment. Opposed to this, the estimate for com- plainant is made by Mr. Clark, an expert of distinction in this line, who gave weeks to the examination, with the aid of a corps of assis- tants, and presents the results in detailed statements, so that his testimony and estimates impress me as well founded ; and they are supplemented and supported by the testimony of Mr. Coffin, Mr. MILWAUKEE ELECTRIC RAILWAY, ETC. CO. V. MILWAUKEE. 465 Payne, and other witnesses, and by comparative showing of mileage valuations in Massachusetts, which appear in the noteworthy system of reports published by that State. I am satisfied that the property of complainant represents a value, based solely upon the cost of reproduc- tion, exceeding $5,000,000. And I am further satisfied that this amount is not the true measure of the value of the investment in the enterprise. It leaves out of consideration any allowance for necessary and reasonable investment in purchase of the old lines and equipments, which were indispensable to the contemplated improvement, but of which a large part was of such nature that it does not count in the final inventory. No allowance enters in for the large investment arising out of the then comparatively new state of the art of electric railways for a large system, having reference to electrical equipment, weight of rails, character of cars, and the like, of which striking in- stance appears in the fact that the electric motor which then cost about $2,500 can now be obtained for $800 ; so that work of this class was in the experimental stage in man}* respects, and the expenditures by the pioneer in the undertaking may not fairly be gauged by the present cost of reproduction. Of the $5,000,000 and over paid for the acquisition of the old lines, it would be difficult, if not impossible, from the testimony, to arrive at any fair approximation of the share or amount of tangible property which enters into the valuation in this inventory. It does appear that the roadways required reconstruction with new rails and paving, and that the amount stated was actually paid by the investors, making their investment nearly $9,000,000. How much of this ma}* be defined or apportioned as the amount which was both " really and necessarily invested in the enterprise " (vide Road Co. v. Sandford, supra) I have not attempted to ascertain, except to this extent: that I am clearly of opinion that at least $2,000,000 of those preliminary expenditures are entitled to equi- table consideration, as so invested, beyond the reproduction value, if the valuation of the investment is not otherwise found sufficient for all the purposes of this case, but no opinion is expressed in reference to the remaining $1,885,644. Third. The final inquiry, whether the net earnings shown are in excess of or equal to a just return upon the investment, presents no serious difficulty, under the premises above stated. Assuming $5,000,000 as the basis of investment, the ratio of earnings would be as follows : (1) At the extreme computations of defendant, the yearly average would be $364,000, which would yield .072 per cent ; (2) at the complainant's figures, after adding the corrections for taxes, the return would be .033 per cent ; (3) at the amounts which are above stated as my deductions from the testimony, the yearly average, being $228,333, would make .045 per cent. Assuming $7,000,000 as the basis, the ratio of earnings would be, upon each of said versions, as follows : For the first, .052 per cent ; for the second, .023 per cent ; for the third, .032 per cent. 30 466 METROPOLITAN TRUST CO. V. HOUSTON, ETC. RAILROAD. The interest rate fixed in the bonds issued by the company is 5 per cent. The rate which prevails in this market, as shown by the un- controverted testimony, is 6 per cent for real estate mortgages and like securities. If the $5,000,000 basis be adopted, surely a better rate must be afforded for the risks of investment than can be obtained on securities of this class, in which there is no risk. Upon the basis of $7,000,000, which is more logical and just, the 5 per cent named in the bonds is clearly not excessive, and should be accepted by a court of equity as the minimum of allowance ; and, ,even upon the defend- ant's partial showing, the return would be less than one-quarter per cent above that, with the large margin for depreciation left out of account. I am of opinion that the testimony is not only convincing in support of the material allegations of the bill, but is uncontradicted and con- clusive that the improved service received by the public, with the universal system of transfers, is well worth the five-cent rate charged therefor ; that the compan}* has not received earnings in excess of an equitable allowance to the investors for the means necessarily invested in furnishing such service ; that enforcement of the ordinance would deprive complainant of property rights, by preventing reasonable com- pensation for its service ; and that, therefore, the ordinance clearly violates the Constitution of the United States, and is invalid. Decree must enter accordingly, and for an injunction as prayed in the bill. METROPOLITAN TRUST CO. v. HOUSTON AND TEXAS CENTRAL RAILROAD CO. CIRCUIT COURT OP UNITED STATES, 1898. [90 Fed. Rep. 683. 1 ] McCoRMiCK, Circuit Judge. . . . The Houston and Texas Central Railroad Company, the successor to the Houston and Texas Central Railway Company, has a mortgage indebtedness equal to about $34,000 to the mile of its main line, and has stock outstanding to the amount of $10,000,000, making its stock and bonds equal to the sum of about $53,000 to the mile of its main line. The bill in this case avers that the defendant company and its predecessor company have necessarily expended in cash in the construction and equipment and betterment of the lines of the defendant company about $62,000 per mile of its said railways ; that the lines of railway of the defendant company have at all times been operated as economically as practi- cable ; that its operating expenses have at all times been as reasonable 1 This caae is abridged ED. METROPOLITAN TRUST CO. V. HOUSTON, ETC. RAILROAD. 467 and low in amount as they could be made by economy and judicious management ; that the company has at all times secured the services of its officers and employees as cheaply as practicable, and has employed no more than was necessary, and at fair and reasonable rates of pay ; that it has at all times secured all supplies, material, and property of every character used in the operation of its railways at the cheapest market price, and at rates as low as the same could be secured, and has secured and used no more than was actually necessary for the operation of its railways. Substantially the same allegation is made in the cross bill, and both are affirmed and sustained by affidavits of competent 'witnesses offered on the hearing of this motion. The valuation placed upon the property of this railroad corporation by the railroad commission of Texas is, in round numbers, $21,000 per mile. This statement shows the vast difference between the estimates made by and on behalf of the railroad company and the estimates made by the railroad commission of the value of the railroad's property on which it is entitled to earn some profit. It seems to be clear from the answer of the commission, the tone of the affidavits which it offers in support of its answer, and the argument of the attorney-general and the assistant attorney-general who represented it on this hearing, that in estimating the value of this railroad property no allowance was made for the favorable location of the same, in view of the advance in prosperity of the country through which it runs, and the increment to its value due to the settling, seasoning, and permanent establishment of the railways, and to the established business and the good will connected with its business, which has been established through a long series of years, and all of which ought reasonably to be considered in fixing the value of the property and the capitalization upon which, at least, it is entitled to earn, and should pay, some returns b}' the way of interest or dividends. This is practically the oldest railroad in the State. A few miles of another road were built earlier, but this road, running throughout the whole course of its main line through what is now the most populous and best developed portions of the State, and still rapidly increasing in population and development, has established a business that would not and could not be disregarded in estimating the value of the railroad, if considered solely as a business property and venture. It cannot be so considered, because of its quasi-public nature. Its duties, its obligations, and its liability to control are elements that must be considered. As popularly expressed, the rights of the people the rights of shippers who use it as a carrier have to be regarded ; but, as judicially expressed, these last have to be so regarded as not to disregard the inherent and reasonable rights of the projectors, proprietors, and operators of these carriers. It is settled that a State has the right, within the limitation of the constitution, to regulate fares. From the earliest times public carriers have been sub- ject to similar regulations through general law administered by the courts, requiring that the rates for carriage should be reasonable. 468 METROPOLITAN TRUST CO. V. HOUSTON, ETC. RAILROAD. having regard to the cost to the carrier of the service, the value of the service to the shipper, and the rate at which such carriage is performed by other like carriers of similar commodities under substantially similar conditions. But neither at common law nor under the railroad commission law of Texas can the courts or the commission compel the carriers to submit to such a system of rates and charges as will so reduce the earnings below what reasonable rates would produce as to destroy the property of the carrier, or appropriate it to the benefit of the public. The cost of the service in carrying any one particular shipment may be difficult to determine, but the cost to the carrier of receiving, transporting, and delivering the whole volume of tonnage and number of passengers in a given period of time must include, as one of its substantial elements, interest on the value of the property used in the service. In countries conditioned as Texas has been and is, such a railroad property and business cannot be reproduced, except substantially in the same manner in which this has been produced; that is, by a judicious selection of location, by small beginnings, and gradual advance through a number of years, more or less, of unpro- ductive growth. The particular location of this road, of course, cannot be reproduced, and it cannot be appropriated by another private or quasi-public corporation carrier by the exercise of the State's power of eminent domain. And, even if the State should proceed to expropriate this property for the purpose of taking the same to itself for public use, the location of this road cannot be appropriated, any more than any other property right of a natural person or of a corpo- ration can be appropriated, without just compensation. It is therefore not only impracticable, but impossible to reproduce this road, in any just sense, or according to any fair definition of those terms. And a system of rates and charges that looks to a valuation fixed on so narrow a basis as that shown to have been adopted by the commission, and so fixed as to return only a fair profit upon that valuation, and which permits no account for betterments made necessary by the growth of trade, seems to me to come clearly within the provision of the Fourteenth Amendment to the Constitution of the United States, which forbids that a State shall deprive any person of property without due process of law, or deny any person within its jurisdiction the equal protection of the laws. It is true that railroad propert}' may be so improvidently located, or so improvident!}* constructed and operated, that reasonable rates for carriage of freights and passengers will not produce any profit on the investment. It is also true that many rail- roads not improvidently located, and not improvidentl}* constructed, and not improvidently operated may not be able, while charging reasonable rates for carriage of freight, to earn even the necessary running expenses, including necessary repairs and replacements. And there are others, or may be others, thus constructed and conducted, which, while able to earn operating expenses, are not able to earn any appreciable amount of interest or dividends for a considerable time METROPOLITAN TRUST CO. V. HOUSTON, ETC. RAILROAD. 469 after the opening of their roads for business. This is true now of some of the roads, parties to these bills. At one time or another, and for longer or shorter times, it has been true, doubtless, of each of the roads that are parties to these bills. Promoters and proprietors of roads have looked to the future, as they had a right to do, and as they were induced to do by the solicitations of the various communities through which they run, and by various encouragements offered by the State. The commission, in estimating the value of these roads, say that they included interest on the mono}* invested during the period of construction. This is somewhat vague, but the " period of construc- tion " mentioned is probably limited to the time when each section of the road was opened to the public for business. And even if extended to the time when the road was completed to Denison and to Austin in 1873, nearly twenty years after its construction was begun at Houston, it would not cover all of the time, and possibty not nearly all of the time, in which the railroad company and its predecessors have lost interest on the investment. The estimate made on behalf of the railroad in this case of the cost to that company and to its predecessor compam' of the railroad property, and the business of that company as it exists to-day, ma}' not be exactly accurate, clearly is not exactly accurate; but it seems to me that it is not be}'ond the fair value of the property, as it is shown to have been built up and constituted, and to exist to-day as a going business concern, and that such rates of fare for the carriage of persons and property as are reasonable, considered with reference to the cost of the carriage and the value of the carriage to the one for whom the service is rendered, cannot be reduced by the force of State law to such a scale as would appropriate the value of this property in any measure to the use of the public without just compensation to the owners thereof, and would deprive the owners thereof of the equal protection of the law guaranteed by the Constitution of the United States, as cited. . It seems to be contended that the case of the Houston and Texas Central Railroad Company full}- justifies the action of the commission in its imposition of a system of rates, because, as it urged, it has made earnings over and above operating expenses sufficient to pay the interest on its outstanding bonds, and has a small surplus of a few thousand dollars in excess, as shown by its return to the commission of the operations of the year ending the 30th of June, 1898 ; in other words, it has paid interest on $34,000 of bonds to the mile. The return referred to is made on forms submitted by the commission, and under the item of "operating expenses" only ordinary repairs and replacements are allowed. In case an insufficient wooden bridge is re- placed by an adequate iron bridge, that is treated as a betterment, and not permitted to figure in the returns as a part of the operating expenses. The bill and cross bill show that, if such betterments, which can only be made or procured out of the earnings of the road, were allowed in the return of operating expenses, the revenue earned 470 SMYTH V. AMES. and rendered as net revenue would not have been equal, by several hundred thousand dollars, to the interest on the bonded indebtedness ; that the bonded indebtedness outstanding against this road being in excess of the value fixed by the commission, to the extent of more than 50 per cent, the company has no means of providing for such betterments, if not at all allowed to charge them at any time against the gross earnings of the road. More than this, it is shown that the road has never at any time paid any dividend upon its stock. On the whole case, as made in the case of the Houston and Texas Central Railroad Company, it seems clear to me that the system of rates adopted and enforced by the commission does not afford to the owners of this property the equal protection of the law, and takes from the owners and stockholders the property they have therein, without just compensation, and that, therefore, the rates must be held to be un- reasonably low, unjust, and confiscatory, and should not be submitted to, and cannot be suffered to be enforced. As already said, the case made for relief in each of the other suits seems to be stronger than the case of the Houston and Texas Central Railroad Company ; and the evidence appears to me to show clearly that the system of rates im- posed is, as to each of the roads, unreasonabh" low, unjust, and confiscatory. Therefore the prayer of the bill in each case is granted, to the extent of enjoining the roads from adopting the rates heretofore promulgated by the commission, and enjoining the commission and .the attornej'-general from enforcing the same, and enjoining all persons claiming thereunder from prosecuting the railroads, or any of the offi- cers thereof, for the non-observance of the system of rates heretofore promulgated by the commission. SMYTH v. AMES. SUPREME COURT OF THE UNITED STATES, 1898. [169 U. S. 466. 1 ] EACH of these suits was brought Julj- 28, 1893, and involves the con- stitutionality of an Act of the Legislature of Nebraska, approved by the Governor April 12, 1893, and which took effect August 1, 1893. It was an Act " to regulate railroads, to classify freights, to fix reason- able maximum rates to be charged for the transportation of freights upon each of the railroads in the State of Nebraska and to provide pen- alties for the violation of this Act." Acts of Nebraska, 1893, c. 24 ; Compiled Statutes of Nebraska, 1893, c. 72, Art. 12. The act is re- ferred to in the record as House Roll 33. 1 This case is abridged. ED. SMYTH V. AMES. 471 These cases were heard at the same time, and in the one in which the Union Pacific Compam', the St. Joseph Company, the Omaha Compan}', and the Kansas City Company were defendants, it was adjudged in the Circuit Court Mr. Justice BREWER presiding as follows: "That the said railroad companies and each and every of them, and said receivers, be perpetually enjoined and restrained from making or publishing a schedule of rates to be charged by them or any or either of them for the transportation of freight on and over their respective roads in this State from one point to another therein, whereby such rate shall be reduced to those prescribed by the Act of the Legislature of this State, called in the bill filed therein, * House Roll 33,' and entitled ' An Act to regulate railroads, to classify freights, to fix reasonable maximum rates to be charged for the transportation of freight upon each of the railroads in the State of Nebraska, and to provide penalties for the violation of this Act,' approved April 12, 1893, and below those now charged by said companies or either of them or their receivers, or in anywise obeying, observing, or conform- ing to the provisions, commands, injunctions, and prohibitions of said alleged act ; and that the Board of Transportation of said State and the members and secretaries of said Board be in like manner per- petually enjoined and restrained from entertaining, hearing, or deter- mining any complaint to it against said railroad companies or any or either of them or their receivers, for or on account of any act or thing by either of said companies or their receivers, their officers, agents, servants, or employees, done, suffered, or omitted, which may be forbid- den or commanded by said alleged act, and from instituting or prose- cuting or causing to be instituted or prosecuted any action or proceeding, civil or criminal, against either of said companies or their receivers for any act or thing done, suffered, or omitted, which may be forbidden or commanded by said act, and particularly from reducing its present rates of charges for transportation of freight to those prescribed in said act, and that the attorney-general of this State be in like man- ner enjoined from bringing, aiding in bringing, or causing to be brought, any proceeding by way of injunction, mandamus, civil action, or in- dictment against said companies or either of them or their receivers for or on account of any action or omission on their part commanded or forbidden by the said act. And that a writ of injunction issue out of this court and under the seal thereof, directed to the said defend- ants, commanding, enjoining, and restraining them as hereinbefore set forth, which injunction shall be perpetual save as is hereinafter pro- vided. And it is further declared, adjudged, and decreed that the act above entitled is repugnant to the Constitution of the United States, forasmuch as by the provisions of said act the said defendant railroad companies may not exact for the transportation of freight from one point to another within this State, charges which yield to the saia companies, or either of them, reasonable compensation for such ser- vices. It is further ordered, adjudged, and decreed that the defend- 472 SMYTH V. AMES. ants, members of the Board of Transportation of said State, may hereafter when the circumstances have changed so that the rates fixed in the said act shall yield to the said companies reasonable compen- sation for the services aforesaid, apply to this court by supplemental bill or otherwise, as they may be advised, for a further order in that behalf. It is further ordered, adjudged, and decreed that the plaintiffs recover of the said defendants their costs to be taxed b}- the clerk." The above decree was in accordance with the prayer for relief. A similar decree was rendered in each of the other cases. The present appeals were prosecuted by the defendants constituting the State Board of Transportation, as well as by the defendants who are Secretaries of that Board. Mr. Justice HARLAN. ... It is said by the appellants that the local rates established by the Nebraska statute are much higher than in the State of Iowa, and that fact shows that the Nebraska rates are rea- sonable. This contention was thus met by the Circuit Court : " It is, however, urged by the defendants that, in the general tariffs of these companies, there is an inequality ; that the rates in Nebraska are higher than those in adjoining States, and that the reduction by House Roll 33 simply establishes an equality between Nebraska and the other States through which the roads run. The question is asked, Are not the people of Nebraska entitled to as cheap rates as the peo- ple of Iowa? Of course, relative!}' they are. That is, the roads may not discriminate against the people of any one State, but thej- are not necessarily bound to give absolutely the same rates to the people of all the States ; for the kind and amount of business and the cost thereof are factors which determine largely the question of rates, and these vary in the several States. The volume of business in. one State may be greater per mile, while the cost of construction and of main- tenance is less. Hence, to enforce the same rates in both States might result in one in great injustice, while in the other it would only be rea- sonable and fair. Comparisons, therefore, between the rates of two States are of little value, unless all the elements that enter into the problem are presented. It may be true, as testified by some of the witnesses, that the existing local rates in Nebraska are forty per cent higher than similar rates in the State of Iowa. But it is also true that the mileage earnings in Iowa are greater that in Nebraska. In Iowa there are 230 people to each mile of railroad, while in Nebraska there are but 190 ; and, as a general rule, the more people there are the more business there is. Hence, a mere difference between the rates in two States is of comparatively little significance." 64 Fed. Rep. 165. In these views we concur, and it is unnecessary to add any- thing to what was said by the Circuit Court on this point. It is further said, in behalf of the appellants, that the reasonableness of the rates established by the Nebraska statute is not to be deter- mined by the inquiry whether such rates would leave a reasonable net profit from the local business affected thereby, but that the court SMYTH V. AMES. 473 should take into consideration, among other things, the whole business of the company, that is, all its business, passenger and freight, into" state and domestic. If it be found upon iuvestigation that the profits derived by a railroad company from its interstate business alone are sufficient to cover operating expenses on its entire line, and also to meet interest, and justify a liberal dividend upon its stock, may the Legislature prescribe rates for domestic business that would bring no reward and be less than the services rendered are reasonably worth? Or, must the rates for such transportation as begins and ends in the State be established with reference solely to the amount of business done by the carrier wholly within such State, to the cost of doing such local business, and to the fair value of the property used in conducting it, without taking into consideration the amount and cost of its in- terstate business, and the value of the property employed in it? If we do not misapprehend counsel, their argument leads to the conclu- sion that the State of Nebraska could legally require local freight business to be conducted even at an actual loss, if the company earned on its interstate business enough to give it just compensation in re- spect of its entire line and all its business, interstate and domestic. We cannot concur in this view. In our judgment, it must be held that the reasonableness or unreasonableness of rates prescribed by a State for the transportation of persons and property wholly within its limits must be determined without reference to the interstate business done by the carrier, or to the profits derived from it. The State cannot justify unreasonably low rates for domestic transportation, considered alone, upon the ground that the carrier is earning large profits on its interstate business, over which, so far as rates are concerned, the State has no control. Nor can the carrier justify unreasonably high rates on domestic business upon the ground that it will be able only in that way to meet losses on its interstate business. So far as rates of transportation are concerned, domestic business should not be made to bear the losses on interstate business, nor the latter the losses on domestic business. It is only rates for the transportation of persons and property between points within the State that the State can pre- scribe ; and when it undertakes to prescribe rates not to be exceeded by the carrier, it must do so with reference exclusively to what is just and reasonable, as between the carrier and the public, in respect of domestic business. The argument that a railroad line is an entirety ; that its income goes into, and its expenses are provided for, out of a common fund ; and that its capitalization is on its entire line, within and without the State, can have no application where the State is with- out authority over rates on the entire line, and can only deal with local rates and make such regulations as are necessary to give just compen- sation on local business. . . . In our opinion, the broad proposition advanced by counsel involves misconception of the relations between the public and a railroad cor- poration. It is unsound in that it practically excludes from consideration $74 SMYTH V. AMES. the fair value of the property used, omits altogether any consideration of the right of the public to be exempt from unreasonable exactions, and makes the interests of the corporation maintaining a public high- way the sole test in determining whether the rates established by or for it are such as may be rightfully prescribed as between it and the public. A railroad is a public highwa}', and none the less so because constructed and maintained through the agency of a corporation de- riving its existence and powers from the State. Such a corporation was created for public purposes. It performs a function of the State. Its authority to exercise the right of eminent domain and to charge tolls was given primarily for the benefit of the public. It is under governmental control, though such control must be exercised with due regard to the constitutional guarantees for the protection of its property. Olcott v. The Supervisors, 16 Wall. 678, 694; Sinking Fund Cases, 99 U. S. 700, 719 ; Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641, 657. It cannot, therefore, be admitted that a railroad cor- poration maintaining a highway under the authority of the State may fix its rates with a view solely to its own interests, and ignore the rights of the public. But the rights of the public would be ignored if rates for the transportation of persons or property on a railroad are exacted without reference to the fair value of the property used for the public or the fair value of the services rendered, but in order simplj* that the corporation may meet operating expenses, pa}- the interest on its obliga- tions, and declare a dividend to stockholders. If a railroad corporation has bonded its property for an amount that exceeds its fair value, or if its capitalization is largely fictitious, it may not impose upon the public the burden of such increased rates as may be required for the purpose of realizing profits upon such ex- cessive valuation or fictitious capitalization ; and the apparent value of the property and franchises used by the corporation, as represented by its stocks, bonds, and obligations, is not alone to be considered when determining the rates that may be reasonably charged. What was said in Covington & Lexington Turnpike Road Co. v. Sandford, 164 U. S. 578, 596, 597, is pertinent to the question under consideration. It was there observed : "It cannot be said that a corporation is entitled, as of right, and without reference to the interests of the public, to realize a given per cent upon its capital stock. When the question arises whether the Legislature has exceeded its constitutional power in pre- scribing rates to be charged by a corporation controlling a public high- wa)-, stockholders are not the only persons whose rights or interests are to be considered. The rights of the public are not to be ignored. It is alleged here that the rates prescribed are unreasonable and un- just to the company and its stockholders. But that involves an in- quiry as to what is reasonable and just for the public. . . . The public cannot properly be subjected to unreasonable rates in order simply that stockholders may earn dividends. The Legislature has the authority, in ever}' case, where its power has not been restrained by contract, SMYTH V. AMES. 475 to proceed upon the ground that the public may not rightfully be re- quired to submit to unreasonable exactions for the use of a public highway established and maintained under legislative authority. If a corporation cannot maintain such a highway and earn dividends for stockholders, it is a misfortune for it and them which the Constitution does not require to be remedied by imposing unjust burdens upon the public. So that the right of the public to use the defendant's turnpike upon payment of such tolls as in view of the nature and value of the services rendered by the company are reasonable, is an element in the general inquiry whether the rates established by law are unjust and un- reasonable." A corporation maintaining a public highway, although it owns the property it emplo} r s for accomplishing public objects, must be held to have accepted its rights, privileges, and franchises subject to the con- dition that the government creating it, or the government within whose limits it conducts its business, may by legislation protect the people against unreasonable charges for the services rendered by it. It can- not be assumed that any railroad corporation, accepting franchises, rights, and privileges at the hands of the public, ever supposed that it acquired, or that it was intended to grant to it, the power to construct and maintain a public highway simply for its benefit, without regard to the rights of the public. But it is equally true that the corporation performing such public services and the people financially interested in its business and affairs have rights that may not be invaded by legislative enactment in disregard of the fundamental guarantees for the protection of property. The corporation may not be required to use its property for the benefit of the public without receiving just com- pensation for the services rendered by it. How such compensation may be ascertained, and what are the necessary elements in such an inquiry, will always be an embarrassing question. As said in the case last cited: "Each case must depend upon its special facts ; and when a court, without assuming itself to prescribe rates, is required to de- termine whether the rates prescribed by the Legislature for a corpora- tion controlling a public highway are, as an entirety, so unjust as to destroy the value of its property for all the purposes for which it was acquired, its duty is to take into consideration the interests both of the public and of the owner of the property, together with all other circum- stances that are fairly to be considered in determining whether the Legislature has, under the guise of regulating rates, exceeded its con- stitutional authority, and practically deprived the owner of property without due process of law. . . . The utmost that any corporation operating a public highway can rightfully demand at the hands of the Legislature, when exerting its general powers, is that it receive what, under all the circumstances, is such compensation for the use of its prop- erty as will be just both to it and to the public." We hold, however, that the basis of all calculations as to the reason- ableness of rates to be charged by a corporation maintaining a highway 476 SMYTH V. AMES. under legislative sanction must be the fair value of the property being used by it for the convenience of the public. And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construc- tion, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating ex- penses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not sa}- tbat there may not be other matters to be regarded in estimating the value of the property. What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services ren- dered by it are reasonably worth. But even upon this basis, and deter- mining the probable effect of the act of 1893 by ascertaining what could have been its effect if it had been in operation during the three years immediately preceding its passage, we perceive no ground on the record for reversing the decree of the Circuit Court. On the contrary, we are of opinion that as to most of the companies in question there would have been, under such rates as were established by the act of 1893, an actual loss in each of the years ending June 30, 1891, 1892, and 1893 ; and that, in the exceptional cases above stated, when two of the com- panies would have earned something above operating expenses, in particular years, the receipts or gains, above operating expenses, would have been too small to affect the general conclusion that the act, if en- forced, would have deprived each of the railroad companies involved in these suits of the just compensation secured to them by the Con- stitution. Under the evidence there is no ground for saying that the operating expenses of any of the companies were greater than necessary. Perceiving no error on the record in the light of the facts presented to the Circuit Court, The decree in each case must be a 1 Compare: Water Works v. Schottler, 110 U. S. 347 ; Railroad Commission Cases, 116 U. S. 307 ; R. R. v. Illinois, 118 U. S. 557 ; R. R. v. Minn., 134 U. S. 418 ; Reagan v. Trust Co., 154 U. S. 362; R. R. v. Gill, 156 U. S. 649; Turnpike v. Sandford, 164 U. S. 578 ; Land Co. v. City, 174 U. S. 739. ED. MINNEAPOLIS V.-ST. LOUIS RAILROAD COMPANY. 477 MINNEAPOLIS v. ST. LOUIS RAILROAD COMPANY. SUPREME COURT OP THE UNITED STATES, 1902. [186 U. S. 257. 1 ] MR. JUSTICE BROWN. True, it may be difficult to segregate hard coal in carload lots from all other species of freight, and determine the exact cost to the company; but upon the other hand, the Commission, in considering a proper reduction upon a certain class of freight, ought not to be embarrassed by any difficulties the companies may experience in proving that the rates are unreasonably low. The charges for the carriage of freight of different kinds are fixed at different rates according to their classification, and this difference, presumabty at least, is gauged to some extent by a difference in the cost of transportation, as well as the form, size and value of the packages and the cost of handling them. Notwithstanding the evidence of the defendant that, if the rates upon all merchandise were fixed at the amount imposed by the Commission upon coal in carload lots, the road would not pay its operating expenses, it may well be that the existing rates upon other merchandise, which are not disturbed by the Commission, may be sufficient to earn a large profit to the company, though it ma} 7 earn little or nothing upon coal in carload lots. In Smyth v. Ames, 169 U. S. 466, we expressed the opinion (page 541) that the reasonableness or unreasonableness of rates prescribed by a State for the transportation of persons or property wholly within its limits, must be determined without reference to the interstate business done by the carrier, or the profits derived from it, but it by no means follows that the companies are entitled to earn the same percentage of profits upon all classes of freight carried. It often happens that, to meet competition from other roads at particular points, the companies themselves fix a disproportionately low rate upon certain classes of freight consigned to these points. The right to permit this to be done is expressly reserved to the Interstate Commerce Commis- sion by section 4 of that act, notwithstanding the general provisions of the long and short haul clause, and has repeatedly been sanctioned by decisions of this court. While we never have decided that the Com- mission may compel such reductions, we do not think it beyond the power of the state commission to reduce the freight upon a particular article, provided the companies are able to earn a fair profit upon their entire business, and that the burden is upon them to impeach the action of the Commission in this particular. As we said in Smyth v. Ames, (page 547), "What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be ex- acted from it for the use of a public highway than the services rendered by it are reasonably worth." The very fact that the commission, while fixing the rate to Boyd at $2.48, within two cents of the amount there- 1 Only an extract is printed. ED. 478 OZARK-BELL TELEPHONE COMPANY V. SPRINGFIELD. tofore charged by the companies themselves, gradually reduced that rate in proportion to the mileage, to Norwood, where it was fixed at $1.57, while the company charged an arbitrary rate of $2.50 to Norwood, and to all the stations between Norwood and Boyd, tends, at least, to show that the rates were fixed upon a more reasonable principle than that applied by the companies. OZARK-BELL TELEPHONE COMPANY v. SPP.INGFIELD. CIRCUIT COURT OF THE UNITED STATES, 1905. [140 Fed. 666. 1 ] IN Equity. On demurrer to bill. MARSHALL, D. J. 3. It is not necessary that the complainant should state a,ny facts to show that the rates fixed by it are reasonable. The court is not called on to express any opinion as to those rates. It is sufficient if the facts that show the ordinance rates to be unreasonable are pleaded, and those facts I think appear with sufficient certainty. The complainant was not called on to allege the cost of the service ren- dered to any particular subscriber. From the nature of the business, cost to the complainant was in furnishing facilities for the use of its group of subscribers, and that cost could not be estimated by the fre- quency with which an}' special subscriber availed himself of the facili- ties extended. The only way the question of cost and compensation could be presented was by aggregates, and that the complainant has done. The injury to the complainant resulting from an enforcement of the ordinance rates is sufficiently shown by the averments that they are less than the rates theretofore enforced, and will not yield a sufficient sum to pay the cost of operation and maintenance ; the sum yielded by the original rates being barely sufficient for that purpose. The demurrer must be overruled, and as the bill is sworn to posi- tively, and the only opposition to the injunction sought is by the way of demurrer, the temporary injunction will issue. 1 Only one point is printed. ED. KENNEBEC WATER COMPANY V. WATER VILLE. 479 KENNEBEC WATER COMPANY v. WATERVILLE. SUPREME COURT OF MAINE, 1904. [95 Me. 185. 1 ] INSTRUCTIONS to appraisers given. SAVAGE, J. The basis of all calculation as to the reasonableness of rates to be charged by a public service corporation is the fair value of the property used by it for the convenience of the public. At the same time, the public have the right to demand that the rates shall be no higher than the services are worth to them, not in the aggregate, but as individuals. Summarized, these elemental principles are the right of the company to derive a fair income, based upon the fair value of the property at the time it is being used for the public, taking into ac- count the cost of maintenance or depreciation and current operating expenses, and the right of the public to have no more exacted than the services in themselves are worth. The reasonableness of the rate may also be affected for a tirce by the degree of hazard to which the orig- inal enterprise was naturallj subjected; that is, such hazard only as may have been justly contemplated by those who made the original in- vestment, but not unforeseen or emergent risks. And such allowance may be made as is demanded by an ample and fair public policy. If allowance be sought on account of this element, it would be permis- sible at the same time to inquire to what extent the company has already received income at rates in excess of what would otherwise be reason- able, and thus has already received compensation for this hazard. In determining the present value of the company's plant, the actual con- struction cost thereof, with proper allowances for depreciation, is legal and competent evidence, but it is not conclusive or controlling. The request that " under no circumstances can the value of the plant be held to exceed the cost of producing at the present time a plant of equal capacity and modern design" should not be given. Among other things, it leaves out of account the fact that it is the plant of a going concern, and seeks to substitute one of the elements of value for the jieasure of value itself. 1 Only one of the many points made in this notable opinion is printed. ED. 480 PENNSYLVANIA R.R. CO. V. PHILADELPHIA COUNTY. PENNSYLVANIA RAILROAD COMPANY v. PHILADELPHIA COUNTY. SUPREME CciiRT OF PENNSYLVANIA, 1908. [220 Pa. St. 100. 1 ] BILL in equity for an injunction to restrain the county of Philadel- phia from the collection of an} 1 penalty imposed by the act of April 5, 1907, for failure to comply with its provisions by charging passengers upon certain lines in excess of the fares therein provided. Opinion by Mr. Chief Justice MITCHELL, January 20, 1908. Another objection to the method pursued in the investigation of this subject is that the court confined the inquiry to the passenger traffic instead of taking into consideration the entire traffic of every kind as appellant claims should be done. This is the most urgently pressed of the appellant's points, but it does not carry conviction. It would be sufficient answer to say that the legislature itself in the act of 1907 has treated the passenger traffic as a separate and independent subject of examination and regulation. If the legislature ma} 1 do that in as- certaining whether the charter franchise is injurious to the citizens of the commonwealth why may not the courts do the same in ascertain- ing whether injustice has been done to the corporators? Both are elements to be considered, and both are powers exercised under the same section of the constitution. But independent!}* of this, true bus- iness principles require that the passenger and freight traffic not only may, but should be separately considered. The intelligent busi- ness of the world is done in that way. Every merchant and manu- facturer examines and ascertains the unprofitable branches of his business with a view to reducing or cutting them off entirely, and there is no reason why a railroad or other corporation should not be per- mitted to do the same thing as long as its substantial corporate duties under its franchise are performed. While the public has certain rights which in the case of conflict must prevail, yet it must not be forgotten that even so-called public service corporations are private property organized and conducted for private corporate profit. And unless nec- essary for the fulfillment of their corporate duties they should not be required to do any part of their business in an unbusinesslike way with a resulting loss. If part is unprofitable it is neither good business nor justice to make it more so because the loss can be offset by profit on the rest To concede that principle would, as the court below indi- cated, permit the legislature to compel the carriage of passengers prac- tically for nothing though the inexorable result would be that freight must pay inequitable rates that passenger travel may be cheap. The 1 Only one opinion is printed. ED. KNOXVILLE V. KNOXVILLE WATER COMPANY. 431 corporation is entitled to make a fair profit on every branch of its busi- ness subject to the limitation that its corporate duty must be performed even though at a loss. What is a fair profit is, as already said, a highly complicated and difficult question. The learned court below availed themselves of all the best evidence that was offered or shown to be attainable, considered it with exemplary patience and care, and their conclusion that the enforcement of the act of 1907 against the com- plainant would do injustice to the corporators is beyond just criticism. Decree affirmed. KNOXVILLE v. KNOXVILLE WATER COMPANY. SUPREME COURT OF THE UNITED STATES, 1909. [212 U. S. i.] THE facts, which involve the constitutional validity of an ordinance of the city of Knoxville fixing maximum rates to be charged for water by the defendant water company, are stated in the opinion. MR. JUSTICE MOODY. We are also of opinion that the master and the court erroneously excluded evidence which had an important bear- ing upon the true earning capacity of the company under the ordinance. A clear appreciation of this error can be best obtained by a comprehen- sive review of the hearing. The company's original case was based upon an elaborate analysis of the cost of construction. To arrive at the present value of the plant large deductions were made on account of the depreciation. This depreciation was divided into complete de- preciation and incomplete depreciation. The complete depreciation represented that part of the original plant which through destruction or obsolescence had actually perished as useful property. The incomplete depreciation represented the impairment in value of the parts of the plant which remained in existence and were continued in use. It was urgently contended that in fixing upon the value of the plant upon which the company was entitled to earn a reasonable return the amounts of complete and incomplete depreciation should be added to the present value of the surviving parts. The court refused to approve this method, and we think properly refused. A water plant, with all its additions, begins to depreciate in value from the moment of its use. Before com- ing to the question of profit at all the company is entitled to earn a sufficient sum annually to provide not only for current repairs but for making good the depreciation and replacing the parts of the property when they come to the end of their life. The company is not bound to see its property gradually waste, without making provision out of earnings for its replacement. It is entitled to see that from earnings the value of the propert}' invested is kept unimpaired, so that at the end of any given term of years the original investment remains as it was at the beginning. It is not only the right of the company to make 31 482 KNOXVILLE V. KNOXVILLE WATER COMPANY. such a provision, but it is its duty to its bond and stockholders, and, in the case of a public service corporation at least, its plain duty to the public. If a different course were pursued the only method of provid- ing for replacement of property which has ceased to be useful would be the investment of new capital and the issue of new bonds or stocks. This course would lead to a constantly increasing variance between present value and bond and stock capitalization a tendency which would inevitably lead to disaster either to the stockholders or to the public, or both. If, however, a company fails to perform this plain duty and to exact sufficient returns to keep the investment unimpaired, whether this is the result of unwarranted dividends upon over-issues of securities, or of omission to exact proper prices for the output, the fault is its own. When, therefore, a public regulation of its prices comes under question the true value of the property then employed for the purpose of earning a return cannot be enhanced by a consideration of the errors in management which have been committed in the past. 1 1 Only one point is printed. ED. FITCHBUliG KAILROAD V. GAGE. 483 CHAPTER VIII. PROHIBITION OP UNJUST DISCRIMINATION. FITCHBURG RAILROAD v. GAGE. SUPREME JUDICIAL COURT OP MASSACHUSETTS, 1859. [12 Gray, 393.] ACTION of contract upon an account annexed against Gage, Hit- tinger & Company for the transportation of ice from Fresh and Spy Ponds to Charlestown, over that portion of the plaintiffs railroad which was formerly the Charlestown Branch Railroad, and from Groton to Charlestown over that portion which has always been known as the Fitchburg Railroad. The case was referred to an auditor, to whose 484 FITCHBURG RAILROAD V. GAGE. report the defendants took exceptions presenting pure questions of Jaw, and was thereupon reserved by Bigelow, J., for the consideration of the whole court, and is stated in the opinion. S. Bartlett & D. Thaxter, for the defendants. R. Choate & H. 6 Y . Hutchins, for the plaintiffs. MERRICK, J. This action is brought to recover the balance of the account annexed to the writ. The defendants admit the transportation for them of all the ice charged to them in the account, and that the sev- eral items contained in it relative to the service performed for them are correct. But the}* insist that the rate of compensation claimed is too large, and that the charges ouglft to be reduced. They have also filed tn account in set-off, claiming to recover back the amount of an alleged overpayment made by them for similar services in the transportation of other quantities of ice belonging to them. Their claim to be entitled to a diminution in the amount of charges in the plaintiffs' account, and to a recovery of the sum stated in their account in set-off, both rest upon the same ground. They contended and offered to prove at the hearing before the auditor, that while the plaintiffs were transporting the ice they were at the same time hauling over the same portion of their road various quantities of bricks for other parties ; that ice and bricks were of the same class of freight, and that ice was as low a class of freight as bricks in regard to the risk and hazard of transportation ; and that while the}' charged the defendants fifty cents per ton for the transportation of ice, they charged other par- ties only twenty cents per ton for a like service in reference to bricks. The defendants contended that they were entitled to maintain their claim upon two grounds : first, under the provisions in the plaintiffs' act of incorporation ; and, secondly, upon the general principle that as common carriers they were bound and required to transport ever}' species of freight of the same class for any and all parties at the same rate of compensation ; and that they had therefore no right to charge any greater sum for the transportation of ice than that for which they had actually carried bricks for other parties. Neither of the claims was sustained by the auditor, and he accordingly rejected the evidence offered in support of them. In both particulars we think his ruling was correct. 1 It is contended on behalf of the defendants that the plaintiffs were common carriers ; and that by the principles of the common law they are in that relation required to carry merchandise and other goods or chattels of the same class at equal rates for the public and for each in- dividual on whose account service in this line of business is performed. There is no doubt they are common carriers. That is fully established. Thomas v. Boston & Providence Railroad, 10 Met. 472. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. But by the law of this Commonwealth every railroad corporation is authorized to estab- lish for their sole benefit a toll upon all passengers and property conveyed or transported on their railroad, at such rates as may be de- 1 The decision upon the fiift ground is omitted. ED. FITCHBURG KAILKOAD V. GAGE. 485 ter mined by the directors. Rev. Sts. c. 39, 83. This right however is very fully, and reasonably, subjected to legislative supervision and control ; a provision which may be believed to be sufficient to guard this large conceded power against all injustice or abuse. And in view of this large and unqualified, and therefore adequate supervision, the right of railroad corporations to exact compensation for services ren- dered may be considered as conforming substantially to the rule of the common law upon the same subject. This rule is clearly stated by Lawrence, J., in the case of Harris v. Packwood, 3 Taunt. 272: "I would not, however, have it understood that carriers are at libert\- by law to charge whatever they please ; a carrier is liable by law to carry everything which is brought to him, for a reasonable sum to be paid to him for the same carriage ; and not to extort what he will." This is the doctrine of the common law. 2 Kent Com. (6th ed.) 599. Angeli on Carriers, 124. And it supplies substantial!}' the same rule which is recognized and established in this Commonwealth by the provisions of St. 1845, c. 191. The recent English cases, cited by the counsel for the defendants, are chiefly commentaries upon the special legislation of Parliament regulating the transportation of freight on railroads con- structed under the authority of the government there ; and consequently throw very little light upon questions concerning the general rights and duties of common carriers, and are for that reason not to be regarded as authoritative expositions of the common law upon those subjects. The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the re- stricted right to charge, in each particular case of service, a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the car- riage of goods or merchandise of any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessaiy, and reasonable rate, he may undoubtedly do so with- out thereby entitling all other persons and parties to the same advantage and relief. It could of course make no difference whether such a con- cession was in relation to articles of the same kind or belonging to the same general class as to risk and cost of transportation. The defend- ants do not deny that the charge made on them for the transportation of their ice was according to the rates established by the directors of the company, or assert that the compensation claimed is in any degree excessive or unreasonable. Certainty then the charges of the plaintiffs should be considered legal as well as just ; nor can the defendants have any real or equitable right to insist upon any abatement or deduction, because for special reasons, which are not known and cannot therefore be appreciated, allowances may have been conceded in particular in- stances, or in reference to a particular series of services, to other parties. 486 MESSENGER V. PENNSYLVANIA RAILROAD CO. There remains another question, the determination of which depends upon other and different considerations. The auditor, for the purpose of presenting the question to the determination of the court, rejected evidence offered by the defendants tending to prove that prior to the 22d of Februar}', 1855, and down to that time, the plaintiffs had trans- ported for them large quantities of ice from Groton at a much less rate of compensation than the amount charged in their account under date of the 31st January of that year, without having given them notice, and without their knowledge, of any intention to increase the charge for such service. This evidence was rejected, for the reason that the direc- tors of the plaintiff corporation had, prior to the transportation of the ice in the last named item, fixed and raised the rate of transportation of ice on their road from Groton to ninety cents per ton. This evidence ought to have been received. In the absence of any special contract be- tween the parties, it had a tendency to show what was the understand- ing between the parties on the subject, and what the defendants had a right to consider would be the price to be charged to them for services performed in their behalf. If not controlled, it would and ought to have had a material effect upon determining the question concerning the compensation which the plaintiffs were entitled to recover. It might have been controlled either by showing that the defendants did in fact have notice of the new rate of charge established by the directors of the company, or that the notice was communicated generally to all persons, in the usual and ordinary manner, and with such degree of publicity that all persons dealing with them might fairly be presumed to have cog- nizance of the change. In this particular therefore the exception to the ruling of the auditor must be sustained ; in all others, the exceptions taken to his decisions are overruled. The case must therefore be recommitted to the auditor for the pur- pose of hearing the evidence rejected, and any other proofs which the parties may respectively produce relative to the items of charge under date of January 31st, and finding the amount which is due for the ser- vices there stated ; but for no other purpose whatever. Exceptions sustained. MESSENGER v. PENNSYLVANIA RAILROAD COMPANY. SUPREME COURT OF NEW JERSEY, 1873. COURT OF ERRORS AND APPEALS OF NEW JKRSET, 1874. [7 Vroom (36 N. J. L.), 407 , 8 Vroom (37 N. J. L.), 531 ] BEASLET, C. J. The Pennsylvania Railroad Company, who are the defendants in this action, agreed with the plaintiffs to carry certain merchandise for them, between certain termini, at a fixed rate less than they should carry between the same points for any other person. The allegation is, that goods have been carried for other parties at a certain MESSENGER V. PENNSYLVANIA RAILROAD CO. 487 rate below what the goods of the plaintiffs have been curried, and this suit is to enforce the foregoing stipulation. The question is, whether the agreement thus forming the foundation of the suit is legal. There can be no doubt that an agreement of this kind is calculated to give an important advantage to one dealer over other dealers, and it is equally clear that, if the power to make the present engagement exists, man}- branches of business are at the mercy of these companies. A merchant who can transport his wares to market at a less cost than his rivals, will soon acquire, by underselling them, a practical monopoly of the business ; and it is obvious, that this result can often be brought about if the rule is, as the plaintiffs contend that it is, that these bargains giving preferences can be made. A railroad is not, in general, subject to much competition in the business between its termini ; the difficulty in getting a charter, and the immense ex- pense in building and equipping a road, leaves it, in the main, without a rival in the field of its operation ; and the consequence is, the trader who can transmit his merchandise over it on terms more favorable than others can obtain is in a fair way of ruling the market. The tendency of such compacts is adverse to the public welfare, which is materially dependent on commercial competition and the absence of monopolies. Consequently, the inquiry is of moment, whether such compacts may be made. I have examined the cases, and none that I have seen is, in all respects, in point, so that the problem is to be solved by a recurrence to the general principles of the law. The defendants are common carriers, and it is contended that bailees of that character cannot give a preference in the exercise of their call- ing to one dealer over another. It cannot be denied, that at the com- mon law, ever}- person, under identical conditions, had an equal right to the services of their commercial agents. It was one of the primary obligations of the common carrier to receive and carry all goods offered for transportation, upon receiving a reasonable hire. If he refused the offer of such goods, he was liable to an action, unless he could show a reasonable ground for his refusal. Thus, in the very foundation and substance of the business, there was inherent a rule which excluded a preference of one consignor of goods over another. The duty to receive and carry was due to every member of the community, and in an equal measure to each. Nothing can be clearer than that, under the preva- lence of this principle, a common carrier could not agree to carry one man's goods in preference to those of another. It is important to remark, that this obligation of this class of bailees is always said to arise out of the character of the business. Sir William Jones, importing the expression from the older reports, declares that this, as well as the other peculiar responsibilities of the common carrier, is founded in the consideration that the calling is a public employment. Indeed, the compulsion to serve all that apply could be justified in no other way, as the right to accept or reject an offer of business is neces- sarily incident to all private traffic. 488 MESSENGER V. PENNSYLVANIA RAILROAD CO. Recognizing this as the settled doctrine, I am not able to see how it can be admissible for a common carrier to demand a different hire from various persons for an identical kind of service, under identical condi- tions. Such partiality is legitimate in private business, but how can it square with the obligations of a public employment? A person having a public duty to discharge, is undoubtedly bound to exercise such office for the equal benefit of all, and therefore to permit the common carrier to charge various prices, according to the person with whom he deals, for the same services, is to forget that he owes a duty to the community. If he exacts different rates for the carriage of goods of the same kind, between the same points, he violates, as plainly, though it may be not in the same degree, the principle of public policy which, in his own de- spite, converts his business into a public employment. The law that forbids him to make any discrimination in favor of the goods of A over the goods of B, when the goods of both are tendered for carriage, must, it seems to me, necessarily forbid any discrimination with respect to the rate of pay for the carriage. I can see no reason why, under legal rules, perfect equality to all persons should be exacted in the dealings of the common carrier, except with regard to the amount of compensa- tion for his services. The rules that the carrier shall receive all the goods tendered loses half its value, as a politic regulation, if the cost of transportation can be graduated by special agreement so as to favor one party at the expense of others. Nor would this defect in the law, if it existed, be remedied by the principle which compels the carrier to take a reasonable hire for his labor, because, if the rate charged by him to one person might be deemed reasonable, by charging a lesser price to another for similar services, he disturbs that equality of rights among his employers which it is the endeavor of the law to effect. Indeed, when a charge is made to one person, and a lesser charge, for precisely the same offices, to another, I think it should be held that the higher charge is not reasonable ; a presumption which would cut up by the roots the present agreement, as, by the operation of this rule, it would be a promise founded on the supposition that some other person is to be charged more than the law warrants. From these considerations, it seems to me, that testing the duties of this class of bailees by the standard of the ancient principles of the law, the agreement now under examination cannot be sanctioned. This is the sense in which Mr. Smith understands the common law rule. In his Leading Cases, p. 174, speaking of the liabilities of carriers, he says : " The hire charged must be no more than a reasonable remuneration to the carrier, and, consequently, not more to one (though a rival car- rier) than to another, for the same service." I am aware, that in the case of Baxendale v. The Eastern Counties Railway, 4 C. B. (N. S.) 81, this definition of the common law rule was criticised by one of the judges, but the subject was not important in that case, and was not discussed, and the expression of opinion with respect to it was entirely cursory. Indeed, the whole question has become of no moment in the MESSENGER V. PENNSYLVANIA RAILROAD CO. 489 English law, as the subject is specifically regulated by the statute 17 and 18 Viet., ch. 31, which prohibits the giving " of any undue or un- reasonable preference or advantage to or in favor of an}- particular perr son or company, or any particular description of traffic, in any respect whatsoever." The date of this act is 1854, and since that time the decisions of the courts of Westminster have, when discussing this class of the responsibilities of common carriers, been devoted to its exposi- tion. But the courts of Penns3 - lvania have repeatedly declared that this act was but declaratory of the doctrine of the common law. This was so held in the case of Sandford v. The Catawissa, WilHamsport, & Erie Railroad Co., 24 Penn. 378, in which an agreement by a railway company to give an express company the exclusive right to carry goods in certain trains was pronounced to be illegal. In a more recent de- cision, Mr. Justice Strong refers to this case with approval, and says that the special provisions which are sometimes inserted in railroad charters, in restraint of undue preferences, are "but declaratory of what the common law now is." This is the view which, for the reasons already given, I deem correct. But even if this result could not be reached by fair induction from the ancient principles which regulate the relationship between this class of bailees and their employers, I should still be of opinion that we would be necessarily led to it by another consideration. I haveinsisted th,at a common carrier was to be regarded, to some extent at least, as clothed with a public capacity, and I now maintain, that even if this theory should be rejected, and thrown out of the argu- ment, still the defendants must be considered as invested with that at- tribute. In my opinion, a railroad company, constituted under statutory authorit}-, is not only, by force of its inherent nature, a common carrier, as was held in the case of Palmer v. Grand Junction Railway, 4 M. & W. 749, but it becomes an agent of the public in consequence of the powers conferred upon it. A company of this kind is invested with important prerogative franchises, among which are the rights to build and use a railway, and to charge and take tolls and fares. These pre- rogatives are grants from the government, and public utility is the con- sideration for them. Although in the hands of a private corporation, they are still sovereign franchises, and must be used and treated as such ; they must be held in trust for the general good. If they had remained under the control of the state, it could not be pretended, that in the exercise of them it would have been legitimate to favor one citi- zen at the expense of another. If a state should build and operate a railroad, the exclusion of everything like favoritism with respect to its use would seem to be an obligation that could not be disregarded without violating natural equity and fundamental principles. And it seems to me impossible to concede, that when such rights as these are handed over, on public considerations, to a company of individuals, such rights lose their essential characteristics. I think they are, unalterably, parts of the supreme authority, and in whatsoever hands they may be found, 490 MESSENGER V. PENNSYLVANIA RAILROAD CO. they must be considered as such. In the use of such franchises, all citi- zens have an equal interest and equal rights, and all must, under the same circumstances, be treated alike. It cannot be supposed that it was the legislative intention, when such privileges were given, that they were to be used as private propert}', at the discretion of the recipient, but, to the contrary of this, I think an implied condition attaches to such grants, that they are to be held as a qtiasi public trust for the benefit, at least to a considerable degree, of the entire community. In their very nature and constitution, as I view this question, these companies become, in certain aspects, public agents, and the consequence is, they must, in the exercise of their calling, observe to all men a perfect im- partiality. On these grounds, the contract now in suit must be deemed illegal in the very particular on which a recovery is sought. The result is, the defendants must have judgment on the demurrer. In the Court of Errors and Appeals, on error to the Supreme Court, the opinion of the Court was delivered by BEDLE, J. 1 The business of the common carrier is for the public, and it is his duty to serve the public indifferently. He is entitled to a rea- sonable compensation, but on payment of that he is bound to carry for whoever will employ him, to the extent of his ability. A private carrier can make what contract he pleases. The public have no interest in that, but a service for the public necessarily implies equal treatment in its performance, when the right to the service is common. Because the institution, so to speak, is public, every member of the community stands on an equality as to the right to its benefit, and, therefore, the carrier cannot discriminate between individuals for whom he will render the service. In the very nature, then, of his duty and of the public right, his conduct should be equal and just to all. So, also, there is involved in the reasonableness of his compensation the same principle. A want of uniformity in price for the same kind of service under like circumstances is most unreasonable and unjust, when the right to demand it is common. It would be strange if, when the object of the employ- ment is the public benefit, and the law allows no discrimination as to individual customers, but requires all to be accommodated alike as indi- viduals, and for a reasonable rate, that by the indirect means of unequal prices some could lawfully get the advantage of the accommodation and others not A direct refusal to carrj- for a reasonable rate would in- volve the carrier in damages, and a refusal, in effect, could be accom- plished by unfair and unequal charges, or if not to that extent, the public right to the convenience and usefulness of the means of carriage could be greatly impaired. Besides, the injury is not only to the indi- vidual affected, but it reaches out, disturbing trade most seriously. Competition in trade is encouraged by the law, and to allow any one to use means established and intended for the public good, to promote un- 1 Part of the opinion is omitted. En. MESSENGER V. PENNSYLVANIA RAILROAD CO. 491 fair advantages amongst the people and foster monopolies, is against public policy, and should not be permitted. . . . It must not be inferred that a common carrier, in adjusting his price, cannot regard the peculiar circumstances of the particular transporta- tion. Many considerations may properly enter into the agreement for carriage or the establishment of rates, such as the quantity carried, its nature, risks, the expense of carriage at different periods of time, and the like ; but he has no right to give an exclusive advantage or prefer- ence, in that respect, to some over others, for carriage, in the course of his business. For a like service, the public are entitled to a like price. There may be isolated exceptions to this rule, where the interest of the immediate parties is alone involved, and not the rest of the public, but the rule must be applied whenever the service of the carrier is sought or agreed for in the range of business or trade. This contract being clearly within it, and odious to the law in the respect on which a recovery is sought, cannot be sustained. But there is an additional ground upon which it is also objectionable. I entirety agree with the Chief Justice, that, in the grant of a franchise of building and using a public railway, that there is an implied condition that it is held as a quasi public trust, for the benefit of all the public, and that the company possessed of the grant must exercise a perfect impartiality to all who seek the benefit of the trust. It is true that these railroad corporations are private, and, in the nature of their business, are subject to and bound by the doc- trine of common carriers, yet, beyond that, and in a peculiar sense, they are intrusted with certain functions of the government, in order to afford the public necessary means of transportation. The bestowment of these franchises is justified only on the ground of the public good, and they must be held and enjoyed for that end. This public good is common, and unequal and unjust favors are entirety inconsistent with the common right. So far as their duty to serve the public is concerned, they are not onty common carriers, but public agents, and in their very constitution and relation to the public, there is necessarily implied a duty on their part, and a right in the public, to have fair treatment and immunity from unjust discrimination. The right of the public is equal in ever}* citizen, and the trust must be performed so as to secure and protect it. Every trust should be administered so as to afford to the cestui que trust the enjoyment of the use intended, and these railroad trustees must be held, in their relation to the public, to such a course of dealing as will insure to every member of the community the equal enjoyment of the means of transportation provided, subject, of course, to their reasonable ability to perform the trust. In no other way can trade and commercial interchange be left free from unjust interference. On this latter ground, that part of the contract in question is illegal. The judgment of the Supreme Court must be affirmed. 492 SILKMAN V. WATER COMMISSIONERS. SILKMAN v. WATER COMMISSIONERS. COURT OF APPEALS, NEW YORK, 1897. [152 N. Y. 327.] APPEAL from a judgment of the General Term of the Supreme Court in the second judicial department, entered August 3, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint upon the merits on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. MARTIN, J. . . . The claim of the plaintiff, that the rents established 03- the defendant were not authorized by the act incorporating it, can- not be sustained. In broad terms, the act conferred upon the defend- ant the power to establish a scale of rents to be charged and paid for the use and supply of water, having reference to matters referred to in the statute, among which was the consumption of water. The objec- tion made here is that the persons who consumed large quantities of water were not charged as much per hundred cubic feet as those who consumed a less amount. Under this statute the question of consump- tion was one of the elements to be considered in determining the rates. Surely, it cannot be said to be unreasonable to provide less rates where a large amount of water is used than where a small quantity is con- sumed. That principle is usually present in all contracts or established rents of that character. It will be found in contracts and charges re- lating to electric lights, gas, private water companies, and the like, and is a business principle of general application. We find in the rates as they were established nothing unreasonable, or that would iu any way justify a court interfering with them. It follows that the decisions of the courts below were correct, and should be affirmed. The judgment should be affirmed, with costs. All concur. Judgment affirmed. 1 Thii case is abridged. ED. WESTERN UNION TELEGRAPH CO. V. CALL PUBLISHING CO. 493 WESTERN UNION TELEGRAPH COMPANY v. CALL PUBLISHING COMPANY. SUPREME COURT OF THE UNITED STATES, 1901. [181 U. S. 92.i] THIS was an action commenced on April 29, 1891, in the district court of Lancaster County, Nebraska, by the Call Publishing Company to recover sums alleged to have been wrongfully charged and collected from it by the defendant, now plaintiff in error, for telegraphic services rendered. According to the petition the plaintiff had been engaged in publishing a daily newspaper in Lincoln, Nebraska, called The Lin- coln Daily Call. The Nebraska State Journal was another newspaper published at the same time in the same city, by the State Journal Corn- pan}'. Each of these papers received Associated Press dispatches over the lines of defendant. The petition alleged : ' ' 4th. That during all of said period the defendant wrongfully and unjustly discriminated in favor of the said State Journal Company and against this plaintiff, and gave to the State Journal Company an undue advantage, in this : that while the defendant demanded, charged and collected of and from the plaintiff for the services aforesaid seventy-five dollars per month for such dispatches amounting to 1500 words or less daily, or at the rate of not less than five dollars per 100 words daily per month it charged and collected from the said State Journal Company for the same, like and contemporaneous services only the sum of $1.50 per 100 words daily per month. MR. JUSTICE BREWER. The case, therefore, was not submitted to the jury upon the alleged efficacy of the Nebraska statute in respect to discriminations, but upon the propositions distinctly stated, that where there is dissimilarity in the services rendered a difference in charges is proper, and that no recovery can be had unless it is shown, not merely that there is a difference in the charges, but that that dif- ference is so great as, under dissimilar conditions of service, to show an unjust discrimination, and that the recovery must be limited to the amount of the unreasonable discrimination. No one can doubt the inherent justice of the rules thus laid down. Common carriers, whether engaged in interstate commerce or in that wholly within the State, are performing a public service. They are endowed by the State with some of its sovereign powers, such as the right of eminent domain, and so endowed by reason of the public ser- vice they render. As a consequence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast iron line of uni- formity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. 1 Only an extract is printed. ED. 494 GOODRIDGE V. UNION PACIFIC RAILWAY COMPANY. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon dif- ference of service, must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrim- ination. 1 GOODRIDGE v. UNION PACIFIC RAILWAY COMPANY. CIRCUIT COURT OF THE UNITED STATES, 1889. [37 Fed. 182.2] AT law, on demurrer to answer. HALLETT, J. From all this it is apparent that the answer sets up certain considerations received by the defendant from the Marshall Company, upon which less rates are given to the latter than to other shippers. And these considerations are not in the way of a charge for carrying coal upon which any estimate can be made to ascertain the amount of such charge. Whether we refer to the claim for damages against the Denver & Western Companj 1 , or to the matter of furnishing coal for defendant's use, or to any other consideration for the contract, it is plain that there is no basis of calculation other than the rate fixed in the contract itself. It is not possible to say how much, if anything, should be added to the contract price of carrying coal on account of the claim for damages against the Denver & Western Company, or on ac- count of canceling the contract with the Union Coal Company, or on account of furnishing coal at cost for defendant's use, or on account of furnishing coal for sale, at a reduced price, or on account of an}- other matter mentioned in the answer. The whole answer amounts onty to this : that the Marshall Company is allowed less rates than other ship- pers are required to pa}* upon considerations which are satisfactory to defendant. And it is obvious that this is no answer to a complaint of unlawful discrimination. i Compare: Schofield v. Lake Shore & M. S. Ry. Co., 43 Oh. St. 571, accord.; and Concord & P. R. R. Co. v. Forsaith, 59 N. H. 122, contra. * Only an extract is printed. ED. 818* TONS OF COA.L. 818J- TONS OF COAL. DISTRICT COURT OF THE UNITED STATES (CoNN.), 1877. CIRCUIT COURT OF THE UNITED STATES, 1878. [14 Blatch. 453.] LIBEL in rem for freight and demurrage. The libellants carried a cargo of coal to New Haven, to be delivered to the Glasgow Co. at the Canal Railroad Dock. The consignee was located near the line of the railroad in Massachusetts. It was the custom of the port for coal, thus consigned to a railroad wharf, to be shovelled from the hold of the vessel into large buckets, let down and hauled up by a steam derrick, which discharged them into the cars of the railroad. Prior to 1871, the shovellers who filled the buckets had been hired and paid by the master of the vessel. In that year the Canal Railroad Co. made a rule that it would thereafter supply all coal vessels with shovellers, at ten cents a ton, and that no vessel could discharge except by using shovellers thus supplied. Ten cents a ton was then the ordinary rate of wages for such services, but in 1876 charges of shovellers fell, and they could be hired for eight cents. The libellants thereupon hired shovellers at eight cents, and refused to receive those furnished by the company, unless they would work at the same rate. The company for this cause refused to allow the cargo to be unloaded, and it was discharged at a neighboring wharf, after some delay, and there libelled. SHIPMAN, J. If the rule is valid and reasonable, there was no de- livery of the coal. If the rule is invalid or unreasonable, there was a delivery, or its equivalent, an offer and tender of delivery to the person entitled to receive the coal, at the usual and reasonable time and place, and in the reasonable manner of delivery, and a refusal to accept on the part of the railroad company. In the latter event, the contract of affreightment was complied with by the libellants, and freight was earned. No question was made as to the liability of the defendants under the bill of lading, for freight,' in case the railroad company im- properly refused to receive the coal. The bill of lading required de- livery to the defendants at the Canal Dock. It is admitted that the ny, upon notification that the coal was ready to be discharged, 496 3184 TONS OF COAL. replied that said cargo might be forth wita discharged, and would be received by it for the defendants. The railroad company is not merely an owner of a private wharf, having restricted duties to perform towards the public. Such a wharf owner may properly construct his wharf for particular kinds of business, and may make rules to limit and to restrict the manner in which his property shall be used ; (Croucher v. Wilder, 98 Mass. 322 ;) but the railroad company is a common carrier, and its wharf, occupied by rail- road tracks, is the place provided by itself for the reception of goods which must be received and transported, in order to comply with its public obligations. The coal was to be received from the vessel by the railroad company, as the carrier next in line, and thence carried to its place of destination. The question which is at issue between the par- ties depends upon the power of a common carrier to establish rules which shall prescribe by what particular persons goods shall be deliv- ered to him for transportation. "Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to con- vey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price. . . . As they hold themselves to the world as common carriers for a reasonable compen- sation, they assume to do, and are bound to do, what is required of them in the course of their employment, if they have the requisite con- venience to cany, and are offered a reasonable or customary price ; and, if they refuse, without some just ground, they are liable to an action." (2 Kent's Comm. 599.) A common carrier is under an obli- gation to accept, within reasonable limits, ordinary goods which may be tendered to him for carriage at reasonable times, for which he has accommodation. (Crouch v. L. & N. W. Railway Co., 14 C. B. 255.) The carrier cannot generally discriminate between persons who tender freight, and exclude a particular class of customers. The railroad company could not establish the rule that it would receive coal only from certain barge owners, or from a particular class of barge captains. It carries " for all people indifferently." But, while admitting this duty, the company has declared that, for the convenience of the public, and in order to transport coal more expeditiously, and to avoid delays, it will receive such coal only, from barges at its wharf, as shall be de- livered through the agency of laborers selected b}- the company. This rule is a restriction upon its common law obligation. The carrier, on its part, is bound to receive goods from all persons alike. The duty and the labor of delivery to the carrier is imposed upon the barge owner, who pa}"8 for the necessary labor. The service, so far as the shovelling is concerned, is performed, not upon the property of the railroad company, but upon the deck of the vessel. The companj T is virtually saying to the barge owner, You shall employ upon j'our own propert}', in the service which you are bound to render, and for which you must pay, only the laborers whom we designate, and, though our general duty is to receive all ordinary goods delivered at reasonable 31&i TONS OF COAL. 407 times, we will receive only those goods which may be handled by per- sons of our selection. The law relating to carriers has not yet permitted them to impose such limitations upon the reception or acceptance of goods. The carrier may properly impose reasonable restrictions in re- gard to the persons b} r whom he shall deliver goods to the consignee or the carrier next in line. The deliver}- of goods is the duty of the carrier, for which he is responsible, and should be in his own control. (Beadell v. Eastern Counties R. Co., 2 C. B. N. S. 509.) It would not be contended that the railroad company could designate the crew upon the barge, or could select the 1 barge captains, and I am of opinion that it has no more authority over the selection of the other employees of the barge owners. The fact that the barge owners are using, for a compensation, the derricks and tubs of the railroad company, is not material. The berths under the derricks have been designated by the company, as proper places where coal is to be received, and, under reasonable circumstances as to time, and freedom from interference with prior occupants, the incoming barges properly occup}- such posi- tions. Delivery is impracticable at the places designated by the company for delivery, without the use of the railroad company's machinery. It is true, that, under this rule, the delivery of coal into the cars of the railroad company has been more expeditiously performed, and has been attended with fewer delays than formerly, and that the rule has been a convenience to the consignees, but the convenience of the prac- tice is not, of itself, an adequate reason for compelling its enforcement, if it interferes with the legal rights of others. I am not prepared to say, that, for the orderly management of an extensive through freight- ing business by means of connecting lines, and for the systematic and efficient transportation of immense quantities of goods, it may not hereafter be found a necessity that one or the other of the connecting lines shall be furnished with the power which is now sought by the rail- road company ; but, in the present condition of the coal traffic at the port of New Haven, this necessity does not exist. The power is a convenience to the railroad company. It is not a necessity for the transaction of business. f It is not necessary to consider the inconveniences which may flow from the rule, but the case discloses one practical inconvenience which may arise. The rule presupposes that the same price is to be charged by the employees furnished by the railroad company, which is gener- ally paid by others for the same service. When prices are unvarying, no serious trouble results. There is no alternative, however, for the barge owners, but to pay the price which the railroad company declares to be the general price, or else submit to a refusal on the part of the railroad company to accept the coal. The barge captain may be able to obtain the service at a reduced rate, as he could have done in this case, but he must pay his own employees the regular tariff which the company has established, and then have the question of rates deter- 32 498 318J TONS OF COAL. mined by litigation. The result would be, that annoying litigation or vexatious altercations would ensue. If the barge owners are to make the payment, they should have an opportunity to make their own con- tracts, and to take advantage of changes in the price of labor. As matter of law, it is held that the rule is invalid, and that a valid delivery was made of the coal, whereby freight was earned in accord- ance with the terms of the contract. " Damages in the nature of demurrage are recoverable for detention beyond a reasonable time, in unloading only, and where there is no express stipulation to pay demurrage." (Wordin v. Bemis, 32 Conn. 268.) The libellants are entitled to a decree for the freight at the rate mentioned in the bill of lading, less $19.55, the amount paid, to wit, the sum of $171.55, and for damages in the nature of demurrage, for a detention for six days, being $114.66. The claimants appealed. Simeon E. Baldwin and William K. Townsend, for the libellants. Johnson T. Platt, for the claimants. BLATCHFORD, J. The decision of this case in the District Court was placed upon the ground that the New Haven and Northampton Com- pany, as a common carrier, had no right to impose on the canal-boat the requirement that it should, as a condition of the right to place the coal in the tubs of the compan}-, attached to the company's derrick, employ, to place it there, shovellers designated by the company, and pay such shovellers the rate of compensation fixed by the company for such service. It is contended, in this court, by the claimants, that the District Court ignored the status of the company as a wharf owner ; that the company, as the owner of the wharf, had the right to make reasonable rules in regard to the use of the wharf; that the company had a right, by statute, to exact seven cents per ton for coal discharged at its wharf, as wharfage ; that the libellants' boat was not charged any such wharfage ; that the use by the boat of the facilities provided by the company, in the way of derricks, hoisting engines, etc., is the use of the wharf; that all which the company did was to refuse to allow the boat to use those facilities, and thus use the wharf, unless it would permit the coal to be shoveled into the tubs by men designated by the company ; and that this was only a reasonable regulation made by the company, as a wharf owner. The difficulty with this view of the case is, that the regulation was not sought to be enforced, in fact, as a regulation of wharfage, or of the use of the wharf by the boat. There was no charge made against the boat for the privilege of making fast to the wharf; and, if any payment was to be made for the use of the wharf, by depositing the coal on the wharf, it was to be made by the claimants, who were the owners of the coal and the employers of the company. According to the well understood acceptation of a bill of lading such as the one in question here, where the coal was deliverable ** to Glasgow Co., Canal Dock, New Haven," the Glasgow Company being a mill owner at a place on the line of the railroad company, and HAYS V. THE PENNSYLVANIA COMPANY. 499 the latter company being the owner of the Canal Dock at New Haven, with its tracks running to and on the dock, and having derricks and engines for hoisting the coal in tubs from the deck of the boat to the cars on the tracks, the coal was delivered by the boat into the tubs, and the boat paid the company so much per ton for hoisting the coal and dumping it into the cars. The boat had nothing to do with paying anything for the use or occupation of the wharf by the coal, and it paid separately for the hoisting. If the company had a right to charge the boat for tying up to, and using the spiles on, the wharf, no such charge was made. There was, therefore, no foundation for the requirement as to the shovellers, in any relation between the company as a wharf owner and the boat. The imposition of the requirement by the claimants' agent, as a common carrier, was not a reasonable one. In regard to this I concur entirely with the views of the District Judge, in his decision in the court below. He found that the regulation was not a necessary one. If it had been necessary and indispensable, it would have been reason- able. It might, indeed, have been reasonable without being necessary. But, to be reasonable, it mus be reasonable as respects both parties. In the present case, the effect of the requirement was to impose on the boat an unnecessary expense of two cents per ton of coal, for shovelling into the tubs. There must be a decree for the libellants, in affirmance of the decree below, with costs. HAYS v. THE PENNSYLVANIA COMPANY. CIRCUIT COURT OF THE UNITED STATES, N. OHIO, 1882. [12 Fed. 309.] BAXTER, C. J. The plaintiffs were, for several years next before the commencement of this suit, engaged in mining coal at Salineville and near defendant's road, for sale in the Cleveland market. They were wholly dependent on the defendant for transportation. Their com- plaint is that the defendant discriminated against them, and in favor of their competitors in business, in the rates charged for carrying coal from Salineville to Cleveland. But the defendant traversed this allega- tion. The issue thus made was tried at the last term of the court, when it appeared in evidence that defendant's regular price for car- rying coal between the points mentioned, in 1876, was $1.60 per ton, with a rebate of from 30 to 70 cents per ton to all persons or com- panies shipping 5,000 tons or more during the year, the amount of rebate being graduated by the quantity of freight furnished by each shipper. Under this schedule the plaintiffs were required to pay higher rates on the coal shipped by them than were exacted from other and rival parties who shipped larger quantities. But the defend- 500 HAYS V. THE PENNSYLVANIA COMPANY. ant contended, if the discrimination was made in good faith, and for the purpose of stimulating production and increasing its tonnage, it was both reasonable and just, and within the discretion confided by law to every common carrier. The court, however, entertained the contrary opinion, and instructed the jury that the discrimination com- plained of and proven, as above stated, was contrary to law, and a wrong to plaintiffs, for which they were entitled to recover the dam- ages resulting to them therefrom, to wit, the amount paid by the plaintiffs to the defendant for the transportation of their coal from Salineville to Cleveland (with interest thereon) in excess of the rates accorded by defendant to their most favored competitors. The jury, under these instructions, found for the plaintiffs, and assessed their damages at $4,585. The defendant thereupon moved for a new trial, on the ground that the instructions given were erroneous, and this is the question we are now called on to decide. If the instructions are correct the defendant's motion must be overruled ; otherwise a new trial ought to be granted. A reference to recognized elementary principles will aid in a cor- rect solution of the problem. The defendant is a common carrier by rail. Its road, though owned by the corporation, was nevertheless constructed for public uses, and is, in a qualified sense, a public highway. Hence everybody constituting a part of the public, for whose benefit it was authorized, is entitled to an equal and impar- tial participation in the use of the facilities it is capable of affording. Its ownership by the corporation is in trust as well for the public as for the shareholders ; but its first and primary obligation is to the public. We need not recount all these obligations. It is enough for present purposes to say that the defendant has no right to make unreasonable and unjust discriminations. But what are such dis- criminations? No rule can be formulated with sufficient flexibility to apply to every case that may arise. It ma}', however, be said that it is only when the discrimination enures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law intervenes for the protection of the latter. Harmless discrimi- nation may be indulged in. For instance, the carrying of one person, who is unable to pay fare, free, is no injustice to other passengers who may be required to pay the reasonable and regular rates fixed by the company. Nor would the carrying of supplies at nominal rates to communities scourged by disease, or rendered destitute by floods or other casualty, entitle other communities to have their supplies carried at the same rate. It is the custom, we believe, for railroad companies to carry fertilizers and machinery for mining and manufacturing pur- poses to be employed along the lines of their respective roads to de- velop the country and stimulate productions, as a means of insuring a permanent increase of their business, at lower rates than are charged on other classes of freight, because such discrimination, while it tends to advance the interest of all, works no injustice to any one. Freight HAYS V. THE PENNSYLVANIA COMPANY. 501 carried over long distances may also be carried at a reasonably less rate per mile than freight transported for shorter distances, simply because it costs less to perform the service. For the same reason passengers maj- be divided into different classes, and the price regulated in accord- ance with the accommodations furnished to each, because it costs less to carry an emigrant, with the accommodations furnished to that class, than it does to carry an occupant of a palace car. And for a like reason an inferior class of freight may be carried at a less rate than first-class merchandise of greater value and requiring more labor, care, and responsibility in the handling. It has been held that 20 separate par- cels done up in one package, and consigned to the same person, may be carried at a less rate per parcel than 20 parcels of the same character consigned to as man}- different persons at the same destination, because it is supposed that it costs less to receive and deliver one package con- taining 20 parcels to one man, than it does to receive and deliver 20 different parcels to as many different consignees. Such are some of the numerous illustrations of the rule that might be given. But neither of them is exactly like the case before us, either in its facts or principles involved. The case of Nicholson v. G. W. R. Co., 4 C. B. (N. S.) 366, is in its facts more nearly like the case under con- sideration than any other case that we have been able to find. This was an application, under the railway and traffic act, for an injunction to restrain the railroad company from giving lower rates to the Ruabon Coal Company than were given to the complainant in that case, in the shipment of coal, in which it appeared that there was a contract be- tween the railroad company and the Ruabon Coal Company, whereby the coal company undertook to ship, for a period of 10 years, as much coal for a distance of at least 100 miles over defendant's road as would produce an annual gross revenue of 40,000 to the railroad companj', in fully loaded trains, at the rate of seven trains per week. In passing on these facts the court said that in considering the question of undue preference the fair interest of the railroad company ought to be taken into the account ; that the preference or prejudice, referred to by the statute, must be undue or unreasonable to be within the prohibition ; and that, although it was manifest that the coal company had many and important advantages in carrying their coal on the railroad as against the complainant and other coal owners, still the question re- mained, were they undue or unreasonable advantages? And this, the court said, mainly depended on the adequacy of the consideration given by the coal company to the railroad company for the advantages afforded by the latter to the coal company. And because it appeared that the cost of carrying coal in fully loaded trains, regularly furnished at the rate of seven trains per week, was less per ton to the railway company than coal delivered in the usual wa}% and at irregular intervals, and in unequal quantities, in connection with the coal company's undertaking to ship annually coal enough over defendant's road, for at least a distance of 100 miles, to produce a gross revenue to the railroad of 502 HAYS V. THE PENNSYLVANIA COMPANY. 40,000, the court held that the discrimination complained of iu the case was neither undue nor unreasonable, and therefore denied the application. This case seems to have been well considered, and we have no dis- position to question its authority. Future experience may possibly call for some modification of the principle therein announced. But this case calls for no such modification, inasmuch as the facts of that case are very different, when closely analyzed, from the facts proven in this one. In the former the company, in whose favor the discrimi- nation was made, gave, in the judgment of the court, an adequate con- sideration for the advantages conceded to it under and in virtue of its contract. It undertook to guaranty 40,000 worth of tonnage per year for 10 j r ears to the railroad company, and to tender the same for ship- ment in fully loaded trains, at the rate of seven trains per week. It was in consideration of these obligations which, in the judgment of the court, enabled the railroad company to perform the service at less expense the court held that the advantages secured by the contract to the coal company were neither undue nor unreasonable. But there are no such facts to be found in this case. There was iu this case no undertaking by any one to furnish any specific quantity of freight at stated periods ; nor was any one bound to tender coal for shipment in fully loaded trains. In these particulars the plaintiffs occupied com- mon ground with the parties who obtained lower rates. Each tendered coal for transportation in the same condition and at such times as suited his or their convenience. The discrimination complained of rested ex- clusively on the amount of freight supplied by the respective shippers during the year. Ought a discrimination resting exclusively on such a basis to be sustained? If so, then the business of the country is, in some degree, subject to the will of railroad officials ; for, if one man engaged in mining coal, and dependent on the same railroad for trans- portation to the same market, can obtain transportation thereof at from 25 to 50 cents per ton less than another competing with him in business, solely on the ground that he is able to furnish and does furnish the larger quantity for shipment, the small operator will sooner or later be forced to abandon the unequal contest and surrender to his more opulent rival. If the principle is sound in its application to rival parties engaged in mining coal, it is equally applicable to merchants, manufacturers, mil- lers, dealers in lumber and grain, and to everj'body else interested in any business requiring an\- considerable amount of transportation by rail ; and it follows that the success of all such enterprises would de- pend as much on the favor of railroad officials as upon the energies and capacities of the parties prosecuting the same. It is not difficult, with such a ruling, to forecast the consequences. The men who control railroads would be quick to appreciate the power with which such a holding would invest them, and, it may be, not slow to make the most of their opportunities, and perhaps tempted to favor their friends to the detriment of their personal or political opponents ; MENACHO V. WARD. 503 or demand a division of the profits realized from such collateral pur- suits as could be favored or depressed by discriminations for or against them ; or else, seeing the augmented power of capital, organize into overshadowing combinations and extinguish all petty competition, mo- nopolize business, and dictate the price of coal and every other com- modity to consumers. We say these results might follow the exercise of such a right as is claimed for railroads in this case. But we think no such power exists in them ; they have been authorized for the com- mon benefit of every one, and cannot be lawfully manipulated for the advantage of any class at the expense of any other. Capital needs no such extraneous aid. It possesses inherent advantages, which cannot be taken from it. But it has no just claim, by reason of its accu- mulated strength, to demand the use of the public highways of the country, constructed for the common benefit of all, on more favorable terms than are accorded to the humblest of the land ; and a discrimi- nation in favor of parties furnishing the largest quantity of freight, and solely on that ground, is a discrimination in favor of capital, and is contrary to a sound public policj', violative of that equality of right guaranteed to every citizen, and a wrong to the disfavored party, for which the courts are competent to give redress. The motion, therefore, for a new trial will be denied, and a judgment entered on the verdict for the damages assessed and the costs of the suit WELKER, D. J., concurred. MENACHO v. WARD. CIRCUIT COURT OF THE UNITED STATES, S. NEW YORK, 1886. [27 Fed. 529.] WALLACE, J. The complainants have filed a bill in each of these causes to restrain the defendants from making discriminations for trans- portation against the complainants, which consist in charging them a higher rate of freight than is charged by defendants to other shippers of merchandise generally. A motion is now made for a preliminary injunction. The facts in each case are essentially the same, and both cases may be considered together. The complainants are merchants domiciled in the city of New York, and engaged in commerce between that port and the island of Cuba. The defendants are proprietors or managers of steamship lines plying between New York and Cuba. Formerly the business of transportation between the two places was carried on by sailing vessels. In 1877 the line of steamships known as " Ward's Line" was established, and in 1881 was incorporated by the name of the New York & Cuba Mail Steamship Line under the general laws of the State of New York. At 504 MENACHO V. WARD. the time of the incorporation of this company the line of steamships owned by the defendants Alexandre & Sons had also been established. These two lines were competitors between New York and Cuba, but for several years both lines have been operated under a traffic agreement between themselves, by which uniform rates are charged by each to the public for transportation. The two lines are the only lines engaged in the business of regular transportation between" New York and Cuba ; and unless merchants choose to avail themselves of the facilities offered by them, the}' are obliged to ship their merchandise by vessels or steamers which may casually pi}' between the two places. It is alleged by the complainant that the defendants have announced generally to New York merchants engaged in Cuban trade that they must not patronize steamships which offer for a single voyage, and on various occasions when other steamships have attempted to procure cargoes from New York to Havana have notified shippers that those employing such steamships would thereafter be subjected to onerous discriminations by the defendants. The defendants allege in their answer to the bill, in effect, that it has been found necessary, for the purpose of securing sufficient patronage, to make differences in rates of freight between shippers in favor of those who will agree to patronize the defendants exclusively. Within a few months before the commence- ment of this suit two foreign steamers were sent to New York to take cargoes to Havana, and the complainants were requested to act as agents. Thereupon the complainants were notified by the defendants that they would be "placed upon the black-list " if they shipped goods by these steamers, and that their rates of freight would thereafter be advanced on all goods which they might have occasion to send by the defendants. Since that time the defendants have habitually charged the complainants greater rates of freight than those merchants who shipped exclusively by the defendants. The freight charges, by the course of business, are paid by consignees at the Cuban ports. The complainants have attempted to pay the freight in advance, but have found this course impracticable because their consignees are precluded from deducting damages or deficiencies upon the arrival of the goods from the charges for freight, and as a result some of the complainants' correspondents in Cuba refuse to continue business relations with them, being unwilling to submit to the annoyance of readjusting overcharges with complainants. Upon this state of facts the complainants have founded the allegation of their bill that the defendants " have arbi- trarily refused them equal terms, facilities, and accommodations to those granted and allowed by the defendants to other shippers, and have arbitrarily exacted from them a much greater rate of freight than the defendants have at the same time charged to shippers of merchan- dise generally as a condition of receiving and transporting merchandise." They apply for an injunction upon the theory that their grievances can- not be redressed by an action at law. It is contended for the complainants that a common carrier owes an MEN AC HO V. WARD. 505 equal duty to every member of the communit}*, and is not permitted to make unequal preferences in favor of one person, or class of persons, as against another person or class. The defendants insist that it is permit- ted to common carriers to make reasonable discriminations in the rates demanded from the public ; that they are not required to carry for all at the same rates ; that discriminations are reasonable which are based upon the quantity of goods sent by different shippers ; and that the discrimination in the present case is essentially such a discrimination, and has no element of personal preference, and is necessary for the protection of the defendants. Unquestionably a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equalit} 7 . It is his privilege to charge less than fair compensation to one person, or to a class of persons, and others cannot justly complain so long as he carries on reasonable terms for them. Respecting preferences in rates of com- pensation, his obligation is to charge no more than a fair return in each particular transaction, and except as thus restricted he is free to dis- criminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public. Bax endale v. Eastern Counties R. Co., 4 C. B. (N. S.) 78 ; Branley v. Southeastern R. Co., 12 C. B. (N. S.) 74; Fitchburg R. Co. v. Gage, 12 Gray, 393 ; Sargent v. Boston & L. R. Corp., 115 Mass. 416, 422. l In the present case the question whether the defendants refuse to carry for the complainants at a reasonable compensation resolves itself into another form. Can the defendants lawfully require the complain- ants to pay more for carrying the same kind of merchandise, under like conditions, to the same places, than the}' charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much ; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justify- ing the exceptional charge. The estimate placed by a party upon the value of his own services of property is always sufficient, against him, to establish the real value ; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long continued and extensive course of business dealings, and held it out as a fixed and notorious standard for the information of the public. The defendants assume to justify upon the theory that a carrier may regulate his charges upon the basis of the quantity of goods delivered to him for transportation by different shippers, and that their discrimi- nation against the plaintiff is in substance one made with reference to 1 The court here cited passages from the opinions in Messenger v. Pennsylvania R. R., 37 N. J. L. 531, and McDuffee v. Portland & R. R. R., 52 N. H. 430. ED. 506 MENACHO V. WAKD, the quantity of merchandise furnished by them for carriage. Courts of law have always recognized the rights of carriers to regulate their charges with reference to the quantity of merchandise carried for the shipper, either at a given shipment, or during a given period of time, although public sentiment in many communities has objected to such discriminations, and crystallized into legislative condemnation of the practice. By the English statutes (17 & 18 Viet. c. 31) railway and canal carriers are prohibited from " giving any undue or unreasonable preference or advantage to or in favor of any particular description of traffic, in any respect whatever," in the receiving, forwarding, and de- livery of traffic ; but under these provisions of positive law the courts have held that it is not an undue preference to give lower rates for larger quantities of freight. Ransome v. Eastern C. R. Co., 1 Nev. & McN. 63, 155 ; Nicholson v. Great Western R}'. Co., Id. 121 ; Strick v. Swansea Canal Co., 16 C. B. (N. S.) 245 ; Greenop v. S. E. R. Co., 2 Nev. & McN. 319. These decisions proceed upon the ground that the carrier is entitled to take into consideration the question of his own profits and interests in determining what charges are reasonable. He may be able to carry a large quantity of goods, under some circumstances, at no greater ex- pense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correctly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the public for patronage he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is therefore justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analog}' exists between a discrimination based upon the quantity of business furnished by dif- ferent classes of shippers, and one which altogether ignores this consid- eration, and has no relation to the profits or compensation which the carrier ought to derive for a given quantum of service. The proposition is speciously put that the carrier may reasonably discriminate between two classes of shippers, the regular and the casual ; and that such is the only discrimination here. Undoubtedly the carrier may adopt a commutative S3 T stem, whereby those who furnish him a regular traffic may obtain reduced rates, just as he may properly reg- ulate his charges upon the basis of the quantity of traffic which he receives from different classes of shippers. But this is not the proposi- tion to be discussed. The defendants assume to discriminate .against the complainants, not because the}- do not furnish them a regular busi- ness, or a given number of shipments, or a certain quantity of merchan- dise to carry, but because they refuse to patronize the defendants exclusively. The question is whether the defendants refuse to carry for MENACHO V. WARD. 507 the complainants on reasonable terms. The defendants, to maintain the affirmative, assert that their charges are fair because they do not have the whole of the complainants' carrying business. But it can never be material to consider whether the carrier is permitted to enjoy a monopoly of the transportation for a particular individual, or class of individuals, in ascertaining what is reasonable compensation for the services actu- ally rendered to him or them. Such a consideration might be influen- tial in inducing parties to contract in advance ; but it has no legitimate bearing upon the value of services rendered without a special contract, or which are rendered because the law requires them to be rendered for a fair remuneration. A common carrier " is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself." Nelson, J., in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. His obligations and liabilities are not dependent upon contract, though they may be modified and limited by contract. They are imposed by the law, from the public nature of his employment. Hannibal R. R. v. Swift, 12 Wall. 262. As their busi- ness is " affected with a public interest," it is subject to legislative regulation. " In matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reason- able." Waite, C. J., in Munn v. Illinois, 94 U. S. 113, 134. It is upon this foundation, and not alone because the business of common carriers is so largely controlled b} r corporations exercising under fran- chises the privileges which are held in trust for the public benefit, that the courts have so strenuous!}' resisted their attempts, by special con- tracts or unfair preferences, to discriminate between those whom it is their duty to serve impartial!}-. And the courts are especially solicitous to discountenance all contracts or arrangements by these public servants which savor of a purpose to stifle competition or repress rivalry in the departments of business in which they ply their vocation. Illustrations are found in the cases of State v. Hartford & N. H. R. Co., 29 Conn. 538 ; Hooker v. Vandewater, 4 Denio, 349 ; W. U. Tel. Co. v. Chicago & P. R. Co., 86 111. 246 ; Coe v. Louisville & N. R. Co., 3 Fed. Rep. 775. The vice of the discrimination here is that it is calculated to coerce all those who have occasion to employ common carriers between New York and Cuba from employing such agencies as may offer. Its ten- dency is to deprive the public of their legitimate opportunities to obtain carriage on the best terms they can. If it is tolerated it will result practically in giving the defendants a monopoly of the carrying trade between these places. Manifestly it is enforced by the defendants in order to discourage all others from attempting to serve the public as carriers between these places. Such discrimination is not only unrea- sonable, but is odious. Ordinarily the remedy against a carrier is at law for damages for a refusal to carry, or to recover the excess of 508 ROOT V. LONG ISLAND RAILROAD. charges paid to obtain the delivery of goods. The special circumstances in this case indicate that such a remedy would not afford complete and adequate redress, " as practical and efficient to the ends of justice " as the remedy in equity. Watson v. Sutherland, 5 Wall. 74. The motion for an injunction is granted. ROOT v. LONG ISLAND RAILROAD. COUBT OF APPEALS OF NEW YORK, SECOND DIVISION, 1889. [114 N. Y. 300; 21 N. E. 403.] HAIGHT, J. In June, 1876, the defendant and one Quintard entered into a written contract, which, among other things, provided that Quintard should build at Long Island City upon the lands of the de- fendant a dock 250 feet long and 40 feet wide, and erect thereon a pocket for holding and storing coal, according to certain plans and specifications annexed. The defendant was to have the use of the south side of the dock, and also of 30 feet of the shore end, and the right to use the other portions thereof when not required by Quintard. In consideration therefor the defendant agreed with Quintard to trans- port in its cars all the coal in car-loads offered for transportation by him at a rebate of 15 cents per ton of 2,240 pounds from the regular tariff rates for coal transported by the defendant from time to time, except in the case of the coal carried for the Brooklyn Water- Works Company, with which company the defendant reserved the right to make a special rate, which should not be considered "the regular tariff rate." The defendant also agreed with Quintard to provide him with certain yard room and office room free of rent, and the con- tract was to continue for the term of 10 years, and at the termination of the contract the dock and structures were to be appraised, and the value thereof, less the sum of $2,000 advanced by the defendant, to be paid to Quintard. Pursuant to this agreement the dock and coal pocket were constructed at an expense of $17,000, and coal in large quantities was shipped over the defendant's road by Quintard or his assignee under the contract, and it is for the rebate of 15 cents per ton upon the coal so shipped that this action was brought. The defence is that the contract was against public policy, and was there- fore illegal and void. The defendant is a railroad corporation organized under the laws of the State, and was therefore a common carrier of passengers and freight, and was subject to the duties and liabilities of such. These duties and liabilities have often been the subject of judicial consid- eration in the different States of the Union. In Illinois it has been held that a railroad corporation, although permitted to establish its rates for transportation, must do so without injurious discrimination EOOT V. LONG ISLAND RAILROAD. 509 to individuals; that its charges must be reasonable. Railroad Co. v. People, 67 111. 11; Vincent v. Railroad Co., 49 111. 33. In Ohio it was held that where a railroad company gave a lower rate to a favored shipper with the intent to give such shipper an exclusive monopoly, thus affecting the business and destroying the trade of other shippers, the latter have the right to require an equal rate for all under like circumstances. Scofleld u. Railway Co., 43 Ohio St. 571. In New Jersey it has been held that an agreement by a railroad company to carry goods for certain persons at a cheaper rate than it would carry under the same condition for others is void, as creating an illegal preference; that common carriers are public agents, transacting their business under an obligation to observe equality towards every mem- ber of the community, to serve all persons alike, without giving unjust or unreasonable advantages by way of facilities for the carriage, or rates for the transportation, of goods. Messenger v. Railroad Co., 36 N. J. Law, 407; State v. Railroad Co., 48 N. J. Law, 55. In New Hampshire it has been held that a railroad is bound to carry at reasonable rates commodities for all persons who offer them, as early as means will allow; that it cannot directly exercise unreasonable discrimination as to who and what it will carry; that it cannot im- pose unreasonable or unequal terms, facilities, or accommodations. McDuffee v. Railroad, 52 N. H. 430. To similar effect are cases in other States. Express Co. v. Railroad Co., 57 Me. 188; Shippers. Railroad Co., 47 Pa. St. 338; Railroad Co. v. Gage, 12 Gray, 393; Menacho v. Ward, 27 Fed. Rep. 529. In New York the authorities are exceedingly meagre. The question was considered to some extent in the case of Killmer v. Railroad Co., 100 N. Y. 395, in which it was held that the reservation in the general act of the power of the legislature to regulate and reduce charges, where the earnings exceeded 10 per cent of the capital actually expended, did not relieve the com- pany from its common law duty as a common carrier; that the ques- tion as to what was a reasonable sum for the transportation of goods on the lines of a railroad in a given case is a complex question, into which enter many elements for consideration. In determining the duty of a common carrier, we must be reason- able and just. The carrier should be permitted to charge reasonable compensation for the goods transported. He should not, however, be permitted to unreasonably or unjustly discriminate against other individuals, to the injury of their business, where the conditions are equal. So far as is reasonable, all should be treated alike ; but we are aware that absolute equality cannot in all cases be required, for circumstances and conditions may make it impossible or unjust to the carrier. The carrier may be able to carry freight over a long distance at a less sum than he could for a short distance. He may be able to carry a large quantity at a less rate than he could a smaller quantity. The facilities for loading and unloading may be different in different places, and the expenses may be greater in some places than in others. 510 ROOT V. LONG ISLAND RAILROAD. Numerous circumstances may intervene which bear upon the cost and expenses of transportation, and it is but just to the carrier that he be permitted to take these circumstances into consideration in determining the rate or amount of his compensation. His charges must therefore be reasonable, and he must not unjustly discriminate against others, and in determining what would amount to unjust dis- crimination all the facts and circumstances must be taken into con- sideration. This raises a question of fact, which must ordinarily be determined by the trial court. The question as to whether there was unjust discrimination embraced in the provisions of the contract does not appear to have been determined by the referee, for no find- ing of fact appears upon that subject. Neither does it appear that he was requested to find upon that question, and consequently there is no exception to the refusal to find thereon. Unless, therefore, we can determine the question as one of law, there is nothing upon this sub- ject presented for review in this court. Is the provision of the con- tract, therefore, providing for a rebate of 15 cents per ton from the regular tariff rates, an unjust discrimination as a matter of law? Had this provision stood alone, unqualified by other provisions, with- out the circumstances under which it was executed explaining the necessity therefor, we should be inclined to the opinion that it did provide for an unjust discrimination ; but, upon referring to the con- tract, we see that the rebate was agreed to be paid in consideration for the dock and coal pocket which was to be constructed upon the defendant's premises at an expense of $17,000, in part for the use and convenience of the defendant. Quintard was to load all the cars with the coal that was to be transported. It was understood that a large quantity of coal was to be shipped over defendant's line, thus increas- ing the business and income of the company. The facilities which Quintard was to provide for the loading of the coal, his services in loading the cars, the large quantities which he was to ship, in con- nection with the large sums of money that he had expended in the erection of the dock, in part for the use and accommodation of the defendant, are facts which tend to explain the provision of the con- tract complained of, and render it a question of fact for the determi- nation of the trial court as to whether or not the rebate, under the circumstances of this case, amounted to an unjust discrimination, to the injury and prejudice of others. Therefore, in this case, the question is one of fact, and not of law; and, inasmuch as the discrim- ination has not been found to be unjust or unreasonable, the judgment cannot be disturbed. The judgment should be affirmed with costs. All concur. Judgment affirmed. LOUGH V. OUTERBRIDGE. 511 LOUGH w. OUTERBRIDGE. COURT OF APPEALS OF NEW YORK, 1894. [143 N. Y. 271 ; 38 N. E. 292.] O'BRIEN, J. The question presented by this appeal is one of very great importance. It touches commerce, and, more especially, the duties and obligations of common carriers to the public at many points. There was no dispute at the trial, and there is none now, with respect to the facts upon which it arises. In order to present the question clearly, a brief statement of these facts becomes necessary. The plaintiffs are the surviving members of a firm that, for many years prior to the transaction upon which the action was based, had been engaged in business as commission merchants in the city of New York, transacting their business mainly with the Windward and Leeward Islands. The defendant, the Quebec Steamship Company, is a Canadian corporation, organized and existing under the laws of Canada ; and the other defendants are the agents of the corporation in New York, doing business as partners. The business of the cor- poration is that of a common carrier, transporting passengers and freight for hire upon the sea and adjacent waters. For nearly 20 years prior to the transaction in question, a part of its business was the transportation of cargoes between New York and the Barbadoes and the Windward Islands, the other defendants acting as agents in respect to this business. During some years prior to the commence- ment of this action, the company had in its service a fleet of five or six of the highest class iron steamers, sailing at intervals of about ten days from New York to the islands, each steamer requiring about six weeks to make the trip. The steamers were kept constantly engaged in this service and sailed regularly upon schedule days without refer- ence to the amount of cargo then received. The regular and standard rate charged for freight up to December, 1891, from New York to Barbadoes, one of the Windward Islands, was 50 cents per dry barrel of five cubic feet, which was taken as the unit of measurement, and the tariff of charges was adjusted accordingly for goods shipped in other forms and packages. In December, 1891, the regular rate was reduced from 50 to 40 cents per dry barrel. About this time the British steamer El Callao, which had for some years before sailed between New York and Ciudad Bolivar, in South America, trans- porting passengers and freight between these points, began to take cargo at New York for Barbadoes, and sometimes to other points in the Windward Islands which she passed on her regular trips to Ciudad Bolivar, sailing from New York at intervals of five or six weeks. Her trade with South America was the principal feature of her busi- ness, but such space as was not required for the cargo destined for the end of the route was filled with cargo for the islands which lay 51? LOtGH V. OUTERBRIDGE. in her regular course. The defendants evidently regarded this vessel as a somewhat dangerous competitor for a part of the business, the benefits of which they had up to this time enjoyed ; and, for the pur- pose of retaining it, they adopted the plan of offering special reduced rates of 25 cents per dry barrel to all merchants aud business men in New York who would agree to ship by their line exclusively during the week that the El Callao was engaged in obtaining freight and taking on cargo. The plaintiffs' firm had business arrangements with and were shipping by that vessel; and in February, 1892, they de- manded of the defendants that they receive 3,000 barrels of freight from New York to Barbadoes, and transport the same at the special rate of 25 cents per barrel upon one of its steamers. The defendants then informed the plaintiffs that the rate of 25 cents was allowed by them only to such shippers as stipulated to give all their business exclusively to the defendants' line, in preference to the El Callao, and that to all other shippers the standard rate of 40 cents per dry barrel was maintained; but they further informed the plaintiffs that, if they would agree to give their shipments for that week exclusively to the defendants' line, the goods would be received at the 25 cents rate. The plaintiffs, however, were shipping by the other vessel, and de- clined this offer. Again, in the month of May, 1892, the El Callao was in the port of New York taking on cargo, as was also the de- fendants' steamer Trinidad. The plaintiffs then demanded of the defendants that they receive and carry from New York to Barbadoes about 1,760 dry barrels of freight at the rate of 25 cents. The de- fendants notified the plaintiffs that a general offer had that day been made by them to the trade to take cargo for Barbadoes on the Trini- dad, to sail on June 4th, at 25 cents per dry barrel, under an agree- ment that shippers accepting that rate should bind themselves not to ship to that point by steamers of any other line between that date and the sailing of the Trinidad. The defendants offered these terms to the plaintiffs, but, as they were shipping by the rival vessel, the offer was declined. Except during the week when the El Callao was engaged in taking on cargo, the defendants have maintained the regular rate of 40 cents to all shippers between these points; and, when it reduced the rate as above described, exactly the same rates, terms, and conditions were offered to all shippers, including the plaintiffs, and carried freight for other parties at the reduced rates only upon their entering into a stipulation not to ship by the rival vessel. After the plaintiffs' demand last mentioned had been refused, they obtained an order from one of the judges of the court in this action requiring the defendants to carry the 1,760 barrels, and the defendants did receive and transport them, in obedience to the order, at the rate of 25 cents; but this order was reversed at general term. The plaintiffs demand equitable relief in the action to the effect, substantially, that the defendants be required and compelled by the judgment of the court to receive and transport for the plaintiffs their LOUGH V. OUTERBRIDGE. 513 freight at the special reduced rates, when allowed to all other ship- pers, without imposing the condition that the plaintiffs stipulate to ship during the times specified by the defendants' line exclusively. Whether the regular rate of 40 cents, for which it is conceded that the defendants offered to carry for the plaintiffs at all times without conditions, was or was not reasonable, was a question of fact to be determined upon the evidence at the trial ; and the learned trial judge has found as matter of fact that it was reasonable, and that the re- duced rate of 25 cents granted to shippers on special occasions, and upon the conditions and requirements mentioned, was not profitable. This finding, which stands unquestioned upon the record, seems to me to be an element of great importance in the case, which must be recognized at every stage of the investigation. A common carrier is subject to an action at law for damages in case of refusal to perform its duties to the public for a reasonable compensation, or to recover back the money paid when the charge is excessive. This right to maintain an action at law upon the facts alleged, it is urged by the learned counsel for the defendants, precludes the plaintiffs from main- taining a suit for equitable relief such as is demanded in the com- plaint. There is authority in other jurisdictions to sustain the practice adopted by the plaintiffs (Watson v. Sutherland, 5 Wall. 74 ; Menacho v. Ward, 27 Fed. 529 ; Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., 54 Fed. 741; Coe & Milsom v. Railroad Co., 3 Fed. 775; Vincent v. Railroad Co., 49 111. 33; Scofield v. Railroad Co., 43 Ohio St. 571), though I am not aware of any in this State that would bring a case based upon such facts within the usual or ordinary jurisdiction of equity. So far as this case is concerned, it is sufficient to observe that it is now settled by a very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defence that an adequate remedy at law exists, unless he pleads that defence in his answer. Cogswell v. Railroad Co., 105 N. Y. 319; Town of Mentz v. Cook, 108 N. Y. 504; Ostrander v. Weber, 114 N. Y. 95; Dudley v. Congregation, 138 N. Y. 460; Truscott v. King, 6 N. Y. 147. When the facts alleged are sufficient to entitle the plaintiff to relief in some form of action, and no objection has been made by the de- fendant to the form of the action in his answer or at the trial, it is too late to raise the point after judgment or upon appeal. So that, whatever objections might have been urged originally against the action in its present form, the defendants must now be deemed to have waived them. This court will not now stop to examine a minor question that does not touch the merits, but relates wholly to the form in which the plaintiffs have presented the facts and demanded relief, or to the practice and procedure. The time and place to raise and discuss these questions was at or before the trial, and, as they were, not then raised, the case must be examined and disposed of upon the merits. The defendants were engaged in a business in which the 33 514 LOUGH V. OUTERBRIDGE. public were interested, and the duties and obligations growing out of it may be enforced through the courts and the legislative power. Munn v. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. 1. In England these duties are, to a great extent, regulated by the railway and canal traffic act (17 & 18 Viet., c. 31), and by statute in some of the States, and in this country, so far as they enter into the business of interstate commerce, by act of Congress. The solution of the ques- tion now presented depends upon the general principles of the common law, as there is no statute in this State that affects the question, and the legislation referred to is important only for the purpose of in- dicating the extent to which business of this character has been sub- jected to public regulation for the general good. There can be no doubt that at common law a common carrier undertook generally, and not as a casual occupation, to convey and deliver goods for a reason- able compensation as a business, with or without a special agreement, and for all people indifferently; and, in the absence of a special agreement, he was bound to treat all alike in the sense that he was not permitted to charge any one an excessive price for the services. He has no right in any case while engaged in this public employment to exact from any one anything beyond what under the circum- stances is reasonable and just. 2 Kent, Comm. (13th ed.) 598; Story, Bailm. 495, 508; 2 Pars. Cont. 175; Killmer v. Railroad Co., 100 N. Y. 395; Root v. Railroad Co. 114 N. Y. 300. It may also be con- ceded that the carrier cannot unreasonably or unjustly discriminate in favor of one or against another where the circumstances and conditions are the same. The question in this case is whether the defendants, upon the undisputed facts contained in the record, have discharged these obligations to the plaintiffs. There was no refusal to carry for a reasonable compensation. On the contrary, the defend- ants offered to transport the goods for the 40 cents rate, and we are concluded by the finding as to the reasonable nature of that charge. The defendants even offered to carry them at the unprofitable rate of 25 cents, providing the plaintiffs would comply with the same condi- tions upon which the goods of any other person were carried at that rate. What is reasonable and just in a common carrier in a given case is a complex question, into which enter many elements for con- sideration. The questions of time, place, distance, facilities, quan- tity, and character of the goods, and many other matters must be considered. The carrier can afford to carry 10,000 tons of coal and other property to a given place for less compensation per ton than he could carry 50; and, where the business is of great magnitude, a rebate from the standard rate might be just and reasonable, while it could not fairly be granted to another who desired to have a trifling amount of goods carried to the same point. So long as the regular standard rates maintained by the carrier and offered to all are reason- able, one shipper cannot complain because his neighbor, by reason of special circumstances and conditions, can make it an object for the LOUGH V. OUTERBPJDGE. 515 carrier to give him reduced rates. In this case the finding implies that the defendants at certain times carried goods at a loss, upon the condition that the shippers gave them all of their business. What- ever eject may be given to the legislation referred to, in its applica- tion to railroads and other corporations deriving their powers and franchises from the State, there can be no doubt that the carrier could at common law make a discount from its reasonable general rates in favor of a particular customer or class of customers in isolated cases, for special reasons, and upon special conditions, without violating any of the duties or obligations to the public inherent in the employment. If the general rates are reasonable, a deviation from the standard by the carrier in favor of particular customers, for special reasons not applicable to the whole public, does not furnish to parties not similarly situated any just ground for complaint. When the conditions and circumstances are identical, the charges to all shippers for the same service must be equal. These principles are well settled, and whatever may be found to the contrary in the cases cited by the learned counsel for the plaintiff originated in the appli- cation of statutory regulations in other States and countries. Rail, road Co. v. Gage, 12 Gray, 393; Sargent v. Railroad Co., 115 Mass. 422; Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed 23 Q. B. Div. 598, and by H. L. 17 App. Cas. 25; Evershed v. Railway Co., 3 Q. B. Div. 135; Baxendale v. Railroad Co., 4 C. B. (N. S.) 78; Branley v. Railroad Co., 12 C. B. (N. S.) 74. Special favors in the form of reduced rates to particular customers may form an element in the inquiry whether, as matter of fact, the standard rates are reasonable or otherwise. If they are extended to such persons at the expense of the general public, the fact must be taken into account in ascertaining whether a given tariff of general prices is or is not reasonable. But, as in this case the reasonable nature of the price for which the defendants offered to carry the plaintiffs' goods has been settled by the findings of the trial court, it will not be profitable to consider further the propriety or effect of such discrimination. The rule of the common law was thus broadly stated by the Supreme Court of Massachusetts in the case of Railroad Co. v. Gage, supra. Upon that point the court said: "The recent English cases, cited by the counsel for the defendants, are chiefly commentaries upon the special legislation of Parliament regulating the transportation of freight on railroads constructed under the authority of the government there, and consequently throw very little light upon questions concerning the general rights and duties of com- mon carriers, and are for that reason not to be regarded as author- itative expositions of the common law upon these subjects. The principle derived from that source is very simple. It requires equal justice to all. But the equality which is to be observed consists in the restricted right to charge a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done* 516 LOUGH V. OUTERBRIDGE. If, for special reasons in isolated cases, the carrier sees fit to stipu- mte for the carriage of goods of any class for individuals, for a certain time, or in certain quantities, for a less compensation than what is the usual, necessary, and reasonable rate, he may undoubt- edly do so without entitling all parties to the same advantage." In Evershed v. Railway Co., supra, Lord Bramwell remarked: "I am not going to lay down a precise rule, but, speaking generally, and subject to qualification, it is open to a railway company to make a bargain with a person, provided they are willing to make the same bargain with any other, though that other may not be in a situation to make it. An obvious illustration may be found in season tickets." The authorities cited seem to me to remove all doubt as to the right of a carrier, by special agreement, to give reduced rates to customers who stipulate to give them all their business, and to refuse these rates to others who are not able or willing to so stipulate, providing, always, that the charge exacted from such parties for the service is not excessive or unreasonable. The principle of equality to all, so earnestly contended for by the learned counsel for the plaintiffs, was not, therefore, violated by the defendants, since they were willing and offered to carry the plaintiffs' goods at the reduced rate, upon the same terms and conditions that these rates were granted to others; and, if the plaintiffs were unable to get the benefit of such rate, it was because, for some reason, they were unable or unwilling to comply with the conditions upon which it was given to their neighbors, and not because the carrier disregarded his duties or obligations to the public. The case of Menacho v. Ward, 27 Fed. 529, does not apply, because the facts were radically different. That action was to restrain the carrier from exacting unreasonable charges habitually for ser- vices, the charges having been advanced as to the parties complaining, for the reason that they had at times employed another line. It de- cides nothing contrary to the general views here stated. On the con- trary, the court expressly recognized the general rule of the common law with respect to the obligations and duties of the carrier substan- tially as it is herein expressed, as will be seen from the following paragraph in the opinion of Judge Wallace: "Unquestionably, a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equality. It is his privilege to charge less than a fair compensation to one person, or to a class of persons, and others cannot justly complain so long as he carries on reasonable terms for them. Respecting preference in rates of com- pensation, his obligation is to charge no more than a fair return in each particular transaction, and, except as thus restricted, he is free to discriminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public." But it is urged that the plaintiffs were in fact the only shippers of LOUGH V. OUTEKBRIDGE. 517 goods from New York to Barbadoes by the El Callao, and therefore the condition imposed that the reduced rate should be granted only to such merchants as stipulated to give the defendants their entire business, while in terms imposed upon the public generally, was in fact aimed at the plaintiffs alone. The trial court refused to find this fact, but, assuming that it appeared from the undisputed evidence, I am unable to see how it could affect the result. The significance which the learned counsel for the plaintiffs seems to give to it in his argument is that it conclusively shows the purpose of the defendants to compel the plaintiffs to withdraw their patronage from the other line, to suppress competition in the business, and to retain a monopoly for their own benefit. Conceding that such was the purpose, it is not apparent how any obligation that the defendants owed to the public was disregarded. We have seen that the defendants might lawfully give reduced rates in special cases, and refuse them in others, where the conditions are different, or to the general public, where the regular rates are reasonable. The purpose of an act which in itself is per- fectly lawful, or, under all the circumstances, reasonable, is seldom, if ever, material. Phelps v. Nowlen, 72 N. Y. 39 ; Kiff v. Youmans, 86 N. Y. 324. The mere fact that the transportation business be- tween the two points in question was in the hands of the defendants did not necessarily create a monopoly, if the general rates maintained were reasonable and just. It is not pretended that the owners of the El Callao proposed to give regular service to the general public for any less. When the service is performed for a reasonable and just hire, the public have no interest in the question whether one or many are engaged in it. The monopoly which the law views with disfavor is the manipulation of a business in which the public are interested in such a way as to enable one or a few to control and regulate it in their own interest, and to the detriment of the public, by exacting unreasonable charges. But when an individual or a corporation has established a business of a special and limited character, such as the defendants in this case had, they have a right to retain it by the use of all lawful means. That was what the defendants attempted to do against a competitor that engaged in it, not regularly or permanently, but incidentally and occasionally. The means adopted for this pur- pose was to offer the service to the public at a loss to themselves whenever the competition was to be met, and, when it disappeared, to resume the standard rates, which, upon the record, did not at any time exceed a reasonable and fair charge. I cannot perceive anything unlawful or against the public good in seeking by such means to retain a business which it does not appear was of sufficient magnitude to furnish employment for both lines. On this branch of the argument the remarks of Lord Coleridge in the case of Steamship Co. v. McGregor, supra, are applicable: "The defendants are traders, with enormous sums of money embarked in their adventure, and naturally and allowably desire to reap a profit from their trade. They have a 518 UNITED STATES V. CHICAGO AND ALTON RY. COMPANY. right to push their lawful trades by all lawful means. They have a right to endeavor, by lawful means, to keep their trade in their own hands, and by the same means to exclude others from its benefits, if they can. Amongst lawful means is certainly included the inducing, by profitable offers, customers to deal with them, rather than with their rivals. It follows that they may, if they see fit, endeavor to in- duce customers to deal with them exclusively by giving notice that only to exclusive customers will they give the advantage of their profitable offers. I do not think it matters that the withdrawal of the advantages is out of all proportion to the injury inflicted by those who withdraw them on the customers who decline to deal exclusively with them dealing with other traders." The courts, I admit, should do nothing to lessen or weaken the restraints which the law imposes upon the carrier, or in any degree to impair his obligation to serve all persons indifferently in his calling, in the absence of a reasonable excuse, and for a reasonable compensation only ; but to hold, as we are asked to in this case, that the plaintiffs were entitled to have their goods carried by the defendants at an unprofitable rate, without com- pliance with the conditions upon which it was granted to all others, and which constituted the motive and inducement for the offer, would be extending these obligations beyond the scope of any established precedent based upon the doctrine of the common law, and would, I think, be contrary to reason and justice. The judgment of the court below dismissing the complaint was right, and should be affirmed, with costs. FINCH, GRAY, and BARTLETT, JJ., concur. PECKHAM, J., dissents. ANDREWS, C. J. , not sitting. Judgment affirmed. UNITED STATES v. CHICAGO & ALTON RAILWAY COMPANY. DISTRICT COURT OF THE UNITED STATES, 1906. [148 Fed. 646.] LANDIS, D. J. In this proceeding the Chicago & Alton Railway Com- pany and its vice-president and general freight agent are charged with violating the interstate commerce law by granting rebates. The gov- ernment having closed its case, the defendants move for an order direct- ing the jury to return a verdict of not guilty. The material facts are as follows : The Chicago & Alton Company is an interstate carrier, operating a railroad from Kansas City, Mo., to points east ; the Belt Railway Company is an interstate carrier oper- ating the belt line connecting Kansas City, Kan., and Kansas City, Mo. ; the Schwarzschild & Sulzberger Company is a corporation en- UNITED STATES V. CHICAGO AND ALTON KY. COMPANY. 519 gaged in the beef-packing business at Kansas City, Kan. ; the track of the Alton Compam r connects with the Belt track at Kansas City, Mo. ; and the Belt track connects with the private track of Schwarzschild & Sulzberger, laid and maintained by that corporation on its own prop- erty at Kansas City, Kan., occupied also by its packing plant. As required by the interstate commerce law the Alton Company and the Belt Company published and filed tariff schedules announcing to the ship- ping public what their charges would be for the transportation of pack- ing-house products. The Belt tariff was $3.00 per car from the packing company's track to the Alton connection. The Alton schedule stated that its rate included the Belt Company's charge, so that, in substance, it was as if the Alton road itself connected with the packing company's track. The Alton Company collected from the Schwarzschild & Sulz- berger Company the amount of its freight charge as per the published schedules, remitted to the Belt its $3 switching charge, and thereafter paid to Scwharzschild & Sulzberger $1 on each car of the Schwarzschild & Sulzberger product so handled. This practice has obtained since 1901. Prior to that time the Alton Company's tariff likewise included the Belt charge, which was then 04 per car. On collecting the full tariff from the Schwarzschild & Sulzberger Company, the Alton road paid to the Belt its charge of $4 per car, whereupon the Belt gave to the packing company $1 on each loaded car handled. It was at the request of Schwarzschild & Sulzberger (for some reason which does not appear) that for this arrangement was substituted the plan evidenced in the pending cause, whereby the railway company made pa} T ment direct to the shipper (some five months after the freight went forward), instead of indirectly through the medium of the Belt line. The indictment charges that the payment to the packing company was a rebate. The defendants contend that the payment was made by the railway company for its use of the packing company's private track, connecting its shipping dock with the Belt rails ; and it is urged in behalf of defendants that, if any provision of the law has been vio- lated, it is only that section requiring the carrier to publish any ter- minal charge or regulation which alters or determines the aggregate rate for the transportation of property. I am unable to see the force of this contention. The real question here is simply this : "Has the pa3 T ment back to the shipper of $1 per car out of the money paid by the shipper to the railway company in the first instance resulted in the shipper get- ting its property transported at a less cost to it than that specified in the published schedules?" It would seem that to state this question is to answer it. The word "rate," as used in the interstate commerce law, means the net cost to the shipper of the transportation of his property ; that is to.say, the net amount the carrier receives from the shipper and retains. In deter- mining this net amount in a given case, all money transactions of every kind or character having a bearing on, or relation to, that particular instance of transportation whereby the cost to the shipper is directly 520 UNITED STATES V. CHICAGO AND ALTON RY. COMPANY. or indirectly enhanced or reduced must be taken into consideration. Applying this test to the case before ine, the net cost to the Schwarz- schild & Sulzberger Compan}' has been made $1 per car less than the published schedules represented that net cost would be. Viewing the transaction from the standpoint most favorable to the defendants, it amounts to the railway company assuming the cost of getting the ship- per's property to the carrier's rails for transportation a substantial consideration not mentioned in, or contemplated b}-, the published schedules. With equal propriety (its schedules being silent on the sub- ject) a carrier might, for the purpose of inducing the routing of traffic via its line, pay the consignor's and consignee's bills for the cartage of property between their warehouses and the railway depots. The object of the statutes relating to interstate commerce is to secure the transportation of persons and property by common carriers for rea- sonable compensation. No rate can possibly be reasonable that is higher than anybody else has to pay. Recognizing this obvious truth, the law requires the carrier to adhere to the published rate as an absolute standard of uniformity. The requirement of publication is imposed in order that the man having freight to ship may ascertain by an inspection of the schedules exactly what will be the cost to him of the transportation of his property ; and not only so, but the law gives him another and a very valuable right, namely, the right to know, by an inspection of the same schedule, exactly what will be the cost to his competitor of the transportation of his competitor's property. It being my opinion that, when the Alton Company published a spe- ciflc rate covering packing-house products, collected that rate from the Schwarzschild & Sulzberger Packing Compan}', and subsequently gave back part of that rate to Schwarzschild & Sulzberger, a device was emplo} T ed by means of which the packing company's property was trans- ported at a less rate than that named in the published schedules, the defendants' motion will be overruled. DITTMAR V. NEW BRAUNFELS. 521 DITTMAR v. NEW BRAUNFELS. COURT OP CIVIL APPEALS, TEXAS, 1899. [20 Texas Civil Appeals, 293.] FISHER, C. J. Appellant, Dittmar, brought this suit, in the nature of an injunction, to restrain the city of New Braunfels from interfering with his use of water from the water system of New Braunfels for domestic purposes, and to require the city to restore him to his rights as a consumer of water under a contract existing between him and the city, and to connect his residence with the water mains of the city, after the city authorities operating the waterworks, without his con- sent, had disconnected his residence from the water system, and cut off his supply of water. There is also a claim of damages claimed to have resulted by reason of the wrongful interference of the city with his rights in the use of water. A temporary injunction was granted, but, upon final hearing, general and special demurrers were addressed to the petition, which were sustained, and the case dismissed, from which judgment the appellant has appealed. Without stating in full the language of plaintiff's petition, the cause of action, as there set out, is substantially as follows : The city of New Braunfels is incorporated under the general laws of this State, and plaintiff is a resident and taxpaj'er thereof, occupying, with his family, a residence within the limits of the city. The city has in operation, and has had for several }-ears past, a permanent and adequate sys- tem of waterworks, which is carried on and conducted by the city for the purpose of supplying the inhabitants water for public and private use. There is an abundant supply of pure and wholesome water, which the city, by the exercise of reasonable diligence in the operation of its waterworks, can continuously furnish the plaintiff and the other inhabitants of the city. This water is used for fire protec- tion and for domestic purposes by the inhabitants, and there is not, within the city, any other source from which the inhabitants can ob- tain a sufficient and wholesome supply of water. In November, 1895, the appellant entered into a contract with the city, whereby it agreed to furnish him water at his residence, for household purposes, at the rate of one dollar a month, payable quarterly in advance. In pursu- ance of that contract, at considerable expense to the plaintiff, the amount of which is set out in the petition, the plaintiff's residence was connected with the water system operated by the city, and he, from that time, had pi'omptly paid the water rates due from him, and has complied with all reasonable regulations made by the city for the con- sumption and use of water ; and if any water rent, upon the trial of the case, was found to be due, he was ready and willing to pay the same, and had tendered to the defendant all amounts due it for the use of water. In pursuance of said contract, he continued to use the water for household purposes, at his residence, until May, 1898, 522 DITTMAR V. NEW BKADNFELS. when the defendant, through its servants operating the water system, wrongfully, without his consent, cut off the supply of water from his residence ; and thereupon he demanded of the defendant that he be again connected with the water system, and restored to his rights as a consumer, and tendered to the defendant the sum of $12, all of which the defendant refused to do. In 1897 the city passed an ordi- nance requiring consumers of water for household purposes to enter into a contract, which is styled in the petition as ' ' Exhibit A," as fol- lows: "$12.00. (Ord. Sec. 26.) New Braunfels, Texas, 1897. The city of New Braunfels is requested to connect my property known and described as lots Nos. 9 and 10, on Academy Street, Jahn's addition, in ward No. 4, New Braunfels, Texas, with the waterworks s}'stem of said cit}*. The water is wanted and applied and subscribed for under conditions, and for the purposes and uses, following: Household. It is especially agreed and understood, and made a part of the consider- ation of this contract, that the city of New Braunfels is in no manner to be held liable for any scarcity or failure of water, nor for the quality or quantity thereof, nor for any failure to supply water in the event of fire on the premises, or other casualty or happening. This order is given and signed freely, with the understanding and acquiescence of the terms and conditions above, and with the knowledge and the understand- ing that, if a contract is desired not containing such a waiver, a higher rate would be demanded by the city, and with the full knowledge and acquiescence of the ordinance of the said city exempting it from lia- bility in the event of failure or scarcity of water, either for fire or domestic purposes. This contract is continuous, and the subscriber is aware of the condition that, should he desire to have the same altered, abated, or cancelled, notice must be given to the city of New Braun- fels at least thirty days beforehand ; otherwise this contract is to remain in full force. But nothing herein shall be construed to prevent the city from cutting off the supply without notice or liability for damage of any kind, in the event the rate herein called for and specified is not promptly paid when due." And at the same time the city passed the following ordinances, which are known as sections 27 and 29 :. " Section 27. Any person, corporation, or firm desiring a contract or form differing in its conditions from the order given in section 26 hereof, may, by application in writing to the city council of New Braun- fels, Texas, have a special contract granted him (or it) at the rate to be fixed by such council, upon the granting of such application, which rate shall not be less than double the amount of the charges in the ordinances set out, except for good reasons to the contrary, shown to the city council." " Section 29. No connections shall be made nor shall any water be furnished or supplied, unless the owner of the property to be so connected or supplied make his application therefor in writing and form following, to wit: [Here follows the form Exhibit A, leaving DITTMAR V. NEW BRAUNFELS. 523 blank the name, lot, street, &c., so as to constitute a printed blank form.] " This ordinance, as stated in section 27, was intended to give those inhabitants the right to a supply of water who refused to sign and en- ter into the contract set out in Exhibit A. The plaintiff refused to sign the contract as previously set out, or any of the contracts re- quired by the ordinance as stated in section 27, and for this reason, solely, the cit}- disconnected him from the water system, and refused further to continue furnishing him a supply of water under the contract that he had previously entered into with the city in 1895. It is also averred that it cost the city no more to furnish plaintiff a supply of water for household purposes than it does other inhabitants of the city ; that it is furnishing other inhabitants for household purposes a supply of water at the same rate that it agreed to furnish the plaintiff under the contract of 1895. In other words, that there are no dis- similar conditions existing between the plaintiff and the other inhabi- tants with reference to the cost and expense of furnishing water, and that the cit}* is continuing to furnish other inhabitants an adequate and wholesome supply of water for household purposes at the rate of one dollar per month. The contention of the appellant is that the contract as stated in Exhibit A, and the ordinance upon which it is based, are unreasonable, and therefore void, and that for his refusal to enter into a contract of that nature the city arbitrarily, and without legal rea- son, cut off his supplj- of water and disconnected him from the system ; that his rights as a consumer were fixed under the contract that he had entered into in 1895, which could not be disturbed, except for reasonable rules and regulations, which it is not questioned the city had the right to make, regarding the use and consumption of water. This court has previously held in the case of Lenzen v. City of New Braunfels, which will be found reported in 35 S. W. 341, that a city who by contract owes a duty to a consumer will be required to exer- cise ordinary care in furnishing and supplying him with the use of water. And the averments of the petition, in terms, state that the purpose of passing the ordinances which are here assailed was to evade the decision of this court in the Lenzen Case ; and the averments of the petition, together with the terms of the contract as set out in Ex- hibit A, impress us with the belief that such was, in part, the purpose of the council of the cit} 7 in passing the ordinances, and requiring consumers to enter into contracts of the character set out in the exhibit. A city has the power to require, consumers to enter into contracts obligating them to comply with the reasonable rules and regulations which may be imposed for the operation and protection of the water system and for the use of the water ; but, as a prerequisite to fur- nishing a consumer a supply of water, the city has no power to require him to enter into an agreement absolving the city from the duties im- posed upon it by the law and release it from liability for its own negli- 5L ; 4 DITTMAR V. NEW BRAUNFELS. gence. The contract in question, which the plaintiff was required to sign, releases the city from liability for any scarcity or failure of sup- ply of water, or for the quality thereof, or for any failure to supply water in the event of a fire or other casualty or happening, and it expressly exempts it from liability for failure or scarcity of water for fire or domestic purposes. It is averred in the petition that the sources from which the city obtained its water will furnish an unlimited supply of a wholesome quality, if the city should conduct its works with due care with reference to its obligation to the consumers. This contract, in terms, releases the city from its obligation to furnish water of good quality and sufficient quantity, and for a failure to supply water in the event of a fire on the premises or other casualty or happening. In other words, the purpose of these stipulations in this contract seems to be that, for any failure or refusal to furnish water to a consumer, either with reference to its quality or quantity, the city should be released from liability. We are clearly of the opinion, in view of the duty that the city owes to its consumers of water, that the imposition of a con- tract of this nature would be unreasonable, and therefore void. It is probably true, if a consumer had entered into a contract of this nature and the city had undertaken under it to supply him with water, but had violated its duty and obligations resting upon it to furnish him an ade- quate and wholesome supply of water when it had in its power to do so, that the consumer could have, nevertheless, held it liable for the damages he had sustained; for, although the consumer may have agreed to release the city, still, in urging his rights in an action against it, a court would not have enforced those provisions of the contract which were unreasonable, in that the}- released the cit}' from its own negligence. While it is true that no obligation would have been created against a consumer by reason of such unreasonable terms in a contract of this nature, still the city has no right to require him to sign and execute a contract of this character as a prequisite to his right to the use and consumption of water, and, upon failure to comply with this unreasonable request, to cut off the supply which he was entitled to by reason of his previous contract. It is next contended that as the ordinance upon which this contract is based, together with a contract of this nature, are void as being un- reasonable, the city could not require him, as a condition for the use of water, to enter into a contract of a nature called for by section 27 of the ordinances. We clearly think the plaintiff is also correct in this contention. It is averred in the petition that the other inhabitants of the city are enjoying the privilege of the use of water under a similar rate as that given to the plaintiff in the contract of 1895, and that the situation and condition of these people is similar to that of the plain- tiff. Upon the refusal of the plaintiff to sign the contract, as stated in Exhibit A, the city had no authority, under the averments of the peti- tion, to require him to enter into a contract such as is required in sec- tion 27 of the ordinances ; for a contract as required by that ordinance INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 525 would place a greater burden upon the plaintiff, in requiring him to pay a greater price for the consumption of water for the same purpose than that for which it was furnished the other inhabitants of the city. A city has the power and right to prescribe reasonable charges for the use of water it furnishes to consumers, but it has no power to discrimi- nate between the inhabitants of the city in its charges for the use of water, when they occupy a similar situation. Reversed and remanded. INTERSTATE COMMERCE COMMISSION v. BALTIMORE & OHIO RAILROAD. SUPREME COURT OF THE UNITED STATES, 1892. [145 U. S. 263.] THIS proceeding was originally instituted by the filing of a peti- tion before the Interstate Commerce Commission by the Pittsburg, Cincinnati, & St. Louis Railway Company against the Baltimore & Ohio Railroad Company, to compel the latter to withdraw from its lines of road, upon which business competitive with that of the peti- tioner was transacted, the so-called "party rates," and to decline to give such rates in future upon such lines of road; also for an order requiring said company to discontinue the practice of selling excursion tickets at less than the regular rate, unless such rates were posted in its offices, as required by law. The petition set forth that the two roads were competitors from Pittsburg westward ; that the Baltimore & Ohio road had in operation upon its competing lines of road so-called "party rates," whereby "parties of ten or more persons travelling together on one ticket will be transported over said lines of road between stations located thereon at two cents per mile per capita, which is less than the rate for a single person; said rate for a single person being about three cents per mile." 1 . . . The cause was heard before the commission, which found "that so-called ' party rate ' tickets, sold at reduced rates, and entitling a number of persons to travel together on a single ticket or otherwise, are not commutation tickets, within the meaning of section 22 of the act to regulate commerce, 2 and that, when the rates at which such tickets for parties are sold are lower for each member of the party than rates contemporaneously charged for the transportation of single passengers between the same points, they constitute unjust .discrimination, and are therefore illegal." It was ordered and adjudged "that the defendant, the Baltimore & Ohio Railroad Com- pany, do forthwith wholly and immediately cease and desist from 1 Part of the statement of facts is omitted. ED. 3 Act of Feb. 4, 1887 ; 24 St. 379. 526 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. charging rates for the transportation over its lines of a number of persons travelling together in one party which are less for each person than rates contemporaneously charged by said defendant under schedules lawfully in effect for the transportation of single passengers between the same points." The defendant road having refused to obey this mandate, the com- mission, on May 1, 1890, pursuant to section 16 of the Interstate Commerce Act, filed this bill in the Circuit Court of the United States for the Southern District of Ohio for a writ of injunction to restrain the defendant from continuing in its violation of the order of the commission. . . . Mr. Justice BROWN delivered the opinion of the court. Prior to the enactment of the act of February 4, 1887, to regulate commerce, commonly known as the "Interstate Commerce Act" (24 St. 379), railway traffic in this country was regulated by the princi- ples of the common law applicable to common carriers, which de- manded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the partic- ular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service; Fitchburg Railroad Co. v. Gage, 12 Gray, 393; Baxendale v. Eastern Counties Railway Co., 4 C. B. (N. S.) 63; Great Western Railway Co. v. Sutton, L. R. 4 H. L. 226, 237; Ex parte Benson, 18 S. C. 38; Johnson v. Peusacola Railway Co., 16 Fla. 623; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the States acts had been passed with the design of securing the public against unreason- able and unjust discriminations; but the inefficacy of these laws beyond the lines of the State, the impossibility of securing concerted action between the legislatures toward the regulation of traffic be- tween the several States, and the evils which grew up under a policy of unrestricted competition, suggested the necessity of legislation by Congress under its constitutional power to regulate commerce among the several States. These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular locality or community, or of some local trade or commer- cial connection, or for the destruction or crippling of some rival or hostile line. The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities; to inhibit greater INTERSTATE COMMERCE COMMISSION V. SALT. A OHIO R. 527 compensation for a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freights. It was not designed, however, to prevent competition between different roads, or to interfere with the customary arrangements made by rail- way companies for reduced fares in consideration of increased mile- age, where such reduction did not operate as an unjust discrimina- tion against other persons travelling over the road. In other words, it was not intended to ignore the principle that one can sell at whole- sale cheaper than at retail. It is not all discriminations or preferences that fall within the inhibition of the statute, only such as are unjust or unreasonable. For instance, it would be obviously unjust to charge A. a greater sum than B. for a single trip from Washington to Pittsburg ; but, if A. agrees not only to go, but to return by the same route, it is no injustice to B. to permit him to do so for a reduced fare, since the services are not alike, nor the circumstances and conditions substantially similar, as required by section 2 to make an unjust discrimination. Indeed, the possibility of just discriminations and reasonable preferences is recognized by these sections, in declaring what shall be deemed unjust. We agree, however, with the plaintiff in its contention that a charge may be perfectly reasonable under section 1, and yet may create an unjust discrimination or an unreasonable preference under sections 2 and 3. As was said by Mr. Justice Blackburn in Great Western Railway Co. v. Sutton, L. R. 4 H. L. 226, 239: "When it is sought to show that the charge is extortionate, as being contrary to the statutable obligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company carried for some other person or class of persons at a lower charge during the period throughout which the party complaining was charged more under the like circumstances." The question involved in this case is whether the principle above stated, as applicable to two individuals, applies to the purchase of a single ticket covering the transportation of 10 or more persons from one place to another. These are technically known as "party rate tickets," and are issued principally to theatrical and operatic com- panies for the transportation of their troupes. Such ticket is clearly neither a "mileage " nor an "excursion " ticket within the exception of section 22 ; and upon the testimony in this case it may be doubt- ful whether it falls within the definition of "commutation tickets," as those words are commonly understood among railway officials. The words "commutation ticket" seem to have no definite meaning. They are defined by Webster (edition of 1891) as "a ticket, as for transportation, which is the evidence of a contract for service at a reduced rate." If this definition be applicable here, then it is clear that it would include a party rate ticket. In the language of the railway, however, they are principally, if not wholly, used to desig- nate tickets for transportation during a limited time between neigh* 528 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. boring towns, or cities and suburban towns. The party rate ticket upon the defendant's road is a single ticket, issued to a party of 10 or more, at a fixed rate of 2 cents per mile, or a discount of one third from the regular passenger rate. The reduction is not made by way of a secret rebate or drawback, but the rates are scheduled, posted, and open to the public at large. But, assuming the weight of evidence in this case to be that the party rate ticket is not a "commutation ticket," as that word was commonly understood at the time of the passage of the act, but is a distinct class by itself, it does not necessarily follow that such tickets are unlawful. The unlawfulness defined by sections 2 and 3 consists either in an "unjust discrimination" or an "undue or un- reasonable preference or advantage," and the object of section 22 was to settle, beyond all doubt, that the discrimination in favor of cer- tain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrim- ination being unjust. In other words, this section is rather illustra- tive than exclusive. Indeed, many, if not all, the excepted classes named in section 22 are those which, in the absence of this section, would not necessarily be held the subjects of an unjust discrimina- tion, if more favorable terms were extended to them than to ordinary passengers. Such, for instance, are property of the United States, State, or municipal governments; destitute and homeless persons transported free of charge by charitable societies ; indigent persons transported at the expense of municipal governments; inmates of soldiers' homes, etc., and ministers of religion, in favor of whom a reduction of rates had been made for many years before the passage of the act. It may even admit of serious doubt whether, if the mile- age, excursion, or commutation tickets had not been mentioned at all in this section, they would have fallen within the prohibition of sections 2 and 3 ; in other words, whether the allowance of a reduced rate to persons agreeing to travel 1,000 miles, or to go and return by the same road, is a "like and contemporaneous service under sub- stantially similar conditions and circumstances " as is rendered to a person who travels upon an ordinary single trip ticket. If it be so, then, under State laws forbidding unjust discriminations, every such ticket issued between points within the same State must be illegal. In view of the fact, however, that every railway company issues such tickets', that there is no reported case, State or federal, wherein their illegality has been questioned ; that there is no such case in Eng- land; and that the practice is universally acquiesced in by the public, it would seem that the issuing of such tickets should not be held an unjust discrimination or an unreasonable preference to the persons travelling upon them. But, whether these party rate tickets are commutation tickets proper, as known to railway officials, or not, they are obviously INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 529 within the commuting principle. As stated in the opinion of Judge Sage in the court below: " The difference between commutation and party rate tickets is that commutation tickets are issued to induce people to travel more frequently, and party rate tickets are issued to induce more people to travel. There is, however, no difference in principle between them, the object in both cases being to increase travel without unjust discrimination, and to secure patronage that would not otherwise be secured." The testimony indicates that for many years before the passage of the act it was customary for railroads to issue tickets at reduced rates to passengers making frequent trips, trips for long distances, and trips in parties of 10 or more, lower than the regular single fare charged between the same points; and such lower rates were univer- sally made at the date of the passage of the act. As stated in the answer, to meet the needs of the commercial traveller, the 1,000-mile ticket was issued; to meet the needs of the suburban resident or frequent traveller, several forms of tickets were issued. For exam- ple, monthly or quarterly tickets, good for any number of trips within the specified time ; and 10, 25, or 50 trip tickets, good for a specified number of trips by one person, or for one trip by a specified number of persons; to accommodate parties of 10 or more, a single ticket, one way or round trip, for the whole party, was made up by the agent on a skeleton form furnished for that purpose ; to accommodate excur- sionists travelling in parties too large to use a single ticket, special individual tickets were issued to each person. Tickets good for a specified number of trips were also issued between cities where travel was frequent. In short, it was an established principle of the busi- ness that whenever the amount of travel more than made up to the carrier for the reduction of the charge per capita, then such -reduction was reasonable and just in the interests both of the carrier and of the public. Although the fact that railroads had long been in the habit of issuing these tickets would be by no means conclusive evi- dence that they were legal, since the main purpose of the act was to put an end to certain abuses which had crept into the management of railroads, yet Congress may be presumed to have had those prac- tices in view, and not to have designed to interfere with them, except so far as they were unreasonable in themselves, or unjust to others. These tickets, then, being within the commutation principle of allowing reduced rates in consideration of increased mileage, the real question is whether this operates as an undue or unreasonable preference or advantage to this particular description of traffic, or an unjust discrimination against others. If, for example, a railway makes to the public, generally, a certain rate of freight, and to a particular individual residing in the same town a reduced rate for the same class of goods, this may operate as an undue preference, since it enables the favored party to sell his goods at a lower price than his competitors, and may even enable him to obtain a complete 530 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. monopoly of that business. Even if the same reduced rate be allowed to every one doing the same amount of business, such discrimination may, if carried too far, operate unjustly upon the smaller dealers engaged in the same business and enable the larger ones to drive them out of the market. The same result, however, does not follow from the sale of a ticket for a number of passengers at a less rate than for a single passenger ; it does not operate to the prejudice of the single passenger, who cannot be said to be injured by the fact that another is able, in a par- ticular instance, to travel at a less rate than he. If it operates injuri- ously towards any one it is the rival road, which has not adopted corresponding rates; but, as before observed, it was not the design of the act to stifle competition, nor is there any legal injustice in one person procuring a particular service cheaper than another. If it be lawful to issue these tickets, then the Pittsburg, Chicago, & St. Louis Railway Company has the same right to issue them that the defendant has, and may compete with it for the same traffic ; but it is unsound to argue that it is unlawful to issue them because it has not seen fit to do so. Certainly its construction of the law is not binding upon this court. The evidence shows that the amount of business done by means of these party rate tickets is very large ; that theatrical and operatic companies base their calculation of profits to a certain extent upon the reduced rates allowed by railroads; and that the attendance at conventions, political and religious, social and scientific, is, in a great measure, determined by the ability of the delegates to go and come at a reduced charge. If these tickets were withdrawn, the defendant road would lose a large amount of travel, and the single trip passenger would gain absolutely nothing. If a case were presented where a railroad refused an application for a party rate ticket upon the ground that it was not intended for the use of the general public, but solely for theatrical troupes, there would be much greater reason for holding that the latter were favored with an undue preference or advantage. In order to constitute an unjust discrimination under section 2 the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate, or other device* but, in either case, it must be for a "like and contemporaneous ser- vice in the transportation of a like kind of traffic, under substantially similar circumstances and conditions." To bring the present case within the words of this section, we must assume that the transporta- tion of 10 persons on a single ticket is substantially identical with the transportation of one, and, in view of the universally accepted fact that a man may buy, contract, or manufacture on a large scale cheaper proportionately than upon a small scale^ this is impossible. In this connection we quote with approval from the opinion of Judge Jackson in the court below: " To come within the inhibition INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 531 of said sections, the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons or classes between whom differences in charges are made must be compared with each other, and there must be found to exist substantial identity of situation and of service, accompanied by irregularity and partiality resulting in undue advantage to one, or undue disadvantage to the other, in order to constitute unjust discrimination." The English Traffic Act of 1854 contains a clause similar to sec- tion 3 of the Interstate Commerce Act, that "no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or dis- advantage in any respect whatsoever." In Hozier v. Caledonian Railroad Co., 17 Sess. Cas. (D) 302, 1 Nev. & McN. 27, complaint was made by one who had frequent occasion to travel, that passengers from an intermediate station be- tween Glasgow and Edinburgh were charged much greater rates to those places than were charged to other through passengers between these termini; but the Scotch Court of Session held that the peti- tioner had not shown any title or interest to maintain the proceeding; his only complaint being that he did not choose that parties travelling from Edinburgh to Glasgow should enjoy the benefit of a cheaper rate of travel than he himself could enjoy. " It provides," said the court, " for giving undue preference to parties pari passu in the matter, but you must bring them into competition in order to give them an interest to complain." This is in substance holding that the allowance of a reduced through rate worked no injustice to passengers living on the line of the road, who were obliged to pay at a greater rate. So in Jones v. Eastern Counties Railway Co., 3 C. B. (N. S.) 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London upon the same terms as they issued them between Harwich and London, upon the mere suggestion that the granting of the latter, the distance being considerably greater, at a much lower rate than the former, was an undue and unreasonable preference of the inhabitants of Harwich over those of Colchester. Upon the other hand, in Ran- some v. Eastern Counties Railway Co., 1 C. B. (N. S.) 437, where it was manifest that a railway company charged Ipswich merchants, who sent from thence coal which had come thither by sea, a higher rate for the carriage of their coal than it charged Peterboro mer- chants, who had made arrangements with it to carry large quantities over its lines, and that the sums charged the Peterboro merchants were 532 INTEESTATE COMMERCE COMMISSION V. BALT. A OHIO R. fixed so as to enable them to compete with the Ipswich merchants, the court granted an injunction, upon the ground of an undue preference to the Peterboro merchants, the object of the discrimina- tion being to benefit the one dealer at the expense of the other, by depriving the latter of the natural advantages of his position. In Oxlade v. Northeastern Railway Co., 1 C. B. (N. S.) 454, a railway company was held justified in carrying goods for one person for a less rate than that at which they carried the same description of goods for another, if there be circumstances which render the cost of carry- ing the goods for the former less than the cost of carrying them for the latter, but that a desire to introduce northern coke into a certain district was not a legitimate ground for making special agreements with different merchants for the carriage of coal and coke at a rate lower than the ordinary charge, there being nothing to show that the pecuniary interests of the company were affected; and that this was an undue preference. In short, the substance of all these decisions is that railway com- panies are only bound to give the same terms to all persons alike under the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circum- stances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may justify contracts which with us would be obnoxious to the long and short haul clause of the act, or would be open to the charge of unjust discrimination. But, so far as relates to the question of " undue preference," it may be presumed that Congress, in adopting the language of the English act, had in mind the construction given to these words by the Eng- lish courts, and intended to incorporate them into the statute. McDonald v. Hovey, 110 U. S. 619. There is nothing in the objection that party rate tickets afford facilities for speculation, and that they would be used by ticket brokers or "scalpers" for the purpose of evading the law. The party rate ticket, as it appears in this case, is a single ticket cover- ing the transportation of 10 or more persons, and would be much less available in the hands of a ticket broker than an ordinary single ticket, since it could only be disposed of to a person who would be willing to pay two thirds of the regular fare for that number of people. It is possible to conceive that party rate tickets may, by a reduction of the number for whom they may be issued, be made the pretext for evading the law, and for the purpose of cutting rates; but should such be the case, the courts would have no difficulty in discovering the purpose for which they were issued, and applying the proper remedy. Upon the whole, we are of the opinion that party rate tickets, as used by the defendant, are not open to the objections found by the Interstate Commerce Commission, and are not in violation of the act to regulate commerce, and the decree of the court below is therefore Affirmed. STATE V. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. 533 STATE v. CINCINNATI, NEW ORLEANS, AND TEXAS PACIFIC RAILWAY CO. SUPREME COURT OF OHIO, 1890. [47 Ohio St. 130. 1 ] BRADBURY, J. . . . The petitions charge, among other things, that the defendants misused their corporate powers and franchises by dis- criminating in their rates of freight in favor of certain refiners of petroleum oil connected with the Standard Oil Companj-, by charging other shippers of like products unreasonable rates, by arbitrarily and suddenly changing the same, and, finally, by confederating with the favored shippers to create and foster a monopoly in refined oil, to the injmy of other refiners and the public ; and, further, that the defend- ants claimed and exercised, in contravention of law, the right to charge, for shipping oil in tank-cars, a lower rate of freight per 100 pounds than they charged for shipping the same in barrels, in carload lots. The defendants, by answer, among other matters, denied charg- ing any shippers unreasonable rates of freight, or that they arbitrarily or suddenly changed such rates, and denied any confederacy with any one to establish a monopoty. The actions were referred to a referee, to take the evidence, and to report to this court his findings of fact and conclusions of law therefrom, all which has been done; and the cases are before us upon this report. . . . That the Cincinnati, Washington & Baltimore Railway Company did discriminate in its rates for freight on petroleum oil in favor of the Camden Consolidated Oil Compan}*, and that the Cincinnati, New Orleans & Texas Pacific Railway Company did the same in favor of the Chess-Carly Compan} 7 , is shown by the finding of the referee, which is clearly sustained by the evidence. That these discriminating rates were in some instances strikingly excessive, tended to foster a monopoly, tended to injure the competitors of the favored shippers, and were in many instances prohibitory, actualty excluding these com- petitors from extensive and valuable markets for their oil, giving to the favored shippers absolute control thereof, is established beyond any serious controversy. The justification interposed is that this was not done pursuant to any confederacy with the favored shipper, or with any purpose to inflict injury on their competitors, but in order that the railroad companies might secure freight that would otherwise have been lost to them. This we do not think sufficient. We are not un- mindful of the difficulties that stand in the way of prescribing a line of duty to a railway company, nor do we undertake to say the}^ may not pursue their legitimate objects, and shape their policy to secure bene- fits to themselves, though it may press severely upon the interests of 1 This case is abridged. ED. 534 STATE V. CINCINNATI, NEW ORLEANS, ETC. KAILWAY. others ; but we do hold that they cannot be permitted to foster or create a monopoly, by giving to a favored shipper a discriminating rate of freight. As common carriers, their dutj- is to cany indiffer- ently for all who maj" apply, and in the order in which the application is made, and upon the same terms; and the assumption of a right to make discriminations in rates for freight, such as was claimed and exercised by the defendants in this case, on the ground that it thereby secured freight that it would otherwise lose, is a misuse of the rights and privileges conferred upon it by law. A full and complete discus- sion of the principles, and a thorough collation of the authorities, bear- ing upon the duties of railroad companies towards their customers, is to be found in the opinion of Judge Atherton, in the case of Scofield v. Railway Co., 43 Ohio St. 571, to which nothing need be now added. It appears that, of the two methods of shipping oil, that by the barrel, in carload lots, and that in tank-cars, the first only was available to George Rice, and the other refiners of petroleum oil at Marietta, Ohio, as they owned no tank-cars, nor did the defendants own or undertake to provide any ; but that both methods were open to the Camden Consolidated Oil Company and the Chess-Carly Company, bj- reason of their ownership of tank-cars, and that the rate per barrel in tank-cars was very much lower than in barrel packages, in box-cars ; that in fact the Cincinnati, Washington & Baltimore Railwa\- Com- pany, after allowing the Camden Consolidated Oil Compan}' a rebate, and allowing the Baltimore & Ohio Railway Compaq- for switching cars, received from the Camden Consolidated Oil Company only about one-half the open rates it charged the Marietta refiners, and that both railroad companies claimed the right to make different rates, based upon the different methods of shipping oil, and the fact of the owner- ship by shippers of the tank-cars used by them. It was the duty of the defendants to furnish suitable vehicles for transporting freight offered to them for that purpose, and to offer equal terms to all shippers. A railroad is an improved highway. Thfc public are equally entitled to its use. It must provide equal accommodation for all, upon the same terms. The fact that one shipper may be provided with vehicles of his own entitles him to no advantage over his competitor not so provided. The true rule is announced by the interstate commerce commission in the report of the case of Rice v. Railroad Co. "The fact that the owner supplies the rolling stock when his oil is shipped in tanks, in our opinion, is entitled to little weight, when rates are under consideration. It is properly the business of railroad companies to supply to their customers suitable vehicles of transportation (Railroad Co. v. Pratt, 22 Wall. 123) and then to offer their use to everybody, impartially." 1 Int. St. Com. R. 547. No doubt, a shipper who owns cars may be paid a reasonable compensation for their use, so that the compensation is not made a cover for discriminating rates, or other advantages to such owner as a shipper. Nor is there an}' valid objec- tion to such owner using them exclusively, as long as the carrier STATE V. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. 535 provides equal accommodations to its other customers. It ma}* be claimed that if a railroad company permit all shippers, indifferently and upon equal terms, to provide cars suitable for their business, and to use them exclusively, no discrimination is made. This ma}- be theoretically true, but is not so in its application to the actual state of the business of the country ; for a very large proportion of the cus- tomers of a railroad have not a volume of business large enough to warrant equipping themselves with cars, and might be put at a ruinous disadvantage in the attempt to compete with more extensive establish- ments. Aside from this, however, a shipper is not bound to provide a car. The duty of providing suitable facilities for its customers rests upon the railroad company; and if, instead of providing sufficient and suitable cars itself, this is done by certain of its customers, even for their own convenience, yet the cars thus provided are to be regarded as part of the equipment of the road. It being the duty of a railroad company to transport freight for all persons, indifferentl}*, and in the order in which its transportation is applied for, it cannot be permitted to suffer freight cars to be placed upon its track by any customer for his private use, except upon the condition that, if it does not provide other "cars sufficient to transport the freight of other customers in the order that application is made, they may be used for that purpose. Were this not so, a mode of discrimination fatal to all successful com- petition by small establishments and operators with larger and more opulent ones could be successfully adopted and practised at the will of the railroad company, and the favored shipper. The advantages, if any, to the carrier, presented by the tank-car method of transporting oil over that by barrels, in box-cars, in car- load lots, are not sufficient to justify any substantial difference in the rate of freight for oil transported in that way ; but if there were any such advantages, as it is the duty of the carrier to furnish proper vehicles for transporting it, if it failed in this duty, it could not, in justice, avail itself of its own neglect as a ground of discrimination. It must either provide tank-cars for all of its customers alike, or give such rates of freight in barrel packages, by the carload, as will place its customers using that method on an equal footing with its customers adopting the other method. Judgment ousting defendants from the right to make or charge a rate of freight per 100 pounds for transport- ing oil in iron tank-cars, substantially lower than for transporting it in barrels, in carload lots. 536 GRIFFIN V. GOLDSBORO WATER CO. GRIFFIN v. GOLDSBORO WATER CO. SUPREME COURT OF NORTH CAROLINA, 1898. [112 N. C. 206.] CIVIL action for an injunction, pending in Wayne Superior Court and heard before TIMBERLAKE, J., at Chambers on 19th April, 1898, on a motion to dissolve a restraining order thereto issued. His Honor con- tinued the injunction to the hearing and defendant appealed. CLARK, J. The defendant corporation is the owner of a plant which supplies water to Goldsboro and its inhabitants under a franchise granted by the city. It has no competition. The complaint alleges that to prevent competition the defendant reduced its rates largely to certain parties who threatened to establish a rival company, but not only did not make a corresponding reduction to the plaintiffs and other customers but proposes to put in meters whereby the rates to plaintiffs and others will be greatly increased, and threatens to cut off the water supply of the plaintiffs if they do not pay the increased rates, which will be to their great injury ; that the rates charged by the cor- poration are not uniform and those charged the plaintiffs are unjust and unreasonable. The defendant denies, as a matter of fact, that the rates charged the plaintiffs are unreasonable and contends, as a proposition of law, that the company's rates are not required to be uniform and that it can discriminate in the rates it shall charge. It also relies upon the schedule of rates contained in the contract with the cit}' and avers that the charges to the plaintiffs do not exceed the rates therein permitted. The defendant corporation operates under the franchise from the cit} 1 , which permits it to lay its pipes in the public streets and other- wise to take benefit of the right of eminent domain. Besides, from the very nature of its functions it is " affected with a public use." In Mnnn v. Illinois, 94 U. S. 113, which was a case in regard to regulat- ing the charges of grain elevators, it was held that, in England from time immemorial and in this country from its first colonization, it has been customaiy to regulate ferries, common carriers, hackmen, bakers, millers, public wharfingers, auctioneers, innkeepers, and many other matters of like nature, and, where the owners of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use and must to the extent of that interest submit to be controlled by the public. Probably the most familiar instances with us are the public mills whose tolls are fixed by statute, and railroad, telegraph, and telephone companies, for the regulation of whose conduct and charges there is a State Commission, established by law. There have been reiterated decisions in the United States Supreme Court and in the several States GRIFFIN V. GOLDSBORO WATER CO. 537 affirming the doctrine laid down in Munn v. Illinois, supra, and as to even r class of interest affected with a public use, among others, water companies. Spring Valley v. Schotller, 110 U. S. 347. The right of fixing rates is a legislative function which the courts cannot exercise, but it is competent for the courts, certainly in the absence of legisla- tive regulations, to protect the public against the exaction of oppres- sive and unreasonable charges and discrimination. "The franchise of laying pipes through the city streets and selling water to the in- habitants being in the nature of a public use, or a natural monopoly, the company cannot act capriciously or oppressively, but must supply water to all impartially and at reasonable rates, and an injunction will issue to prevent the cutting off the water supply where the customer offers to pa}' a reasonable rate and the company demands an unrea- sonable one." 2 Beach Pri. Corp., Section 834 (c) ; Munn v. Illinois, supra ; Lumbard v. Stearns, 4 Gush. 60. In the 29 A. & E. Enc. 19, it is said : " The acceptance by a water company of its franchise car- ries with it the duty of supplying all persons along the lines of its mains, without discrimination, with the commodity which it was organ- ized to furnish. All persons are entitled to have the same service on equal terms and at uniform rates." If this were not so, and if cor- porations existing by the grant of public franchises and supplying the great conveniences and necessities of modern city life, as water, gas, electric light, street cars, and the like could charge any rates however unreasonable, and could at will favor certain individuals with low rates and charge others exorbitantly high or refuse service altogether, the business interests and the domestic comfort of every man would be at their mercy. They could kill the business of one and make alive that of another and instead of being a public agency created to promote the public comfort and welfare these corporations would be the mas- ters of the cities they were established to serve. A few wealthy men might combine and, by threatening to establish competition, procure very low rates which the company might recoup by raising the price to others not financially able to resist the very class which most needs the protection of the law and that very condition is averred in this complaint. The law will not and cannot tolerate discrimina- tion in the charges of these quasi-public corporations. There must be equalit}- of rights to all and special privileges to none, and if this is violated, or unreasonable rates are charged, the humblest citizen has the right to invoke the protection of the laws equally with any other. While the defendant cannot charge more than the rates stipulated in the ordinance granting it the franchise, because granted upon that condition, those rates are not binding upon consumers who have a right to the protection of the courts against unreasonable charges. Since the Constitution of 1868, Article VIII, Section 1, if the rates had been prescribed in a charter granted by the Legislature, they would be subject to revocation, and indeed independently of that constitutional 538 COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. provision, Stone v. Farmer's Co., 116 U. S. 307 ; R. Co. v. Miller, 132 U. S. 75 ; Chicago v. Munn, 134 U. S. 418 ; Georgia v. Smith, 70 Ga. 694 ; Winchester v. Croxton, 98 Ky. 739, still less can these rates bind consumers (if unreasonable or discriminating) since the town had authority to grant the franchise but not to stipulate for rates binding upon the citizens. The Legislature did not confer that power. The rates are binding upon the company as a maximum simply because acting for itself it had the power to accept the franchise upon those conditions. The allegations of fact that the rates are unreasonable and oppres- sive are denied. That they are not uniform is not denied and the de- fendant contended that it had the right to discriminate, which cannot be sustained. On the final hearing the cost and value of the property will be material in determining as to the reasonableness of the rates charged. Smyth v. Ames (known as the "Nebraska Case"), U. S. Supreme Court, 1898. The evidence offered on that point on the hear- ing below is not satisfactory, the mere amount of mortgage bonds issued on the property being no reliable guide to the courts as to the true value of the investment. It may be, as sometimes happens, that the bonds and stocks are watered. Nor is the evidence of the cost of construction and operation conclusive, as has often been held, for it may be that the work was extravagantly constructed or is operated under inefficient management and the public are not called on to pa}' interest upon such expenditures, in the shape of unreasonable or ex- tortionate rates. Missouri v. Smith, 60 Ark. 221 ; Chicago v. Well- man, 143 U. S. 339 ; Livingstone v. Sanford, 164 'U. S. 578. The court below property continued the cause to the hearing. No error. COMMONWEALTH v. THE DELAWARE AND HUDSON CANAL CO. AND PENNSYLVANIA COAL CO. SUPREME COURT OF PENNSYLVANIA, 1862. [43 Pa. Si. 295.] THE agreement referred to in the information, after reciting amongst other things, in substance and effect, that it was not for the interest of the canal company that the surplus capacity of its canal for trans- portation should remain unemployed ; that no company would prudently undertake to construct a " railway connecting with it without a cer- tainty of being allowed to transport thereon at a permanent rate of tolls ; that with a view to induce capitalists to invest their funds in the construction of a railroad to be connected with the canal, the companj' had offered a permanent tariff of tolls on all coal entering the canal on any such railroad ; provides that the canal company will at all times 1 This case is abridged. ED. COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. 539 hereafter furnish to any and all boats owned or used by the Wyoming Coal Association for the time being, or its assigns, for the purpose of transporting coal entering the canal by railroads connecting with the canal, &c., &c., all the facilities of navigation and transportation which the canal shall afford, when in good and navigable condition and repair, to boats owned or used by any other company or persons, or belonging to or used by or containing coal transported for the canal company, charging and collecting a toll on the coal at a rate per ton to be established in the manner following, viz. : On the 1st day of May in each and every calendar year the quantit}' of lump coal of the said Delaware and Hudson Canal Company, which shall at that time have been sold to be delivered at Rondout, and to arrive by the said canal during the said calendar year, shall be ascertained, and the average price at which such sales have been contracted, shall also be ascer- tained, and from the average price thus ascertained, $2.50 shall be subtracted, and one-half of the remainder shall be the toll per ton during such calendar year, except that if any discount or deduction, contingent or otherwise, shall be agreed upon or contemplated in the contracts for such sales, the said toll shall be reduced correspondingly to such discount or deduction as shall be actually made. But provided, nevertheless, that if on the 1st day of May, in any calendar year, the quantity of lump coal of the said Delaware and Hudson Canal Com- pany, which shall at that time have been sold as aforesaid, shall be less than one-half the estimated sales for such 3'ear, the toll during such year shall be calculated in the manner hereinbefore provided on the average price at which the sales of lump coal for such year shall be actually made ; and if in any calendar year no sales of the coal of the Delaware and Hudson Canal Company shall be made, then and in that case the toll during such year shall be calculated on the sales for such year of the lump coal of the Wyoming Coal Association for the time being, or its assigns, in the manner hereinbefore provided for, calcu- lating the toll on the sales of the said Delaware and Hudson Canal Company. And in case of an enlargement of the said canal, the said president, managers, and company, and their successors and assigns, may also charge and collect an additional toll on the coal transported in pursuance of this agreement, at a rate per ton of 2,240 pounds, to be established after the completion of the said enlargement, in the manner following, viz. : The cost of transportation per ton on the said canal, between the points at which such coal shall enter the said canal and the point on the Rondout creek, at which the said canal meets tide- water, after the full effect of all the improvements previous to the said enlargement shall have been experienced, shall be fairly ascertained or established ; the cost of transportation per ton on the said canal between those points after the said enlargement shall have been com- pleted shall also be fairly ascertained or estimated, and one-half of such portion of the reduction in the cost of transportation per ton on the said canal between these points as shall be estimated to have 540 COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. been produced by the said enlargement, and by no other cause, shall be the additional toll per ton to be thereafter permanently charged." The contract then provides that until such enlargement the canal company shall not be bound to allow over 400,000 tons to be trans- ported over the canal in any one season, and that after such enlarge- ment it shall not be bound to allow such quantity to be increased so as to exceed in any one season " oue-half of the whole capacity for trans- portation of the said canal, exclusive of the tonnage employed in the transportation of articles other than coal," and the main question was, whether this agreement, made on the 31st day of August, 1847, be- tween the canal company and the Wyoming Coal Association, and re- newed with the Pennsylvania Coal Company, was in excess of the legitimate power of said parties. The defendants were not agreed as to the validity of the contract, the Hudson Canal Company insisting that it was and is contrary to law, while the coal company claimed that it is a valid and binding agreement as between the parties. Separate answers to the information were filed by the defendants, but as the objections to the agreement are all contained in the answers of the canal company, and are suffi- ciently stated in the opinion of this court, it is unnecessary to repeat them here. LOWRIE, C. J. . . The information alleges that the agreement in controversy is in excess of the legitimate power of these corporations, and prays that it may be so declared by this court, and that the defendant may be enjoined from acting under it, and also that they may be required to appear and consent to or refuse its cancellation, and for such other decree as may be agreeable to equity. The infor- mation would have been formally and substantiall}' improved if it had specially suggested wherein the agreement is in violation of the corporate rights of the defendants. But we may treat this defect as supplied by the answers of the defendants. The defendants have got into a quarrel among themselves about the agreement, and the canal company confesses and claims that the agreement is contrary to law, while the coal company insists that it is not, and claims that it shall stand as the bond and law of the relations between the parties. It is therefore in the answer of the canal com- pany that we find the objections to the contract specified, and we proceed to consider them. 1. It is objected that the agreement grants to the coal company a monopoly of the one-half of the capacity of the canal of the other party, to the exclusion of the public, because it contracts to furnish to the coal compan}* all the facilities of navigation which the canal will afford, not exceeding one-half of its whole capacity, inclusive of the tonnage employed in the transportation of articles other than coal. This leaves to all property other than coal its full right of transpor- tation on the canal ; but it does profess to give the coal company a right, as against other carriers of coal, to a preference to the extent of COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. 541 one-half the capacity of the canal. And this ma}* be wrong if it interferes with the claims of others to have their ccal carried as cheaply and speedily as that of the coal compan}'. But there is no complaint that anybody has been wronged by this, or that either company has by this actually exercised any function that is exclusive of the public right. When the defendants do in fact transgress the limits of their legitimate functions and interfere with the public rights, then will be the time to bring a charge against them. A mere intention or contract to allow an act that may be wrong, is no ground for an information in law or equity in the nature of the quo warranto. 2. It is objected that the agreement, instead of fixed tolls to be col- lected at the locks according to the charter of the canal company, provides for a rate of toll to be ascertained by the market price of coal in every year, and thus the rate of toll remains uncertain until this price is ascertained, and it cannot therefore be demanded at the locks, and may, in certain states of the coal market, exceed the toll allowed by the charter. We do not see that this objection involves any public grievance. The canal company has a right to commute its tolls ; and we cannot see that the public has any interest in objecting that it may get too much, under the contract of commutation, in a certain contingencj", or that it has contracted away part of its means of obtaining the little that it agrees to accept under the contract. At all events, the agree- ment is, by itself, no actual transgression of proper functions. 3. But the above objection -is repeated on behalf of the public ; that, on account of the uncertainty of the toll, the canal company cannot always know how much to demand of others, and therefore cannot do equal justice to all according to its public duty as a canal company. 12 Harris, 138 ; 10 M. & W. 398. But we find no averment or pretence that the public or any private person has suffered any wrong by reason of this, or that the canal company has been compelled, in obeying this part of the contract, to exercise any functions that do not properly belong to it as a canal company. If it really means to be honest towards the public, we doubt not that it will be able to discover some such reasonable rule of equality in dealing with other carriers that the public will have no reasonable ground of complaint. Exact equality is not demanded, but such a reasonable approximation to it as can be secured by reason- able general rules, free from mere arbitrariness. 4. It is objected that because the tolls are fixed at half the proceeds of the coal after deducting the estimated costs of the production, therefore the canal company is a speculative dealer in coal, which is a departure from the purposes of its creation. We do not perceive that the conclusion follows from the premises. Measuring toll by the profits on the article when sold, is not becoming a dealer in coal, else government would be a dealer in articles that are subjected to an ad valorem tariff. It is very common for the State to 542 COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. measure taxes according to supposed profits, and we find no public wrong in the canal company doing so in its contract of commutation of tolls. 5. It is objected that such a contract, to be valid, ought to have the sanction of the Legislature, because it affects the interest and income of the State. But it is not any way shown to us that it does so. Nothing like this is averred in the information, and of course we cannot assume it. If either of these corporations do anything under the contract to the interest and income of the State, and contrary to its charter, and this be shown to us in any regular manner, we shall probably interfere and correct it. But we can do nothing arbitraril}'. We must have some definite allegation and proof of usurpation before we can do anything. The allegation of mere probabilities of wrong raises no question for our interference. 6. It is objected that, since, under the contract, the tolls are measured by the profits, the coal company has the power by sacrificing the regular profits or a portion of them, to control the coal market, and may at its pleasure so depress the price as to ruin man} r of those engaged in the trade, and greatly disturb the public interest without any serious injury to itself, and that it did so last spring. If this had been averred in the information, and proved as one of the grounds of the complaint against the agreement, we should have regarded it as the most serious one of all those that have been urged ; but it is neither alleged nor proved by the Commonwealth. And we incline to think that it is properly so, for it seems to us that this objec- tion is founded rather on the abuse of the agreement than on the nature of it, and that the remedj* ought to be compensation under the equity, if not the letter, of the agreement, rather than cancellation of it. Nothing can be more obvious than that the parties intended to adopt a standard by which the tolls were to be indirectly measured. But that can be no standard that may be controlled entirely by the will of either party, and neither can be supposed to have intended such a measure of value. They both meant to fix a standard independent of themselves, and in the public market where we look for the natural standard of value. Both of them, as dealers in the market, would have an influence in fixing the market price, and therefore the standard ; but neither of them, dealing according to the fair laws of the trade and of competi- tion in it, could control this standard or would attempt to do it. That is a standard that may well be appealed to, because it is never merely arbitrary, and in trade and in law it is constantly appealed to. These parties are large dealers in coal, and therefore their sales are, by the agreement, to be taken as a means of ascertaining the market price, and not for the purpose of giving either of them the power to fix that price, or with the thought that either of them might do so. If they arbitrarily use their power to change the standard, they necessarily HOOVER V. PENNSYLVANIA RAILROAD CO. 543 destroy its authority as a standard as in their favor ; for it is not their will, but the fair market price that is appealed to. We are not entitled in this case to inquire how far a trading corpo- ration is liable to control or punishment for recklessly raising or depressing prices, for our sole inquiry is concerning the legality of this agreement. We cannot discover any such illegality in it as would justify us in directing its cancellation. Some of the allegations of the canal company seem to show a great abuse of the agreement by the coal company, but the information is in no degree grounded on that, and we cannot inquire of it, and we must volunteer no opinion as to the fact or its consequences or remedy. Information dismissed. 1 HOOVER v. PENNSYLVANIA RAILROAD CO. SUPREME COURT OF PENNSYLVANIA, 1893. [156 Pa. St. 220. 2 ] TRESPASS for damages for alleged unlawful discrimination. At the trial, before FURST, P. J., it appeared that, in 1881, the defend- ant agreed to transport coal from the Snow Shoe district to the works of the Bellefonte Iron & Nail Company for the sum of thirty cents per ton, provided the nail company consumed at least twenty tons per day. It appeared that the coal was to be tariffed at the usual public rate of fifty cents per ton, and that a rebate of twenty cents per ton net would be repaid by the railroad company to the nail company. In 1889, plaintiffs became retail coal dealers in Bellefonte, and were charged by the railroad company the usual public rate for the transportation of their coal. Mr. Justice GREEN. . . . Let us now see what is the voice of the authorities upon the subject of discriminations in freight charges by carrying companies. The subject is an old one. Prior to any statutes in England or in this country, the common law had pronounced upon the rights and duties of carriers and freighters, and in the enactment of statutes little more has been done than to embody in them the well- known principles of the common law. It happens, somewhat singu- larly, that the very question we are now considering, of a discrimina- tion in the rates charged to coal dealers and to manufacturers who use coal as a fuel, does not appear to have arisen. And yet it is very certain that such discrimination does prevail, and has prevailed for a long time on all lines of railway and canal. It is highly probable that the absence of litigation upon such discrimination is due to the general 1 Compare: Union Pacific Co. v. Goodridge, 149 U. S. 680. ED. 2 This case is abridged. ED. 544 HOOVER V. PENNSYLVANIA RAILROAD CO. sentiment of its fairness and justness. Within the writer's knowledge in the section of the State in which he lives, a much greater difference between the rates charged to dealers and those charged to manufac- turers 03- the coal-carrying companies has always existed and now exists, without any question as to its justness or its legality. It is matter of public history that along the valleys of the Lehigh and the Schuylkill there are great numbers of blast furnaces, rolling mills, rail mills, foundries, machine shops, and numerous other manufacturing establishments which consume enormous quantities of the coal output of the State, and at the same time in every village, town, and city which abound in these regions, an immensely large industry in the buying and selling of coal for domestic consumption is also prosecuted. And what is true of the eastern end of the State is without doubt equally true throughout the interior and western portions of the Commonwealth, where similar conditions prevail. Yet from no part of our great State has ever yet arisen a litigation which called in question the legality, or the wisdom, or the strict justice of a discrim- ination favorable to the manufacturing industries as contrasted with the coal-selling industries. This fact can scarcely be accounted for except upon the theory that such discrimination, as has thus far trans- pired, has not been felt to be undue, or unreasonable, or contrary to legal warrant. In point of fact it is perfectly well known and appre- ciated that the output of freights from the great manufacturing centres upon our lines of transportation constitutes one of the chief sources of the revenues which sustain them financial!}'. Yet no part of this income is derived from those who are mere bu\'ers and sellers of coal. When the freight is paid upon the coal they buy, the revenue to be derived from that coal is at an end. Not so, however, with the revenue from the coal that is carried to the manufacturers. That coal is consumed on the premises in the creation of an endless variety of products which must be put back upon the transporting lines, en- hanced in bulk and weight by the other commodities which enter into the manufactured product, and is then distributed to the various markets where they are sold. In addition to this, a manufacturing plant requires other commodities besides coal to conduct its operations, whereas a coal dealer takes nothing but his coal, and the freight derived by the carrier from the transportation of these commodities forms an important addition to its traffic, and constitutes a condition of the business which has no existence in the business of carrying coal to those who are coal dealers only. Thus a blast furnace requires great quantities of iron ore, limestone, coke, sand, machinery, lumber, fire bricks, and other materials for the maintenance of its structures and the conduct of its business, none of which are necessary to a mere coal-selling business. These are some of the leading considerations which establish a radical difference in the conditions and the circum- stances which are necessarily incident to the two kinds of business we are considering. Another important incident which distinguishes them BAILY V. FAYETTE GAS-FUEL CO. 545 is that the establishment of manufacturing industries, and the conduct- ing of their business, necessitates the employment of numbers of work- men and other persons whose services are needed, and these, with their families, create settlements and new centres of population, re- sulting in villages, towns, boroughs, and cities, according to the extent and variety of the industries established, and all these, in turn, furnish new and additional traffic to the lines of transportation. But nothing of this kind results from the mere business of coal selling. In fact that business is one of the results of the manufacturing business and is not co-ordinate with it. The business of the coal dealer is promoted by the concentration of population which results from the establish- ment of manufacturing industries, and these two kinds of business are not competitive in their essential characteristics, but naturally proceed together, side by side, the coal selling increasing as the manufacturing increases in magnitude and extent. Judgment for defendant,}- BAILY v. FAYETTE GAS-FUEL CO. SUPREME COURT OF PENNSYLVANIA, 1899. [193 Pa. St. 175.] ON September 21, 23, and 24, 1898, the defendant company caused to be inserted in the Daily News Standard, published in Uniontown, an advertisement, notifying domestic consumers of natural gas that after October 1, 1898, the rates for gas would be as follows: For heat, twent3'-five cents per 1,000 cubic feet; for light, $1.50 per 1,000 cubic feet ; and requiring all consumers desiring to use gas for light to notify the company immediately that the light meters might be set. At or about the same time similar notices were mailed to the compam"'s customers. The plaintiff, a resident of Uniontown, saw the notice as published and also received one by mail. On or about October 3, 1898, an employee of the defendant company notified the plaintiff orally that if he did not call immediately at the defendant's office and make arrangements for using the gas for illumination the gas would be shut off, whereupon the plaintiff filed the bill in this case, alleging that the proposed difference in charge for gas used for illuminating and heating purposes is an unjust and unlawful discrimination, and an un- reasonable regulation, not made in good faith, but for the benefit of other corporations ; that the proposed action of the defendant would be a violation of the plaintiff's rights and the defendant's duties and would work a continuous and irreparable injury to the plaintiff, and praying that the defendant be restrained from shutting off plaintiffs i Contra : Hilton Lumber Co. v. Atlantic Coast Line, 53 S. E. 823. ED. 35 546 BAILT V. FAYETTE GAS-FUEL CO. suppty of natural gas and from any interference with the connec- tion between its mains or supply pipe and plaintiff's premises, which would prevent him from using natural gas for either heating or illumi- nating purposes, so long as the plaintiff continues to pay the usual rates charged generally for gas, without discriminating as to the use thereof for illuminating purposes, &c. MITCHELL, J. The defendant company was chartered under the Act of May 29, 1885, P. L. 29, to produce, transport, supply, &c., natural gas for heat, light, or other purposes. It has been supplying the gas for both heat and light, and proposes to continue doing so, but upon terms making a difference in price according to the use to which the gas is put by the consumer. The question now before us is the reason- ableness of this regulation. In his opinion the learned judge below said, " So far as concerns this case the defendant company may be regarded as incorporated for the purpose of supplying natural gas to consumers for heat and light." Not onh- did its charter powers cover both uses, but as already said its actual operation has included both, and it is not intended now to abandon either, even if that could be done. The corporate powers are the measure of corporate duties. The gas is brought by the company through the same pipes for both purposes and delivered to the customers at the same point, the curb. Thence it goes into pipes put in by the consumer, and, after passing through a meter, is distributed by the customer through his premises according to his own convenience. The regulation in question seeks to differentiate the price according to the use for heating or for light. It is not claimed that there is any difference in the cost of the product to the compan}*, the expense of supplying it at the point of delivery or its value to the company in the increase of business or other ways. Some effort was made to show increased risk to the companj- from the use of gas for lighting purposes, but the evidence of danger was so re- mote and shadowy that it cannot be considered as more than a mere makeweight. The real argument seeks to justify the difference in price solely by the value of the gas to the consumer, as measured by what he would have to pay for a substitute for one purpose or the other if he could not get the gas. This is a whollj* inadmissible basis of dis- crimination. The implied condition of the grant of all corporate franchises of even quasi-public nature is that the}* shall be exercised without indi- vidual discrimination in behalf of all who desire. From the inception of the rules applied in early days to innkeepers and common carriers down to the present day of enormous growth of corporations for nearly ever} 1 conceivable purpose, there has been no departure from this prin- ciple. And from all the legion of cases upon this subject the distin- guished counsel for the appellee have not been able to cite a single one in which a discrimination based solely on the value of the service to the customer has been sustained. Hoover v. Penna. R. Co., 156 Pa. LADD V. BOSTON. 547 220, was much relied on b} T the court below, but was decided on a very different principle. That was an action for damages for unlawful dis- crimination by a dealer in coal, because a manufacturing company had been allowed a rebate on coal carried to it. But it was held that as the rebate was allowed in consideration of a minimum of coal to be carried per da} 1 , and also in view of return freight on the product of the manufacturing company, it was not an unreasonable discrimina- tion ; in other words, that the company might look for its compensation not only to the actual money freights from present service, but also to increased business to grow out of the establishment of a new industry in that place. So also Phipps v. London & North Western Ry. Co., L. R. 1892, 2 Q. B. 229, cited for appellee, where the decision was put upon the right of the railroad to make special rates for freights from distant points which otherwise it could not get at all. Both cases belong to the numerous class of discrimination sustained on the basis of special advantages to the carrier, not the customer. Decree reversed, injunction directed to be reinstated and made permanent. Costs to be paid by appellee. LADD v. BOSTON. SUPREME COURT OF MASSACHUSETTS, 1898. [170 Mass. 332. 1 ] BILL in equity, filed December 31, 1896, alleging the following facts. The plaintiff is the owner of a building on Pemberton Square in Boston, and the defendant supplies the water to be used therein. The defendant has established, and still continues, fixture rates and meter rates, in accordance with which it requires water takers to pay for the water they use. Many years ago the defendant put a water meter into the building owned by the plaintiff, and has maintained the same there ever since. At the time the meter was put in, the plaintiff, relying upon its continuance, supplied his building very liberally with water fixtures. By the meter rates, the water used in the building amounts to about five dollars each year, but the plaintiff has always paid fifteen dollars per annum, that being the minimum meter rate. The defendant has recently adopted a policy of removing all meters where it would receive more money from fixture rates, without any re- gard to the injustice it will work to certain water takers. In accord- ance with such policy, it now threatens to remove said meter and put the building upon fixture rates, and to shut off the water unless the plaintiff allows it to do so. By fixture rates for all the fixtures in the building 1 The case is abridged. ED. 548 LADD V. BOSTON. in actual use the plaintiff would be required to pay about one hundred and five dollars per annum. The water fixtures in the building cannot be lessened or rearranged without very great expense, and in no way can they be so lessened or rearranged as to make the fixture rate in any sense reasonable for the quantity of water used. The income from the building has largely decreased in the last few years, and is not suf- ficient to warrant the payment of such excessive water taxation. The plaintiff has suggested to the defendant that the minimum meter rate be reasonably increased if it be not now large enough to be just to fixture-rate water takers, and he has offered to furnish his own private meter and pay for repairs on the same if he could thereby continue to enjoy meter rates ; but this suggestion has been declined, and this offer refused. If the building is placed upon fixture rates, the plaintiff will be obliged to pay more than twenty times as much as other water takers pay for the same quantity of water. KNOWLTON, J. . . . Considerable discretion in determining the methods of fixing rates is necessarily given by the statute to the water commissioner. Money must be obtained from water takers to reim- burse the city wholly or in part for the expense of furnishing water. An equitable determination of the price to be paid for supplying water does not look alone to the quantity used by each water taker. The nature of the use and the benefit obtained from it, the number of per- sons who want it for such a use, and the effect of a certain method of determining prices upon the revenues to be obtained by the city, and upon the interests of property -holders, are all to be considered. Under any general and uniform system other than measuring the water, some will pa}' more per gallon than others. It appears by the bill that the plaintiff has so arranged fixtures in his building that he and his tenants can obtain the convenience and benefit of having water to use in many places, while the quantity which they want to use in the whole building, paid for at the rate per gallon charged for measured water, would cost only five dollars per year. He has been accustomed to pay fifteen dollars per year, because, however small the quantit} 7 used, that is the lowest sum per year for which water will be furnished under the rules through any meter. The only averment in the bill which tends to show that the charge for his building after the meter is removed will be unreasonable, is that he " will be obliged to pay more than twenty times as much as other water takers pay for the same quantity of water." This means that the arrangement of fixtures in his building is such that, paying by the fixture at the ordinary rate, the aggregate quantity used will be so small as to make the price per gallon twenty times as much as the price paid for measured water where meters are allowed to be used, or the lowest price paid at rates by the fixture where the largest quantities are used through the fixtures. This does not show that charging by the fixture is an improper method. It only shows that the number and arrangement of the fixtures in the plaintiff's building are uneconomical STATE EX EEL. CUMBERLAND, ETC. CO. V. TEXAS, ETC. RAILROAD. 549 for the owner as compared with a different construction and arrange- ment of the conveniences for using water in some other buildings. The rights of the parties are not affected by the fact that the plaintiff was using a meter when he put in his fixtures. He knew that he had no contract for the future with the city in regard to the mode of fixing the price to be paid for water, and it appears that the quantity which he has been using is only about a third of the smallest quantity for which water is ever charged by the gallon, running through a meter. The bill does not state a case for relief in equity. Bill dismissed. STATE EX REL. CUMBERLAND TELEPHONE AND TELE- GRAPH CO. v. TEXAS AND PACIFIC RAILROAD CO. SUPREME COURT OP LOUISIANA, 1900. [28 -So. Rep. 284. 1 ] BLANCHARD, J. . . . Defendant company is, quoad its lines in Louisiana, a Louisiana corporation. It acquired by purchase and ab- sorption the franchise rights and lines of the New Orleans Pacific Rail- way Company, which held under a legislative charter from the State of Louisiana, and whose domicile was the city of New Orleans. See Act No. 14, Acts La. 1876, and articles of agreement of consolidation between the Texas Pacific Railway Company and the New Orleans Pacific Railway Company, found in the record. It is not true that the court, in its decree heretofore rendered, has assumed the authority to manage defendant company's railway and to direct the running of its trains. All the decree does is to require of the company the perform- ance of the same service for relator that it has extended to others, notably the Western Union Telegraph Compan}'. The evidence estab- lishes that poles and materials for the construction, repair, and main- tenance of the Western Union lines have been distributed by the cars of plaintiff company between stations, and that this has been going on for years, and still goes on. It also establishes that it has been con- stantly the practice of defendant company to deliver freight for planters and others between stations, and to receive for transportation, at points between stations, rice, augar, &c. This being shown, it is held that the company may not discriminate, and, when called upon under con- ditions that are reasonable, must perform the like service for relator ; and the duty, being of a public nature, is enforceable by mandamus. The evidence also shows that the same service herein required of de- fendant company has been freely accorded this relator and others by other railroad companies over their lines in this and other States. Relator, it appears, owns its own cars, on which are loaded its tele- 1 This case is abridged. ED. 550 CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. phone and telegraph poles. It applied to defendant company to haul these cars over its lines between New Orleans and Shreveport and throw the poles off, or permit them to be thrown off, at convenient dis- tances. Other railroad companies, operating lines of railway into and out of New Orleans, had done this, and defendant company does the same for the Western Union Telegraph Company, a rival line. It re- fused the service to relator. That it is the province of the court to say to this common carrier, " What you do for others you cannot refuse to relator," cannot, we think, be seriously questioned. And in so say- ing, and enforcing by its writs the performance of the duty, it is not apparent that defendant company is denied any of the rights, privileges, and immunities granted to it by the several acts of Congress referred to in the application for rehearing and in the briefs filed on its behalf. The rehearing applied for is denied. CITY OF MOBILE v. BIENVILLE WATER SUPPLY CO. SUPREME COURT OF ALABAMA, 1901. [30 So. Rep. 445. 1 ] APPEAL from Chancery Court, Mobile County ; Thomas H. Smith, Chancellor. Bill by the Bienville Water Supply Company against the city of Mobile and others. Demurrers to the bill were overruled, and defend- ants appeal. HARALSON, J. . . . 3. The bill alleges that complainant is a corpora- tion chartered by the State for the purpose of supplying and selling water to the city of Mobile and to its inhabitants ; that it has laid its mains and pipes in the streets of the city and established its plant at an expense of over 8800,000, and is supplying water to customers in the city for famil}' use, sewerage, and other purposes ; that the city of Mobile, by an act of the 30th November, 1898, was authorized to con- struct a system of waterworks and sewers for the use of itself and its inhabitants, and was empowered to collect such rates for water sup- plied for the use of said sewerage system as shall be sufficient to pay the interest on the bonds issued by it for the purpose of providing said waterworks and sewerage s}'stems and the expenses necessary for operating ; such rate not to exceed the usual and customary rates charged by other cities similarly situated for like service. It was further shown, that by act February 15, 1899, entitled " An Act to promote the health of the city of Mobile," &c. (Act 1898-99, p. 895), the city was empowered to compel connections with its sewers, and for the use thereof, " to fix and charge such reasonable rates for 1 This case is abridged. ED. CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. 551 the purpose of maintaining and operating said sewerage sj'stem and paying the interest on the bonds issued by the city of Mobile to build said sewerage system, as said mayor and general council may deem proper ; " that it was empowered by another act (Acts 1898-99, p. 16), to issue $750,000 of bonds, secured by mortgage on its water and sewerage s}'stem, of which $500,000 was to be used for buying or building waterworks, and $250,000 for buying or building sewers ; that it has issued and sold said bonds and built both systems, expending over $500,000 for the water system, and not over 8200,000 for the sewer system ; that it is operating both systems, and from its water- works is furnishing water to itself and its inhabitants, and is supplying water on about twent}- miles of streets upon which there are no sewers. The averment is made, that the city has never fixed an}' rate for the use of its sewers alone, but it will not allow any customers of com- plainant's water to connect with or use its sewers, except at the same price as the city charges for both its water and sewers together, in effect forcing its citizens and inhabitants to take the water of the city, or to pa}' for the water of complainant in addition to what each citizen would have to pay for the city's water and sewerage together, discrimi- nating, as is alleged, against complainant and making it, in effect, fur- nish water for nothing, or to lose its customers by reason of the double charges so imposed on them ; that the city through its officers and agents threatens the people of Mobile that the}' will not be allowed to use the sewers, unless they subscribe for and take the city water, and that they will not be allowed to use the water of complainant in con- nection with the city's sewers ; that the city has the physical power, by means of its police force, to enforce this threat, and it is thus intimidat- ing the customers of complainant, and compelling them to leave com- plainant and take the water from the citj* waterworks, and upon their desiring to return, the cit}*, through its officers, have refused to let them disconnect from the city's pipes or to connect with complainant's. It is further avferred that the city charges its own customers on streets where there is no sewer service, the same rate that it charges others for both water and sewers, along streets where said sewers are laid, which, it is alleged, is a discrimination in charges for sewerage, not only against complainant and its customers of water, but also against all consumers of water and customers of the city, not on streets or lines where the sewers are laid. It is also averred that the city is insolvent, so that nothing can be made out of it by execution at law. 4. The first, second, third, fourth, and fifth grounds of demurrer to the amended bill may be grouped as raising in different forms, the same question. To state the contention of defendant in the language of counsel, these "grounds of demurrer challenge the sufficiency of the bill as amended, upon the ground that the bill shows that the servants and agents of the city exceeded their power and authority, [and] should have been sustained," the contention being " that said acts and 552 CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. doings of said officers and agents, as charged in said bill as amended, were void and not binding upon the city of Mobile." The bill alleges, however, very distinctly that the city is committing the wrongs com- plained of through its officers and agents, a fact the grounds of de- murrer specified clearly overlook. The city could, of course, commit the alleged wrongs in no other way, except through its agents and officers. If the acts of the city are warranted by law, it could not be enjoined from committing them. The wrongfulness of these acts is, therefore, the only predicate for relief. 5. The other grounds of demurrer to the original, refiled to the amended bill, and those added to the bill as amended, raise the more serious question to be decided. From the facts of the case, as above recited, if true, as they must be taken on demurrer, it distinctly appears that the city, while it has the authority to do so, has never, by ordinance, fixed any charge or rate for the use of its sewers, and, indeed, is making no charge to its own customers for the use of the same ; that it charges an)- one using its water alone as much as it charges another for the use of both water and sewer; and against those who use the complainant's water, it charges for sewer service alone as much as it charges its own cus- tomers for both water and sewerage, thus making its sewers free to those who use its water, while it imposes on complainant's customers a discriminating and onerous charge for the use of its sewers, as much, as is alleged, as it charges for its own water and sewerage in addition. Whether intended by the city to so operate or not, one can scarcely conceive of a more effective scheme to deprive the complainant of its customers than the one alleged in the bill. If complainant has to furnish its customers with water, and they are required b}- the city to pay for sewerage the same price it charges its own customers for its water and sewerage, it follows the complainant would have to furnish water practically free or abandon the business ; for it would be unrea- sonable to suppose that an}' one would use the complainant's water and bear the additional expense imposed for so doing. These sewers of the city are for the public at large, and every one should be per- mitted 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 rates to all impartially on reasonable terms. As is said by Mr. Bates, " All persons are entitled to have the same service on equal terms and on uniform rates." In addition, it is averred, as seen, that citizens are notified by the city that they cannot use its sewers unless they subscribe for the city water, and customers of complainant, desiring to return to it, are forbidden by the city from disconnecting from its pipes and connecting with com- plainant's, a threat the city has the physical power to enforce. If these wrongs exist, they should be remedied. The complainant is far more interested and injured than any one or all of its customers. It cannot live and enjoy the rights and privileges bestowed on it by ita PHIPPS V. LONDON AND NORTH WESTERN RAILWAY. 553 charter, if by unjust discriminations on the part of the city in operating its sewer system, its customers are taken from it. Its customers might not be willing to incur the trouble and odium of litigation to redress the private wrongs thus done to them, even at complainant's expense. But, complainant itself has rights which should be protected against such alleged wrongs, and is entitled to seek redress in its own name. The city should on considerations of highest equit} 7 and justice, as by its charter it is authorized to do, fix a rate for sewer service, distinct from the rate fixed for the use of its water, and this rate should be the same to all persons, including the complainant and its customers, or, it should make them free to all, without discrimination. In other words, these sewers should be used to promote the public health, as free to one person as another, or open to all, if any rate of charges is fixed, on equal terms and on uniform charges for their use. No more than this can be justly and legally claimed by the city under its authority from the Legislature, to establish its sewer system. 6. The complainant is entitled, upon the facts stated, to the re- straining power of a Court of Equity, to remedy the wrongs of which it complains. These continuing wrongs must work irreparable injury, and, as is alleged, the city, the perpetrator of the wrongs, is insolvent. High, Inj. 1236, 1275 ; 3 Pom. Eq. Jur. 1368. There was no error in overruling the demurrer to the bill. Affirmed. PHIPPS v. LONDON AND NORTH WESTERN RY. CO. COURT OF APPEAL, 1892. [1892, 2 Q. B. 229. 1 ] THIS was an appeal against so much of an order of the Railway Commissioners as dismissed an application made by the executors and trustees of the late Mr. Pickering Phipps, an owner of iron furnaces at Duston, for an order enjoining the London and North Western Rail- way Company to desist from giving undue and unreasonable preference or advantage to the owners of iron furnaces at Butlins and Islip in re- spect of charges for the conveyance of pig iron to the South Stafford- shire markets. The 2d section of the Railway and Canal Traffic Act, 1854, enacts that no railway company " shall make or give any undue or unreason- able preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect what- soever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or un- reasonable prejudice or disadvantage in any respect whatsoever." 1 This case is abridged. ED. 554 PHIPPS V. LONDON AND NORTH WESTERN RAILWAY. The effect of the 27th and 29th sections of the Railway and Canal Traffic Act, 1888, is shortly as follows : By section 27, first, whenever it is shown that any railway company charge one trader or class of traders, or the traders in any district, lower tolls, rates, or charges, for the same or similar merchandise or services, than they charge to other traders or classes of traders, or to the traders in another district, or make any difference in treat- ment in respect of such traders, the burden of proving that such lower charge or difference in treatment does not amount to an undue prefer- ence is to lie on the railway company ; and, secondly, in deciding whether a lower charge or difference in treatment amounts to an undue preference, the court, or the commissioners, ma}', so far as they think reasonable, in addition to any other considerations affecting the case, take into consideration whether such lower charge or difference in treat- ment is necessary for securing in the. interests of the public the traffic in respect of which it is made, and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant. By section 29, any railway company may, for the purpose of fixing their rates for the carriage of merchandise on their railway, group to- gether an}' number of places in the same district situated at various distances from any point of destination or departure of merchandise, and charge a uniform rate in respect thereof, provided that the dis- tances are not unreasonable and no undue preference is created. The sidings of the D us ton furnaces were situated on the London and North Western Railway Company's line at a distance of about sixty miles from Great Bridge, one of the pig iron markets to the westward. The sidings of the Butlins and Islip furnaces were situated on the same line to the east of the Duston furnaces, and at a distance from the market as to Butlins of about seventy-one miles, and as to Islip of about eighty-two miles. Duston was dependent for its railway carriage on the London and North Western Company alone, but Butlins and Islip had both of them access not only to the London and North West- ern, but also to the Midland Railway. The branch lines on which the Butlinc and Islip sidings were situate united at a point to the westward, so that they were nearly equidistant from the western markets. The London and North Western Railway Company had, for charging pur- poses, grouped Butlins and Islip together; and although they carried the Islip pig iron eleven miles further than the Butlins, they made the same charge from both those places. The Midland Railway also charged the same rate and the same total charge per ton for the car- riage from Butlins and Islip. The London and North Western Railway Company, who carried the Butlins pig iron eleven miles further and the Islip pig iron twenty-two miles further than the Duston pig iron, charged Butlins 0.95c?. per ton per mile, and Islip 0.84. Interstate Commerce Commission, 162 U. S. 197, 235. The Circuit Court, after a consideration of the evidence, expressed its conclusion thus: " In any aspect of the case, it seems impossible to consider this complaint of the board of trade of Troy against the defendant rail- road companies, particularly the Midland and Georgia Central Rail- roads, in the matter of the charges upon property transported on their roads to or from points east or west of Troy, as specified and com- plained of, obnoxious to the fourth or any other section of the Inter- state Commerce Act. The conditions are not substantially the same, and the circumstances are dissimilar, so that the case is not within the statute. The case made here is not the case as it was made be- fore the Commission. New testimony has been taken, and the con- clusion reached is that the bill is not sustained; that it should be dismissed; and it is so ordered." 69 Fed. 227. The Circuit Court of Appeals, in affirming the decree of the Cir- cuit Court, used the following language: " Only two railroads, the Alabama Midland and the Georgia Cen- tral, reach Troy. Each of these roads has connection with other lines, parties hereto, reaching all the long-distance markets men- tioned in these proceedings. The commission finds that no depart- ure from the long and short haul rule of the fourth section of the INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 603 statute, as against Troy, as the shorter distance point, and in favor of Montgomery, as the longer distance point, appears to be charge- able to the Georgia Central. The rates in question, when separately considered, are not unreasonable or unjust. As a matter of business necessity, they are the same by each of the railroads that reach Troy. The Commission concludes that as related to the rates to Mont- gomery, Columbus, and Eufaula the rates to and from Troy unjustly discriminate against Troy, and, in the case of the Alabama Midland, violate the long and short haul rule. " The population and volume of business at Montgomery are many times larger than at Troy. There are many more railway lines running to and through Montgomery, connecting with all the distant markets. The Alabama River, open all the year, is capable, if need be, of bearing to Mobile, on the sea, the burden of all the goods of every class that pass to or from Montgomery. The compe- tition of the railway lines is not stifled, but is fully recognized, intelligently and honestly controlled and regulated, by the traffic association, in its schedule of rates. There is no suggestion in the evidence that the traffic managers who represent the carriers that are members of that association are incompetent, or under the bias of any personal preference for Montgomery or prejudice against Troy, that has led them, or is likely to lead them, to unjustly discriminate against Troy. When the rates to Montgomery were higher a few years ago than now, actual active water-line competition by the river came in, and the rates were reduced to the level of the lowest prac- tical paying water rates ; and the volume of carriage by the river is now comparatively small, but the controlling power of that water line remains in full force, and must ever remain in force as long as the river remains navigable to its present capacity. And this water line affects, to a degree less or more, all the shipments to or from Mont- gomery from or to all the long-distance markets. It would not take cotton from Montgomery to the South Atlantic ports for export, but it would take the cotton to the points of its ultimate destination, if the railroad rates to foreign marts through the Atlantic ports were not kept down to or below the level of profitable carriage by water from Montgomery through the port of Mobile. The volume of trade to be competed for, the number of carriers actually competing for it, a constantly open river present to take a large part of it whenever the railroad rates rise up to the mark of profitable water carriage, seem to us, as they did to the Circuit Court, to constitute circum- stances and conditions at Montgomery substantially dissimilar from those existing at Troy, and to relieve the carriers from the charges preferred against them by the Board of Trade. We do not discuss the third and fourth contention of the counsel for the appellant, further than to say that within the limits of the exercise of intelli- gent good faith in the conduct of their business, and subject to the two leading prohibitions that their charges shall not be unjust or 604 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. unreasonable, and that they shall not unjustly discriminate so as,to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers, as they were at the common law, free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to man- age their important interests upon the same principles which are regarded as sound, and adopted, in other trades and pursuits. The carriers are better qualified to adjust such matters than any court or board of public administration, and, within the limitations sug- gested, it is safe and wise to leave to their traffic managers the ad- justing of dissimilar circumstances and conditions to their business." 41 U. S. App. 453. The last sentence in this extract is objected to by the commission's counsel, as declaring that the determination of the extent to which discrimination is justified by circumstances and conditions should be left to the carriers. If so read, we should not be ready to adopt or approve such a position. But we understand the statement, read in the connection in which it occurs, to mean only that, when once a substantial dissimilarity of circumstances and conditions has been made to appear, the carriers are, from the nature of the question, better fitted to adjust their rates to suit such dissimilarity of circum- stances and conditions than courts or commissions; and when we consider the difficulty, the practical impossibility, of a court or a commission taking into view the various and continually changing facts that bear upon the question, and intelligently regulating rates and charges accordingly, the observation objected to is manifestly just. But it does not mean that the action of the carriers, in fixing and adjusting the rates, in such instances, is not subject to revision by the Commission and the courts, when it is charged that such action has resulted in rates unjust or unreasonable, or in unjust discrimina- tions and preferences. And such charges were made in the present case, and were considered, in the first place by the commission, and afterwards by the Circuit Court and by the Circuit Court of Appeals. The first contention we encounter upon this branch of the case is that the Circuit Court had no jurisdiction to review the judgment of the Commission upon this question of fact; that the court is only authorized to inquire whether or not the Commission has misconstrued the statute, and thereby exceeded its power; that there is no general jurisdiction to take evidence upon the merits of the original controversy; and, especially, that questions under the third section are questions of fact, and not of power, and hence unreviewable. We think this contention is sufficiently answered by simply refer- ring to those portions of the act which provide that, when the court INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 605 is invoked by the Commission to enforce its lawful orders or require- ments, the court shall proceed, as a court of equity, to hear and determine the matter, and in such manner as to do justice in the premises. In the case of Cincinnati, N. O. & Texas Pac. Railway v. Inter- state Commerce Commission, 162 U. S. 184, the findings of the commission were overruled by the Circuit Court, after additional evi- dence taken in the court, and the decision of the Circuit Court was reviewed in the light of the evidence, and reversed, by the Circuit Court of Appeals ; and this court, in reference to the argument that the commission had not given due weight to the facts that tended to show that the circumstances and conditions were so dissimilar as to justify the rates charged, held that, as the question was one of fact, peculiarly within the province of the commission, and as its con- clusions had been accepted and approved by the Circuit Court of Appeals, and as this court found nothing in the record that made it our duty to draw a different conclusion, the decree of the Circuit Court of Appeals should be affirmed. Such a holding clearly implies that there was power in the courts below to consider and apply the evidence, and in this court to review their decisions. So in the case of Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, the decision of the Circuit Court of Appeals, which affirmed the validity of the order of the commission, upon the ground that, even if ocean competition should be regarded as creating a dissimilar condition, yet that in the case under consid- eration the disparity in rates was too great to be justified by that condition, was reversed by this court, not because the Circuit Court had no jurisdiction to consider the evidence, and thereupon to affirm the validity of the order of the commission, but because that issue was not actually before the court, and that no testimony had been adduced by either party on such an issue ; and it was said that the language of the act, authorizing the court to hear and determine the matter as a case of equity, " necessarily implies that the court is not concluded by the findings or conclusions of the Commission." Accordingly our conclusion is that it was competent, in the pres- ent case, for the Circuit Court, in dealing with the issues raised by the petition of the Commission and the answers thereto, and for the Circuit Court of Appeals on the appeal, to determine the case upon a consideration of the allegations of the parties, and of the evidence adduced in their support; giving effect, however, to the findings of fact in the report of the Commission, as prima facie evidence of the matters therein stated. It has been uniformly held by the several Circuit Courts and the Circuit Courts of Appeal, in such cases, that they are not restricted to the evidence adduced before the commission, nor to a considera- tion merely of the power of the commission to make the particular order under question, but that additional evidence may be put in by 606 INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. either party, and that the duty of the court is to decide, as a court of equity, upon the entire body of evidence. Coming at last to the questions of fact in this case, we encounter a large amount of conflicting evidence. It seems undeniable, as the effect of the evidence on both sides, that an actual dissimilarity of circumstances and conditions exists between the cities concerned, both as respects the volume of their respective trade and the compe- tition, affecting rates, occasioned by rival routes by land and water. Indeed, the Commission itself recognized such a state of facts, by making an allowance in the rates prescribed for dissimilarity re- sulting from competition; and it was contended on behalf of the Commission, both in the courts below and in this court, that the competition did not justify the discriminations against Troy to the extent shown, and that the allowance made therefor by the Com- mission was a due allowance. The issue is thus restricted to the question of the preponderance of the evidence on the respective sides of the controversy. We have read the evidence disclosed by the record, and have endeavored to weigh it with the aid of able and elaborate discussions by the re- spective counsel. No useful purpose would be served by an attempt to formally state and analyze the evidence, but the result is that we are not convinced that the courts below erred in their estimate of the evidence, and that we perceive no error in the principles of law on which they pro- ceeded in the application of the evidence. The decree of the Circuit Court of Appeals is accordingly Affirmed. Mr. Justice HARLAN, dissenting. I dissent from the opinion and judgment in this case. Taken in connection with other decisions defining the powers of the Interstate Commerce Commission, the present decision, it seems to me, goes far to make that Commission a useless body, for all practical purposes, and to defeat many of the important objects designed to be accomplished by the various enact- ments of Congress relating to interstate commerce. The Commission was established to protect the public against the improper practices of transportation companies engaged in commerce among the several States. It has been left, it is true, with power to make reports and to issue protests. But it has been shorn, by judicial interpretation, of authority to do anything of an effective character. It is denied many of the powers which, in my judgment, were intended to be con- ferred upon it. Besides, the acts of Congress are now so construed as to place communities on the lines of interstate commerce at the mercy of competing railroad companies engaged in such commerce. The judgment in this case, if I do not misapprehend its scope and effect, proceeds upon the ground that railroad companies, when com- petitors for interstate business at certain points, may, in order to INTERSTATE COMMERCE COM. V. ALABAMA MID. RAILWAY. 607 secure traffic for and at those points, establish rates that will enable them to accomplish that result, although such rates may discriminate against intermediate points. Under such an interpretation of the statutes in question, they may well be regarded as recognizing the authority of competing railroad companies engaged in interstate commerce when their interests will be subserved thereby to build up favored centres of population at the expense of the business of the country at large. I cannot believe that Congress intended any such result, nor do I think that its enactments, properly interpreted, would lead to such a result. COS OCEAN STEAMSHIP CO. 0. SAVANNAH LOCOMOTIVE WORKS. OCEAN STEAMSHIP COMPANY . SAVANNAH LOCOMOTIVE WORKS. SUPREME COURT OF GEORGIA, 1909. [131 Ga. 831. J ] EVANS, P. J. The principal complaint of the complaining lumber dealer is against the system of booking cotton for a particular vessel in advance of its sailing day. It is said that this practice results in accumulating large quantities of lumber and cotton at the port of Savannah beyond the immediate carrying capacity of the steamship company's vessels, and that "booked" cotton is transported in preference to lumber tendered subsequent to the booking but prior to the arrival and receipt of the "booked" cotton; and that the steamship company refuses to accord to lumber dealers the privilege of booking their commodity. The sys- tem of "booking," as explained in the record, is the practice of the steamship company to make specific engagements with shippers of cotton for a reservation of space for cotton to be shipped on a particu- lar vessel, in advance of its sailing day. If the steamship company indifferently extended this privilege to all of its patrons and to all commodities, we do not think it would violate any duty which it owed the public. The basal principle of the requirement of the common law that a common carrier must convey the goods of all persons offer- ing to pay his hire, unless his carriage be already full, is that there should be no unjust preference given one member of the public over another. The practice of making specific engagements in advance of the shipment, if the privilege is indifferently extended to all, is but another form of acceptance of goods tendered in the order of their application. The same impartiality of service is rendered when public notice is given by the carrier that he will "book" the freight of all patrons, and reserves space for the goods engaged to be transported as if he had received the goods of the shipper in the order of their tender. But when a carrier reserves space in his carriage for a favored patron, or a favored commodity, not perishable in its nature, and re- fuses to reserve space for another patron or commodity, he fails to afford that commonness of service which the law annexes as an inci- dent to his business. The steamship company may discontinue to carry any particular commodity it desires, or it may voluntarily cease to do business as a common carrier and engage in the business of a 1 Only the concluding paragraphs of the opinion are printed. ED. OCEAN STEAMSHIP CO. V. SAVANNAH LOCOMOTIVE WORKS. 609 special carrier; but so long as it pursues the business of a common carrier, it is bound to render to the public the service which the law exacts of a common carrier. The requirement of the common law that a common carrier must receive goods offered for transportation in the order of their tender cannot, on principle, be affected either by the place where the ship- ment originates, or by the ultimate destination of the goods. There is no reason why the steamship company should prefer freight tendered in a car from one forwarding agency, and deny freight similarly ten- dered by another forwarding agency or shipper. If the steamship company desires an inland carrier to issue through bills of lading, it may do so subject to its obligations to receive and carry freight in the order of its tender. The mere fact that a particular commodity is destined to a foreign port cannot justify a carrier in giving a preference to it over the same or another commodity because the latter may be a domestic shipment. It is urged that in apportioning its space to the various commodities, according to the volume of freight at the port, no discrimination was shown by the steamship company against lum- ber shipments in favor of cotton or other articles of commerce. Some of the reasons advanced are, that the steamships are built with a view to the packet trade; that lumber is bulky, and cannot be as expedi- tiously handled as cotton; that the vessels are advertised to sail on particular days, and to require a greater percentage of lumber to be carried than was carried would not enable the vessels to observe their sailing dates; that there is a congestion of freight, and a larger per- centage of lumber than of cotton is carried; that cotton moves only within three or four months of the year, whereas lumber moves evenly throughout the year; that the price of cotton is liable to fluctuation, while that of lumber is more constant; that cotton is the great staple crop of the State of Georgia, and that a larger number of the public is served by the prompt transportation of cotton to the preference of lumber. With respect to the contention that if the steamship company accepted all the lumber which was tendered to it, its vessels could not sail at the advertised times, the evidence was in conflict. As pre- viously indicated, the steamship company is under no duty to carry all the freight of the port of Savannah; so that the main question on the facts is whether cotton possesses such inherent qualities as to per- mit a preference to be given to that commodity over all other articles which the steamship company customarily carries. We fully appre- ciate the value of the South's great staple product, and are aware that for years the slogan has been that "cotton is king." But the great value of the cotton crop and the importance of its prompt transporta- tion gives to that staple no imperial rights over the other products of 610 HOUSTON, EAST & WEST TEXAS R. R. CO. V. UNITED STATES. this State. It is not perishable in its nature, and it will not be con- tended that its fluctuation in price is so violent that a delay in trans- portation would substantially destroy its value. On the whole, after a careful consideration, we think that under the legal principles appli- cable to the facts of the case there was no abuse of discretion in the grant of an ad interim injunction. The terms of the injunction did not extend to matters outside of the pleadings, nor are they indefinite and uncertain. Judgment affirmed. All the Justices concur, except FISH, C. J., absent. HOUSTON, EAST r & WEST TEXAS RAILROAD COMPANY " v. UNITED STATES. SUPREME COURT OF THE UNITED STATES, 1914. [234 U. S. 342. 1 ] MR. JUSTICE HUGHES delivered the opinion of the court. The powers conferred by the act are not thereby limited where in- terstate commerce itself is involved. This is plainly the case when the Commission finds that unjust discrimination against interstate trade arises from the relation of intrastate to interstate rates as main- tained by a carrier subject to the act. Such a matter is one with which Congress alone is competent to deal, and, in view of the aim of the act and the comprehensive terms of the provisions against un- just discrimination, there is no ground for holding that the authority of Congress was unexercised and that the subject was thus left without governmental regulation. It is urged that the practical construction of the statute has been the Other way. But, in assailing the order, the appellants ask us to override the construction which has been given to the statute by the authority charged with its execution, and it can- not be said that the earlier action of the Commission was of such a controlling character as to preclude it from giving effect to the law. The Commission, having before it a plain case of unreasonable discrim- ination on the part of interstate carriers against interstate trade, care- fully examined the question of its authority and decided that it had the power to make this remedial order. The Commerce Court sus- tained the authority of the Commission and it is clear that we should not reverse the decree unless the law has been misapplied. This we cannot say; on the contrary, we are convinced that the authority of the Commission was adequate. 1 An extract only is printed. ED. ILLINOIS CENTRAL B. R. CO. V. HENDERSON ELEVATOR CO. 611 The further objection is made that the prohibition of section 3 is directed against unjust discrimination or undue preference only when it arises from the voluntary act of the carrier and does not relate to acts which are the result of conditions wholly beyond its control. East Tennessee &c. Ry. Co. v. Interstate Commerce Commission, 181 U. S. 1, 18. The reference is not to any inherent lack of control aris- ing out of traffic conditions, but to the requirements of the local au- thorities which are assumed to be binding upon the carriers. The contention is thus merely a repetition in another form of the argument that the Commission exceeded its power; for it would not be contended that local rules could -nullify the lawful exercise of Federal authority. In the view that the Commission was entitled to make the order, there is no longer compulsion upon the carriers by virtue of any inconsistent local requirement. We are not unmindful of the gravity of the ques- tion that is presented when State and Federal views conflict. But it was recognized at the beginning that the Nation could not prosper if interstate and foreign trade were governed by many masters, and, where the interests of the freedom of interstate commerce are in- volved, the judgment of Congress and of the agencies it lawfully establishes must control. In conclusion: Reading the order in the light of the report of the Commission, it does not appear that the Commission attempted to require the carriers to reduce their interstate rates out of Shreveport below what was found to be a reasonable charge for that service. ILLINOIS CENTRAL RAILROAD COMPANY t>. HENDERSON ELEVATOR COMPANY. SUPREME COURT OF THE UNITED STATES. 1913. [226 U. S. 441.] Memorandum opinion, by direction of the court, by Mr. Chief Justice WHITE. The Henderson Elevator Company, defendant in error, as plaintiff below brought this action to recover damages from the Railroad Com- pany, the plaintiff in error, because of a loss alleged to have been sustained by an erroneous quotation by the agent of the Railroad Com- pany of the freight rate on corn shipped in interstate commerce from the station of the Railroad Company at Henderson, Kentucky. A rate of 10 cents per hundred pounds was quoted by the agent when in fact the rate as fixed by the published tariff on file with the Interstate 612 UNITED STATES EX REL. V. UNION STOCK YARD & TRANSIT CO. Commerce Commission and effective at the time was 133/2 cents per hundred pounds. On the trial before a jury the court instructed that if the loss sustained by the plaintiff "was occasioned and brought about by defendant's failure to have posted or on file in its office in Henderson, Kentucky, its freight tariff rate in question and by reason of any erroneous quotation of defendant of its freight rate from and to the points in question, of which plaintiff complains, . . ." there should be a verdict for the plaintiff. A verdict having been rendered for the plaintiff in accordance with this instruction and the judgment entered thereon having been subsequently affirmed by the Court of Appeals of Kentucky (138 Kentucky, 220), this writ of error was sued out. It is to us clear that the action of the court below in affirming the judgment of the trial court and the reasons upon which that action was based were in conflict with the rulings of this court interpreting and applying the Act to Regulate Commerce. New York Cent. R. R. v. United States (No. 2), 212 U. S. 500, 504; Texas & Pacific R. R. Co. v. Mugg, 202 U. S. 242; Gulf Railroad Co. v. Hefley, 158 U. S. 98. That the failure to post does not prevent the case from being con- trolled by the settled rule established by the cases referred to is now beyond question. Kansas City So. Ry. Co. v. Albers Comm. Co., 223 U. S. 573, 594 (a). Reversed. UNITED STATES EX REL. v. UNION STOCK YARD & TRANSIT COMPANY. SUPREME COURT OF THE UNITED STATES, 1912. [226 U. S. 286. 1 ] MR. JUSTICE DAY delivered the opinion of the Court. By 2 of the Act to Regulate Commerce the carrier is guilty of unjust discrimination, which is prohibited and declared unlawful, if by any rebate or other device it charges one person less for any service rendered in the transportation of property than it does another for a like service. The Elkins Act makes it an offense for any person or corporation to give or receive any rebate, concession or discrimination in respect to the transportation of property in interstate commerce whereby any such property shall be transported at a rate less than that named in the published tariff or whereby any other advantage is given or discrimination is practiced. By the very terms of the con- 1 Only the conclusion of the case is printed. ED. UNITED STATES EX REL. V. UNION STOCK YARD & TRANSIT CO. 613 tract it is evident that the interest of the Stock Yard Company and also of the Junction Company is in the profit to be made in receiving and delivering, handling and caring for and transporting live stock, shipments of which, to the extent stated, are made in interstate com- merce. The contract provides that if the Pfaelzers construct a packing plant adjacent to the stock yards of the Stock Yard Company they shall receive $50,000, and it obligates them to maintain and operate the plant for a period of fifteen years and buy and use in their slaugh- tering business such live stock only as moves through such stock yards, and if not so bought to pay the regular charges thereon as if the same had moved into the stock yards and had been there pur- chased by them. In other words, this plant in effect may pay for the services of the Stock Yard Company, up to the sum of $50,000, with the bonus given to the Pfaelzers for the location of their plant in juxta- position to the stock yards. The only interest which the Stock Yard Company has in Pfselzer & Sons' interstate business is compensation for its services in handling their freight and its share of the profits realized by the Junction Company in rendering its service. Any other company with which it has made no contract would be compelled to pay the full charge for the services rendered without any rebate or concession. Another company might have a contract for a larger or smaller bonus, and thereby receive different treatment. Certainly as to the company which receives no such bonus there has been an undue advantage given to and an unlawful discrimination practiced in favor of Pfselzer & Sons. If these companies had filed their tariffs, as we now hold they should have filed them, they would have been subject to the restrictions of the Elkins Act as to departures from published rates and we must consider the case in that light and this pref- erential treatment, as we have said, would have been in violation of that act. It is the object of the Interstate Commerce Law and the Elkins Act to prevent favoritism by any means or device whatsoever and to prohibit practices which run counter to the purpose of the act to place all shippers upon equal terms. We think the Commerce Court should have enjoined the carrying out of this contract. 614 THE INTERMOUNTAIN RATE CASES. UNITED STATES . BALTIMORE & OHIO RAILROAD CO. SUPREME COURT OF THE UNITED STATES, 1913. [231 U. S. 274. 1 ] MR. JUSTICE LURTON delivered the opinion of the court. To say that the "allowance" made to Arbuckle Brothers is an al- lowance for lightering their own sugar across the river is to only half state the case. This so-called allowance is not only for such lighterage service, but is also compensation for the use of all of the terminal properties, docks, warehouses, tracks, steam lighters, car floats and every instrumentality used under the contract. It includes the serv- ices and responsibility of Arbuckle Brothers, as agents for the several lessees using the station, and their staff of employe's engaged in re- ceiving, delivering, loading and unloading freights thus received, both incoming and outgoing. As the measure of compensation is the ton- nage in and out of the station and as this compensation is paid by the several railroads maintaining the station in proportion to the tonnage which they severally handle, there is a sense in which it is in part an allowance to Arbuckle Brothers upon their own shipments. But they receive the same compensation upon the tonnage of every other shipper through that station, and it is the aggregate of the compensation which must determine the reasonableness of the allowance when we come to deal with it as an allowance to them for services or instrumentalities furnished, under section 15 of the Act to Regulate Commerce. THE INTERMOUNTAIN RATE CASES. SUPREME COURT OF THE UNITED STATES, 1914. [234 U. S. 476.] CHIEF JUSTICE WHITE delivered the opinion of the court. The main insistence is that there was no power after recognizing the existence of competition and the right to charge a lesser rate to the competitive point than to intermediate points to do more than fix a reasonable rate to the intermediate points, that is to say, that under the power transferred to it by the section as amended the Commission was limited to ascertaining the existence of competition and to author- 1 Only one point is printed. ED. * Only an extract is printed. ED. THE INTERMOUNTAIN RATE CASES. 615 izing the carrier to meet it without any authority to do more than exercise its general powers concerning the reasonableness of rates at all points. But this proposition is directly in conflict with the statute as we have construed it and with the plain purpose and intent mani- fested by its enactment. To uphold the proposition it would be necessary to say that the powers which were essential to the vivifica- tion and beneficial realization of the authority transferred had evapo- rated in the process of transfer and hence that the power perished as the result of the act by which it was conferred. As the prime object of the transfer was to vest the Commission within the scope of the discretion imposed and subject in the nature of things to the limita- tions arising from the character of the duty exacted and flowing from the other provisions of the act with authority to consider competitive conditions and their relation to persons and places, necessarily there went with the power the right to do t"hat by which alone it could be exerted, and therefore a consideration of the one and the other and the establishment of the basis by percentages was within the power granted. This book is DUE on the last date stamped below f|| 26 193L MAY M f EB 3 192 WAR 4 193b IMOV *> Q 1941 Form L-9-35m-8,'28 UNIVERSITY of CALIFORNIA AT L< >S ANGELES [JBRAKY