i i Se Gaornell Law School Library Cornell University Library KF 2093.B36 Thi 3 1924 020 040 725 t CASES ON PUBLIC SERVICE COMPANIES: PUBLIC CARRIERS, PUBLIC WORKS, AND OTHER PUBLIC UTILITIES. BY JOSEPH HENRY BEALE, Jr, PROFESSOR OF LAW IN HARVARD UNIVERSITY ; PROFESSOR OF LAW IN THE UNIVERSITY OF CHICAGO; AND BRUCE WYMAN, LECTURER ON LAW IN HARVARD UNIVERSITY. CAMBRIDGE: THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION. 1902. 400 | Copyright, 1902, By JoserH Henry Bratz, Jr. 5043 B36 C./ Aniversity Bress : JoHun WILson anD Son, Camsrines, U.S, A. PREFACE. THis collection of cases is designed to show the development of the law of public service in its most modern forms: the public carriers, the public works, and the other public utilities. The distinction between the private callings —the rule—and the public callings — the exception — is a striking feature of the law governing business relations as it is to-day. The causes of the 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 Free competition, the very basis of the modern social organization, superseded almost completely medieval restrictions, but it has just come to be recognized that the process of free competition fails in some cases to secure the public good, and it has been reluctantly admitted that some control is necessary over such lines of indus- try as are affected with a public interest. At this point the problem of public callings becomes a legal one. Principles of law well known in ancient times have been extended (with hesi- tation at first) to a rapidly increasing number of callings. No one can carefully study the authorities on this subject without feeling that we are just entering upon a great and impor- tant development of the common law. What branches of industry will eventually be of such public importance as to be included in the category of public callings, and to what extent the control of the courts will be carried in the effort to solve by law the modern 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- PREFACE, trol through the doctrines of the law of public callings. These doctrines are not yet clearly defined. General rules, to be sure, have been established, but details have not been worked out by the courts ; and upon the successful working out of these details depends to a large extent the future economic organization of the country. Only if the courts can adequately control the public service companies in all contingencies may the business of these companies be left in private hands. As a result of the present state of the law it has seemed essen- tial to bring together (as has not heretofore been done) examples of every sort of public calling. Here will be found decisions con- cerning 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 purveyors 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. The cases in this collection are so arranged as to present three principal issues: the nature, the obligations, and the rights of public calling. In the first chapter the cases bear upon the gen- eral principle (so general as to require for its understanding a detailed examination of many examples) that “when the owner 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 for the common good, as long as he maintains the use.” In the second chapter the obligations of public calling are exam- ined, and are found to be fourfold: to serve all, with adequate facilities, for a reasonable compensation, and without discrimina- tion. Without the enforcement of all these obligations the courts could not prevent public service companies from becoming instruments for the oppression of individuals and for the disrup- tion of the industrial order. In the third chapter is examined the extent of the right of a public service company to carry on its business in its own way: to make regulations. for the use of its property by the public, and to modify its undertaking by PREFACE. v contracts with individuals. Here the principal subject of inquiry is the limitation upon such general rights caused by the public obligations considered in the preceding chapter. 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. In the make-up of this collection almost all of the authorities printed in Beale’s Cases on Carriers have been included as the foundation of the present work. J. H. B., Jr. B. W. TABLE OF CONTENTS CHAPTER I. Pace NATURE OF PUBLIC CALLING .........4.4 1 CHAPTER II. OBLIGATIONS OF PUBLIC CALLING ........ .. 100 Section I. To Serve ALL . ...... . «©» « » 100 Section II. Wira Apequate Facinities . ... . . . 192 Section III. For Reasonasie COMPENSATION. . . . . . 2838 Section IV. Wiruour DiscriminaTION . . . . . - ss 8dk CHAPTER III. RIGHTS OF PUBLIC CALLING. ......... .. . 446 Section I. To Make Recunations . ...... . + 446 Section II. To Enter mnto Contracts .... . . . 493 INDEX. . 3% % « «© @ @ w % 4% & 545 TABLE OF CASES. [ONLY CASES PRINTED IN THE TEXT ARE INCLUDED. ] A. Adams Express Co., Buckland v. Adams, Grace v. ee &e. R. R, Interstate Com. Aabaraa Great Southern R. R. For, see v. Albina L &W. Co., Haugen v Allen v. Sackrider. . . . . Allnutt v. Inglis 6%: e Ames, Smythe v. Anchor Line z. Dater Anonymous . i Anonymous . Anonymous . Anonymous. . Associated Press, Inter-Ocean Co. v. Atchison, &. R. R. v. Denver, &c. RR... Atlanta Baggage & Cab Co. ’ Kates v. Ayres v. Chicago, &ec. R. R. ‘ B. Baily v. Fayette Gas-Fuel Co... Ballentine v. No. Missouri, &c. R. R. Baltimore, etc. Telegraph Co., Ches- apeake, &c. Telephone Co. v. . Baltimore R. R., Interstate Com. v. Barrett v. Market St. Ny: Barstow, Orne v. Bastard v. Bastard . . Batton v. South, &. R. R. Co. fon Bene Evergreen Sen Sty Assn. Belger v. Dinsmore Bennett v. Dutton . Benson, Memphis, &c. R. R Co. v cone Water Supply bak Mobile Blassom v. “Dodd — ‘ B.& M.R.R., Quimby ». , Boston, Laddv.. . Boston, &e. R. R, Concord, ae. RR. Uw . ee we Page 135 610 433 460 34 347 516 192 283 354 53 265 176 223 412 222 183 392 297 490 283 208 26 632 105 196 417 513 506 414 239 Bowling Green, Cleannas, &e. R.R. Cov. . 8 Brass v. Storser | Bremner v. Williams . ay Brown v. Memphis, &c. R. R.. ae Brown v. W. U. Telegraph Co. . . Brush Electric Co. v. ceneiieates Subway Co. . Brymer v. Butler Water Co. : Buckland v. Adams Pas Co. Budd, P.v. . . Burlington, &e. RR. Co. ». Chicago Lumber Co. . Bussey & Co. v. M. 'v. Transp. Co. . Butcher’s Yard Co. v. Louisville, &e. Butler Water Co., Brymer v. . C. Caldwell, Express Co.v. . . Camden. &e. R. R. Co. v. Hoosey Campbell, State v. ‘ Canada So. Ry. Co. v. International Bridge Co. S83 : ; Canton, Shingleur v. . C. vw. Delaware, &e. Canal Go... Chesapeake, &e. Telephone Co. e. Baltimore, &c. Telegraph Co. Chicago, &. R. R., Ayresu. . Chicago, &e. Ry. Co., Craker v. . Chicago, & R. R. v. Gustin . : Chicago, &. R. R. Co., Peniston v. . Chicago, &c. R. R., P. v. . : Chicago, &e. Rd..v. P.. Chicago, &e. R. R. v. Wabash, R.R Chicago, &e. R. R. v. Williams Chicago ee Co., Eee &e. R. R. Co. 3 Christie, inoateu. ex Cincinnati, &c. R. R. Co. o “Bowling Green . Cincinnati, &e. RR. v. . Interstate Com .. Sasa ee en ds &e. Page 44 8y 192 116 475 30 330 135 79 290 16 262 830 520 194 145 315 285 405 183 228 206 487 202 226 243 189 111 290 7 44 424 Cincinnati, &c. Ry. Co., State v. ene Bank v. Nantucket S. B. 0.4, : Citizens’ Telephone Co, ean Ue Clinton Electric L. H. - Co. v. Snell . tN, ye oy |S Coats, Fuller v.. . Coe v. Louisville, &c. R.R. Coleman, Jenks v.. . % & x Concord, &c. R. R. ov. Boston, &e. Bie Ry 4 uk Consolidated Subway Co, Brush Electric Co. v.. Consumers’ Gas Trust Co, ‘Wood v. Cotting v. Goddard . . st Coup v. Wabash, &c. Ry. Co... Coupland »v. Housatonic R. R. Co. Covington Yards Co. v. Keith Craker v. Chicago, &c. Ry. Co. Cumberland PeeploneG Co. 6. ee &e. R. R. F i D. Dater, Anchor Line v. Davis v. Garrett ‘ Delaware, &c. Canal Co., Cw. Delaware, &e. Canal Co., Penn. Coal Co.v. . Denver, &c. Ba R.,, Atchison, &e. R.Rvvw . Denver, &c. R. R. Co. ». “Hill | Detroit, &c. R. R., Interstate Com. v. Devin, ‘Woods v. 2 ‘ Dinsmore, Belger », Dittmar ¢. New Braunfels . Dodd, Blossom v. . . Dodge City, &. Ry. Co., ‘Little v. D. R. Martin, The .. Duane, Pearson v. Dulaney, Louisville Gas Co. v. Dutton, Bennett v. E. Eames, Mayhewv. . .. | Eastern R. R., Sears v. . Edison Illuminating Co., Gould ». v. Evergreen Cemetery Assn. v. Beecher Express Cases . ‘ ate Express Co, v. Caldwell . F. Farnsworth v. Groot... Fayette Gas-Fuel Co., Baily v. v. Fell v. Knight . . aoe. Ferguson v. Met. Gas Co. ‘ Fitchburg R. R. v. Gage é Fleming v. Montgomery Light Co. s Forsee v. Alabama Great Southern Fuller 2 v. Coats i ai sey) os fe 8 Page 400 8 48 311 451 251 100 239 516 219 405 446 265 292 » 481 180 582 388 513 114 110 3806 105 493 483 308 26 157 520 213 412 201 187 854 47 460 451 TABLE OF CASES. G. Gage, Fitchburg R. R. v Gardner v. ean Telephone Co. . Sty a Garrett, Davis v Gisbourn v. Hurst. . Gloucester Water Co. v. Gloucester. Goddard, Cotting v. . ts Goldsboro Water Co., Griffin z ve . Gold Stock & Telegraph Co., aeDs ard v. Gordon Hotels, Ltd., Lamond | v. Gordon v. Hutchinson ‘ Gould v. Edison aroavaanng’ Co. Grace v. Adams : Grand Trunk, Halex. . . . Grand Trunk’ Ry., Wilson v. . . Graves v. Lake Shore, &c. R. R. Gray, Robins & Co.v. . . ® Griffin v. Goldsboro Water Co. . Griswold v. Webb . . 4 Groot, Farnsworth v. ‘ Gt. Northern Ry., Steenerson 7 vw. Gustin, Chicago, Be. R. Rv. le Gwynn v. Citizens’ Telephone Co. . H. Hale v. Grand Trunk . Hall, Pope v.. . Harbison ». Knoxville Water Co. Hart v. Pennsylvania R.R. . Haugen v. Albina L. & W. Co. Hays v. Pa. Co. . ‘ Henry, Patev. . . Hildebrand, Ow ensboro Gas Co. v. Hill, Denver, &.R.R.Co.v.. . Hoosey, Camden, &e. R. R. Co. v. Hoover v. Pennsylvania R. R. Co. Housatonic R. R. Co., Coupland v. . Houston, &c. R. R. v. Trust Co. . Hoyt, Western Transportation Co. v. Hudson R. Telephone ae Postal Telegraph Co.v. . . Hurst, Gisbourn v. Hutchinson, Gordon v. Illinois, Munn v. . Ilwaco, &e. Co. v. Oregon, é &e. Co. Ingate v. Christie ; i Inglis, Allnutt »v. International Bridge Co., Canada So. Ry.Co. v. . Inter-Ocean Co. v. Associated Press Anterss oe Com. v. Alabama, &c. Interstate Com, vw Baltimore R. R, ; Interstate Com., Cincinnati, &c. R.Row. . Interstate Com. | v. Detroit &e. R R. Ivens, Rex v. . Page 854 202 219 2 328 316 403 52 23 3 308 510 124 128 540 296 403 171 213 833 487 48 71 275 70 815 53 433 892 424 431 21 TABLE OF CASES. Jackson v. Rogers. . . . . . Jenks v. Coleman. . . . . Jones v. Newport, &c. Co. . K. Kates v. Atlanta Baggage & Cab Co. Keith, Covington Yards 0 v. King v. Luellin ‘ Knight, Fell v. . Knoxville Water Co., ’ Harbison » v. L. Ladd v. Boston. . Lake Shore, &c. R. R. , Graves v. ‘Lamond v. Gordon Hotels, Ltd. Lawrence v. Pullman Car Co. Leviv. Lynn, &. R. RR... Little v. Dodge City, &e. Ry. Co. . Little Rock, &c. R. R. v. St. oe &. RR... Lockwood, Railroad o Dv. ‘ London, &e. Ry. Co., Phipps ». Long Is. R. R., Root v. a te Lough v. Outerbridge 2 Louisville Gas Co. v. Dulaney. Louisville, &c. R. R., Butcher’s Yard Cov. 3 Louisville, &e. BR. , Coe v. 4 Louisville, &e. Ry. Co. v. Snyder Lowry v. Tile Assn... 7 Luellin, King v. . ‘ 7 Lynn, &e. R. R., Levi v. M. Manhattan Gas Co, P.v. . . Mann Boudoir Co., Searles v. Market St. Ry., Barrett v. Matthews, Thompsonv. . . .. Mayhew v. Eames. McDuffee v. Portland, &e. R. R. McGuire, W. U. Telegraph Co. v. Memphis, &c. R. R. Co. v. Benson . Memphis, &c. R. R., Brown v. Menacho v. Ward . ‘ Messenger v. Penn. R. R. Met. Gas Co., Ferguson v Milwaukee, Milwaukee Ry. v. Milwaukee Ry. v. Milwaukee Milwaukee, &c. Ry. Co., Pierce v. Minneapolis, Wehmannv. Mobile v. Bienville Water _ Supply Co. Mobile, "Be. R. R. v. P. 7 Montgomery Light Co, Fleming v. Moulton v. St. Paul, &e. Ey i es 8 Munn ». Illinois Mutual Gas Co., Williams v. 5 M. V. Transp. Co., Bussey & Co. v. Mynard v. Syracuse, &c. R. R. Page 100 240 ry 176 256 100 201 470 N. Nantucket S. B. Co., Citizens’ Bank v. Nebraska Telephone Co., State v. Neel, W. U. Telegraph Co. v. New Braunfels, Dittmar v. Newport, &c. Co, Jones v.. . New York, &c. R. R. Co., Potts ». v No. Colorado Irrigation Co. Wheeler North Eastern Ry. Co., Pounder v. No. Missouri, &c. R. R., Ballentine v. No. Pacifie R. RB. v. Washington N. Y. Central, Ge. R. BR. Co., Pov. . N. Y. Central, "we. BR. R. Co. , Tierney Ors . . . . . . . . . . 0. Old Colony R. R. v. Tripp. . Oregon, &e. Co., Ilwaco, &c. Co. v. Orne v. Barstow ei j Outerbridge, Lough v. . . Owensboro Gas Co. v. Hildebrand . P. Pate v. Henry ....... Pearson v. Duane. . ‘ Peniston v. Chicago, &e. ‘RR. Co. . Pennington v. Phila, &c. R. R. Co. . zee Coal Co. v. Delaware, &e, Canal ‘0 : at ieee Penn, Co., Hays Vs « Ea Co., Toledo A. A. &N.M. Ry. O.U. x Pennsylvania R. R, Hart v, : Pennsylvania R. R. Co, Hoover vr. . Penn. R. R., Messenger. vw. Pennsylvania R. R, Reese v. . Penobscot L. D. Co, Eons v. P.v. Budd. 3 y v, Chicago, &e. RB. R.. , Chicago, &e. Rd. x. Pp? v. Manhattan Gas Co. P., Mobile, &. R. Rov... P.v. N. Y. Central, &. R. R. Co. : Phila., &. R. R. Co., Pennington v. Phillips v. Southern Ry. : Phipps v. London, &e. Ry. Co. Pierce v. Milwaukee, &e. Ry. Co. 5 | Pope v. Hall Portland Gas & Oil Co., Snyder ut Portland Gas Co. v. State |. Portland, &c. R. R., McDuffee v. . Postal Telegraph Co. v. Hudson R. Telephone Co. Potts v. New York, &e, R. RB. Co. Pounder v. Northeastern Ry. Co. Primrose v. W. U. Telegraph Co. Providence Telephone Co., Gardner Dee . . . @ # ® * 4 Pullman Car Co., Lawrence v. xi Page 8 142 479 888 240 284 3801 211 222 231 56 215 166 275 490 380 464 19 110 202 147 446 368 59 536 410 357 243 141 230 147 489 420 126 460 186 140 179 284 211 525 202 189 xil Q. Quimby »v. B. & M. R. R. R. R. ve Commissioners, So. Pacific Co. Haileoad v. " Leek wood ‘ Reese v. perme ena R. R. Rex v. Ivens. . 5 Robins & Co. v. Gray a Rogers, Jacksonv. . . . Root v. Long Is. R. R. Sackrider, Allenv. . é Salt River Canal Co., Slosser v. Savannah & Ogeechee Canal Co. v. Shuman. . x Searles v. Mann Boudoir Car Co. Sears v. Eastern R. R. 3 Sedalia Gas Co., Weise v. Skinner v. Upshaw < Shepard v. Gold Stock & : Telegraph Co. Shingleur ». Canton . Shuman, Savannah & Oxeechee Ca nal Co. v. 4 Silkman v. Water Commissioners Slosser v. Salt River Canal Co. Smythe v. Ames . Snell, Clinton Electric on He P. Cov. 4 Snyder, Louisville, “Be. Ry. ‘Co. v. Snyder v. Portland Gas & Oil Co. South, &c. R. R. Co., Batton v. Southern Ry., Phillips v. : So. Pacific Co. v. R. R. Commis- sioners . . a Oil Co, Transportation 1 ve St. ee &e. ‘R. Re Little Rock, ‘&e. R. RB. v. s St. Paul, &e. Ry. Moulton ». State v. Campbell State v. Cincinnati, &e. Ry. Co. State v. Nebraska ‘Telephone Co. State, Portland Gas Co. v. . State x. Steele . ‘ Steele, S.v. . Steenerson v. Gt. Northern Ry. . Storser, Brass v.. Syracuse, &e. R. R., Mynard v. Page 506 322 498 456 296 1 377 37 62 199 483 465 283 52 285 62 363 387 347 311 193 186 208 489 322 96 277 534 145 400 142 118 118 333 503 TABLE OF CASES. ds Page Taylor, Weisengerv.. - +--+ 3 134 Texas, &. Kk. R. Co., Gunberlan’ Telephone Co. v. 3 Thompson v. Matthews. - 20 Three Hundred and Bighteen and One-half Tons of Coal . 864 Tierney v. N. Y. Cennsl &e. R. R. Co. 4 215 Tile Assn. , Lowry 2 v. 93 ‘Toledo, A.A EN. M. Ry. ‘Co. v Penn. Co... 59 Transportation Co. »v. " Standard ‘Oil a Co. Tripp, Old Colony R. BR. v. ie 166 Trust Co., Houston, &c. R. R. v. 842 U. Upshaw, Skinnerv. . . . . . - 288 W. Wabash, &. R. R., Pilea &e. R. R. v. 189 Wabash, &e. Ry. Co., “Coup v. 12 Walker v. York, &e. Ry. 495 Ward, Menachov... B72 Washington, No. Pacific R. R. »v. 231 Watauga Water Co. v. Wolfe . 468 Water Commissioners, Silkman v. 863 Webb, Griswold v. . 171 Wehmann ». Minneapolis, &e. Ry. 517 Weise v. Sedalia GasCo. . . . 465 Weisenger v. Taylor . 134 Western Transportation Co. v. : Hoyt 287 W. U. Telegraph Co., Brown v. . 475 W. U. Telegraph Co. v. McGuire 463 W. U. Telegraph Co. v. Neel. . 479 W. U. Telegraph Co., Primrose v. . 525 Weymouth v. Penobscot L. D. Co. . 27 Wheeler «. No. Colorado 2 eee Co. i 301 Williams, Bremner v 192 Williams, Chicago, &. R. R. v 111 Williams v. Mutual Gas Co. 298 Wilson v. Grand ‘Trunk Ry. 128 Wolfe, Watauga Water Co.v. . . 468 Wood v. Consumers’ Gas Trust Co.. 66 Woods v. Devin soe Te Ne 1380 ¥.. York, &c. Ry., Walker v. . 495 CASES ON PUBLIC SERVICE COMPANIES. CHAPTER I. NATURE OF PUBLIC CALLING. ANONYMOUS. Common Pueas, 1441. [Y.B.19 H. VI. 49, pl. 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 negligently and carelessly gave the medicines, etc., that the horse, ete. . 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. Kine’s Bencn, 1450. [Keilway, 50, pl. 4.] Nore, 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 hiikeeper: But shall make complaint to rte ruler, by 5 Ed. IV. 2; contra, 14 Hen. VII. 22. JACKSON v. ROGERS. Kine’s Bencu, 1688. [2 Shower, 327.] Action on the case, for that whereas defendant is 2 common carrier from London to Lymmington e¢ abinde retrorsum, and setting it forth 1 2 GISBOURN v. HURST. as the custom of England, that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by Jerrrris, C. J., that the action is maintainable, as well as itis against an innkeeper for refusing a guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. Nore, That it was alleged and proved that he had convenience to carry the same; and the plaintiff had a verdict. GISBOURN v. HURST. ‘Common Bencn, 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 indifferently, as in this case, is, as to this privilege, a com- mon carrier; for the law bas given the privilege in respect of the trader, and not in réspect 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 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. GORDON v. HUTCHINSON. 3 GORDON v. HUTCHINSON. Scpreme Court oF PEnnsyvania, 1841, [1 W.¢ 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. Blanchard, 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; Bul. N. P. 7; 1 Salk. 282; 1 Wils. 281; Story on Bail. 8325; 2 Watts, 443. The opinion of the court was delivered by Gizson, 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- . Yier 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 finally resolved that any man undertaking to carry the goods of all persons indifferently, is, as to exemption from distress, a common carrier. Mr. Justice Story 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 hac vice. My conclusion - 4 4 GORDON v. HUTCHINSON. from it is different. I take ita wagoner who carries goods for hire is & 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 Ale 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) dves the same on the anthority 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 carrier, 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, 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 itis by the frequented thoroughfares of England. But the ALLEN ¥. SACKRIDER. 5 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 by their homes with loads to Pittsburg or Wheel- ing, the principal points of embarkation on the Ohio. But no one sup- posed they 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? They 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 acarrier. 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 by 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.’ ALLEN v. SACKRIDER. Court or Appears, New Yor«, 1867. [37 NV. Y. 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 v. Chapman, 2 Ga. 349; Parmalee v. Lourtz, 74 Ill. 116; Robert- son v. Kennedy, 2 Dana, 430; Hanison v. Roy, 39 Miss. 396 ; Sanners v. Stewart, 20 Oh. St. 69; Chevallier v. Straham, 2 Tex. 115. — Ep. 6 ALLEN v. SACKRIDER. 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 bay 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 by the referee do not, I think, make the defend- ants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiffs’ property falls short of proof sufficient to show them common 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, 8 Wend. 161, Chief Justice Savace said: ‘*Every person who undertakes to carry, 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 carry the goods of any one who offers: ‘+On the whole,” says INGATE V, CHRISTIE. 7 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 carry 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 nos common carriers; and the judg- ment should, therefore, be affirmed. All the judges concurring. Judgment affirmed. INGATE v. CHRISTIE. QureEn’s Bencw, 1850. [8 Car. & K. 61.] Assumpsit. The declaration stated, that the defendant agreed to carry 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 any- body who employed him, and that the defendant was a lighterman and not a wharfinger. : ALpErson, 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 Harr. 238; Muss v. Bettes, 4 Heisk. 661; Spencer v. Daggett, 2 Vt. 92. — Ep. “4 omaegt 8 CITIZENS’ BANK v. NANTUCKET STEAMBOAT CO. 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.’ CITIZENS’ BANK v. NANTUCKET STEAMBOAT CO. Cracurr Court or tHE Unirep Srares, 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 Nantucket 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 in personam, against the Steamboat Company alone; 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 by 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 controversy. In the first place, there is no manner of doubt, that steamboats, like other vessels, may be employed as comnion carriers, and when so employed their owners are liable for all losses and damages to goods and other property in- 1 Compare: Fast India Co. v. Pullen, 2 Strange, 690; Brind v. Dale, 8 C. & P. 207; Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338. — Ep. 2 This case is abridged. — Ep. CITIZENS’ BANK v. NANTUCKET STEAMBOAT CO. 9 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 liability 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 employed 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 any 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 ordinary 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 oué as common earriers of such parcels. .A fortiort, they would not be liable for the carriage of parcels of money, 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 casually 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- 10 CITIZENS’ BANK v. NANTUCKET STEAMBOAT CO. 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 justitie, but something is bestowed as a mere gra- tuity or voluntary gift, then, although the party may transport either persons or property, 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 money 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 . LEVI v. LYNN AND BOSTON RAILROAD CO. 11 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 com- pany 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 LEVI v. LYNN AND BOSTON RAILROAD CO. Supreme Court or Massacuuserts, 1865. [11 Allen, 300.2] Torr against a street railway corporation to recover the value of a box of merchandise. At the trial in the Superior Court, before Bricuam, J., the plaintiff introduced evidence tending to show that on the 8th of July, 1864, she placed upon the front platform of one of the defendants’ cars in Boston a box of merchandise, and then took her seat within the car to go to Chelsea, and paid the conductor her fare and also a certain sum as compensation for carrying the box to Chelsea. She was also allowed to introduce evidence, under objection, tending to show that two other persons had at other times paid to conductors of the defendants’ cars money for the conveyance of merchandise to Chelsea in addition to their own fare, with the knowledge of the superintendent of the railroad. The above are all the facts recited in the bill of exceptions. -Corr, J. The plaintiff resorted to the usual and proper mode of proving that the defendants had assumed the business of common carriers of merchandise upon their cars, and produced evidence that two other persons had paid money at other times to the defendants’ 1 Compare: Butler v. Basing, 2 C. & P. 613; Suarey v. George Washington, 1 Woods, 96; Dwight v. Brewster, 1 Pick. 50; Pender v. Robbins, 6 Jones L, 207. — Ep. 2 This case is abridged. — Ep. ; ¢ 12 COUP v. WABASH, ST. LOUIS AND PACIFIC RAILWAY CO. conductors for the transportation of merchandise, with a knowledge of the superintendent of the road. For anything that appears to the contrary in the exceptions, it may have been proved that these two other persons had so employed the defendants in repeated instances. The evidence was entirely proper to go to the jury, and, in the absence of anything to control or contradict it, would be sufficient to warrant them in finding that the defendants had assumed to be and were com- mon carriers, when the plaintiff’s box was delivered to them for trans- portation. The jury were in effect instructed that, if they found that the de- fendants were common carriers, and that the plaintiff’s box was de- livered to them for transportation, and the price of transportation paid by her, they would be responsible for the delivery of the box at its place of destination. And these instructions were sufficiently correct and accurate. If the defendants were proved to be common carriers the law sup- plies the proof of the contract, so far as regards the extent and degree of liability, and, the bailor having proved delivery to a carrier and loss, the burden is on the carrier to discharge himself from liability, within the exceptions which the law creates. No question seems to have been raised or instructions required in regard to the limit of the defendants’ liability in this case, if regarded as common carriers. Clark v. Barn- well, 12 How. 272; Alden v. Pearson, 3 Gray, 342. The question whether the plaintiff was herself negligent, in placing her property on the front platform of the car, and the point that she did not in fact part with the custody of the box, and so cannot charge the defendants with her loss, are not open to the defendants upon these exceptions, for it does not appear that any such question was raised or point made at the trial. Brigham v. Wentworth, 11 Cush. 123; Reed v. Call, 5 Cush. 14; Moore v. Fitchburg Railroad, 4 Gray, 465. Exceptions overruled. COUP v. WABASH, ST. LOUIS AND PACIFIC RAILWAY CO. Supreme Court or Micuiean, 1885. [56 Mich. 111.2] CampBELL, J. Plaintiff, who is a circus proprietor, sued defendant as a carrier for injuries to cars and equipments, and to persons and animals caused by a collision of two trains made up of his circus cars, while in transit through Illinois. The court below held defendant to 1 Compare: Knox v. Russ, 14 Ala. 249; Adams Express Co. v. Cressap, 6 Bush, 572; Clark v. Rochester, &c. R. R., 14 N. ¥. 570; Spears v. Lake Shore & M. S. R. R., 67 Barb. 513; Kemp v. Coughton, 11 Johns. 107.— Ep. 2 Opinion only is printed. — Ep. COUP v. WABASH, ST. LOUIS AND PACIFIC RAILWAY CO. 13 the common-law liability of a common carrier and held there was no avoiding liability by reason of a special contract under which the trans- portation was directed. The principal questions raised on the trial arose out of discussions concerning the nature of defendant’s employ- ment, and questions of damage. Some other points also appeared. In the view which we take of the case the former become more important, and will be first considered. Plaintiff had a large circus property, including horses, wild animals, and various paraphernalia, with tents and appliances for exhibition. He owned special cars fitted up for the carriage of performers and property, in which the whole concern was moved from place to place for exhibition. The defendant company has an organized connection, under the same name, with railways running between Detroit and St. Louis, through Indiana and Illinois. On the 25th of July, 1882, a written contract was made at St. Louis by defendant’s proper agent with plaintiff to the following effect. Defendant was to furnish men and motive power to transport the circus by train of one or more divisions, consisting of twelve flat, six stock, one elephant, one baggage, and three passenger coaches, being in all twenty-three cars from Cairo to Detroit with priv- ilege of stopping for exhibition at three places- named, fixing the time of starting from each place of exhibition, leaving Cairo August 19, Delphi August 21, Columbia City August 22, exhibiting at Detroit August 23, and then to be turned over to the Great Western Transfer Line boats. Plaintiff was to furnish his own cars, and two from an- other company at Cairo, in good condition and running order. It was agreed that ‘‘ for the use of the said machinery, motive power and men and the privileges above enumerated, plaintiff should pay $400 for the run to Delphi, $175 to Columbia City, and $225 to Detroit, each sum to be paid before leaving each point of departure.” It was further expressly stipulated that the agreement was not made with defendant as.a carrier, but merely ‘as a hirer of said machinery, motive power, and right of way and the men to move and work the same ; the same to be operated under the management, direction, orders, and control of said party of the second part [plaintiff] or his agent, as in his possession, and by means of said employes as his agents, but to run according to the rules, regulations, and time-tables of the said party of the first part.” The contract further provides that defendant should not be responsi- ble for damage by want of care in the running of the cars or otherwise, and for stipulated damages in case of any liability. It also provided for transporting free on its passenger trains two advertising cars and advertising material. The plaintiff’s cars were made up in two trains at Cairo, and divided to suit instructions. The testimony tended to prove that two cars were added to the forward train by order of plaintiff's agent, but in the view we take the question who did it is not important. The forward train 14 COUP v. WABASH, ST. LOUIS AND PACIFIC RAILWAY CO. was for some cause on which there was room for argument bronght to a standstill, and run into by the other train, and considerable damage done by the collision. Defendants insisted that plaintiff made out no case for recovery. and that the contract exempted them. Plaintiff claimed, and the court be- low held the exemption incompetent. Unless this undertaking was one entered into by the defendant as a common carrier, there is very little room for controversy. The price was shown to be only ten per cent of the rates charged for carriage, and the whole arrangement was peculiar. If it was not a contract of common carriage, we need not consider how far in that character con- tracts of exemption from liability may extend. In our view it was in no sense a common carrier’s contract, if it involved any principle of the law of carriers at all. The business of common carriage, while it prevents any right to re- fuse the carriage of property such as is generally carried, implies, especially on railroads, that the business will be done on trains made up by the carrier and running on their own time. It is never the duty of a carrier, as such, to make up special trains on demand, or to drive such trains made up entirely by other persons or by their cars. It is not important now to consider how far, except as to owners of goods in the cars forwarded, the reception of cars loaded or unloaded, in- volves the responsibility of carriers as to the owners of the cars as such. The duty to receive cars of other persons, when existing, is usually fixed by the railroad laws, and not by the common law. But it is not incumbent on companies in their duty as common carriers to move such cars except in their own routine. They are not obliged to accept and run them at all times and seasons, and not in the ordinary course of business. The contract before us involves very few things ordinarily undertaken by carriers. The trains were to be made up entirely of cars which be- longed to plaintiff and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which under any cir- cumstances may involve special risks. They contained an elephant, which might very easily involve difficulty, especially in case of acci- dent. They contained wild animals which defendant’s men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage. The trains were not to be run at the option of the defendant, but had short routes and special stoppages, and were to be run on some part of the road chiefly during the night. They were to wait over for exhibi- tions, and the times were fixed with reference to these exhibitions and not to suit the defendant's convenience. There was also a divided authority, so that while defendant’s men were to attend to the moving COUP v. WABASH, ST. LOUIS AND PACIFIC RAILWAY CO. 15 of the trains, they had nothing to do with loading and unloading cars, and had no right of access or regulation in the cars themselves. It cannot be claimed on any legal principle that plaintiff could, as a matter of right, call upon defendant to move his trains under such cir- cumstances and on such conditions, and if he could not, then he could only do so on such terms as defendant saw fit to accept. It was per- fectly legal and proper, for the greatly reduced price, and with the risks and trouble arising out of moving peculiar cars and peculiar contents on special excursions and stoppages to stipulate for exemption from responsibility for consequences which might follow from carelessness of their servants while in this special employment. How far in the ab- sence of contract they would be liable in such a mixed employment where plaintiff's men as well as their own had duties to perform con- nected with the movement and arrangement of the business we need not consider. It is a misnomer to speak of such an arrangement as an agreement for carriage at all. It is substantially similar to the business of towing vessels, which has never been treated as carriage. It is, although ona larger scale, analogous to the business of furnishing horses and drivers to private carriages. Whatever may be the liability to third persons who are injured by carriages or trains, the carriage owner cannot hold the persons he employs to draw his vehicles as carriers. We had be- fore us a case somewhat resembling this in more or less of its features in Mann v. White River Log & Booming Co., 46 Mich. 38, where it was sought to make a carrier’s liability attach to log-driving, which we held was not permissible. All of these special undertakings have pecu- liar features of their own, but they cannot be brought within the range of common carriage. It is therefore needless to discuss the other questions in the case, which involve several rulings open to criticism. We think the defend- ant was not liable in the action, and it should have been taken from the jury and a verdict ordered of no cause of action. The judgment must be reversed and a new trial granted. The other justices concurred.’ 1 Compare: R. R. v. Glidewell, 39 Ark. 487. — Ep. 16 BUSSEY ¥. MISSISSIPPI VALLEY TRANSPORTATION CO. BUSSEY & CO. v. MISSISSIPPI VALLEY TRANSPORTATION CO. Supreme Court or Loursiana, 1872. [24 La, Ann. 165.] Appeat from the Fourth District Court, parish of Orleans. Tararp, J. Howse, 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 which they contended they 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 @ gua 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 BUSSEY wv. MISSISSIPPI VALLEY TRANSPORTATION CO. 17 in Louisiana; and the reasoning by which Judge Matthews supported this conclusion in the leading case of Smith v. Pierce, 1 La. 354, is worthy 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. ‘Heinmingway, 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 Coms. 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, 8 Hill, 9; the Court of Appeals of the same State in Well v. Steam Nav. Co., 2 Coms. 207; the Supreme Court of Pennsylvania in Leonard v. Hendrickson, 18 State, 40, and Brown v. Clegg, 63 State, 51; and the Supreme Court of Maryland in . Penn. Co. v. Sandridge, 8 Gill & J. 248, decided that tugboats in these 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 may 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 may remain in possession and control of the property thus transported to the exclusion of the bailee; or the towing may be casual merely, and not as a regular business between fixed termini. Such were the facts in some form as stated or assumed in Caton v. Rumney, 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 Coms., 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 2 18 BUSSEY v. MISSISSIPPI VALLEY TRANSPORTATION CO. 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, and 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 Conley, Turner, Burdeau, and Sylvester, 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 hy 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 Compare: The Neaffie,1 Abb. C.C. 465; White v. Winnisimmet Co., 7 Cush. 155; White v. Mary Ann, 6 Cal. 462. — Ep. PATE v, HENRY. 19 PATE v. HENRY. Supremr Court or Anasama, 1833. [5 Stew. & P. 101.] In this case, an action was commenced by Pate before a justice of the peace of Bibb County, to recover of Henry the sum of ten dollars penalty, for neglect of duty as a ferry owner. In this trial the justice rendered judgment in favor of the defendant, from which the plaintiff appealed to the County Court. In that court the proof was, that the plaintiff applied at the ferry to be put across the stream, after night, at about six o’clock; but the defendant had no ferryman to perform this duty, and that the plaintiff was not ferricd over until the next morning. Upon this state of facts the judge below determined that, by law, the owner of a ferry was not bound to put any person across the river between dark and daylight. Taytor, J. The Inferior Court, as it appears by the bill of excep- tions, decided that the owner of a public ferry was not bound to put any person across the stream after night. This cannot be the intention of the statute regulating this subject. The phraseology of the act will not bear this construction, and it would be highly inexpedient that such should be the law. It would be useless to enter into a long dis- cussion to show the inconveniences which would be attendant upon giving this latitude to ferry owners ; if is enough to say the statute does not give it. The counsel for the defendant dwells much ujfon the great hardship of requiring persons in this situation to expose themselves to the dan- gers attendant upon the transportation of persons, etc., during exces- sive darkness, the prevalence of high winds, or in the dead hour of the night. To require this would be hard. But it certainly would be equally so to permit a ferryman to stop a person travelling upon urgent business just at nightfall, when there might be a moon shining render- ing it almost as light as it would be of a cloudy day, merely because he chose to do so. There is no danger, however, to be apprehended by the ferryman. If the wind was high, or the night dark, when the application was made to him, so as to expose him to danger in an attempt to cross, he might show this to justify his refusal: and even were it late at night, after the usual bedtime, it might, under some circumstances, as where the ferry was some distance from his dwelling, and probably in many other cases, be a sufficient excuse. The opinion of the Inferior Court was certainly wrong. But it is contended the suit should have been upon the bond. The statute expressly imposes the penalty of ten dollars upon any ferryman for “ failing to do his duty,” to be recovered by any person detained thereby, before a justice of the peace. 20 THOMPSON Vv. MATTHEWS. It is insisted, however, that it is not shown by the proceedings be- low that the defendant’s was a public ferry. The indorsement on the warrant states that the suit isi brought to Beno ver ten dollars forfeited by the defendant as a keeper of a public ferry.” The whole of the proceedings below, show that it was con- sidered as a public ferry. The judgment must be reversed; but as the defendant may be able to show some good reason for his conduct, the cause will be remanded, if his counsel wishes it; otherwise judgment will be rendered here for the ten dollars, forfeited under the statute. THOMPSON v. MATTHEWS. " Vice-CHANCELLOR’S Court, New York, 1884. , [2 Edw. Ch. 212.] Tue defendants, Charles S. Matthews, Charles Woods, and James Hall, were ordered to show cause on this day why an injunction should not issue, restraining them “ from transporting or causing to be trans- ported across the bridge from Harlem across the Harlem river any marble or stone in quantities exceeding at one time or in any one load the weight of two tons, until the further order of the court.” The bill in the cause was filed by Samuel M. Thompson, Samuel Flewelling, William F. Coles, and Isaac U. Coles, for and in behalf of themselves and the other owners and proprietors of the bridge. Tue Vice-Coancettor. The motion for an injunction cannot be granted. The road across the bridge is undoubtedly a highway, though all persons and carriages passing must pay a toll: but, still, itis a public highway. The affidavits in opposition take very much from the force of the allegations in the bill. But this is a case in which the par- ties have legal rights. The bridge is a public one. If persons take improper loads and the bridge has been properly constructed, then the owners of it have a remedy by a special action on the case or in tres- pass for damage done; while, on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the owners must respond in damages. The law affords a recip- rocal remedy in all such cases; and I shall leave the parties to their legal right. It is true, this court has jurisdiction to prevent irreparable injury ; but the injury is not irreparable, where damages, as here, can be ascer- tained without difficulty, and compensation made in money. AndI would observe, with respect to the tolls, that no equity arises from the circumstance of the complainants not being enabled to charge more than nine cents for a heavy load. This is a matter for the legislature ; REX v, IVENS. 21 and the complainants will have an opportunity of applying for an amen- datory act, raising their tolls, before the contract, which the defendants have entered into and which requires this large quantity of marble to be transported, shall have been completed. Motion denied. REX v. IVENS. Monmouth Assizes, 1835. [7 C. & P. 213] Inpicrment against the defendant, as an innkeeper, for not receiving Mr. Samuel Probyn Williams as a guest at his inn, and also for refus- ing to take his horse. The first count of the indictment averred that the prosecutor had offered to pay a reasonable sum for his lodgings; and the first and second counts both stated that there was room in the inn. The third count omitted these allegations, and also omitted all mention of the horse. The fourth count was similar to the third, but in a more general form. Plea— Not guilty. Corertwex, J. (in summing up). The facts in this case do not ap- pear to be much in dispute; and though I do not recollect to have ever heard of such an indictment having been tried before, the law applicable to this case is this: — that an indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house; and either the price of the guest’s entertainment being tendered to him, or such circumstance occurring as will dispense with that tender. This law is founded in good sense. The innkeeper is not to select bis guests. He has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting him- self in a proper manner has a right to be received ; and for this pur- pose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travellers,-and supplying them with what they want. It is said in the present case, that Mr. Williams, the prosecutor, conducted himself improperly, and therefore ought not to have been admitted into the house of the defendant. Ifa person came to an inn drunk, or behaved in an indecent or improper manner, I am of opinion that the innkeeper is not bound to receive him. You will consider whether Mr. Williams did so behave here. It is next said that he came to the inn at a late hour of the night, when probably the family were gone to bed. Have we not all knocked at inn doors at late hours of the night, and after the family have retired to rest, not for the purpose of annoyance, but to get the people up? In this case it further appears, that the wife of defendant has a conversation with the prosecutor, in which she insists on knowing his name and abode. I think that an innkeeper has no right to insist on knowing those par- ticulars; and certainly you and I would think an innkeeper very im- 22 REX v. IVENS. pertinent, who asked either the one or the other of any of us. However, the prosecutor gives his name and residence; and supposing that he did add the words ‘‘and be damned to you,” is that a sufficient reason for keeping a man out of an inn who has travelled till mid- night? I think that the prosecutor was not guilty of such miscon- duct as would entitle the defendant to shut him out of his house. It has been strongly objected against the prosecutor by Mr. Godson, that he had been travelling on a Sunday. To make that argument of any avail, it must be contended that travelling on a Sunday is illegal. It is not so, although it is what ought to be avoided whenever it can be. Indeed there is one thing which shows that travelling on a Sunday is not illegal, which is, that in many places you pay additional toll at the turnpikes if you pass through them on a Sunday, by which the legisla- ture plainly contemplates travelling on a Sunday as a thing not illegal. I do not encourage travelling on Sundays, but still it is not illegal. With respect to the non-tender of money by the prosecutor, it is now a custom so universal with innkeepers to trust that a person will pay before he leaves an inn, that it cannot be necessary for a guest to ten- der money before he goes into an inn; indeed, in the present case, no objection was made that Mr. Williams did not make a tender; and they did not even insinuate that they had any suspicion that he could not pay for whatever entertainment might be furnished to him. I think, therefore, that that cannot be set up asa defence. It however remains for me next to consider the case with respect to the hour of the night at which Mr. Williams applied for admission; and the opinion which I have formed is, that the lateness of the hour is no excuse to the de- fendant for refusing to receive the prosecutor into his inn. Why are inns established? For the reception of travellers, who are often very far distant from their own homes. Now, at what time is it most essen- tial that travellers should not be denied admission into the inns? I should say when they are benighted, and when, from any casualty, or from the badness of the roads, they arrive at an inn ata very late hour. Indeed, in former times, when the roads were much worse, and were much infested with robbers, a late hour of the night was the time, of all others, at which the traveller most required to be received into aninn. I think, therefore, that if the traveller conducts himself prop- erly, the innkeeper is bound to admit him, at whatever hour of the night he may arrive. The only other question in this case is, whether the defendant’s inn was full. There is no distinct evidence on the part of the prosecution that it was not. But I think the conduct of the parties shows that the inn was not full; because, if it had been, there could have been no use in the landlady asking the prosecutor his name, and saying, that if he would tell it, she would ring for one of the servants. Verdict — Guilty. Park, J., sentenced the defendant to pay a fine of 20s.2 1 Compare: Hawthorne v. Hammond, 1 C. & K. 404; Queen v. Rymer, 2 Q. B. D. 136 ; Kisten v. Hildebrand, 9 B. Mon. 72; Atwater v. Sawyer, 76 Me. 539. —Ep. LAMOND v. THE GORDON HOTELS. 23 LAMOND v. THE GORDON HOTELS, LIMITED. Court oF APPEAL, 1897. [1897.1 Q. B. 541.2] Lorp Esuer, M.R. The plaintiff went to a hotel in Brighton, and went there with the intention of staying at the hotel. She was taken in and given rooms, and she stayed there for a period of ten months. It was then intimated to her that the direction wished her to leave, but this she refused to do. Then notice was given to her requiring her to leave, and as she still refused, advantage was taken of her being out of the hotel, and her things were brought down and put outside, and on her return she was refused admittance. The foundation of her action is that she was not allowed to stay on at the hotel. It was tried before the county court judge of Brighton without a jury, and he has arrived at certain conclusions of fact. He has found that the plaintiff was taken into the hotel as a traveller ac- cording to the custom of England, and to find that he must have also found that the hotel carried on business according to the custom, so that the proprietors were bound to take in every one that came and asked for lodgings, if there was room for them. He finds that she stayed so long at the hotel that at last notice was given to her to leave ; and his findings are equivalent to saying that, when notice was given, she was no longer a traveller, nor entitled to be treated as such under the custom. If this is a question of fact it is not subject to appeal. The learned judge must have found that the proprietors of the hotel held it out to the public as an inn that would take in any traveller who came, provided there was room to do so. I think it is a question of fact what was the intention of those who carried on the business of the hotel, and the county court judge bas stated what that intention was. Such a finding in this case does not affect the position of other hotels, and I think it is open to argument that the large London hotels do not hold themselves out as receiving customers according to the custom of England — at any rate, such a matter would be a question of fact. Then comes the question whether the plaintiff went to the hotel in the capacity of a traveller. That is also a question of fact which the county court judge has determined. The plaintiff has brought this action relying on the custom of Eng- land, and not on the point raised now for the first time of a contract outside the custom. The question is whether it is the law that if a per- son goes to an inn in the character of a traveller that person retains the same character for any time however long. If so, the law would be contrary to the truth; and I will never submit, unless compelled by an Act of Parliament, to say that a thing shall be deemed to be that 1 Opinions only are printed. — Ep. 24 LAMOND ¥. THE GORDON HOTELS. which it is not. Therefore, the question whether a person has ceased to be a traveller seems to me again to be a question of fact, and mere length of residence is not decisive of the matter, because there may be circumstances which show that the length of the stay does not prevent the guest being a traveller, as, for instance, where it arises from illness ; but it is wrong to say that length of time is not one of the circum- stances to be taken into account in determining whether the guest has retained his character of traveller. In my opinion there was in this case evidence of facts which justified the county court judge in saying that the plaintiff had ceased to be a traveller. If this is a question of fact, there is no appeal from the decision of the judge; but even if there were an appeal, I agree with the conclusion to which he came, that the evidence showed that the plaintiff was no longer a traveller. Her case, therefore, was not within the custom, and the relations be- tween her and the innkeepers were not under the custom. It is put as an objection thatif the relation between them is changed the rights of the innkeeper against the plaintiff had ceased. I do not say whether this is so, but the argument is not sufficient to prevent the conclusion at which I have arrived, that the relation may be altered from the original one of traveller and innkeeper. Then we were asked to imply a contract or agreement by both par- ties, by which the innkeeper contracted to lodge the plaintiff so long as she wished to stay, upon the same terms as those upon which she was taken in, so that she was under no obligation to stay an hour longer than she chose, but he was bound to keep her so long as she liked to remain. To my mind such a contract cannot have been the intention of the parties when the relationship commenced. I think, therefore, there is no ground for disturbing the decision in this case, and the appeal must be dismissed. Lores, L. J. The law of England imposed exceptional liabilities on an innkeeper and gave him exceptional rights. But these exceptional liabilities and rights applied only as between the innkeeper and those persons who came to the inn in the character of travellers. This is shown clearly by the old form of writ against an innkeeper for refusing to supply food’ and lodging, and from the old form of declaration, which will be found in Bullen and Leake’s Precedents of Pleading. The question before us is, in what character was the plaintiff living at the inn when she received notice to quit it? Was she there as a travel- ler, or had she ceased to be a traveller and remained in some other capacity? I cannot help thinking that this is a question of fact on which the finding of the judge was conclusive; but I do not desire to rest my judgment on that ground, which may be regarded rather as technical. In my opinion there is no such rule as is suggested, that a person who comes to an inn as a traveller and remains there must re- main as a traveller. In my opinion the learned judge was right when he found that the plaintiff when she was required to leave had ceased to be a traveller, and that, therefore, the innkeeper was fully justified, LAMOND v. THE GORDON HOTELS. 25 after giving reasonable notice, in acting as he did. His judgment and that of the Divisional Court supporting it should be affirmed. Cutty, L.J. The plaintiff’s claim is founded on the liability im- posed by the general custom of England on the keeper of a common inn. There is no question of contract raised between the parties. The county court judge found, cither as a question of fact or a mixed ques- tion of law and fact, that the defendants’ hotel was an inn, and from that finding there is no appeal. Starting from that point, he con- sidered whether the plaintiff, after being in the hotel for a period of ten months and considering all the circumstances of the case, still retained the character of a traveller which he attributed to her when she first went to the inn; and he decided, and this also may be a ques- tion of mixed fact and law, that she did not retain it. If this is a question of fact there is nothing more to be said on the appeal. The plaintiff’s counsel, however, tried to treat it as a question of law; and turn his proposition about as you will, it still comes to this, that if a person once enters an inn as a traveller he can remain there in that character as long as he pleases. With reference to this proposition, though there are many authorities on the question of the common-law liability of an innkeeper, no suggestion to this effect can be found, and in my opinion it is not the law. It may be a difficult question to de- termine in any case when the character of traveller ceases and that of lodger or boarder begins; but in this present case J think the judge was entitled on the evidence to come to the conclusion at which he arrived, that the plaintiff had ceased to be a traveller. The custom of England does not extend to persons who are in an inn as lodgers or boarders, and the length of time that a guest has stayed is a material ingredient in determining such a question as was before the judge. If the character of traveller is continuous, it would follow that the plaintiff would have a right to reside at the hotel all her lite, provided she con- formed to the regulations and paid her bills, but that she could leave at any moment, while the landlord would be bound to provide lodging without any power to give notice to her to leave. This is a startling proposition, and, as it is moreover unsupported by authority, I cannot assent to it. Itis hardly necessary to say anything about the sug- gested implied contract. The action was not founded on it, and the proposition itself will not bear examination. For these reasons I con- cur in the judgments already delivered. Appeal dismissed) 1 Compare: Moore v. Beech Co., 87 Cal. 483; Davis v. Gay, 141 Mass. 531 ; Horner v. Harvey, 3 N. M. 197; Howth v. Franklin, 20 Tex. 798; Clary v. Willey, 49 Vt. 55. — Ep. 26 EVERGREEN CEMETERY ASSOCIATION v. BEECHER. EVERGREEN CEMETERY ASSOCIATION v. BEECHER. Supreme Court or Connecticut, 1885. [53 Conn. 551.1] Parpes, 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, aad 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, wita- 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 bencfit 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 many 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. —Ep. WEYMOUTH v. PENOBSCOT LOG DRIVING CO. 27 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. ‘here 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 or Marys, 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 plaintiff's 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. Danrorta, 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,— Ep. 2 This case is abridged. — Ep. 28 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 takén 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, they, 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 may 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 timber 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 WEYMOUTH ¥. PENOBSCOT LOG DRIVING CO. 29 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 may 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 toa 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 recovery 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 simply be in the condition of many other judgment creditors before him who have paid largely 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 by the company, it became a vested and also an exclusive right. It is therefore taken not only 30 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 1s 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 overruled.* BRUSH ELECTRIC ILLUMINATING CO. v. CONSOLIDATED TELEGRAPH AND ELECTRICAL SUBWAY CO. Supreme Court, New Yorks, 1891. [15 MW. Y. S&. 81] Action by the Brush Electric Illuminating Company against the Consolidated Telegraph and Electrical Subway Company. Plaintiff moves for an injunction. Incrauam, J. The judgment demanded by plaintiff in this action is that the defendant, its officers, agents, and servants, and all others having notice, be perpetually 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 clsewhere, and that this court determine and adjudge what would be a just and reasonable rental for the use of the ducts and subways 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.— Ep. BRUSH ELECTRIC, ETC. CO. ¥. CONSOLIDATED, ETC. SUBWAY CO. 31 contract of April, 1887, was, in terms, 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) may 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 any 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, 32 BRUSH ELECTRIC, 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 any 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 any 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, ete. 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. ¥%. CONSOLIDATED, ETC. SUBWAY CO. 33 subways, 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 any 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 contrary, 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 subways 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 subways 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 wher 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 enjoys. 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 poiats 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. 34 HAUGEN v. ALBINA LIGHT AND WATER CO. HAUGEN v. ALBINA LIGHT AND WATER CO. Supreme Court or Orecon, 1891. [21 Ore. 411.1] Tus is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook Street, and allowing him to connect a service-pipe therewith, &c. ‘The facts alleged in substance are these: That the defendant is a corporation, the business of which, among other things, is to furnish the city of Albina, and the inhabitants thereof, with water ; that it is operating under a franchise granted to said company by the council of the city of Albina, by virtue of an ordinance, as follows: ‘An ordi- nance granting the right of way through the streets for laying pipes for the purpose of conveying water through the city. The city of Albina does ordain as follows: Section 1. That the Albina Water Company, its successors and assigns, be and are hereby granted the right and privilege of laying pipes through the streets of the city of Albina, for the purpose of conducting water through the city. Section 2. That the ditches for laying pipes shall be sunk two feet, and the pipes for conducting the water shall be under the surface or level of the estab- lished grade eighteen to twenty inches on all improved streets, and no pipe shall be laid so as to interfere with the construction of sewers ; pro- vided, that nothing in this ordinance shall be construed so as to grant any exclusive right or privilege of conducting water into the city; pro- vided further, that said water company shall in no case charge more than one dollar per month for the first faucet and fifty cents for each additional faucet in the same building, for family use or at a private dwelling house,” &c. That the purpose and object of granting to said company the right to lay water-mains in the streets of said city, was that the citizens of said city might be furnished with a supply of pure and wholesome water; that by virtue of the authority conferred by said ordinance, the defendant laid down a four-inch water-main in and through Tillamook Street in the then city of Albina, from the east line of the original townsite of the city of Albina, to the west line of Twenty-fourth Street in Irvington, and connected the said main with the main on Margaretta Avenue in said city, and for nearly a year past has been pumping water and conducting it through said main on Tilla- mook Street to supply the citizens of Irvington residing east of Four- teenth Street; that the defendant utterly refuses to allow persons residing on Tillamook Street between the east line of the original town- site of Albina and Fourteenth Street in Irvington, to tap said main, and refuses to supply them with water therefrom; that the plaintiff resided on Tillamook Street between the points above named, and is the owner 1 This case is abridged. — Ep. HAUGEN v. ALBINA LIGHT AND WATER CO. 35 of lot 2, block 126, of Irvington; that said lot abuts on said Tillamook Streét, and the plaintiff is constructing a dwelling thereon, and is desir- ous of securing a supply of water from the water-mains of said strect, that being the only source of water supply for said premises; that the plaintiff has repeatedly requested the defendant to supply him with water from said main, but has always been refused; that on the eleventh day of July the plaintiff tendered said defendant two dollars and fifty cents, the regular fee charged by the defendant for tapping a water-main with a service pipe, and demanded from the defendant to be connected with said water-main in Tillamook Street, and to be sup- plied therefrom with water, and that said defendant refused to accept said tender, and refused to connect the plaintiff’s premises with said main, and refused to supply him with water therefrom; that said re- fusal is wilful, and is done for the avowed purpose of debarring the residents on said Tillamook Street, between the original townsite of Albina and Fourteenth Street, and particularly the plaintiff, from the use of water from said main; that the plaintiff is without any legal remedy in the premises except the writ of mandamus, etc. Lorp, J. From this statement of the case, as presented by the pleadings, the court below held that when the defendant entered upon, and laid down its water-mains in the street, in pursuance of the privi- lege granted by the ordinance, it became bound to supply every abutter upon the street with water. The contention for the defendant is, that the ordinance does not im- pose the duty upon it to furnish water, but only if it shall furnish water, that the charge therefor shall not exceed a certain sum therein speci- fied ; that the grant is to lay pipes through the streets, for the purpose of conducting water through the city in the mode prescribed, and so as not to interfere with the construction of sewers, but that it contains no provision requiring it to supply the city or its inhabitants with water, hence the ordinance imposes no duty upon the company to furnish water to any one. ‘ In whatever form the argument is presented, it rests essentially upon this contention. While admitting that it is a corporation organized to supply the city and its inhabitants with water, and that the city by its ordinance granted it the right to lay water-mains through its streets for the purpose of carrying into effect the objects of its incorporation, it insists that the ordinance is the measure of the rights conferred and the obligation imposed, which, by its terms, only grants “ the right and privilege of laying pipes through the streets of the city of Albina for the purpose of conducting water through the city,” under the condi- tions imposed, without “a word in the language of the grant from which it could be inferred that the company is placed under any obliga- tion whatever to supply any inhabitant of the city with water.” .. . It must then be conceded that the defendant is engaged in a business of a public and not of a private nature, like that of ordinary corpora- tions engaged in the manufacture of articles for sale, and that the right 36 HAUGEN v. ALBINA LIGHT AND WATER CO. to dig up the streets, and place therein pipes or mains for the purpose of conducting water for the supply of the city and its inhabitants, ac- cording to the express purpose of its incorporation, and the business in which it is engaged, is a franchise, the exercise of which could only be granted by the State, or the municipality acting under legislative au- thority. In such case, how can the defendant, upon the tender of the proper compensation, refuse to supply water without distinction to one and all whose property abuts upon the street in which its pipes are laid? The defendant company was organized to supply water to the city and its inhabitants, and the franchise granted by the city authori- ties was the means necessary to enable it to effect that purpose. With- out the franchise, the object for which the company was incorporated would fail and come to naught. It could not carry on the business of supplying the city and its inhabitants with water without authority from the city to dig its streets and lay pipes therein for conducting or dis- tributing water for public and private use. It was not organized to lay pipes, but to supply water, and the grant was to enable it to do so and thereby effect the public purpose contemplated. When the defendant incorporated to carry on such a business, we may reasonably assume that it was with the expectation of receiving a franchise from the city, which, when conferred, it would undertake to carry on according to the purposes for which it was organized. By its acceptance of the grant, under the terms of its incorporation, it as- sumed the obligation of supplying the city and its inhabitants with water along the line of its mains. It could not dig up the streets and lay pipes therein for conducting water, except to furnish the city and its inhabitants with water. That was the purpose for which it became a corporation, and the grant of the city was to enable it to carry it into effect. And ‘‘if the supplying of a city or town with water,” as Van SycxeEL, J., said, ‘‘is not a public purpose, it is difficult to conceive of any enterprise intrusted to a private corporation that could be classed under that head.” We discover no error, and the judgment must be affirmed for the plaintiff, making the writ peremptory. 1 Compare: Water Works v. Schottler, 110 U.S. 354; Water Co. vu. Fergus, 178 Tll. 571; Olmstead v. Morris Aqueduct, 47 N. J. L.311; People v. Water Co., 56 Hun, 76; Griffin v. Water Co., 122 N. C, 206.— Ep. SLOSSER v. SALT RIVER VALLEY CANAL CO. 37 SLOSSER v. SALT RIVER VALLEY CANAL CO. Supreme Court or Arizona, 1901. [65 Pac. Rep. 332.1] Stoan, J. . . . The proof shows that plaintiff and his grantors have cultivated the land which he now owns from 1871 to 1880, under vari- ous canals in which plaintiff and his grantors were the owners of water rights. Since 1880, with the exception of one or two years, whatever water plaintiff has had for the irrigation of his land has been obtained from the Salt River Valley canal. The circumstances under which plaintiff changed his use from the Farmers’ canal to the Salt River Valley canal are shown to have been the difficulty of maintaining the Farmers’ canal, and the scarcity of water at its head, due to the diver- sion by the defendant company and other companies owning canals which headed further up the river. It is contended by the defendant that the abandonment of the Farmers’ canal by its water-right holders, including the plaintiff, operated as an abandonment of their appropria- tions of water. Whatever may be the status of other water-right holders in the Farmers’ canal, the defendant company, as late as 1890, in the suit known as “ Wormser against the Salt River Valley Canal Company,” tried in the court below, which case involved the rights of various canals in the Salt River Valley to divert the water from Salt River, acknowledged plaintiff’s right as an appropriator of water, by setting up such right, introducing proof to the same, and obtaining an adjudication in its favor, sustaining its right to divert and carry water necessary for the irrigation of plaintiff’s lands. If plaintiff had not lost his right as an appropriator of water by obtaining water from the Salt River canal from 1880 to 1890, it cannot be very well contended that under the same circumstances his right was lost to him between 1890 and 1896, when he was first denied the right of ob- taining water from the defendant’s canal. Forfeitures are not favored in law, and we hold, therefore, that the circumstances under which plain- tiff ceased to obtain water from the Farmers’ canal, and his use of water from the defendant’s canal, coupled with the acknowledgment as late as 1890 by the defendant company of his right as an appropriator, do not show such forfeiture, but, on the contrary, establish his status as a valid appropriator of water from the Salt River. We do not hold that the plaintiff has acquired any contractual right to the service of said company which would entitle him to compel from said company the delivery of water for the irrigation of his lands, by virtue of such contractual] relation, whenever the company confines its diversion and delivery of water to its stockholders to be used by the latter upon lands 1 This case is abridged. — Ep. 38 SLOSSER v. SALT RIVER VALLEY CANAL CO. owned or possessed by them. On the other hand, we hold that his rights in the premises, so far as the defendant company is concerned, rest upon the fact that the defendant was not, at the time of plaintiff's application for water, confining its service to supplying its water-right holders for the irrigation of lands which they owned or possessed. In determining, however, whether plaintiff, as against others similarly situated, so far as the company is concerned, was entitled to the service of the company, under the law of prior appropriation, and the duty of water companies which occupy the relation of public agency in the diversion and carriage of water, we must look to the date of his ap- propriation, and therefore his priority of right. We think the denial by the defendant of plaintitf’s application, under the circumstances shown by the record, was unwarranted, and he should have been ac- corded this right in preference to the holders of leases from the share- holders for use upon lands not owned or possessed by said shareholders, who were subsequent appropriators. The importance of the questions presented by the record is such that we feel called upon to define with certainty the position we have taken, and to this end to give a brief résumé of the points decided, with a statement of those which we do not decide, which grow out of a con- sideration of the points decided in a collateral way, although not neces- sary in arriving at the result reached: We hold that the ownership and possession of arable and irrigable land are essential, under the statutes,'for the acquisition of the right of appropriation of water from a public stream for purposes of irrigation. We hold that a corpora- tion not the owner or possessor of arable and irrigable land may law- fully construct a dam, canal, or other conduit of water, and divert from such stream water for purposes of irrigation, but that in so doing it becomes in no sense an appropriator or owner of the water so diverted. Its status is that of either a private or public agency, depending upon whether its diversion is for the purpose of supplying owners or posses- sors of arable and irrigable land with whom it has fixed contractual relations, binding it to perform such service, or whether its purpose or practice be to supply owners or possessors of such land who are not its water-right holders, or with whom it has not bound itself by contract to permanently render such service. If it confines its service as the pri- vate agent of certain appropriators, it cannot be compelled to render ser- vice to others. On the other hand, if it undertakes to and does divert and carry water for the use of consumers with whom it is not bound by such contracts, and hence becomes a public agency, it cannot, under the law, discriminate by giving preference otherwise than with due re- gard to priority of appropriation. We further hold that a shareholder in such a company, who is also a water-right holder by virtue of his ownership of such share of stock and the ownership or possession of arable and irrigable land irrigated by means of such water right, may not assign such water right to another, to be used upon lands which the assignor does not own or possess, for any particular season, so as to SLOSSER v. SALT RIVER VALLEY CANAL CO, 39 confer upon the assignee his priority of right, and that such company does not possess the right to discriminate in favor of such holders, as against other appropriators of water under its canal, who were prior in right. In other words, a water right, to be effective, must be at- tached to and pertain to a particular tract of land, and is in no sense a “ floating” right. We do not wish to be understood as holding that a water right which is so attached becomes inseparable from such land. That is to say, we do not hold that a prior appropriator of water may not convey his prior appropriation to another, without the land, so as to confer upon his vendee of such water right all the rights which the vendor may possess, provided such vendee makes a beneficial use of such water right upon lands which he owns or possesses. But we de- sire to be understood simply as holding that, so long as a water right is attached to a particular piece of land, it cannot be made to do duty to such land, and as well to other land not owned or possessed by such water-right holder, at the will or option of the latter. In the briefs, as well as in the very able and elaborate argument made by counsel for ap- pellee, the right of shareholders to do this, and the duty of the defend- ant company to recognize the right, have been strenuously argued. In this, however, we think counsel confuses the right of an appropriator to sell or transfer by conveyance his water rights to another with the assumed right in question. To recognize the right of a prior appro- priator to lease his water right independent of his land would, as we conceive, be subversive of the underlying principle of our water-right law. The right of alienation of a water right is one which is based upon the general right of property, and arises out of the necessity, in order that injustice may not be done to the owner, of permitting such alienation, for the reason that it frequently happens, through no fault of the owner, and by the operation of natural laws, that land to which water rights have been attached becomes unsuitable for cultivation. Floods frequently wash away and destroy farming lands, or leave de- posits of coarse gravel and bowlders upon them; and other natural causes frequently 1 render such lands not only unprofitable, but impos- sible of irrigation and cultivation. Natural justice, therefore, is sub- served by recognizing the right of a water-right holder to change his appropriation, under such circumstances, to lands capable of profitable cultivation, or to sell his right to another, to be used by the latter for a beneficial use recognized by the statute. As the law must be certain and general in the matter of the right of conveyances, to admit the right of alienation under some circumstances must be the admission of that right under any and all circumstances. There was no principle of natural justice or of necessity that required the recognition of the right of a water-right holder to lease his water right for particular sea- sons, while retaining the land to which itis attached; for so long as he may use his right in the cultivation of such land he enjoys all that the law confers in the first instance by virtue of his appropriation. In considering our peculiar statutes, it is well to bear in mind the fact 40 SLOSSER v. SALT .RIVER VALLEY CANAL CO. that the only expression in our statutes upon the subject of priority of rights among appropriators from a common source for agricultural pur- poses is found in paragraph 3215 of the Revised Statutes, which reads : “That during years when a scarcity of water shall exist, owners of fields shall have precedence of the water for irrigation according to the dates of their respective titles or their occupation of the lands either by themselves or their grantors, the oldest titles shall have pre- cedence always.” And, while this section applies primarily to public acequias, it is significant, taken in connection with paragraph 3201, and negatives the idea that priority of appropriation is a mere personal right, which may be enjoyed otherwise than by its application upon particular lands. We hold further, therefore, that the defendant com- pany, by adopting and continuing the practice of supplying water to others than its water-right holders owning or possessing arable and irrigable land, not being itself an appropriator of the water carried, or the owner thereof, and dealing, as it was. with public property, be- came a public agency to the extent that plaintiff at the time he made his application for water, although not a water-right holder of the com- pany, was entitled, upon the payment of the charge for similar service made to other non-water-right holders, whether holders of orders from water-right holders or not, to bave delivered upon his lands water suf- ficient for the irrigation thereof, in preference to other non-water-right holders whose appropriations were subsequent in time, and that he is entitled to this service upon the same terms and conditions, so long as the defendant company continues to supply water to consumers under its canal who are not its water-right holders, whether upon the order of the latter or not, and thus continues to assume the status of a pub- lic agency in the diversion and carriage of water. We do not hold that the water-right holders in the Salt River canal are upon a parity of right with appellant and other non-water-right holders similarly situated to the service of the canal and to the water it diverts and car- ries. We assert that the canal company owes a first duty to supply the needs and requirements of the water-right holders. It is the sur- plus water remaining in the canal after this is done which is lawfully available to the latter class, and which must be disposed of by the com- pany in the manner herein decided. Under the circumstances shown by the record, we hold that the appellant was wrongfully denied water for the irrigation of his lands at the time he made his application, in May, 1899; it being shown that the appellee company during that sea- son was engaged in supplying other consumers within the flow of its canal who were non-water-right holders, and thus, confessedly, was diverting and carrying water in its canal in excess of that needed and required by its water-right holders for the irrigation of lands to which their water rights were attached, and it being further shown that ap- pellant had the superior right to the use of such surplus water over other non-water-right holders thus supplied, by virtue of his ownership and possession of lands having an older right of appropriation. We ee PORTLAND NATURAL GAS AND OIL CO. ¥. STATE. 41 further hold that, so long as appellant continues to be the owner or possessor of said lands, upon paying the usual and reasonable charge therefor, he is entitled to the same service, whenever and so long as the appellee company undertakes to and does divert and carry in its canal water from Salt River in excess of that needed and required by its water-right holders for the irrigation of lands owned or possessed by such water-right holders, and to which such water rights are attached. The judgment of the trial court is reversed, and a judgment and decree will be entered in consonance with this opinion. Doan, J., concurs. Davis, J. Ido not concur in the opinion of the court in this case.1 PORTLAND NATURAL GAS AND OIL COMPANY v. STATE. Supreme Court oF Inprana, 1893. [135 Ind. 54.] From the Jay Circuit Court. Correy, J. This was an action by the appellee against the appellant, to compel the latter by mandamus to supply the residence of the re- lator with natural gas, to be used for lights and fuel. It appears, from the complaint, that the appellant is a corporation, duly organized under the laws of this State, for the purpose, among others, of supplying to those within its reach natural gas, to be used for lights and fuel. By permission of the common council it has laid its pipes, for that purpose, in the streets and alleys of the city of Portland, in this State, and has pipes laid in Walnut Street, of that city. The relator resides on Walnut Street, on the line of one of the appellant's main pipes. His house is properly and safely plumbed for the purpose of obtaining natural gas. In May, 1890, the relator demanded of the appellant gas service, and tendered to it the usual and proper charges for such service, but it re- fused, by its officers, to furnish the gas demanded, whereupon this suit was brought to compel it to furnish the gas desired by the relator. The court overruled a demurrer to the complaint. It also sustained a demurrer to the second, third, and fourth paragraphs of the answer filed by the appellant. Over a motion for a new trial, the court awarded a peremptory writ against the appellant, requiring it to fur- nish the relator with gas, as prayed in the complaint. These several rulings are assigned as error. Very many of the objections urged against the complaint go to the 1 Compare: Price v. Riverside Co., 56 Cal. 431; Wright v. Platte Co., 27 Col. $22.— Ep. 42 PORTLAND NATURAL GAS AND OIL CO. v. STATE. question of its uncertainty, and are technical in character. It has been so often decided that a demurrer is not the remedy for uncertainty that we need not cite authority upon the subject. The vital question in the case relates to the right of the relator to compel the appellant, by mandamus, to supply his dwelling house with natural gas for lights and fuel. There are cases which hold that in the absence of a contract, ex- press or implied, and where the charter of the company contains no provision upon the subject, a gas company is under no more obligation to continue to supply its customers than the vendor of other merchan- dise, among which is the case of Commonwealth v. Lowell Gas Light Co., 12 Allen, 75 ; but we think the better reason, as well as the weight of authority, is against this holding. Mr. Beach, in his work on private corporations, volume 2, section 835, says: ‘‘Gas companies, being engaged in a business of a public character, are charged with the performance of public duties. Their use of the streets, whose fee is held by the municipal corporation, in trust for the benefit of the public, has been likened to the exercise of the power of eminent domain. Accordingly, a gas company is bound to supply gas to premises with which its pipes are connected.” Mr. Cook, in his work on Stock and Stockholders, section 674 (2d ed.), says: “ Gas companies, also, are somewhat public in their nature, and owe a duty to supply gas to all.” To the same effect are the following adjudicated cases: State v. Columbus Gas, &c. Co., 34 Oh. St. 572; New Orleans, &c. Co. v. Louisiana Light Co., 115 U. 8. 650; People, ex rel., v. Manhattan, &e. Co., 45 Barb. 136; Gibbs v. Consolidated Gas Co., 130 U. S. 896; Williams v. Mutual Gas Co., 52 Mich. 499; Jn re Rochester Natural Gas, &c. Co. v. Richardson, 63 Barb. 437. Our General Assembly, recognizing the fact that natural gas com- panies were, in a sense, public corporations, conferred upon them the right of eminent domain, by an act approved February 20, 1889, Acts 1889, p. 22. It has often been held that mandamus is the proper proceeding by which to compel a gas company to furnish gas to those entitled to re- ceive it. 8 Am. and Eng. Eucye. of Law, 1284~-1289 ; People v. Man- hattan Gas Light Co., supra; Williams v. Mutual Gas Co., supra; Rochester Natural Gas, &c. Co. v. Richardson, supra. In view of these authorities, we are constrained to hold that a nate ural gas company, occupying the streets of a town or city with its mains, owes it as a duty to furnish those who own or occupy the houses abutting on such street, where such owners or occupiers make the necessary arrangements to receive it and comply with the reasonable regulations of such company, such gas as they may require, and that, where it refuses or neglects to perform such duty, it may be compelled to do so by writ of mandamus. As to the sufficiency of an answer averring that the company had not a sufficient supply to furnish all PORTLAND NATURAL GAS AND OIL CO. v. STATE. 43 those demanding gas, we intimate no opinion, as no such defence was interposed in this case. It follows that the complaint in this case states a cause of action against the appellant, and that the court did not err in overruling the demurrer thereto. The second paragraph of the answer avers that at the time of the demand for gas alleged in the complaint, the relator was being fur- nished with natural gas by the Citizens’ Natural Gas and Oil Min- ing Company, of Portland, Indiana, and that said company has ever since continued to furnish him with gas for fuel and lights, and is ready and willing to continue doing so, so long as he may pay for the same. The third paragraph avers that the relator has no interest in the ap- pellant, except what he may have and hold under the laws of the State in common with all other citizens of the city of Portland, as shown by the allegations in the complaint. The fourth paragraph avers that the demand which the relator alleges he made on the appellant to furnish him natural gas is couched in gen- eral terms merely, and is not express and distinct, and does not clearly designate the precise thing which is required, but is vague, indefinite, and uncertain, as shown by the facts alleged in the complaint. It is contended by the appellant, in support of the second paragraph of its answer, that in view of the facts therein averred it could not comply with the demand of the relator without a violation of the pro- visions of an act of the General Assembly, approved March 9, 1891, Acts 1891, p. 381. It would seem to be a sufficient answer to this contention to say that it does not appear, by any averment in this answer, that it was neces- sary to change, extend, or alter any service or other pipe or attach- ment belonging to the Citizens’ Natural Gas and Oil Mining Company, in order to supply the relator with the gas he demanded. For any- thing appearing from this answer, the gas required by the relator from the appellant could have been furnished without interfering with that company. But if it appeared otherwise, we would not be disposed to place a construction upon that act, which would give a gas company furnishing unsatisfactory service, or charging an unsatisfactory price for its service, the perpetual right to furnish gas toa particular building because it had been permitted to attach its appliances for the purpose of furnishing gas. In our opinion, the court did not err in sustaining a demurrer to this answer. The third paragraph of the answer was wholly insufficient to bar the "relator’s cause of action. It was not necessary that he should own an interest in the appellant, different from that held by other citizens of the city of Portland. It was sufficient that the appellant owed him a duty, in common with other citizens, to furnish him gas, which duty it had refused to perform. 4 44 CINCINNATI, HAMILTON, ETC. R. R. Uv. BOWLING GREEN. The fourth paragraph of the answer states no issuable fact, and is clearly bad. ; a The evidence in the cause tends to support the finding of the Circuit Court, and we cannot, for that reason, disturb the finding on the evi- dence. Tne There is no error in the record for which the judgment of the Circuit rt should be reversed. Court shou Judgment affirmed. CINCINNATI, HAMILTON AND DAYTON RAILROAD CO., v. VILLAGE OF BOWLING GREEN. Supreme Court or Onto, 1879. [57 Oh. St. 336.2] Error to the Circuit Court of Wood County. This action was brought in the Court of Common Pleas of Wood county, by the village of Bowling Green, to recover of the railroad company, plaintiff in error, a sum of money to reimburse the village for expenditures incurred by it in maintaining electric lights at certain places that by ordinance it had required the railroad company to main- tain, and which the latter had neglected to do. The village prevailed in the Court of Common Pleas, and the judg- ment there rendered in its favor was affirmed by the Circuit Court. To reverse the judgments thus rendered is the object of the proceedings in this court. Brapsoury, J... . The ordinance in question specifies the points at which lights are to be maintained, and prescribes the kind of light, and the lamps and attachments to be employed. Electricity must be used, and the Jamps and attachments must be in all respects similar to those used in lighting the streets of the village. Plaintiff in error contends, that these provisions are unreasonable at the [point] of the power of determining the kind of light to be used, and of contracting on its own behalf; that the system of lamps and attachments which the ordinance prescribes are the subject of patents, and that the exclusive right to use them within the village, has been granted to the Bowling Green Electric Light and Power Company, and that, therefore, the plaintiff in error was put wholly within the power of such company by the ordinance, and will be compelled to pay what- ever price the company chooses to establish or charge for the lights required. 1 Compare: McCune v. Norwich Gas Co., 30 Conn. 521; Coy v. Gas Co., 146 Ind. 655 ; In re Pryor, 55 Kans. 730: Commonwealth v. Lowell Gas Co., 12 Allen, 75; Pat- erson Gas Co. v. Brady, 27 N. J. L. 245; Lanesville v. Gas Co., 47 Oh. St. 1; Shepard v. Milwaukee Gas Co., 6 Wis. 539.— Ep. 2 This case is abridged. — Ep. CINCINNATI, HAMILTON, ETC. R. R. ¥. BOWLING GREEN. 45 As respects the objection to the ordinance on account of its specify- ing the kind of light to be used, the statute — section 2495, Revised Statutes — among other provisions, requires the ordinance to “ specify the manner in which such . . . railway shall be lighted.” .. . ‘This language seems broad enough to authorize the municipality to prescribe the kind of light to be employed for that purpose, — whether electricity, gas, or any other material or means that may be reasonably adapted to the purpose. The power of selecting the kind of light to be used can be exercised, of course, only where more than one kind is available. This power must reside somewhere, either in the railroad company or the municipality. The power to require the lighting of a railroad track is a branch of the police power of the State. If the terms of this section (2495) of the Revised Statutes, granting the power to muni- cipal bodies should not be broad enough to expressly authorize them to prescribe the kind of light to be employed, yet,-as the power to compel a railroad company to light its track at all, implies authority to require it to be efficiently done, it would seem to necessarily follow that, within reasonable limits, the power to prescribe the kind of lights rests with the municipal authorities. They, of course, in this respect could not cast an unreasonable burden on the railroad company. Doubtless, an ordinance would cast upon a railroad company an un- reasonable burden, and for that reason, would be void, if it prescribed an electric light, when the municipality contained no electric plant or other convenient means of generating electricity; otherwise, each municipality, large or small, through which a railroad might pass, could compel those who operate the road to erect a plant to generate the light thus required. There was, however, in the village of Bowling Green, at the time the ordinance under consideration was passed, an electric light and power company, operating an electric plant, and therefore the means was at hand that would enable the railroad company to comply with require- ments of the ordinance in this respect, and, therefore, such requirement was not in itself unreasonable. Did the ordinance unreasonably limit the right of the railroad com- pany to contract on its own behalf, or unreasonably place it within the power, and subject it to extortion at the hands of the electric light and power company, of which it must procure the lights ? True, the railroad was required to adopt electricity as the means of illumination, and was confined to the kind of lamps and their attach- ment, then in use in said village. If the exclusive right to use within the village these lamps and attachments had been granted by the patentee to the Bowling Green Electric Light and Power Company, and if this company had an absolute power to fix the price that it could exact for the use of its light and Jamps, then the contention of the rail- road company would find strong support in reason and justice. It may be conceded, however, that. the lamps and their attachments, as well as the system of lighting in use in the village of Bowling Green, were 46 CINCINNATI, HAMILTON, ETC. R. R. ¥. BOWLING GREEN. all protected by patents, and that the Bowling Green Electric Light and Power Co. had the exclusive right to their use within that village, and yet the power of extortion would not follow, necessarily. The light and power company have acquired in the village rights that are in the nature of a monopoly. The use to which it has devoted its property is one in which the public have an interest, and it requires the use of the streets and alleys of the village to conduct and distribute electricity to its lamps for illuminating purposes; and, in addition to this, power to appropriate private property has been conferred on it. Section 3471, Revised Statutes. Both reason and authority deny to a corporation clothed with such rights and powers, and bearing such re- lation to the public, the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. Beach on Corporations, sections 834, 835, 836; Zanesville v. Gas Light Co., 47 Oh. St. 1; Munn ». Illinois, 94 U. S. 113; Spring Valley Water Works v. Schot- tler e¢ al., 110 U. S. 347; Gibbs v. Baltimore Gas Co., 180 U. S. 408; The City of St. Louis v. The Bell Telephone Co., 96 Mo. 623; Ne- braska v. The Nebraska Telephone Co., 17 Neb. 126; Central Union Telephone Co. v. Bradbury, 106 Ind. 1. The Bowling Green Electric Light and Power Company was bound to serve all of its patrons alike; it could impose on the plaintiff in error no greater charge than it exacted off others who had used its lights. The village had authority to fix the rates to be charged by the company for lights. Section 2478, Revised Statutes. If the village authorities should fail to act in this respect, and the plaintiff in error and the power and light company could not agree upon a price, the latter, by an appeal to the courts of the State could compel the former to furnish the lights at a reasonable price. Therefore, the provisions of the ordinance requiring the plaintiff in error to use the lamps and attachments then in use in the village was not unreasonable. Notwithstanding that the sole right to use the lamps and attachments prescribed may have been vested in the Bowl- ing Green Electric Light and Power Co., yet, as that company was bound to furnish light to all its patrons on terms that must be both reasonable and impartial, the ordinance requiring the use of such lamps and attachments should, in that respect, be deemed reasonable. The right to make contracts on its own behalf is doubtless a valuable one to the plaintiff in error, and if there had been two or more electric light plants in the village, an attempt to dictate to plaintiff in error which of them it should choose might have presented an interest- ing question. There was but one, however, and the only choice open to plaintiff in error, was between building a new plant or taking light of the company then established in the village. If that company had an exclusive right to use the lamps and attachments prescribed, then no choice was open to the plaintiff in error, and it would be compelled to procure the lights of that company. This, however, from a practical point of view, was of little or no concern, because, while the circum- FLEMING ¥. MONTGOMERY LIGHT CO. 47 stances surrounding the plaintiff in error compelled it to take the lights of this particular company, yet the latter was also compelled to furnish them at a reasonable price. The State, under these circum- stances, must yield its police power, a power existing for the benefit of all its citizens, or the right of a railroad company to an unlimited power of contracting must give way. This is not the only instance in which its powers in this respect are curtailed for the public good. This is notably the case in respect of its power to contract concern- ing the transportation of freight and passengers. The ordinance in question requires the lights to be furnished by the plaintiff in error, shall be kept lighted during the same hours that the street lamps of the village may be kept lighted; this we think is sufficiently definite to clearly inform the plaintiff in error of what was required of it in this respect. The ordinance, we think, imposes no unreasonable burdens on the plaintiff in error. Judgment affirmed+ FLEMING v. MONTGOMERY LIGHT CO. Supreme Court oF ALABAMA, 1892. [100 Ala. 657.] Coreman, J. Appellant as complainant filed the present bill for the purpose of enjoining the respondent, the Montgomery Light Company, from removing its gas meter from the premises of complainant, and to enjoin the respondent ‘from refusing to furnish your orator gas.” Complainant’s rights are very clearly set forth in the bill and grow out of an agreement entered into in the year 1852 between the City of Montgomery and the John Jeffrey Company, by the terms of which the exclusive right and privilege of manufacturing and supplying gas for.a period of fifty years for the city of Montgomery and its inhabi- tants was granted to the John Jeffrey Company, the said company agreeing on its part, “at all times to supply the inhabitants of the City of Montgomery, for private use, with a sufficient quantity of gas of the most approved quality.” The Montgomery Light Company has succeeded to all the privileges and assumed all the obligations of the John Jeffrey Company, and the bill makes the further averment, “ that it is the duty of the respondent under its charter to supply all appli- cants with gas and electric lights, one or both, at the option of the consumer.” There is nothing in the agreement by which the Light Company may compel the inhabitants of the city or any one of them to use its gas and electric lights. Stripped of the statement of facts necessary to present the complainant’s case in an intelligible form, the 1 Compare: Andrews v. Electric Light Co., 53 N. Y. §. 810. 48 STATE EX REL. v. CITIZENS’ TELEPHONE CO. one question raised is, whether the assumption to supply the inhab- itants of the city of Montgomery with gas, imposes the legal duty on the company to furnish gas meters and keep on hand a sufficient quan- tity of gas, for inhabitants who do not use or consume gas, but who desire to be supplied “ with meters and connections with the defendant's gas pipes so that in case an accident, which is apt to occur, should happen, they could use the gas.” A statement of the proposition suggests its answer. There can be no difference in principle between the case stated and the one in the bill, in which it is shown that at one time complainant used gas for lights, but at the time of filing the bill, and previous thereto, com- plainant used in his building electric lights furnished by a different company, or corporation, and was not a patron of defendant company, and the injunction was to make provision ‘‘ to use gas” ‘‘in case an accident should happen to the electric lights in use by orator.” Plaintiff’s contention is, that although he has made other arrange- ments with a different company for light, yet it is the duty of respond- ent to keep on hand gas and electricity with proper meters and con- nections and electric burners “in case of an accident” to the company which has contracted to supply him, and that too without any cor- responding obligation on his part to use the gas of the defendant. We can find no such provision in the contract between the city and respondent, expressed or implied. There is no equality or equity in such a proposition. It is hardly necessary to cite authorities, but we refer to the following: Williams v. Mutual Gas Co., 50 Amer. Rep. 266; 52 Mich. 499. There is no error in the record. Affirmed. STATE ex ret. GWYNN v. CITIZENS’ TELEPHONE CO. Supreme Court or Sovru Carona, 1901. [61 S. C. 88.2] Petition by J. B. Gwynn for mandamus against Citizens’ Telephone Co., requiring it to place a telephone in his store and in his residence. From order refusing the writ, petitioner appeals. ° Mr. Chief Justice McIver, This was an application, addressed to the Circuit Court, for a writ of mandamus, requiring the respondent to place a telephone in the relator’s grocery store and one in his residence, in the city of Spartanburg, and to connect them properly with its ex- change and its subscribers, and to do all acts necessary to afford the relator the like service and telephonic communication afforded to its 1 Compare : Adams Express Co. v. Cincinnati Gas Co., 10 Oh. Dec. 389. 2 This case is abridged. — Ep. STATE EX REL. v. CITIZENS’ TELEPHONE CO. 49 other subscribers, The application was refused by the circuit judge, and the relator appealed to this court on the several’ grounds set out in the record, which it is not necessary to state here, as it will be suffi- cient to consider the several questions, as stated by counsel for respond- ent, in his argument here, which are presented by this appeal. As is said by the circuit judge in his decree, “There is practically no dispute as to the facts,” which may be stated, substantially, as fol- lows: The relator is now and has been since the 28th of June, 1898, engaged in the mercantile business, carrying on a retail grocery store in the city of Spartanburg, and occupies a residence in said city; that the respondent, on the 16th day of August, 1898, became a corpora- tion under the laws of this State, for the purpose of owning, construct- ing, using, and maintaining electric telephone lines and exchange within the city of Spartanburg, and as such is now and was at the time of the commencement of this proceeding engaged in the said business, having established an exchange in said city, from which connections were made to telephone instruments in offices, places of business and residences of its subscribers; that the city council of Spartanburg has authorized the respondent to erect poles in the streets of the city for the purpose of transporting news over its wires to its subscribers, having a system of wires throughout the city, connected with telephone instruments fur- nished by it to its subscribers; that whenever a person desires a tele- phone, it is placed in the office, residence, or place of business of the applicant, at the expense of the respondent, with authority to the sub- scriber to use the same, upon certain rates and terms, for the purpose of telephonic communication with others; that some time in the year 1899, the respondent placed telephones in relator’s residence and gro- cery store, giving proper connections with respondent’s exchange and its subscribers or customers throughout the city of Spartanburg and elsewhere; that this was done under an agreement with the relator that he would use respondent’s telephone exclusively, and not the tele- phone of the Bell Telephone Company, and that certain of respond- ent’s subscribers in the said city of Spartanburg, including most of the grocerymen, were furnished with telephones by the respondent, under a similar agreement, but some of respondent’s subscribers, including some merchants, physicians, and others and one groceryman, whose place of business was on the same street of said city as the grocery store of relator, were supplied with telephones by respondent under agreements which contained no such stipulation as to the exclusive use of respondent’s telephones, and they were using both telephones ; that on or about the 6th of February, 1900, the respondent learning that the relator had purchased Holland’s market, in which there was a tele- phone placed there by the Southern Bell Telephone Company, a cor- poration duly chartered under the laws of this State, and that said market immediately adjoined relator’s grocery store, and that relator had cut a door through the wall separating his grocery store from said market, thus opening a means of communication between the two 4 50 STATE EX REL. v. CITIZENS’ TELEPHONE CO. structures, immediately removed, against the protest of the relator, the telephones which the respondent had previously placed in relator’s grocery store and residence, for the avowed purpose of preventing the relator from using respondent’s telephones while he was using the Bell Telephone — respondent claiming that under its agreement with relator he was bound to confine himself to the use of respondent's telephones; that on or about the 8th of February, 1900, the relator tendered to respondent the amount due for the past use of respond- ent’s telephones, which was accepted, and that relator thereupon de- manded that respondent place one of their telephones in his. grocery store and one in his residence, with proper connections with respond- ent’s exchange and its subscribers; but the respondent refused to com- ply with such demand unless the relator would agree to use respondent’s telephones exclusively, and not use the telephone which had been placed in said market by the Bell Telephone Company. The respondent, in its answer, alleges: ‘+ That its supply of telephone instruments is limited, and that it is with difficulty that this respondent can furnish such instruments to all applicants therefor. That even if the respondent was legally bound to furnish such instruments now, it would be impossible for it to do so within less than sixty days, for the reason of its inability to enlarge its switch-board.” But as this allega- tion is not responsive to any allegation contained in relator’s petition, and was not sustained by any evidence, so far as the ‘‘Case” shows, it cannot now be considered. Beside, this court, having reached the con- clusion, as will presently appear, that the relator is entitled to the man- damus for which purpose the case will be remanded to the Circuit Court, with instructions to carry out the views herein announced, that court can, in its order directing the writ of mandamus to be issued, make such provision, by giving a reasonable time within which the duty sought to be enforced shall be performed, provided the fact be as alleged in the foregoing quotation from respondent’s answer. We will next proceed to consider the several questions of law, grow- ing out of the facts above stated, and presented by this appeal. These questions are thus stated in the argument here, on the part of the re- spondent, and we propose to adopt that statement. 1st. Is the de- fendant telephone company, in any sense, a common carrier? 2. Can the defendant telephone company be required, in any case, against its will, to supply one of its instruments to petitioner? 3. Can the de- fendant telephone company be required by mandamus, under the cir- cumstances of this case, to so furnish its instruments to petitioner? To dispose of the third question, it will be necessary to recur some- what to ‘the circumstances of this case.” The undisputed facts are that the respondent, in the exercise of its franchise conferred by its charter, had established a telephone business in the city of Spartan- burg, and had erected its poles and strung its wires in and along the streets of said city, and thus had become, at least, @ guast common carrier of news, and as such was under an obligation to serve all alike STATE EX REL. v. CITIZENS’ TELEPHONE CO. 51 who applied to it within reasonable limitations, without any discrimi- . nation whatsoever. When, therefore, the relator applied to the re- spondent to replace the telephone instruments in his grocery store and in his residence, from whence they had been removed by the defendant company but a few days before, the respondent was, in our opinion, bound to comply with such demand, under the obligations to the public which it had assumed. The reason given for its refusal — that the relator refused to agree that he would use respondent’s tele- phone system exclusively — was not sufficient to relieve it from its obligation to serve the public, of which the relator was one, without any discrimination whatsoever; and especially is this so when it was admitted that the respondent was, at the time, affording to one per- son, at least, who was engaged in the same business as that of the relator, whose place of business was on the same street of the same city, the same facilities which the relator demanded, without requiring any such stipulation as that required of the relator, but who was, in fact, using both telephone systems. It seems to us that the respond- ent, after offering to the public its telephone system for the transmis- sion of news, would have no more right to refuse to furnish the relator its facilities for the transmission of news unless he would agree not to use the Bell Telephone system in operation in the same city, but use exclusively respondent’s system, than a railway company would have to refuse to transport the goods of a shipper, unless such shipper would agree to patronize its line exclusively and not give any of its business to any competing railway line. Nor does the fact (if fact it be) that the relator had committed a breach of its previous contract with re- spondent, when he purchased Holland’s market, in which an instrument of the Bell Telephone Company had been placed, and had thereby ac- quired the right to use the Bell Telephone, afford any reason why the respondent should decline to comply with relator’s demand to furnish his grocery store and residence with its telephone instruments. If the relator had committed any breach of its previous contract with the re- spondent of which the latter had any legal right to complain, its remedy, as was said in one of the cases which we have consulted, was by an action to recover damages for such breach of contract, but not by refusing to perform its obligation to the public, of which the relator was one. As to the other reason suggested why the mandamus prayed for should not issne under the circumstances of this case, to wit: that respondent did not have the means to comply with the demand of the relator within less than sixty days, it is only necessary to repeat what we have said above: that there does not appear to be any evidence in the “‘Case” to sustain the fact upon which this suggestion is based, and, therefore, it cannot now be considered. Besides, as is said above, that is a matter which may be considered when the case goes back to the Circuit Court, which can, in ordering the mandamus to issue, as herein directed, make suitable provision for allowing respondent reason- able time, if such shall be shown to be necessary, to comply with the relator’s demand. 52 SHEPARD v. GOLD STOCK AND TELEGRAPH co. As to the position taken in the argument — that mandamus is not the proper remedy — we think it entirely clear, both upon principle and authority, that mandamus is the appropriate remedy in a case of this kind. The judgment of this court is, that the judgment of the Circuit Court be reversed and that the case be remanded to that court, with instruc- tions to carry out the views therein announced. SHEPARD v. GOLD STOCK AND TELEGRAPH CO. Supreme Court or New York, 1885. (88 Hun, 338.] AppEAL from an order vacating an injunction restraining the defend- ant from removing the gold and stock reporting instruments from the rooms of the plaintiff. Dyxman, J. The object of this action is to restrain the defendant from removing the gold and stock reporting instruments from the plain- tiffs place of business, and a preliminary injunction was obtained which did forbid such removal. That order was vacated at Special Term, and we have an appeal from that order. The appeal is without merit. In the contract by which the plaintiff procured the possession of the instruments, the company reserved the unqualified right to dis» continue the reports and remove the instruments without notice when they were used in any way which it considered detrimental to its inter- ests. The injunction prohibited the exercise of the right thus reserved, and was for that reason properly vacated. The order should be affirmed, with costs and disbursements. Prart, J. Defendants are a public corporation under obligation to render their services impartially and without discrimination to all per- sons who comply with their reasonable rules. Yet the contract entered into by the parties is not to be disregarded, and such reasonable stipu- lations as it contains will be respected and enforced by the court. The contract provides as follows: ‘These reports are furnished to sub- scribers for their private use in their own business, exclusively. It is stipulated that such will not sell or give up the copies of the reports in whole or in part, nor permit any outside party to copy them for” use or publication. Under this rule subscription by one party for the benefit of himself and others at their joint expense will not be received.” The stipulation is reasonable and not in conflict with the duty owed by 1 Compare: State v. Telephone Co., 23 Fed. 539; Hockett v. State, 105 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. v. Telephone Co., 61 Vt. 241. — Ep. INTER-OCEAN PUBLISHING CO. v. ASSOCIATED PRESS. 53 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. Plaintiff's 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 Present — Pratr and Dyxman, JJ.; Barnarp, P. J., not sitting. Order vacating injunction affirmed, with costs. THE INTER-OCEAN PUBLISHING CO. v. THE ASSOCIATED PRESS. Supreme Court or Irxtwors, 1900. [184 Ill. 438.] Mr. Jostice Pai.ires? 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 Ill. 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. — Ep. 54 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 by 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 stich 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 any 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. 55 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 money. It reaches: out to the various parts of the United States, where its agents gather news which is wired to it, and through it such news is received by the various important news- papers of the country. 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 County erred in entering a decree dismissing the bill for want of equity, 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 County 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. — Ep. 56 PEOPLE v. NEW YORK CENTRAL, ETC. RAILROAD. PEOPLE v. NEW YORK CENTRAL, ETC. RAILROAD CO. Supreme Court or New York, 1883. [28 Hun, 543.1] Davis, J... . The petition in each case alleges that the said rail- road company, since about the 16th day of June, 1882, ‘‘ has sub- stantially refused to discharge its duties as a common carrier, and has, toa material degree, suspended the exercise of its franchises by re- fusing to take freight which has been offered at its stations in the city of New York for transportation, at the usual rates and upon the usual terms;” and that said railroad company has refused to accept and transport_the greater part of the outgoing, and to deliver the incoming freight and property of the merchants doing business in the city of New York, who have relations with and need for the services of such railway, and has refused to them to furnish adequate transportation for the same, so that from that date the business community of the city of New York are unable to obtain sufficient and adequate transportation for their goods on said railroad, although they have offered the same on the usual terms and rates of transportation; but said railroad has uniformly delayed and sometimes peremptorily refused to receive and deliver freight, and to transport the outgoing freight as aforesaid, and at certain points within the State has declined to receive incoming freight, whereby great loss and damages accrue to the people of the State of New York, for which there is no adequate remedy in damages, and that the trade and commerce of said city is greatly injured by the action of the said railroad. These allegations are broad enough to show a quite general and largely injurious refusal and neglect to perform the duties of carrier. The affidavits go far to sustain these allegations; but it is not impor- tant to examine them minutely, because the omission of a demurrer ore tenus extends to and admits the well-pleaded averments of the petition. Stated very briefly, the atfidavits show that, for about two weeks, the respondents failed and neglected to receive from three- quarters to seven-eighths of the goods offered for transportation from the city, and large quantities seeking transportation to the city ; and in many instances refused to receive goods offered, and turned them back and closed their gates during business hours, thus causing a stop- page of all delivery of freight; that in some instances unusual terms were sought to be imposed as a condition of receiving goods, which would increase the risks of the owner; that the refusal to receive goods did not arise from any unwillingness or inability on the part of the shipper to pay charges, but was wholly the act of respondents; that it was so continuous and extensive that it seriously interfered with the 1 This case is abridged. — Ep. PEOPLE ¥% NEW YORK CENTRAL, ETC. RAILROAD. 57 business operations of the citizens of New York, deteriorated the value of many commodities, and caused a diversion of trade from the city ; that great losses were caused, and especially that large quantitics of perishable goods, by reason of non-delivery, were destroyed, to the value of many thousand dollars; that a vast amount of freight, equal, as estimated, to 360,000 tons, was thus detained or refused carriage ; that large numbers of carmen were detained in their efforts to deliver freight, and the injury to that branch of business is estimated at not less than $50,000, while the aggregate of injuries is estimated at some millions. These are the substantial facts conceded by the respondents at the Special Term. Surely, it cannot be doubted that these facts, being true and unexcused, showed a strong case for the interference of the State. The only question is, whether the course and conduct of the respond- ents was so far excused by anything appearing in the petition and affidavits that the court was justified in denying the motion for the writ on its merits, or in a wise exercise of its judicial discretion. The excuse appears only in the statements of the reasons assigned by the respondents for their refusal to accept, transport, and deliver the freight and property. In the petition it is stated in these words, “that the persons in their employ handling such freight refuse to per- form their work unless some small advance, said to be three cents per hour, is paid them by the said railroad corporation.” The affidavits show, it may in short be said, that the skilled freight handlers of the respondents, who had been working at the rate of seventeen cents per hour (or one dollar and seventy cents for ten hours), refused to work unless twenty cents per hour, or two dollars per day of ten hours, were paid, and that their abandonment of the work, and the inefficiency of the unskilled men afterwards employed, caused the neglect and refusal complained of. It is not alleged or shown that the workmen committed any unlaw- ful act, and no violence, no riot, and no unlawful interference with other employees of the respondents appear. It is urged in effect that the court should regard the case as one of unlawful duress, caused by some breach of law sufficiently violent to prevent the reception and transportation of freight. There is nothing in the papers to justify this contention. According to the statements of the case, a body of laborers, acting in concert, fixed a price for their labor, and refused to work at a less price. The respondents fixed a price for the same labor, and refused to pay more. In doing this neither did an.act violative of any law, or subjecting either to any penalty. The respond- ents had a lawful right to take their ground in respect of the price to be paid, and adhere to it, if they chose; but if the consequence of doing so were an inability to exercise their corporate franchises to the great injury of the public, they cannot be heard to assert that such consequence must be shouldered and borne by an innocent public, who neither directly nor indirectly participated in their causes. 58 PEOPLE v. NEW YORK CENTRAL, ETC. RAILROAD. If it had been shown that a ‘‘strike” of their skilled laborers had been caused or compelled by some illegal combination or organized body, which held an unlawful control of their actions, and sought through them to enforce its will upon the respondents, and that the respondents, in resisting such unlawful efforts, had refused to obey unjust and illegal dictation, and had used all the means in their power to empley other men in sufficient numbers to do the work, and that the refusal and neglect complained of, had grown out of such a state of facts, a very different case for the exercise of the discretion of the court, as well as of the attorney-general, would have been presented. Whether such a state of facts could have been shown or not we cannot judicially know. The present case must stand or fall upon the papers before us; and we are not to be swerved from thus disposing of it by any suggestion of facts not in the case which might lead, if they ap- peared, to some other result. The most that can be found from the petition and affidavits is that the skilled freight handlers of the re- spondents refused to work without an increase of wages to the amount of three cents per hour; that the respondents refused to pay such increase; that the laborers then abandoned the work, and that the respondents did not procure other laborers competent or sufficient in number to do the work, and so the numerous evils complained of fell upon the public, and were continuous until the people felt called upon to step in and seek to remedy them by proceedings for mandamus. These facts reduce the question to this: Can railroad corporations refuse or neglect to perform their public duties upon a controversy with their employees over the cost or expense of doing them? We think this question admits of but one answer. The excuse has in Jaw no validity. The duties imposed must be discharged at whatever cost. They cannot be laid down or abandoned or suspended without the leyally expressed consent of the State. The trusts are active, poten- tial, and imperative and must be executed until lawfully surrendered, otherwise a public highway of great utility is closed or obstructed without any process recognized by law. This is something no public officer charged with the same trusts and duties in regard to other pub- lic highways can do without subjecting himself to mandamus or indict- ment. We are not able to perceive the difficulties that embarrassed the court below as to the form of a writ of mandamus in such cases. It is true the writ must be specific as to the thing to be done; but the thing to be done in this case was to resume the duties of carriers of the goods and property offered for transportation ; that is, to receive, carry, and deliver the same under the existing rules and regulations as the business had been accustomed to be done. There was no necessity to specify what kind of goods should be first received and carried, or whose goods, or indeed to take any notice of the details of the estab- lished usages of the companies. It was the people who were invoking the writ on their own behalf and not for some private suitor, or to re- TOLEDO, ETC. RY. CO. ¥. PENNSYLVANIA CO. 59 dress individual injuries. The prayer of the petition indicated the proper form of the writ. Upon the return to the writ all questions, whether what has been done is a sufficient compliance with its com- mand, may properly arise and become a subject of further considera- tion. People ex rel. Green v. D. and C. R. R. Co., 58 N. Y. 152, 160, 161. ‘They need not have been anticipated. It is suggested that the time has now passed when such a writ can be of any valuable effect. This is probably so, but we are governed by the record in disposing of the appeal and not by subsequently occurring events. The appellants labor now under a judgment alleged to be injurious to the rights they possessed when it was pronounced, and harmful to them as a precedent. If erroneous they are entitled to have that judg- ment reversed, and to be indemnified, in the discretion of the court, for the costs incurred on the appeal made necessary by the error. We think the court below had power to award the writ, and that upon the case presented it was error to refuse it. The order should be reversed, with the usual costs, and an order entered, if deemed advisable from any existing circumstances by the attorney-general, awarding the writ. Danrets and Brapy, Jd., concurred. Orders reversed, with ten dollars costs and disbursements in each case. TOLEDO, A. A. AND N. M. RY. CO. v. PENNSYLVANIA CO. Crecurr Court or THe Unirep States, 1893. [54 Fed. Rep. 746.7] In equity. Bill by the Toledo, Ann Arbor and North Michigan Rail- way Company against Albert G. Blair, Jacob S. Morris, the Pennsylva- nia Company, the Lake Shore and Michigan Southern Railway Company, and others, to enjoin respondents from refusing to extend to complainant the same equal facilities as to others for the exchange of interstate traffic. The injunction was issued, served upon the Lake Shore and Michigan Southern Railway Company, and brought to the notice of its employees by publication. Heard on application by said company for an order attaching Clark, Case, Rutger, and Lennon, its employees, for contempt in violating the injunction. Granted as to Lennon. Ricks, Disrricr Juper. . . . This order was served upon the several defendants, and the Lake Shore and Michigan Southern Railroad, through its general superintendent, Mr. Canniff, made publication of the 1 Compare: Lake Shore, &c. R. R. v, Bennett, 89 Ind. 457 ; Indianapolis, &e. R. R. v. Juntgen, 10 Ill. App. 295; Geismer v. Lake Shore &c. R. R., 102 N. Y. 563; Hall v. Pennsylvania R. R., 14 Phila. 414, — Ep. 2 This case is abridged. — Ep. 60 TOLEDO, ETC. RY. CO. v. PENNSYLVANIA CO. order in such way as to bring it to the attention of its employees, and particularly to those of its engineers driving engines on the Detroit division, where the interchange of cars with the Ann Arbor road was frequent. On the 18th of March an affidavit made by the superin- tendent of the Michigan division of the Lake Shore and Michigan Southern Railroad was filed, alleging that certain of its employees, while in the service of said company, and with full notice and knowl- edge of the injunction theretofore made, had refused to obey the orders of the court, and upon that affidavit an application was made by said company for an attachment to issue against the employees so named, ‘Cas being in contempt of the restraining order of the court.” The court declined to make the order in the form applied for, but directed one to he entered requiring the engineers and firemen named to appear in court forthwith, and show cause why they should not be attached for contempt. This is the usual and well-established practice in this dis- trict, as numerous precedents in the last ten years will show. Before proceeding to pass upon the evidence as to whether the men now before the court under charges for contempt are guilty or not, it may be profitable to consider the general principles of law applicable to the duties with which the accused were charged by the orders issued to them and to their employers. They were in the employ of the de- fendant the Lake Shore and Michigan Southern Railroad at the time the orders in this case were made, compelling it to receive from the Ann Arbor road all interstate freight it might tender. The testimony shows that the terms of this order were made known to the employees gen- erally, and that they were thoroughly advised of its scope and manda- tory provisions. That their employer was obligated, both under the general provisions of the interstate commerce law and under this order of the court, to receive and haul all interstate freight, must have been known to them. They must also be held to have known that the pen- alties of the law were severe in case their employer violated either the law or the order of the court. Holding to that employer, so engaged in this great public undertaking, the relation they did, they owed to him and to the public a higher duty than though their service had been due to a private person. They entered its service with full knowledge of the exacting duties it owed to the public. They knew that if it failed to comply with the laws in any respect severe penalties and losses would follow for such neglect. An implied obligation was therefore assumed by the employees upon accepting service from it under such conditions that they would perform their duties in such manner as to enable it not only to discharge its obligations faithfully, but also to pro- tect it against irreparable losses and injuries and excessive damages by any acts of omission on their part. One of these implied conditions on their behalf was that they would not leave its service or refuse to perform their duties under circumstances when such neglect on their part would imperil lives committed to its care, or the destruction of property involving irreparable loss and injury, or visit upon it severe TOLEDO, ETC. RY. CO. v. PENNSYLVANIA CO. 61 penalties. In ordinary conditions as between employer and employee, the privilege of the latter to quit the former’s service at his option cannot be prevented by restraint or force. The remedy for breach of contract may follow to the employer, but the employee has it in his power to arbitrarily terminate the relations, and abide the consequences. But these relative rights and powers may become quite different in the case of the employees of a great public corporation, charged by the law with certain great trusts and duties to the public. An engineer and fireman, who start from Toledo with a train of cars filled with pas- sengers destined for Cleveland, begin that journey under contract to drive their engine and draw the cars to the destination agreed upon. Will it be claimed that this engineer and fireman could quit their em- ployment when the train is part way on its route, and abandon it at some point where the lives of the passengers would be imperilled, and the safety of the property jeopardized ? The simple statement of the proposition carries its own condemnation with it. The very nature of their service, involving as it does the custody of human life, and the safety of millions of property, imposes upon them obligations and duties commensurate with the character of the trusts committed to them. They represent a class of skilled laborers, limited in number, whose places cannot always be supplied. The engineers on the Lake Shore and Michigan Southern Railroad operate steam engines moving over its different divisions 2,500 cars of freight per day. These cars carry supplies and material, upon the delivery of which the labor of tens of thousands of mechanics is dependent. They transport the products of factories whose output must be speedily carried away to keep their em- ployees in labor. The suspension of work on the line of such a vast railroad, by the arbitrary action of the body of its engineers and fire- men, would paralyze the business of the entire country, entailing losses, and bringing disaster to thousands of unoffending citizens. Contracts would be broken, perishable property destroyed, the travelling public embarrassed, injuries sustained, too many and too vast to be enumer- ated. All these evil results would follow to the public because of the arbitrary action of a few hundred men, who, without any grievance of their own, without any dispute with their own employer as to wages or hours of service, as appears from the evidence in this case, quit their employment to aid men, it may be, on some road of minor importance, who have a difference with their employer which they fail to settle by ordinary methods. If such ruin to the business of employers, and such disasters to thousands of the business public, who are helpless and inno- cent, is the result of conspiracy, combination, intimidation, or unlawful acts of organizations of employees, the courts have the power to grant partial relief, at least by restraining employees from committing acts of violence or intimidation, or from enforcing rules and regulations of organizations which result in irremediable injuries to their employers and to the public. It is not necessary, for the purposes of this case, to undertake to define with greater certainty the exact relief which such 62 SAVANNAH AND OGEECHEE CANAL CO. v. SHUMAN. cases may properly invoke ; but that the necessities growing out of the vast and rapidly multiplying interests following our extending railway business make new and correspondingly efficient measures for relief essential is evident, and the courts, in the exercise of their equity Juris- diction, must meet the emergencies, as far as possible, within the limits of existing laws, until nceded additional legislation can be secured.' Granted as to Lennon. SAVANNAH AND OGEECHEE CANAL CO. v. SHUMAN. Supreme Court or Georeia, 1893. [91 Ga. 400.] Lumpxin, J. 1. The 16th section of the charter of the Savannah, Ogeechee and Altamaha Canal Company, Dawson’s Compilation, p. 97, declares, ‘‘that the said corporation shall be obliged to keep the said cunals and locks in good and sufficient order, condition, and repair, and at all times free and open to the navigation of boats, rafts, and other water crafts; and for the transportation of goods, merchandise, and produce,” ete. Counsel on both sides referred us to the above charter as that of the plaintiff in error, which is designated in the record as the ‘‘Savannah and Ogeechee Canal Co.,” and is also thus desig- nated in the case of Habersham ¢¢ al. against this corporation in 26 Ga. 665. We therefore presume, without investigation, that the corporate name of this company was at same time properly amended by striking out *¢ Altamaha” and placing “and” before ‘*‘ Ogeechee.” It is appar- ent, without argument, that under this charter it is the imperative duty of this company to keep its canal in a navigable condition, and accord- ing to the principle of the ruling of this court in the case above cited, the performance of this duty may be enforced by mandamus. 2. It appears from the record that the defendant in error is engaged in the lumber business, and for several years had used the canal in question for transporting timber and other things, and that because of its unnavigable condition he was compelled to ship his timber by a more circuitous and expensive route. It is clear, therefore, that he is specially interested in the navigation for which this canal was char- tered, and that by the failure of the company to keep the canal nav- igable he sustains a special damage in which the general public does not share. Under these circumstances he was, in our opinion, entitled to the writ of mandamus to compel a performance by the company of the duty above mentioned. There may” be authorities to the contrary, 1 Compare: Trust Co. v. No. Pacific R. R., 60 Fed. 803 ; U.S. uv. Elliot, 62 Fed. 801; Re Phelan, 62 Fed. 803; Arthur v, Oakes, 63 Fed. 310; In re Debs, 158 U.S. 564.—Ep. SAVANNAH AND OGEECHEE CANAL CO. v. SHUMAN. 63 but the true law of this question seems to be in favor of the doctrine that a private person may, by mandamus, enforce the performance by a corporation of a public duty as to matters in which he has a special interest. See 2 Morawetz on Priv. Corp. § 1182; 4 Am. & Eng, Enc. of Law, 289, 291, and cases cited. In the case reported in 26th Ga., supra, the relief sought was granted at the instance of private per- sons, but it does not appear that the point was specially made as to their right, as such, to apply for the writ of mandamus, the position then taken by the canal company being that this writ would not lie at all. 3. In Moody v. Fleming, 4 Ga. 115, this court held that, except in a case of clear legal right, the writ of mandamus was a discretionary remedy. This view was followed in Harwell & Wife v. Armstrong et al., 11 Ga, 328, and in Loyless v. Howell, 15 Ga. 554, injunction cases, in which this court, by citing the case first above mentioned, evidently intended to put cases of mandamus and of injunction upon the same footing as to the question of discretion. The granting, or refusing, of injunctions has always been regarded as discretionary, and it seems quite clear that in cases of mandamus, it lies very largely within the discretion of the presiding judge as to whether or not the writ will, in a given case, be made absolute; and in order to reverse a judgment in a case of this kind, it would be necessary to show that the discretion of the court was abused. In the present case, the corporation answered that it had no funds, nor any means of obtaining such; and also, that it would not be prof- itable to operate the canal if it were put in navigable condition. For , the purposes of the decision below this answer was taken as true, the question of its sufficiency being raised by demurrer. So long as the corporation retains its franchise, it will not be allowed to urge as an excuse for failing to perform any duty required of it by its charter, that the same would be unprofitable. It cannot consistently keep the franchise and refuse to perform the duties incident thereto for the mere reason that such performance would be unremunerative. If the rights, privileges, and franchises granted by the charter are, in connection with the corresponding duties thereby imposed, no longer desirable, the company should simply surrender the charter. As to the validity of the other reason alleged for failing to put the canal in a navigable condition, viz.: that the company is without funds, and without means of obtaining funds, the question is by no means so clear. The writer was inclined to hold that, under section 3200 of the code (providing that mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless), the answer of the company presented a good reason for refusing in this case to’ make the writ absolute. After some reflection, however, I have yielded to the better judgment of my brethren, and concluded to agree with them in holding that the entire matter may be safely left to the discre- tion of the circuit judge. While it is quite certain that if the company 64 STATE EX REL. v. DODGE CITY, ETC. RAILWAY. has no funds now, nor any means of obtaining them, and remains per- manently in this condition, compliance with the judge’s final order will be impossible, so far as the corporation itself is concerned, there may be a change in the present condition of things, and the officers of the company may be able to find some way to raise money in order to obey the mandate of the court. At any ratc, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the court in any proceeding for contempt which may be instituted against them, we apprehend the presiding judge would take great care to see that no injustice or hardship was imposed upon them, and cer- tainly would not inflict punishment for a failure to do a thing impossible of accomplishment. This matter is not now directly before us, and we leave the question thus raised to be dealt with by the judge of the court below when it arises, if it ever does. Judgment affirmed) STATE ex ret, LITTLE v. DODGE CITY, MONTEZUMA AND TRINIDAD RAILWAY CO. Supreme Court or Kansas, 1894. [53 Kan. 329.] Horton, C. J. This proceeding bas been commenced in this court, not for the purpose of compelling the Dodge City, Montezuma and Trinidad Railway Company or any of the defendants to operate the line of that railway in Ford and Gray Counties, or any part thereof, but merely to require the defendants to repair and relay certain por- tions of the track and roadbed of the railway company. A railway company may be compelled by mandamus to perform the public duties specifically and plainly imposed upon the corporation; and, therefore, we have no doubt of the power of this court, in a proper case, to com- pel a company to operate its road, and for that purpose to compel the replacement of its track torn up in violation of its charter. The State v. Railway Co., 33 Kans. 176; City of Potwin Place ». Topeka Ry. Co., 51 Kan. 609; U. P. Ry. Co. v. Hall, 91 U. S. 348; Rex v. S. & W. Ry. Co. 2 Barn. & Ald. 646. But the granting of a writ of man- damus rests somewhat in the discretion of the court. City of Potwin Place v. Topeka Ry. Co., supra. The Montezuma railway company is insolvent. It has no cars or 1 Compare: In re R. R., 17 N, B. 667; R. v. S. W. R. RB, 2 B.& A. 646; Pacific R. R. v. Hall, 91 U. S. 348, — Ep. STATE EX REL. ¥. DODGE CITY, ETC. RAILWAY. 65 engines. Its line of road has not been operated for many months. The road cannot he operated except at a great loss. The railway company is not able to operate it, and has no funds or property which can be applied to the payment of operating expenses. A. T. Soule, the promoter of the railway company, has expended over $200,000 in the construction and operation of the road without any returns. All of its property was sold, or attempted to be sold, to the Block-Pollak company for $25,000 only. The venture of the promoter has been very unsuccessful to him. His experience, and the other parties invest- ing, in constructing and operating this railway has been most unfortu- nate. No one connected with the railway corporation has realized any personal benefit from any bond, mortgage, or subsidy of the road. The Rock Island road, which, by an arrangement with the Montezuma company, ran its trains over the road from the time of its completion until May, 1893, and which has better facilities for operating the road than any other company or person, will not take the road as a gift and operate it. It seems to be conclusively shown that all the receipts to be derived from operating the road will not pay the operating expenses, not taking into account the repairs of the road and the taxes. The contention on the part of the plaintiff is, that as the railway was sold to EK. F. Kellogg for Wilson Soule by a receiver, and not by the sheriff of Ford County, the sale is absolutely void. If this be true, then there is no legal duty upon the part of Wilson Soule to repair or operate the road. If, however, the sale is not absolutely void, we do not think, upon the showing made, that Wilson Soule, as a private per- son, ought to be compelled to operate the road. The Block-Pollak Iron Company cannot, under its conditional purchase of the super- structure, be compelled to repair or operate the road. There is no legal duty upon any of the other defendants to repair the road. There- fore, the question is, whether the court will compel, or attempt to com- pel, the railway company, a bankrupt corporation, to relay the track and repair the roadbed. The court will not make a useless or futile order. It will not do a vain thing. The order prayed for should only be issued in the interest of the public. If the track is replaced, there is no reasonable probability that the road will be or can be operated. Ifa railway will not pay its mere operating expenses, the public has little interest in the operation of the road or in its being kept in repair. Mor. Priv. Cor. 1119; Commonwealth v. Fitchburg Ry. Co., 12 Gray, 180; O. & M. Ry. Co. v. People, 830 Am. & Eng. Ry. Cases [Tll.], 509 ; People v. A. & Vt. Ry. Co., 24 N. Y. 261. The average life of cedar ties — the kind used on this road —is from three to five years. All the ties laid in 1888 will soon be so much de- cayed as to be worthless. A large part were worthless when the track was taken up. If the track were relaid. the road would be in no reasonable condition to be used, unless new ties were furnished, and these in a few years would again become decayed and useless. The use of the road was abandoned before any part of the track was torn 5 66 STATE EX REL. v. CONSUMERS GAS TRUST CO. up. If the track were replaced, it would be of no immediate public benefit — possibly of no future benefit — because, if the railway is not operated, the mere existence of a road, not in use, is not beneficial to any one. The peremptory writ prayed for will be denied, with costs. All the justices concurring STATE ex rEL. WOOD v. CONSUMERS GAS TRUST CO. Supreme Court oF Inpiana, 1901. [157 Ind. 345.2] Manpamvs by the State, on relation of Ann E. Wood, against the Consumers Gas Trust Company to compel defendant to permit relatrix to use natural gas from its main. From a judgment for defendant, plaintiff appeals. Reversed. Haptey, J... . The things requested and commanded of the ap- pellee were to lay a service-pipe from its main in Bellefontaine Street to the property line in front of the relatrix’s house, and to permit her to use the gas. The mandate is not to furnish the relatrix with an adequate or any definite amount of gas, but the obvious force and limitations of the request, and order, are to require the appellee to furnish her with the necessary means, and permit her to use the gas upon the same terms that other inhabitants of the city are permitted to use it. Is it the legal duty of appellee to do these things? Man- -damus is a proper remedy to compel appellee to furnish gas to the re- latrix if it is shown that she is entitled to it. Portland, &c. Co, v. State ex rel., 135 Ind. 54, 21 L. R. A. 639. The appellee is a corporation authorized by the legislature to exer- ‘cise the right of eminent-domain (Acts 1889, p. 22), and licensed by ‘the city of Indianapolis to lay pipes through its streets and alleys for the transportation and distribution of natural gas to its customers. These rights, which involve an element of sovereignty, and which can exist only by grant from the public, are rooted in the principle that their exercise will bestow a benefit upon that part of the public, in whose behalf the grant is made, and the benefit received by the citizens is the adequate consideration for the right and convenience surren- dered by them. The grant thus resting upon a public and reciprocal relation, imposes upon the appellee the legal obligation to serve all 1 Compare : In re Bristol, &e. R. R., 3 Q. B. D. 10; City v. Topeka R. R., 33 Kans. 176; C. v. Fitchburg R. R., 12 Gray, 180; P. v. Vt. R. R., 24 N. Y. 261.— Ep. 2 This case is abridged. — Ep, STATE EX REL. v. CONSUMERS GAS TRUST CO. 67 members of the public contributing to its asserted right, impartially, and to permit all such to use gas who have made the necessary arrange- ments to receive it, and apply therefor, and who pay, or offer to pay, the price, and abide the reasonable rules and regulations of the com- pany. Portland, &c. Co. v. State ex ref, 185 Ind. 54; Coy v. Indian- apolis Gas Co., 146 Ind. 655, 36 L. R. A. 535; Haugen v. Albina, &c. Co., 21 Ore. 411, 28 Pac. 244, 14 L. R. A. 424; People v. Manhattan Gas Co., 45 Barb. 136; Crumley v. Watauga Water Co., 99 Tenn. 420, 41S. W. 1058; American, &c. Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447; State ex rel. v. Butte City Water Co., 18 Mont. 199, 44 Pac. 966, 32 L. R. A. 697, 56 Am. St. 574. But, without controverting the law as declared in the foregoing cases, or claiming exemption from the rule, it is answered as a justification for denying the relatrix the use of gas, that the corporation was or- ganized as a voluntary enterprise in the general interest of the people of Indianapolis; that its purpose was not the making of money for any one, but to furnish gas to consumers in the city at the lowest pos- sible rate, and that the supply of gas the corporation has on hand, or that it may possibly procure, is insufficient to supply what customers it has now connected with its mains, in severely cold weather, and that to permit the relatrix to use gas would be to further reduce the already insufticient supply. Will these facts relieve the appellee of its duty to permit the relatrix to use its gas? If they will, then it must be true that the relatrix is not entitled to share in the gas furnished by appellee to the inhabitants of the city, because her participation will reduce the possible supply below the full requirements of those already being served. : It is proper to observe that the present consumers of appellee’s gas are not here complaining of the quantity of gas received by them, or protesting against the admission of the relatrix to a share of the sup- ply, and it is difficult to see how the appellee, while continuing to assert and exercise its extraordinary rights, may set up its own default or probable default to others as a legal excuse for the non-performance of its duty to the relatrix. The legal effect of the answer is that the relatrix shall have no gas because ber neighbors, in common right, have none to spare. It is ad- mitted, because not denied, that the relatrix is a member of that part of the public which appellee has engaged to serve. As such she has borne her part of the public burdens. She has rendered her share of the consideration. Bellefontaine Street in front of her house has been dug up and her property made servient to the use of appellee in laying its pipes, and in carrying forward its business, and her right to use the gas, and to share in the public benefit, thus secured, whatever it may amount to, is equal to the right of any other inhabitant of the city. The right to gas is held in common by all those abutting on the streets in which appellee has laid its pipes, or it is held of right by none. The legislature alone can authorize the doing of the things 68 STATE EX REL. v. CONSUMERS GAS TRUST CO. done by appellee, and this body is prohibited by the fundamental law from granting a sovereign power to be exercised for the benefit of a class, or for the benefit of any part of the public less than the whole residing within its range. Cooley’s Con. Lim. (6th ed.), 651, and cases cited. Appellee’s contract is with the State, and its extraordinary powers are granted in consideration of its engagement to bring to the commu- nity of its operations a public benefit; not a benefit toa few, or to favorites, but a benefit equally belonging to every citizen similarly situated who may wish to avail himself of his privilege, and prepare to receive it. There can be no such thing as priority, or superiority, of right among those who possess the right in common. That the bene- ficial agency shall fall short of expectation can make no difference in the right to participate in it on equal terms. Soif appellee has found it impossible to procure enough gas fully to supply all, this is no sufti- cient reason for permitting it to say that it will deliver all it has to one class to the exclusion of another in like situation. It is immaterial that appellee was organized to make money for no one, but to supply gas to the inhabitants of Indianapolis at the lowest possible rate. It has pointed to us no special charter privilege, and under the law of its creation, certain it is, that its unselfish purpose will not relieve it of its important duty to the public. The principle here announced is not new. Itis as old as the common law itself. It has arisen in a multi- tude of cases affecting railroad, navigation, telegraph, telephone, water, gas, and other like companies, and has been many times discussed and decided by the courts, “and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which is ‘affected with a public interest, it must supply all alike, who are like situated, and not discriminate in favor of, nor against any.” 45 Cent. L. J. 278; Haugen wv. Albina, &e. Co., 21 Ore. 411; Olmsted v. Proprietors, &c., 47 N. J. L. $11; Stern v. Wilkesbarre Gas Co., 2 Kulp. 499; Chicago, &c. Co. v. People, 56 Jil. 865; 8 Am. Rep. 690; Nebraska Tel. Co. v. State, 55 Neb. 627, 634; Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 638 Am. St. 841; State ew rel. v. Delaware, &c. R. Co., 48 N. J. L. 55, 2 Atl. 803, 57 Am. Rep. 543. In a further material sense the discrimination asserted by the answer becomes injurious to the relatrix. It isa matter of common knowledge that natural gas is a cheap and convenient fuel, and for many reasons is eagerly sought by those who may reasonably obtain it. It is there- fore, of like knowledge, that in a community where it is supplied to some premises, and denied to others, the effect is to enhance the value of such parcels as have it, by making it more desirable and_ profitable to occupy them, and to depreciate the value of such parcels as are ex- cluded from its use. It is very clear that appellee may not, under the guise of administering a public benefit, exercise a public power, to take the property of one and confer it upon another. STATE EX REL. v. CONSUMERS GAS TRUST CO. 69 The principal argument of appellee’s counsel is, that not having suf- ficient gas to supply its present customers, and having exhausted every available means for increasing its supply, it is therefore impossible for it to perform its public duty, and mandamus will not lie to compel an attempt to perform a duty impossible of performance. We concede in the fullest terms that mandamus will not lie to require an attempt to do a thing shown to be impossible. But this is not the question we have before us. The relatrix is not asking, nor the court commanding that the company attempt to increase its supply of gas. ‘he relatrix is only seeking to be permitted to share in the quantity of gas the com- pany has at its command, whatever that may be, on the same terms that others are permitted to use it. There is in the request of the re- latrix nothing unreasonable, and nothing impossible of performance. The whole question comes to this. The appellee under public grant for the dispensation of a public good, has taken possession of certain streets and alleys in Indianapolis for the distribution and sale of natural gas to those abutting on its lines. The relatrix owning a lot abutting on one of the appellee’s lines erected thereon a dwelling-house, and upon the faith of being permitted to use the gas has piped her house, and constructed her heating apparatus of a form, suitable only to the use of natural gas as a fuel, which will be worthless if natural gas is denied her. She has in common with other abutters been subjected to the inconvenience of having the street in front of her house dug up and had her property occupied with the company’s pipes. She has made all necessary arrangements to receive the gas, has tendered ap- pellee its usual charges, has offered to abide by its reasonable rules and regulations, and we perceive neither legal reason, nor natural justice, in denying her the rights accorded to those of her neighbors who have contributed in the same way to appellee’s enterprise. The second paragraph of answer was insufficient, and the demurrer thereto should have been sustained. Judgment reversed, with instructions to sustain the demurrer to the second paragraph of the return to the alternative writ of mandate. 70 ALLNUTT v. INGLIS. ALLNUTT v. INGLIS. Kine’s Bencu, 1810. [12 East, 527.1] Lorp ELLenzoroveu, C.J. 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 take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. The question then is, whether circumstanced as this company is by the combination of the warehous- ing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing? And according to him, wherever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable com- pensation 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 immod- erate rate; but the duties must be reasonable and moderate, though settled by the king’s license or charter.” And then he assigns this rea- son, “for now the wharf and crane and other conveniences 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 Geo. 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 mer- 1 This case is abridged. — Ep. MUNN ¥. ILLINOIS. 71 chants 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 importer of certain goods enumerated in table A. to secure the same in the West India dock warehouses: and then by sect. 2 other goods enumerated in table B. may in like manner be secured in the London dock warchouses.. And there are no other places at present lawfully authorized for the warehousing of wines (such as were im- ported 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 warehouses 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 warehouses, though they might be in the hands of one or two others besides the company’s. Here then the company’s warehouses were invested with the monopoly of a public privilege, and therefore they must by law confine themselves to take reasonable rates for the use of them for that purpose. If the crown should hereafter think it advisable to extend the privilege more generally to other persons and places, so far as that the public will not be restrained from exercising a choice of warehouses for the purpose, the company may be enfran- chised from the restriction which attaches upon a monopoly: but at present, while the public are so restricted to warehouse their goods with them for the purpose of bonding, they must submit to that restric- tion; and it is enough that there exists in the place and for the com- modity 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 ware- houses are the only places which can be resorted to for this purpose, they are bound to let the trade have the use of them for a reasonable hire and reward. MUNN »v. ILLINOIS. Surreme Court oF THE Unirep States, 1876. [94 U. S. 113.1] On the twenty-ninth day of June, 1872, an information was filed in the Criminal Court of Cook County, Il., against Munn & Scott, alleg- ing that they were, on the twenty-eighth day of June, 1872, in the city 1 This case is abridged.— Ep. 72 MUNN v. ILLINOIS. of Chicago, in said county, the managers and lessees of a public ware- house, known as the ‘‘ North-western Elevator,” in which they then and there stored grain in bulk, and mixed the grain of different owners together in said warehouse ; that the warehouse was located in the city of Chicago, which contained more than one hundred thousand inhab- itants; that they unlawfully transacted the business of public .ware- housemen, as aforesaid, without procuring a license from the Circuit Court of said county, permitting them to transact business as public warehousemen, under the laws of the State. To this information a plea of not guilty was interposed. 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 they 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 January 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, Ill, 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 Cireuit Court a bond to the people of the State of Illinois, as required by sects. 8 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. MUNN ¥, ILLINOIS. 13 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 Warre delivered the opinion of the court. The question to be determined in this case is whether the gencral 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 rey- 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 any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the cqual 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 74 MUNN v. ILLINOIS. they 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 terms or by implication reserved to themselves. Subsequently, 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 body 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 ledas. 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 doing 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 ¥. ILLINOIS. 75 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 they 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 by 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. Property 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 already 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 quantity [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 quantity 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 by steam, into the bins prepared for its reception, and elévated from the bins, by a like process, into the vessel or car which is to carry it on. ... In this way the 76 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 may 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 bnsiness 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. They 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 certainly “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. 77 Certainly, if any business can be clothed “with a public interest, and cease to be juris privatt 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 publie warehouse, &c., might be reached by the cars on their railroads. This indicates very clearly that during the twenty years 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 expediency. 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 tu coinpel 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 78 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 hackney- 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 customary 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 ebarge, 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 of statutes is to remedy defects in the common law as they 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 ‘‘ deny to any person within its PEOPLE v. BUDD. 79 jurisdiction the equal protection of the laws.” Certainly, it cannot he 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. Mr. Justice Fierp and Mr. Justice Srrone dissented. PEOPLE v. BUDD. Court or Appeats, New York, 1889, [117 NW. ¥.12] AppEat 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. Anprews, 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 any 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 v. Paige, 80 Ky. 539; Dock Co. v. Garrity, 115 Ill. 155; State v. Edwards, 86 Me. 105; R. R. v. Stock Yard Co., 45 N. J. Eq. 50; Ryan v. Terminal Co., 102 Tenn 119; Bar- rington v. Dock Co., 15 Wash. 175. — Ep. 2 This case is abridged. — Ep. 80 PEOPLE v. BUDD. * manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transpor- tation Company, for elevating, raising, and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator the carrier was charged and compelled to pay $4 for each thousand bushels. The shoveling of grain to the leg of an elevator at the port of Buffalo is now performed, pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the Shovelers’ Union, who pay the elevator $1.75 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 Hate, 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 we recur to the origin and purpose of this prerogative, it will be seen that it.was vested in the king as a means by which a business in which the whole community were interested could be regulated. In other words, it was simply one mode of exercising a prerogative of government — that is to say, through the sovereign instead of throngh Parliament —in a matter of public concern. This and similar prerogatives were vested in the king for public purposes, and not for his private ad- vantage or emolument. Lord Kenyon in Rorke »v. Dayrell, 4 Term R. 410, said: ** The prerogatives [of the crown] are not given for the PEOPLE v. BUDD. 81 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 Hats, in one of the passages referred to, in stating the reason why a man may not set up a ferry without a charter from the king, says: ‘‘ Because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation.” The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord Hae 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 Hats 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 Hatz, 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 bound to carry for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and, even where the price of carriage was fixed by the contract or conven- tion of the parties, the contract was not enforceable beyond the point 6 82 i PEOPLE ¥. BUDD. of reasonable compensation. From time to time statutes have been enacted in England and in this country fixing the sum which should be charged by carriers for the transportation of passengers and prop- erty, and the validity of such legis'ation has not been cuestioned. But the business of common carriers until recent times was conducted almost exclusively by individuals for private emolument, and was open to every one who chose to engage in it. The state conferred no fran- chise, and extended to common carriers no benefit or protection, except that general protection which the law affords to all persons and property within its jurisdiction. The extraordinary obligations imposed upon carriers, and the subjection of the business to public regulation, were based on the character of the business; or, in the language of Sir William Jones, upon the consideration “‘ that the calling is a public employment.” Jones, Bailm. App. It is only a public employment in the sense of the language of Lord Hatz, that it was ‘‘ affected with a public interest,” and the imposition of the character cf 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 dec’ared 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. wv. 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; Earn, J., in People «. Railroad Co., 70 N. Y. 569; Rueer, C. J., in Railroad Co. v. Railroad Co., 111 N. Y. 132. PEOPLE v. BUDD. 83 The. power of regulation in these cases does not turn upon the fact that the entities affected by the legislation are corporations deriving their existence from the state, but upon the fact that the corporations are common carriers, and therefore subject to legislative control. The state, in constituting a corporation, may prescribe or limit its powers, and reserve such control as it sees 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. Its property is secured to it by the same constitutional guaranties, and in the management of its prop- erty and business is subject to regulation by the legislature to the same extent only as natural persons, except as the power may be extended by its charter. The mere fact of a corporate character does not extend the power of legislative regulation. For illustration, it could not justly be contended that the act of 1888 would be a valid exercise of legislative power as to corporations organized for the pur- pose of elevating grain, although invalid as to private persons con- ducting the same business. The conceded power of legislation over common carriers is adverse to the claim that the police power does not in any case include the power to fix the price of the use of private property, and of services’ connected with such use, unless there is a legal monopvly, 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 carviers is a sur- vival of that class of legislation which in former times extended to the details of personal conduct, and assumed to regulate the private affairs and business of men in the minutest particulars. This is true. But it has survived because it was entitled to survive. By reason of the changed conditions of society, and a truer appreciation of the proper functions of government, many things have fallen out of the range of the police power as formerly recognized, the regulation of which by legislation would now be regarded as invading personal liberty. But society could not safely surrender the power to regulate by law the business of common carriers. Its value has been infinitely increased by the conditions of modern commerce, under which the carrying trade of the country is, to a great. extent, absorbed by cor- porations, and, as a check upon the greed of these consolidated in- ' terests, the legislative power of regulation is demanded by the most imperative public interests. [he same principle upon which the con- trol of common carriers rests has enabled the state to regulate in the public interest the charges of telephone and telegraph companies, and to make the telephone and telegraph, those important agencies of commerce, subservient to the wants and necessities of society. These regulations in no way interfere with a rational liberty, — liberty regulated by law. 84 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 init. The extent of the business is shown by the facts to which we have referred. A large proportion of the surplus cereals of the country passes through the elevators at Buffalo, and finds its way through the Erie Canal and Hudson River to the seaboard at New York, from whence they are distributed to the markets of the world. The business of elevating grain is an incident to the busi- ness of transportation. The elevators are indispensable instrumen- talities in the business of the common carrier. It is scarcely too much to say that, in a broad sense, the elevators perform the work of carriers. They are located upon or adjacent to the waters of the state, and transfer from the lake vessels to the canal-boats, or from the canal-boats to the ocean vessels, the cargo of grain, and thereby perform an essential service in transportation. It is by means of the elevators that transportation of grain by water from the upper lakes to the seaboard is rendered possible. It needs no argument to show that the business of elevating grain has a vital relation to com- merce in one of its most important aspects. Every excessive charge made in the course of the transportation of grain is a tax on com- merce, and the public have a deep interest that no exorbitant charges shall be exacted at any point upon the business of transportation. The state of New York, in the construction of the Erie Canal, ex- hibited its profound appreciation of the public interest involved in the encouragement of commerce. The legislature of the state, in entering upon the work of constructing a water-way between Lake Erie and the Atlantic Ocean, sets forth in the preamble of the orig- inating act of 1817 its reasons for that great undertaking. ‘‘ It will,” the preamble says, ‘‘promote agriculture, manufactures, and commerce, mitigate the calamities of war, and enhance the bless- ings of peace, consolidate the Union, and advance the prosperity and elevate the character of the United States.” In the construction and enlargement of the canal the state has expended vast sums of money, raised by taxation; and finally, to still further promote the interests of commerce, it has made the canal a free highway, and maintains it by a direct tax upon the people of the state. The wise forecast and statesmanship of the projectors of this work have been amply demonstrated by experience. It has largely contributed to the power and influence of the state, promoted the prosperity of the people, and to it, more perhaps than to any other single cause, is it owing that the city of New York has become the commercial centre of the Union. Whatever impairs the usefulness of the canal as a highway of com- merce involves the public interest. ‘The people of New York are greatly interested to prevent any undue exactions in the business of transportation which shall enhance the cost of the necessaries of life, PEOPLE v. BUDD. 85 or force the trade in grain into channels oxtside 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 Jewert, 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. 86 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 Cuase, 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 Hats, or that the case does not fall within the principle which permits the legislature to regulate the business of common carriers, ferrymen, innkeepers, hackmen, and the interest on the use of money? It seems to us that speculative, if not fanciful, reasons have been assigned to account for the right of legislative regulation in these and other cases. It is said that the right to regulate the charges of hackmen springs from the fact that they are assigned stands in the public streets; that the legislature may regulate the toll on ferries because the right to establish a ferry is a franchise, and therefore the business is subject to regulation; that the right to regulate wharf- age rested upon the permission of the sovereign to extend wharves into the beds of navigable streams, the title to which was in the sovereign; that the right to regulate the interest on the use of money sprung from the fact that taking interest was originally illegal at common law, and that where the right was granted by statute it was taken subject to regulation by law. ‘The plain reason, we think, why the charges of hackmen and ferrymen were made subject to public regulation is that they were common carriers. The reason assigned for the right to regulate wharfage in England overlooks the fact that the title to the beds of navigable streams was frequently vested in a subject, and was his private property, subject to certain public rights, as the right of navigation, and no distinction as to the power of public regulation is suggested in the ancient books between wharves built upon the beds of navigable waters, the title to which was in the sovereign, and wharves erected upon navigable streams, the beds of which belonged to a subject. The obligation of the owner of the only wharf in a newly erected port to charge only reas- onable wharfage is placed by Lord Ha.e 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 probibition by the ancient common law to take interest at all was a regulation, and this manifestly did not rest upon any benefit con- ad PEOPLE v. BUDD. 87 ferred on the lenders of money. It was a regulation springing from -a supposed public interest, and was peculiarly oppressive on a certain class. A law prohibiting the taking of interest on the use of money would now be deemed a violation of a right of property. But the material point is that the prohibition, as well as the regulation, of interest, was based upon public policy, and the present conceded right of regulation does not have its foundation in any grant or privilege conferred by the sovereign. The attempts made to place the right of public regulation in these cases upon the ground of special priv- ilege conferred by the public on those affected cannot, we think, be supported. The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation. We rest the power of the legislature to control and regulate elevator charges on the nature and extent of the business, the existence of a virtual monopoly, the benefit derived from the canal, creating the business and making it possible, the interest to trade and commerce, the rela- tion of the business to the prosperity and welfare of the state, and the practice of legislation in analogous cases. ‘These circumstances collectively create an exceptional case, and justify legislative regulation. The case of Munn 2%. 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 sdle 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 ou 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 88 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 very idea of government, by which persons and property may be affected without transgressing constitutional guaranties, there is a restraining and corrective power in public opinion which is a safe- guard of tremendous force against unwise and impolitic legislation, hampering individual enterprise, and checking the healthful stimulus of self-interest, which are the life-blood of commercial progress. The police power may be used for illegitimate ends, although no court can say that the fundamental law has been violated. There is a remedy at the polls, and it is an efficient remedy if, at the bottom, the legislation under it is oppressive and unjust. The remedy by taking away tbe 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 BRASS v. NORTH DAKOTA. 89 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 any reason- able doubt can be indulged in favor of its constitutionality. We are of opinion that the statute of 1888 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.* BRASS v. NORTH DAKOTA ex rev. STOESER. Supreme Court or tae Unirep Srares, 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 County, North Dakota, a petition for an alternative writ of mandamus. The District Court granted an alternative writ of mandamus (as follows)... . My. Justice Sutras ... 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. — Ep. 2 This case is abridged. — Ep, 90 BRASS 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 twenty 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 guilty 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 year in the state peni- tentiary, 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 sufficientiy 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. 91 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 aruse 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 necessary. 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 restricted to the city of Chi- cago in the one case, and to the cities of Butfalo, 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, it 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 by 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 asa practical monopoly, to which shippers and owners of grain are compelled to resort. The surroundings in an agricultural 92 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 every 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 thé law in question, so we would not be justified in imputing an improper exercise of discretion to the legislature of North Dakota. It may 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 propriety of the laws which they were considering, and that some of the reasons given for sustaining them went rather to their expediency than to their validity. Such efforts, on the part of judges, to justify to citizens the ways 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. sd LOWRY v, TILE, MANTEL AND GRATE ASSOCIATION. 93 Another objection to the law is found in its provision that the ware- houseman shall insure the grain of others at his own expense. ‘I'Lis 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 wholly 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 satisfy us that any sulid 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 Freip, Mr. Justice Jackson, and Mr. Justice Wurre, dissenting.? LOWRY v. TILE, MANTEL AND GRATE ASSOCIATION. Crrcurr Court or tHE Unitep States, 1899. [98 Fed. 817.2] Morrow, Circuit Judge. This is an action at law brought to recover damages alleged to have been sustained by plaintiffs by reason of in- jury to their business caused by the forming of an association by de- fendants claimed to be within the prohibitory provisions of the act of Congress of July 2, 1890, commonly known as the “Sherman Anti- trust Act.” ‘The amended complaint alleges: That in the years 1896 and 1897 there were in San Francisco and the other said cities numer- ous persons engaged in the wholesale and retail business of selling tiles, and in the placing and laying of them. That defendants, with intent to form a contract, trust, and conspiracy in restraint of trade and commerce between the State of California and the States of Indiana, Kentucky, New Jersey, Pennsylvania, and Ohio, for the pur- pose of controlling the output and regulating the price of these com- 1 Compare: Cotting v. Goddard, 22 Sc. Rep. 30; Stock Co. v. Exchange, 143 I. 239; Ladd v. Cotton Press, 53 Tex. 172. — Ep. 2 This case is abridged. — Ep. 94 LOWRY v. TILE, MANTEL AND GRATE ASSOCIATION. modities and monopolizing the said trade, combined and conspired to monopolize the grate, tile, and mantel importations and trade and com- merce from other States to and with the State of California, to the ex- tent of the tiles, grates, and mantels that could be used in the State of California in the erection and construction of dwellings and_ build- ings, and so conspired to raise the price of these conmmodities in the California market, and for this purpose on or about the day of January, 1898, formed an organization and adopted a constitution and by-laws, which constitution and by-laws are now in effect. That the said constitution and by-laws provided that no sales and deliveries, or contracts for the sale or delivery, or the placing of tiles, grates, or mantels, will be made by the manufacturers thereof to any person deal- ing in these commodities, unless such person belong to the said unin- corporated association, and shall pay or cause to be paid dollars to that organization, and bind themselves to abide by its constitution and by-laws ; that is to say, that no one who is a member of that organ- ization shall sell to, or deal with or deliver to, any person engaged in the business of buying, selling, or placing tiles, grates, or mantels in the cities of San Francisco, Oakland, Sacramento, and San José, and other cities in this State, unless such person shall become a member of the said unincorporated organization, and shall agree that in their gen- eral business of selling such commodities to the general public they shall sell them at such prices as may be arbitrarily fixed by the said unincorporated association. That, prior to the formation of that organ- ization, plaintiffs were doing a large business in selling tiles, mantels, and grates, and were making an annual profit of about $5,000. ‘That, about the time of the formation of said association, plaintiffs had placed with defendants certain orders for tiles; but these orders were not filled. but were cancelled, by the parties with whom they had been placed, for the reason that plaintiffs did not belong to, and would not join, said organization. That, about the time of the formation of the association, plaintiffs had placed orders for tiles with the Columbia Encaustic Tile Company, which cancelled plaintiffs’ orders because plaintiffs did not belong to the Tile, Mantel and Grate Association. That said organization is within the statute of the 51st Congress, passed and approved July 2, 1890, known as “ Chapter 647, Supple- ment to the Revised Statutes at Large of the United States.” That, by reason of the monopoly of such association, plaintiffs are damaged in the sum of $10,000. Plaintiffs pray for treble the sum of $10,000, in accordance with the provisions of the above-named act, and for further equitable relief. The ground of demurrer was that the amended com- plaint did not state facts sufficient to constitute a cause of action. The case of U.S. v. Jellico Mountain Coal & Coke Co. (C. C.), 46 Fed. 432, 12 L. R. A. 753, is in point. The action was brought un- der the antitrust act against the members of the Nasliville Coal Ex- change. The purpose of the agrcement in that case was to establish the price of coal at Nashville, and to change the same from time to LOWRY Uv. TILE, MANTEL AND GRATE ASSOCIATION, 95 time. Members found guilty of selling coal ata less price than the price fixed by the exchange, either directly or indirectly, were fined two cents per bushel and $10 for the first offence, and four cents per bushel and $20 for the second offence. Owners or operators of mines were not to sell or ship coal to any persons, firms, or corporations in Nashville who were not members of the exchange, and dealers were not to buy coal from any one but a member of the exchange. The court, commenting upon the agreement of this association of coal deal- ers, said: “This clearly indicates the purpose of the association to be to con- trol the price of coal in the Nashville market used in manufacturing and in steamboats whenever it could; that the mines of coal tributary to Nashville were all expected to become members of the exchange, whereupon the prices of coal could be fixed absolutely ; and the neces- sary inference from this declaration and the entire organic structure of the body is that it felt strong enough already to regulate and establish the prices of domestic coal in that market to a large extent, at least, and that this exchange might now monopolize the business of dealing in domestic coal in the Nashville market, and in the future monopolize by and confine to its membership the entire trade in coal at that point. It seems to me that the purposes and intention of the association could hardly have been more successfully framed to fall within the provisions of the act of July 2, 1890, had the object been to organize a combina- tion, the business of which should subject it to the penalties of that statute; and there is no need of authorities to sustain such view of the case.” In the case of U. S. v.‘Coal Dealers’ Ass’n (C. C.), 85 Fed. 252, the bill alleged that defendants comprised all the wholesale dealers hand- ling coal in San Francisco, and they, together with certain retail dealers, liad conspired with intent to monopolize the coal trade and commerce between British Columbia, Washington, and Oregon, to the extent of the coal used for domestic purposes in the city of San Fran- cisco. It was said by this court in that case: *¢ But the agreement of the importers and wholesale dealers, which alone gives life and force to the combination, is directed specifically to the maintenance of card rates for certain imported coals, by name; and it is this agreement, and what may be accomplished under it by the combination, that is to be considered, and not what it may be doing at any particular time.” In U.S. v. Addyston Pipe & Steel Co., 54 U.S. App. 723, 29 C. C. A. 141, and 85 Fed. 279, the United States began proceedings in equity against six corporations engaged in the manufacture of cast-iron pipe in localities in Ohio, Kentucky, Alabama, and Tennessee. The bill of complaint charged the defendants with a combination and con-. spiracy in unlawful restraint of interstate commerce. It appeared that the defendants, who were manufacturers and vendors of cast-iron pipe, entered into a combination to raise the price of pipe for all the States 96 TRANSPORTATION CO. v. STANDARD OIL CO. west and south of New York, Pennsylvania, and Virginia, comprising some thirty-six States in all; and, to carry out this combination, the associated defendants entered into an agreement which provided certain methods of procedure in dealing with the public, whereby competition between themselves was avoided in the territory mentioned. The court, in an able opinion reviewing the whole subject of the law relating to combinations and contracts in restraint of trade, arrived at the con- clusion that the association of the defendants was a contract, combina- tion, or conspiracy in restraint of trade, as the terms are to be understood under the act of July 2, 1890. The doctrine of that case is applicable here. The allegations charging conspiracy and combination to raise the price of the commodities in question, and of an agreement by the members of such combination to sell these commodities at such prices as shall be arbitrarily fixed by the combination in question, together with the further allegation that such combination has been made with the intent of monopolizing trade and commerce between California and other States, are sufficient, under these authorities, to bring the case within the operation of the provisions of the Sherman Act. Defend- ants’ demurrer upon the ground of the insufficiency of the facts stated to constitute a cause of action cannot, therefore, be sustained. TRANSPORTATION CO. v. STANDARD OIL CO. Court or Appgats, Wrst Vircinia, 1901. [40 S. E. Rep. 591.2] Brannon, J. The West Virginia Transportation Company brought trespass on the case in Wood County 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 1 Compare: Addyston Pipe Co. v. U. 8.175 U.S, 211; U. S. o. Fuel Co., 105 Fed. 93; Mill Co. v. Hayes, 76 Cal. 387; Houston v. Beullinger, 91 Ky. 333; People v. Dis- tilling Co., 156 Ill.1; S. «. Fireman’s Ass’n, 152 Mo. 44; People v. Shelton 139 N.Y. 251; Morris Run Co. ». Barclay Co., 68 Pa. St. 173; S. v. Oil Co., 49 Oh St. 137; S. v. Distilling Co., 29 Neb. 700.— Ep. : pyr ey 2 This case is abridged. — Ep. TRANSPORTATION CO. v. STANDARD OIL CO. 97 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. And it charged also that the Standard Oil Company of New Jersey organized about 1891, and was the successor of all corporations and firms prior to that date associated together under a contract known as the Standard Oil Trust; that the Camden Consolidated Oil Company was a member of the said trust, and under its control; that in 1892 the business and property of said trust were reorganized under, and are now controlled by, the Standard Oil Company, and controlled by the same men for- merly owning and controlling said Standard Oil Trust; that the Eureka Pipe Line Company is owned, controlled, and operated by the same men, and doing business in the interest of the Standard Oil Company, and is a transportation branch of that company; that the West Virginia Oil Company was organized about 1885 to purchase and operate what was known as the property of the West Virginia Oil and Land Com- ‘pany, a territory on which the plaintiff had laid pipe lines, and’ from which it had for several years transported oil for compensation; that the Standard Oil Trust, through individuals interested in it, had he- come a large stockholder in the West Virginia Oil Company, and dictated its management; and by means thereof, and of its monopoly of the production, refining, and transportation of oil throughout the world, practically controlled the business of said West Virginia Oil Company, and since the reorganization of the Standard Oil Trust by the organization of the Standard Oil Company had continued to do so, and had induced the construction of the Eureka Pipe Line Company, and thus ruined the business of the plaintiff; that this was the object and accomplishment of the said combination and malicious conspiracy. What wrongful acts does this first count state? The formation of trade combination — call it “monopoly ””—is not actionable alone. How far the grant of exclusive privilege by the State (and this is the only monopoly, legally speaking) is valid when its right is contested, is one thing. We are not dealing with that. This monopoly is not that. Itis the act of persons and corporations, by union of means and effort, drawing to themselves, in the field of competition, the lion’s share of trade. This is not monopoly condemned by law. The lion has stretched out its paws and grabbed in prey more than others, but that is the natural right of the lion in the field of pursuit and capture. Pity that the lion exists, his competing animals may say; but natural law accords the right, it is given him by the Maker for existence. The State made the Standard Oil Company, and gave it this right of being and working. Better for its competitors were it not so. What other acts besides the formation of this engrossing association does the 7 98 TRANSPORTATION CO. v. STANDARD OIL CO. first count charge? That it caused the West Virginia Oil Company to build a pipe line from its property to the Baltimore & Ohio Railroad to ship its oil to the refinery of the Standard Oil Company. Stockholders in the one were also in the other. Had they not the right to build this line to further their own interests, to convey product of the one for refinement by another? A man owning a farm, and also interested in a mill, may not the mill owners induce the farmer to build some means of transporting his wheat to that mill, without being liable to suit by a man owning a railroad which had been accustomed to carry wheat from that farm? And suppose there were no common interest in the farm and mill, cannot the mill owners induce this farmer to build a means of transport from his farm to their mill? Is this soliciting trade by any usual means, a legal wrong to competitors? The gravest item under this head is the charge that the Standard Company required oil pro- ducers (without specifying any but the West Virginia Oil Company), as a condition precedent to purchasing their oil, to ship through said pipe line, and required those producers in the land of the West Vir- ginia Oil Company to do so as a condition precedent to holding their leases, notwithstanding that the more usual and satisfactory route of transport was the pipe line of the plaintiff; and that later the defend- ants, through the Eureka Pipe Line Company, to further accomplish their purpose of ruining the plaintiff, built a branch pipe line through territory which had for years patronized the plaintiff’s line, in order to prevent and forestall the plaintiff from transacting, acquiring, or main- taining any business, and from extending its line to any other territory; and that the defendants and confederates, by their monopoly and con- trol over the oil business, refused to ship, or permit others to ship, oils, or buy oils shipped through the plaintiff’s line, and, being the only refiners of oil at Parkersburg and elsewhere, refused to buy oil shipped through the pipe line of the plaintiff. At first blush this conduct might appear wrong; but a second thought again presents the question whether the defendants in this did anything unlawful. ‘The defendant companies were all in common interest. Could they not unite to fur- ther 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? Cannot 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 oppressive, 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 TRANSPORTATION CO. v. STANDARD OIL CO. 99 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. That in these days of sharp, ruinous competition some perish is inevitable. The dead are found strewn all along the highways of business and commerce. Has it not always been so? Will it always be so? The evolution of the future must answer. What its evolution will be in this regard we do not yet know, but we do know that thus far the law of the survival of the fittest has been inexorable. Human intellect — human laws— cannot prevent these disasters. The dead and wounded have no right of action from the working of this im- perious law. We reverse and remand. 1 Compare: Mogul S.S. Co. v. McGregor, 23 Q. B. D. 598; Allen v. Flood, 1898 D.C. 1; Quinn v. Leatham, 1901 A.C. 495; Doremus v. Hennessy, 176 Ill. 608; Thurdley v. R. R., 48 S. W. 429; Guethler v. Altman, 60 N. E. 355 (Ind.); Brewster v. Miller, 101 Ky. 368; Graham v. R.R., 47 La. Ann. 215; Plant v. Woods, 176 Mass. 492; Bohn Co. v. Hollis, 54 Minn. 223; Assn. v. Cumming, 63 N. E. 369 (N. Y.); Payne v. R. R., 3 Lea, 507; Delz v. Winfrees, 80 Tex. 400; Reycroft v. Traintor, 68 Vt. 219. — Ep. 100 JENCKS v. COLEMAN. CHAPTER II. OBLIGATIONS OF PUBLIC CALLING. Section I. To serve ALL. KING v. LUELLIN. Kine’s Bencu, 1703. [12 Mod. 445.] Tuer defendant was master of the Bell Inn, in Bristol. He was in- dicted for not receiving one taken ill with the smallpox; and it was quashed for not saying he was a traveller. JENCKS v. COLEMAN. Circurr Court oF THE Unirep States, 1835. [2 Sum. 221.] Case for refusing to take the plaintiff on board of the steamboat ‘Benjamin Franklin” (of which the defendant was commander), as a passenger from Providence to Newport. Plea, the general issue. JENCKS v. COLEMAN. 101 The facts, as they appeared at the trial, were substantially as follow: That the plaintiff was the agent of the Tremont line of stages, running between Providence and Boston; that his object was to take passage in the boat to Newport, and then go on board the steamboat President, on her passage from New York to Providence, on the next morning, for the purpose of soliciting passengers for the Tremont line of stages for Boston. This the proprietors of the President and Benjamin Frank- lin had prohibited, and had given notice that they would not permit agents of that line of stages to take passage in their boats for that purpose. The reason assigned for such prohibition was, that it was important for the proprietors of the steamboats, that the passengers from their boats, for Boston, should find, at all times, on their arrival at Providence, an immediate and expeditious passage to Boston. ‘To insure this object, the Citizens’ Coach Company had contracted with the steamboat proprietors to carry all the passengers, who wished to go, in good carriages, at reasonable expedition and prices; and the commanders of the steamboats were to receive the fare, and make out way-bills of the passengers, for the Citizens’ Coach Company. This they continued to perform. And, in order to counteract the effect of this contract, — which had been offered the Tremont line, and de- clined, — that line placed an agent on board the boats, to solicit passengers for their coaches; and, on being complained to by the Citizens’ Coach Company, the proprietors of the steamboats interdicted such agents from coming on board their boats, and in this instance, refused to permit the plaintiff to take passage in the boat for Newport, though he tendered the customary fare. The cause was argued by &. W. Greene and Daniel Webster for the plaintiff, and by Rivers and Whipple for the defendants. For the plaintiff it was contended, that steamboat proprietors were common-carriers,— and every person, conducting himself with propriety, had a right to be carried, unless he had forfeited that right. The plaintiff in this instance did conduct with propriety, and had not forfeited his right to be carried by any improper misconduct. The steamboat proprietors and Citizens’ Coach Company had at- tempted to establish a monopoly, which should not be countenanced, it being against the public interest. Such a monopoly operated to increase the price and prolong the time of passage from Providence to Boston ; while open competition promoted the public interest and convenience, by reducing the fare and expediting the passage. The plaintiff, in this instance, requested to be conveyed from Provi- dence to Newport; during which passage, it was well known, no pas- sengers were to be solicited, — that was to be done only on the passage from Newport to Providence. For the defendant, it was contended, that the contract made by the steamboat proprietors and the Citizens’ Company, was legal, and sub- served the public convenience, and the interest of the proprietors of the boats and stages; it insured to the passengers expeditious passages 102 JENCKS v. COLEMAN. at reasonable prices; that the regulation, excluding the agents of the Tremont line of stages from the steamboats, was legal and just, because it was necessary to promote the foregoing objects, to wit: the public convenience, and the interests of the proprietors of both the boats and stages. Of this interdiction the plaintiff had received notice, and had no legal right to complain. Srory, J., in summing up to the jury, after recapitulating the evi- dence, said: There is no doubt, that this steamboat is a common carrier of passengers for hire; and, therefore, the defendant, as commander, was bound to take the plaintiff as a passenger on board, if he had suit- able accommodations, and there was no reasonable objection to the character or conduct of the plaintiff. The question, then, really resolves itself into the mere consideration, whether there was, in the present case, upon the facts, a reasonable ground for the refusal. The right of passengers to a passage on board of a steamboat is not an unlimited right, but it is subject to such reasonable regulations as the propri- etors may prescribe, for the due accommodation of passengers and for the due arrangements of their business. The proprietors have not only this right, but the farther right to consult and provide for their own in- terests in the management of such boats, as a common incident to their right of property. They are not bound to admit passengers on board who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct; or who make disturbances on board; or whose characters are doubtful or dissolute or suspicious ; and, a fortiori, whose characters are unequivocally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests or patronage of the proprietors, so as to make the business less lucrative to them. ; While, therefore, I agree that steamboat proprietors, holding them- selves out as common carriers, are bound to receive passengers on board under ordinary circumstances, I at the same time insist that they may refuse to receive them if there be a reasonable objection. And as passengers are bound to obey the orders and regulations of the proprietors, unless they are oppressive and grossly unreasonable, who- ever goes on board, under ordinary circumstances, impliedly contracts to obey such regulations; and may justly be refused a passage, if he wilfully resists or violates them. Now, what are the circumstances of the present case? Jencks (the plaintiff) was, at the time, the known agent of the Tremont line of stage coaches. The proprietors of the Benjamin Franklin had, as he well knew, entered into a contract with the owners of another line (the Citizens’ Stage Coach Company) to bring passengers from Boston to Providence, and to carry passengers from Providence to Boston, in connection with and to meet the steamboats plying between New York and Providence, and belonging to the proprietors of the Franklin. Such a contract was important, if not indispensable, to secure uni- formity, punctuality, and certainty in the carriage of passengers on JENCKS v. COLEMAN, 103 both routes; and might be material to the interests of the proprietors of those steamboats. Jencks had been in the habit of coming on board these steamboats at Providence, and going therein to Newport; and commonly of coming on board at Newport, and going to Providence, avowedly for the purpose of soliciting passengers for the Tremont line, and thus interfering with the patronage intended to be secured to the Citizens’ line by the arrangements made with the steamboat proprietors. He had the fullest notice that the steamboat proprietors had forbidden any person to come on board for such purposes, as incompatible with their interests. At the time when he came on board, as in the decla- ration mentioned, there was every reason to presume that he was on board for his ordinary purposes as agent. It has been said that the proprietors had no right to inquire into his intent or motives. I cannot adinit that point. I think that the proprietors had a right to inquire into such intent and motives ; and to act upon the reasonable presump- tions which arose in regard to them. Suppose a known or suspected thief were to come on board; would they not have a right to refuse him a passage? Might they not justly act upon the presumption that his object was unlawful? Suppose a person were to come on board, who was habitually drunk, and gross in his behavior, and obscene in his language, so as to be a public annoyance ; might not the proprietors refuse to allow him a passage? I think they might, upon the just presumption of what his conduct would be. It has been said by the learned counsel for the plaintiff, that Jencks was going from Providence to Newport, and not coming back; and that in going down, there would, from the very nature of the object, be no solicitation of passengers. That does not necessarily follow ; for he might be engaged in making preliminary engagements for the return of some of them back again. But, supposing there were no such solicitations, actual or intended, I do not think the case is essen- tially changed. I think that the proprietors of the steamboats were not bound to take a passenger from Providence to Newport, whose ob- ject was, as a stationed agent of the Tremont line, thereby to acquire facilities to enable him successfully to interfere with the interests of these proprietors, or to do them an injury in their business. Let us take the case of a ferryman. Is he bound to carry a passenger across a ferry, whose object it is to commit a trespass upon his lands? A case still more strongly in point, and which, in my judgment, completely meets the present, is that of an innkeeper. Suppose passengers are accus- tomed to breakfast, or dine, or sup at his house; and an agent is em- ployed by a rival house, at the distance of a few miles, to decoy the passengers away the moment they arrive at the inn; is the innkeeper bound to entertain and lodge such agent, and thereby enable him to accomplish the very objects of his mission, to the injury or ruin of his own interests? I think not. It has been also said, that the steamboat proprietors are bound to carry passengers only between Providence and New York, and not to 104 JENCKS v. COLEMAN. transport them to Boston. Be it so, that they are not absolutely bound. Yet they have a right to make a contract for this latter purpose, if they choose ; and especially if it will facilitate the transportation of passen- gers, and increase the patronage of their steamboats. I do not say that they have a right to act oppressively in such cases. But certainly they may in good faith make such contracts, to promote their own, as well as the public interests. The only real question, then, in the present case is, whether the con- duct of the steamboat proprietors has been reasonable and bona fide. They have entered into a contract with the Citizens’ line of coaches to carry all their passengers to and from Boston. Is this contract reasonable in itself; and not designed to create an oppressive and mis- chievous monopoly? There is no pretence to say that any passenger in the steamboat is bound to go to or from Boston in the Citizens’ line. He may act as he pleases. It has been said by the learned counsel for the plaintiff, that free competition is best for the public. But that is not the question here. Men may reasonably differ from each other on that point. Neither is the question here, whether the contract with the Citizens’ line was indispensable, or absolutely necessary, in order to ensure the carriage of the passengers to and from Boston. But the true question is, whether the contract is reasonable and proper in itself, and entered into with good faith, and not for the purpose of an oppres- sive monopoly. If the jury find the contract to be reasonable and proper in itself and not oppressive, and they believe the purpose of Jencks in going on board was to accomplish the objects of his agency, and in violation of the reasonable regulations of the steamboat proprictors, then their verdict ought to be for the defendant; otherwise, to be for the plaintiff. Webster, for the plaintiff, then requested the Court to charge: That the jury must be satisfied that this agreement was necessary or clearly expedient for the public interest, and the interest of the proprietors of the boats, or otherwise the captain of the boat could not enforce it, by refusing the plaintiff a passage; Or, that the defendant must show that the substantial interest of the proprietors, or of the public, required an arrangement, such as they had entered into, in order to justify their refusal to carry the plaintiff for the cause assigned. The Court refused to give instruction in the manner and form as prayed; but did instruct the jury, that it is not necessary for the de- fendant to prove, that the contract in the case was necessary to accom- plish the objects therein stated; but it is sufficient, if it was entered into by the steamboat proprietors bona fide and purely for the purpose of their own interest, and the accommodation of the public, from their belief of its necessity, or its utility. Ifthe jury should be of opinion that, under all the circumstances of the case, it was a reasonable con- tract, and the exclusion of the plaintiff was a reasonable and proper regulation to carry it into effect on the part of the steamboat propri- etors, then their verdict ought to be in favor of the defendant; other wise, in favor of the plaintiff. Verdict for defendant. BENNETT v. DUTTON. 105 BENNETT v. DUTTON. Supreme Court or New Hampsuire, 1839. [lo NV. 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 conveyance of such passengers above Nashua — and that it was further agreed (as Tuttle’s line ran no farther than from Lowell to Nashua) by the proprietors of the defendant’s line, that they would not receive into their coaches, at Nashua, passengers for places above Nashua, who came up from Lowell to Nashua on the same day, in Tuttle’s line; the time of start- ing from Lowell and arriving at Nashua being the same in both lines. One of the requisitions of mail contracts is, that each line of stage coaches running into another, so as to form a continuous mail line, shall give preference to passengers arriving in the line with which it connects, and shall forward them in preference to any others. There were several other lines which started from Lowell at the same time with the lines before mentioned, running to other places, through 106 BENNETT v. DUTTON. Nashua; and it was generally the understanding between their respec- tive proprietors that one line should not take, for a part of the distance where the route was the same, passengers who were going on further in another line; though this understanding had been occasionally interrupted. The plaintiff being at Lowell on the 31st of January, 1837, took pas- sage and was conveyed to Nashua in Tuttle’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, previons to taking passage in Tuttle’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 Tuttle’s line from Lowell to Nashua he would not be received at Nashua into the defendant’s coach. The parties agreed that judgment should be rendered for the plaintiff for nominal damages, or for the defendant, according to the opinion of this court upon these facts. Clark & G. Y. Sawyer, for the plaintiff, cited Story on Bailment, 880 ;,2 Ld. Rayin. 909, Coggs v. Bernard; Jones on Bailment, 109; 2 Barn. & Adolph. 803, Kent v. Shuckard. : Baker (with whom was C. G. Atherton), for the defendant. It is not denied that anciently a common carrier was liable for refusing to carry goods ; a common innkeeper for refusing to receive a guest; a common ferryman for refusing to carry a passenger; and generally, perhaps, that there was an implied obligation upon every one standing before the publie 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. 383; 2 Show. 327; Hard. 163; Rob. Ent. 108. 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 Wils. 181; 1 Inst. 89; 1 T. R. 88,57; 5 T. R. 889; Story on Bailment, 328; 11 Pick. 42; 4 N. H. Rep. 306. But this contract, which is general with the public, may be made BENNETT ¥v. DUTTON. 107 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 carry (16 East, 244), so that the carrier of goods may not only qualify his responsibility for the safe transportation of goods, but his liability for refusing to receive them. The principle to be derived from these cases, and upon which they all rest, is, that although the law imposes certain obligations upon one who undertakes the duties of a particular profession or employment, he is at liberty to assume those duties but in part, and thus limit his ‘re- sponsibility, provided he gives notice of his intention, generally, and that notice is brought home to the knowledge of the party interested. The principle is confined to no one branch or department of business ; to no one case or class of cases. Nothing more is required than that public notice should be given how far the carrier intends to limit his responsibility, and that it should be known to the person to be affected by it in season to save his interest. The main point is to show tbe in- tention of the carrier, and to communicate knowledge of his terms, seasonably, to the individual interested. 5 Hast, 510; 2 Camp. 108; 1 Stark. Cas. 418; 2 Ditto, 461; 4 Burr. 2298; 1 Str. 145; 1 Bae. Abr. 556; 2 Stark. Ev. 838; 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 he 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 108 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 . Horne. 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 ali 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 arefusal. 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 may furnish a sufficient excuse for a refusal; as, if it be to commit an assault upon another passenger, or to injure the business of the proprietors. The case shows the defendant to have been a general carrier of pas- sengers, for hire, in his stage coach, from Nashua to Amherst, at the time of the plaintiff's application. It is admitted there was room in the coach, and there is no evidence that he was an improper person to be admitted, or that he came within any of the reasons of exclusion before suggested. It has been contended that the defendant was only a special carrier of passengers, and did not hold himself out as a carrier of persons gen- erally ; but the facts do not seem to show a holding out for special em- ployment. He was one of the proprietors, and the driver, of a line of stages, from Nashua to Amherst and Francestown. They held them- selves out as general passenger carriers between those places. But by reason of their connection with French’s line of stages from Lowell to Nashua, they attempted to make an exception of persons who came from Lowell to Nashua in Tuttle’s stage, on the same day in which they applied for a passage for the north. It is an attempt to limit their re- sponsibility in a particular case or class of cases, on account of their agreement with French. BENNETT v. DUTTON. 109 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 they were carriers of the mail on the same route, it seems he was bound so to do, without an agreement. If, after they were accommodated, there was still room, he was bound to carry the plaintiff, without in- quiring in what line he came to Nashua. Judgment for the plaintiff: 110 PEARSON v. DUANE. PEARSON v. DUANE. Supreme Court or THE Untrep States, 1867. [4 Wall. 605.] In the month of June, 1856, the steamship Stevens, a common carrier of passengers, of which Pearson was master, on her regular voyage from Panama to San Francisco, arrived at the intermediate port of Acapulco, where Duane got on board, with the intention of proceeding to San Francisco. He had, shortly before this, been banished from that city by a revolutionary yet powerful and organized body of men, called ‘¢The Vigilance Committee of San Francisco,” upon penalty of death in case of return. Pearson ascertained that Duane had been expelled from California, and put Duane aboard the steamer Sonora. Duane filed a libel in admiralty for damages.1 Mr. Justice Davis delivered the opinion of the court. This case is interesting because of certain novel views which this court is asked to sustain. Two questions arise in it: 1st, was the conduct of Pearson justifi- able? 2d, if not, what should be the proper measure of damages? It is contended, as the life of Duane was in imminent peril, in case of his return to San Francisco, that Pearson was justified, in order to save it, in excluding him from his boat, notwithstanding Duane was willing to take his chances of being hanged by the Vigilance Committee. Such a motive is certainly commendable for its humanity, and goes very far to excuse the transaction, but does not justify it. Common carriers of passengers, like the steamship Stevens, are obliged to carry all persons who apply for passage, if the accommodations are sufficient, unless there is a proper excuse for refusal.” If there are reasonable objections to a proposed passenger, the carrier is not required to take him. In this case, Duane could have been well refused a passage when he first came on board the boat, if the circumstances of his banishment would, in the opinion of the master, have tended to promote further difficulty, should he be returned to a city where lawless violence was supreme. But this refusal should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the char- acter of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board. This was not done, and the defence that Duane was a ‘‘ stowaway,” and therefore subject to expulsion at any time, is a mere pretence, for the evidence is clear that he made no attempt to secrete himself until advised of his intended transfer to the Sonora. Although a railroad or steamboat company can properly refuse to transport a drunken or insane man, or one whose 1 The statement of facts has been condensed. ~— Ep. 2 Jencks v. Coleman, 2 Sumner, 221; Bennett v. Dutton, 10 New Hampshire, 486, CHICAGO & NORTHWESTERN RAILWAY ¥. WILLIAMS. 111 character is bad, they cannot expel him, after having admitted him as a passenger, and received his fare, unless he misbehaves during the journey.1| Duane conducted himself properly on the boat until his ex- pulsion was determined, and when his fare was tendered to the purser, he was entitled to the same rights as other passengers. The refusal to carry him was contrary to law, although the reason for it was a humane one. The apprehended danger mitigates the act, but affords no legal justification for it. But the sum of four thousand dollars awarded as damages in this case is excessive, bearing no proportion to the injury received.? . . . We are of opinion that the damages should be reduced to $50. It is ordered that this cause be remitted to the Circuit Court for the District of California, with directions to enter a decree in favor of the appellee for fifty dollars. It is further ordered that each party pay his own costs in this court. Order accordingly. CHICAGO & NORTHWESTERN RAILWAY v. WILLIAMS. Supreme Court or Ituinors, 1870. (55 ZU. 185.] Mr. Justice Scott delivered the opinion of the court. There is but one question of any considerable importance presented by the record in this case. It is simply whether a railroad company, which, by our statute and the common law, is a common carrier of passengers, in a case where the company, by their rules and regulations, have designated a certain car in their passenger train for the exclusive use of ladies, and gentle- men accompanied by ladies, can exclude from the privileges of such car a colored woman holding a first-class ticket, for no other reason except her color. The evidence in the case establishes these facts — that, as was the custom on appellants’ road, they had set apart in their passenger trains acar for the exclusive use of ladies, and gentlemen accompanied by ladies, and that such a car, called the ‘‘ ladies’ car,” was attached to the train in question. The appellee resided at Rockford, and being de- sirous of going from that station to Belvidere, on the road of appellants, for that purpose purchased of the agent of the appellants a ticket, which entitled the holder to a seat in a first-class car on their road. On the arrival of the train at the Rockford station the appellee offered and endeavored to enter the ladies’ car, but was refused permission so to do, and was directed to go forward to the car set apart for and occu- pied mostly by men. On the appellee persisting on entering the ladies’ 1 Coppin v. Braithwaite, 8 Jurist, 875; Prendergast v. Compton, 8 Carrington and Payne, 462. 2 The discussion of this point is omitted. — Ep. , 112 CHICAGO & NORTHWESTERN RAILWAY ¥v. WILLIAMS, car, force enough was used by the brakeman to prevent her. At the time she attempted to obtain a seat in that car on appellants’ train there were vacant and unoccupied seats in it, for one of the female witnesses states that she, with two other ladies, a few moments after- wards, entered the same car at that station and found two vacant seats, and occupied the same. No objection whatever was made, nor is it in- sisted any other existed, to appellee taking a seat in the ladies’ car except her color. ‘The appellee was clad in plain and decent apparel, and it is not suggested, in the evidence or otherwise, that she was not a woman of good character and proper behavior. It does not appear that the company had ever set apart a car for the exclusive use, or provided any separate seats for the use of colored persons who might desire to pass over their line of road. The evidence discloses that colored women sometimes rode in the ladies’ car, and sometimes in the other car, and there was, in fact, no rule or regula- tion of the company in regard to colored passengers. The case turns somewhat on what are reasonable rules, and the power of railroad companies to establish and enforce them. It is the undoubted right of railroad companies to make all reason- able rules and regulations for the safety and comfort of passengers travelling on their lines of road. It is not only their right, but it is their duty to make such rules and regulations. It is alike the interest of the companies and the public that such rules should be established and enforced, and ample authority is conferred by law on the agents and servants of the companies to enforce all reasonable regulations made for the safety and convenience of passengers. It was held, in the case of the Ill. Cent. R. R. Co. v. Whittemore, 43 Ill. 423, that for a non-compliance with a reasonable rule of the com- pany, a party might be expelled from a train at a point other than a regular station. If person on a train becomes disorderly, profane, or dangerous and offensive in his conduct, it is the duty of the conductor to expel such guilty party, or at least to assign him to a car where he will not en- danger or annoy the other passengers. Whatever rules tend to the comfort, order, and safety of the passengers, the company are fully authorized to make, and are amply empowered to enforce compliance therewith. But such rules and regulations must always be reasonable and uni- form in respect to persons. A railroad company cannot capriciously discriminate between pas- sengers on account of their nativity, color, race, social position, or their political or religious beliefs. Whatever discriminations are made must be on some principle, or for some reason, that the law recognizes as just and equitable, and founded in good public policy. What are reasonable rules is a question of law, and is for the court to determine, under all the circumstances in each particular case, In the present instance the rule that set apart a car for the exclusive » CHICAGO & NORTHWESTERN RAILWAY v. WILLIAMS. 113 use of ladies, and gentlemen accompanied by ladies, is a reasonable one, and the power of the company to establish it has never been doubted. If the appellee is to be denied the privilege of the ‘‘ ladies’ car,” for which she was willing to pay, and had paid, full compensation to the company, a privilege which is accorded alike to all women, whether they are rich or poor, it must be on some principle or under some rule of the company that the law would recognize as reasonable and just. If she was denied that privilege by the mere caprice of the brakeman and conductor, and under no reasonable rule of the company, or what is still worse, as the evidence would indicate, through mere wantonness on the part of the brakeman, then it was unreasonable, and therefore unlawful. It is not pretended that there was any rule that excluded her, or that the managing officers of the company had ever given any directions to exclude colored persons from that car. If, however, there was such a rule, it could not be justified on the ground of mere preju- dice. Such a rule must have for its foundation a better and a sounder reason, and one more in consonance with the enlightened judgment of reasonable men. An unreasonable rule, that affects the convenience and comfort of passengers, is unlawful, simply because it is unreason- able. The State v. Overton, 4 Zab. 435. In the case of the West Chester & Philadelphia R. R. Co. v. Miles, 55 Penn. 209, it was admitted that no one could be excluded from a carriage by a public carrier on account of color, religious belief, politi- cal relations, or prejudice, but it was held not to be an unreasonable regulation to seat’ passengers so as to preserve order and decorum and prevent contacts and collisions arising from well-known repugnances, and therefore a rule that required a colored woman to occupy a separate seat in a car furnished by the company, equally as comfortable and safe as that furnished for other passengers, was not an unreasonable rule. Under some circumstances this might not be an unreasonable rule. At all events, public carriers, until they do furnish separate seats equal in comfort and safety to those furnished for other travellers, must be held to have no right to discriminate between passengers on account of color, race, or nativity alone. We do not understand that the appellee was bound to go forward to the car set apart for and occupied mostly by men, when she was directed by the brakeman. It is a sufficient answer to say that that car was not provided by any rule of the company for the use of women, and that another one was. This fact was known to the appellee at the time. She may have undertaken the journey alone, in view of that very fact, as women often do. The above views dispose of all the objections taken to the instructions given by the court on behalf of the appellee, and the refusal of the court to give those asked on the part of the appellants, except the one which tells the jury that they may give damages above the actual dam- ages sustained, for the delay, vexation, and indignity to which the ap- 8 114 THE D. R. MARTIN. pellee was exposed if she was wrongfully excluded from the car. If the party in such case is confined to the actual pecuniary damages sustained, it would, most often, be no compensation at all, above nominal dam- ages, and no salutary effect would be produced on the wrong doer by such a verdict. But we apprehend that if the act is wrongfully and wantonly committed, the party may recover, in addition to the actual damages, something for the indignity, vexation, and disgrace to which the party has been subjected. It is insisted that the damages are excessive, in view of the slight injury sustained. There is evidence from which the jury could find that the brakeman treated the appellee very rudely, and placed his hand on her and pushed her away from the car. The act was committed in a public place, and whatever disgrace was inflicted on her was in the presence of strangers and friends. The act was, in itself, wrongful, and without the shadow of a reasonable excuse, and the damages are not too high. The jury saw the witnesses, and heard their testimony, and with their finding we are fully satisfied. Perceiving no error in the record, the judgment is affirmed. Judgment affirmed. THE D. R. MARTIN. Circuit Court oF THE Unitep States, So. New Yorks, 1873. [11 Blatch. 233.] Howt, J. On the trial before the District Judge, the libellant, David F. Barney, recovered the sum of $1,000, as his damages for ejecting him from the steamboat D. R. Martin, on the morning of October 23, 1871. On an application subsequently made to him, the District Judge reduced the recovery to the sum of $500. A careful perusal of all the testimony satisfies me that the libellant was pursuing his business as an express agent on board of the boat, that he persisted in it against the remonstrance of the claimant, and that it was to prevent the transac- tion of that business by him on board of the boat, that he was ejected therefrom by the claimant. The steamboat company owning this vessel were common carriers between Huntington and New York. They were bound to transport every passenger presenting himself for transporta- tion, who was in a fit condition to travel by such conveyance. They were bound, also, to carry all freight presented to them in a reasonable time before their hours of starting. The capacity of their accommoda- tion was the only limit to their obligation. A public conveyance of this character is not, however, intended as a place for the transaction of the business of the passengers. The suitable carriage of persons or property is the only duty of the common carrier. A steamboat com- pany, or a railroad company, is not bound to furnish travelling con- veniences for those who wish to engag’ ge, on their vehicles, in the fieinass THE D. R. MARTIN. 115 of selling books, papers, or articles of food, or in the business of receiv- ing and distributing parcels or baggage, nor to permit the transaction of this business in their vehicles, when it interferes with their own interests. If a profit may arise from such business, the benefit of it belongs to the company, and they are entitled to the exclusive use of their vehicles for such purposes. This seems to be clear both upon principle and authority. (Story on Bailments, § 591a, Jencks v. Cole- man, 2 Sumner, 221; Burgess v. Clements, 4 Maule & Sel., 306; Fell v. Knight, 8 Mee. & W., 269; Commonwealth v. Power, 1 Am. Railway Cases, 389.) These cases show that the principle thus laid down is true as a general rule. The case of The N. J. Steam Nav. Co. »v. Merchants’ Bank (6 How. 344) shows that it is especially applicable to those seeking to do an express business on such conveyances. It is there held, in substance, that the carrier is liable to the owner for all the goods shipped on a public conveyance by an express company, without regard to any contract to the contrary between the carrier and the express company. Although the carrier may have no custody or control of the goods, he is liable to the owner in case of loss, if he allows them to be brought on board. It is the simplest justice that he should be permitted to protect himself by preventing their being brought on board by those having them in charge. ‘This rule would not exclude the transmission, as freight, of any goods or property which the owners or agents should choose to place under the care and control of the carrier. That persons other than the libellants carried a carpet bag without charge, or that such bag occasionally contained articles forwarded by a neighbor or procured for a friend, does not affect the carrier’s right. The cases where this was proved to have been done were rare and exceptional, and do not appear to have been known to the carrier, nor does it appear that any compensation was paid to the agent. They were neighborly and friendly services, such as people in the country are accustomed to render for each other. But, if the service and the business had been precisely like that of the libellant the rule would have been the same. The rights of the carrier in respect to A. are not gone or impaired, for the reason that he waives his rights in respect to B., especially if A. be notified that the rights are insisted upon as to him. If Mr. Prime was permitted to carry a bag without charge on the claimant’s boat, or to do a limited express business thereon, this gave the libellant no right to do such business, when notified by the carrier that he must refrain from it. A carrier, like all others, may bestow favor where he chooses. Rights, not favors, are the subject of demand by all parties indiscriminately. The incidental benefit arising from the transaction of such business as may be done on board of a boat or on a car, belongs to the carrier, and he can allow the privilege to one and exclude from it another, at his pleasure. A steamboat company or a railroad company, may well allow an individual to open a restaurant or a bar on their conveyance, or to do the business of boot 116 BROWN Vv. MEMPHIS & C. RAILROAD. blacking, or of peddling books and papers. This individual is under their control, subject to their regulation, and the business interferes in no respect with the orderly management of the vehicle. But if every one that thinks fit can enter upon the performance of these duties, the control of the vehicle and its good management would soon be at an end. The cars or boats are those of the carrier, and, I think, exclu- sively his, for this purpose. The sale or leasing of these rights to indi- viduals, and the exclusion of others therefrom, come under the head of reasonable regulations, which the courts are bound to enforce. The right of transportation, which belongs to all who desire it, does not carry with it a right of traffic or of business. It is insisted that the libellant could not legally be ejected from the boat for any offence, or violation of rules, committed on a former occa- sion. It is insisted, also, that, having purchased a ticket from the agent of the company, his right to a passage was perfect. Neither of these propositions is correct. In Commonwealth v. Power, (7 Met. 596,) the passenger had actually purchased his ticket, and the Chief Justice says: ‘‘If he, Hall, gave no notice of his intention to enter the car as a passenger, and of his right to do so, and if Power believed that his intention was to violate a reasonable subsisting regulation, then he and his assistants were justified in forcibly removing him from the depot.” In Pearson v. Duane, (4 Wallace, 605,) Mr. Justice Davis, in giving the opinion of the court, held the expulsion of Duane to have been illegal, because it was delayed until the vessel had sailed. ‘* But this refusal,” he says, “should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board.” The libellant, in this case, re- fused to 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.? BROWN v. MEMPHIS & C. RAILROAD. Crrcurr Court or THE Unirep Statzs, W. Tenn., 1880. [5 Fed. 499.] THIS was a common-law action for the wrongful exclusion of the plaintiff, a colored woman, from the ladies’ car of the defendant’s train, upon her refusal to take a seat in the smoking-car. At the time of her 1 Acc. Barney v. Oyster Bay & H. S. B. Co., 67 N. Y. 301.—Ep. BROWN ¥. MEMPHIS & C. RAILROAD. 117 exclusion the plaintiff held a first-class ticket over the defendant’s road from Corinth, Mississippi, to Memphis, Tennessee, and her behavior while in the car was lady-like and inoffensive.! The defendant pleaded that the plaintiff was a notorious and public courtesan, addicted to the use of profane language and offensive habits of conduct in public places; that the ladies’ car was set apart exclu- sively for the use of genteel ladies of good character and modest de- portment, from which the plaintiff was rightfully excluded because of her bad character. Hammonp, District Judge, charged the jury that the same principles of law were to be applied to women as men in determining whether the exclusion was lawful or not; that the social penalties of exclusion of unchaste women from hotels, theatres, and other public places could not be imported into the law of common carriers; that they had a right to travel in the streets and on the public highways, and other people who travel must expect to meet them in such places; and, as long as their conduct was unobjectionable while in such places, they could not be excluded. The carrier is bound to carry good, bad, and indifferent, and has nothing to do with the morals of his passengers, if their be- havior be proper while travelling. Neither can the carrier use the character for chastity of his female passengers as a basis of classifica- tion, so that he may put all chaste women, or women who have the reputation of being chaste, into one car, and those known or reputed to be unchaste in another car. Such a regulation would be contrary to public policy, and unreasonable. It would put every woman purchasing a railroad ticket on trial for her virtue before the conductor as her judge, and, in case of mistake, would lead to breaches of the peace. It would practically exclude all sensible and sensitive women from travelling at all, no matter how virtuous, for tear they might be put into or uncon- sciously occupy the wrong car.? The police power of the carrier is sufficient protection to other pas- sengers, and he can remove all persons, men or women, whose conduct at the time is annoying, or whose reputation for misbehavior and in- decent demeanor in public is so notoriously bad that it furnishes a rea- sonable ground to believe that the person will be offensive or annoying to others travelling in the same car; and this is as far as the carrier has any right to go. He can no more classify women according to their reputation for chastity, or want of it, than he can so grade the men. Verdict for the plaintiff. 1 Part of the statement of facts and part of the charge are omitted. — Ep. 2 See Brown v. R. R., 4 Fed. 37. —— Ep. 118 STATE v. STEELE. STATE v. STEELE. Supreme Court or Nortu Carourna, 1890. [ios NV. C. 766; 11 S. £. 478.) Tus was a criminal action, tried before Caartes A. Moore, Judge, and a jury, at the October term of the Criminal Court of Buncombe County, on an appeal from a court of a justice of the peace of said county."... The court charged the jury as follows: — ‘“‘Tf you shall tind from the evidence that others engaged in the same business as the prosecutor'were permitted by the defendant to go to the Battery Park Hotel for the same purpose for which the prosecutor went there, — that is, to secure and transact business for his employer’s livery stable, — then the prosecutor had also the right to go there for that purpose at reasonable times, and to remain there a reasonable length of time for the transaction of such business; and it would not matter that the rules of the hotel forbade his entering the premises of the hotel for that purpose, or that he had been pre- viously forbidden, in writing, to come upon the premises of the hotel, nor would it matter that the defendant had designated a place at the back of the hotel where livery-men could transact their livery business with the guests of the hotel, through the servants and employes of the hotel, even though the prosecutor knew of such place being so desig- nated. He would not, however, have the right to go there at all times, nor would he have the right to remain there all the time, or an unreasonable length of time, for the transaction of such business, against the will of the owner or manager.” .. . Avery, J. It was formerly held by the courts of England that where an innkeeper allured travellers to his tavern by holding himself out to the public as ready to entertain them, and then refused to receive them into his house when he had room to accommodate them, and after they had tendered the money to pay their bills, he was liable to indictment. But this doctrine, says Bishop (Volume IL § 532, Crim. Law), ‘“‘has little practical effect at this time, being rather a relic of the past than a living thing of the present.” Rex 1. Luellin, 12 Mod. 445. In adictum in State 7. Matthews, 2 Dev. & B. 424, this old principle was stated with some qualification, viz., that “all and every one of the citizens have a right to demand enter- tainment of a public innkeeper, if they behave themselves, and are willing and able to pay for their fare; and, as al) have a right to go there and be entertained, they are not to be annoyed there by dis- order, and if the innkeeper permits it he is subject to be indicted as for a nuisance.” Rommel ». Schanbacker, 120 Pa. 579. The duty and legal obligation resting upon the landlord is to admit only 1 Part of the statement of facts is omitted. — Ep. STATE v. STEELE. 119 such guests as demand accommodation, and he hus the right to refuse to allow even travellers who are manifestly so filthy, drunken, or profane as to prove disagreeable to others who are inmates, and thereby to injure the reputation of his house, to enter his inn for food or shelter, though they may be abundantly able to pay his charges. 2 Whart. Crim. Law, § 1587; Reg. v. Rymer, 13 Cox, Crim. Cas. 378. The right to deinand admission to the hotel is confined to per- sons who sustain the relation of guests, and does not extend to every individual who invades the premises, not in response to the invitation given ee the keeper to the public, but in order to gratify his curiosity by seeing, or his cupidity by trading with, patrons who are under the han of the proprietor. 1 Whart. Crim. Law, § 625. The land- lord is not only under no obligation to admit, but he has the power to prohibit the entrance of, any person or class of persons into his house for the purpose of plying his guests with solicitations for patronage in their business; and especially is this true when the very nature of the business is such that human experience would lead us to expect the competing ‘‘drummers,” in the heat of excitement, not only to trouble the guests by earnest and continued approaches, but by their noise, or even strife. The guest has a positive right to demand of the host such protection as will exempt him from annoyance by such persons as intrude upon him without invitation and without welcome, and subject him to torture by a display of their wares or books, or a recommendation of their nostrums or business. That learned and accomplished jurist, Chief Justice SHaw, delivering the opinion in Com. v. Power, 7 Met. 600, said: “ An owner of a steamboat or rail- road, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests, yet he is not only empowered, but he is bound, so to regulate his house as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, and to repress and probibit all disorderly conduct therein, and of course he has a right and is bound to exclude from his premises all disorderly persons, and all persons not conforming to regulations necessary and proper to secure such quiet and good order.” This principle was stated as an estab- lished one, and used by the court as an argument to sustain by analogy its ruling announced in a subsequent portion of the opinion, that a railroad company had a right by its regulations to exclude from its depot and cars, at any station, persons who visited them for the purpose of soliciting passengers to stop at particular hotels; and one of the reasons given for holding the regulation reasonable was that, where the agent urged the claims of their respective hotels ‘‘with earnestness and importunity, it was an annoyance to passengers.” The doctrine is there laid down, too, that persons other than passen- gers prima facie have the right to enter the depot of a railroad company, as others besides guests may go into hotels, without making themselves trespassers, because in both instances there is an implied license given 120 STATE v. STEELE. to the public to enter. But such licenses in their nature are revocable, except in the one case as to passengers, and in the other as to guests, who have the right to enter the train, ticket-office, or hotel, as the case may be, if they are sober, orderly, and able to pay for transpor- tation or fare. The court went further in that case, and held that, in enforcing the reasonable regulation against “‘drummers ” for hotels at the depot, the servants of the railway company were not guilty of an assault for expelling by force, not excessive, a person who had repeatedly violated the regulation by going upon the platform and soliciting for a hotel, though on the particular occasion when he was ejected from it he had a ticket, and intended to take the train des- tined for another town, but failed to disclose to such servants the fact that he entered for ‘‘another purpose, when it was in his power to do so.” Were we to follow the analogy to which the principle laid down in that case would lead, an innkeeper could not only make and enforce a regulation forbidding persons to come on his premises for the purpose of soliciting his guests to patronize the livery stables that they might represent, but he might, in enforcing the rule against one who had previously violated it after notice that he should not do so, put such person off his premises, without excessive force, though at the partic- ular time the person had entered with the bona fide intent to become a guest at the hotel, but failed to announce his purpose; or, under the same principle, he might expel by force one who becomes a guest, and takes advantage of his situation to subject other inmates of the house to the annoyance of ‘‘drumming” for such establishments. The same distinction is drawn between guests and others who enter an hotel intent on business or pleasure by the courts of Pennsylvania. In Com. v. Mitchell, 1 Phila. 63, and Com. v. Mitchel, 2 Pars. Eq. Cas. 431, it was held that an innkeeper is bound to receive and furnish food and lodging for all who enter his hotel as guests, and tender him a reasonable price for such accommodation; but ‘‘if an individual [other than a guest] has entered a public inn, and his pres- ence is disagreeable to the proprietor or his guests, he has a right to request the person to depart, and, if he refuses, the innkeeper has the right to lay his hands gently upon him, and lead him out, and, if resistance is made, to employ sufficient force to put him out,” with- out incurring liability to indictment ‘‘for assault and battery.” .. . [The learned judge here stated and commented upon the cases of Jencks v. Coleman, 2 Sum. 224; Barney v. Steam-Boat Co., 67 N. Y. 302; Harris v. Stevens, 31 Vt. 79; Old Colony R. R. v. Tripp, 147 Mass. 35. ] Upon a review of all the authorities accessible to us, and upon the application of well-established principles of law to the admitted facts of this particular case, we are constrained to conclude that there was error in the charge given by the court to the jury, because: 1. Guests of an hotel, and travellers or other persons entering it STATE v. STEELE. 121 with the bona fide intent of becoming guests, cannot be lawfully prevented from going in or put out by force, after entrance, provided they are able to pay the charges and tender the money necessary for that purpose, if requested by the landlord, unless they be persons of bad or suspicious character, or of vulgar habits, or so objectionable to the patrons of the house, on account of the race to which they be- long, that it would injure the business to admit them to all portions of the house, or unless they attempt to take advantage of the freedom of the hotel to injure the landlord’s chances of profit derived either from his inn or any other business incidental to or connected with its management, and constituting a part of the provision for the wants or pleasure of his patrons. Jencks v. Coleman, supra; Com. v. Mitchell, supra ; Com. v. Power, supra; Pinkerton v. Woodward, 91 Amer. Dec. 660; Barney v. Steam-Boat Co., supra; 1 Whart. Crim. Law, § 621; Ang. Carr. §§ 525, 529, 530; Britton v. Railroad Co., 88 N. C. 536. 2. When persons unobjectionable on account of character or race enter an hotel, not as guests, but intent on pleasure or profit, to be derived from intercourse with its inmates, they are there, not of right, but under an implied license that the landlord may revoke at any time; because, barring the limitation imposed by holding out inducements to the public to seek accommodation at his inn, the proprietor occupies it as his dwelling-house, from which he may expel all who have not acquired rights, growing out of the relation of guest, and must drive out all who, by their bad conduct, create a nuisance and prove an annoyance to his patrons. Harris v. Stevens, 31 Vt. 79; 1 Whart. Crim. Law, § 625. 3. The regulation, if made by any innkeeper, that the proprietors of livery stables, and their agents or servants, shall not be allowed to enter his hotel for the purpose of soliciting patronage for their business from his guests, is a reasonable one, and, after notice to desist, a person violating it may be lawfully expelled from his house, if excessive force be not used in ejecting him. Com. v. Power, supra; Harris v. Stevens, supra. See, also, Griswold v. Webb, 16 R. I. 649; Railroad Co. v. Tripp, supra. 4. An innkeeper has unquestionably the right to establish a news- stand or a barber-shop in his hotel, and to exclude persons who come for the purpose of vending newspapers or books, or of soliciting employment as barbers; and, in order to render his business more lucrative, he may establish a laundry or a livery stable in connection ‘with his hotel, or contract with the proprietor of a livery stable in the vicinity to secure for the latter, as far as he legitimately can, the patronage of his guests in that line for a per centum of the proceeds or profits derived by such owner of vehicles and horses from dealing with the patrons of the public house. After concluding such a con- tract, the innkeeper may make, and after personal notice to violators, enforce, a rule excluding from his hotel the agents and representa- 122 STATE v. STEELE. tives of other livery stables who enter to solicit the patronage of his guests; and where one has persisted in visiting the hotel for that purpose, after notice to desist, the proprietor may use sufficient force to expel him if he refuse to leave when requested, and may eject him, even though on a particular occasion he may have entered for a lawful purpose, if he does not disclose his true intent when requested to leave, or whatever may have been his purpose in entering, if he in fact has engaged in soliciting the patronage of the guests. Barney v. Steam-Boat Co., supra; Jencks v. Coleman, and Harris v. Stevens, supra; Ang. & A. Corp. § 530. 5. The broad rule laid down by Wharton (1 Crim. Law, § 625) is that ‘‘the proprietor of a public inn has a right to request a person who visits it, not as a guest or on business with a guest, to depart, and if he refuse the innkeeper has a right to lay his hands gently upon him, and lead him out, and, if resistance be made, to employ sufficient force to put him out; and for so doing he can justify his conduct on a prosecution for assault and battery.” It will be observed that the author adopts in part the language already quoted from the courts of Pennsylvania. 6. If it be conceded that the prosecutor went into the hotel at the request of a guest, and for the purpose of conferring with the latter on business, still, in any view of the case, if, after entering, he engeged in ‘‘drumming ” for his employer when he had been previously notified to desist in obedience to a regulation of the house, the defendant had a right to expel him if he did not use more force than was necessary; and if the prosecutor, having entered to see a guest, did not then solicit business from the patrons of the hotel, but had done so pre- viously, the defendant, seeing him there, had a right to use sufficient force to eject him, unless he explained, when requested to leave, what his real intent was. Harris v. Stevens, and Com. v. Power, supra. The guest, by sending for a hackman, could not delegate to him the right to do an act for which even the guest himself might lawfully be put out of the hotel. 7. If we go further, and admit, for the sake of argument, that the principle declared in Markham v. Brown, 8 N. H. 580, and relied on to sustain the view of the court below, is not inconsistent with the law on the same subject, as we find it laid down by Wharton and other recognized authorities, still our case will be found to fall under the exception to the general rule stated in express terms in that case. The court said: ‘If one comes to injure his [the innkeeper’s] house, or if his business operates directly as an injury, that may alter the case; but that has not been alleged here; and perhaps there may be cases in which he may have a right to exclude all but travellers and those who have been sent for by them. It is not necessary to settle that at this time.” There was no evidence in Markham v. Brown that the proprietor of the hotel had any contract with another stage line, or would suffer pecuniary loss or injury, if the agent who was STATE Vv, STEELE. 123 expelled was successful in his solicitations; and it seems that Angell and others, who cite as authority that case, as well as Jencks v. Cole- man and Barney v. Steam-Boat Co., reconcile them by drawing the distinction that in the latter cases, and in the hypothetical case of an innkeeper, put by Justice Story, the person whose expulsion was justified was doing an injury to the proprietor, who had him removed, by diminishing his profits derived legitimately from a business used as an adjunct to that of common carrier or innkeeper. In using the language quoted above, Justice Parker seems to have had in his mind, without referring to it, the opinion of Justice Story, delivered in the circuit court but two years before (Jencks v. Coleman, supra). 8. The defendant, as manager of the hotel, could make a valid contract, for a valuable consideration, with Sevier, to give him the exclusive privilege of remaining in the house and soliciting patronage from the guests in any business that grew out of providing for the comfort or pleasure of the patrons of the house. ‘he proprietors of the public house might legitimately share in the profits of any such incidental business, as furnishing carriages, buggies, or horses to the patrons, and for that purpose had as full right to close their house against one who attempted to injure the business in which they had such interest as the owner of a private house would have had, and this view of the case is consistent with the doctrine enunciated in Markham v. Brown. There was no evidence tending to show that Chambers had actual permission from the proprietors to approach the inmates of the hotel on the subject of patronizing him, nor that they had actual knowledge of the fact that he had continued his solicita- tions after receiving a similar notice to that sent to the prosecutor. The fact that he was overlooked or passively allowed to remain in the hotel (it may be under the impression on the part of the defendant that he had desisted from his objectionable practices) cannot, in any view of the law, work a forfeiture of the right to enforce a reasonable regulation, made to protect their legitimate business from injury. If, therefore, a permit on the part of the defendant to Chambers to ‘‘drum” gratuitously in the house would at once have opened his doors to all of the competitors of the latter (a proposition that we are not prepared to admit), the defendant did not, so far as the testimony dis- closes the facts, speak to him on the subject; and the soundness of the doctrine that, without interfering with the legal rights of the guests, the proprietor of a hotel is prohibited by the organic law from granting such exclusive privileges to any individual, as to the use or occupancy of his preinises, as any other owner of land may extend, is not drawn in question. We therefore sustain the second and third assignments of error. His honor erred, for the reasons given, in in- structing the jury that the guilt of the defendant depended upon the question whether he permitted Chambers or Sevier to solicit custom in the house. He had a lawful right to discriminate, for a consider- ation, in favor of Sevier, while it does not appear from the evidence 124 HALE v. GRAND TRUNK RAILROAD. that he granted any exclusive privileges to Chambers. We hold that the regulation was such a one as an innkeeper had the power to make, and must not be understood as approving the idea that the sanction of the municipal authorities could impart validity to it, if it were not reasonable in itself, and within the powers which the law gives to proprietors of public houses in order that they may guard their own rights and protect their patrons from annoyance. For the reasons given the defendant is entitled to a new trial.’ HALE v. GRAND TRUNK RAILROAD. Supreme Court or Vermont, 1888. [60 Vt. 605; 15 Atl. 300.] Ross, J.2 By the agreed case, November 2, 1885, the defendant was operating a railway from Portland, Me., to Canada Line, and had a station at Berlin Falls, N. H. As such it was carrying the mail on its mail trains for the United States government, according to the laws of the United States, and pursuant to the conditions and regulations imposed by the post-office department, at a fixed compen- sation. The plaintiff, on that evening, in attempting to go to its mail train while stopping at the station at Berlin Falls, for the pur- pose of mailing some letters, in the exercise of due and proper care, fell from an unguarded and, as he claims, insufficiently lighted plat- form, leading from the station to the train, and was injured. By the regulations of the post-office department it was then the duty of postal clerks on trains carrying the mail to receive at the cars among other things, from the public, letters on which the postage had been prepaid, and then to sell stamps with which to prepay such postage. Sections 720, 762, Instructions to Railway Postal Clerks. Hence, as a part of the service which the defendant was performing for the government, and for which it was receiving compensation from the government, it was under a duty to furnish the public a reasonably safe passage to and from its mail trains, while stopping at its regular stations, for the purpose of purchasing stamps and mailing such letters. The plaintiff was a member of the public, and was attempt- ing to pass over the platform provided by the defendant to the mail train, for the lawful purpose of mailing two letters. By accepting the carriage of the mail for the government, the defendant became under the duty to furnish him a reasonably safe passage to its mail train, for the purpose of mailing his letters. In attempting to pass over the platform to its mail train for this purpose the plaintiff was 1 See Fluker v, Georgia R. R. & B. Co.,81 Ga. 461, 8 S. E. 529; Com. v. Power, 7 Met 596; Cole ». Rowen, 88 Mich. 219,50 N W. 138; Smith v. New York, L. E. & W. R. R. 149 Pa. 249, 24 Atl. 304. — Ep. ? The opinion only is given ; it sufficiently states the case. — Ep. HALE v. GRAND TRUNK RAILROAD. 125 neither a trespasser, intruder, nor loafer, but was there to transact business, which the defendant had undertaken to do with him, for a compensation received from the government; in fact was there, at the invitation of the defendant, to transact business which it had been hired to perform for and with him, by the government. The duty of the defendant to furnish the plaintiff a reasonably safe passage to its mail train to mail his letters was none the less binding or obligatory because the compensation received therefor came from the government rather than the plaintiff. A. holds a regular passenger ticket over arailroad. The duty of the company operating the road to carry him safely is none the less binding, nor are his legal rights, if injured, in the least abridged because the ticket was paid for by the money of B., rather than with his own money. The government derives a large part of its revenue with which it pays for the mail service by the sale of postage stamps to whomsoever of the public may desire to use that arm of its service. The money which the plaintiff had paid for the postage stamps upon the letters he was carrying, or which he would have paid the postal clerk for stamps to use upon the letters, was indirectly a payment to the defendant for the service which it was about to perform for the plaintiff, in carrying the letters which he was about to post, on the way towards their destination. But whether the plaintiff paid indirectly to the defendant for the service and accommodations which it was under a duty to furnish him, or the government paid therefor, and gave it to the plaintiff, does not vary the defendant’s duty to furnish him a reasonably safe passage to the mail car for the purpose of mailing his letters, nor are his legal rights thereby abated. Actionable negligence is a failure in legal duty which occasions an injury to a party free from contributory negli- gence, or who has not failed in the discharge of his duty in the given circumstances. ‘They have also conceded in the agreed case that the plaintiff exercised due and proper care on the occasion. They only contend that the defendant was under no legal duty to furnish the plaintiff a reasonably safe passage to the mail car, for the purpose of mailing his letters, mainly because he was to pay the defendant nothing therefor directly. But, as we have already endeavored to show, that fact would not relieve the defendant from the duty, inas- much as it was paid by the government for discharging that duty to the public; that is, to any person who had occasion to go to the mail car when stopping at regular stations to transact any lawful business with the servants of the government. These views would affirm the judgment of the county court, but, in accordance with the stipulation of the parties, that. judgment is reversed pro forma, with costs to the plaintiff, and the cause remanded for trial.? 1 See Bradford v. Boston & M. R. R, 160 Mass. 392, 35 N. E. 1131. — Ep. 126 PIERCE ¥. MILWAUKEE AND ST. PAUL RAILWAY CO. PIERCE v. MILWAUKEE AND ST. PAUL RAILWAY CO. Supreme Court or Wisconsin, 1868. [23 Wis. 387.1] Apprat from the Cireuit Court for La Crosse County. Action to recover the value of eight bundles of bags, which had been in use for two seasons in transporting grain from Lake City, Minnesota, to Genoa, Wisconsin, by way of the river and the defendant’s railway. The complaint alleged that the bags were delivered by the packet com- pany doing business on the river, to the defendant at La Crosse; and that defendant, as a common carrier, received said bags to be safely carried by it over its railway, and delivered at Milwaukee to the plaintiff, ‘‘for a reasonable compensation to be paid by the plaintiff therefor.” Answer, a general denial. At the trial defendant sought to avoid lia- bility, as a common carrier, for the loss of the bags, by showing a uniform and long-established custom of the river and railway, that all bags used in the transportation of grain on said river or railway were carried free of charge, when empty, claiming that for bags so carried it could be held responsible only in case of gross negligence. Paine, J. After carefully considering the original briefs of counsel and the arguments upon the rehearing, I have come to the conclusion that the carrying of the bags of the plaintiff by the company cannot be considered as gratuitous, whether the custom was only to return bags free that had gone over the road filled, or whether it was a general cus- tom to carry the bags of customers free both ways, without regard to the question whether, at any particular time, they were returning from a trip on which they had passed over the road, filled or not. If such a re- lation were created by an express contract, instead of being based upon a custom, it would seem clear that there would be a sufficient consid- eration for the agreement to carry the bags. If a written contract should be signed by the parties, in which the one should agree to give the company the transportation of his grain at its usual rates, and the company should agree in consideration thereof to carry the grain at those rates, and also to carry the bags both ways whenever the cus- tomer might desire it, without any further charge, there can be no doubt that the giving to the company his business, and the payment of the regular freight, would be held to constitute the consideration for this part of the agreement on the part of the company. But if it would be so in such a case. it is equally so when the same understanding is arrived at through the means of a custom. The company, by estab- lishing such a custom, makes the proposition to all persons, that if they will become its customers, it will carry their bags both ways with- out any other compensation than the freight upon the grain. Persons 1 This case is abridged. — Ep. PIERCE v¥. MILWAUKEE AND ST. PAUL RAILWAY CO. 127 who become its customers in view of such a custom, do so with that understanding. And the patronage and the freights paid are the con- sideration for carrying the bags. The company, in making such a proposition, must consider that this additional privilege constitutes an inducement to shippers to give it their freight. And it must expect to derive a sufficient advantage from an increase of business occasioned by such inducement, to compensate it for such transportation of the bags. And it ought not to be allowed, when parties have become its customers with such an understanding, after losing their bags, to shelter itself under the pretext that the carrying of the bags was a mere gra- tuity, and it is therefore liable only for gross negligence. It makes no difference that the custom is described as being to carry the bags free. In determining whether they are really carried ‘* free” or not, the whole transaction between the parties must be considered. And when this is done, it is found that all that is meant by saying that the empty bags are carried free, is, that the customers pay no other consideration for it than the freight derived from the business they give the company. But this, as already seen, is sufficient to prevent the transportation of the bags from being gratuitous. Smith v. R. R. Co., 24 N. Y. 222; see also Bissel v. Railroad Co., 25 id. 442. It will be seen that in that case a majority of the court held, that where a pas- senger expressly agreed to take certain risks of injury upon himself, for a consideration, the agreement was valid and binding. But Denio, Wright, and Sutherland dissented, and Denio, J., in his opinion, on pages 455 and 456, states what seems to be the true construction and effect of such a contract, holding that a person riding in charge of cattle, under a contract to carry them at a specified price per car load, and to carry a person ‘‘ free” to take charge of them, was not a gra- tuitous passenger. The other two dissenting justices doubtless agreed with him upon this point. And it is evident from the remarks of Selden, J., on page 447, that he did not hold the opposite view, but rested his decision upon the ground that the plaintiff was bound by the contract to take the risk, whether he was a gratuitous passenger or not. See also Steamboat New World v. King, 16 How. (U. 8.) 469, in which it was held, that, under a general custom of steamboats to carry ‘¢ steamboat men” free, a steamboat man, riding on a free ticket, was not to be regarded as a gratuitous passenger; but that the considera- tion was to be found in those advantages which induced the establish- ment of the custom —a doctrine which seems directly applicable to the question under consideration. I can see no ground for any such difficulty as that suggested by the appellant’s counsel on the re-argument. He said, if this undertaking to return bags free was to be considered a matter of contract on the part of the company, it would be unable to collect its freights on deliv- ering grain, upon the ground that its contract was not then completed. But this could not be so. The company, on delivering the grain, parts with the possession of the property to the shipper or his consignee. 128 WILSON v. GRAND TRUNK RAILWAY. And on doing that, it is of course entitled to its freight. And its agree- ment to return the bags without further charge, or to carry them free both ways whenever its customer should deliver them empty for that purpose, could not have the cffect of destroying this right. The con- tract would be construed according to the intention of the parties. - See Angell on Carriers, § 399, note 3, and cases cited. And here it would be very obvious that neither of the parties contemplated any relinquishment by the company of its right to freight on delivering the grain. ‘The transaction for that purpose would be distinct. Here the defendant’s evidence showed that the plaintiff was a ‘‘customer.” The company claims that he had complied with the custom on his part, so as to make it applicable to him. But if he had done so, as that con- stitutes a sufficient consideration to prevent the carrying of his bags from being gratuitous, the company is liable. It is immaterial, therefore, whether the instruction excepted to was strictly accurate or not, in assuming that there was evidence tending to show that the bags were on a return trip, after having gone over the road filled; as neitber in that case, nor on the custom as claimed to have been shown by the appellant, would the transportation be gratuitous. By tue Court. The judgment is affirmed, with costs. WILSON v. GRAND TRUNK RAILWAY. Supreme Courr or Maine, 1868. [56 Me. 60.2] Appteton, C.J. The plaintiff was a passenger on board the defend- ants’ cars, having seasonably paid her fare. Her baggage was not with her, it having been left behind, without fault of the defendants. Some two or three days afterwards it was left in charge of their servants, to be transported to the Empire station on their line, but it never reached its place of destination. This suit is brought to recover the value of the baggage lost. The presiding justice instructed the jury, ‘That, if they should find that the plaintiff went on board the defendants’ road as a passenger, on Tuesday preceding, without baggage, and that the trunk and its con- tents were ordinary personal baggage, such as a passenger would be entitled to take with himself without extra charge, it was not necessary that there should be proof that anything was paid for carrying the trunk between the same points; that the price paid by the plaintiff, for 1 Compare: Knox v. Rues, 14 Ala. 249; Chouteau v. Anthony, 20 Mo. 549: Pen- der v. Robbins, 6 Jones L. 207; Spears v. Lake Shore R. R., 67 B 7 Ferry Co., 42 N. J. L. 25. = En: ; Ena eapreae 2 Opinion only is printed. — Ep, WILSON v, GRAND TRUNK RAILWAY. 129 her own passage, and the evidence in the case, if found to be true, were sufficient consideration for the promise alleged in the writ.” As the plaintiff's trank was taken for transportation some days after she had passed over the defendants’ road, the substance of the charge of the presiding judge was, that the price paid for the plaintiff’s ticket included the compensation due to the defendants for their subsequent transportation of her trunk, the trunk being personal baggage. In other words, it was not necessary that the baggage of the passenger should go with the passenger, but, it might be afterwards subsequently and without any additional charge for its freight. The fare for the passenger includes compensation for the carriage of his baggage, as to which the carriers of passengers are to be regarded as common carriers. There need be no distinct contract for the car- riage of the baggage. The fare covers the compensation for the freight of the baggage. The baggage must be ordinary baggage, such as a traveller takes with him for his personal comfort, convenience, or pleas- ure for the journey. It must be the ‘“ ordinary luggage” of a travel- ler, regard being had to the journey proposed. It is implied in the contract that the baggage and the passenger go together. “The general habits and wants of mankind,” observes Erle, C. J., in Phelps ». L. & N. W. Railway Co., 115 E. C. L. 327, “must be taken to be in the mind of a carrier when he receives a pas- senger for conveyance ; and the law makes him responsible for all such things as may be fairly carried by the passenger for his personal use.” In Cahill v. L. & N. W. Railway Co., 100 E. C. L. 172, Willes, J., says, ‘‘ When a passenger takes a ticket at the ordinary charge, he must, according to common sense and common experience, be taken to contract with the railway company for the carriage of himself and his personal luggage only; and that he can no more extend the contract to the conveyance of a single package of merchandise than of his en- tire worldly possessions.” In Smith v. Railroad, 44 N. H. 330, Bel- lows, J., uses the following language: — “ Until a comparatively recent period the English courts were inclined to hold that carriers of passengers by stage-coaches, and otherwise, were not liable for injuries 1o their baggage, unless a distinct price was paid for its transporta- tion. But it is now well settled that the price paid for the passenger includes also the personal baggage required for his personal accommo- dation; the custody of the baggage being regarded as accessory to the principal contract. . . . In general terms it may include, not only his personal apparel, but other conveniences for the journey, such as a passenger usually has with him for his personal accommodation.” ‘*The baggage,” observes Mullin, J., in Merrill v. Grinnell, 30 N. Y. 619, « must be such as is necessary for the particular journey that the pas- senger is, at the time of the employment of the carrier, actually making.” It follows from the nature and object of the contract, that the right of the passenger is limited to the baggage required for his pleasure, 9 130 “WOODS v. DEVIN. convenience, and necessity during the journey. As it is for his use and convenience, it must necessarily be with him, as it is for him. He may reasonably be expected to exercise some supervision over it during, and be ready to receive it, at the termination of his journey. In the pres- ent case the baggage was forwarded two days after the plaintiff had passed over the road. If its transmission may be delayed two days and the carrier is required to take it without any compensation save the fare paid by the passenger, who had preceded it, it may equally be delayed weeks or months and the carrier be required to forward it with- out any additional pay. It presents a different question if the delay is caused by the fault of the carrier, or there is a special agreement with him or his authorized agent for the subsequent transportation of the passenger’s baggage. The fare paid by a passenger over a railroad, is the compensation for his carriage, for the transportation at the same time of such baggage as he may require for his personal convenience and necessity during his journey. Baggage subsequently forwarded by his direction, in the absence of any special agreement with the carrier, or of negligence on his part, is liable, like any other article of merchandise, to the payment of the usual freight. The declaration is in the usual form against carriers. It is well set- tled that the carrier need not be paid in advance, unless he specially demand it, and that he has a lien on the goods carried for his freight. It is not necessary to determine whether or not the defendants would be liable for the trunk as common carriers of merchandise for compen- sation. The case, as presented to the jury and as argued before us, raises the single question of the obligation of the carrier of passengers to take their baggage at a time subsequent to that of the carriage of ‘the passenger, without additional compensation. Exceptions sustained. Kent, Dickerson, Barrows, Danrorts, and Tar.ey, JJ., con- -curred.? WOODS v. DEVIN. Supreme Court or Iturnors, 1852. [13 Zl. 746.2] Treat, C.J. This was an action on the case brought by Devin against Woods. The declaration alleged, in substance, that the plain- tiff, on the 7th of August, 1851, delivered on board the steamboat ‘* Governor Briggs,” then lying at Peoria, and owned by the defendant 1 Compare : Beers v. Boston R. R., 67 Conn. 417; Perkins v. Wright, 37 Ind. 27; Warner v. Burlington, &. R. R., 22 Ia. 166; Flint R. R. o. Weir, 37 Mich. 111; Chesapeake, &c. R. R., v. Wilson, 21 Grat. 654.— Ep. 2 Opinion only is printed. — Ep. WOODS v. DEVIN. 131 and used by him in the transportation of passengers and freight on the Illinois River between Peoria and La Salle, a carpet-bag containing one case of duelling-pistols, one pocket-pistol, and various articles of wear- ing apparel, of the value of $200, to be carried on said boat from Peoria to La Salle for a certain reward, and that the defendant received the same for the purpose aforesaid; yet the defendant, not regarding his duty in the premises, did not deliver the carpet-bag and contents at La Salle, but, on the contrary, lost the same. The plea was, not guilty. It appeared, in evidence, that on the 7th of August, 1851, the plain- tiff was about to take a journey from Peoria to the city of New York, and engaged his passage for La Salle in the steamboat “Governor Briggs,” then owned by the defendant, and run by him on the Illinois River between Peoria and La Salle for the conveyance of passengers and freight; that the plaintiff sent his trunk and carpet-bag to the boat as she was about to leave Peoria for La Salle, and the same were re- ceived on board by the direction of the defendant; that the plaintiff left the boat temporarily, and while absent on shore the carpet-bag was stolen and rifled of. its contents, and the same were never recovered by him; that he did not proceed on his journey in consequence of the loss of the carpet-bag; that the plaintiff did not pay his fare for the pas- sage, nor was there any express contract for the carriage of the trunk and carpet-bag ; that the carpet-bag contained articles of wearing ap- parel of the value of $36, a pair of duelling-pistols of the value of $25, and a pocket-pistol of the value of $15. The court refused to give the following instructions asked by the de- fendant: ‘That if the carpet-bag was merely baggage as is usual for passengers to carry, and was designed as such by the plaintiff, the plaintiff cannot recover under this declaration, and the jury will find for the defendant. If the carpet-bag was for the purpose and use of carrying clothing, &c., the plaintiff cannot recover for the contents of the bag, except for such articles as are usually carried by travellers ; and the jury are the judges whether or not the pistols mentioned are ‘usually a portion of the baggage of a travelling gentleman, and if not, the jury will not allow any amount for the pistols.” The jury found the issue in favor of the plaintiff, and assessed his damages at $73.75. The court overruled a motion for a new trial, and gave judgment on the verdict. A common carrier of passengers is responsible for the baggage of a passenger. THis duty in this respect is the same as that of a common carrier of goods; and he can only excuse himself for the non-delivery of the baggage of a passenger by showing that it was lost by the act of God or of the public enemy. His responsibility commences when the baggage is delivered to him or his authorized agent. The Camden and Amboy Railroad v. Belknap, 21 Wend. 354. His compensation for carrying the baggage is included in tlie fare of the passenger. The Orange County Bank v. Brown, 9 Wend. 85; Hawkins v. Hoffman, 132 WOODS ¥v. DEVIN. 6 Hill, 586. Prepayment of the fare is not necessary in order to charge the carrier for the loss of the baggage. The Citizens’ Bank v. The Nantucket Steamboat Company, 2 Story’s R. 16. He has a remedy by action on the implied contract of the passenger to pay the customary fare; and he has also a lien on the baggage, which he is not compelled to deliver until the fare is paid. Angell on Carriers, § 875; Story on Bailments, § 604. By not requiring the fare to be paid in advance, he relies for remuneration on the remedies indicated. In the present case, the defendant was a common carrier of passen- gers. The plaintiff engaged a passage to La Salle, and sent his hag- gage to the boat. The moment it was received on board the defendant became responsible for its safe delivery at the port of destination, loss occasioned by inevitable accident or the public enemies only excepted. The carpet-bag was stolen from the boat and never recovered by the plaintiff. Loss by theft is not within either of the exceptions to the risk of a common-carrier. The defendant is therefore chargeable with the value of the articles in the carpet-bag, unless they are not to be regarded as forming a part of the baggage of a traveller. It is con- ceded that the articles of wearing apparel were properly baggage; and the only question is in respect to the pistols. What constitutes the baggage of a traveller, for the loss of which a common carrier is liable, is a question of some practical importance, and one that has been much considered in reported cases. It is argued in all the cases that the term “baggage” includes the wearing apparel of the traveller. In the Orange County Bank v. Brown, supra, the trunk of a passenger con- taining $11,250 in money belonging to the bank was lost; and the bank sought to recover the amount of the carrier, on the ground that it was part of the baggage of the passenger. But the court decided that the money did not fall within the term baggage; and that the attempt to carry it free of reward under cover of baggage was an im- position on the carrier. In Pardu v. Drew, 25 Wend. 457, where a trunk containing valuable merchandise, and nothing else, was taken on board of a boat by a passenger, and deposited with the ordinary bag- gage, it was held that the carrier was not chargeable for its loss. In Hawkins v. Hoffman, supra, it was decided that the term “ baggage” did not embrace samples of merchandise carried by a passenger in his trunk for the purpose of enabling him to make bargains for the sale of goods. In Cole v. Goodwin, 19 Wend. 251, and Weed v. The Saratoga and Schenectady Railroad Company, 19 Wend. 534, the court held that a carrier was liable for money in the trunk of a passenger not exceeding a reasonable amount for travelling expenses. In Jones v. Voorhees, 10 Ohio, 145, a carrier was made liable for the value of a gold watch lost from the trunk of a passenger. In McGill v. Rowand, 3 Barr, 451, the husband was permitted to recover of the carrier the value of his wife’s jewelry which had been taken from her trunk on the coach in which she was a passenger. In Porter v. Hildebrand, 2 Har. 129, the court held that a carpenter might recover from a carrier the value WOODS v. DEVIN. 133 of tools contained with clothing in his trunk, which the carrier had lost, the jury having found that they were the reasonable tools of a carpenter. The principle of the authorities is, that the term “ baggage” in- cludes a reasonable amount of money in the trunk of a passenger in- tended for travelling expenses, and such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement, or protection; and that it does not extend to money, merchandise, or other valuables, although carried in the trunks of passengers, which are designed for different purposes. And regard may with propriety be had to the object and length of the journey, the expenses attending it, and the habits and condition in life of the passenger. A more definite rule cannot well be laid down. The remarks of Bunson, J., in Hawkins v. Hoffman, supra, are perti- nent. He says, ‘‘It is undoubtedly difficult to define with accuracy what shall be deemed baggage within the rule of the carrier’s liability. Ido not intend to say that the articles must be such as every man deems essential to his comfort; for some men carry nothing, or very little, with them when they travel, while others consult their conven- ience by carrying many things. Nor do I intend to say that the rule is confined to wearing apparel, brushes, razors, writing apparatus, and the like, which most persons deem indispensable. If one has books for instruction or his amusement by the way, or carries his gun or fish- ing-tackle, they would undoubtedly fall within the term ‘ baggage,’ because they are usually carried as such.” We think the articles in question formed a part of the baggage of the plaintiff, and as such come within the risk of the carrier. They were not carried for purposes of sale or traffic, but for the personal use and protection of the passenger; and it is not unusual for such articles to be carried in the trunks of travellers. There was no substantial variance between the declaration and the evidence. The declaration alleged that the defendant received the car- pet-bag, to be carried from Peoria to La Salle for a reward. The proof clearly sustained the averment. It indeed showed in addition, that the plaintiff engaged a passage for the same destination, and that he had other baggage. But as the only cause of complaint against the defend- ant was the loss of the carpet-bag, it was not necessary to state the additional matter in the declaration, especially in an action on the case for the breach of the common-law duty of the carrier. It might per- haps be otherwise in an action of assumpsit on the contract of the car- rier. See Weed v. The Saratoga and Schenectady Railroad Company, supra. The judgment is affirmed. Judgment affirmed. 1 Compare: Hudston v. Midland R. R., L. R. 4 Q. B. 866; Fraloff v. New York R. R., 100 U. S. 24; Hickox v. Naugatuck R. R., 31 Conn. 281; Staub v. Kendrick, 121 Ind. 226; Connolly v. Warren, 106 Mass. 146; Porter v. Hildebrand, 14 Pa. St. 149; Oakes v. No. Pacific R. R., 20 Ore. 392. — Ep. 134 WEISENGER v. TAYLOR. WEISENGER v. TAYLOR. Court or Apress, Kentucky, 1866. {1 Bush, 275.1] Roserrson, J. The appellant, Henry Weisenger, sued the appellees, J. M. and G. H. Taylor, for $90, stolen from a room occupied by him while a guest in their public inn; charging that the loss resulted from their culpable negligence. The Circuit Court sustained a demurrer to the petition, and, on fail- ure to amend, dismissed it. The common, like the civil law, but even more stringent, exacts of inn-keepers, as bailees of the baggage and goods of their guests,. extraordinary care, and imposes on them a responsibility nearly com- mensurable with that of common carriers, approximating insurance of such articles when confided expressly or impliedly to their custody and care. But whenever the guest assumes the, custody and control of his goods in such a way as to indicate that he does not trust the inn-keeper, and concedes to him no control, they are not in the implied custody of the inn-keeper, and he is therefore not responsible, unless they shall be stolen by some of his own household, whose honesty and fidelity he is presumed to guarantee. ; The inn-keeper’s responsibility is only co-extensive with his custody and control, and his pledge of the integrity of his servants. And the question of custody and control depends on facts indicative of inten- tion. If the guest, having an article not attached to his person, nor carried about with him for his personal convenience — such, for ex- ample, as a bag of gold, a case of jewelry, or a package of paper currency —the fact that he does not either notify the host of it, or offer to place it in his actual custody, would imply that he trusted to his own care, and intended to risk all consequences. And, if the article thus held by himself alone should be stolen from him while abiding in the inn, the loss, like the preferred custody, might be his own alone, unless it resulted from the dishonesty of some of the household. The inn-keeper, deprived of both custody and control, could not be held responsible on any just or consistent principle. But such articles as apparel worn at the time, and watch and pocket money, are not expected to be delivered to the inn-keeper for safe- keeping, and the retention of them in the guest’s room neither keeps them from the implied custody of the inn-keeper, nor implies a waiver of his responsibility. In respect to such articles, therefore, thus kept, the inn-keeper is prima facie the responsible curator. And it seems to us that the $90 kept in the appellant’s pocket for daily use for inci- dental expenses, should be considered as embraced in this last category. 1 Opinion only is printed. — Ep. BUCKLAND v. ADAMS EXPRESS CO. 135 This being so adjudged, the petition contains every allegation necessary to show a cause of action to be tried on a proper issue of fact. Wherefore, the judgment is reversed, and cause remanded for further pleadings and proceedings.? BUCKLAND v. ADAMS EXPRESS CO. Supreme Court or Massacuuserts, 1867. [97 Mass. 1242.] Contract to recover the value of a case of pistols. BicELow, 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 leval 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 ready to render to those who may have occasion to employ them. Upon this point there is no room for doubt. They exercise the employment of receiving, carrying, and delivering goods, wares, and merchandise for hire on bebalf 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, 1-16. 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 tbe very nature of the case, exercise any 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 by them nor subject to their direction or supervision; and that the rules of the common law, regulating the 1 Compare: Lanier v. Youngblood, 73 Ala. 587; Matter v. Brown, 1 Cal. 221; Sassen v. Clark, 37 Ga. 242; Giles v. Fautelroy, 13 Md. 434; Smith v. Wilson, 36 Minn. 334; Scheffer v. Wilson, 5 S. Dak. 233. — Ep. 2 This case is abridged. — Ep. ' 136 BUCKLAND v. ADAMS EXPRESS CO. 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 by 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 by 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 limits that it may be done under his personal care and supervision or by agents whom he can select and control. But if he undertakes 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 FERGUSON v. METROPOLITAN GAS LIGHT CO. 137 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. FERGUSON v. THE METROPOLITAN GAS LIGHT COMPANY. New Yor«k Common Pueas, 1868. [87 How. Pr. 189.] By the court, Brapy, J. The plaintiff occupied one floor of a dwell- ing or tenement house in this city. The owner had put in it the service pipes for gas, according to the regulations of the defendants. He applied for gas which was supplied through one meter, placed in the cellar of the house. He also applied for separate meters for each floor, which were not furnished by the defendants, and it would seem because he had not put into the house separate or independent service pipes for each floor to which the meter might be connected. It does not appear that this application being refused, he took any steps to enforce his demand. It is conceded that the pipes in the house were sufficient to serve it with gas, and that gas could be carried to all parts of it through them. The plaintiff when he became an occupant also applied for gas, and the defendants answered by saying that they had already furnished it to the building, and refused to place a meter on the plaintiffs floor unless separate and independent service pipes were provided. The plaintiff’s application was not in fact alone for gas, but for a separate meter as well. He wanted the meter, as he stated on the trial, and the question really involved in this controversy is, whether the defendants were bound to furnish it. The plaintiff sues for a penalty under the sixth section of the act of 1859 (Laws, p. 698), which provides that all gas companies shall supply gas to the owner or occupant of any building or premises, which may be required for lighting it or them, upon a written application therefor to be signed by him. It also provides, that if for the space of ten days after such application, and the deposit of a reasonable sum, as in the act provided (if required), the company shall refuse or neglect to supply gas, they shall pay to the applicant the sum of ten dollars and five dollars for every day thereafter during which such neglect or re- fusal shall continue. It will be observed that there is no qualification on the obligation 1 Compare: Express Co. v. Cook, 44 Ala. 468; Express Co. v. Newby, 36 Ga. 635 ; Christenson v. Express Co., 15 Minn. 270; Express Co. v. Backman, 28 Oh. St. 144. — Ep. 138 FERGUSON v. METROPOLITAN GAS LIGHT CO. imposed by the statute. The gas must be furnished or a penalty is incurred, which continues from day to day, as long as the refusal or neglect to supply it is continued. It will also be observed that the section referred to does not either directly or indirectly require the company to furnish a meter, either to the owner or occupant, for the whole or any part of the premises, and the act is equally silent as to the mode by which the gas shall be conveyed through the houses. The plaintiff seeks the enforcement of a penalty, and whether the statute be regarded as penal or remedial, and one either to be strictly or liberally construed, his claim is not within its purview. Assuming that he is the occupant of premises within the meaning of the statute, which may well be questioned, and that he had the right to apply for gas, the answer to his demand is, that gas was supplied through the pipes provided by his landlord, which he could use if he chose to do so, and the response disposes of his claim. The owner of the building had exhausted the power to compel the defendants to furnish gas, under section six of the act referred to. They had granted his application for it, although they had declined to furnish separate meters, a neglect or refusal of which to him he alone could take advantage of. The gas having been thus furnished, no penalty was incurred by them, unless the omission to supply a meter to the plaintiff is fairly within the appli- cation for gas and included in it. This cannot be. The meter is employed for the benefit not of the consumer but the company, and cannot be used without tests which the former may insist shall be applied (§ 5). If the company prefer, they may supply the gas without it, for aught that appears in this case. The statute does not require them to furnish it, and that in itself may be sufficient to dispose of this case. If the statute be strictly con- strued, the defendants are not liable, because they have furnished gas to the building which includes the premises occupied by the plaintiff, and which only they were bound to furnish, and if it be liberally en- forced, then the defendants should not be obliged to provide an article which is not required by the letter of the law, nor necessary to the plaintiff for the enjoyment of the light which he desires, nor should such a construction create a duty which under its provisions is not declared. It must be said in addition, that if it were otherwise considered, that the defendants should not be prohibited from adopting reasonable rules with reference to the introduction of gas, protective of their own interests. They proved on the trial, that it was not customary to put in sepa- rate meters such as demanded by the plaintiff, without separate service pipes, and that they were necessary to prevent ‘ tapping,” which would result in a fraud upon their rights. The legislature has by various provisions in the act of 1859 sought to guard them against fraud and theft, and has taken the lead in anticipating violations of fair dealing, against which corporations as well as natural persons are guaranteed LAWRENCE Vv. PULLMAN PALACE CAR. CO. 139 under our laws, the right to protect themselves, even in the discharge of duties imposed upon them. For these reasons the judgment should be reversed. LAWRENCE v. PULLMAN PALACE CAR CO. Supreme Courr or Massacuvserrs, 1887. [144 Mass. 1.1] Devens, J. The gist of the plaintiff's claim is that he was wrong- fully refused accommodation in the sleeping car of the defendant, in coming from Baltimore to New York, by the defendant’s servants; and that, on declining to leave the car, he was ejected therefrom. His argument assumes that it was for the defendant to determine under what circumstances a passenger should be allowed to purchase a berth, and, incidentally, the other accommodations afforded by the sleeping car. An examination of the contract with the Pennsylvania Railroad Company, by virtue of which the cars owned by the defendant were conveyed over its railroad, shows that, while these cars were to be fur- nished by the defendant corporation, they were so furnished to be used by the railroad company “for the transportation of passengers ;” that its employees were to be governed by the rules and regulations of the railroad company, such as it might adopt, from time to time, for the government of its own employees. While, therefore, the defendant company was to collect the fares for the accommodations furnished by its cars, keep them in proper order, and attend upon the passengers, it was for the railroad company to determine who should be entitled to enjoy the accommodations of these cars, and by what regulation this use of the cars should be governed. The defendant company could not certainly furnish a berth in its cars until the person requesting it had become entitled to transportation by the railroad company as a passen- ger, and he must also be entitled to the transportation for such routes, distances, or under such circumstances, as the railroad company should determine to be those under which the defendant company would be authorized to furnish him with its accommodations. The defendant company could only contract with a passenger when he was of such a class that the railroad company permitted the contract to be made. The railroad company had classified its trains, fixing the terms upon which persons should become entitled to transportation in the sleeping cars, and the cars in which such transportation would be afforded. It was its regulation that, between Baltimore and New York, this accom- modation should only be furnished to those holding a ticket over the whole route. It does not appear that this was an unreasonable rule, 1 This case is abridged. — Ep. 140 LAWRENCE v. PULLMAN PALACE CAR CO. but, whether it was so or not, it was the regulation of the railroad com- pany, and not of the defendant. The evidence was, “that the ordinary train conductors of the Pennsylvania Railroad Company have full and entire authority over the porters and conductors of the Pullman cars, in regard to the matter of determining who shall ride in the cars, and under what circumstances, and in regard to every other thing, except” the details of care, &c. The defendant’s servant, the plaintiff having en- tered the sleeping car, informed him that his “split tickets,” as they are termed, were not such as would entitle him to purchase a berth, and that he could sell only to those holding “through passage tickets, intact, to the point to which sleeping accommodations were desired.” The plaintiff was in no way disturbed until the train conductor (who was not the defendant's servant) came into the car, informed the plain- tiff that his tickets were not such as to entitle him to purchase the sleeping-car ticket, and several times urged the plaintiff to leave the sleeping car, which the plaintiff refused to do. Whether accommoda- tion was rightly refused to the plaintiff or not in the sleeping car, the refusal was the act of the railroad company’s servant, and not of the defendant’s, whose duty it was to be guided by the train conductor. The ejection of the plaintiff was also the act of the railroad company, and not of the defendant. It is the contention of the plaintiff, that, even if he might be ejected from the car, it was done in an improper manner. The plaintiff testified that he was waiting for a “show of force,” after his repeated refusals to leave the car. This exhibition of force was made by the train conductor, who put his hand upon him, when the plaintiff rose and yielded thereto. The defendant’s conductor took hold of the plaintiff’s arm when he rose, and aided the plaintiff in crossing the platform of the cars, but the evidence does not show that he used or exercised any force whatever. Even if he had used force upon the plaintiff, he was not doing the business of the defendant com- pany ; he was assisting the train conductor in the duty he was perform- ing as servant of the railroad company. To conduct him across from one car to another in the manner described by the plaintiff himself, after he had repeatedly refused to leave the car, affords no evidence of any removal in an improper manner. The act of the defendant’s servant was in every way calculated to assist the plaintiff in his transit from one car to another. Nor is the fact important that the car into which the plaintiff was passed subsequently became cold, even if it were possible to hold the defendant responsible for the act of its servant. So far as appears by the evidence, there is no reason to believe that, when the plaintiff en- tered the car, it was not in fit condition to receive passengers ; and, by the contract, the management of it and the duty of furnishing fuel were entirely with the railroad company, and not with the defendant. Judgment on the verdict. * Lemon v. Palace Car Co., 52 Fed. 262; Nevin v. Palace Car Co., 106 Ill. 226; Williams v. Palace Car Co., 40 La. Ann. 417. — Ep. PEOPLE ¥. MANHATTAN GAS LIGHT CO, 141 THE PEOPLE v. MANHATTAN GAS LIGHT CO. Supreme Court or New York, 1865. [45 Barb. 136.] AppzaL from an order made at a special term, denying an application for a mandamus commanding the defendants to supply the plaintiff with gas, at his house, No. 121 West Sixteenth Street, New York. By the court, Incranam, P.J. I think there can be no doubt about the authority of this court to direct the respondents to furnish gas to persons who, under the provisions of their charter, have a right to receive it and who offer to comply with the general conditions on which the company supply others. They possess, by virtue of their charter, powers and privileges which others cannot exercise, and the statutory duty is imposed upon them to furnish gas on payment of all moneys due by such applicants. We are left then to inquire whether the relator was in a condition to demand from the company this supply. It appears by the papers used on the motion that the relator commenced taking gas in 1858, at No. 61 in Seventh Avenue, and was supplied with gas by the company, until 28th of December, 1861. That he paid for the gas so received up to 19th of August, 1861, and that for gas furnished after that date he has not paid. It also appears that in January, 1865, the respondent sued the relator and obtained a judgment against him for the amount due therefor, which still remains unpaid. In May, 1864, the relator applied to the company for gas at 121 West Sixteenth Street, which was fur- nished to him by the company, without objection on account of the former indebtedness, until 9th of February, 1865, when the company shut off the supply of gas and refused to furnish any more. It also ap- pears that the relator in answer to a claim for payment of this indebted- ness, represents himself as insolvent and unable to pay the judgment. There is nothing in the charter of the company which requires them to make the objection that the applicant was indebted to them at the time of the first application. It would be unreasonable to suppose that in every instance they could ascertain such indebtedness. If at any time the party is so indebted, the company may refuse to furnish, and more especially should this be so when the relator avows his insolvency and his-inability to pay for gas furnished previously. The attempted denial of liability for this bill, by the relator, will not aid him. The company have obtained a judgment against him. ‘This is not disputed, and no attempt is made by him to set it aside. Solong as that remains in force it is conclusive against him. The order appealed from should be affirmed, with $10 costs. 1 Compare: Montreal Gas Co. v. Cadieux, 1899, A. C. 589; Shiras v. Ewing, 48 Kans. 170; Gas Co. v. Storage Co., 111 Mich. 401; McDaniel v. Waterworks, 48 Mo. 273; Turner v. Water Co., 171 Mass. 330; Ins. Co. v. Philadelphia, 88 Pa. St. 393 ; Hotel Co. v. Light Co., 3 Wash 316,— Ep. 142 STATE v. NEBRASKA TELEPHONE CO. STATE v. NEBRASKA TELEPHONE CO. \ Supreme Courr or NeprasKa, 1885. [17 Neb. 126.1] Resse, J. This is an original application for a mandamus to compel the respondent to place and maintain in the office of the relator a tele- phone and transmitter, such as are usually furnished to the subscribers of the respondent. The respondent has refused to furnish the instru- ments, and presents several excuses and reasons for its refusal, some of which we will briefly notice. It appears that during the year 1883 the respondent placed an instru- ment in the office of the relator, but for some reason failed to furnish the relator with a directory or list of its subscribers in Lincoln and various other cities and villages within its circuit, and which directory the relator claimed was essential to the profitable use of. the telephone, and which it was the custom of respondent to furnish to its subscribers. Finally, the directory was furnished, but upon pay-day the relator re- fused to pay for the use of the telephone during the time the respondent was in default with the directory. Neither party being willing to yield, the instruments were removed. Soon afterwards the relator applied to the agent of the respondent and requested to become a subscriber and to have an instrument placed in his place of business, which the respondent refused to do. It is insisted that the conduct of the relator now relieves respondent from any obligation to furnish the telephone even if such obligation would otherwise exist. We cannot see that the relations of the parties to each other can have any influence upon their rights and obligations in this action. If relator is indebted to respondent for the use of its telephone the law gives it an adequate remedy by an action for the amount due. If the telephone has become such a public servant as to be subject to the proc- ess of the courts in compelling it to discharge public duties, the mere fact of a misunderstanding with those who desire to receive its public benefits, will not alone relieve it from the discharge of those duties. While either, or perhaps both, of the parties may have been in the wrong so far as the past is concerned, we fail to perceive how it can affect the rights of the parties to this action. The pleadings and proofs show that the relator is an attorney-at-law in Lincoln, Nebraska. That he is somewhat extensively engaged in the business of his profession, which extends to Lincoln and Omaha, and surrounding cities and county seats, including quite a number of the principal towns in southeastern Nebraska. That this territory is occupied by respondent exclusively, together with a large portion of 1 This opinion is abridged. — Ep. STATE v. NEBRASKA TELEPHONE Co. 143 southwestern Iowa, including in all about fifteen hundred different instruments. By the testimony of one of the principal witnesses for respondent we learn that the company is incorporated for the purpose of furnishing individual subscribers telephone connection with each other under the patents owned by the American Telephone Company; instruments to be furnished by said company and sublet by the Nebraska Telephone Company to the subscribers to it. This is clearly the purpose of the organization. While it is true, as claimed by respondent, that it has been organized under the general corporation laws of the State, and in some matters has no higher or greater right than an ordinary corpora- tion, yet it is also true that it has assumed to act in a capacity which is to a great extent public, and has, in the large territory covered by it, undertaken to satisfy a public want or necessity. This public demand can only be supplied by complying with the necessity which has sprung into existence by the introduction of the instrument known as the tele- phone, and which new demand or necessity in commerce the respondent proposes satisfying. It is also true that the respondent is not possessed of any special privileges under the statutes of the State, and that it is not under quite so heavy obligations, legally, to the public as it would be, had it been favored in that way, but we fail to sce just how that fact relieves it. While there is no law giving it a monopoly of the business in the territory covered by its wires, yet it must be apparent to all that the mere fact of this territory being covered by the ‘‘ plant” of re- spondent, from the very nature and character of its business gives it a monopoly of the business which it transacts. No two companies will try to cover this same territory. The demands of the commerce of the present day makes the telephone a necessity. All the people upon complying with the reasonable rules and demands of the owners of the commodity — patented as it is— should have the benefits of this new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce so necessary in the prosecution of all kinds of business, unless supplied by the respondent. He has tendered to it all the money required by it from its other subscribers in Lincoln for put- ting in an instrument. He has proven, and it is conceded by respond- ent, that he is able, financially, to meet all the payments which may become due in the future. It is shown that his office can be supplied with less expense and trouble to respondent than many others which are furnished by it. No reason can be assigned why respondent should not furnish the required instruments, except that it does not want to. There could, and doubtless does, exist in many cases sufficient reason for failing to comply with such a demand, but they are not shown to exist in this case. It is shown to be essential to the business interests of relator that his office be furnished with a telephone. The value of 144 STATE v. NEBRASKA TELEPHONE CO. such property is, of course, conceded by respondent, but by its attitude it says it will destroy those interests and give to some one in the same business, who may have been more friendly, this advantage over him. It is said by respondent that it has public telephone stations in Lin- coln, some of which are near relator’s office, and that he is entitled to and may use such telephone to its full extent by coming there. That, like the telegraph, it is bound to send the messages of relator, but it can as well do it from these public stations, that it is willing to do so, and that is all that can be required of it. Were it true that respondent had not undertaken to supply a public demand beyond that undertaken by the telegraph, then its obligations would extend no further. But as the telegraph has undertaken to the public to send despatches from its offices, so the telephone has undertaken with the public to send mes- sages from its instruments, one of which it proposes to supply to each person or interest requiring it, if conditions are reasonably favorable. This is the basis upon which it proposes to operate the demand which it proposes to supply. It has so assumed and undertaken to the public, That the telephone, by the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation and of a great portion of the civilized world, cannot be questioned. It is to all intents and purposes a part of the telegraphic system of the country, and in so far as it has been introduced for public use and has been undertaken by the respondent, so far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibilities of a common carrier of news. Its wires and poles line our public streets and thoroughfares. It has, and must be held to have taken its place by the side of the telegraph as such common carrier. The views herein expressed are not new. Similar questions have arisen in, and have been frequently discussed and decided by, the courts, and no statute has been deemed necessary to aid the courts in holding that when a person or company undertakes to supply a demand which is ‘‘affected with a public interest,” it must supply all alike who are like situated, and not discriminate in favor of, nor against any. This reasoning is not met by saying that the rules laid down by the courts as applicable to railroads, express companies, telegraphs, and other older servants of the public, do not apply to telephones, for the reason that they are of recent invention and were not thought of at the time the decisions were made, and hence are not affected by them, and can only be reached by legislation. The principles established and declared by the courts, and which were and are demanded by the highest mate- rial interests of the country, are not confined to the instrumentalities of commerce nor to the particular kinds of service known or in use at the time when those principles were enunciated, ‘ but they keep pace with the progress of the country and adapt themsclves to the new develop- ments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from STATE v. CAMPBELL. 145 the coach and the steamboat to the railroad, and from the railroad to the telegraph,” and from the telegraph to the telephone; ‘‘ as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the govern- ment of the business to which they relate, at all times and under all circumstances.” A peremptory writ of mandamus must be awarded.! STATE v. CAMPBELL. Supreme Courr or New Jersey, 1867. [32 NV. J. Law, 309.2] Tue Cuter Justice. . . . To make intelligible the application of the law to the case, the circumstances must be understood. ‘They were these: the passenger who was expelled had purchased, at the depot in New York, this ticket, which he produced and showed, for the first time, on the platform at the station at Newark. At the time that he provided himself with it, he expected to have trouble with the conduc- tor, as it was then his intention to insist on his right to use the return ticket, which was spent. Being called on by the conductor, on two several occasions, to show his ticket, he produced the spent one, keep- ing the other out of view, so that the conductor was not aware of its possession by him, while he remained in the cars. Having arrived at the Newark station, he was informed he must pay his fare or leave the cars. He refused to do either act. The conductor then declared his intention to delay the train until the passenger paid his fare or left the cars, and accordingly he sent back a flag, to warn a train that was nearly due at Newark. This produced excitement; and when the employees of the company were called in, the acquaintances of the rec- reant passenger collected around him and endeavored to prevent his being put out. The passenger himself resisted by clinging to the seats. After a delay of twelve minutes he was ejected. During this time the other train, which had been warned of the danger, arrived. It is presumed that no person will deny that here was a transaction which, if often repeated, would deprive railroad travel of some of its security and much of its comfort. The annoyance and danger to be apprehended from such an affair, are too obvious to need exposition. It is clear, therefore, that some person was to blame. That person was certainly not the company or its agents. The company, through its 1 Compare: Smith v. Water Works, 104 Ala. 315; Crow v. Irrigation Co., 130 Cal. 311; Lloyd v. Gas Co., 1 Mackey, 131; Gas Co, v. Calliday, 25 Md.1; Bank v. Lowell, 152 Mass, 556; Wood v. Auburn, 87 Me. 287; Water Works v. State, 46 Neb. 194; Crumley v. Water Co., 99 Tenn, 420. — Ep. 2 This opinion is abridged. — Ep. 10 146 STATE v7. CAMPBELL. agents, simply enforced a plain legal right in a legal mode. The whole fault must be laid to the passenger; and the only question which can possibly arise is, whether his conduct was such as to justify the con- ductor in refusing him re-admission into the cars. The proposition is simply this: if a passenger refuses to show his ticket on a legal de- mand made, and refuses to leave the cars on request, and is put out, after resistance, has he, as a matter of law, the privilege to return to the cars upon the preduction, at this stage of the occurrence, of his ticket? This proposition must be answered in the affirmative, in order, in this case, to hold that the defendant was guilty of a wrong. In my opinion, such a doctrine is not consistent with either law or good sense. Its establishment would, practically, annul the power of a railroad company to require passengers to show their tickets ; for it is obvious, that if the only penalty on a refractory passenger is a momen- tary expulsion, he will be enabled, at a small sacrifice, by repeated refusals, to compel an abandonment of the demand upon him. A passenger takes his ticket subject to the reasonable regulations of the company ; it is an implied condition in his contract, that he will sub- mit to such regulations; and if he wilfully refuses to be bound hy them, by so doing he repudiates his contract, and after such repudia- tion cannot claim any right under it. In this case, the passenger, with full knowledge of the regulation in question, refused to show his ticket, which alone gave him the right to a seat in the cars. The ex- hibition of the spent ticket did not help the matter; he stands, there- fore, on the same footing as any other passenger who, when properly applied to, will not exhibit the evidence of his rightful presence in the car. If this particular passenger had the legal right to re-enter the cars after his tortious refusal, so, on all similar occasions, will all other passengers be entitled to the same right. We come thus to the result, that railroad passengers may violate, with full knowledge, a leval reg- ulation of a company in whose cars they are carried; they may resist, short of a breach of the peace, all attempts to expel them; they may, by this means, at a loss to the company and to the peril of the public, disarrange the order of successive trains upon the road, with regard to each other; they may occasion a tumult and disorder in the car in which they may happen to be; and, after being expelled, they may immediately return to repeat, if so inclined, the same misconduct. I must think it requires no argument to show that such a license to do evil as this does not exist. The defendant was entirely justified in forming the rational conclusion, that the passenger in question, if re-admitted into the cars, would again misconduct himself ; and, under such circum- stances, it was his duty to exclude him. The Court of Oyer and Terminer should be advised to set aside the verdict.? 1 Compare: Carolina R. R. v. Nix, 68 Ga. 572; Louisville R. R. v. Breckenridge, 99 Ky. 1; Obrien v. Boston R. R., 15 Grav, 20; Pease v. Delaware R. R., 101 N.Y. 367; Texas R. R. v. James, 82 Tex. 306. — Ep. PENNINGTON v. PHILADELPHIA, ETC. RAILROAD. 147 PENNINGTON v. PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD CO. Supreme Court or Maryann, 1883. [62 Md. 95.1] Bryan, J., delivered the opinion of the court. The appellant purchased from a ticket agent of the appellee a ticket of which the following is a copy. Puita. Wii. and Barro. R. R. (One Continuous Passage.) PERRYMAN’S to BALTIMORE, Excursion Return Check. In consideration of the reduced rate at which the ticket is sold, it is agreed that it shall be used within three days, including the day of sale, for a continu- ous trip only, and by such trains as stop regularly at the station, and by its acceptance the purchaser becomes a party to and binds himself to a compliance with these conditions. (1,723) Gro. A. DADMUN, General Ticket Agent. On the back of the above ticket is the following stamp, to wit: Phila. Wilm. and Balto. R. R. \ Dec. 13, 1882. | Baltimore. 7 v. 62. He proceeded in appellee’s cars to Perryman’s on the thirteenth day of December, 1881, and while attempting to return on the sixteenth day of December, the conductor refused to receive the ticket for his passage and required him to leave the cars. The controversy depends upon the rights acquired by the purchase of the ticket. The plaintiff, at the trial below, offered to prove that before he purchased the ticket, he was informed by the agent, upon inquiry from him, that it was *¢ good until used.” We think that the plaintiff’s rights in this regard are limited by the ticket. There is no evidence in the record that the ticket agent was authorized to make any contracts for the railroad company, or that he had any duties beyond the sale and delivery of the tickets. The ticket purchased by the appellant clearly informed him that he would have no right to use it after the fifteenth, and the agent had no authority to vary its terms. A passenger has a right to be conveyed in the cars of a railroad company without making any special contract for transportation. Upon payment of the usual fare, the company is bound to convey him, and is under all the obligations imposed by law on common carriers, so far as they relate to the transportation of him as a passenger. It is competent to vary these obligations by a special agreement, on valu- 1 Opinion only is printed. — Ep. 148 PENNINGTON v. PHILADELPHIA, ETC. RAILROAD. able consideration, between the passenger and the company. Bat if the passenger chovses to do so, he may stand on his legal rights, and elect to be carried to Lis destination without making any special con- tract. The mere purchase of a ticket does not constitute a contract. Before the ordinary liability of the railroad company can be varied, there must be a consent of the passenger, founded on valuable con- sideration. ine ticket ordinarily is only a token, showing that the passenger has paid his fare. But where the ticket is sold at less than the usual rates, on the condition that it shall not be used after a limited time, if the passenger accepts and uses the ticket, he makes a contract with the company according to the terms stated, and the reduction in the fare is the consideration for his contract. It is true, he pays his fare before he receives the ticket, but if he has been misled or misin- formed by the seller of the ticket, as to its terms, he has a right to return the ticket and receive back his money. The railroad company agrees to carry him at the reduced rate, upon the conditions stated on the face of his ticket; if he agrees to those terms the contract is con- summated ; but he cannot take advantage of the reduction of the rate and reject the terms on which alone the reduction was made. In this case the plaintiff made the journey to Perryman’s, under the terms mentioned in the ticket. There was evidence that he did not read the ticket. He used it and thereby availed himself of the advan- tage conferred by the diminished rates. He had an ample opportunity to read it if he had chosen to do so. He could not, on any principle, hold the railroad company to any terms except those stated. If there was a contract, these terms were embraced in it, if there was no con- tract, he had no right to the reduction in the fare. After availing himself of this reduction, it was too late for him to allege that he did not know on what terms the reduction was made; when he had an ample opportunity of learning them from the ticket in his possession. The plaintiff was required to leave the cars at Back River Station, on his journey back to Baltimore from Perryman’s. After he had left the cars and while on the platform he offered to pay the conductor his fare from that station to Baltimore, but the conductor refused to give him admission to the cars. The plaintiff had already accomplished a portion of the return journey to Baltimore without paying his fare. He clearly was not entitled to be conveyed from Perryman’s to Balti- more without paying fare for the whole distance. If he had been car- ried from Back River Station to Baltimore, on payment of the fare only from that place, he would have escaped payment of a portion of the fare: and so, in fact, he would have accomplished the return trip at a reduced rate. The company was under no obligation to carry him for less than the full rate for the whole distance, and so he was prop- erly excluded from the cars. The judgment must be affirmed. Judgment affirmed. 1 Compare: Manning v. Louisville R. R., 95 Ala. 392; Stone v. Chicago R. R., 47 Ta. 82; Davis v, Kansas City R. R., 53 Mo. 317; Texas Pacific R. R. v. Bond, 62 Tex. 442.-- Fn. McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. 149 McDUFFEE v. PORTLAND AND ROCHESTER RAILROAD. Supreme Jupiciat Court or New Hampsuirt, 1873. (52 NV. 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. 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 reasonably 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. ‘He [the com- mon carrier] holds a sort of official relation to the public. He is bound to carry at reasonable rates such commodities as are in his line of business, for all persons who offer them, as early as his means will allow. He cannot refuse to carry a proper article, tendered to him at a suitable time and place, on the offer of the usual reasonable compen- sation. Story on Bailments, sec. 508; Riley v. Horne, 5 Bing. 217, 224; Bennett v. Dutton, 10 N. H.486. When he undertakes the busi- ness of a common carrier, he assumes this relation to the public, and he is not at liberty to decline the duties and responsibilities of his place, as they are defined and fixed by law.”” Moses v. B.& M. R.R., 24 N. H. 71, 88, 89. On this ground it was held, in that case, that a common catrier could not, by a public notice, discharge himself from the legal responsibility pertaining to his office, or from performing his public duty in the way and on the terms prescribed by law. ‘¢ The very definition of a common carrier excludes the idea of the right to grant monopolies, or to give special and unequal preferences. It implies indifference as to whom they may serve, and an equal readi- ness to serve all who may apply, and in the order of their application.” N. E. Express Co. v. M. C. R. R. Co., 57 Me. 188, 196. A common 1 Arguments of counsel are omitted. — Ep. 150 McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. carrier of passengers cannot exercise an unreasonable discrimination in carrying one and refusing to carry another. Bennett v. Dutton, 10 N. H. 481. A common carrier of freight cannot exercise an unreasonable discrimination in carrying for one and refusing to carry for another. He may be a common carrier of one kind of property, and not of an- other; but, as to goods of which he is a common carrier, he cannot discriminate unreasonably against any individual in the performance of the public duty which he assumed when he engaged in the occupation of carrying for all. His service would not be public if, out of the per- sons and things in his line of business, he could arbitrarily select whom and what he would carry. Such a power of arbitrary selection would destroy the public character of his employment, and the rights which the public acquired when he volunteered in the public service of common- carrier transportation. With such a power, he would be a carrier, — a special, private carrier, — but not a common, public one. From the public service — which he entered of his own accord — he may retire, ceasing to be a common carrier, with or without the public consent, according to the law applicable to his case; but, as long as he remains in the service, he must perform the duties appertaining to it. The remedies for neglect or violation of duty in the civil service of the State are not the same as in the military service; but the public rights of having the duties of each performed are much the same, and, in the department now under consideration, ample remedies are not want- ing. The right to the transportation service of a common carrier is a common as well as a public right, belonging to every individual as well as to the State. A right of conveyance, unreasonably and injuriously preferred and exclusive, and made so by a special contract of the com- mon carrier, is not the common, public right, but a violation of it. And when an individual is specially injured by such a violation of the common right which he is entitled to enjoy, he may have redress in an- action at common law. The common carrier has no cause to complain of his legal responsibility. It was for him to consider as well the duty as the profit of being a public servant, before embarking in that busi- ness. The profit could not be considered without taking the duty into account, for the rightful profit is the balance of compensation left after paying the expenses of performing the duty. And he knew before- hand, or ought to have known, that if no profit should accrue, the per- formance of the duty would be none the less obligatory until he should be discharged from the public service. Taylor v. Railway, 48 N. H. 304, 317. The chances of profit and loss are his risks, being necessary incidents of his adventure, and for him to judge of before devoting his time, labor, care, skill, and capital to the service of the country. Profitable or unprofitable, his condition is that of one held to service, having by his own act, of his own free will, submitted himself to that condition, and not having liberated himself, nor been released, from it. A common carrier cannot directly exercise unreasonable discrimina- tion as to whom and what-he will carry. On what legal ground can McCDUFFEE v. PORTLAND & ROCHESTER RAILROAD. 151 he exercise such discrimination indirectly? He cannot, without good reason, while carrying A, unconditionally refuse to carry B. On what legal ground can he, without good reason, while providing agreeable terms, facilities, and accommodations for the conveyance of A and his goods, provide such disagreeable ones for B that he is practically com- pelled to stay at home with his goods, deprived of his share of the common right of transportation? What legal principle, guaranteeing the common right against direct attack, sanctions its destruction by a circuitous invasion? As no one can infringe the common right of travel and commercial intercourse over a public highway, on land or water, by making the way absolutely impassable, or rendering its pas- sage unreasonably unpleasant, unhealthy, or unprofitable, so a com- mon carrier cannot infringe the common right of common carriage, either by unreasonably refusing to carry one or all, for one or for all, or by imposing unreasonably unequal terms, facilities, or aceommoda- tions, which would practically amount to an embargo upon the travel or traffic of some disfavored individual. And, as all common carriers combined cannot, directly or indirectly, destroy or interrupt the com- mon right by stopping their branch of the public service while they remain in that service, so neither all of them together nor one alone can, directly or indirectly, deprive any individual of his lawful enjoy- ment of the common right. Equality, in the sense of freedom from unreasonable discrimination, being of the very substance of the com- mon right, an individual is deprived of his lawful enjoyment of the common right when he is subjected to unreasonable and injurious dis- crimination in respect to terms, facilities, or accommodations. That is not, in the ordinary legal sense, a public highway, in which one man is unreasonably privileged to use a convenient path, and another is un- reasonably restricted to the gutter; and that is not a public service of common carriage, in which one enjoys an unreasonable preference or advantage, and another suffers an unreasonable prejudice or disadvan- tage. A denial of the entire right of service by a refusal to carry, differs, if at all, in degree only, and the amount of damage done, and not in the essential legal character of the act, from a denial of the right in part by an unreasonable discrimination in terms, facilities, or accommodations. Whether the denial is general hy refusing to furnish any transportation whatever, or special by refusing to carry one person or his goods; whether it is direct by expressly refusing to carry, or indirect by imposing such unreasonable terms, facilities, or accommo- dations as render carriage undesirable; whether unreasonableness of terms, facilities, or accommodations operates as a total or a partial denial of the right; and whether the unreasonableness is in the intrin- sic, individual nature of the terms, facilities, or accommodations, or in their discriminating, collective, and comparative character, — the right denied is one and the same common right, which would not be a right if it could be rightfully denied, and would not be common, in the legal sense, if it could be legally subjected to unreasonable discrimination, 152 McDUFFEE V. PORTLAND & ROCHESTER RAILROAD. and parcelled out among men in unreasonably superior and inferior grades at the behest of the servant from whom the service is due. The commonness of the right necessarily implies an equality of right, in the sense of freedom from unreasonable discrimination; and any practical invasion of the common right by an unreasonable discrimina- tion practised by a carrier held to the common service is insubordi- nation and mutiny, for which he is liable, to the extent of the damage inflicted, in an action of case at common law. The question of reason- ableness of price may be something more than the question of actual cost and value of service. If the actual value of certain transportation of one hundred barrels of flour, affording a reasonable profit to the carrier, is one hundred dollars; if, all the circumstances that ought to be considered being taken into account, that sum is the price which ought to be charged for that particular service; and if the carrier charges everybody that price for that service, there is no encroachment on the common right. But if for that service the carrier charges one flour merchant one hundred dollars, and another fifty dollars, the com- mon right is as manifestly violated as if the latter were charged one hundred dollars, and the former two hundred. What kind of a com- mon right of carriage would that be which the carrier could so admin- ister as to unreasonably, capriciously, and despotically enrich one man and ruin another? If the service or price is unreasonable and injuri- ous, the unreasonableness is equally actionable, whether it is in in- equality or in some other particular. A service or price that would otherwise be reasonable may be made unreasonable by an unreason- able discrimination, because such a discrimination is a violation of the common right. There might be cases where persons complaining of such a violation would have no cause of action, because they would not be injured. There might be cases where the discrimination would be injurious; in such cases it would be actionable. There might be cases where the remedy by civil suit for damages at common law would be practically ineffectual on account of the difficulty of proving large damages, or the incompetence of a multiplicity of such suits to ‘abate a continued grievance, or for other reasons; in such cases there ~ would be a plain and adequate remedy, where there ought to be one, ‘by the re-enforcing operation of an injunction, or by indictment, infom mation, or other common, familiar, and appropriate course of law. The common and equal right is to reasonable transportation service for a reasonable compensation. Neither the service nor the price is necessarily unreasonable because it is unequal, in a certain narrow, strict, and literal sense; but that is not a reasonable service, or 4 reasonable price, which is unreasonably unequal. The question is not merely whether the service or price is absolutely unequal, in the nar- rowest sense, but also whether the inequality is unreasonable and injurious. There may be acts of charity ; there may be different prices for different kinds or amounts of service; there may be many differ- ences of price and service, entirely consistent with the general prin- McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. 153 ciple of reasonable equality which distinguishes the duty of a common carrier in the legal sense from the duty of a carrier who is not a com- mon one in that sense. A certain inequality of terms, facilities, or accommodations may be reasonable, and required by the doctrine of reasonableness, and therefore not an infringement of the common right. It may be the duty of a common carrier of passengers to carry under discriminating restrictions, or to refuse to carry those who, by reason of their physical or mental condition, would injure, endanger, disturb, or annoy other passengers; and an analogous rule may be applicable to the common carriage of goods. Healthy passengers in a palatial car would not be provided with reasonable accommodations if they were there unreasonably and negligently exposed by the carrier to the society of small-pox patients. Sober, quiet, moral, and sensi- tive travellers may have cause to complain of their accommodations if they are unreasonably exposed to the companionship of unrestrained, intoxicated, noisy, profane, and abusive passengers, who may enjoy the discomfort they cast upon others. In one sense, both classes, car- ried together, might be provided with equal accommodations ; in another sense, they would not. The feelings not corporal, and the decencies of progressive civilization, as well as physical life, health, and comfort, are entitled to reasonable accommodations. 2 Greenl. Ev. sec. 222 a; Bennett v. Dutton, 10 N. H. 481, 486. Mental and moral sensibilities, unreasonably wounded, may be an actual cause of suffering, as plain as a broken limb; and if the injury is caused by unreasonableness of facilities or accommodations (which is synonymous with unreasonable- ness of service), it may be as plain a legal cause of action as any bodily hurt, commercial inconvenience, or pecuniary loss. To allow one passenger to be made uncomfortable by another committing an outrage, without physical violence, against the ordinary proprieties of life and the common sentiments of mankind, may be as clear a viola- tion of the common right, and as clear an actionable neglect of a common carrier’s duty, as to permit one to occupy two seats while another stands in the aisle. Although reasonableness of service or price may require a reasonable discrimination, it does not tolerate an unreasonable one; and the law does not require a court or jury to waste time in a useless investigation of the question whether a proved injurious unreasonableness of service or price was in its intrinsic or in its discriminating quality. The main question is, not whether the unreasonableness was in this or in that, but whether there was un- reasonableness, and whether it was injurious to the plaintiff. This question may be made unnecessarily difficult by an indefinite- ness, confusion, and obscurity of ideas that may arise when the public duty of a common carrier, and the correlative common right to his reasonable service for a reasonable price, are not clearly and broadly distinguished from a matter of private charity. If A receives, as a charity, transportation service without price, or for less than a reason- able price, from B, who is a common carrier, A does not receive it as 154 McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. his enjoyment of the common right; B does not give it as a perform- ance of his public duty; C, who is required to pay a reasonable price for a reasonable service, is not injured; and the public, supplied with reasonable facilities and accommodations on reasonable terms, cannot complain that B is violating his public duty. There is, in such a case, no discrimination, reasonable or unreasonable, in that reasonable ser- vice for a reasonable price which is the common right. A person who is a common carrier may devote to the needy, in any necessary form of relief, all the reasonable profits of his business. He has the same right that any one else has to give money or goods or transportation to the poor. But it is neither his legal duty to be charitable at his own expense, nor his legal right to be charitable at the expense of those whose servant he is. If his reasonable compensation for certain carriage is one hundred dollars, and his just profit, not needed in his ‘business, is one tenth of that sum, he has ten dollars which he may legally use for feeding the hungry, clothing the naked, or carrying those in poverty to whom transportation is one of the necessaries of life, and who suffer for lack of it. But if he charges the ten dollars to those who pay him for their transportation, if he charges them one hundred and ten dollars for one hundred dollars’ worth of service, he is not benevolent himself, but he is undertaking to compel those to be benevolent who are entitled to his service ; he is violating the common right of reasonable terms, which cannot be increased by compulsory contributions for any charitable purpose. So, if he carries one or many for half the reasonable price, and reimburses himself by charging others more than the reasonable price, he is illegally administering, not his own, but other people’s charity. And when he attempts to justify an instance of apparent discrimination on the ground of char- ity, it may be necessary to ascertain whose charity was dispensed, — whether it was his, or one forced by him from others, including the party complaining of it. But it will not be necessary to consider this point further until there is some reason to believe that what the plain- tiff complains of is defended as an act of disinterested benevolence performed by the railroad at its own expense. In Garton v. B. & E. R. Co., 1 B. & S. 112, 154, 165, when it was not found that any unreasonable inequality had been made by the defendants to the detriment of the plaintiffs, it was held that a reason- able price paid by them was not made unreasonable by a less price paid bysothers,—a proposition sufficiently plain, and expressed by Crompton, J., in another form, when he said to the plaintiffs’ counsel during the argument of that case: ‘‘ The charging another person too little is not charging you too much.” The proposition takes it for granted that it has been settled that the price paid by the party com= plaining was reasonable, —a conclusion that settles the whole contro- versy as to that price. But before that conclusion is reached, it may be necessary to determine whether the receipt of a less price from another person was a matter of charity, or an unreasonable discrimi- McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. 155 nation and a violation of the common right. Charging A less than B for the same service, or service of the same value, is not of itself neces- sarily charging A too little, or charging B too much; but it may be evidence tending to show that B is charged too much, either by being charged more than the actual value of the service, or by being made the victim of an unjustifiable discrimination. The doctrine of reason- ableness is not to be overturned by a conclusive presumption that every inequality of price is the work of alms-giving, dictated by a motive of humanity. If an apparent discrimination turns out, on examination, to have been, not a discrimination in the performance of the public duty, but a private charity, there is an end of the case. But if an ap- parent discrimination is found to have been a real one, the question is whether it was reasonable, and, if unreasonable, whether the party complaining was injured by it. In some cases, this may be an inquiry of some difficulty in each of its branches. But such difficulty as there may be will arise from the breadth of the inquiry, the intricate nature of the matter to be investi- gated, the circumstantial character of the evidence to be weighed, and the application of the legal rule to the facts, and not from any want of clearness or certainty in the general principle of the common law ap- plicable to the subject. The diffictlty will not be in the common law, and cannot be justly overcome by altering that law. The inquiry may sometimes be a broad one, but it will never be broader than the justice of the case requires. A narrow view that would be partial cannot be taken; a narrow test of right and wrong that would be grossly inequi- table cannot be adopted. If the doctrine of reasonableness is not the doctrine of justice, it is for him who is dissatisfied with it to show its injustice; if it is the doctrine of justice, it is for him to show the grounds of his discontent. The decision in N. E. Express Co. v. M. C. R. Co., 57 Me. 188, sat- isfactorily disposed of the argument, vigorously and ably pressed by the defendants in that case, that a railroad, carrying one expressman and his freight on passenger trains, on certain reasonable conditions, but under an agreement not to perform a like service for others, does not thereby hold itself out as a common carrier of expressmen and their freight on passenger trains, on similar conditions. So far as the common right of mere transportation is concerned, and without reference to the peculiar liability of a common carrier of goods as an insurer, such an arrangement would, necessarily and without hesitation, be found, by the court or the jury, to be an evasion. A railroad corpora- tion, carrying one expressman, and enabling him to do all the express business on the line of their road, do hold themselves out as common carriers of expresses; and when they unreasonably refuse, directly or indirectly, to carry any more public servants of that class, they perform this duty with illegal partiality. The legal principle, which establishes and secures the common right, being the perfection of reason, the right is not a mere nominal one. and is in no danger of being destroyed by 156 McDUFFEE v. PORTLAND & ROCHESTER RAILROAD. a quibble. If there could possibly be a case in which the exclusive arrangement in favor of one expressman would not be an evasion of the common-law right, the question might arise whether, under our statute law (Gen. Stats. chs. 145, 146, 149, 150), public railroad cor- porations are not common carriers (at least to the extent of furnishing reasonable facilities and accommodations of transportation on reason- able terms) of such passengers and such freight as there is no good reason for their refusing to carry. The public would seem to have reason to claim that the clause of Gen. Stats. ch. 146, sec. 1, — ‘+ Railroads being designed for the public accommodation, like other highways, are public,” — is a very compre- hensive provision; that public agents, taking private property for the public use, are bound to treat all alike (that is, without unreasonable preference) so far as the property is used, or its use is rightfully de- manded, by the public for whose use it was taken; and that, in a country professing to base its institutions on the natural equality of men in respect to legal rights and remedies, it cannot be presumed that the Icgislature intended, in the charter of a common carrier, to grant an implied power to create monopolies in the express business, or in any other business, by undue and unreasonable discriminations. There would seem to be great doubt whether, upon any fair construc- tion of general or special statutes, a common carrier, incorporated in this country, could be held to have received from the legislature the power of making unreasonable discriminations and creating monopolies, unless such power were conferred in very explicit terms. And, if such power were attempted to be conferred, there would be, in this State, a question of the constitutional authority of the legislature to convey a prerogative so hostile to the character of our institutions and the spirit of the organic law. But, resting the decision of this case, as we do, on the simple, elementary, and unrepealed principle of the common law, equally applicable to individuals and corporations, we have no occasion, at present, to go into these other inquiries. Case discharged.) 1 Compare: Pickford v. G. J. Ry., 10 M. & W. 397; Parker v. G. W. Ry., 7 M. & G. 253; Parker v. G. W. Ry., 11C. B. 545; Sandford v. R. R., 24 Pa. 378; New Eng. Exp. Co. v. R. R., 57 Me. 188, — Ep. THE EXPRESS CASES. 157 THE EXPRESS CASES. Supreme Court or tHe Unirep States, 1886. [117 U. S21.) Mr. Curer Justice Warre delivered the opinion of, the court.? These suits present substantially the same questions and may prop- erly be considered together. They were each brought by an express company against a railway company to restrain the railway company from interfering with or disturbing in any 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 employs for the purposes of transportation all the important railroads in the United States, and a new road is rarely opened to the public without being equipped in some form with express facilities. It is used in almost every conceivable 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 by law to do an express business themselves ; nor whether they must carry express matter for the public on their passenger trains, in the immediate charge of some person specially appointed for that purpose; nor whether they shall carry express freights for express companies as they carry like freights for the gen- eral public; but whether it is their duty to furnish the Adams Com- pany or the Southern Company facilities for doing an express business upon their roads the same in all respects as those they provide for themselves or afford to any other express company. When the business began railroads were in their infancy. ‘They were few in number, and for comparatively short distances. There has never been a time, 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. — Ep. 158 THE EXPRESS CASES. 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 any railroad company in the United States has ever held itself out as a common carrier of express companies, that is to say, as a common carrier of common carriers. On the contrary it has been shown, and in fact it was conceded upon the argument, that, down to the time of bringing these suits, no railroad company had taken an express company on its road for business except under some special con- tract, verbal or written, and generally written, in which the rights and the duties of the respective parties were carefully fixed and defined. These contracts, as is seen by those in these records, vary necessarily in their details, according to the varying circumstances of each particular case, and according to the judgment and discretion of the parties immedi- ately concerned. It also appears that, with very few exceptions, only one express company has been allowed by a railroad company to do business on its road at the same time. In some of the States, statutes have been passed which, either in express terms or by 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 employé 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 ee | THE EXPRESS CASES. 159 the duty of a railroad company in arranging for the express to see that there is as little interference as possible with the wants of passengers. This implies a special understanding and agreement as to the amount of car space that will be afforded, and the conditions on which it is to be occupied, the particular trains that can be used, the places at which they shall stop, the price to be paid, and all the varying details of a business which is to be adjusted between two public servants, so that each can perform in the best manner its own particular duties. All this must 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 company 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 itis 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 they 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 territory, always extending its lines in the agreed directions as circumstances would permit. At the beginning of the late civil war the Adams Company gave up its terri- tory in the Southern States to the Southern Company, and since then the Adams and the Southern have occupied, under arrangements between themselves, that part of the ground originally assigned to the Adams alone. In this way these three or four important and influ- 160 THE EXPRESS CASES. 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 delivery 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, they have undoubtedly relied on securing and keeping favorable railroad transportation, and in this they were en- couraged by the apparent willingness of railroad companies to accom- modate them; but the fact still remains that they have never been allowed to do business on any road except under a special contract, and that as a rule only one express company has been admitted on a road at the same time. The territory traversed by the railroads involved in the present suits is part of that allotted in the division between the express companies to the Adams and Southern companies, and in due time after the roads were built these companies contracted with the railroad companies for the privileges of an express business. The contracts were all in writ- ing, in which the rights of the respective parties were clearly defined, and there is now no dispute about what they were. Each contract contained a provision for its termination by either party on notice. That notice has been given in all the cases by the railroad companies, and the express companies now sue for relief. Clearly this cannot be afforded by keeping the contracts in force, for both parties have agreed that they may be terminated at any time by either party on notice; nor by making new contracts, because that is not within the scope of judicial power. The exact question, then, is whether these express companies can now demand as aright what they 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 way that express carriers when taken are usually carried, just as they are with the duty of carrying all passengers and freights when THE EXPRESS CASES. 161 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 which the roads are situated place the companies that own and operate them on the foot- ing of common carriers, but there is nothing which in positive terms requires a railroad company to carry all express companies in the way that under some circumstances they may be able without inconvenience to 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- ably prohibited from making unreasonable discriminations in their busi- ness as carriers, but this is all. Such being the case, the right of the express companies to a decree depends upon their showing the existence of a usage, having the force of law in the express business, which requires railroad companies to carry all express companies on their passenger trains as express carri- ers are usually carried. It is not enough to establish a usage to carry some express company, or,to furnish the public in some way with the advantages of an express business over the road. The question is not whether these railroad companies must furnish the general public with reasonable express facilities, but whether they must carry these par- ticular express carriers for the purpose of enabling them to do an express business over the lines. In all these voluminous records there is not a syllable of evidence to show a usage for the carriage of express companies on the passenger trains of railroads unless specially contracted for. While it has uni- formly been the habit of railroad companies to arrange, at the earliest practicable moment, to take one express company on some or all of their passenger trains, or to provide some other way of doing an ex- press business on their lines, it has never been the practice to grant such a privilege to more than one company at the same time, unless a statute or some special circumstances made it necessary or desirable. The express companies that bring these suits are certainly in no situ- ation to claim a usage in their favor on these particular roads, because their entry was originally under special contracts, and no other compa- nies have ever been admitted except by agreement. By the terms of their contracts they agreed that all their contract rights on the roads should be terminated at the will of the railroad company. 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 rel 162 THE EXPRESS CASES. they accepted their contracts, and made their investments under them. If the general public were complaining because the railroad companies refused to carry express matter themselves on their passenger trains, or to allow it to be carried by others, different questions would be presented. As it is, we have only to decide whether these particular express companies must be carried notwithstanding the termination of their special contract rights. The difficulty in the cases is apparent from the form of the decrees. As express companies had always been carried by railroad companies under special contracts, which established the duty of the railroad com- pany upon the one side, and fixed the 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 they ought to have made for themselves. Having found that the railroad company should furnish the express company with facilities for business, it had to define what those facilities must be, and it did so by declaring that they should be furnished to the same extent and upon the same trains that the company accorded to itself or to any other company engaged in conducting an express business onits line. It then prescribed the time and manner of making the payment for the facilities and how the payment should be secured, as well as how it should be measured. Thus, by the decrees, these rail- road companies are compelled to carry these express companies at these rates, and on these terms, so long as they ask to be carried, no matter what other express companies pay for the same facilities or what such facilities may, for the time being, be reasonably worth, unless the court sees fit, under the power reserved for that purpose, on the application of either of the parties, to change the measure of compen- sation. In this way as it seems to us, ‘* the court has made an arrange- ment for the business intercourse of these companies, such as, in its opinion, they ought to have made for themselves,” and that, we said in Atchison, Topeka and Santa Fé Railroad Co. v. Denver & New Orleans Railroad Co., 110 U. S. 667, followed at this term in Pull- man’s Palace Car Co. v. Missourt 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 injune- tions were in force, and decreeing the payment of any amounts that may be found to be due, to dismiss the bills. THE EXPRESS CASES. 163 Mr. Justice Mixer dissenting. When these cases were argued before Circuit Judge McCrary and myself at St. Louis, after due consideration and consultation with him and Judge Treat, of the District Court, I announced certain proposi- tions as the foundations on which the decrees should be rendered. These were afterwards entered in the various circuits to which the cases 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 : ‘J. Iam of opinion that what is known as the express business is a branch of the carrying trade that has, by the necessities of com- merce and the usages of those engaged in transportation, become known and recognized. “That, while it is not possible to give a definition in terms which will embrace all classes of articles usually so carried, and to define it with a precision of words of exclusion, the general character of the business is sufficiently known and recognized to require the court to take notice of it as distinct from the transportation of the large mass of freight: usually carried on steamboats and railroads. ‘¢ That the object of this express business is to carry small and valu- able packages rapidly, in such a manner as not to subject them to the danger of loss and damage, which, to a greater or less degree, attends the transportation of heavy or bulky articles of commerce, as grain, flour, iron, ordinary merchandise, and the like. ‘© 2. It has become law and usage, and is one of the necessities of this business, that these packages should be in the immediate charge of an agent or messenger of the person or company engaged in it, and to refuse permission to this agent to accompany these packages on steam- boats or railroads on which they are carried, and to deny them the right to the control of them while so carried, is destructive of the business and of the rights which the public have to the use of the rail- roads in this class of transportation. “3, Iam of the opinion that when express matter is so confided to the charge of an agent or messenger, the railroad company is no longer liable to all the obligations of a common carrier, but that when loss or injury occurs, the liability depends upon the exercise of due care, skill, and diligence on the part of the railroad company. ‘4, That, under these circumstances, there does not exist on the part of the railroad company the right to open and inspect all pack- ages so carried, especially when they have been duly closed or sealed up by their owners or by the express carrier. ‘5. Lam of the opinion that it is the duty of every railroad com- 164 THE EXPRESS CASES. 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. ‘ 296 ROBINS AND CO. v. GRAY. ROBINS AND CO. v. GRAY. QueEN’s Bencu, 1895. [1895, 2 Q. B. 78.] Action tried before Witts, J., without a jury. The plaintiffs were a firm of dealers in sewing-machines and other articles, and in 1894 they had in their employment one Edward Green as a commercial traveller, who canvassed for orders and sold their goods upon commission. In April, 1894, Green went to stay for the purposes of his business as such traveller at the defendant’s hotel, and remained there until the end of July. While he was there the plain- tiffs sent to him from time to time certain sewing-machines, watches, chains, and musical albums, which it was in the ordinary course of his business to have at the inn for the purpose of selling them to cus- tomers in the district. At the end of July Green was in the defendant’s debt for board and lodging to the amount of £4 Os. 8d., which sum he neglected to pay. The defendant claimed a lien in respect of this debt upon certain of the goods which had been so sent by the plain- titfs by Green, and detained them accordingly. Before the goods in question had been received into the hotel, or the said debt had been incurred, the defendant had been expressly informed by the plaintiffs that the goods were the plaintiffs’ property, and- not the property of Green. The plaintiffs brought detinue. Wits, J. The law applicable to this case is, I think, clear. The defendant no doubt knew, at the time that Green’s debt to him was in- curred, that the goods upon which he now claims to have a lien were the goods, not of Green, but of his principals. But that fact is, in my opinion, immaterial. The goods in question were of a kind which a commercial traveller would in the ordinary course carry about with him to the inns at which he put up as part of the regular apparatus of his calling, and which the innkeeper would consequently be bound to reccive into his inn and to take care of while they were there. Here it is true that the goods were not brought by Green to the inn — they were sent to him while he was staying there. But that can make no difference. The defendant was bound to receive them and take care of them, as a part of his duty towards his guest. It follows that the lien attached to them. Knowledge on the part of the innkeeper that the goods brought by, or sent to, the guests are not the guest’s prop- erty, is in my judgment material only where the goods are of a descrip- tion which the innkeeper is not bound to receive, such as the piano in the case relied on by the plaintiff. Judgment for the defendant. 1 Compare: Robinson v. Walter, 3 Bulst. 209; Broadwood ». Granara, 10 Exch. 417; Threfall ». Borwick, L. R. 7 Q. B. 711; Singer Co. v. Miller, 52 Minn. 516; Covington v. Newberger, 99 N. C. 523; Cook v. Prentice, 13 Ore. 422; Grump ». Showalter, ‘48 Pa. St. 507; Clayton v. Butterfield, 10 Rich. L. 800; Manning v. Hollenbeck, 27 Wis. 202,— Ep. BARRETT v. MARKET STREET RAILWAY. 297 BARRETT v. MARKET STREET RAILWAY. SupremMe Court or Catirornia, 1889. [81 Cal. 296.1] Action for damages for forcible ejection. Plaintiff tendered con- ductor of the defendant a five dollar gold piece for a five cent fare. The conductor refused it and thereupon ejected the plaintiff from the car. Paterson, J... . The question on the merits to which counsel have mainly directed their arguments is, whether the passenger was bound to tender the exact fare. It is argued for the appellant that the rule in relation to the performance of contracts applies, and that the exact sun must be tendered. But we do not think so. The fare can be demanded in advance as well as at a subsequent time. Civ. Code, sec. 2187. And so far as this question is concerned, we see no dif- ference in principle where the fare is demanded in advance and where it is demanded subsequently. If it be demanded in advance, there is’ no contract. The carrier simply refuses to make a contract. Conse- quently the rule in relation to the performance of contracts, whatever it be, has no necessary application. The obligation of the carrier in such case would be that which the law imposes on every common carrier, viz., that he must, ‘‘if able to do so, accept and carry what- ever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry.” Civ. Code, sec. 2169. This duty, like every other which the law imposes, must have a reason- able performance. And we do not think it would in all cases be reasonable for the carrier to demand the exact fare as a condition of carriage. Suppose that, on entering a street-car, a person should tender the sum of ten cents. Would it be reasonable for the carrier to refuse it ? Prior to the act of 1878, the usual fare was six and a quarter cents. In such a case it would be unreasonable for the carrier to demand the exact fare; for there is no coin in the country which would enable the passenger to answer such a demand. It would be impossible for the passenger to furnish such a sum. Consequently, to allow the carrier to maintain such a demand would be to allow him to refuse to perform the duty which the law imposes upon him. The fare which he is now allowed to charge is no longer the sum mentioned. The act of 1878 forbids him to ‘‘ charge or collect a higher rate than five cents.” But there is nothing to prevent a lower rate from being charged. The carrier might fix it at four and a quarter cents. And in such a case it would be equally impossible for the passenger to comply with such a demand as in the case above put. Consequently, it will not do to lay down the rule that the passenger is obliged to tender the exact fare. 1 The case is abridged. — Ep. 298 WILLIAMS v. MUTUAL GAS CO. But it does not follow that the passenger may tender any sum, how- ever large. If he should tender a hundred-dollar bill, for example, it would be clear that the carrier would not be bound to furnish change. The true rule must be, not that the passenger must tender the exact fare, but that he must tender a reasonable sum, and that the carrier must accept such tender, and must furnish change to a reasonable amount. The obligation to furnish.a reasonable amount of change must be considered as one which the law imposes from the nature of the business. Judgment for plaintiff? WILLIAMS v. MUTUAL GAS CO.’ Supreme Court or Micuiean, 1884. [52 Mich. 499.] Error to the Superior Court of Detroit. (Cupman, J.) Jan. 22 — Jan. 29. Case. Plaintiff brings error. Affirmed. Surrwoop, J. The plaintiff, in the month of November, 1879, re- sided in Detroit and was in possession of and keeping the hotel known as the Biddle House, containing a very large number of rooms, all of which were furnished with gas-pipes and fixtures for the purpose of lighting the same, and which had been so lighted for many years. The defendant corporation was duly organized under the Act of the Legislature for the formation of gaslight companies, approved Febru- ary 12, 1855, and located in Detroit. On the 15th day of November aforesaid the defendant, in pursuance of said Act of the Legislature and the charter and by-laws of Detroit, was and had been for some time previous carrying on the business for which it was organized, supply- ing the citizens at hotels and private dwellings with gas in such quan- tities as desired, and among others had connected its pipes with those of the Biddle House, and for some time previous had been supplying it with gas as its proprietors desired. On that day the defendant re- fused to supply the Biddle House longer unless its proprietor, the plain- tiff, would keep on deposit with the company $100. It was receiving at that time about $60 worth of gas per week, and its requirements were increasing. The plaintiff regarding the demand as unreasonable, declined to make the required deposit, and tendered the defendant $75 and de- manded that the company should furnish him gas at the Biddle House to that amount. This the defendant refused to do and cut off the ser- vice at the hotel. The plaintiff claims that it was the defendant’s duty to furnish him with the gas required, and upon the terms demanded; that he has suf- 1 Compare: Fulton v. Grand Trunx Co., 17 U. C., Q. B. 428. — Ep. WILLIAMS v. MUTUAL GAS CO. 299 fered great injury to his business in consequence of the defendant’s neglect so todo. And he brings his suit in this case to recover his damages. A trial was had in the Superior Court of Detroit, and the judge directed a verdict for the defendant. The plaintiff brings error and the case is now before us on a bill of exceptions containing all the testimony. The questions presented and argued before the judge of the Superior Court by counsel for defendant were — First, the plaintiff could not recover for the reason the defendant was under no legal duty or obli- gation to supply any citizen of Detroit with gas; and, second, if such duty was imposed upon the defendant, the conditions upon which the defendant proposed and offered to perform it were reasonable. The court disagreed with the defendant’s counsel in the first position, but sustained them in the second. I agree with the judge of the Superior Court that it is the duty of the defendant, upon reasonable conditions, to supply the citizens of Detroit. who have their residences and places of business east of the centre of Woodward Avenue, with gas wher- ever the defendant has connected its mains and service pipes with the pipes and fixtures used at such residences and places of business and the owners or occupants shall desire the same. The defendant is a corporation in the enjoyment of certain rights and privileges, under the statutes of the State and charter and by- laws of the city, and derived therefrom. These rights and privileges were granted that corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be exer- cised. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than necessity, and the duty of this corporation imposed cannot there- fore be well likened to that of the innkeeper or common carrier, but more nearly approximates that of the telegraph, telephone, or mill- owner. The company, however, in the discharge of its duty may gov- ern its action by reasonable rules and regulations, and when it has done so all persons dealing with it, as well as the company itself, must yield obedience thereto. The statute under which the defendant com- pany is organized provides it may ordain and enact by-laws for that purpose; but the record discloses no such action taken on the part of the defendant; neither does it show any general action or custom of the company in making terms with, or for supplying gas to, proprietors of hotels or other persons except as required in this case. The president of the defendant company was sworn and examined, and testified that the defendant made weekly or monthly collections for gas furnished. He further said that the defendant refused to let the plaintiff have a supply for the Biddle House unless he would first sign a contract with the company therefor, and in addition thereto keep on deposit with the company the sum of one hundred dollars so long as it furnished him with a supply; that the plaintiff tendered the defendant $75, and demanded that the company should supply the 300 WILLIAMS v. MUTUAL GAS CO. house and offered to give good personal security for payment and _per- formance on his part to the extent it should be furnished or the com. pany require; and that the company refuse to accept the terms proposed by plaintiff, or furnish his house with gas as required. This corporation is authorized and permitted to do business in De- troit only upon the ground of public convenience, and that benefits may accrue to its citizens. It is true that neither by the charter of the company, its articles of association, or the by-laws of the city authorizing its existence there, has it the exclusive right to manufacture and sell gas. It is, how- ever, within the experience of us all, and I may say, I think, with great propriety, within the judicial knowledge of the courts, that the manu- facture and supply of inflamable gas for the purpose of lighting cities, villages, stores, hotels, and dwellings, is not a domestic or family manu- facture. It is carried on almost exclusively by public or associated capital, and to make it a paying industry requires the exercise and enjoyment of certain rights and franchises only to be acquired from municipal or State authority. Associations of this kind, as has been well said, ‘‘ are not like trading and manufacturing corporations, the purview of whose operations is as extensive as commerce itself, and whose productions may be transported from market to market through- out the world.” It is not a trading corporation, its product is de- signed for the citizen, and the extent to which it is used depends upon home consumption in the immediate neighborhood and community in which the manufacture is wrought. It is in the strictest sense a local commodity, and not commercial. It can only be used by consuming it, and hence can have no place with articles of trade. The success of the company greatly depends upon the necessity of the citizens in the vicinity of its location, and its operations may seriously affect the pub- lic policy and individual convenience of the community. The nature of the article made, the objects of the company, its relations to the community, and the rights and privileges it must necessarily exercise, give the company a public character, and, to a certain extent, a monop- oly which can never be tolerated, only upon the ground of some cor- responding duty to meet the public want. Such duty rests upon this defendant, and I think it requires the company to furnish to this plain- tiff, at the Biddle House, the supply of gas demanded, under reason- able rules and regulations, but among all such as might be mentioned, it is with the defendant to adopt and rely upon such as it may select. This is its privilege. The duty of the company towards the citizen, and that of the citizen towards the company, is somewhat reciprocal, and any rule or regula- tion or course of dealing between the parties which does not secure the just rights of both ought not to be adopted, and cannot receive the sanction of the courts. When the defendant company made the connection of its service pipes and mains with the pipes and fixtures of the Biddle House, it im- WHEELER v, NORTHERN COLORADO IRRIGATION CO. 301 posed upon itself the duty to supply the house and premises upon reasonable terms and conditions with such amount of gas as the owner or proprietor might require for its use, and pay for, so long us the com- pany should exist and do business. If the defendant, as one of such conditions, required the plaintiff to give sufficient security that he would make such payment and perform such conditions, before making such service, I thing it would have been reasonable, but in the place of such security the defendant de- manded a deposit of money with the company, as had been its custom. This the company had a right to do. The condition was a reasonable one. The. requirement of a special contract between the parties, in addition to the deposit of money, may not be unreasonable, still it was quite unnecessary. The law implies all the contract needed, and courts will enforce it in all cases to the extent necessary to secure the rights of the parties. I think the judgment of the Superior Court should be affirmed. The other justices concurred. WHEELER v. NORTHERN COLORADO IRRIGATION CO. Supreme Court or CoLorapo, 1887. [10 Col. 582.1] Hem, J. . . . Fhe pleadings in the case at bar show that respond- ent is a carrier and distributer of water for irrigation and other pur- poses. That its canal, two years ago, was upwards of sixty miles in length and capable of supplying water to irrigate a large area of land. That relator is one of the land-owners and consumers under the canal, and can obtain water from no other source; also, that respondent has, undisposed, a sufficient quantity to supply his wants. That he ten- dered the sum of $1.50 per acre, the annual rental fixed by respondent, and demanded the use of water for the current season, but declined to pay the further sum of $10 per acre also demanded, and to sign a certain contract presented to him for execution. That respondent refused, and still refuses, to grant relator’s request, except upon com- pliance with these conditions. The remaining essential facts will sufficiently appear in connection with the specific questions of law presented, as they are in their proper order discussed. Were the constitution and statutes absolutely silent as to the amount of the charge for transportation, and the time and manner of its col- lection, there would be strong legal ground for the position that the demand in these respects must be reasonable. ‘The carrier voluntarily engages in the enterprise; it has, in most instances, from the nature 1 This case is abridged. — Ep. 302 WHEELER v. NORTHERN COLORADO IRRIGATION CO. of things, a monopoly of the business along the line of its canal; its vocation, together with the use of its property, are closely allied to the public interest; its conduct in connection therewith materially affects the community at large; it is, I think, charged with what the decisions term a public duty or trust. In the absence of legislation on the subject, it would, for these reasons, be held, at common law, to have submitted itself to a reasonable judicial control, invoked and exercised for the common good, in the matter of regulations and charges. And an attempt to use its monopoly for the purpose of co- ercing compliance with unreasonable and exorbitant demands would lay the foundation for judicial interference. Munn v. People, 4 Otto, 113, and cases cited; Price v. Riverside L. L. C., 56 Cal. 431; C. & N. W. R. R. Co. v. People, 56 Ill. 365; Vincent v. Chicago & Alton R. R. Co., 49 Ill. 33. But the constitution is not silent in the particular mentioned. It evinces, beyond question, a purpose to subject this, as other branches of the business, to a certain degree of public control. As we have seen, it provides for a tribunal to which the maximum amount of water rates may be referred, in case of dispute between the carrier and consumer. And I think that, by fair implication, it forbids the carrier’s enforcement of unreasonable and oppressive demands in re- lation to the time and manner of collecting these rates. Any other view would accuse the convention of but partially doing its work. For the fixing of maximum rates would be protection, grossly inadequate, if either of the parties might dictate, absolutely, the time and condi- tions of payment. The primary objects were to encourage and pro- tect the beneficial use of water; and while recognizing the carrier’s right to reasonable compensation for its carriage, collectible in a rea- sonable manner, the constitution also unequivocally asserts the con- sumer’s right to its use, upon payment of such compensation. Any unreasonable regulations or demands that operate to withhold or prevent the exercise of this constitutional right by the consumer must be held illegal, even though there be no express legislative dec- laration on the subject. The contract which respondent required relator to sign and agree to comply with, as a condition precedent to the granting of his request, contains the following among other conditions: That he buy in ad- vance ‘‘the right to receive and use water” from its canal, paying therefor the sum of $10 per acre; also that he further pay ‘annually in advance, on or before the 1st day in May of each year, such reason- able rental per annum, not less than $1.50 nor more than $4 per acre, as may be established from year to year” by respondent. If we hold respondent to the literal term used in this contract we must declare the $10 exaction illegal. Respondent cannot collect of relator the sum of $10, or any other sum, for the privilege of exercising his con- stitutional right to use water. But counsel contended in argument that the foregoing expressions, WHEELER v. NORTHERN COLORADO IRRIGATION Co. 303 qnoted from respondent’s contract, are not intended to require the payment of $10 per acre for a right to use water. They say this $10 is merely a portion of the annual ‘‘ rental” exacted of consumers in advance for the remaining years of respondent’s corporate existence ; that instead of requiring, say, $2.50 per acre for each irrigating sea- son in turn, respondent has seen fit to divide this sum into two parts, collecting $1.50 annually, and the residue of $1 each for the remaining ten years of its corporate life, as one entire sum in advance. This construction of the contract may, under all the circumstances, seem plausible, though I doubt if the courts could accept it; but if accepted the difficulty under which respondent labors would not be obviated. If the carrier may collect a part of its annual transportation charge in advance for the remaining years of its corporate life, it may collect all. Suppose the company just organized; under counsel’s view the consumer may, there being no legislation on the subject, be compelled to pay the cost of delivering water to him for the entire twenty years of its existence, before he can exercise his constitutional right during a single season. But there is nothing in the law obliging him to cultivate his land for any particular period. He may not want the water for twenty years, or it may be utterly impossible for him to advance so large a sum at once. In fact, the majority of those who till the soil are too poor to comply with such a demand; to say that they must do so or have ho water is to deprive them of their right to its use just as effectually as though the right itself had no existence. It is true these people would not themselves be able to bring water from the natural streams to their farms, and without the carrier they might be compelled to abandon their attempt at agriculture. This consideration, however, only rein- forces the position that a reasonable control was intended. The car- rier must he regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional right, as well as a private enterprise prosecuted for the benefit of its owners. Yet, if such exactions as the one we are now considering are legal, the carrier might, at its option, in the absence of legislation, effectuate or defeat the exercise of this right; and we would havea constitutional provision conferring an affirmative right, subject for its efficacy in a given section to the greed or caprice of a single individual or corporation. Besides the extraordinary power mentioned, the carrier would also, under counsel’s view, be able to consummate a most unreasonable and unjust discrimination. B. could have water because he can pay for its carriage twenty years in advance; C. could not have water because he is unable to pay in advance for its carriage beyond a season or two. But, say counsel, C.’s only remedy, and the only remedy of relator and other consumers dissatisfied with the carrier's terms, is by applica- 304 WHEELER v. NORTHERN COLORADO IRRIGATION CO. tion to the county commissioners. I reply: First, that so far as the present case is concerned, this suggestion embodies but little consola- tion. Relator’s land is situate in Arapahoe county. The statute, as it stood when the proceedings described in the alternative writ took place, did not permit the commissioners of that county to act with re- ference to respondent’s canal; while, under the constitution, the com- missioners of no other county could exercise the necessary jurisdiction. It was utterly impossible, therefore, for relator to secure relief in the manner pointed out, and if the courts could not take cognizance of the alleged grievance he was wholly bereft of means of redress. Ireply: Second, that the commissioners may be empowered to fix the maximum amount of the rate; that is, they may be authorized to announce a limit beyond which the carrier cannot go. In my judgment, under the constitution they cannot be vested with authority to establish the exact rate to be charged, or to specify cither the time or conditions of payment. The time and conditions of payment are proper subjects for legislation. The Legislature doubtless has author- ity to say that the rate, whether the carrier adopt the maximum fixed by the commissioners or establish one below such limit, shall be col- lected annually in advance of each irrigating season; or it can make any other reasonable regulations in these respects. But the legislature itself cannot establish the unreasonable rule we have been consider- ing, which enables the carrier to accomplish a wholesale discrimination between consumers, and deny, if it chooses, to a majority of them, the rights secured them by the constitution. A regulation or rule entailing such results, whether established by the legislature or carrier, must be regarded as within a constitutional inhibition. This conclu- sion is not based merely upon the ground of private inconvenience or hardship; it rests, as will be observed, upon the higher and stronger ground of conflict with the beneficent- purpose of our fundamental law. A further consideration worthy of mention in passing, bearing at least upon the unreasonableness of the view urged upon us, is the position of the consumer who pays the charges for twenty years in advance. What assurance has he that the carrier can or will keep its engagement during that period ? Its business is attended with con- siderable hazard, and requires large and continuing expenditures of money. The consumer may find himself without water, and depend- ent, for the recovery of his large advancement, upon the doubtful experiment of suit against an insolvent company. To say that the courts may not interfere, under the circumstances above narrated, is to say that the clear intent of the constitution in relation to a constitutional right may be disregarded with impunity, simply because no express inhibitory constitutional or statutory provi- sion on the subject can be found; also that, for a like reason, one charged with an important duty may condition its performance upon unreasonable and oppressive demands. WHEELER v. NORTHERN COLORADO IRRIGATION CO. 305 I do not usurp the province of the Legislature by declaring what would be reasonable requirements as to the time and manner of collect- ing water rates. My position is that, for the reasons given, respond- ent’s demand of $10 per acre, as an advance payment of part of the transportation charge for the remaining years of its corporate life, is illegal as well as unreasonable and oppressive. Respondent’s enterprise is of great public importance and _ benefit. The original construction of its canal cost large sums of money, and its running expenses are necessarily heavy. For a considerable period the capital invested must have been unproductive. These and other circumstances may be proper subjects for consideration by the com- missioners, when called upon to establish a maximum rate. And when- ever they become appropriate matters for judicial cognizance, the attention deserved will be received from the courts. But no expen- diture, however vast, and no inconvenience, however great, can justify or legalize the exaction, the consumer objecting, of the demand under consideration, as an absolute condition precedent to use for the cur- rent irrigating season. It is not necessary to consider what would have been the result had respondent charged $11.50 per acre for the irrigating season of 1886, instead of demanding $1.50 for that season and $10 per acre as part payment for future years. Neither is it necessary to speculate as to what respondent would have charged for the season mentioned had the law been understood by its officers according to the construction above given. In view of the pleadings, and especially of the language employed in respondent’s contract, I think that relator, upon the show- ing made, was entitled to the use of water from respondent’s canal for the irrigating season specified in the alternative writ. This con- clusion is emphasized by the defective condition of the commissioners’ statute prior to 1887, which left relator helpless so far as action by that body was concerned. I also think that mandamus lay for the enforce- ment of his rights in the premises. The demurrer should have been overruled and the judgment must, therefore, be reversed, appellant recovering his costs. But courts do not order the performance of impossible acts. This proceeding was instituted for the purpose of compelling respondent to supply relator with water during the irrigating season of 1886. Since then respondent may have changed its annual charge or rate; besides, the only tender or demand appearing in the record were for that sea- son. To order compliance with relator’s request for 1886 would be absurd; to order a delivery of the water for 1888 would be unwar- ranted. To permit an amendment of the alternative writ, so as to eover the approaching irrigating season, would be to allow the substi- tution, in this proceeding, of a new and wholly different cause of action and to violate an established rule of pleading. The judgment is reversed and the cause remanded. 20 306 LOUISVILLE GAS CO. v. DULANEY AND ALEXANDER. LOUISVILLE GAS CO. v. DULANEY AND ALEXANDER, Courr or Apreats, Kentucsy, 1897. [100 Ky. 405.1] Hazerriee, J., delivered the opinion of the court. The charter of the appellant confers on it the exclusive privilege of erecting, maintaining, and operating gas works in the city of Louisville for the manufacture and sale of gus for illuminating purposes, and sec- tion 12 thereof provides that “said company shall furnish illuminating gas to private consumers who may apply therefor, under reasonable rules and regulations to be prescribed by the company, at a price not to exceed one dollar and thirty-five cents for one thousand cubic feet, less a discount of five cents per one thousand cubic feet, to all persons, including the city, except as to street lamps, paying their bills within five days after same are due.” . The appellees are private consumers of the appellant’s gas, and upon their refusal to pay a charge for meter rent the company was about to shut off the supply. This the appellees enjoined, relying on the provi- sions of the section quoted as furnishing the total charge for gas to which they could be subjected. : The meter rent is sought to be upheld as a “reasonable rule and regulation,” within the meaning of those terms in the charter, and is not imposed on consumers, as appears from the answer, unless they fail to use a certain minimum amount of gas in a given month. This process of charging rent is illustrated by the memorandum on the back of the gas bills on file, as follows : — “METER RENT. ‘3 light meter, consuming 500 cubic feet or less, 10 cents per month. “5 light meter, consuming 800 cubic feet or less, 12 cents per month. “10 light meter, consuming 1,000 cubic feet or less, 15 cents per month. “20 light meter, consuming 1,200 cubic feet or less, 17 cents per month. 30 light meter, consuming 1,500 cubic feet or less, 20’ cents per month. ‘45 light meter,” etc. Appellees, Dulaney and Alexander, used (in their law office) a three- light meter, and, having consumed in a given month only 200 cubic feet, were charged ten cents in addition to the regular price of the gas. Appellee Stone tsed a thirty-light meter (in his residence), and, having 1 Opinion only is printed. — Ep. LOUISVILLE GAS CO. ¥. DULANEY AND ALEXANDER. 307 consumed less than 1,500 cubic feet in three given months, was charged sixty cents in addition to the price of gas. It is averred in the answers that there are many persons in the city to whose fixtures in their houses, stores, and offices the appellant has attached its pipes, but who procure their lights from certain electric light companies, and who use the gas light furnished by the appellant only occasionally, and when by accident they are deprived of their electric lights ; that these persons, therefore, use a very small quantity of gas, and are the persons mainly affected by the meter charge; that in adopting this rule to furnish gas to all who apply, however small a quantity may be demanded, and fixing a uniform charge on rent of meters when a minimum amount of gas is consumed, it has attempted in good faith to do justice to all without discrimination. A demurrer was sustained to the answer in each case, and the injunction per- petuated. In this we concur. The gas meter is the property of the company, and is as necessary to the company in the measurement of its gas as are its works for its manufacture. At least some process of measurement is as necessary, and while other methods have been used, the meter, we believe, is regarded as the best known method, and is generally adopted. While the consumer may cause it to be inspected, and may test the accuracy of its work, his concern is only to ascertain and pay for what gas he has consumed, and cannot be called on to pay for the apparatus used in its measurement any more than he’ can be made to pay for the machinery used in its manufacture. He is required to pay the legal rate for the quantity consumed, and this quantity must be ascertained by the company by some correct method. The company can only charge for the quantity it actually furnishes, and, to ascertain what it furnishes, it must measure it — how, the con- sumer does not care, so it is measured correctly. The appellees, therefore, are entitled to have their gas furnished to them already measured ; and, for it so measured, they can be made to pay at the price of $1.35 per thousand feet, and no more. If the price of gas were unrestricted in the organic law of the cor- poration, the rule charging a higher price to small consumers might be upheld. A wholesale merchant sells for a less price than does the retailer, and this is entirely reasonable. The question would then be the ascertainment of what is a reasonable rate, and this is the question involved in the case, relied on by the appellant, of the State of Missouri ex rel., &c., v. Sedalia Gas Light Co., 34 Mo. App. 501. There the company required the payment by the consumer of $1.25 per month when the amount of gas used was less than 500 cubic feet, and this sum was denominated ‘‘ rent of meter.” It was held that this charge was not unreasonable, and that while the sum fixed was desig- nated as ‘‘rent of meter,” it was in fact pay for all gas consumed by the customer to the extent of 500 cubic feet. Presumably the company was aware when it obtained its charter and 308 GOULD v. EDISON ELECTRIC ILLUMINATING CO. established its monopoly that there would be small consumers as well as large ones, and there would be less profit in furnishing the one class than the other, but it did not on that account reject the charter or obtain the right to add to the price of the small consumer’s bill, The judgments are affirmed. GOULD v. EDISON ELECTRIC ILLUMINATING CO. Supreme Court or New York, 1899. [60 N. Y. S.559.] Beekman, J. This action is brought for a mandatory injunction re- quiring the defendant to reconnect the electric light appliances in plaintiff's apartments with the conductors of the defendant, and to resume supplying the plaintiff with electric light. Damages to the extent of $500 are also demanded for the refusal of the defendant to comply with plaintiff's demand for such service. An answer has been interposed, which, among others, contains what is described as a sec- ond and separate defence to the amended complaint. To this the plaintiff has demurred for insufficiency. Without undertaking to state in full the allegations it contains, which are somewhat voluminous, it is sufficient to say that the controversy arises upon the reasonable- ness of one provision which the defendant requires the plaintiff to assent to as a condition of supplying him with the light desired. This provision was embodied in a paper tendered to the plaintiff for signa- ture, described in the answer as ‘‘the usual and regular application for lighting service of the form and tenor theretofore adopted by the defendant, and required of all its customers.” The stipulation in ques- tion, quoting from the answer, was that the plaintiff “would use elec- tric current supplied by defendant for lighting his premises for the period of one year from the time at which connection between the de- fendant’s mains and his premises should be made, and that he would pay for sach electric current used by him during each month on pre- sentation of bill at the rate of one cent per hour for each sixteen can- dle-power lamp, or the equivalent thereof, as measured by the meter upon the said premises for the purpose of measuring the current sup- plied under such application, subject to certain discounts therein set forth.” It was further provided that “a minimum monthly charge of one dollar and fifty cents ($1.50) should be made by the company for each separate month during which the agreement should be in effect.” It is this last provision which the plaintiff resists as unreasonable, and, if his contention in that regard is correct, the defendant had no right to require his assent thereto as a condition of performing the legal duty which rests upon it of supplying light when properly demanded. What that duty is is expressed in article 6, § 65, of the transportation cor- GOULD v. EDISON ELECTRIC ILLUMINATING CO. 309 porations law (chapter 566, Laws 1890), which, among other things, provides that, upon application in writing of the owner cor occupant of any building or premises within one hundred feet of the wires of any electric-light corporation, and the payment by him of all money due from him to such corporation, the latter shall supply electric light as may be required for lighting such building or premises; and that if for the space of ten days after such application and the deposit, if any be required, of a reasonable sum, which the company is entitled to exact as security for the payment of its compensation, the corporation shall refuse or neglect to supply electric light as required, such corpora- tion shall forfeit and pay to the applicant the sum of $10, and the further sum of $5 for every day thereafter during which such refusal or neg- lect shall continue. It is provided, however, that no such corporation shall be required to lay wires necessary to comply with such an appli- cation where the ground in which the same is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the same; nor unless the applicant, if required, shall deposit’ in advance with the corporation a sum of money sufficient to pay the cost of his portion of the wire required to be laid, and the expense of laying such portion. It will be observed that the Legislature has not undertaken to regu- late the price at which such light shall be supplied, nor to limit or define what compensation the corporation may exact for the service rendered by it. In that regard it is under no legal restraint, except that its charges must be reasonable and uniform. Whether, in a given case, they are so or not, is a proper subject for inquiry and determina- tion by the court, in view of the guast public nature of the business, and the duty towards the public imposed by law upon the corporation. Lough v. Outerbridge, 143 N. Y. 271, 277, 88 N. E. 292. The statute recognizes the right to charge for light consumed, the cost and ex- pense of laying wires, and a rental for wire and apparatus (Transpor- tation Corporations Law, art. 6, §§ 66, 68); but it does not assume to say what may or may not be reserved for either, nor does it require the amount charged to be separated into items with respect to its con- stituent elements. The law does not contemplate that the defendant shall do business at a loss. It is expected that it will, and it is en- titled to, make a reasonable profit upon its venture, and the sole ques- tion in such a case as this is whether the charge made is unreasonable, considering all that the defendant is required to do to meet each cus- tomer’s demand. It is stated in the fourth paragraph of the defence demurred to that the current is generated by dynamos driven by steam engines supplied with steam from boilers, all located in a station build- ing, and, when generated, is transmitted directly to the defendant’s underground conductors leading to the premises of the consumer; that each additional lamp connected with defendant’s system necessitates an additional investment by it in distributing conductors and local ap- pliances of about $20 in addition to the cost of generating and deliv- 310 GOULD v, EDISON ELECTRIC ILLUMINATING CO. ering the electric current; that the number of lamps which the plaintiff desired was eleven, and that the total additional investment thus made necessary in order to comply with his demand for service was at least the sum of $220. How, then, can it be said that a fixed charge, not based upon actual consumption, is of itself improper or unreasonable? The customer does not bind himself to use any particular amount of light, so that the return to the company, based on actual consumption, would rest entirely upon his volition, and it would, therefore, depend upon lim whether the service he has required the corporation to be in con- stant and immediate readiness to render is profitable or unprofitable to the latter. But this constant condition of readiness is a necessary and unavoidable obligation, which must be sustained, in order to meet instantaneously the demand for light, which the consumer is entitled to have at any moment that he wishes it. It thus forms a part of the service to be rendered, and is an item properly to be considered when the reasonableness of the charges exacted by the company is called in question. As we have seen, the latter is not confined by statute to any specific rate, nor has any attempt been made to measure or limit the compensation which such corporations may lawfully charge, as has been done in the case of gas companies, so that they are free to exact a reasonable return for the service required, which includes, as I have said, not only the actual supply of electric light, but the readiness to supply it, coincidently with the customer’s desire to have it. Theonly condition affecting the right is that the compensation must be reason- able, and, what is also incidental to this requirement, that it should be uniform, namely, the same for all customers similarly situated. Un- doubtedly, the demand which those desiring to use it are entitled to make for electric light imports an intention on their part to consume it to some extent, and that each lamp ordered is requisite for that pur- pose. The charge which the defendant makes is based primarily upon actual consumption over which it has no control. One consumer with the same number of lamps will use more than another. In both cases the return to the company may be remunerative, or the use of one may be so inconsiderable as to involve a loss. To meet this contingency the monthly minimum charge of $1.50 is made. But it must be borne in mind that this payment is not in addition to the charge for actual consumption. Where light is consumed which entitles the company to payment, on meter measurement, of a sum per month equal to or in excess of the so-called minimum charge, the customer pays only for the light he has actually had; so that this fixed charge becomes practi- cally operative only where his consumption falls below the extent of use which it measures. I can see nothing unreasonable in this when the service, as I have defined it, which the company is obliged to ren- der, is considered. It is not a penalty for a failure to use defendant’s product, but is properly to be regarded as compensatory for that part of the service which is at all times being rendered in the maintenance of the apparatus and connections through which the electric current is CLINTON ELECTRIC L. H. AND P. CO. v. SNELL. 311 made available to the customer for the production of light at his plea- sure. The plaintiff distinctly refused to pay any such charge, and the defendant was, therefore, justified in refusing to supply him with light. The duty resting upon the company under the statute imports a recip- rocal one on the part of the customer to pay for the service which he requires, and, where the latter refuses in advance to pay charges which appear to be reasonable, the company is under no obligation to render the service demanded. As the defence in question is sufficient upon its face, it follows that the demurrer thereto must be overruled. The demurrer is therefore overruled, with costs, and judgment or- dered in favor of the defendant accordingly. CLINTON ELECTRIC L. H. AND P. CO. v. SNELL. APPELLATE Court, Ityrnors, 1900. [95 Ill. App. 552.] Manpamvus. Appeal from the Circuit Court of De Witt County; the Hon. Witiiam G. Cocnuran, Judge, presiding. . Heard in this court at the November term, 1900. Reversed and remanded with directions. Opinion filed June 10, 1901. Mr. Presiding Justice Harker delivered the opinion of the court. Appellant owns and operates an electric light plant in the city of Clinton, Illinois. Appellee is the owner of a large dwelling house, oc- cupied by himself and family, situated on one of the principal streets of Clinton. Appellee having wired bis house for electric lighting, called upon appellant to connect his house with its plant and furnish him light upon the same terms required from other citizens in the vicinity. Appellant refused unless appellee would furnish or pay for a transformer. A transformer is a coil of copper wire imbedded in a sheet iron box and usually placed on a pole outside the building to be lighted. Its object is to reduce the voltage of electricity as it passes from the main wire to the wire connecting the building. Without it there would be greater danger of fire. The evidence shows that the cost of a transformer of the size necessary for appellee’s house is twenty-five dollars. Appellee declined to furnish or pay for one and instituted this proceeding by mandamus in the Circuit Court to com- pel appellant to connect his house with its plant and furnish him with light. The cause was submitted to a jury to find the material facts, who, to that end, answered twenty-three special interrogatories pro- pounded. The court then held upon propositions of law and rendered judgment awarding a peremptory writ of mandamus compelling ap- pellant to furnish electricity for appellee’s house without payment for a transformer. In their printed brief and argument, counsel for appellant urge that 312 CLINTON ELECTRIC L. H. AND P. CO. ¥. SNELL. some of the special findings of the jury are contradictory, that some are not material and that others are against the evidence. They also urge that the court erred in refusing, as law, certain propositions ten- dered. In the view we take of the facts and the law of the case, it is unnecessary to discuss in detail the special findings of the jury or the holdings of the court on propositions of law. There is no statute of this State regulating the manner under which electric light companies shall do business. Such a company can fix its rates and establish its rules, subject only to the common law and such regulations as may be imposed by the muncipality which grants its franchise. The common-law rule against discrimination does not require a gas light company or an electric light company to treat all patrons alike. It may bestow favors upon one that it withholds from others, providing it deals justly and reasonably by the others. The discrimination which the law forbids and on account of which the court will be justified in interference by mandamus must be un- just or unreasonable. The object of the rule is to protect patrons from extortion by persons and corporations enjoying exclusive fran- chises and privileges. The evidence shows that before the commencement of this suit, ap- pellant had been in the business of wiring houses and furnishing elec- tricity for lighting in Clinton for ten or twelve years. During that time it had wired 280 houses, for which it received a profit. To such of its patrons, it furnished transformers free. Some fifteen or twenty other houses were wired by other parties. For some of the number trans- formers were furnished by appellant free, while others were charged for them. It is clear from the proofs that appellant exacted the payment for a transformer from appellee because he had elected to wire his own house. It had the legal right to do so unless a transformer was unnecessary for ‘appellee’s house or its demands upon appellee amounted to extortion. The house is a very large one and there are so many lights to be sup- plied that the employment of an individual transformer is necessary. There was no discrimination, whatever, in furnishing to patrons who employed appellant to wire their houses for a profit, the use of a trans- former free, and charging the cost of one to those who wired their own houses. The discrimination, if any, consisted in furnishing the appli- ance free to some and charging other of the last named patrons with the cost of it. As we look upon it, those who receive the use of the transformers free were simply fortunate in having a favor granted to them, and there was no extortion in requiring others to pay. It is fundamental that a peremptory writ of mandamus will be granted only where the petitioner shows a clear and undoubted right to it. We are of the opinion that the discrimination complained of was neither unjust nor unreasonable. The judgment will therefore be reversed and the cause remanded, with directions to the Circuit Court to deny the writ and dismiss the petition. : Reversed and remanded. SMITH v. CAPITAL GAS CO. 313 SMITH v. CAPITAL GAS CO. Supreme Court or Catirornia, 1901. [132 Cal. 209.1] Smita, C. The suit was brought to recover of the defendant liqui- dated damages,— amounting to thirteen hundred dollars, — alleged to be due under the provisions of § 629 of the Civil Code, for refusal to furnish gas to the plaintiff. The judgment was for the defendant, and the plaintiff appeals. The provision of the code in question is, that, ‘“‘upon the application, in writing, of the owner or occupant of any building or premises distant not more than one hundred feet from any main of the corporation, . . . the corporation must supply gas as required for such building or premises,” &c.; and further, that ‘if, for the space of ten days after such application, the corporation re- fuses or neglects to supply the gas required, it must pay to the appli- cant the sum of fifty dollars as liquidated damages, and five dollars a day as liquidated damages for every day such refusal or neglect con- tinues thereafter.” ‘The case as presented by the findings is as fol- lows : — The defendant is a corporation engaged in supplying the city of Sac- ramento with gas, and the plaintiff is an occupant of premises within a hundred feet of one of its mains. September 22, 1898, the plaintiff served on the defendant a written notice, which (omitting date, address, and signature) was as follows: ‘‘ You will please immediately supply me with gas for the premises occupied hy me,” &c. (describing them). The defendant, in reply, within ten days thereafter, ‘‘ notified plaintiff that it would supply plaintiff with gas for said building and premises, if plaintiff would furnish a meter, or agree to pay defendant fifty cents per month as rent for a meter,” and “ plaintiff refused to furnish a meter, or to pay said rent to the defendant.” The rent demanded was found by the court to be ‘‘ fair and equitable,” representing the monthly cost of the meter to the defendant, for care, labor, interest on investment, &c. But it is found that the defendant had no rule re- quiring payment of rent for meters, nor did it charge its other cus- tomers therefor. The defendant, it seems, had, prior to September 8, 1898, been supplying plaintiff with gas; but the plaintiff, during the year preceding that date, had used electrical lights mainly and almost exclusively, and the total amount of gas used on the premises amounted only to the value of $1.75; and the defendant, on that date, had re- moved the meter, thereby depriving the plaintiff of gas. It is found — in a passage following the statement of the above facts, and the written notice — that ‘‘said gas” was and is necessary for the plain- tiff’s use on the premises in question. But— unless this expression be 1 Opinion only is printed. — Ep. 314 SMITH v. CAPITAL GAS CO. construed as referring to the gas used prior to September 8, 1898, — it does not appear how much or what gas was needed. There can be no doubt, I think, of the right of gas companies, ordi- narily, to charge rents for meters. Civ. Code, § 632; Sheward ». Citizens’ Water Co., 90 Cal. 641. But the point is made by the ap- pellant, that, in charging him with such rent, when other consumers were not required to pay it, ‘‘ the defendant arbitrarily discriminated against the plaintiff.” But I donot think this is the case. Ordinarily, compensation for the meter is received from the return for the gas consumed. But here the value of the gas consumed during the year preceding the removal of the meter was not equal to a sixth part of the annual expense of the meter. The plaintiff's written demand did not specify, even in a general way, the amount of gas required, or even that he required more gas than he had been in the habit of using, An- drews v. North River, &c. Co., 51 N. Y. Supp. 872; and the defendant was quite justified in supposing that he required no more. Code Civ. Proc., § 1963; 1 Greenleaf on Evidence, § 41. A ‘state of mind once proved to exist [is] presumed to remain such until the contrary appears.” 1 Greenleaf on Evidence, § 42. The case, therefore, stands as though the plaintiff's demand had been simply for the res- toration of the status guo—i.e, for the use of the quantity of gas he had been using. The plaintiff’s case was therefore altogether ex- ceptional, and, we may assume, unique. For there is neither finding nor allegation that there were any others in the same category, and if none, then there was no discrimination ; and if there were any such, it devolved on the plaintiff to allege and to proveit; for to render one liable for a penalty, every material fact necessary to bring the case within the statute must be affirmatively shown. Conly v. Clay, 90 Hun, 20; Village of Hardwick v. Vermont T. and T. Co., 70 Vt. 180; 40 Atl. Rep. 169. The defendant was justified, then, in notifying the plaintiff that he would be charged with rent for the meter, if supplied by the company; and the plaintiff's refusal to agree to this was its sufficient justification in refusing to furnish gas. IT advise that the judgment be affirmed. Gray, C., and Cooper, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. McFarianp, J., Hensnaw, J., Tempe, J. Hearing in bane denied. 1 Compare: Sheward v. Water Co., 90 Cal. 640; Gas Co. c. Dulaney, 100 Ky. 405; 8. v. Gas Light Co, 34 Mo. App. 501; S. v. Gas Light Co., 34 Ohio St. 572; Andrews v. Light Co., 18 N. ¥. S. 50.— Ep. CANADA, ETC. RAILWAY CO. v. INTERNATIONAL BRIDGE co. 315 CANADA SOUTHERN RAILWAY CO. v. INTERNATIONAL BRIDGE CO. Privy Councit, 1883. (8 App. Cas. 723.1] By the decree in the first appeal it was declared that the respondent International Bridge Company was entitled to certain tolls claimed by it from the appellants for the use by them of the respondent’s bridge, and consequential relief. The appellant is a corporation under the laws of the Dominion of Canada. Its railway is adjacent to the Canadian terminus of the International Bridge crossing the River Niagara. It also works a line of railway from such terminus to Lake Ontario. The International Bridge has one of its termini in the Province of Ontario and the other in the State of New York. The bridge and approaches are owned and maintained by the International Bridge Company, which is incorpo- rated under the laws of the Dominion of Canada and also under the laws of the State of New York, and an agreement made thereunder: see an Act of the State of New York passed on the 17th of April, 1857, intituled ‘* An Act to incorporate the International Bridge Company,” and an Act of the Legislature of the former province of Canada, 20 Vict. c. 227. See further an Act of the State of New York, passed May 4, 1869, and Canadian Act, 32 & 33 Vict. c. 65, in virtue whereof an agreement or act of consolidation, dated the 18th of May, 1870, was entered into from which the International Bridge Company derived its origin. The questions decided in this appeal are, first, as to the construction of the Acts of the Canadian Legislature, viz., 20 Vict. c. 227, sects. 14, 16, and 22 Vict. c. 124 (which amended the former act), sect. 2, as to the right to demand tolls; second, whether the tolls are reasonable or are shown to be unreasonable. Tue Lorn Caancettor (Earl of Sersourne). ... 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 com- pany to make, but what it is reasonable to charge to the person who is charged. Thatis the only thing he is concerned with. They do not suy 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. — Ep. 316 COTTING v. GODDARD. 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 or tae Unirep States, 1901. [22 8. C. Rep. 30.2] 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. Cotting, 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. — Ep. COTTING v. GODDARD. 317 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 conrt 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 party. 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 $5,388,003.25; that the gross income realized by the stock-yards company 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 318 COTTING v. GODDARD. net income for the year of $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 reduced 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 by 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 stock-yards heretofore enumerated are operated gen- erally in the same manner as those at Kansas City, 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 unwillingly, 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 COTTING Vv. GODDARD. 319 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 ina 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 party 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 by 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 may 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 inquiry, 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 320 COTTING v. GODDARD. 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 ordinary 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 by 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 mucb 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 may 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 always 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 yard, 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 why the classification should be based upon the vol- ume of business done is that rates which are reasonable and proper and COTTING v. GODDARD. 321 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 may 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 day 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. 21 322 SOUTHERN PACIFIC CO. v. RAILROAD COMMISSIONERS. SOUTHERN PACIFIC CO. v. BOARD OF RAILROAD COMMISSIONERS. Crecurr Court oF THE Unirep States, 1896. [78 Fed. Rep. 236.1] Tue Southern Pacific Company is a corporation organized under a special act of the legislature of Kentucky, and operating, under leases, a number of railroads, in California and other States and Territories, constituting its Pacific System. On September 12 and 18, 1895, the board of railroad commissioners of California, acting under the powers conferred on it by section 22, art. 12, of the constitution of California, and, by the act of the legis- lature of April 15, 1880, passed two resolutions, the first of which, adopted unanimously, and known as the ‘¢ Grain Resolution,” was as follows: ‘* Resolved, that the rates at present existing for the transportation of grain in California, by the Southern Pacific Company, and its leased lines, as established by grain tariff No. 2 and all subsequent amend- ments thereto, be, and the same are hereby, reduced 8 per cent; and the secretary of this board is hereby directed forthwith’ to prepare for publication by this board a schedule of rates in accordance herewith; and, when so prepared, the same shall be published at once, and take effect as soon thereafter as allowed by law, and that on the adoption of the revised general freight tariff of said company, herein provided for, any further per cent deduction due said grain tariff, as provided herein, shall be given.” The second, adopted by the votes of Commissioners La Rue and Stanton, against the vote of Commissioner Clark, and known as the “© 25 Per Cent Resolution,” was as follows: “ Resolved, that the present rates of charges for the transportation of freights in California by the Southern Pacific Company and its leased lines are unjust to the shippers of the State. Therefore be it resolved, that the present rate of charges for the transportation of freights in California by the Southern Pacific Company and its leased liens be subjected to such an average reduction as, including all redue- tions made therein since December 1, 1894, shall equal an average reduction of 25 per cent upon said rates, as in existence on said December 1, 1894. Resolved, that this board proceed at once to adopt a revised schedule of rates in accordance herewith, in order that the same may be in force on or before January 1, 1896. And be it further resolved, that, if the necessities of the case so require, this board will at once proceed to the ascertainment of the proportion of the reduction due any commodity which, by reason of its nature, requires to be , This case is abridged. — Ep. SOUTHERN PACIFIC CO. ¥. RAILROAD COMMISSIONERS. 323 moved between now and the time herein fixed of the taking effect of said general reduction.” On October 14, 1895, the Southern Pacific Company filed its bill against the board of railroad commissioners, seeking to enjoin the en- forcement of these resolutions, and obtained a temporary restraining order, with an order to show cause why it should not be continued. The United States also intervened in support of the prayer for an injunction; and affidavits and other proofs were submitted by all parties, with full arguments upon the question of the continuance of the injunction. McKenna, Circuit Judge. ... The attorney general says that he can demonstrate, beyond the possibility of a plausible explanation, that complainant has failed to make such a showing as would entitle it to the relief prayed for, even if the 8 per cent and 25 per cent reductions could, under any circumstances, be considered jointly. On the other hand, Mr. Herrin says that complainant is not asking for a single dollar of dividend, because existing rates and business are not sufficient to earn dividends. It only seeks revenue enough to pay interests on bonds, to pay operating expenses, and to pay taxes. Present rates, under the experience of 1894, were insufficient for such payment. The elements of the controversy will be stated as we proceed. It may, however, be premised here that Mr. Justice Brewer said in the Dey case: ‘*‘ Compensation implies three things, — pay- ment of the cost of service, interest on bonds, and then some divi- dend ;” ‘‘ adequate dividend,” subsequent cases say. These, then, are the factors of compensation to be applied. Complainant’s bill, after a somewhat detailed statement of the amounts payable by complainant under the leases to it, gives a sum- mary of the receipts and expenditures, which shows a deficiency on the Pacific System for the year of 1894 of $276,262.70; for 1895, $1,476,176.39. In the amendment to the bill there is an exhibit of the receipts and expenditures of the California roads of the system, showing a surplus for 1894 of $434,497.05; for 1895 (ending June 30), a deficit of $863,691.29. The attorney general claims that this showing is incorrect, for three reasons : (1) Because there is included a deficit of the Oregon & California road, in the sum of $541,355.71; (2) because there are included in expenditures on the various roads, for improvements and betterments, the sum of $654,826.81; (3) because there is included in expenditures, as operating expenses, the rent paid to the California Pacific road, in the sum of $600,000. If the last (third) be good, it is conceded that the deficit on the Pacific System, including the other objected items, will amount to $24,131.20. If not good, the deficit will amount to $54,905.65. For the time being, I will assume this objection to be good, and will consider the other objections. Is the deficit of the Oregon & California road a proper expenditure of complainant, which resulted from the insufficiency of the income to 324 SOUTHERN PACIFIC CO. v. RAILROAD COMMISSIONERS. pay the interest on the bonded debt ? This, of course, depends upon the terms of the lease from the Oregon & California Company.. It provides that the Southern Pacific Company shall pay to the Oregon & California Company, on account of the road, from the income received from it, as follows: The cost of operating such road and incidental expenses connected therewith, and “shall apply the residue of the amount of net income and earnings of said railroads to such extent as shall be required for the purpose, to the payment of the interest, . . . upon the now existing bonded indebtedness.” The lease also provided that ‘‘on the 1st of May of each year the Southern Pacific Company shall pay to its lessor such balance, if any, of the net income for the year ended the 1st of December preceding, as shall remain in its hands after all the payments for interest . . . agreed to be made or paid.” It is, however, further provided that, if the net income be insufficient to pay in full such current interest for the year, it shall be optional with the Southern Pacific Company to advance or pay for account of the Oregon & California Company such deficiency. If, however, it do so, it shall be entitled to interest thereon, at 6 per cent per annum, until reimbursed, and shall be entitled to pay itself out of subsequent earnings or income of the demised premises, and have a lien thereon, and on such income. It is objected that the payment of the deficit was optional, and again, because the amount paid is secured upon future revenues and on the demised premises. In other words, it was not a ‘* payment,” in any proper sense, by the Southern Pacific Company for which it could charge. Interest on bonded debt is held by all authorities to be a proper charge upon income, and hence, if the Oregon & California Company had operated its road, such interest could be claimed by it, —deficiency of income to pay such interest would be a loss to the company. But that is not the test. We have already seen (and im- portant consequences follow from it) that the board of railroad com- missioners dealt with the Pacific System — dealt with the Southern Pacific Company, as operating that system — not any individual road, but all the roads; and hence the regulation of the board must be tested by the revenues of all the roads, not by the revenue of one. It is not what the Oregon & California Company might show, or what the Southern Pacific Company might show, for the operation of that road alone, but what it may show as to the system. This being so, the conclusion is obvious. Was the payment of the interest a loss to the Southern Pacific Company ? Clearly not. It is secured to it, and is to be reimbursed to it, and is charged in the report as a ‘‘ balance deficit payable by Oregon & California Railroad Company.” Clearly, again, if it had not been paid, it could not be claimed as a loss. If paid, and to be reimbursed and secured, it cannot be claimed as a loss, if the debtor or the security be good. I cannot assume now that the debtor or the security will not be good. It may be, of course, that it will not be good, but I can only deal with present SOUTHERN PACIFIC CO. v. RAILROAD COMMISSIONERS. 325 conditions, or, at any rate, with those likely to occur within a reason- able period of time. That, under the lease, the payment of the deficit is not a charge on the Southern Pacific Company, is not only evident from its terms, but evident from the allegations of the bill. The second ground of objection, that is, that to improvements and betterments, there will have to be considered — First, the abstract legality of such a charge; and, second, the competency of it under the leases. The abstract legality of such charge is established by the Reagan Case. The same contention was made there, and a deduction of the sum of $302,085.77 was claimed to have been charged to operating expenses, whereas it was expended for ‘‘ Cost of road, equipment, and permanent improvements.” Mr. Justice Brewer, commenting on the claim, said: *‘ Again, the sum of $302,085.77 appears in that table, under the description ‘Cost of road, equipment, and permanent improvements, admitted to have been included in operating expenses,’ and is added to the income as though it had been improperly included in operating expenses. But, before this change can be held to be proper, it is well to see what further light is thrown on the matter by other portions of the report. That states that there were no extensions of the road during that year, so that all of this sum was expended upon the road as it was. Among the items going to make up this sum of $302,085.77 is one of $113,212.09 for rails, and it appears from the same report that there was not a dollar expended for rails except as included within this amount. Now, it goes without saying that, in the operation of every road, there is a constant wearing out of the rails, and a con- stant necessity for replacing old with new. The purchase of these rails may be called ‘‘ permanent improvements,”’ or by any other name ; but they are what is necessary for keeping the road in serviceable con- dition. Indeed, in another part of the report, under the head of ‘Renewals of rails and ties,’ is stated the number of tons of ‘New rails laid’ on the main line. Other items therein are for fencing, grad- ing, bridging, aud culvert masonry, bridges and trestles, buildings, furniture, fixtures, &c. It being shown affirmatively that there were no extensions, it is obvious that these expenditures were those neces- sary for a proper carrying on of the business required of the company.” Substantially to the same effect is Union Pac. Ry. Co. v. U. S., 99 U.S. 402. In the latter case the court was called upon to interpret that clause of the act of 1862 in aid of the construction of the Union Pacific Railroad which provided that ‘‘after said road is completed, and until said bond and interest are paid, at least 5 per cent of the net earnings of said roads shall also be applied to the payment there- of.” It may be said that there were several elements in that case which are not in the case at bar, but, nevertheless, the remarks Mr. Justice Bradley makes are substantially applicable. Speaking of when a railroad is completed, he said: “In one sense, a railroad is never completed. There is never, or 326 SOUTHERN PACIFIC CO. v. RAILROAD COMMISSIONERS. hardly ever, a time when something more cannot be done, and is not done, to render the most perfect road more complete than it was before. This fact is well exemplified by the history of the early railroads of the country. At first, many of them were constructed with a flat rail or iron bar, laid on wooden stringpieces, resulting in what was known in former times as ‘snake heads’; the bars becoming loose, and curving up in such a manner as to be caught by the cars, and forced through the floors amongst the passengers. ‘Then came the T rail, and, finally, the H rail, which itself passed through many successive im- provements. Finally, steel rails, in the place of iron rails, have been adopted as the most perfect, durable, safe, and economical rails on extensive lines of road. Bridges were first made of wood, then of stone, then of stone and iron. Grades originally crossed, and, in most cases, do still cross, highways and other roads on the same level. The most improved plan is to have them, by means of bridges, pass over or under intersecting roads. A single track is all that is deemed necessary to begin with; but now no railroad of any pretensions is considered perfect until it has, at least, a double track. Depots and station houses are, at first, mere sheds, which are deemed sufficient to answer the purpose of business. These are succeeded, as the means of the company admit, by commodious station and freight houses, of permanent and ornamental structure. And so the process of improve- ment goes on; so that it is often a nice question to determine what is meant by a complete, first-class railroad.” And, declaring what are proper expenditures, he further said: ‘¢ Having considered the question of receipts or earnings, the next thing in order is the expenditures which are properly chargeable against the gross earnings in order to arrive at the ‘ net earnings,’ as this expression is to be understood within the meaning of the act. As a general proposition, net earnings are the excess of the gross earnings over the expenditures defrayed in producing them, aside from and exclusive of the expenditure of capital laid out in constructing and equipping the works themselves. It may often be difficult to draw a precise line between expenditures for construction and the ordinary expenses incident to operating and maintaining the road and works of a railroad company. Theoretically, the expenses chargeable to earn- ings include the general expenses of keeping up the organization of the company, and all expenses incurred in operating the works and keeping them in good condition and repair; while expenses chargeable to capital include those which are incurred in the original construction of the works, and in the subsequent enlargement and improvement thereof. With regard to the last-mentioned class of expenditures, however, namely, those which are incurred in enlarging and improving the works, a difference of practice prevails amongst railroad companies. Some charge to construction account every item of expense, and every part and portion of every item, which goes to make the road, or any of its appurtenances or equipments, better than they were before; SOUTHERN PACIFIC CO. v. RAILROAD COMMISSIONERS. 327 whilst others charge to ordinary expense account, and against earnings, whatever is taken for these purposes from the earnings, and is not raised upon bonds or issues of stock. ‘The latter method is deemed the most conservative and beneficial for the company, and operates as a restraint against injudicious dividends and the accumulation of a heavy indebtedness. ‘The temptation is to make expenses appear as small as possible, so as to have a large apparent surplus to divide. But it is not regarded as the wisest and most prudent method. The question is one of policy, which is usually left to the discretion of the directors. There is but little danger that any board will cause a very large or undue portion of their earnings to be absorbed in permanent improvements. The practice will only extend to those which may be required from time to time by the gradual increase of the company’s ° traffic, the despatch of business, the public accommodation, and the general permanency and completeness of the works. When any im- portant improvement is needed, such as an additional track, or any other matter which involves a large outlay of money, the owners of the road will hardly forego the entire suspension of dividends in order to raise the requisite funds for those purposes, but will rather take the ordinary course of issuing bonds or additional stock. But for making all ordinary improvements, as well as repairs, it is better for the stock- holders, and all those who are interested in the prosperity of the enter- prise, that a portion of the earnings should be employed. . . . We are disposed to agree, therefore, with the judge who delivered the con- curring opinion in the court below, that the twenty-seventh item of expenditure, as stated in the table of expenses in the eighteenth find- ing, entitled ‘ Expenditures for station: buildings,. shops,’ &c., is a charge that may properly be made against earnings; since, as the fact is, such expenditures were actually paid therefrom, and were not carried to capital account.” The same idea is variously illustrated in the following cases: U.S. ». Kansas Pac. R. Co., 99 U. S. 455; St. John v. Railway Co., 22 Wall. 186; Railroad Co. v. Nickals, 119 U. S. 296, 7 Sup.. Ct. 209; Warren v. King, 108 U. S. 389, 2 Sup. Ct. 789; Mobile & O. R. Co. v. State of Tennessee, 153 U. S. 495, 14 Sup. Ct. 968; Barnard v. Railroad Co., 8 Allen, 512; Minot v. Paine, 99 Mass. 106, 107; Rail- way Co. v. Elkins, 37 N. J. Eq. 273; Dent v. London Tramways Co., 16 Ch. Div. 344. The order of the court, therefore, is that that part of the order staying the execution of the resolution of the board of railroad commis- sioners, reducing rates on grain 8 per cent, be continued until the further order of the court; that the balance of the restraining order be dissolved. 328 GLOUCESTER WATER SUPPLY CO. v. GLOUCESTER. GLOUCESTER WATER SUPPLY CO. v. GLOUCESTER. Supreme Court or Massacuusetts, 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. Lorine, 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 company’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. — Ep. GLOUCESTER WATER SUPPLY CO. v. GLOUCESTER.. 329 water company’s property, 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 company.” ‘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 capacity 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 years 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. 330 BRYMER Vv. BUTLER WATER CO. 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 capacity, 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 carry 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 or Pennsytvania, 1897. [179 Pa. St. 231.1] Wittams, 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. — Ep. BRYMER v. BUTLER WATER CO. 331 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 generally or to asum 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 may be enforced in other cases. We do not thiak 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 yields 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 fairly required to maintain the plant, pay 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 by the cor- poration, and in a position to be distributed by a dividend among its stockholders, was used to pay for improvements and stock issued in lieu of cash to the stockholders. It is not- necessary that the money 332 BRYMER v. BUTLER WATER CO. should first be paid to the stockholder and then returned by him in payment 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 by 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 authority for such a ruling, and 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 annually of a sum sufficient to keep the plant in good repair and to pay 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 very 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 by 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 STEENERSON v. GREAT NORTHERN RAILWAY. 333 ‘Cis properly filtered the charges may be ‘increased twenty per cent.” The school district of Butler was not a party complainant in this case, nor was the county of Butler, but both were taken under the protection of the court and specifically 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, many 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 fearlessly 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 or Minnesota, 1897. [69 Minn. 353.1] Tue 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. — Ep. 334 STEENERSON v. GREAT NORTHERN RAILWAY. 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. Mircuett, J. ... 1. Jt 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 solely by virtue of the constitutional guaranty that no one shall be de- prived of bis 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 very 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: ‘Tf a railroad is built and operated wisely and economically ; if it is located where public need requires it, where there is business to justify its existence, and constructed so as to be fit and well adapted for the STEENERSON v. GREAT NORTHERN RAILWAY. 335 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 may 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 unremunerative, 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, correctly, done by Justice Canty. Applying the rules I have suggested to the evidence, Ido 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. 336 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. MILWAUKEE ELECTRIC RAILWAY AND LIGHT CO. v. CITY OF MILWAUKEE. Circuit Court oF THE Unitep States, 1898. [87 Fed. 577.1] Fina 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 Railway Company, 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. — Ep. MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. 337 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. They 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 88 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 previously 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, namcly, 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 22 538 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. ¥. MILWAUKEE. 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 inquiry, 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 inquiry 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 fairly 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 physical 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 carnings, 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 omit many of the deductions here asserted, these contentions on the part of the'defendant rest solely upon the books of MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. 339 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, $387,074.70; in 1895, $479,621.11; in 1896, $66,520.99. But this total for 1896 erroneously includes an allowance of $160,550 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 testimony, 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 2. 2 1 1 ww we we ww es) $230,000 In 1895 2. 2. 1 1 7 1 ew we ee ew ee )~=— 840,000 Tn, 1896-2 6 me a we we owe we Be ee ew ©: 95,000 $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 : “T 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, 340 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. at the outside, ten to twelve years, 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 Company must do this year, 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, thereby 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, you 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 physical depreciation seems, to some extent, although only partially, involved in provisions for maintenance, and, while the testimony 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 railway 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 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. ¥. MILWAUKEE. 341 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 Prdof), making the statement of cost $8,885,644.17; and as this excludes any valuation of stock, and places the value of the bonds at the dis- count agreed upon between the parties, which also seems fair, it may 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 he 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. 342 MILWAUKEE ELECTRIC RAILWAY, ETC. CO. v. MILWAUKEE. 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 many 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 may 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 amdunts 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. METROPOLITAN TRUST CO. v. HOUSTON, ETC. RAILROAD. 343 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 showingy 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 ofthe 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 company 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. Crrcuir Court or Unirep 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. Tlie 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 case is abridged—Ep. 344 METROPOLITAN TRUST CO. v. HOUSTON, ETC. RAILROAD. 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 by 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, METROPOLITAN TRUST CO. ¥. HOUSTON, ETC. RAILROAD. 345 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. Anda 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 property may be so improvidently located, or so improvidently 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 improvidently 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 346 METROPOLITAN TRUST CO. v. HOUSTON, ETC. RAILROAD. 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 money 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 1878, nearly twenty years after its construction was begun at Houston, it would not cover all of the time, and possibly 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 company of the railroad property, and the business of that company as it exists to-day, may not be exactly accurate,— clearly is not exactly accurate; but it seems to me that it is not beyond 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 fally 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 SMYTH v. AMES. 347 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, unreasonably 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 attorney-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 or tHE Unirep States, 1898. [169 U. S. 466.1] Eacu of these suits was brought July 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, 1898, c. 72, Art. 12. The act is re- ferred to in the record as House Roll 33. 1 This case is abridged. — Ep. 348 SMYTH v. AMES. These cases were heard at the same time, and in the one in which the Union Pacific Company, the St. Joseph Company, the Omaha Company, and the Kansas City Company were defendants, it was adjudged in the Circuit Court — Mr. Justice Brewrr 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 he 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 said companies, or either of them, reasonable compensation for such ser- vices. It is further ordered, adjudged, and decreed that the defend- SMYTH v. AMES. 349 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 by 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 Haran... . 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, relatively they are. That is, the roads may not discriminate against the people of any one State, but they 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 350 SMYTH v. AMES. should take into consideration, among other things, the whole business of the company, that is, all its business, passenger and freight, inter- state and domestic. If it be found upon investigation 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 SMYTH v, AMES. 351 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 highway, 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 contro] 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 simply that the corporation may meet operating expenses, pay the interest on its obliga- tions, and declare a dividend to stockholders. If a railroad corporation hus 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. 8. 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- way, 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 every case, where its power has not been restrained by contract, 352 SMYTH v. AMES. 1 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. Ifa corporation cannot maintain such a highway and earn dividends for ‘stockholders, it isa 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 employs 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 SMYTH v. AMES, 353 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 say that 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 affirmed. 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., 184 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. — Ep. 28 354 FITCHBURG RAILROAD ¥, GAGE. Section IV. Wrrsovut Discrimination. ANONYMOUS. Common Puieas, 1558. [Moore, 78, pl. 207.] OnE came to an inn, and the innkeeper said to him, “‘ Here are per- sons resorting to this house, and I know nothing about their behavior; therefore take the key of such a chamber and put your goods there at your own risk, for I will take no responsibility for them; ” and after- wards the goods were stolen. The party brought action on the case against the innkeeper. Wray. The innkeeper is responsible by the law for all the goods which come to his inn; and by the law he cannot discharge himself by such words. Harper. We will demur. Browne, J. Then we will quickly make an end of it. Harper. My client has instructed me in this way, and I have no more to say. Browne, J. You have the more to pay; the innkeeper may take issue, that the goods were not stolen by his negligence. FITCHBURG RAILROAD v. GAGE. Supreme JupiciaL Courr or Massacuuserts, 1859. [12 Gray, 393.] Action of contract upon an account annexed against Gage, Hit- tinger & Company for the transportation of ice from Fresh and Spy Ponds to Charlestown, over that portion of the plaintiff’s railroad which was formerly the Charlestown Branch Railroad, and from Groton to Charlestown over that portion which has always been known as the Fitchburg Railroad. The case was referred to an auditor, to whose FITCHBURG RAILROAD v, GAGE. 355 report the defendants took exceptions presenting pure questions of law, and was thereupon reserved by Bigelow, J., for the consideration of the whole court, and is stated in the opinion. S. Bartlet & D. Thaxter, for the defendants. R. Choate & H. C. 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 they insist that the rate of compensation claimed is too large, and that the charges ought to be reduced. They have also filed an account in set-off, claiming to recover back the amount of an alleged overpayment made by them for similar services in the transportation of other quantities of ice belonging to them. Their claim to be entitled to a diminution in the amount of charges in the plaintiffs’ account, and to a recovery of the sum stated in their account in set-off, both rest upon the same ground. 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 they charged the defendants fifty cents per ton for the transportation of ice, they charged other par- ties only twenty cents per ton for a like service in reference to bricks. The defendants contended that they were entitled to maintain their claim upon two grounds: first, under the provisions in the plaintiffs’ act of incorporation; and, secondly, upon the general principle that as common carriers they were bound and required to transport every species of freight of the same class for any and all parties at the same rate of compensation ; and that they had therefore no right to charge any greater sum for the transportation of ice than that for which they had actually carried bricks for other parties. Neither of the claims was sustained by the auditor, and he accordingly rejected the evidence offered in support of them. In both particulars we think his ruling was correct.? 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- ! The decision upon the first ground is omitted. — Ep. 356 FITCHBURG RAILROAD ¥. GAGE. termined by the directors. Rev. Sts. c. 89, § 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: ‘T would not, however, have it understood that carriers are at liberty 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. Angell on Carriers, § 124. ‘And it supplies substantially the same rule which is recognized and established in this Commonwealth by the provisions of St. 1845, c. 191. The recent English cases, cited by the counsel for the defendants, are chiefly commentaries upon the special legislation of Parliament regulating the transportation of freight on railroads con- structed under the authority of the government there ; and consequently throw very little light upon questions concerning the general rights and duties of common carriers, and are for that reason not to be regarded as authoritative expositions of the common law upon those subjects. The principle derived from that source is very plain and simple. It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the re- stricted right to charge, in each particular case of service, a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the car- riage of goods or merchandise of any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rate, he may undoubtedly do so with- out thereby entitling all other persons and parties to the same advantage and relief. It could of course make no difference whether such a con- cession was in relation to articles of the same kind or belonging to the same general class as to risk and cost of transportation. The defend- ants do not deny that the charge made on them for the transportation of their ice was according to the rates established by the directors of the company, or assert that the compensation claimed is in any degree excessive or unreasonable. Certainly then the charges of the plaintiffs should be considered legal as well as just; nor can the defendants have any real or equitable right to insist upon any abatement or deduction, because for special reasons, which are not known and cannot therefore be appreciated, allowances may have been conceded in particular in- stances, or in reference to a particular series of services, to other parties. MESSENGER v. PENNSYLVANIA RAILROAD CO. 357 There remains another question, the determination of which depends upon other and different considerations. The auditor, for the purpose of presenting the question to the determination of the court, rejected evidence offered by the defendants tending to prove that prior to the 22d of February, 1855, and down to that time, the plaintiffs had trans- ported for them large quantities of ice from Groton at a much less rate of compensation than the amount charged in their account under date of the 31st January of that year, without having given them notice, and without their knowledge, of 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 or New Jersey, 1873. Court or Errors anp AppPEaALs OF New Jersey, 1874. [7 Vroom (36 N.J.L.), 407, 8 Vroom (37 N. J. L.), 531.] Beastey, 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 termint, 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 358 MESSENGER ¥. PENNSYLVANIA RAILROAD CO. rate below what the goods of the plaintiffs have been carried, and this suit is to enforce the foregoing stipulation. The question is, whether the agreement thus forming the foundation of the suit is legal. There can be no doubt that an agreement of this kind is calculated to give an important advantage to one dealer over other dealers, and it is equally clear that, if the power to make the present engagement exists, many 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, every 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, 2 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 pecnliar responsibilities of the common carrier, is founded in the consideration that the calling is a public employment. Indeed, the compulsion to serve all that apply could be justified in no other way, as the right to accept or reject an offer of business is neces- sarily incident to all private traffic. MESSENGER v. PENNSYLVANIA RAILROAD CO. 359 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 bire 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 offive 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 360 MESSENGER ¥. PENNSYLVANIA RAILROAD CO. English law, as the subject is specifically regulated by the statute 17 and 18 Vict., ch. 81, which prohibits the giving ‘‘ of any undue or un- reasonable preference or advantage to or in favor of any particular per, son or company, or any particular description of traffic, in any respect whatsoever.” The date of this act is 1854, and since that time the decisions of the courts of Westminster have, when discussing this class of the responsibilities of common carriers, been devoted to its exposi- tion. But the courts of Pennsylvania have repeatedly declared that this act was but declaratory of the doctrine of the common law. This was so held in the case of Sandford v. The Catawissa, Williamsport, & 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 have insisted that 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 authority, 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 whatsocver hands they may be found, MESSENGER v. PENNSYLVANIA RAILROAD CO. 361 they must be considered as such. In the use of such franchises, all citi- zens have an equal interest and equal rights, and all must, under the same circumstances, be treated alike. It cannot be supposed that it was the legislative intention, when such privileges were given, that they were to be used as private property, at the discretion of the recipient, but, to the contrary of this, I think an implied condition attaches to such grants, that they are to be held as a guast 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 Bep.ez, J... The business of the common carrier is for the public, and itis 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 itiscommon. It would be strange if, when the object of the employ- ment is the public benefit, and the law allows no discrimination as to individual customers, but requires all to be accommodated alike as indi- viduals, and for a reasonable rate, that by the indirect means of unequal prices some could lawfully get the advantage of the accommodation and others not. A direct refusal to carry for a reasonable rate would in- volve the carrier in damages, and a refusal, in effect, could be accom- plished by unfair and unequal charges, or if not to that extent, the public right to the convenience and usefulness of the means of carriage could be greatly impaired. Besides, the 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. — Ep, 362 MESSENGER Vv. PENNSYLVANIA RAILROAD CO. fair advantages amongst the people and foster monopolies, is against public policy, and should not be permitted. ... It must not be inferred that a common carrier, in adjusting his price, cannot regard the peculiar circumstances of the particular transporta- tion. Many considerations 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 entirely agree with the Chief Justice, that, in the grant of a franchise of building and using a public railway, that there is an implied condition that it is held as a guast public trust, for the benefit of all the public, and that the company possessed of the grant must exercise a perfect impartiality to all who seek the benefit of the trust. It is true that these railroad corporations are private, and, in the nature of their business, are subject to and bound by the doc- trine of common carriers, yet, beyond that, and in a peculiar sense, they are intrusted with certain functions of the government, in order to afford the public necessary means of transportation. ‘The bestowment of these franchises is justified only on the ground of the public good, and they must be held and enjoyed for that end. ‘This public good is common, and unequal and unjust favors are entirely inconsistent with the common right. So far as their duty to serve the public is concerned, they are not only common carriers, but public agents, and in their very constitution and relation to the public, there is necessarily implied a duty on their part, and a right in the public, to have fair treatment and immunity from unjust discrimination. The right of the public is equal in every citizen, and the trust must be performed so as to secure and protect it. Every trust should be administered so as to afford to the cestui que trust the enjoyment of the use intended, and these railroad trustees must be held, in their relation to the public, to such a course of dealing as will insure to every member of the community the equal enjoyment of the means of transportation provided, subject, of course, to their reasonable ability to perform the trust. In no other way can trade and commercial interchange be left free from unjust interference. On this latter ground, that part of the contract in question is illegal. The judgment of the Supreme Court must be affirmed. SILKMAN ¥. WATER COMMISSIONERS. 363 SILKMAN v. WATER COMMISSIONERS. Court or Aprprats, New Yorn, 1897. [152 N. ¥. 3272] 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 by 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 in 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 This case is abridged. — Ep. 2 Compare: Burlington Co. v. Fuel Co. 31 Fed. 652; Louisville Co. v. Wilson, 132 Ind. 517; Schofield v. Lake Shore R. R., 43 Ohio St. 571.— Ep. 364 818} TONS OF COAL. 318, TONS OF COAL. District Court or THE Unitep States (Conn.), 1877. Crrcurr Courr or THE Unirep States, 1878. [14 Blatch. 453.) Lisex 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 cight 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. Suipman, 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 company, upon notification that the coal was ready to be discharged, 8184 TONS OF COAL. 365 replied that said cargo might be forthwith 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 issne 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 dcliv- ered to him for transportation. ‘Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to con- vey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price. . . . As they hold themselves to the world as common carriers for a reasonable compen- sation, they assume to do, and are bound to do, what is required of them in the course of their employment, if they have the requisite con- venience to carry, and are offered a reasonable or customary price; and, if they refuse, without some just ground, 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 bas 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 by the company. This tule is a restriction upon its common law obligation. The carrier, on its part, is bound to receive goods from all persons alike. The duty and the labor of delivery to the carrier is imposed upon the barge owner, who pays for the necessary labor. The service, so far as the shovelling is concerned, is performed, not upon the property of the railroad company, but upon the deck of the vessel. ‘The company is virtually saying to the barge owner, You shall employ upon your own property, 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 366 3183 TONS OF COAL. 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 by whom he shall deliver goods to the consignee or the carrier next in line. The delivery of goods is the duty of the carrier, for which he is responsible, and should be in his own control. (Beadell v. Eastern Counties R. Co., 2 C. B. N.S. 509.) It would not be contended that the railroad company could designate the crew upon the barge, or could select the barge captains, and I am of opinion that it has no more authority over the selection of the other employees of the barge owners. The fact that the barge owners are using, fora 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 occupy such posi- tions. Delivery is impracticable at the places designated by the company for delivery, without the use of the railroad company’s machinery. It is true, that, under this rule, the delivery of coal into the cars of the railroad company has been more expeditiously performed, and has been attended with fewer delays than formerly, and that the rule has been a convenience to the consignees, but the convenience of the prac- tice is not, of itself, an adequate reason for compelling its enforcement, if it interferes with the legal rights of others. I am not prepared to 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. 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- 318} TONS OF COAL. 367 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. BiarcurorD, 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 company, 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 shovelled into the tubs by men designated by the company; and that this was only a reasonable regulation made . by the company, as a wharf owner. The difficulty with this view of the case is, that the regulation was not sought to be enforced, in fact, as a regulation of wharfage, or of the use of the wharf by the boat. There was no charge nade 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 368 HAYS v. THE PENNSYLVANIA COMPANY. 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 unnecesgary 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. Circuir Court or THE Unirep States, N. Onto, 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- HAYS v. THE PENNSYLVANIA COMPANY. 369 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 may, however, be said that it is only when the discrimination enures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law intervenes for the protection of the latter. Harmless discrimi- nation may be indulged in. For instance, the carrying of one person, who is unable to pay fare, free, is no injustice to other passengers who may be required to 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 24 370 HAYS v. THE PENNSYLVANIA COMPANY. carried over long distances may also be carried at a reasonably less rate per mile than freight transported for shorter distances, simply because it costs less to perform the service. For the same reason passengers may be divided into different classes, and the price regulated in accord. ance with the accommodations furnished to each, because it costs less to carry an emigrant, with the accommodations furnished to that class, than it does to carry an occupant of a palace car. And fora 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 many different persons at the same destination, because it is supposed that it costs less to receive and deliver one package con- taining 20 parcels to one man, than it does to receive and deliver 20 different parcels to as many different consignees. Such are some of the numerous illustrations of the rule that 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. 8.) 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 ease, 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 defendgnt’s road as would produce an annual gross revenue of £40,000 to the railroad company, in fully loaded trains, at the rate of seven trains per week. In passing on these facts the court said that in considering the question of undue preference the fair interest of the railroad company ought to be taken into the account; that the preference or prejudice, referred to by the statute, must be undue or unreasonable to be within the prohibition ; and that, although it was manifest that the coal company had many and important advantages in carrying their coal on the railroad as against the complainant and other coal owners, still the question re- mained, were they undue or unreasonable advantages? And this, the court said, mainly depended on the adequacy of the consideration given by the coal company to the railroad ‘company for the advantages afforded by the latter to the coal company. And because it appeared that the cost of carrying coal in fully loaded trains, regularly furnished at the rate of seven trains per week, was less per ton to the railway company than coal delivered in the usual way, and at irregular intervals, and in unequal quantities, in connection with the coal company’s undertaking to ship annually coal enough over defendant’s road, for at least a distance of 100 miles, to produce a gross revenue to the railroad of HAYS v¥. THE PENNSYLVANIA COMPANY. 371 £10,000, the court held that the discrimination complained of in the case was neither undue nor unreasonable, and therefore denied the application. This case seems to have been well considered, and we have no dis- position to question its authority. Future experience may possibly call for some modification of the principle therein announced. But this case calls for no such modification, inasmuch as the facts of that case are very different, when closely analyzed, from the facts proven in this one. In the former the company, in whose favor the discrimi- nation was made, gave, in the judgment of the court, an adequate con- sideration for the advantages conceded to it under and in virtue of its contract. It undertook to guaranty £40,000 worth of tonnage per year for 10 years to the railroad company, and to tender the same for ship- ment in fully loaded trains, at the rate of seven trains per week. It was in consideration of these obligations — which, in the judgment of the court, enabled the railroad company to 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 in 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 everybody else interested in any business requiring any considerable amount of transportation by rail; and it follows that the success of all such enterprises would de- pend as much on the favor of railroad officials as upon the energies and capacities of the parties prosecuting the same. It is not difficult, with such a ruling, to forecast the consequences. The men who control railroads would be quick to appreciate the power with which such a holding would invest them, and, it may be, not slow to make the most of their opportunities, and perhaps teinpted to favor their friends to the detriment of their personal or political opponents ; 372 MENACHO v. WARD. 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 policy, 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. Circurr Court or THe Untrep States, S. New York, 1886. [27 Fed. 529] Watrace, 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 MENACHO v. WARD. 373 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, they are obliged to ship their merchandise by vessels or steamers which may casually ply between the two places. It is alleged by the complainant that the defendants have announced generally to New York merchants engaged in Cuban trade that they must not patronize steamships which offer for a single voyage, and on various occasions when other steamships have attempted to procure cargoes from New York to Havana have notified shippers that those employing such steamships would thereafter be subjected to onerous discriminations by the defendants. The defendants allege in their answer to the bill, in effect, that it has been found necessary, for the purpose of securing sufficient patronage, to make differences in rates of freight between shippers in favor of those who will agree to patronize the defendants exclusively. Within a few months before the commence- ment of this suit two foreign steamers were sent to New York to take cargoes to Havana, and the complainants were requested to act as agents. Thereupon the complainants were notified by the defendants that they would be ‘‘ placed upon the black-list ” if they shipped gqods 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 374 MENACHO v. WARD. equal duty to every member of the community, and is not permitted to make unequal preferences in favor of one person, or class of persons, as against another person or class. The defendants insist that it is permit- ted to common carriers to make reasonable discriminations in the rates demanded from the public; that they are not required to carry for all at the same rates; that discriminations are reasonable which are based upon the quantity of goods sent by different shippers; and that the discrimination in the present case is essentially such a discrimination, and has no element of personal preference, and is necessary for the protection of the defendants. Unquestionably a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equality. It is his privilege to charge less than fair compensation to one person, or to a elass of persens, 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, 422.1 In the present case the question whether the defendants refuse to carry for the complainants at a reasonable compensation resolves itself into another form. Can the defendants lawfully require the complain- ants to pay more for carrying the same kind of merchandise, under like conditions, to the same places, than they charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The fact that the carrier charges some less than others for the same service is 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 », Pennsylvania R. R., 37 N. J. L. 531, and McDuffee v. Portland & R. R. R., 52 N. H, 430. — Ep. MENACHO Vv. WARD. 875 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 Vict. 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 beld that it is not an undue preference to give lower rates for larger quantities of freight. Ransome v. Eastern C. R. Co., 1 Nev. & MeN. 63, 155; Nicholson v. Great Western Ry. Co., Id. 121; Strick v. Swansea Canal Co., 16 C. B. (N. 8S.) 245; Greenop v. 8. E. R. Co.,, 2 Nev. & MeN. 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 analogy exists between a discrimination based upon the quantity of business furnished by difs 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 reasonalily discriminate between two classes of shippers, the regular and the casual ; and that such is the only discrimination here. Undoubtedly the carrier may adopt a commutative system, 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 they do not furnish them a regular busi- hess, 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 376 MENACHO v. WARD. 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. z. 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 ». Illinois, 94 U. S. 113, 134. It is upon this foundation, and not alone because the business of common carriers is so largely controlled by corporations exercising under fran- chises the privileges which are held in trust for the public benefit, that the courts have so strenuously resisted their attempts, by special con- tracts or unfair preferences, to discriminate between those whom it is their duty to serve impartially. And the courts are especially solicitous to discountenance all contracts or arrangements 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, 8349; W. U. Tel. Co. v. Chicago & P. R. Co., 86 Ill 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 orrene ROOT ¥. LONG ISLAND RAILROAD. 377 charges paid to obtain the delivery of goods. The special circumstances in this case indicate that such a remedy would not afford complete and adequate redress, ‘‘ as practical and efficient to the ends of justice ” as the remedy in equity. Watson v. Sutherland, 5 Wall. 74. The motion for an injunction is granted. ROOT v. LONG ISLAND RAILROAD. Court or AppEALS oF New York, Seconp Division, 1889. [ll4 NV. Y. 300; 21 NV. £. 403] Hareut, 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 fur 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 378 ROOT v. LONG ISLAND RAILROAD. to individuals; that its charges must be reasonable. Railroad Co. v. People, 67 Ill. 11; Vinceut v. Railroad Co., 49 Ill. 83. In Ohio it was held that where a railroad company gave a lower rate to a favored shipper with the intent to give such shipper an exclusive monopoly, thus affecting the business and destroying the trade of other shippers, the latter have the right to require an equal rate for all under like circumstances. Scofield v. Railway Co., 43 Ohio St. 571. In New Jersey it has been held that an agreement by a railroad company to carry goods for certain persons at a cheaper rate than it would 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 ». Railroad, 52 N. H. 430. To similar effect are cases in other States. Express Co. v. Railroad Co., 57 Me. 188; Shipper v. Railroad Co, 47 Pa. St. 838; 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. ROOT v. LONG ISLAND RAILROAD. 379 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 uot 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 consideratioy 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 exp'ain 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. 380 LOUGH ¥v. OUTERBRIDGE. LOUGH v. OUTERBRIDGE. Court or Apress or 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 LOUGH v, OUTERBRIDGE. 381 in her regular course. The defendants evidently regarded this vessel asa somewhat dangerous competitor fora part of the business, the benefits of which they had up to this time enjoyed; and, for the pur- pose of retaining it, they adopted the plan of offering special reduced rates of 25 cents per dry barrel to all merchants and business men in New York who would agree to ship by their line exclusively during the week that the El Callao was engaged in obtaining freight and taking oncargo. The plaintiffs’ firm had business arrangements with aud 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 y rate of 25 cents per barrel upon one of its steamers. The defendants then informed the plaintitfs 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 E] 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 tc reccive and transport for the plaintiffs their 382 LOUGH v. OUTERBRIDGE. 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 maiutain 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 Ill. 83; Scofield v. Railroad Co., 48 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 LOUGH ¥. OUTERBRIDGE. 383 public were interested, and the duties and obligations growing out of it may be enforced through the courts and the legislative power. Munn ». Illinois, 94 U. §. 113; People v. Budd, 117 N. Y. 1. In England these duties are, to a great extent, regulated by the railway and canal traffic act (17 & 18 Vict., c. 31), and by statute in some of the States, and in this country, so far as they enter into the busimess 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. 895; 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 384 LOUGH v. OUTERBRIDGE. 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 e.fect 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. 185; 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. LOUGH v. OUTERBRIDGE. 385 If, for special reasons in isolated cases, the carrier sees fit to stipu- late for the carriage of goods of any class for individuals, for a certain time, or in certain quantities, for a less compensation than what is the usual, necessary, and reasonable rate, he may undoubt- edly do so without entitling all parties to the same advantage.” In Evershed v. 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 be is not required to treat all those who patronize him with absolute equality. Itis 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 ip rates of com- pensation, hie 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 25 386 LOUGH ¥. OUTERBRIDGE. 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, Iam 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 ata 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 LOUGH ¥, OUTERBRIDGE. 387 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. Ido 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 tight, and should be affirmed, with costs. Frncu, Gray, and Bartiert, JJ., concur. Prcxuam, J., dissents. Awprews, C. J., not sitting. Judgment affirmed. 388 DITTMAR v. NEW BRAUNFELS. DITTMAR v. NEW BRAUNFELS. Court or Civir APPEALS, TEXAS, 1899. [20 Texas Civil Appeals, 293.] Fisoer, 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 taxpayer thereof, occupying, with his family, a residence within the limits of the city. The city has in operation, and has had for several years 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, 1893, 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 promptly 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, DITTMAR Vv. NEW BRAUNFELS. 389 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 todo. 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 system of said city. 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 vate 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 390 DITTMAR v. NEW BRAUNFELS. 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 city 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 city 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 supply 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. 841, 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 city 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- DITTMAR v. NEW BRAUNFELS. 391 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 thatthe 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 they released the city 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. Jt 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 392 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 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 or THE Unitep States, 1892. [145 U.S. 263.] Tus 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.” . The cause was heard before the commission, which found “that so-called ‘ party rate’ tickets, sold at reduced rates, and entitling a number of persons to travel together on a single ticket or otherwise, are not commutation tickets, within the meaning of section 22 of the act to regulate commerce, and that, when the rates at which such tickets for parties are sold are lower for each member of the party than rates contemporaneously charged for the transportation of single passengers between the same points, they constitute unjust’ discrimination, and are therefore illegal.” It was ordered and adjudged ‘‘that the defendant, the Baltimore & Ohio Railroad Com- pany, do forthwith wholly and immediately cease and desist from 1 Part of the statement of facts is omitted. — Ep. 2 Act of Feb. 4, 1887; 24 St, 379. INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 393 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. Pensacola Railway Co., 16 Fla. 623; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the States acts had been passed with the design of securing the public against unreason- able and unjust discriminations; but the inefficacy of these laws beyond the lines of the State, the impossibility of securing concerted action between the legislatures toward the regulation of traffic be- tween the several States, and the evils which grew up under a policy of unrestricted competition, suggested the necessity of legislation by Congress under its constitutional power to regulate commerce among the several States. These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular locality or community, or of some local trade or commer- cial connection, or for the destruction or crippling of some rival or hostile line. The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities; to inhibit greater 394 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 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 princip‘e 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- INTERSTATE COMMERCE COMMISSION ¥v. BALT. & OHIO R. 395 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 asecret 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 isa 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 396 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 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 tbe 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 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 397 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 aless 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 todoso. 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 398 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 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. & MeN. 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. 8.) 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 INTERSTATE COMMERCE COMMISSION v. BALT. & OHIO R. 399 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. 8.) 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 lees 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. 400 STATE v. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. STATE v. CINCINNATI, NEW ORLEANS, AND TEXAS PACIFIC RAILWAY CO. Supreme Court or Ouro, 1890. [47 Ohio St. 130.1] Brapseury, 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 Company, 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 injury 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 monopoly. ‘The actions were referred to a referee, to take the evidence, and to report to this court his findings of fact and conclusions of law therefrom, —all which has been done; and the cases are before us upon this report... . That the Cincinnati, Washington & Baltimore Railway Company did discriminate in its rates for freight on petroleum oil in favor of the Camden Consolidated Oil Company, and that the Cincinnati, New Orleans & Texas Pacific Railway Company did the same in favor of the Chess-Carly Company, 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, actually 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 they 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. — Ep. STATE v. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. 401 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 duty is to carry indiffer- ently for all who may 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, by reason of their ownership of tank-cars, and that the rate per barrel in tank-cars was very much lower than in barrel packages, in box-cars ; that in fact the Cincinnati, Washington & Baltimore Railway Com- pany, after allowing the Camden Consolidated Oil Company a rebate, and allowing the Baltimore & Ohio Railway Company for switching cars, received from the Camden Consolidated Oil Company only about one-half the open rates it charged the Marietta refiners, and that both railroad companies claimed the right to make different rates, based upon the different methods of shipping oil, and the fact of the 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. The public are equally entitled to its use. Jt 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 any valid objec: tion to such owner using them exclusively, as long as the carrier : 26 402 STATE v, CINCINNATI, NEW ORLEANS, ETC. RAILWAY. provides equal accommodations to its other customers. It may be claimed that if a railroad company permit all shippers, indifferently and upon equal terms, to provide cars suitable for their business, and to use them exclusively, no discrimination is made. This may be theoretically true, but is not so in its application to the actual state of the business of the country; for a very large proportion of the 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, indifferently, and in the order in which its transportation is applied for, it cannot be permitted to suffer freight cars to be placed upon its track by any customer for his private use, except upon the condition that, if it does not provide other cars sufficient to transport the freight of other customers in the order that application is made, they may be used for that purpose. Were this-not so, a mode of discrimination fatal to all successful 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. 1 Compare: Arkansas R. R. v. Smith, 53 Ark. 275; Cowden ». S. S. Co., 94 Cal. 470; Johnson v. R. R., 16 Fla. 623; Louisville R. R. v. Wilson, 132 Ind. 517; Chicago R. R. o. P., 67 Ill. 11; Cook v. Chicago R. R., 81 Ia. 551; Sloan v. R. R., 61 Mo. 21; Ragan v. Arken, 77 Tenn. 609.— Ep. GRIFFIN v. GOLDSBORO WATER CO. 403 GRIFFIN v. GOLDSBORO WATER CO. Supreme Court or Norra Carona, 1898. [112 MW. C. 206.] Crvix 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. Crargk, 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 city and avers that the charges to the plaintiffs do not exceed the rates therein permitted. The defendant corporation operates under the franchise from the city, 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 Munn ». Illinois, 94 U. S. 118, 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 customary 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 ause 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 thé 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 404 GRIFFIN v. GOLDSBORO WATER CO. affirming the doctrine laid down in Munn ». Illinois, supra, and as to every class of interest affected with a public use, among others, water companies. Spring Valley v. Schottler, 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 pay 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 Cush. 60. In the 29 A. & E. Ene. 19, itis 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 equality 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 4 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 he subject to revocation, and indeed independently of that constitutional COMMONWEALTH v. DELAWARE AND HUDSON, ETC. co. 405 provision, Stone v. Farmer’s Co., 116 U. 8. 807; R. Co. v. Miller, 132 U.S. 75; Chicago v. Munn, 134 U. 8. 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 pay 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 properly continued the cause to the hearing. No error. COMMONWEALTH v. THE DELAWARE AND HUDSON CANAL CO. AND PENNSYLVANIA COAL CO. Supreme Cocrt oF PENNSYLVANIA, 1862. [43 Pa. St. 295.1] Tue 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 company 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. — Ep. 406 COMMONWEALTH v. DELAWARE AND HUDSON, ETC. CO. 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 Ist day of May in each and every calendar year the quantity 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 year, 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 COMMONWEALTH ¥. DELAWARE AND HUDSON, ETC. co. 407 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 canalin 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 “ one-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 3lst 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. Lowrtz, 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 substantially 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 company 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 408 COMMONWEALTH v. DELAWARE AND HUDSON, ETC. CO. one-half the capacity of the canal. And this may be wrong if it interferes with the claims of others to have their ccal carried as cheaply and speedily as that of the coal company. 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 guo 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 tolis; 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 contingency, 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, 1388; 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 COMMONWEALTH ¥. DELAWARE AND HUDSON, ETC. CO. 409 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 arbitrarily. 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 many 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 remedy 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 410 HOOVER ¥. PENNSYLVANIA RAILROAD CO. 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 tle 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: HOOVER v. PENNSYLVANIA RAILROAD CO. Supreme Court oF Pennsyivania, 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. — Ep. 2 This case is abridged. — Ep. HOOVER v. PENNSYLVANIA RAILROAD CO. 411 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 by 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 financially. Yet no part of this income is derived from those who are mere buyers 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 412 BAILY v. FAYETTE GAS-FUEL CO. 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 or Prennsytvania, 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, twenty-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 company’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 ease, 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 1 Compare: Grersser v. McGrath, 13 Fed. 373 ; Louisville Co. v. Tulghan, 91 Ala. 555 ; Indianapolis Co. v. Erwin, 118 Ill. 250.— En. BAILY v. FAYETTE GAS-FUEL CO. 413 supply 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. MitcHet1, 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 only 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 company, 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 company 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 wholly inadmissible basis of dis- crimination. The implied condition of the grant of all corporate franchises of even quasi-public nature is that they 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 every 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. 414 LADD v. BOSTON. 220, was much relied on by 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 day, 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 or Massacuuserts, 1898. [170 Mass. 332.1] Bix in equity, filed December 31, 1896, alleging the followitig 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 todo so. By fixture rates for all the fixtures in the building 1 The case is abridged. — Ep. LADD v. BOSTON. 415 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. Know tron, 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 pay 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 quantity 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 416 STATE EX REL. CUMBERLAND, ETC. CO. v. TEXAS, ETC. RAILROAD. 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 rex. CUMBERLAND TELEPHONE AND TELE- GRAPH CO. v. TEXAS AND PACIFIC RAILROAD CO. Supreme Court or Louisiana, 1900. [28 So. Rep. 284.1] BuancHarD, J... . Defendant company is, guoad 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 Company. 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, sugar, &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- 3 This case is abridged. — Ep. CITY OF MOBILE v. BIENVILLE WATER SUPPLY CO. 417 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 itis 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 Courr ofr ALABAMA, 1901. [80 So. Rep. 445.1] AppgaL 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. Haratson, 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 $800,000, and is supplying water to customers in the city for family 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 systems 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. Tt 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, — Ep. 27 418 CITY OF MOBILE v. BIENVILLE WATER SUPPLY CO. the purpose of maintaining and operating said sewerage system 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 system, 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 $200,000 for the sewer system; that itis operating both systems, and from its water- works is furnishing water to itself and its inhabitants, and is supplying water on about twenty miles of streets upon which there are no sewers. The averment is made, that the city has never fixed any 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 pay 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 they 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 city waterworks, and upon their desiring to return, the city, through its officers, have refused to let them disconnect from the city’s pipes or to connect with complainant’s. It is further averred 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 CITY OF MOBILE v. BIENVILLE WATER SUPPLY CO. 419 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 throngh 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 any 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 by 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 any 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 its 420 PHIPPS v. LONDON AND NORTH WESTERN RAILWAY. 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 odinm 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 equity 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. §§ 1286, 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] THs 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. — Ep. PHIPPS ¥v. LONDON AND NORTH WESTERN RAILWAY. 421 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, may, 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 any 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 Duston 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 Butlins 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 0.95d. per ton per mile, and Islip 0.84d. per ton per mile, while they charged Duston 1.05d. per ton per mile; so that the total charge per ton of pig iron from Duston to the western markets was 5s, 2d., while the total charge 422 PHIPPS ¥. LONDON AND NORTH WESTERN RAILWAY. per ton from either Butlins or Islip was 5s. 8d. for the same class of merchandise. The allegation on the part of the plaintiffs was that to charge for the carriage of pig iron from Butlins and Islip to the market only 6d. more than for the carriage from Duston was, having regard to the difference of distance, an undue preference by the company in favor of Butlins and Islip as compared with Duston; and they brought this application before the Railway Commissioners under the 2d section of the Railway and Canal Traffic Act, 1854. The case made by the company was that the comparatively lower rates charged to Butlins and Islip were forced upon them by the com- petition of the Midland Railway Company; that the lower charge was made bond fide, and was, in the terms of section 27 of the Act of 1888, “ necessary for the purpose of securing in the interests of the public the traffic in respect of which it was made”; that there was still a dif- ference of 6d. a ton in favor of the plaintiffs, and that the plaintiffs had not been injured by the rates charged to Butlins and Islip. And they produced evidence to show that the competition in the South Staffordshire market was such that a difference of 6d. a ton, or even less, in the price of iron of the same quality, would often be enough to secure a contract. The Railway Commissioners (Wills, J., Sir Frederick Peel, and Vis- count Cobham) held that the London and North Western Railway Company in fixing the rates in question were entitled to take into ac- count the circumstance that Butlins and Islip had access to another line of railway which was in competition with their own, and that not sufficient case of undue preference had been made out against them. The plaintiffs appealed. Lord Herscue.i. .. . One class of cases unquestionable intended to be covered by the section is that in which traffic from a distance of a character which competes with the traffic nearer the market is charged low rates, because unless such low rates were charged it would not come into the market at all. It is certain unless some such principle as that were adopted a large town would necessarily have its food supplies greatly raised in price. So that, although the object of the company is simply to get the traffic, the public have an interest in their getting the traffic and allowing the carriage at a rate which will render that traffic possible, and so bring the goods at a cheaper rate, and one which makes it possible for those at a greater distance from the market to compete with those situate nearer to it. That is one class of cases, no doubt, intended to be dealt with. TI think that is made evident by the fact that they are to consider whether it is neces- sary for the purpose of securing the traffic, and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant. But, of course, it might be said: Well, but the railway company may be obliged, in order to get the traffic, to bring those dis- tant goods at a very cheap rate. But then let them reduce all their PHIPPS v. LONDON AND NORTH WESTERN RAILWAY. 423 rates on the intervening distances. Ifa man is nearer the market, let his rate be brought down accordingly, and all the rates will then come down except those from the distant point. But then it was seen there being two ways of creating absolute equality, one by raising the lower rate, another by diminishing the higher rate, there were cases where you would not secure the traffic at all if you raised the lower rate, and where, on the other hand, if, as the condition of securing the traffic, you were to insist on diminishing the higher rate, it would be so di- minished as to be quite unfair to the company, and would be unduly reducing the rates charged to the complainant. Therefore, the Legis- lature said all those matters ought to be taken into account by the commissioners or the court so far as they think it reasonable. I cannot but think that a lower rate which is charged from a more distant point by reason of a competing route which exists thence, is one of the circumstances which may be taken into account under those provisions, and which would fall within the terms of the enactment quite as much as the case to which I have called attention. Suppose that to insist on absolutely equal rates would practically exclude one of the two railways from the traffic, it is obvious that those members of the public who are in the neighborhood where they can have the benefit of this competition would be prejudiced by any such proceed- ings. And further, inasmuch as competition undoubtedly tends to diminution of charge, and the charge of carriage is one which ultimately falls upon the consumer, it is obvious that the public have an interest in the proceedings under this Act of Parliament not being so used as to destroy a traffic which can never be secured but by some such reduc- tion of charge, and the destruction of which would be prejudicial to the public by tending to increase prices. ‘Therefore it seems to me that, whether you look at the Act of 1854 by itself, or whether you look at it in connection with the provisions of sub-section 2 of section 27 of the Act of 1888, to which I have been referring, it is impossible to say that there is anything in point of law which compels the tribunal to exclude from consideration this question of competing routes. I do not go further than that. It is not necessary to go further than that. I am not for a moment suggesting to what extent it is to weigh. I am not suggesting that there may not be such an excessive difference in charge made in cases of competition, as that it would be unreasonable and un- fair when you are looking at the position of the one trader as compared with the other. ‘That may be so, but all that is matter for the tribunal to take into account, and certainly I think that they are entitled to take it into account, and to give weight to it as far as is reasonable. If that be so, it is of course sufficient to dispose of the present case. Appeal dismissed? i a ee East Tennessee R. R. v. Interstate Commerce Commission, 183 -S. 1.— Ep. 424 CIN., NEW ORL, & TEX. PAC. R. v. INTERSTATE COMMERCE COM. CINCINNATI, NEW ORLEANS, & TEXAS PACIFIC RAIL- WAY v. INTERSTATE COMMERCE COMMISSION. Supreme Court or THE Unitep States, 1896. [162 U.S. 184.] Mr. Justice Surras delivered the opinion of the court. The investigation before the Interstate Commerce Commission resulted in an order in the following terms: — ‘‘ It is ordered and adjudged that the defendants, the Cincinnati, New Orleans, & Texas Pacific Railway Company, the Western & Atlantic Railroad Company, and the Georgia Railroad Company do, upon and after the 20th day of July, 1891, wholly cease and desist from charging or receiving any greater compensation, in the aggre- gate, for the transportation in less than car loads of buggies, car- riages, and other articles classified by them as freight of first class, for the shorter distance over the line formed by their several rail- roads from Cincinnati, in the State of Ohio, to Social Circle, in the State of Georgia, than they charge or receive for the transportation of said articles in less than car loads for the longer distance over the same line from Cincinnati aforesaid to Augusta, in the State of Georgia, and that the said defendarits, the Cincinnati, New Orleans, & Texas Pacific Railway Company, do also, from and after the 20th day of July, 1891, wholly cease and desist from charging’ or receiv- ing any greater aggregate compensation for the transportation of buggies, carriages, and other first-class articles, in less than car loads, from Cincinnati aforesaid to Atlanta, in the State of Georgia, than one dollar per hundred pounds.” The decree of the Circuit Court of Appeals, omitting unimportant details, was as follows: — “Tt is ordered, adjudged, and decreed . . . that this cause be remanded to the Circuit Court, with instructions to enter a decree in favor of the complainant, the Interstate Commerce Commission, and against the defendants, the Cincinnati, New Orleans, & Texas Pa- cific Railway Company, the Western & Atlantic Railroad Company, and the Georgia Railroad Company, commanding and restraining the said defendants, their officers, servants, and attorneys, to cease and desist from making any greater charge, in the aggregate, on buggies, carriages, and on all other freight of the first class carried in less than car loads from Cincinnati to Social Circle, than they charge on such freight from Cincinnati to Augusta; that they so desist and refrain within five days after the entry of the decree; and in case they, or any of them, shall fail to obey said order, condemning the said defendants, and each of them, to pay one hundred dollars a day for every day thereafter they shall so fail; and denying the relief prayed for in relation to charges on like freight from Cincinnati to Atlanta.” : CIN., NEW ORL., & TEX. PAC. R. ¥. INTERSTATE COMMERCE com, 425 It will be observed that in its said decree the Circuit Court of Appeals adopted that portion of the order of the commission which commanded the defendants to make no greater charge on freight car- ried to Social Circle than on like freight carried to Augusta, and disapproved and annulled that portion which commanded the Cin- cinnati, New Orleans, & Texas Pacific Railway Company and the Western & Atlantic Railroad Company to desist from charging for the transportation of freight of like character from Cincinnati to Atlanta more than $1 per 100 pounds. The railroad companies, in their appeal, complain of the decree of the Circuit Court of Appeals in so far as it affirmed that portion of the order of the commission which affected the rates charged to Social Circle. The commission, in its appeal, complains of the de- cree, in that it denies the relief prayed for in relation to charges on freight from Cincinnati to Atlanta. The first question that we have to consider is whether the defend- ants, in transporting property from Cincinnati to Social Circle, are engaged in such transportation ‘‘ under a common control, manage- ment, or arrangement for a continuous carriage or shipment,” within the meaning of that language, as used in the act to regulate commerce. We do not understand the defendants to contend that the arrange- ment whereby they carry commodities from Cincinnati to Atlanta and to Augusta at through rates which differ in the aggregate from the aggre- gate of the local rates between the same points, and which through rates are apportioned between them in such a way that each receives a less sum than their respective local rates, does not bring them within the provisions of the statute. What they do claim is that, as the charge to Social Circle, being $1.37 per hundred pounds, is made up of a joint rate between Cincinnati and Atlanta, amounting to $1.07 per hundred pounds, and 30 cents between Atlanta and Social Circle, and as the $1.07 for carrying the goods to Atlanta is divided between the Cincinnati, New Orleans, and Texas Pacific and the Western and Atlantic, 75), cents to the former and 317, cents to the latter, and the remaining 30 cents, being the amount of the regular local rate, goes to the Georgia company, such a method of carrying freight from Cincinnati to Social Circle and of apportioning the money earned, is not a transportation of property between those points ‘‘under a common control, management, or ar- rangement for a continuous carriage or shipment.” Put in another way, the argument is that, as the Georgia Railroad Company is a corporation of the State of Georgia, and as its road lies wholly within that State, and as it exacts and receives its regular local rate for the transportation to Social Circle, such company is not, as to freight so carried, within the scope of the act of Congress. It 1s, no doubt, true that, under the very terms of the act, its pro- visions do not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly 426 CIN., NEW ORL. & TEX. PAC. R. v. INTERSTATE COMMERCE COM. within one State, not shipped to or from a foreign country from or to any State or Territory. In the answer filed by the so-called “ Georgia Railroad Company” in the proceedings before the commission, there was the following allegation: ‘‘ This respondent says that while no arrangement exists for a through bill of lading from Cincinnati to Social Circle, as a matter of fact the shipment from Cincinnati to Social Circle by the petitioner was made on a through bill of lading, the rate of which was fixed by adding this respondent’s local rate from Atlanta to Social Circle to the through rate from Cincinnati to Atlanta.” The answer of the Louisville & Nashville Railroad Company and Central Railroad & Banking Company of Georgia, which companies, as operating the Georgia railroads, were sued by the name of the “‘ Georgia Railroad Company,” in the Circuit Court of the United States, contained the following statement: — “ So far as these respondents are concerned, they will state that on July 3, 1891, E. R. Dorsey, general freight agent of said Georgia Railroad Company, issued a circular to its connections, earnestly requesting them that thereafter, in issuing bills of lading to local stations on the Georgia Railroad, no rates be inserted east of At- lanta, except to Athens, Gainesville, Washington, Milledgeville, Augusta, or points beyond. Neither before nor since the date of said circular have these respondents, operating said Georgia Rail- road, been in any way parties to such through rates, if any, as may have been quoted, from Cincinnati or other Western points to any of the strictly local stations on said Georgia Railroad. The stations excepted in said circular are not strictly local stations. Both be- fore and since the date of said circular respondents have received at Atlanta east-bound freight destined to strictly local stations on the Georgia Railroad, and have charged full local rates to such stations, said rates being such as they were authorized to charge by the Georgia Railroad commission. Said rates are reasonably low, and are charged to all persons alike, without discrimination.” Upon this part of the case the conclusion of the Circuit Court was that the traffic from Cincinnati to Social Circle, in issue as to the Georgia Railroad Company, was local, and that that company was not, on the facts presented, made a party to a joint or common arrangement such as make the traffic to Social Circle subject to the control of the Interstate Commerce Commission. We are unable to accept this conclusion. It may be true that the Georgia Railroad Company, as a corporation of the State of Georgia, and whose entire road is within that State, may not be legally com- pelled to submit itself to the provisions of the act of Congress, even when carrying, between points in Georgia, freight that has been brought from another State. It may be that if, in the present case, the goods of the James & Mayer Buggy Company had reached At- lanta, and there and then, for the first time, and independently of CIN., NEW ORL., & TEX. PAC, R. v. INTERSTATE COMMERCE COM. 427 any existing arrangement with the railroad companies that had trans- ported them thither, the Georgia Railroad Company was asked to transport them, whether to Augusta or to Social Circle, that com- pany could undertake such transportation free from the control of any supervision except that of the State of Georgia. But when the Georgia Railroad Company enters into the carriage of foreign freight, by agreeing to receive the goods by virtue of foreign through bills of lading, and to participate in through rates and charges, it thereby becomes part of a continuous line, not made by a consolidation with the foreign companies, but made by an arrangement for the continu- ous carriage or shipment from one State to another, and thus becomes amenable to the federal act, in respect to such interstate commerce. We do not perceive that the Georgia Railroad Company escaped from the supervision of the commission by requesting the foreign com- panies not to name or fix any rates for that part of the transporta- tion which took place in the State of Georgia when the goods were shipped to local points on its road. It still left its arrangement to stand with respect to its terminus at Augusta and to other desig- nated points. Having elected to enter into the carriage of interstate freights, and thus subjected itself to the control of the commission, it would not be competent for the company to limit that control, in respect to foreign traffic, to certain points on its road, and exclude other points. , The Circuit Court sought to fortify its position in this regard by citing the opinion of Mr. Justice Brewer in the case of Chicago & Northwestern Railroad v. Osborne, 10 U. S. App. 480, when that case was before the United States Circuit Court of Appeals for the Highth Circuit. It is quite true that the opinion was expressed that a railroad company incorporated by and doing business wholly within one State cannot be compelled to agree to a common control, management, or arrangement with connecting companies, and thus be deprived of its rights and powers as to rates on its own road. It was also said that it did not follow that, even if such a State corpo- ration did agree to form a continuous line for carrying foreign freight at a through rate, it was thereby prevented from charging its ordinary local rates for domestic traflic originating within the State.. Thus understood, there is nothing in that case which we need dis- agree with, in disapproving the Circuit Court’s view in the present case. All we wish to be understood to hold is that when goods are shipped under a through bill of lading from a point in one State to a point in another, are received in transit by a State common carrier, under a conventional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment, within the meaning of the act to regulate com- merce. When we speak of a “ through bill of lading,” we are refer- ring to the usual method in use by connecting companies, and must 428 CIN., NEW ORL, & TEX. PAC. R. v. INTERSTATE COMMERCE COM. not be understood to imply that a common contro], management, or arrangement might not be otherwise manifested. Subject, then, as we hold the Georgia Railroad Company is, under the facts found, to the provisions of the act to regulate commerce, in respect to its interstate freight, it follows, as we think, that it was within the jurisdiction of the commission to consider whether the said company, in charging a higher rate for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance, was or was not transport- ing property, in transit between States, under ‘‘ substantially similar circumstances and conditions.” We do not say that under no circumstances and conditions would it be lawful, when engaged in the transportation of foreign freight, for a carrier to charge more for a shorter than a longer distance on its own line; but it is for the tribunal appointed to enforce the pro- visions of the statute, whether the commission or the court, to con- sider whether the existing circumstances and conditions were or were not substantially similar. It has been forcibly argued that in the present case the commission did not give due weight to the facts that tended to show that the cir- cumstances and conditions were so dissimilar as to justify the rates charged. But the question was one of fact, peculiarly within the province of the commission, whose conclusions have been accepted and approved by the Circuit Court of Appeals, and we find nothing in the record to make it our duty to draw a different conclusion. We understand the record as disclosing that the commission, in view of the circumstances and conditions in which the defendants were operating, did not disturb the rates agreed upon, whereby the same charge was made to Augusta as to Atlanta, —a less distant point. Some observations made by the commission, in its report, on the nature of the circumstances and conditions which would jus- tify a greater charge for the shorter distance, gave occasion for an interesting discussion by the respective counsel. But it is not neces- sary for us, in the present case, to express any opinion on a subject so full of difficulty. These views lead to an affirmance of the decree of the Circuit Court of Appeals, in so far as the appeal of the defendant companies is concerned, and we are brought to a consideration of the appeal by the Interstate Commerce Commission. That appeal presents the question whether the Circuit Court of Appeals erred in its holding in respect to the action of the Interstate Commerce Commission, in fixing a maximum rate of charges for the transportation of freight of the first class in less than car loads from Cincinnati to Atlanta. This question may be regarded as twofold, and is so presented in the assignment of error filed on behalf of the commission, namely: Did the court err in not holding that in point of law the Interstate CIN., NEW ORL., & TEX. PAC. R. v. INTERSTATE COMMERCE Com. 429 Commerce Commission had power to fix a maximum rate? and, if such power existed, did the court err in not holding that the evi- dence justified the rate fixed by the commission, and not decreeing accordingly ? It is stated by the commission, in its report, that ‘‘ the only testi- mony offered or heard as to the reasonableness of the rate to Atlanta in question was that of the Vice-President of the Cincinnati, New Orleans, & Texas Pacific Company, whose deposition was taken at the instance of the company.” And in acting upon the subject the commission say : — ‘* This statement or estimate of the rate from Cincinnati to Atlanta ($1.01 per hundred pounds in less than car loads), we believe, is fully as high as it may reasonably be, if not higher than it should be; but, without more thorough investigation than it is now practicable to make, we do not feel justified in determining upon a more moderate rate than $1 per hundred pounds of first-class freight in less than car loads. The rate on this freight from Cincinnati to Birmingham, Alabama, is 89 cents, as compared with $1.07 to Atlanta, the dis- tances being substantially the same. There is apparently nothing in the nature and character of the service to justify such difference, or in fact to warrant any substantial variance in the Atlanta and Bir- mingham rate from Cincinnati.” But when the commission filed its petition in the Circuit Court of the United States, seeking to enforce compliance with the rate of $1 per 100 pounds, as fixed by the commission, the railroad companies, in their answers, alleged that ‘‘ the rate charged to Atlanta, namely, $1.07 per hundred pounds, was fixed by active competition betwéen various transportation lines, and was reasonably low.” Under this issue evidence was taken, and we learn from the opin- ion of the Circuit Court that, as to the rate to Birmingham, there was evidence before the court which evidently was not before the com- mission, namely, that the rate from Cincinnati to Birmingham, which seems previously to have been $1.08, was forced down to 89 cents by the building of the Kansas City, Memphis, & Birmingham Railroad, which new road caused the establishment of a rate of 75 cents from Memphis to Birmingham, and, by reason of water route to the North- west, such competition was brought about that the present rate of 89 cents from Cincinnati to Birmingham was the result. Without stating the reasoning of the Circuit Court, which will be found in the report of the case in 64 Fed. 981, the conclusion reached was that the evidence offered in that court was sufficient to overcome any prima facie case that may have been made by the findings of the commission, and that the rate complained of was not unreasonable. As already stated, the Circuit Court of Appeals adopted the views of the Circuit Court in respect to the reasonableness of the rate charged on first-class freight carried on defendants’ line from Cin- cinnati to Atlanta; and, as both courts found the existing rate to 430 CIN., NEW ORL., & TEX. PAC. R. v. INTERSTATE COMMERCE COM. have been reasonable, we do not feel disposed to review their finding on that matter of fact. We think this a proper occasion to express disapproval of such a method of procedure on the part of the railroad companies as should lead them to withhold the larger part of their evidence from the com- mission, and first adduce it in the Circuit Court. The commission is an administrative board, and the courts are only to be resorted to when the commission prefers to enforce the provisions of the statute by a direct proceeding in the court, or when the orders of the com. mission have been disregarded. The theory of the act evidently is, as shown by the provision, that the findings of the commission shall be regarded as prima facie evidence, that the facts of the case are to be disclosed before the commission. We do not mean, of course, that either party, in a trial in the court, is to be restricted to the evidence that was before the commission, but that the purposes of the act call for a full inquiry by the commission into all the circumstances and conditions pertinent to the questions involved. Whether Congress intended’ to confer upon the Interstate Commerce Commission the power to itself fix rates was mooted in the courts below, and is discussed in the briefs of counsel. We do not find any provision of the act that expressly, or by necessary implication, confers such a power. It is argued on behalf of the commission that the power to pass upon the reasonableness of existing rates implies a right to prescribe rates. This is not necessarily so. The reasonableness of the rate, in a given case, depends on the facts, and the function of the com- mission is to consider these facts and give them their proper weight. If the commission, instead of withholding judgment in such a matter until an issue shall be made and the facts found, itself fixes a rate, that rate is prejudged by the commission to be reasonable. We prefer to adopt the view expressed by the late Justice Jackson, when Circuit Judge, in the case of Interstate Commerce Commission v, Baltimore & Ohio Railroad Co., 43 Fed. 37, and whose judgment was affirmed by this court, 145 U. S. 263: — ‘* Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly dis- criminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, — free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.” The decree of the Circuit Court of Appeals is affirmed. INTERST. COMMERCE COM. v. DETROIT, GRAND HAVEN, ETC. R. 431 INTERSTATE COMMERCE COMMISSION v. DETROIT, GRAND HAVEN, & MILWAUKEE RAILWAY. Supreme Court oF THE UNITED States, 1897. [167 U. S. 633.] Mr. Justice Sarras delivered the opinion of the court.! The petition of Stone & Carten, retail merchants at Ionia, addressed to the Interstate Commerce Commission, alleged violations by the railway company of sections 2, 3, and 4 of the Interstate Commerce Act. The opinion of the commission sustained the petition avowedly under section 4 of the act.... The sole complaint urged is that the railway company carts goods to and from its station or warehouse at Grand Rapids without charg- ing its customers for such service, while its customers at Ionia are left themselves to bring their goods to and take them from the com- pany’s warehouse, and that, in its schedules posted and published at Grand Rapids, there is no notice or statement by the company of the fact that it furnishes such cartage free of charge. These acts are claimed to constitute violations of sections 4 and 6 of the Interstate Commerce Act. ... For a period of upward of twenty-five years before these proceed- ings this company has openly and notoriously, at its own expense, transferred goods and merchandise to and from its warehouse to the p'aces of business of its patrons in the city of Grand Rapids. The station of the company, though within the limits of the city, is dis- tant, on an average, 1} miles from the business sections of the city where the traffic of the places tributary to the company’s road origi- nates and terminates... . Under the facts as found and the concessions as made, the Com- mission’s proposition may be thus stated. There is, conventionally, no difference, as to distance, between Ionia and Grand Rapids, and the same rates and charges for like kinds of property are properly made in the case of both cities. But, as there is an average distance 2 Part of the opinion is omitted, 432 INTERST. COMMERCE COM. v. DETROIT, GRAND HAVEN, ETC. R. of 1} of a mile between the station at Grand Rapids and the ware. houses and offices of the shippers and consignees, such average dis- tance must be regarded as part of the railway company’s line, if the company furnishes transportation facilities for such distance; and if it refrains from making any charge for such transportation facilities, and fails to furnish the same facilities at Ionia, this is equivalent to charging and receiving a greater compensation in the aggregate for the transportation of a like kind of property for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance. The Circuit Court of Appeals was of opinion that this proposition is based on a false assumption, namely, that the distance between the company’s station and the warehouses of the shippers and con- signees is part of the company’s railway line, or is made such by the act of the company in furnishing vehicles and men to transport the goods to points throughout the city of Grand Rapids. The view of that court was that the railway transportation ends when the goods reach the terminus or station and are there unshipped, and that any- thing the company does afterwards, in the way of land transporta- tion, is a new and distinct service, not embraced in the contract for railway carriage. The court, in a learned opinion by District Judge Hammond, enforced this view by a reference to numerous English cases, which hold that the collecting and delivery of goods is a sepa- rate and distinct business from that of railway carriage; that, when railroad companies undertake to do for themselves this separate business, they thereby are subjected to certain statutory regulations and restrictions in respect to such separate business; and that they cannot avoid such restrictions by making a consolidated charge for the railway and cartage service. 43 U.S. App. 308. We agree with the Circuit Court of Appeals in thinking that the fourth section of the Interstate Commerce Act has in view only the transportation of passengers and property by rail, and that, when the passengers and property reached and were discharged from the cars at the company’s warehouse or station at Grand Rapids, for the same charges as those received for similar service at Ionia, the duties and obligations cast upon this company by the fourth section were fulfilled and satisfied. The subsequent history of the passengers and property, whether carried to their places of abode and of business by their own vehicles, or by those furnished by the railway company, would not concern the Interstate Commerce Commission... The decree of the Circuit Court of Appeals is affirmed. INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. 433 INTERSTATE COMMERCE COMMISSION v. ALABAMA MIDLAND RATLWAY. Supreme Court or THE UnitTep Sratss, 1897. [168 U.S. 144.] Ow the 27th day of June, 1892, the board of trade of Troy, Ala., filed a complaint before the Interstate Commerce Commission, at Washington, D. C., against the Alabama Midland Railway Company and the Georgia Central Railroad Company and their connections; claiming that, in the rates charged for transportation of property by the railroad companies mentioned, and their connecting lines, there was a discrimination against the town of Troy, in violation of the terms and provisions of the Interstate Commerce Act of Congress of 1887. The general ground of complaint was that, Troy being in active competition for business with Montgomery, the defendant lines of railway unjustly discriminate in their rates against the former, and gave the latter an undue preference or advantage, in respect to certain commodities and classes of traffic.!.. . The commission, having heard this complaint on the evidence theretofore taken, ordered, on the 15th day of August, 1893, the roads participating in the traffic involved in this case ‘‘ to cease and desist” from charging, demanding, collecting, or receiving any greater compensation in the aggregate for services rendered in such transportation than is specified. .. . The defendants having failed to heed these orders, the commission thereupon filed this bill of complaint in the Circuit Court of the United States for the Middle District of Alabama, in equity, to com- pel obedience to the same. Mr. Justice Surras delivered the opinion of the court. Several of the assignments of error complain of the action of the Circuit Court of Appeals in not rendering a decree for the enforce- ment of those portions of the order of the Interstate Commerce Com- mission which prescribed rates to be thereafter charged by the defendant companies for services performed in the transportation of goods. Discussion of those assignments is rendered unnecessary by the recent decisions of this court, wherein it has been held, after elabo- rate argument, that Congress has not conferred upon the Interstate Commerce Commission the legislative power of prescribing rates, either maximum, or minimum, or absolute, and that, as it did not give the express power to the commission, it did not intend to secure the same result indirectly, by empowering that tribunal, after having 1 Part of the statement of facts is omitted. — Ep. 28 434 INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. determined what, in reference to the past, were reasonable and just rates, to obtain from the courts a peremptory order that in the future the railroad companies should follow the rates thus determined to have been in the past reasonable and just. Cincinnati, New Orleans, & Texas Pacific Railway v. Interstate Commerce Commission, 162 U. S. 184; Interstate Commerce Commission v. Cincinnati, New Orleans, & Texas Pacific Railway, 167 U. S. 479. Errors are likewise assigned to the action of the court in having failed and refused to affirm and enforce the report and opinion of the commission, wherein it was found and decided, among other things, that the defendant common carriers which participate in the trans- portation of class goods to Troy from Louisville, St. Louis, and Cincinnati, and from New York, Baltimore, and other Northeastern points, and the defendants, common carriers which participate in the transportation of phosphate rock from South Carolina and Florida to Troy, and the defendants, common carriers which participate in the transportation of cotton from Troy to the ports of New Orleans, Brunswick, Savannah, Charleston, West Point, or Norfolk, as local shipments, or for export, have made greater charges, under substan- tially similar circumstances and conditions, for the shorter distance to or from Troy than for longer distances over the same lines in the same direction, and have unjustly discriminated in rates against Troy, and subjected said place and dealers and shippers therein to undue and unreasonable prejudice and disadvantage in favor of Montgomery, Eufaula, Columbus, and other places and _ localities, and dealers and shippers therein, in violation of the provisions of the act to regulate commerce. Whether competition between lines of transportation to Mont- gomery, Eufaula, and Columbus justifies the giving to those cities a preference or advantage in rates over Troy, and, if so, whether such a state of facts justifies a departure from equality of rates without authority from the Interstate Commerce Commission, under the proviso to the fourth section of the act, are questions of con- struction of the statute, and are to be determined before we reach the question of fact in this case. It is contended in the briefs filed on behalf of the Interstate Com- mission that the existence of rival lines of transportation, and con- sequently of competition for the traffic, are not facts to be considered by the commission or by the courts when determining whether prop- erty transported over the same line is carried under “ substantially similar circumstances and conditions,” as that phrase is found in the fourth section of the act. Such, evidently, was not the construction put upon this provision of the statute by the Commission itself in the present case, for the record discloses that the Commission made some allowance for the alleged dissimilarity of circumstances and conditions, arising out of competition and situation, as affecting transportation to Montgomery INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. 435 and Troy, respectively, and that among the errors assigned is one complaining that the court erred in not holding that the rates pre- scribed by the commission in its order made due allowance for such dissimilarity. So, too, in In re Louisville & Nashville Railroad, 1 Interst. Com- merce Com. R. 31, 78, in discussing the long and short haul clause, it was said by the Commission, per Judge Cooley, that ‘‘ it is impos- sible to resist the conclusion that in finally rejecting the ‘long and short haul clause’ of the house bill, which prescribed an inflexible rule, not to be departed from in any case, and retaining in substance the fourth section as it had passed the Senate, both houses under- stood that they were not adopting a measure of strict prohibition in respect to charging more for the shorter than for the longer distance, but that they were, instead, leaving the door open for exceptions in certain cases, and, among others, in cases where the circumstances and conditions of the traffic were affected by the element of competi- tion, and where exceptions might be a necessity if the competition was to eonutine, And water competition was, beyond doubt, espe- cially in view.’ It is no doubt true shat i in a later case (Railroad Commission of Georgia v. Clyde S. S. Co., 5 Interst. Commerce Com. R. 326) the commission somewhat modified their holding in the Louisville & Nashville Railroad Company Case, just cited, by attempting to restrict the competition that it is allowable to consider to the cases of competition with water carriers, competition with foreign rail- roads, and competition with railroad lines wholly in a single State; but the principle that competition in such cases is to be considered is affirmed. That competition is one of the most obvious and effective circum- stances that make the conditions under which a long and short haul is performed substantially dissimilar, and as such must have been in the contemplation of Congress in the passage of the act to regu- late commerce, has been held by many of the Circuit Courts. It is sufficient to cite a few of the number: Ex parte Koehler, 31 Fed. 315; Missouri Pacific Ry. v. Texas & Pacific Ry., Id. 862; Inter- state Commerce Commission v. Atchison, T. & S. F. Railroad, 50 Fed. 295; Interstate Commerce Commission v. New Orleans & Texas Pacific Railroad, 56 Fed. 925, 943; Behlmer v. Louisville & Nash- ville Railroad, 71 Fed. 835; Interstate Commerce Commission v. Louisville & Nashville Railroad, 73 Fed. 409. Tn construing statutory provisions forbidding railway companies from giving any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatever, the English courts have held, after full consideration, that competition between rival lines is a fact to be considered, and that a preference or advantage thence arising is not necessarily undue or unreasonable. Denaby 436 INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. Main Colliery Co. v. Manchester, Sheffield, & Lincolnshire Railway, 11 App. Cas. 97; Phipps v. London & ‘Northwestern Railway, [1892] 2 Q. B. 229. But the question whether competition, as affecting rates, is an element for the Commission and the courts to consider in applying the provisions of the act to regulate commerce, is not an open ques- tion in this court. In Interstate Commerce Commission v. Baltimore & Ohio Rail- road, 145 U. S. 263, it was said, approving observations made by Jackson, Circuit Judge (43 Fed. 37), that the act to regulate com- merce was ‘‘ not designed to prevent competition between different roads, or to interfere with the customary arrangements made by rail- way companies for reduced fares in consideration of increased mileage, where such reduction did not operate as an unjust discrimination against other persons travelling over the road; in other words, it was not intended to ignore the principle that one can sell at wholesale cheaper than at retail; that it is not all discriminations or prefer- ences that fall within the inhibitions of the statute, — only such as are unjust or unreasonable”; and, accordingly, it was held that the issue by a railway company, engaged in interstate commerce, of a ‘* party-rate ticket” for the transportation of ten or more persons from a place situated in one State or Territory to a place situated in another State or Territory, at a rate less than that charged to a single individual for a like transportation on the same trip, does not thereby make ‘‘ an unjust or unreasonable charge” against such individual, within the meaning of the first section of the act to regulate com- merce, nor make ‘‘ an unjust discrimination ” against him, within the meaning of the second section, nor give ‘‘ an undue or unreasonable preference or advantage” to the purchasers of the party-rate ticket, within the meaning of the third section. In Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, it was held that, ‘‘ in passing upon questions arising under the act, the tribunal appointed to enforce its provisions, whether the commission or the courts, is empowered to fully con- sider all the circumstances and conditions that reasonably apply to the situation, and that, in the exercise of its jurisdiction, the tri- bunal may and should consider the legitimate interests as well of the carrying companies as of the traders and shippers, and, in con- sidering whether any particular locality is subjected to an undue preference or disadvantage, the welfare of the communities occupy- ing the localities where the goods are delivered is to be considered as well as that of the communities which are in the locality of the place of shipment; that among the circumstances and conditions to be considered, as well in the case of traffic originating in foreign ports as in the case of traffic originating within the limits of the United States, competition that affects rates should be considered, and in de- ciding whether rates and charges, made at a low rate to secure foreign INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. 437 freights which would otherwise go by other competitive routes, are or are not undue and unjust, the fair interests of the carrier com- panies and the welfare of the community which is to receive and consume the commodities are to be considered.” To prevent misapprehension, it should be stated that the conclu- sion to which we are led by these cases, that, in applying the pro- visions of the third and fourth sections of the act, which make it unlawful for common carriers to make or give any undue or unrea- sonable preference or advantage to any particular person or locality, or to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, competition which affects rates is one of the matters to be considered, is not applicable to the second section of the act. As we have shown in the recent case of Wight v. U. S., 167 U. S. 512, the purpose of the second section is to enforce equality between shippers over the same line, and to prohibit any rebate or other de- vice by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor; and we there held that the pbrase, “under substantially similar circumstances and conditions,” as used in the second section, refers to the matter of carriage, and does not include competition between rival routes. This view is not open to the criticism that different meanings are attributed to the same words when found in different sections of the act; for what we hold is that, as the purposes of the several sections are different, the phrase under consideration must be read, in the second section, as restricted to the case of shippers over the same road, thus leaving no room for the operation of competition, but that in the other sections, which cover the entire tract of interstate and foreign commerce, a meaning must be given to the phrase wide enough to include all the facts that have a legitimate bearing on the situation, among which we find the fact of competition when it affects rates. In order further to guard against any misapprehension of the scope of our decision, it may be well to observe that we do not hold that the mere fact of competition, no matter what its character or extent, necessarily relieves the carrier from the restraints of the third and fourth sections, but only that these sections are not so stringent and imperative as to exclude in all cases the matter of competition from consideration, in determining the questions of “ undue or unreason- able preference or advantage,” or what are ‘‘ substantially similar circumstances and conditions.” The competition may in some cases be such as, having due regard to the interests of the public and of the carrier, ought justly to have effect upon the rates, and in such 438 INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. cases there is no absolute rule which prevents the commission or the courts from taking that matter into consideration. It is further contended, on behalf of the appellant, that the courts below erred in holding, in effect, that competition of carrier with carrier, both subject to the act to regulate commerce, will justify a departure from the rule of the fourth section of the act without authority from the Interstate Commerce Commission, under the pro- viso to that section. In view of the conclusion hereinbefore reached, the proposition comes to this: that when circumstances and conditions are substan- tially dissimilar the railway companies can only avail themselves of such a situation by an application to the commission. The language of the proviso is as follows: — “That upon application to the Commissiofi appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge less for longer than shorter distances for the transportation of persons or property, and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act.” The claim now made for the Commission is that the only body which has the power to relieve railroad companies from the operation of the long and short haul clause on account of the existence of com- petition, or any other similar element which would make its applica- tion unfair, is the Commission itself, which is bound to consider the question, upon application by the railroad company, but whose de- cision is discretionary and unreviewable. The first observation that occurs on this proposition is that there appears to be no allegation in the bill or petition raising such an issue. The gravamen of the complaint is that the defendant com- panies have continued to charge and collect a greater compensation for services rendered in transportation of property than is prescribed in the order of the Commission. It was not claimed that the defend- ants were precluded from showing in the courts that the difference of rates complained of was justified by dissimilarity of circumstances and conditions, by reason of not having applied to the Commission to be relieved from the operation of the fourth section. ‘Moreover, this view of the scope of the proviso to the fourth sec- tion does not appear to have ever been acted upon or enforced by the Commission. On the contrary, in the case of In re Louisville & Nash- ville Railroad v. Interstate Commerce Commission, 1 Interst. Com- merce Com. R. 31, 57, the Commission, through Judge Cooley, said, in speaking of the effect of the introduction into the fourth section of the words, ‘ under substantially similar circumstances and condi- tions,” and of the meaning of the proviso: ‘‘ That which the act does not declare unlawful must remain lawful, if it was so before; and that which it fails to forbid the carrier is left at liberty to do, with- INTERSTATE COMMERCE COM. ¥. ALABAMA MID. RAILWAY. 439 out permission of any one. ... The charging or receiving the greater compensation for the shorter than for the longer haul is seen to be forbidden only when both are under substantially similar cir- cumstances and conditions; and therefore, if in any case the carrier, without first obtaining an order of relief, shall depart from the gen- eral rule, its doing so will not alone convict it of illegality, since, if the circumstances and conditions of the two hauls are dissimilar, the statute is not violated. . . . Beyond question, the carrier must judge for itself what are the ‘ substantially similar circumstances and conditions’ which preclude the special rate, rebate, or drawback which is made unlawful by the second section, since no tribunal igs empowered to judge for it until after the carrier has acted, and then only for the purpose of determining whether its action constitutes a violation of law. The carrier judges on peril of the consequences, but the special rate, rebate, or drawback which it grants is not ille- gal when it turns out that the circumstances and conditions were not such as to forbid it; and, as Congress clearly intended this, it must also, when using the same words in the fourth section, have intended that the carrier whose privilege was in the same way limited by them should in the same way act upon its judgment of the limiting cir- cumstances and conditions.” = The view thus expressed has been adopted in several of the Circuit Courts. Interstate Commerce Commission v. Atchison, Topeka, &e. Railroad, 50 Fed. 295, 800; Interstate Commerce Commission v. Cin- cinnati, N. O. & Tex. Pac. Ry., 56 Fed. 925, 942; Behlmer v. Louisville & Nashville Railroad, 71 Fed. 835, 839. And we do not think the courts below erred in following it in the present case. We are unable to suppose that Congress intended, by the fourth section and the pro- viso thereto, to forbid common carriers, in cases where the circum- stances and conditions are substantially dissimilar, from making different rates until and unless the Commission shall authorize them so todo. Much less do we think ,that it was the intention of Con- gress that the decision of the Commission, if applied to, could not be reviewed by the courts. The provisions of section 16 of the act, which authorize the court to ‘‘ proceed to hear and determine the matter speedily as a court of equity, and without the formal plead- ings and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the premises, and to this end such court shall have power, if it think fit, to direct and prosecute in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition,” extend as well to an inquiry or proceed- ing under the fourth section as to those arising under the other sec- tions of the act. Upon these conclusions, that competition between rival routes is one of the matters which may lawfully be considered in making rates, and that substantial dissimilarity of circumstances and conditions 440 INTERSTATE COMMERCE COM. v. ALABAMA MID. RAILWAY. may justify common carriers in charging greater compensation for the transportation of like kinds of property for a shorter than for a longer distance over the same line, we are brought to con- sider whether, upon the evidence in the present case, the courts below erred in dismissing the Interstate Commerce Commission's complaint. : As the third section of the act, which forbids the making or giv- ing any undue or unreasonable preference or advantage to any par- ticular person or locality, does not define what, under that section, shall constitute a preference or advantage to be undue or unreason- able, and as the fourth section, which forbids the charging or re- ceiving greater compensation in the aggregate for the transportation of like kinds of property for a shorter than for a longer distance over the same line, under substantially similar circumstances and conditions, does not define or describe in what the similarity or dis- similarity of circumstances and conditions shall consist, it cannot be doubted that whether, in particular instances, there has been an undue or unreasonable prejudice or preference, or whether the cir- cumstances and conditions of the carriage have been substantially similar or otherwise, are questions of fact, depending on the matters proved in each case. Denaby Main Colliery Co. v. Manchester, &c. Ry. Co., 3 Railway & Can. Cas. 426; Phipps v. London & North- western Railway, [1892] 2 Q. B. 229; Cincinnati, N. O. & Tex. Pac. Ry. v. Interstate Commerce Commission, 162 U. 8. 184, 194; Texas & Pacific Railway v. Interstate Commerce Commission, 162 U. S. 197, 285. The Circuit Court, after a consideration of the evidence, expressed its conclusion thus: — ““Tn 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. 441° 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. Asa 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 442 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, if 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. 458. 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 Cireuit 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, 443 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 atfirm 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 444. 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 Hartan, 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. ¥% ALABAMA MID, RAILWAY. 445 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. 446 PENNSYLVANIA COAL CO. ¥. DELAWARE, ETC. CANAL CO. CHAPTER II. RIGHTS OF PUBLIC CALLING. Secrion I. To mMAakE REGULATIONS. PENNSYLVANIA COAL CO. v. DELAWARE AND HUDSON CANAL CO. Court or Appears, New York, 1865. [31 N.Y. 91] Daviss, 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 employed 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 pass 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. 447 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 jury, 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 equity 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. Mottin, 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. 448 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 tacilities 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 Eddyville 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 they 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. ¥. DELAWARE, ETC. CANAL CO. 449 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 delay 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. Judgment affirmed.* 1 The learned judge also held that no case had been shown for equitable jurisdic- tion. — Ep. 2 Compare: Macon R. R. v. Johnson, 38 Ga. 409; Lake Shore R. R. v. Brown, 123 Ill. 162; Decuis v. Benson, 27 La. Ann. 1; Day v. Owen, 5 Mich. 520; Johnson v. Concord Corp., 46 N. H. 213; Whitesell v. Crane, 8 Watts & S. 369.— Ep. 29 450 POPE v. HALL. POPE v. HALL. Supreme Court or Lourstana, 1859. [14 La. Ann. 324.] Mezrrics, C. J. This suit has been brought against Messrs. Hall & Hildreth, 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 jury, 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 stairway a large card was posted, cautioning the boarders to beware of hotel thieves, and requesting them to deposit all money, 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 may be deposited and a receipt taken, and no remuneration may 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 : — diem si predixertt, et unusquisque rectorum res suas servet, neque damnum se prestaturum, et consenserint vectores predictiont, non convenitur. Tt 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. 451 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. Vooruiss, J., absent. FULLER v. COATS. Supreme Court or Ouro, 1868. [18 Oh. St. 343.] Tue 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 custody of defendants, but carelessly and negligently 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 452 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 that 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 they kept a place back of the counter, in the office, where they kept and checked coats and satchels; that he had frequently checked the plaintiff's 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 be 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. 453 “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.! 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 jury; 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 liability 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. —Epb. 454 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 witb 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 plaintiff's negligence caused, or directly contributed to, the loss of the property.” It was thus held by the court, and conceded by the counsel for the plaintiff, that if the property was ‘‘ lost by 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 waat 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 by 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. 455 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 safety. ‘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 may, in many insiances, become absolutely 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 party for loss occasioned by his own negligence, and would be carrying the liability of innkeepers to an unreasonable extent. Story’s Bail. secs. 472, 483; Ashill v. Wright, 6 El. & Bl. 890; Purvis v. Coleman, 21 N. Y. 111; Berk- shire Woolen Co. v. Proctor, 7 Cush. 417. Nor does the rule thus indicated militate against the well-established tule in relation to the inability of carriers to limit their liability ; 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. It remains to be considered whether the court erroneously overruled the motion for a new trial, on the ground that the verdict was against the evidence. 456 REESE v. PENNSYLVANIA RAILROAD. While we are not clear from doubt on this point, upon a careful consideration of the evidence we are constrained to say that the verdict is not so clearly against the evidence as to warrant us in holding that the court erred in refusing to set it aside. Judgment affirmed. REESE v. PENNSYLVANIA RAILROAD. Supreme Court or Pennsytvania, 1890. [131 Pa. 422.] On October 31, 1888, L. B. D. Reese brought trespass: against the Pennsylvania Railroad Company to recover damages for the alleged unlawful ejecting of the plaintiff from a passenger train of the defendant. Issue. At the trial on September 17, 1889, the following facts were shown: About eleven o’clock on the evening of October 24, 1888, the plaintiff, in company with two friends, boarded a passenger train of the defendant company at East Liberty station, in the city of Pittsburgh, for the pur- pose of going to the Union station in said city. The testimony for the plaintiff tended to prove that they arrived at East Liberty station just as the train was about to start, and too late to get tickets; while witnesses for the defendant testified that the plaintiff and his com- panions were at the station some minutes before the train left. The ticket office at East Liberty was kept open the usual length of time prior to the departure of that train, and afforded all persons who were at the station before it started an opportunity to procure tiekets. The defendant company was incorporated by Act of April 13, 1846, P. L. 312, § 21 of which provides that ‘‘ in the transportation of pas- sengers, no charge shall be made to exceed three cents per mile for through passengers, and three and one-half cents per mile for way passengers.” After the train had started, the conductor called upon the plaintiff for his ticket, when the plaintiff stated that he had none and tendered to the conductor the sum of fourteen cents in cash. The distance between the East Liberty and Union stations is four and one half miles, and the regular and uniform fare charged by the defendant between those points was fourteen cents, being at the rate of three cents a mile. The company, however, had a regulation requiring pas- sengers without tickets to pay to the conductor, in addition to the regular fare of three cents per mile, the additional sum of ten cents. The amount so to be paid in excess of the regular fare was uniform in all cases, irrespective of the distance the passenger was travelling, 1 Compare: Milford v. Wesley, 1 Wilson, 119; Bodwell v. Bragg, 29 Ia. 282; Pope v. Hall, 14 La. Ann. 324.— Ep. REESE v¥. PENNSYLVANIA RAILROAD. 457 and upon its payment the conductor was required to give to the pas- senger a memorandum or check, signed by the general passenger agent of the company, redeemable at ten cents on presentation at any ticket office of the company along its road. This memorandum is known as a “duplex ticket,” the conductor being required to retain and forward to the auditor of passenger receipts a duplicate of each one issued. It is printed upon a form so arranged that the stations from and to which fare is collected can be indicated upon it by punch marks, and conductors are required to do this in all cases. Of this regulation, notice was given to the public by printed cards posted at the company’s ticket offices. : 5 Acting under the regulation of the company respecting the payment of cash fares, the conductor refused to accept the fourteen cents tendered him by the plaintiff and demanded twenty-four cents. The plaintiff declined absolutely to pay more than fourteen cents, whereupon he was put off the train at Roup station. The jury rendered the following verdict: ‘‘ We find for the plaintiff in the sum of two hundred and fifty dollars ($250). And we have further answered the annexed questions submitted to us for answer as part of the verdict: ‘© 1, Did the plaintiff, Mr. Reese, on the evening in question, arrive at the East Liberty station in time to procure a ticket before getting on the train? “No.” *©2. Did the conductor, when demanding from the plaintiff twenty- four cents fare, or before putting him off the train, inform him that he would obtain a receipt entitling him to be repaid ten cents of the fare on presentation at the proper office; or did Mr. Reese know that such was the regulation? “No.” Judgment having been entered upon the verdict, the defendant took this appeal.? Mircnert, J., the right of railroad companies to make reasonable regulations, not only as to the amounts of fares, but as to the time, place, and mode of payment, is unquestionable. This right includes the right to refuse altogether to carry without the previous procure- ment of a ticket. Lake Shore, &c. Ry. Co. v. Greenwood, 79 Pa. 373. That case arose upon a special’ regulation as to the carriage of pas- sengers upon freight trains; but there is no appreciable distinction between it and a general regulation as to all passengers. Both rest on the common-law principle that requires payment or tender as an indis- pensable preliminary to holding a carrier liable for refusal to carry, and on the manifest and necessary convenience of business, where the 1 The points assigned for error were: 1, refusal of the trial court to charge that the regulation was reasonable and legal; 2, charge of the court that the amount demanded was in excess of the statutory amount. The statement of facts has been abridged and arguments of counsel omitted.—Ep. 458 REESE v. PENNSYLVANIA RAILROAD. number of passengers is liable to be large and the time for serving them short. So, too, the authorities are uniform that companies may charge an additional or higher rate of fare to those who do not purchase tickets before entering the cars. Crocker v. Railroad Co., 24 Conn. 249; Swan v. Railroad Co., 182 Mass. 116; Hilliard v. Goold, 34 N. H. 241; Stephen v. Smith, 29 Vt. 160; State v. Goold, 53 Me. 279; State v. Chovin, 7 Iowa, 208; Du Laurans v. Railroad Co., 15 Minn. 49; State v. Hungerford, 39 Minn. 6 (84 Amer. & Eng. R. Cas. 265), and note; Chicago, &c. R. Co. v. Parks, 18 Ill. 460; Pullman Co. v. Reed, 75 Ill. 130; Railroad Co. v. Skillman, 39 Ohio, 451; Forsee v. Railroad Co., 63 Miss. 67. And it may be noted, in response to one of the most urgently pressed arguments of the defendant in error, that the reasons almost uniformly given in support of this long line of decisions include the furthering of the honest, orderly, and convenient conduct by the railroad company of its own business. The regulation in question in the present case, is not in itself un- reasonable or oppressive. In regard to the traveller, it is scarcely just ground of complaint that he has to present his refunding ticket at the end of his journey, instead of getting an ordinary ticket at the start. The inconvenience, if any, is the result of his own default. With reference to the other passengers, and still more to the railroad com- pany, the regulation is conducive to the rapid, orderly, and convenient despatch of the conductor’s part in the collection of fares, and thus to leaving him free for the performance of his other duties in connection with the stops at stations, the entrance and exit of passengers, and the general supervision of the safety and comfort of those under his care. If, therefore, the company may refuse to carry at all without a ticket, it may fairly refuse under the far less inconvenient alternative to the traveller of putting him to the trouble of going to an office to get his excess refunded. If the company may charge those failing to get a ticket an additional price, and keep it, certainly they may charge such price and refund it; and, as the regulation is not in itself unreasonable or oppressive, or needlessly inconvenient to the traveller, its validity, upon general principles and on authority, would seem to be beyond question. These views were conceded by the learned judge below, and are not seriously questioned by counsel here. But the decision was based upon the view that the extra ten cents imposed by this regulation is a part of the fare, and makes it higher than the rate allowed by the act of incorporation of the company. The language of the act is, ‘‘ In the transportation of passengers no charge shall be made to exceed .. . three and one-half cents per mile for way passengers.” As the dis- tance from East Liberty station to the Union station in Pittsburgh is four and one-half miles, and the regular fare fourteen cents, it is ad- mitted that the extra ten cents is in excess of the charter rate, if it is REESE v. PENNSYLVANIA RAILROAD. 459 a ‘“‘charge for transportation” within the meaning of the act. Suould it be so regarded? ‘‘ Charge” is a word of very gencral and varied use. Webster gives it thirteen different meanings, none of which, however, expresses the exact sense in which it is used in this charter. The great dictionary of the Philological Society, now in course of publication, gives it twenty separate principal definitions, besides a nearly equal number of subordinate variations of meaning. Of these definitions, one (10 0) is, ‘* The price required or demanded for service rendered, or (less usually) for goods supplied; and this expresses accurately the sense of the word in the present case. ‘The essence of the meaning is that it is something required, exacted, or taken from the traveller as compensation for the service rendered, and, of course, something taken permanently, — not taken temporarily, and returned. The purpose of the restriction in the charter is the regulation of the amount of fares, not of the mode of collection; the protection of the traveller from excessive demands, not interference with the time, place, or mode of payment. These are mere administrative details, which depend on varying circumstances, and are therefore left to the ordinary course of business management. We fail tosee anything in the present regulation which can properly be treated as an excessive charge, within the prohibition of the charter. Nor is there any force in the objection that this regulation is un- reasonable. It is said not to be general, fair, and impartial, because it provides that as to passengers getting on the train at stations where there is no ticket office, &c., or on trains where, on account of the excessive rush of business, it is impossible to issue the refunding check, the collection of the excess shall be omitted. The objection overlooks the necessary qualifications to the validity of such a regula- tion. All the cases are agreed that the regulation would be unreason- able, and therefore void, unless the carrier should give the passenger a convenient place and opportunity to buy his ticket before entering the train. This part of the regulation merely puts in express words a necessary exception which the law would otherwise imply. So, as to the- excessive rush of business. Reasonableness depends on circum- stances. To collect the extra amount and issue return checks to as many passengers as the conductor could reach in time, and let all others go free entirely, would be much more unreasonable than to treat all alike and dispense with the regulation for the time being. Necessity modifies the application of all rules, and there is nothing unreasonable in requiring the conductor to exercise sufficient foresight to see whether he can perform the prescribed duty in the available time, and investing him with the discretion to omit it altogether, if, in his judgment, he cannot perform it fully. No authorities precisely in point have been found upon either side. The cases cited by the defendant in error, from Kentucky and Ohio, are widely distinguishable, as they were cases of absolute charge be- yond the charter limit, without any provision for return of the excess 460 FORSEE v. ALABAMA GREAT SOUTHERN RAJLROAD. to the traveller. But on well-settled principles we are of opinion that the regulation is reasonable in itself, and not in violation of the re- striction in the act of incorporation. ‘The defendant’s first point should therefore have been affirmed. Judgment reversed. FORSEE v. ALABAMA GREAT SOUTHERN RAILROAD. Supreme Court or Mississippi, 1885. [63 Miss. 66.] Axzout nine o’clock Pp. m., on September 20, 1884, S. P. Forsee went to the ticket office of the Alabama Great Southern R. R. Co. at Toomsuba, for the purpose of buying a ticket and taking passage for Meridian on that company’s train, which was due at Toomsuba at about half-past nine o’clock p. m. The depot was dark, no ticket agent could be seen or found, and as it was raining slightly Forsee and his companion, one Poole, left the depot, where, as they claimed, there was no adequate shelter, and went over to a store near by, but from which they could still view the depot and watch for the train. No one was seen about the depot until the train approached, when a man with a mail bag ran out. Forsee seized him and said to him that he had tried to get a ticket but had not been able to find any one at the depot. The man, who proved to be the agent, replied that it was then too late. Forsee went to the conductor and told him that he had been unable to buy a ticket because the agent was not on hand. Forsee then boarded the train, and when the conductor came to him for his fare again told him he had no ticket and why he had failed to get one, but tendered him thirty-five cents, the amount of the regular ticket rate between Toomsuba and Meridian. The conductor declined to receive it, and demanded fifty cents, explaining to Forsee that his instructions were positive to collect fifty cents from passengers going from one to the other point mentioned who failed to purchase tickets. Forsee still refused to pay more, when the conductor stopped the train, seized Forsee, and with the assistance of two train men was about to put him off. Forsee, rather than be put off, paid fifty cents under protest, and afterward brought this action to recover damages for the alleged injury that resulted to him from the neglect and wrongful conduct of the rail- road company’s agents. Plaintiff introduced evidence tending to show that the conductor acted in a rough, insulting, and insolent manner, while the defence introduced evidence tending to show the opposite, and that the con- ductor used no more force than was necessary. Plaintiff offered to prove by witnesses and by the deposition of one C. P. Blanks that the acting ticket agent was a boy of sixteen years, FORSEE v. ALABAMA GREAT SOUTHERN RAILROAD. 461 that he was careless and indifferent, and that he had been previously reported to defendant for neglecting his duties. This evidence the court below refused to admit. Plaintiff further offered to prove by two witnesses that he was at the time in a delicate state of health, and that he would have probably received serious and permanent injuries had he been put off the train, and that owing to the delicate state of his health, any undue excite- ment of mind was injurious, but the court below refused to admit such testimony. Plaintiff also offeréd to prove that on the day following his attempt to purchase the ticket, the ticket agent had admitted to some third person that he was asleep before and on the arrival of the train on the day in question, and that the depot was not lighted; and this evidence the court below refused to admit. The jury rendered a verdict for plaintiff, and fixed his damages at fifty dollars, and thereupon the court adjudged that each party pay his own costs. The plaintiff appealed. Arno.p, J. There was no error in sustaining the objection to the proposed testimony in regard to appellant’s health. It is not claimed that his health was affected by the occurrence of which he complains, and evidence on that subject was irrelevant. The testimony offered, including the deposition of C. P. Blanks in regard to the character of the ticket agent, was properly excluded. It was shown that the agent was not at his post, and that the ticket office was not open in time for appellant to obtain a ticket, and the character of the agent under these circumstances was immaterial. The alleged admissions or declarations of the ticket agent, made a day or more after the occurrence to which they related, were incom- petent, and the objection to the testimony introduced to prove such admissions or declarations was well taken. Moore v. Chicago, &c., Railroad Co., 59 Miss. 243. . It is competent for a railroad corporation to adopt reasonable rules for the conduct of its business, and to determine and fix, within the limits specified in its charter and existing laws, the fare to be paid by passengers transported on its trains. It may, in the exercise of this right, make discrimination as to the amount of fare to be charged for the same distance, by charging a higher rate when the fare is paid on the train than when a ticket is purchased at its office. Such a regula- tion has been very generally considered reasonable and beneficial both to the public and the corporation, if carried out in good faith. It imposes no hardship or injustice upon passengers, who may, if they desire to do so, pay their fare and procure tickets at the lower rate before entering the cars, and it tends to protect the corporation from the frauds, mistakes, and inconvenience incident to collecting fare and making change on trains while in motion, and from imposition by those who may attempt to ride from one station to another without payment, and to enable conductors to attend to the various details of their duties on the train and at stations. State v. Goold, 538 Maine, 279; The 462 FORSEE ¥. ALABAMA GREAT SOUTHERN RAILROAD. Jeffersonville Railroad Co. v. Rogers, 28 Ind. 1; Swan v. Manchester, &¢c. Railroad Co., 132 Mass. 116. But such a regulation is invalid, and cannot be sustained, unless the corporation affords reasonable opportunity and facilities to passengers to procure tickets at the lower rate, and thereby avoid the disadvantage of such discrimination. When this is done, and a passenger fails to obtain a ticket, it is his own fault, and he may be ejected from the train if he refuses to pay the higher rate charged on the train. When such a regulation is established, and a passenger endeavors to buy a ticket before he enters the cars, and is unable to do so on account of the fault of the corporation or its agents or servants, and he offers to pay the ticket rate on the train, and refuses to pay the car rate, it is unlawful for the corporation or its agents or servants to eject him from the train. He is entitled to travel at the lower rate, and the corpora- tion is a trespasser and liable for the consequences if he is ejected from the train by its agents or servants. The passenger may, under such circumstances, either pay the excess demanded under protest, and afterwards recover it by suit, or refuse to pay it, and hold the corpora- tion responsible in damages if he is ejected from the train. 1 Redfield on Railways, 104; Evans v. M. & C. Railroad Co., 56 Ala. 246; St. Louis, &c. Railroad Co. v. Dalby, 19 Ill. 353; St. Louis, &e. Railroad Co. v. South, 43 Ill. 176; Smith v. Pittsburg, &c. Railroad Co., 23 Ohio St. 10; Porter v. N.Y. Central Railroad Co., 34 Barb. 353; The Jef- fersonville Railroad Co. v. Rogers, 28 Ind. 1; The Jefferson Railroad Co. v. Rogers, 88 Ind. 116; State v. Goold, 53 Maine, 279; Swan v. Manchester, &c. Railroad Co., 182 Mass. 116; Du Laurans v. St. Paul, &c. Railroad Co., 19 Minn. 49. In such case exemplary damages would not be recoverable; unless the expulsion or attempted expulsion was characterized by malice, recklessness, rudeness, or wilful wrong on the part of the agents or servants of the corporation. Chicago, &c. Railroad Co. v. Scurr, 59 Miss. 456; Du Laurans v. St. Paul, &c. Railroad Co., 19 Minn. 49; Pullman, &e. v. Reed, 75 Ill. 125; Hamilton v. Third Avenue Railroad Co., 53 N. Y. 25; Townsend v. N. Y. Central Railroad Co., 56 N. Y. 295; Paine v. C. R. I. & P. Railroad Co., 45 Iowa, 569 ; McKinley v. The C. & N. W. Railroad Co., 44 Iowa, 314. The cause was tried in the court below on theories and principles of law different from those here expressed, and the judgment is reversed and a new trial awarded. Reversed.1 1 Compare : Central Co. v. Strickland, 90 Ga. 562; Ill. Co. v. Johnson, 67 Ill. 312; Sage v. Evansville Co., 134 Ind. 100; Haufbauer v. RB. R., 52 Ia. 842; Pacific R. R. v. Wolf, 54 Kans. 592; Mesey v. R. R., 83 Ky. 511: McGowen v. S. S. Co., 41 La. Ann. 732; State v. Gould, 53 Me. 279; Zagelmeyer v. R. R., 102 Mich. 214; Du Laurans v. R. R., 15 Minn. 102; Hilliard v. Gould, 34 N. H. 230; Porter v. R. R., 34 Barb. 353; Fordyce v, Manuel, 82 Tex. 527. — Ep. WESTERN UNION TELEGRAPH CO. v. MCGUIRE. 463 WESTERN UNION TELEGRAPH CO. v. McGUIRE. Supreme Cocrt or Inprana, 1885. [104 Ind. 130.] Extiotr, J. The complaint seeks a recovery of the statutory penalty for a failure to transmit a telegraphic message. ‘The answer of the appellant is substantially as follows: ‘* The defendant says that it did fail and refuse to transmit the message set forth in the complaint, but defendant says that the plaintiff was a stranger in Frankfort and a transient person therein; that the said message was one that required an answer; that the defendant has, and had at the time, as one of its general rules and regulations of business, regularly adopted for the government of the operators and agents of said company, the follow- ing rule: ‘ Transient persons sending messages which require answers must deposit an amount sufficient to pay for ten words. In such case the signal, ‘* 33” will be sent with the message, signifying that the answer is prepaid ;’ that the defendant’s agent to whom said message was offered, informed the plaintiff of the existence of said rule and what said rule was, and that the amount required to be deposited was twenty-five cents; that thereupon the plaintiff refused to comply with said rule and make said deposit.” To this answer a demurrer was sustained, and on this ruling arises the controlling question in the case. One of the incidental and inherent powers of all corporations is the right to make by-laws for the regulation of their business. There is no conceivable reason why telegraph corporations should not possess this general power; nor is there any doubt under the authorities that this power resides in them. Western Union Tel. Co. v. Jones, 95 Ind. 228 (48 Am. R. 718), vide opinion, p. 231, and authorities cited ; Western Union Tel. Co. v. Buchanan, 35 Ind. 429 (9 Am. R. 744); True v. International Tel. Co., 60 Maine, 9 (11 Am. R. 156) ; Scott & J. Law of Telegraphs, section 104. Affirming, as principle and authority require us to do, that the tele- graph company had power to make by-laws, the remaining question is whether the one under immediate mention is a reasonable one. It is established by the authorities that an unreasonable by-law is void. Western Union Tel. Co. v. Jones, supra; Western Union Tel, Co. v. Buchanan, supra; Western Union Tel. Co. v. Adams, 87 Ind. 598 (44 Am. R. 776); Western Union Tel. Co. v. Blanchard, 68 Ga. 299 (45 Am. R. 480, see authorities note, pages 491, 492). It is for the courts to determine whether a by-law is or is not an un- reasonable one, and this is the question which now faces us. 1 Dillon Munic. Corp. (3d ed.), section 327; Scott & J. Law of Telegraphs, section 104. 464 OWENSBORO GASLIGHT CO. v. HILDEBRAND. We are unable to perceive anything unreasonable in the by-law under examination. A person who sends another a message, and asks an answer, promises by fair and just implication to pay for transmitting the answer. It is fairly inferable that the sender who asks an answer to his message will not impose upon the person from whom he requests the answer the burden of paying the expense of its transmission. The telegraph company has a right to proceed upon this natural inference and to take reasonable measures for securing legal compensation for its services. It is not unnatural, unreasonable, or oppressive for the telegraph company to take fair measures to secure payment for ser- vives rendered, and in requiring a transient person to deposit the amount legally chargeable for an ordinary message, it does no more than take reasonable measures for securing compensation for transmit- ting the asked and expected message. We have found no case exactly in point, but we have found many analogous cases which, in principle, sustain the by-law before us. Western Union Tel. Co. v. Carew, 15 Mich. 525; Camp v. Western Union Tel. Co., 1 Met. Ky. 164; Vedder v. Fellows, 20 N. Y. 126; Ellis v. Am, Tel. Co., 13 Allen, 226; McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180; Western Union Tel. Co. v. Blanchard, supra, see authorities cited note, 45 Am. R., page 489; Western Union Tel. Co. v. Jones, supra. Judgment reversed, with instructions to overrule the demurrer to the answer and to proceed in accordance with this.opinion. OWENSBORO GASLIGHT CO. v. HILDEBRAND. Court or Apprats or Kenrucry, 1897. [42 S. W. Rep. 351.] Hazexriee, J. The Owensboro Gaslight Company and the Owens- boro Electric Company are not given, in express terms, exclusive right to manufacture and furnish gas in the city of Owensboro, but the com- panies are given the use of the streets and public ways of the city for the purpose of laying the mains and pipes and other appliances in the maintenance of its work. The companies may also acquire the use of lands for their business by writs ad quod damnum. Their business, therefore, is affected with public interest, and they are quasi-public corporations, and practically they have a monopoly of the business of manufacturing and furnishing gas within the corporate limits of the city. It is therefore their duty to furnish the city’s inhabitants with gas, and to do so upon terms and conditions common to all, and with- out discrimination. They cannot fix a variety of prices, or impose dif- ferent terms and conditions, according to their caprice or whim. They STATE EX REL. WEISE v. THE SEDALIA GAS LIGHT Co. 465 may, however, fix reasonable rules and regulations applicable to all the consumers alike. In these cases the companies undertook to com- pel the appellee to deposit the sum of twenty dollars as security for his future consumption of gas and electricity, and upon his refusal to do so, withdrew their pipes and wires from his building. This suit by appellee was to compel them to furnish him light, and the court, on final hearing, granted the relief sought. It is conceded by appellee that appellant may prescribe reasonable rules and regulations, and im- pose reasonable conditions upon the consumer, and require proper security for the payment of their bills, and may even require deposits in advance ; but his contention here is that the companies have adopted no such rule or regulations as they have attempted to enforce against him, and such appcars to us to be a fact. No rule or regulation of a general character is relied on or exhibited by the companies, and to allow them to select this or that consumer against whom to enforce special rules would put the consumer at the capricious humor of the agents and employees of the companies. The judgment below is affirmed. STATE ex ret. WEISE v. THE SEDALIA GAS LIGHT CO. Court or Appgas, Missourt, 1889. [84 Mo. App. 501.1] Statement of the case by the court. The petition avers, and the alternative writ recites, that the appellant was organized under the general laws of the State of Missouri for the purpose of supplying the city of Sedalia and its inhabitants with illu- minating gas; that by section 14 of said article 7 (Wag. Stat.) said company might lay its pipes, &c., through the streets of said city, by consent of the municipal authorities thereof, under such reasonable regulations as said authorities might prescribe; that on the seven- teenth day of June, 1868, an ordinance was passed by the municipal authorities of said city granting to said company the exclusive right to lay its pipes through said city, and to supply it and its inhabitants with gas, for a period of thirty years, upon the sole condition, how- ever, that said company should furnish the city and its inhabitants ‘a good article of illuminating gas, at a price per cubic foot, not exceeding the rate charged in similarly situated places;” that said company accepted the terms of said ordinance; that the relator complied with all the reasonable rules and regulations of said gas company, which are fully set forth in the petition and alternative writ; that notwithstand- ing all this, and relator’s offer and tender of full pay for all gas con- 1 This case is abridged. — Ep. 30 466 STATE EX REL. WEISE v. THE SEDALIA GAS LIGHT CO. / sumed, the gas company removed the meter from his place of business and refused to furnish him gas, &c. All this is admitted in respondent’s return to the alternative writ, and the sole justification pleaded, for its refusal to furnish gas to relator, is that, in addition to the rules and regulations set out in the petition and alternative writ, said gas company had adopted another to the effect that, ‘all persons using or desiring to use gas manufactured by the defendant within said city, should pay a monthly rental upon, and for the use of, the meter furnished by the defendant of the sum of one dollar and twenty-five cents per month, in all cases where such consumer consumes less than five hundred feet of gas, and which rental was to be taken in full of such gas, not exceeding the amount of five hundred feet in any one month.” Thereupon relator moved to strike out that part of the return for the following reasons : I. The rule, regulation or by-law, in said portion of said return set up and pleaded as a reason why a peremptory mandamus should not issue against defendant herein, is not a fair, impartial nor reasonable rule or by-law; it is oppressive and discriminatory and contrary to public policy; it is beyond the power of the defendant to make and seeks to enlarge the powers of defendant, granted it by the laws of the State; it is in conflict with the ordinance of the city of Sedalia, as set forth in the alternative writ, under which it supplies the city of Sedalia and its inhabitants with illuminating gas. II. Said portion of said return states no facts which in law constitute good cause why the defendant should not obey the mandate of the alternative writ issued herein. This motion was sustained. The respondent refused to plead further, and the return, after this portion being stricken out, being in effect a concession of the recitations of the alternative writ, a peremptory writ was ordered. The sole ground of error is the action of the court in striking out said portion of respondent’s return. Git, J. I. It is a well-understood principle that corporations, so engaged as the appellant gas company, may, in its dealings with the people, adopt and enforce such reasonable and just rules and regula- tions as may be necessary to protect its interests and further the de- signs of its incorporation. They have such power, too, without an express grant to that effect. It is an inherent power implied from the nature of the business in which they are engaged, limited only by express statute, or ordinance, or by a sense of what is right, reasonable, and just. Shepard v. Gas Co., 6 Wis. 539; Wendall v. State, 62 Wis. 300. The relator in this action contends, however, that the rule, or regu- lation, of the Sedalia Gas Company prescribing payment by the con- sumer of $1.25 per month, where the amount of gas used is less per month than five hundred cubic feet — the designated $1.25 per month being denominated rent of meter — is ‘ unjust, unreasonable, and dis- STATE EX REL. WEISE ¥. THE SEDALIA GAS LIGHT Co. 467 criminatory.” What is just and reasonable is to be determined by the nature of the employment pursued by the corporation and the uses and conveniences of the public. There must be a reasonable protection of the interests of the one, consistent with the reciprocal rights of the other. Irrespective, now, of any ordinance provision, can it be said that this charge of $1.25 per month on a consumer of less than five hundred cubic feet of gas is unreasonable? We think it is not unjust or un- reasonable. The evident purpose of this rule was to exact fair com- pensation from those requiring gas connection, and gas furnished at hand, though the amount consumed should be very small, almost nominal. It is a matter of common knowledge, that to furnish the gas at hand for the very small or nominal consumer requires the same out-lay, in the way of a meter, periodical inspection and repairs, with weekly or monthly visitations, that is required of very large consumers. The same investment and the same care and oversight is required where the gas monthly consumed shall not exceed ten cubic feet or even one cubic foot, as where the amount used may be ten thousand cubic feet. At the rate charged then in Sedalia, as alleged in relator’s complaint, the gas company would be required to invest and expend, for the benefit of this merely nominal consumer, more dollars than cents received. The rate there charged, as alleged, is $2.50 per thousand cubic feet. For this ten cubic feet thus consumed, and for which the company could receive pay of only two and a half cents, the cost to the gas company may be many dollars. II. Relator’s further contention is that the gas company has no authority, uncer the ordinance of the city, under which it operates, to adopt or enforce the rule in question. Much courage for this contention is apparently drawn from the terms of the grant of franchise, by the city, wherein it is provided that the grant should be ‘‘upon condition that it (the gas company) should furnish the public lamps of the city, and to the inhabitants of the city ...» gas at a price, per cubic foot, not exceeding the rate charged in similarly situated places; that said gas company should have the right to collect pay for gas furnished from the consumers of the same,” &c. It is insisted that this is not.collecting for ‘‘ gas consumed,” but is charging rental on the meter used in measuring the gas, and that the company is only allowed to charge for gas per cubic foot. The construction insisted on is too narrow. While the rule names the charge for gas in this instance as ‘‘rent” of meter, yet by its express terms the $1.25 is pay for all gas consumed by the customer, to the extent of five hundred cubic feet. And again the clause limiting the maximum price at which the company should sell its gas to the city for street lamps and to its citizens was only intended to require of the company to furnish gas to Sedalia, and to its inhabitants, at prices not exceeding those prevailing in other ‘‘ places similarly situated.” It 468 WATAUGA WATER CO. v. WOLFE. was not meant to prohibit the gas company from selling gas by any other means than per cubic foot. If the company shall furnish gas to the city, and to its inhabitants, at prices not in excess of those charged in ** places similarly situated,” than the spirit of this ordinance pro- vision is fully met; and if the gas company by this rule is charging more than is imposed in ‘places similarly situated,” then the pro- visions of the ordinance in question are being violated, and the com- pany will not be protected in so doing. We think this is a fair construction to be given the clause in question. To hold otherwise would impose upon the gas company the necessity to affix a meter on every lamp post in the city, and measure off each cubic foot furnished the city; for the same stipulation implies to gas furnished the street lamps as is furnished private consumers. We hold then that the rule or regulation in question, and as is stated in the return to the writ, is not, as a matter of law, unreasonable, and does not conflict with the terms of the franchise ordinance referred to, and, admitting the truth of that portion of the return as pleaded, the trial court, in our opinion, committed error in striking out the same, as it was proper matter of defence to the action. Judgment reversed and cause remanded. The other judges concur. WATAUGA WATER CO. v. WOLFE. Supreme Court or TENNESSEE, 1897. [99 Tenn. 429.] CaLpweEL., J. C. H. Wolfe brought this suit against the Watauga Water Company and obtained judgment before the circuit judge, sitting without a jury, for ten dollars, as damages for its refusal to furnish him water at his residence in Johnson City. The company appealed in error. The defendant is a water company, chartered under the general laws of the State (Code, annotated by Shannon, §§ 2499-2506), with the right of eminent domain and all essential powers, privileges, and fran- chises, and operating its waterworks at Johnson City under special contract with that city to furnish it and its inhabitants with water at designated rates. Being thus endowed by the State, and under con- tract with one of the State’s municipalities, the company is essentially a public corporation, in contradistinction from a private corporation. It is engaged in a public business, under a public grant and contract, and is, therefore, charged with public duties, and cannot, at its election and without good reason, serve one member of the community and not another. It is bound to furnish the commodity, which it was created to supply, to the city and all of its inhabitants upon the terms desig- WATAUGA WATER CO. v. WOLFE. 469 nated in its contract (the same being fair and reasonable), and without discrimination. Crumley v. Watauga Water Co., 98 Tenn. 420; Hangen v. Albina Light & Water Co. (Ore), 14 L. R. A. 424; American Waterworks Co. v. State (Neb.), 830 L. R. A. 447; State v. Butte City Water Co. (Mont.), 32 L. R. A. 697; Union Tel. Co. v. State, 118 Ind. 206; Lombard v. Stearns, 4 Cush. 60; Lowell v. Boston, 111 Mass. 464; Williams v. Mut. Gas Co., 52 Mich. 499; 50 Am. Rep. 266; Olmsted v. Morris Aqueduct Proprs., 47 N. J. Law, 333; Shepard v. Milwaukee Gas Co., 6 Wis. 539; 70 Am. Dec. 479; Spring Valley Waterworks v. Schottler, 110 U. S. 8347; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650; Louisville Gas Co. v. Citizens’ Gas Co., 115 U. S. 683; 2 Mor. on Pri. Corp., Sec. 1129; 2 Cook on 8.8. & C. L., Sec. 932; 1 Dill. on Mun. Corp. (4th ed.), Sec. 52, and note, citing Forster v. Fowler, 60 Pa. St. 27; 29 Am. & Eng. Enc. L. 19, note; 15 L. R. A. 322. Though impressed with a public use, and under legal obligation to furnish water to all inhabitants at the designated rates, and without discrimination, the defendant company is allowed to adopt reasonable rules for the conduct of its business and operation of its plant, and such rules, so far as they affect its patrons, are binding upon them, and may be enforced by the company, even to the extent of denying water to those who refuse to comply with them. American Waterworks Co. v. State (Neb.), 30 L. R. A. 447. Wolfe had been a patron of the company, and had been accustomed to leave his hydrant open, so that large quantities of the escaping water went to waste. His claim was, that the water so wasted was stale and not fit for his use, and upon that ground he sought to justify his action; but the company thought the water not stale and the waste excessive. Complaints were made to the company by persons upon whose premises the escaping water flowed. 5 Wolfe ceased to take water from the company for awhile, preferring to use his well. When he applied to the company for water again, tendering all required charges in advance he was requested to sign a regular application, and agree, in conformity to a rule of the company, that he would keep his hydrant closed except when using the water. This he declined to do, and the company refused to turn water into his hydrant. He said he ‘‘ wanted pure, good water,” and that he ‘would keep the tube open so long as it was necessary to keep the water fresh.” Three days after the company’s declination this suit was brought to recover damages. The rule in question was reasonable, and Wolfe’s refusal to comply with it disentitled him to receive the water, and relieved the company of its obligation to furnish it. This does not imply that a patron of a water company is not entitled to “‘ pure, good water,” but only means that he may not set himself up as the sole judge of its quality, and execute his own adverse judgment in his own way, and without restraint, in defiance of the company, and to its inevitable detriment. It has been held, that ‘‘ a rule of a water 470 HARBISON v. KNOXVILLE WATER CO. company, giving it the right to shut off water from the premises of a consumer who wastes it, is reasonable” (Shiras v. Ewing, 48 Kan. 170) ; and that holding was approved in the case of American Water- works Co. v. State, 30 L. R. A. 449. Reversed, and enter judgment dismissing suit with costs. HARBISON v..KNOXVILLE WATER CO. Court or CHaNncerY APPEALS OF TENNESSEE, 1899. [53 S. W. Rep. 993.] Tuts bill was filed February, 1899, to enjoin the defendant from cutting off the water supply for domestic purposes from the premises occupied by complainant, and to secure a mandatory injunction com- manding defendant to furnish complainant water for the purpose stated, without requiring him to comply with certain of its rules and regula- tions, characterized in the bill as oppressive and unreasonable. ‘The bill, after stating the location of the premises occupied by complain- ant, and that the defendant was a corporation organized under the laws of this State for the purpose of supplying water to the city of Knoxville and its inhabitants, avers that, having been given the rights to lay its pipes, &c., in the streets and alleys of the city of Knoxville, it is a public corporation, and engaged in a public business. The bill further avers that complainant, soon after he occupied the premises described, commenced taking water from the defendant for domestic purposes, and continued to get water from it until May, 1899, paying in advance therefor, under the rules of the company ; that the hydrant or pipe from which complainant obtained his supply of water was located in his yard, adjacent to his house, and that in May, 1898, he, at his own expense, had a faucet put upon his hydrant, and began to use water for sprinkling his yard and the street adjacent thereto; that for water thus used he paid the additional charges exacted by the com- pany, and continued to use water for both domestic and sprinkling purposes until January 1, 1899; that at this date he called at the office of the company in Knoxville, and informed its officers that he did not desire to take water for sprinkling purposes, but did desire to take water for domestic purposes, and offered then to pay its charges for water to be thus used; that his reason for not wishing the water for sprinkling purposes was that during the winter and spring seasons na- ture’s rains furnished the water free of charge, and he had no need of an artificial supply for sprinkling purposes. . . . The bill further states that the defendant, February 1, 1899, cut off his domestic supply of water altogether from his premises, because he would not pay its un- just charges in advance. It is alleged that complainant’s sole reliance HARBISON v, KNOXVILLE WATER CO. 471 for water is upon the defendant, and that, if it is allowed to cut off the supply, he will be put to great cost, expense, and annoyance in provid- ing himself with the water necessary for cooking, washing, and other domestic purposes. It is said in the bill that complainant is now com- pelled, in order to supply himself with water for domestic purposes, to get the same from his neighbor’s cistern, across the street from him. The charges of the defendant for water for domestic purposes are tendered with the bill. The complainant, however, denies the right of the defendant to cut off his water supply because its charges therefor were not paid in advance. He also denies the right of the defendant company to exact from its patrons, as a condition precedent to furnish- ing them with water, its price or charges for said water for three months in advance, or for any other period in advance. The rules and regula- tions of the company in this regard are assailed as unjust, oppressive, and unreasonable. The prayer of the bill is for an injunction compel- ling defendant to abstain from cutting off the water supply of complain- ant for domestic purposes, and for a mandatory injunction compelling defendant to furnish complainant water. A decree is also asked estab- lishing and declaring complainant’s rights in the premises, under the facts, and especially for a decree compelling the defendant to furnish complainant water for domestic purposes without requiring him to in- jure, remove, or destroy the pipe or faucet placed by him upon his hydrant, and without requiring him to take and pay for the water for the entire season as fixed by defendant, and without requiring him to pay in advance therefor. The rules of the company exacting these requirements are asked to he set aside, as unreasonable and oppressive, and as beyond the power of defendant to establish. An injunction issued under the prayer of this bill. The defendant water company answered the bill in full. Chancellor Kyle heard the case upon the whole record August 3, 1899. He held that the complainant was not entitled to the relief sought in his bill, nor to any relief, and thereupon dismissed the bill, with costs. The defendant thereupon moved the court for a reference to the master to ascertain and report the damages due the defendant, sustained by reason of the injunction sued out. The court, however, was of opinion that this reference should not be executed until after the hearing of the appeal prayed by the complainant. The complainant prayed and was granted an appeal to the Supreme Court, and has assigned errors, The errors assigned are: First. Error in dismissing the bill of com- plainant and in denying him relief. Second. Error in the chancellor in refusing to decree that the defendant could not, as a condition prece- dent to furnishing the complainant water for domestic purposes only, re- quire him to remove or cut off the threads from the nozzle of his hydrant. Third. Error in not holding that the defendant had no right, as a condition precedent to furnishing water for domestic purposes, to require him to pay for water for both domestic and sprinkling purposes in advance. Fourth. Error in not holding that the defendant bad no 472 HARBISON v. KNOXVILLE WATER CO. right, as a condition precedent to furnishing complainant water for sprinkling purposes, to require him to take and to pay for the same for an entire season, extending from April to November of each season. Fifth. Error in not holding that defendant’s rules, under and by virtue of which it assumed the right to do the things above complained of, were unjust, oppressive, harsh, unreasonable, and illegal.t Wuson, J. The law is well settled that water companies organized and invested with the powers given the defendant company, and obli- gated to furnish cities and their inhabitants with water, are in the na- ture of public corporations, engaged in a public business, and are charged with the public duty of furnishing to the cities and their in- habitants water, alike, and without discrimination and without denial, except for ground, and upon sufficient cause. It is equally well set- tled that such companies, while thus charged and obligated, may adopt reasonable rules for the conduct of their business and the op- eration of their plants, and such rules are binding on their patrons, and may be enforced, even to the extent of denying water to those who refuse to comply with them. In support of these propositions, we need only refer to the cases of Crumley v. Water Co., 99 Tenn. 420, 41 S. W. 1058 et seg., and Water Co. v. Wolfe, 99 Tenn. 429, 41S. W. 1060 e¢ seg. and the opinions therein prepared by Mr. Justice Cald- well, where numerous authorities are referred to and commented on. In these cases the rule is announced that a water company cannot re- fuse to furnish water, upon the tender of its charges therefor, on the ground that the applicant is indebted to it for a previous supply of water, which he refuses or is unable to pay for. It is further announced in the latter of the cases that a regulation of the company requiring patrons to keep their hydrants closed, except when using the water, is reasonable, and that a refusal to comply with this rule of the com- pany justifies it in refusing to supply water to the party so refusing, although under legal obligation to do so upon his compliance with its reasonable regulations. The question, therefore, in every case of this character, is the reasonableness or unreasonableness of the rule assailed by the citizen asking for a supply of water, and invoked by the com- pany in justification of its refusal to furnish it. The rules of the com- pany assailed in this case are, in brief: (1) That the citizens shall pay in advance for a quarter of a year for a supply of water for domestic purposes; (2) that, if the citizen take water for sprinkling purposes, he must do so for the season in each year fixed by the company (that is, from April Ist to November 1st), and pay for the same in advance; (3) that the company will not furnish water for domestic purposes, although its charges therefor for the quarter are tendered in advance, unless the applicant also takes water for sprinkling purposes, if the application come in the sprinkling season fixed by it, or unless the ap- plicant removes the appliances of his hydrant, or puts it in such con- 1 This statement of facts is taken from the statement of Wixson, J. — Ep, HARBISON .U. KNOXVILLE WATER CO, 473 dition that he cannot use it to get water for sprinkling purposes. In Tacoma Hotel Co. v. Tacoma Light & Water Co., 3 Wash. 797, 28 Pac. 516, 14 L. R.A. 669, a rule requiring a deposit of money to guarantee the payment of the price of gas used, and authorizing the company to discontinue furnishing gas unless the rule was complied with, was held to be reasonable. In Shiras v. Ewing, 48 Kan. 170, 29 Pac. 320,a rule of the water company to shut off the supply of a patron who wastes it was upheld as reasonable. In People v. Manhattan Gaslight Co., 45 Barb. 186, the rule of the gas company giving it the right to refuse to furnish a customer with gas until he paid his past-due gas bills was held not unreasonable. The holding of the case last cited, we take it, is in conflict with the rule announced in Crumley v. Water Co., supra. The above principle announced in the New York case is also repudiated in the case of Gaslight Co. v. Colliday, 25 Md. 1. See, also, Lloyd v. Gaslight Co., 1 Mackey, 331. The case of Shepard v. Gaslight Co., 6 Wis. 539, and extended note thereto, give a full and clear statement of the law applicable to the duties and powers of gas companies, whose relations to the public are closely analogous to water companies char- tered to supply cities and their inhabitants with water. In this case it was held that the gas company had the right to make such needful rules and regulations for its own convenience and security, and for the safety of the public, as are just and reasonable, and to exact from the consumer of its product a promise of conformity thereto. Under this general principle, it was held that the company had the right to demand security for the gas consumed, or a deposit of money to secure payment therefor. A rule of the company, however, requiring the citizen to agree to free access to his house and premises at all times by the inspector of the company for the purpose of examining the gas appliances, and to remove the meter and service pipe, was held to be too general in its scope, and therefore unreasonable and beyond the power of the company to enforce. A rule of the company reserving to it the right at any time to cut off the communication of the service whenever it found it necessary or deemed it necessary to do so, to pro- tect its works against abuse or fraud, was also held to be unreason- able. In this connection the court said that the company must rely for protection against fraud upon the same tribunals that the law pro- vides for individuals. It was further adjudged in the case that the company had no power to impose a penalty for the violation of one of its regulations, and that it had no right to make submission to such penalty a condition precedent to the right of the citizen to be furnished with gas. See, also, the following additional cases for further illus- tration of the general rule, and its application to particular instances : American Water Works Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447; Williams v. Gas Co., 52 Mich. 499, 18 N. W. 236; State v. Nebraska Tel. Co., 17 Neb. 126, 22 N. W. 237; City of Rush- ville v. Rushville Nat. Gas Co., 182 Ind. 575, 28 N. E. 853, 15 L. R. A. 821, note, and cases cited; Water Co. v. Adams, 84 Me. 472, 24 474 HARBISON UV. KNOXVILLE WATER CO. Atl. 810, and cases cited. In the case last referred to it was ruled that a regulation of the water company, that one year’s rent would be required in all cases, payable in advance, on the 1st day of July each year, was unreasonable and could not be enforced, and therefore a year’s rent could not be collected from a party who had used water only for a few months. It was further ruled in that case that a con- tract to pay for water according to the regulations of the company would not be implied from a knowledge of such regulations, if they were unreasonable. A review of these and other authorities shows, we think, that the regulation of the defendant company requiring a prepayment of a quarter’s rent for a water supply for domestic purposes is reasonable. We are not dealing with a case where the residence of the consumer is metered, and the exact quantity used by him can be measured. In such case the party pays for the water actually consumed by him, at the scale of prices fixed by the company, assuming its charges to be reasonable. In the case at bar the complainant gets his water from a hydrant in his yard, connected with the service pipe of the company, and the rule of the company fixes the quarter rent. Paying this rent, he is limited to the consumption of no definite quantity of water. The only limitation upon his use of it, so far as we gather from the record, is an implied one, that he must not waste it; and, if he does waste it, the company, under the authorities cited, can cut off the supply. But, in a controversy over this, the courts, we take it, are the tribunals to ultimately settle it, and not the company. The rule or requirement of the company that the party taking and paying for water for domes- tic purposes only must put his hydrant appliances in condition for such use only, and not have it in a condition to use water through and from them for sprinkling purposes, unless he pays a reasonable rental for the use for the latter purpose, is, we think, reasonable, and one that the company can enforce. Such a regulation for the sale of its water furnished through hydrants, where the quantity used cannot be or is not measured, is essential to protect the rights and safety of the com- pany, and may be necessary to enable it to meet its obligations to the public, and its duty to furnish water to all inhabitants of the city alike and without discrimination. In determining the reasonableness or un- reasonableness of a rule adopted by a water company chartered to supply a city and its people with water, we must necessarily take into consideration its relation to the city, and its compacted population, and the various elements composing such a population. It has no right to base a rule on the theory that the population, as a whole, is dishonest. But it has the right to adopt a rule which, while giving the honest citizen what he pays for, will prevent the dishonest from getting what he never paid for, and never intended to pay for, and said he never wanted. It may be doubted whether the company has the right to make an arbi- trary rule requiring the citizen to pay for water taken through his hydrant for sprinkling purposes for seven months in the year, when he does BROWN v. WESTERN UNION TELEGRAPH CO. 475 not want it and does not need it for that purpose for that length of time. As we understand the relation of the complainant to the com- pany in respect to this point, under the facts averred in his bill, this question is not necessarily in the case. If, when he wants water for sprinkling purposes, he will put his water appliances in condition for its use for this purpose, and apply to the company for water for this purpose for a less period of time than for the whole sprinkling season fixed by the company, tendering it a reasonable price for the water thus demanded, he will raise and present the question of the reason- ableness or unreasonableness of the rule of the company on this mat- ter assailed by the bill. As we have held, it was the duty of complainant to put his hydrant and its appliances in a condition to get water alone for domestic purposes, when he wanted it only for that purpose. Fail- ing to put them in condition to use water alone for domestic purposes while he wanted water for this purpose alone, he had no right to de- mand that the company furnish him water for domestic purposes and agree to furnish him water for sprinkling purposes at some indefinite time in the future, and for an indefinite period thereafter, as he might call for it or need it. Such a demand, it seems to us, ignores the recip- rocal relations and duties existing between city water companies and the inhabitants of the cities they are organized to supply with water. There is no error in the decree of the chancellor, and it is affirmed, with costs. The other judges concur. BROWN v. WESTERN UNION TELEGRAPH CO. Supreme Court OF THE TERRITORY OF Uta, 1889. [6 Utah, 219.] Jupp, J. This is an action brought by the plaintiff against the de- fendant in the District Court at Ogden City. The facts of the case show that on the 8th of April, 1888, between 5 and 6 o’clock in the evening, the plaintiff, a girl about five years old, had her hand badly mashed, and to such an extent that ber forefinger of the right hand was broken at the middle joint. It seems that she, together with other children, were engaged playing upon the turn-table of the railroad at a station called Promontory, in Box Elder County, Utah Territory, about 50 miles north of Ogden City. That when her father discovered her injury, — there being no physician that could be reached nearer than Ogden City, — he at once telegraphed to that city for a physician. To this telegram he received an answer that the physician could not come. Immediately upon the receipt of the telegram from the physician he sent the follow- ing: ‘* Promontory, April 8th, 1888. To J. R. Brown, Ogden, Utah. Send doctor on first train. Katy has broken her finger. T. G. 476 BROWN v. WESTERN UiTION TELEGRAPH CO. Brown.” This telegram was received by the agent of the defendant at Promontory, who was likewise the agent of the railroad, at 6.30 o’clock, Promontory time, — 7.50 Ogden time. Trains left Ogden, going west, one at 7p. m., and one at 11.30 at night. This despatch was not delivered by the company to Brown until 7.35 a.m. the next day. The testimony sufficiently shows that if the despatch had been delivered to Brown at Ogden, that he would have procured a physician to go to Promontory, who would have left on the 11.30 train, and arrived at Promontory at 2 o’clock. As it was no physician reached the plaintiff that night, and the next morning her father took her upon the train, and arrived at Ogden at 10 o’clock on the morning of the 9th. When the father arrived at Ogden he at once took her to the office of a physician and surgeon by the name of Bryant, who found, as he states, that the fore part of the finger, from where it was broken, was, to use his own language, ‘‘dead;” that by twisting the finger around, or by some other means not entirely described, the circulation had been strangled; and that he found it in such a condition that it was impossi- ble to re-establish circulation, and that amputation was necessary, and he amputated it at the middle joint. The action of the plaintiff against the defendant is founded upon the idea that if the despatch sent to Brown had been delivered in proper time a physician would have arrived at Promontory at the hour of 2 o’clock that night after the accident, and that the finger, by proper surgical treatment, could have been saved, and the plaintiff saved of much pain and suffering. This theory of the case is put in issue by the defence and the ground taken is, first, that the proof does not show that the final amputation of the finger was the result of any delay in procuring a physician, and that it was probably the result of the accident which so badly damaged the finger; and that in any event amputation would have been necessary, and that the delay and negligence, if any, of the defendant, was not the proximate cause of the loss of the finger, and the pain and suffer- ing; and therefore the defendant alleges that it is not liable; and for further defence it sets up that the manager of the defendant company in charge of the office in Ogden had established certain rules with reference to the delivery of despatches from that office, and that those rules were reasonable, and that, all other questions aside, it is not liable. It alleges and shows by the proof that, the day of the reception of this despatch at Promontory and its transmission to Ogden City being Sunday, its office hours were from 8 to 10 o’clock a. m. and 4 to 6 P.M, and that on week-days from 7.30 a.m. to 8 p.m. That this despatch, being received at Ogden at 8 o’clock and 9 minutes, was more than two hours after the office hours established for this office, and, to use the language of the brief of the counsel for the defendant, ‘ these hours being reasonable, the company was not bound to deliver the despatch received outside of the hours, no matter what the conse- quences may have been.” So far as the first point of the defence is concerned, — that is, ** that BROWN v. WESTERN UNION TELEGRAPH Co. 477 the proof does not sufficiently show that the result to the plaintiff would have been different had the despatch been delivered,” — this court is content to observe that all those matters were submitted fairly, and under proper instructions by the trial judge to the jury, and, the jury having found against the defendant, the rule of this court is that it will not disturb the verdict of a jury where the evidence tends to support it, and under that rule this case falls. But the more important question arises on the ground as to the right of the defendant to establish rules for its guidance in the delivery of telegrams. It will be remembered that this telegram was received at Promontory, and the money paid for its transmission to the Ogden office, and that it was transmitted in due time to the last-named office; and the only complaint, when the case is stripped of verbiage, is that the defendant company were guilty of negligence in failing to deliver this telegram when it reached Ogden City from that office to Brown, the person to whom it was sent; and the direct defence of the defendant is that it was received after its office hours, which it had the right to establish, and that therefore there was no negligence. In other words, the defendant says ‘‘ that we have the right to establish hours for the transmission and delivery of despatches, and we have the right to judge of the reasonableness of those hours, and that, so long as we are within the observance of the rules and hours which we have established, we are guilty of no negli- gence ;” the argument being that the public is bound to take notice of the hours and rules that ‘‘ we have established for business.” Can this contention be sanctioned, is the important question which arises in this case. Whether, if a telegram were tendered the company to be sent by them out of their office hours, they would be bound to receive and send it, is a question with which the court is not now dealing, and upon which it expresses no opinion; but we are of the opinion that, having received and transmitted this despatch, the measure of diligence to be applied to the conduct of the defendant, with reference to its de- livery, is not to be, and cannot be, decided by any rules or hours that the company may see fit to establish. Whether in the individual case the rules of the company are or are not reasonable, or whether it is or is not guilty of negligence in failing to deliver a message, is a question which the court will not allow the company to decide. It is a funda- mental rule in the administration of remedial justice that courts claim and exercise for themselves the right to adjudge in each individual case as it may be presented the question of whether the parties sued are or are not guilty of wrong, with reference to the particular trans- actions under investigation. Whether the rules established by the defendant are reasonable or not, as we have said, is a question to be decided by the court or jury, as the case may be, in each individual case as it arises. It will not do to say that, because the company has the right to establish rules for its government, therefore those rules determine the question of negligence or no negligence. It must be remembered that this defendant, in offering its services to the public, 478 BROWN v. WESTERN UNION TELEGRAPH CO. and receiving the money of people for sending despatches from one point to another, is, to say the least of it, occupying the position of a public institution. In the language of Chief Justice Waite, in the case of Munn v. Illinois, 94 U. S. 113: ** When the owner of property de- votes 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 for the common good, as long as he maintains the use.” This defendant company, by its invita- tion to the public to use its lines for the transmission of messages, impliedly grants to the public an interest in the use of its wires, and, having done this, like all other institutions of like character, its rules and regulations are at all times open to inquiry as to their reasonable- ness, and its conduct is at all times open to inquiry, as to whether it is guilty of negligence or not. We are of the opinion that ‘the question in this case of the reasonableness of these rules of the company was properly submitted to the jury ; and we are also of the opinion that the question of whether this company was guilty of negligence in failing to deliver the despatch was properly submitted to the jury; and in both instances the jury found against the defendant. In order that there may be no misunderstanding as to the judgment of the court in the case, we lay down the following rule as applicable to the facts in the case: It will be observed that this despatch was in plain, unambiguous language. It said: ‘*Send doctor on first train. Katy has broken her finger.” When that despatch was received at Promontory for transmission, and when it was received at Ogden by the agents of the defendant, the supreme importance of prompt and active service upon the part of the defendant’s agents in delivering that telegram was made manifest from its very reading, and we hold that the degree of diligence required of the defendant was equal in impor- tance to the emergency of the occasion, and this without any regard to rules and hours established by the company, as testified to in this regard. It must be kept in mind that this company at Promontory, by its agent, received this despatch, and received the money for its transmission, and that it was transmitted to the office at Ogden; that this despatch was to the effect that a child was suffering with a broken finger; that it was important that a physician and surgeon be immedi- ately sent; and to allow the defendant, upon the pretext that it was received out of its office hours, to let it lie there until 7.35 the next morning, and then to excuse it from delivery under such circumstances would be the greatest injustice. It would be to put the public at the mercy entirely, or we may say the caprice and will, of public institu- tions, to which they are compelled to resort in the transaction of business. So far as the receipt and delivery of telegrams with refer- ence to commercial transactions are concerned, we do not express an opinion, but we do not hesitate to say that when a despatch shown to be received by the company for transmission, which upon its face demonstrates the importance of delivery, as in this case, the degree of WESTERN UNION TELEGRAPH CO. v. NEEL. 479 diligence is to be in proportion to the exigencies of that case. ‘Nor has the defendant the right to complain at this. It sets itself up as a transmitter of messages for the public, and it receives franchises from the State, in order that it may do business ; it receives money from the public for the transmission of messages, and, like all other institutions, it should be willing to deal with the public in a fair and just manner, and not undertake to screen itself behind mere office rules and hours, which in all probability are made for the mere convenience of the employees ; and especially in cases like this, where human pain, suffer- ing, and deformation hang upon prompt action. Nor are these views new, but find ample authority in adjudged cases of high respectability. As a sample we cite the cases of Telegraph Co. v. Broesche, 10 8. W. Rep. 734, and Telegraph Co. v. Sheffield, 10 S. W. Rep. 752. Other cases could be cited, but the foregoing are sufficient. The case was fairly submitted by the court to the jury, under instructions in some respects more favorable to the defendant than the law warranted, and we are satisfied that substantial justice has been reached, and the judgment of the court below will be affirmed, with the costs. WESTERN UNION TELEGRAPH CO. v. NEEL. Supreme Court oF Texas, 1894. [86 Tex. 368.] Gaines, J. ‘Upon the trial of the above entitled cause in the court below, it was shown, that Jodie Roden, a sister of the appellee Ella Neel, was lying at the point of death at her home near Hope, in Lavaca County ; that a brother of appellee went to the town of Yoakum, where, appellant had an office, about 4 o’clock in the morning of July 29, 1891, and caused a telegram to be sent to Cuero to be addressed to Mrs. Neel, care of the Dromgoole Hotel, asking her to come to her sister at once. The telegram was received at Cuero about 4.50 o'clock, but was not delivered until about 10 o’clock on the same morning. Mrs. Neel set out at once to go to her sister, but Mrs. Roden had died when Mrs. Neel arrived. If the telegram had been delivered promptly when it was received at Cuero, Mrs. Neel could have reached her sister before she died. “In defence of this suit for failure to deliver said telegram promptly, the appellant pleaded and proved, that its office hours at Cuero were from 7 o’clock a.m. to 7 o’clock Pp. M., and that the messenger did not reach the offiee until 7 o’clock a. m.; and there was evidence that after this hour the telegram was promptly delivered; and it alleged that the fixing of office hours was a reasonable regulation, that it was permitted by law to make. 480 WESTERN UNION TELEGRAPH CO. v. NEEL. “ The court charged the jury, in effect, that such regulation was proper, but that the sender of the telegram must either know or be reasonably presumed to know of it, or be informed thereof by defendant’s agent. ‘¢The defendant then requested the following instruction to the jury: ‘All messages to be sent by telegraphic wire are accepted subject to the delays ordinarily incurred during transmission; and if the jury believe from the evidence that the defendant company had reasonable oftice hours, during which it delivered telegraphic messages in the town of Cuero, it was not by law compelled to deliver messages outside of said hours ; and such reasonable business hours were implied in the contract between the plaintiff and defendant company, if such contract has been proved, unless specially stated or understood by the parties to said contract that the services to be performed should be performed other- wise than in the usual manner and subject to the usual rules under which the company does business.’ “ The instruction asked by the defendant was pertinent, because if the message had been delivered within a reasonable time after 7 o’clock, the plaintiff would probably not have had time to see her sister before she died.” Upon the foregoing statement, which we have quoted from the cer- tificate of the Court of Civil Appeals, they submit to us the following questions: ‘‘ Believing that it has never been authoritatively settled by our Su- preme Court, that it is the duty in such case of the telegraph company to give notice to the sender of a despatch of the office hours at the receiving office, provided they are established and reasonable, and that the message will not be delivered outside of such office hours, we certify for the decision of the Supreme Court, which arises on appeal to this court, whether or not, in the absence of proof of a special con- tract to send and deliver at once, and the absence of actual notice to the sender of the regulation and office hours, the undertaking of the company was to deliver the message at once. ‘* Should the instruction have been given?” We are of the opinion, that under the circumstances stated in the question, it was not the duty of the company to deliver before its office hours, and that the requested charge should have been given. A tele- graph company, from the necessity of the case, must have power to make some regulations for the conduct of its business; and when such regulations are reasonable, it is generally conceded that a party who contracts with such a company for the transmission of a message is bound by them, provided he has notice of their existence. But whether or not he is bound when he has no notice, is a question which is by no means settled. We concur with the Court of Civil Appeals in holding that the question has never been authoritatively determined in this court. Under the peculiar circumstances of the case, it was held in Western Union Telegraph Company v. Broesche, 72 Tex. 654, that the fact WESTERN UNION TELEGRAPH CO. v. NEEL. 481 that the company’s office at the delivering station was closed at the time the despatch was transmitted, did not exonerate it from liability. But the agent of the company who accepted the message for trans- mission testified, that he knew that the purpose was to notify the person addressed of the expected arrival of the dead body of the plain- tif’s wife at the railway station, and that unless it was delivered on the same evening the corpse would reach the station before the tele- gram. Having received the plaintiff's money, knowing his object in sending the message, and that that object could only be attained by prompt transmission and delivery to the person addressed, it could not legally urge its rales as to office hours as an excuse for not delivering the despatch until the next day. It was properly held estopped to deny that the contract was for an immediate delivery. In the Bruner case, 19 Southwestern Reporter, 149, it would seem that the defence was set up, that at the time the despatch was taken for transmission the office to which it was to be sent was closed; but we think it is apparent from the opinion that the point before us was not involved. The court in their opinion say: ‘‘ Appellant accepted the telegram and undertook to deliver it about 9 o’clock at night. It cannot be excused in its failure to perform the contract becanse its office was practically closed against Alvin, especially since it does not appear that any effort was made to send the message until next morn- ing, when it was too late for the appellee to catch the train to Galveston.” Upon the more general question, whether a party to a contract with a telegraph company is bound by the rules and regulations of the com- pany of which he has no notice, the authorities are not in accord. In Birney v. Telegraph Company, 18 Md. 341, the court say, that a person delivering a message for transmission “ is supposed to know that the engagements of the company are controlled by those rules and regulations, and does himself in law engraft them in his contract of bailment, and is bound by them.” The doctrine is reaffirmed in Tele- graph Company v. Gildersleeve, 29 Md. 282; but is questioned by Judge Thompson in his work on the Law of Electricity (section 212). The law of Maryland expressly provides that telegraph companies may make rules and regulations, and the opinions in the cases cited lay stress upon that fact; but it seems to us, that in the absence of a statute the power is necessarily implied. In Given v. Telegraph Company, 24 Fed. Rep. 119, it was held, in effect, that a telegraph company could establish reasonable office hours, and that the sender of a message was presumed to contract with refer- ence to such a regulation, although it was not known to him at the time that he entered into the contract. In Telegraph Company v. Harding, 103 Ind. 505, the same rule was applied in an action for the recovery of a penalty given by statute for the failure to make prompt delivery of a message; but the court ex- pressly decline to say that it ought to apply to an ordinary suit for the 31 482 WESTERN UNION TELEGRAPH CO. v. NEEL. recovery of damages for the breach of a contract to transmit a tele- gram. The court quote from the opinion of Mr. Justice Miller in Given’s case, supra, as follows: ‘* Nor do we see that it is the duty of the Western Union Telegraph Company to keep the employees of every one of its offices in the United States informed of the time when any other office closes for the night. The immense number of these offices over the United States, the frequent changes among them as to the time of closing, and the prodigious volume of a written book on this subject, seems to make this onerous and inconvenient to a degree which forbids it-to be treated as a duty to its customers, for the neglect of which it must be held liable for damages. There is no more obliga- tion to do this in regard to offices in the same State than those four thousand miles away, for the communication is between them all and of equal importance.” In Behm v. Telegraph Company, 8 Bissell, 131, Judge Gresham, in charging the jury, recognized the doctrine, that reasonable regulations as to the number of servants at small stations should be considered in determining the question of diligence in the delivery of a message, and that the absence of a messenger boy at dinner might be a just excuse for delay in such delivery. But see Tel. Co. v. Henderson, 89 Ala. 510. Such are the cases bearing immediately upon the question submitted for our determination. There are, however, some railroad cases which seem to involve a similar principle. The contract of a railroad com- pany with a passenger is to carry him to his point of destination under the contract without unreasonable delay. Yet it is held, that a passen- ger who procures a ticket has no right to demand an immediate carriage, and must wait till the departure of the regular trains. Hurst v. Rail- way, 19 C. B. N.S. 310; Gordon v. Railway, 52 N. H. 596. There are delays which grow out of the necessary regulation of the business, for which the carrier cannot be held responsible. If a passenger, on the other hand, be misled by the company’s time table, and buy his ticket upon the faith of it, the company may be held liable for not carrying him according to the table. In an English case of this char- acter the action was sustained on the ground of deceit. Denton v. Railway, 5 El. & Bl. 860. A limit as to the number of its trains and intervals of time more or less extended are obviously indispensable to the conduct of the busi- ness of a railway company. So also with telegraph companies. Although not absolutely necessary, some regulations as to office hours and as to the number of employees at each office are reasonably re- quired for the successful management of their business, both in their own interest and in that of the public in general. It may be to the interest of some individual, upon a particular occasion, or ever at all times, that every office of a telegraph company should be kept open at all hours, and that the working force should be sufficient to receive and deliver a despatch without a moment’s delay. So also, it may be to the interest of a very few that an office should be kept at some point SEARS v. EASTERN RAILROAD. 483 on the line where an office could not be maintained in any way without a loss to the company. If in the first instance the company should be required to keep the necessary servants to keep its business going at all hours, it would result in the necessity of closing many offices or in the imposition of additional charges upon its customers in general, in order to recoup the loss incident to their being maintained. So on the other hand, if they should be required to keep offices wherever it might result to the convenience of a few persons, additional burdens upon the general public would in like manner result. It follows, we think, that the public interest demands that .these companies should have the power to establish reasonable hours within which their business is to be transacted, and that individual interests must yield. It seems to us, that the reasonableness of a regulation as to hours of business is sufficiently obvious to suggest to the sender of a message who desires its delivery at an unusually early hour for busi- ness, the propriety of making inquiry before he enters into the contract. In the application of the principles of law to new cases, we should proceed with caution, and therefore we deem it proper to say that our ruling is restricted to the question submitted. Whether the rule we have announced should be applied to other regulations by telegraph companies, we leave for decision when the question may arise. This opinion will be certified in answer to the questions submitted. SEARS v. EASTERN RAILROAD. Supreme JupicraL Court or MassacnHusetts, 1867. [14 Allen, 433.] Action containing one count in contract and one in tort. Each count alleged that the defendants were common carriers of passengers between Boston and Lynn, and that on the 15th of September, 1865, the plaintiff was a resident of Nahant, near Lynn, and the defendants before then publicly undertook and contracted with the public to run a train for the carriage of passengers from Boston to Lynv at nine and one half o’clock in the evening each week day, Wednesdays and Satur- days excepted ; and the plaintiff, relying on said contract and under- taking, purchased of the defendants a ticket entitling him to carriage upon their cars between Boston and Lynn, and paid therefor twenty- five cents or thereabouts, and on a certain week day thereafter, neither Wednesday nor Saturday, namely, on the 15th of said September, pre- sented himself on or before the hour of nine and a half o’clock in the evening at the defendants’ station in Boston and offered and attempted to take the train undertaken to be run at that hour, as a passenger, but the defendants negligently and wilfully omitted to run the said train at A484 SEARS VU. EASTERN RAILROAD. that hour, or any train for Lynn, till several hours thereafter ; wherefore the plaintiff was compelled to hire a livery carriage and to ride therein to Lynn by night, and was much disturbed and inconvenienced. The following facts were agreed in the Superior Court. The defend- ants were common carriers, as alleged, and inserted in the Boston Daily Advertiser, Post, and Courier, from the 15th day of August till the 15th day of September an advertisement announcing the hours at which trains would leave Boston for various places, and among others that a train would leave for Lynn, at 9.30 P.M., except Wednesdays, when it would leave at 11.15, and Saturdays, when it would leave at 10.30. The plaintiff, a resident of Nahant, consulted one of the above papers, about the 9th of September, 1865, for the purpose of ascertain- ing the time when the latest night train would start from Boston for Lynn on the 15th, in order to take the train on that day, and saw the. advertisement referred to. On the 15th, which was on Friday, he came to Boston from Lynn in a forenoon train, and in the evening, shortly after nine o’clock, presented himself at the defendants’ station in Boston for the purpose of taking the 9.30 train for Lynn, having with him a ticket which previously to September 9th he had purchased in a package of five. This ticket specified no particular train, but pur- ported to be good for one passage in the cars between Boston and Lynn during the year 1865. He learned that this train had been post- poned to 11.15, on account of an exhibition, and thereupon hired a buggy and drove to Lynn, arriving there soon after 10.30. He had seen no notice of any postponement of this train. He once, in 1864, observed a notice of postponement, and heard that the defendants sometimes postponed their late trains. : For several years before 1865 the defendants’ superintendent had been accustomed occasionally to postpone this train, as often as from once to three times a month, for the purpose of allowing the public to attend places of amusement and instruction, and also upon holidays and other public occasions in Boston; giving notice thereof by hand- bills posted in the defendants’ cars and stations. On the 13th of Sep- tember, 1865, in pursuance of this custom, he decided to postpone this train for September 15th till 11.15, and on the same day caused notice thereof to be printed and posted in the usual manner. The train was so postponed, and left Boston at 11.15, arriving at Lynn at 11.45. The defendants offered to prove, if competent, that this usage of de- taining the train was generally known to the people using the Eastern Railroad, and that the number of persons generally going by the post- poned train was larger than generally went by the 9.30 train, and was larger on the evening in question; but at the station in Boston there were persons complaining of the postponement of the train, and leaving the station. It was agreed that, if on these facts the plaintiff was entitled to re- cover, judgment should be entered in his favor for ten dollars, without costs. Judgment was rendered for the defendants, and the plaintiff appealed to this court. SEARS v. EASTERN RAILROAD. 485 J. L. Stackpole, for the plaintiff. C. P. Judd, for the defendants. If the plaintiff can maintain any action, it must be upon the count in contract. There was no proof of deceit. Tryon v. Whitmarsh, 1 Met.1. What then was the nature of the contract between the parties? ‘The ticket merely secured one pas- sage at any time in 1865. This was a contract to carry the plaintiff in the usual way of transporting passengers. It was usual to postpone this train, in order to give the public greater accommodations. The plaintiff was bound by this usage, whether he knew it or not. If he neglected to inquire as to the custom, it is his own fault. Van Sant- voord v. St. John, 6 Hill, 160; Cheney v. Boston & Maine Railroad, 11 Met. 121; Clark v. Baker, Ib. 186; City Bank v. Cutter, 3 Pick. 414; Ouimit » Henshaw, 35 Vt. 616, 622. If the advertisement wds an offer to carry passengers at 9.30, this offer was withdrawn on the 18th by due notice. M’Culloch v. Eagle Ins. Co., 1 Pick. 278; Boston & Maine Railroad v. Bartlett, 83 Cush. 227. The acquiescence in the usage of the defendants by the public for years shows that the notice was sufficient. The plaintiff should have made further inquiry. Booth v. Barnum, 9 Conn. 290; Taylor v. Stibbert, 2 Ves. Jr. 487; Taylor v. Baker, 5 Price, 306. Cuapman, J. If this action can be maintained, it must be for the breach of the contract which the defendants made with the plaintiff. He had purchased a package of tickets entitling him to a passage in their cars for each ticket from Boston to Lynn. This constituted a contract between the parties. Cheney v. Boston & Fall River Railroad, 11 Met. 121; Boston & Lowell Railroad v. Proctor, 1 Allen, 267; Najac v. Boston & Lowell Railroad, 7 Allen, 329. The principal question in this case is, what are the terms of the contract? The ticket does not express allof them. A public advertisement of the times when their trains run enters into the contract, and forms a part of it. Denton v. Great Northern Railway, 5 El. & Bl. 860. It is an offer which, when once publicly made, becomes binding, if accepted before it is retracted. Boston & Maine Railroad v. Bartlett, 8 Cush. 227. Advertisements offering rewards are illustrations of this method of making contracts. But it would be unreasonable to hold that advertisements as to the time of running trains, when once made, are irrevocable. Railroad corpora- tions find it necessary to vary the time of running their trains, and they have a right, under reasonable limitations, to make this variation, even as against those who have purchased tickets. This reserved right enters into the contract, and forms a part of it. The defendants had such a right in this case. But if the time is varied, and the train fails to go at the appointed time, for the mere convenience of the company or a portion of their ex- pected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change unless he has had reasonable notice of it. The defendants acted upon this view of their duty, and gave certain notices. Their trains had been advertised 486 SEARS v. EASTERN RAILROAD. to go from Boston to Lynn at 9:30 Pp. m., and the plaintiff presented himself, with his ticket, at the station to take the train, but was there informed that it was postponed to 11.15. The postponement had been made for the accommodation of passengers who desired to remain in Boston to attend places of amusement. Certain notices of the change had been given, but none of them had reached the plaintiff. ‘They were printed handbills posted up in the cars and stations on the day of the change, and also a day or two before. Though he rode in one of the morning cars from Lynn to Boston, he did not see the notice, and no legal presumption of notice to him arises from the fact of its being posted up. Brown v. Eastern Railroad, 11 Cush. 101; Malone v. Boston & Worcester Railroad, 12 Gray, 3888. The defendants pub- lished daily advertisements of their regular trains in the Boston Daily Advertiser, Post, and Courier, and the plaintiff had obtained his information as to the time of running from one of these papers. If they had published a notice of the change in these papers, we think he would have been bound by it. For as they had a right to make changes, he would be bound to take reasonable pains to inform himself whether or not a change was made. Soif in their advertisement they had reserved the right to make occasional changes in the time of running a particu- lar train, he would have been bound by the reservation. It would have bound all passengers who obtained their knowledge of the time-tables from either of these sources. But it would be contrary to the elemen- tary law of contracts to hold that persons who relied upon the adver- tisements in either of those papers should be bound by a reservation of the offer, which was, without their knowledge, posted up in the cars and stations. If the defendants wished to free themselves from their obligations to the whole public to run a train as advertised, they should publish notice of the change as extensively as they published notice of the regular trains. And as to the plaintiff, he was not bound by a notice published in the cars and stations which he did not see. If it had been published in the newspapers above mentioned, where his in- formation had in fact been obtained, and he had neglected to look for it, the fault would have been his own. The evidence as to the former usage of the defendants to make occa- sional changes was immaterial, because the advertisement was an ex- press stipulation which superseded all customs that were inconsistent with it. An express contract cannot be controlled or varied by usage. Ware v. Hayward Rubber Co., 3 Allen, 84. The court are of opinion that the defendants, by failing to give such notice of the change made by them in the time of running their train on the evening referred to as the plaintiff was entitled to receive, violated their contract with him, and are liable in this action. Judgment for the plaintiff 1 Compare: Denton v. Gt. No. R. KR, 5 E. & B. 860; Savannah Co. v. Berrand, 58 Ga. 180; Pittsburgh Co. v. Nuzum, 50 Ind. 141; Duling v. R. R., 66 Md. 120; Clay- brook v. R. R., 12 Mo. 482; Gordon» R. R., 52 N. H. 596 ; Purcell v. R. R., 108 N. C. 414; Wilson v. R. R., 63 Miss. 352; Platt ». R. R., 63 Mo. 511. —Ep. CHICAGO, B. & Q RB. CO. v. GUSTIN, 487 CHICAGO, B. & Q. R. CO. ». GUSTIN. Supreme Court or Nepraska, 1892. [35 Neb. 86.1] Maxwe., C. J. ... The plaintiff below offered in evidence the following bill of lading: © 12-14-86-150 M. Form 71. ‘¢ CLEVELAND, CoLumBus, Cincinnati & INpIanapoiis Ry. Co. “ Epe@ar Hix, Gen’l Freight Agent, Cleveland, O. “A.S. Warts, Assist. Gen’l Freight Agent, Cleveland, O. This bill of lading to be presented by | CLevELAND, O., 9-8, 1888. consignee without alteration or erasure. 3 Received from the Eberhard Manf. Co., in apparent good order, A. J. Gustin, Lincoln, Neb. except as noted, the packages This bill of lading contracts rates from described below (contents and —to Wann, Ill, via ——, at’ 25c. per value unknown), marked and con- lot and charges advanced at $——. Marxs, ConsiGnez, Erc. signed as per One box iron castings . 2. 6. 1. 6 ee ee ee ee SL D5 (Printed across the end: “C., C., C. & I. Ry. Gen’l Freight F. A., Pivi Sch. 8, 1888. E.L. Campbell, per ——B. This stamps receipts for freight but not for rates. Rate, 292 pr. 100 lbs. Wann, Ill., to Lincoln, Neb. Guaranteed by Western road.”) which the C., C., C. & I. Ry. agrees to transport with as reasonable despatch as its general business will permit to destination, if on its road, or otherwise to the place on its road where the same is to be delivered to any connecting carrier, and there deliver to the consignee or to such connecting carrier upon the following terms and conditions, which are hereby agreed to by the shipper, and by him accepted as just and reasonable, and which are for the benefit of every one over whose line said goods are transported : “1st. Neither this company, nor any other carrier receiving said property to carry on its route to destination, is bound to carry the same by any particular train, or in time for any particular market, and any carrier in forwarding said property from the point where it leaves its line ig to be held as a forwarder only. - ‘©d. Neither this company nor any such other carrier shall be liable for any loss of or damage to said property by dangers or acci- dent incident to railroad transportation, or by fires or floods while at 1 This case is abridged.—Ep. 488 CHICAGO, B. & Q. R. CO. v. GUSTIN. depots, stations, yards, landings, warehouses, or in transit. And said property is to be carried at owner’s risk of leakage, breakage, chafing, loss in weight, or loss or damage caused by changes in weather, or by heat, frost, wet, or decay, and if any portion of its route to destination is by water, of all damages incident to navigation. ‘‘ 3d. Responsibility of any carrier shall cease as soon as said property is ready for delivery to next carrier or to consignee, and each carrier shall be liable only for loss or damage occurring on its own line, and in case of loss or damage to such property for which any carrier shall be responsible, its value or cost at time and place of shipment shall govern settlement therefor, unless a value has been agreed upon with shipper or is determined by the classification upon which the rate is based, in which case the value so fixed by agreement or classification shall govern; and any carrier liable on account of loss of or damage to such property shall have the benefit of any insurance effected thereon by or on account of the owner or consignee thereof. ‘¢4th. Such property shall be subject to the necessary cooperage and bailing at owner’s cost; and if the owner or consignee is to unload said property, the delivering carrier may make a reasonable charge per day for the detention of any car after the same has been held twenty-four hours for unloading, and may add such charge to the freight due and hold said property Ses to a lien therefor.” This bill was abjested for “the reason that — was no evidence of its authenticity and because the company could not bind the C., B. & Q. Railway Company. These objections were overruled and the Pill received. It will be observed that the answer of the railroad company admits receiving at Wann, Illinois, a box of saddlery hardware weighing 125 pounds, admits in effect all that is claimed in the petition, except that they do not wrongfully withhold the same, and it alleges that the hard- ware is a kind classified as No. 2 in the schedule. There was no error in admitting the bill of lading, therefore. In a case of this kind, where the employment is not denied, itis probable that the bill is prima facie admissible in evidence, and a denial of its genuineness must be made by the adverse party to require proof on the point, but it is un- necessary to determine that point. It appears from the testimony that goods are not infrequently labelled improperly. Thus, common hard- ware in boxes is placed in the fourth class, while saddlery hardware is classified as No. 2; that the companies have inspectors to open the packages and place the goods in the proper class; that in this instance the inspector opened the box, which was filled with Japanned iron rings, and, as Mr. Gustin had been engaged in the saddlery business, he at once seems to have assumed that the rings were designed for that business, and at once classified the goods as No. 2, the freight on which is eighteen cents per hundred. It is clearly shown that the rings are a new patent designed for a neck yoke for horses, and in no way PHILLIPS v. SOUTHERN RAILWAY. 489 connected with saddlery hardware. Upon this point there is practically no dispute, so that the classification No. 4 is correct, and the rates as shown by the schedule are less than sixty-two cents per hundred, and as Mr. Gustin had offered to pay that sum, he was entitled to recover. There is no error in the record, and the judgment is A firmed. The other judges concur.! oF PHILLIPS v. SOUTHERN RAILWAY. Supreme Court or Nortu Carorina, 1899. [124 NW. C. 123.2] Furcues, J. On the 15th of December, 1896, the plaintiff, intending to take the next train on defendant’s road to Hot Springs, in Madison County, entered the defendant’s waiting-room at Asheville about eight o’clock at night, with the intention of remaining there until the depar- ture of the next train on defendant’s road for Hot Springs, which would leave at 1.20 o’clock of the next morning. He was informed by de- fendant’s agent, in charge of the waiting-room, that according to the tules of the company, she must close the room and that he would have to get out. The plaintiff protested against this, and refused to leave. But when the clerk of defendant’s baggage department (Graham) came and told him that he could not stay, and made demonstrations as if he would put him out, he left; that he had no place to go where he could be comfortable; that the night was cold; that he was thinly clad and suffered very much from this exposure, and took violent cold there- afrom, which ran into a spell of sickness from which his health has been permanently injured. It was in evidence, and not disputed, that the rules of defendant com- pany required the waiting-room to be closed after the departure of defendant’s train, and to remain closed until thirty minutes before the departure of its next train; that, under this rule of the defendant, it was time to close the waiting-room when the plaintiff was ordered to leave the room, and he was informed that it would not be opened again until thirty minutes before the departure of defendant’s next train at 1.20 o’clock of the next morning. . . . So the only question that remains is as to whether the defendant had the right to establish the rule for closing the waiting-room, and was the rule a reasonable one? And we are of the opinion that the de- fendant had the right to establish the rule and that it was a reason- able one. Webster v. Fitchburg R. Co., 161 Mass. 298; 34 At. Rep. 1 Compare: Savannah Co. v. Bundick, 94 Ga. 775; Smith v. Findley, 34 Kans. 316; Wellington v. R. R., 107 Mass. 582 ; Express Co. v. Koerner, 65 Minn. 540; Baldwin v. 8. S. Co., 11 Hun, 496; New York Co. v. Gallaher, 79 Tex. 685. —Ep. 2 Part of the opinion is omitted. — Ep. 490 ORNE v. BARSTOW. 157; 1 Elliott on Railroads, sections 199 and 200; 4 Elliott on Rail- roads, section 1579. The rule would probably be different in the case of through passen- gers, and in the case of delaycd trains; but if so, these would be exceptions and not the rule. Waiting-rooms are not a part of the ordinary duties pertaining to the rights of passengers and common carriers. But they are established by carriers as ancillaries to the business of carriers and for the accommo- dation of passengers, and not as a place of lodging and accommodation for those who are not passengers. This being so, it must be that the carrier should have a reasonable control over the same, or it could not protect its passengers in said rooms. ‘There is error. New trial. ORNE v. BARSTOW. Supreme Jupiciat Courr or Massacuusetts, 1900. [175 Mass. 193.] Homes, C. J. This is a petition to enforce a mechanic’s lien. At the trial the copy of the statement put in evidence by the petitioners bore the indorsement ‘‘ A copy of mechanic’s licn, filed with Middlesex So. District Registry of Deeds, Feb. 14, 1898, at 8 h. O m. A. m. Recorded book 2633, page 521. Attest: Thos. Leighton, Jr., Ass’t Register.” It is agreed that this was not within the thirty days allowed for filing such statements by Pub. Sts. c. 191, § 6, but evidence was admitted which showed the following facts. The office hours of the registry on Saturdays were from 8 a. mM. to 1 Pp. m. On Saturday, February 12, which was within the thirty days, between half-past one and two, Pp. M., the petitioners’ attorney, having got into the office after it was closed, tendered the statement and tlie fee to the register, who was there but refused to receive it. By the register’s suggestion the attorney thereupon put the statement and fee into an envelope which the register gave him, was escorted to the door by a clerk, and after the door was closed pushed the envelope under the door. Jle was watched through a glass panel by the clerk, and the fair inference is that the clerk took the envelope, which was on the register’s desk on Monday morning. The court ruled not only that the certificate of the register as to the time of filing was conclusive, but also that what was done by the attorney did not amount to a filing ; and the case is here on exceptions. There is no doubt that the register’s certificate was evidence, if not conclusive evidence, of the time of filing. Wood v. Simons, 110 Mass. 116; Fuller v. Cunningham, 105 Mass. 442. The statement was left ORNE 7. BARSTOW. 491 for record. Pub. Sts. 0. 191, § 7. The revister was required to note the time of reception, and every instrument is considered as recorded at the time so noted, Pub. Sts. « 24, § 15. The register is also to certify the time upon the instrument. Pub. Sts. @ 21, § 21. We do nol think that the statulos mean to distinguish between receiving, re- cording, and fling, so fur as this case is concerned. Wo perecive no inconsistency in principle with these general provisions in Pub, Sts. ® 1417, § 12, and «192, § 4, by which certain instruments are to be gonsidered as recorded at the time when left for the purpose in the olork’s offlee, It is assumed that tho time of leaving and the time noted aro the same, or, in other words, that the clerk will note the truo time, But tho last named sections refer to different instru- ments and to city or town clorks, and do not affect the present case. Neither do we seo anything adverse to tho conclusiveness of the regis- ter's certificate in decisions that a court is not prevented by its own record, Which it has power to correct if erroneous, from looking into the facts as to when a petition was filed. Goulding ¢. Smith, 114 Mass. 487, 489; Clemens Electrical Manuf. Co. vu. Walton, 168 Mass. 304. But in the caso at bar the parties very properly avoided raising a question as to the conduct of a register who meant to do his duty (Tracy ve. Jenks, 15 DPiek. 165, 468) by going into the facts, and the judgo ruled upon them irrespective of the question whether the cer tifleate was conclusive as it stood. Tf the judge had ruled that the facts did amount to a filing, nnd the ruling had been accepted by the parties, undoubtedly the register would have amended his certificate so as to avoid concluding the petitioners under the other ruling of the judge. At lenst there was such a possibility that the register might amend that wo cannot treat the ruling as immaterial on the ground that, however the facts might be, the petitioners could not contradict the register’s certificate as to the time. It was not argued that the register would not have power to amend under the same conditions as those on which other officers may amend records. See Baldwin v. Marshall, 2 Humph, 116; Sellers ¢. Sellers, 98 N, C, 13, 18, 19. Wo are of opinion that, on the frets proved, the statement was filed on Saturday afternoon. We shall go no further in our decision than this exso requires. We shall not undertake to decide whether the reg- ister had a right. under Pub. Sts. ¢. 2-4, § 12, to close his office as early as he did, so far as to exonerate himself from liability had some one come to tho offles and found it empty. But he was there. With his knowledge and assent the instriment was left within the enclosure of the oflce or its approach, for the purpose of being recorded. It was taken into his custody by his servants or agents. He undertook to refuse legal effect to the deposit, it is true, but in our opinion that was beyond his power, Tt was the petitioners’ right, if they found the reg- ister in his office on a week day and during daylight, to insist on their statement being filed forthwith, and it is no answer to say that the 492 ORNE v, BARSTOW. register might have been absent without liability under the law. Ag the petitioners did all that they could do, or were bound to do, the register’s conduct did not affect their rights. Seo Sykes v. Keating, 118 Mass. 517, 519; Watkins v. Bugge, 56 Neb. 615; Dodge wv. Potter, 18 Barb. 198, 202. Lxceptions sustained, MAYHEW oP, WAMIS, AOS Swevioen 2. Ro inten invo Conrnacrs. MAYHEW #. KAMINS, Kina's Benen, E820, (eA CS On| Tina was au action against the defendants, aa earrters, brought. to rovover the vate of a parveel of eonntey bank notes sent: by their coneh from Downham, die the county of Norfoth, to London, At the trial hofore Anuorr, Cid, at tho London sittings attor list term, (he follow: og appeared tobe the feta of the ease. Phe plaindidts wore sille waro- honammen, testding da London, and employed one Hughes as. their agent to colleet Chety debts da the eountry. ‘Phe defondaints wore coach proprivtors and owners of a voneh ranning fom Lyn to the White Horse, Potter Lame, London. On the both of Pebragry, §824, Hughes, the agent of the plaintiay, having eotloeted, th payment of debts due to them, provinoivl banker's notes to the amount of 287, inelosed them in A paveel and upen the parcel he wrote: the word © Mourning.” and addressed Et to the platntims, Poster Lane, Cheapside, London.” Maghes then dolivered) the parcel to one Wright, at whose house in Downliain the coach stapped to change horses, and ho patd tor Che ents. Mage la ke. and Weight gave him a reeeipt for the pareel When the coach arrived, Wright delivercd the parcel to the ooaehman, and it Was afterwards lost, bor the defondant it was proved. that the plains tits had Mequenth received parcels before the LOti of Pebruary coming Dy coavhes to the White Horse, Petter Lane, London, and the porter Who detiverod: sneh patools proved that he bad always delivered with thom a eket containing the amount of the charge for carringe and porterage, and a pelited notioe, ' that. tho proprietors of carriages Which set out fem that oftles would not hold thomselves: accouutible for any passengue’s luggage, frusa, parcel, or any package whatever above the vatae of 28 Uf lost or damaged, unless the same were entered ay aneh and paid: tor avcordingly whon delivered there, or to their agenta da town or counter: ner would they be accountable for any g@laga, china, plato, watches, writings, cash, bank notes, or Jewels of any deseription, however small the valaed’ Bat there was no evidence ty show that Hughes had any knowledge of such notice at the tai When be detivored the parvel to Wright, Upon this evidenve the Lord Chief Justioe was of opinion thatas che plaintias Knew that the de- fomdants were nat accountable for bank notes, they oaght to have desired their agent not to send parcels of that description by any coach of the defendants, and the plaindits were nonsuited. with liberty to them to move to enter a ventict for 287, 494 CARRIERS’ ACT. Per Cortam. At common law, carriers are responsible for the value of the goods they undertake to carry, but they may limit their respon- sibility by making a special contract, and thatis usnally done by giving public notice that they will not be accountable for parcels of a given description. In order, however, to show in any particular case that they are not subject to the common-law responsibility, they must prove that the party sending the goods had knowledge of the notice. But the knowledge of the principal is the knowledge of the agent. Now here the agent was employed to transmit bank notes, which are the subject of the present action, and it appears that the plaintiffs them- selves had knowledge that the defendants would not be responsible for bank notes, because it is in evidence that many parcels came to them from the defendants, and that the porter delivered together with such parcels a printed paper containing a notice that ‘‘ the proprietors of carriages setting out from the White Horse, Fetter Lane, would not hold themselves accountable for any glass, china, plate, watches, writings, cash, bank notes, or jewels of any description, however small the value.” Now when a parcel came to the plaintiffs in this way before, they must have seen the notice, because it was contained in the same paper which they must have looked at in order to ascertain the amount of the charge for carriage and porterage which they had to pay. Then if the plaintiffs knew that parcels would not be accounted for if they contained bank notes, it was their duty to tell their agent not to send any such parcels by any of the coaches coming to the White Horse, Fetter Lane. But as the plaintiffs suffered their agent to send notes by those coaches, we think that knowledge of the notice having been brought home to the plaintiffs, the carrier is thereby protected from such loss, although the parcel was sent by an agent. Rule refused? CARRIERS’ ACT, 11 Gro. IV. & 1 Wu. IV., c. 68. § 1. ... No mail contractor, stage-coach proprietor, or other common carrier by land for hire shall be liable for the loss of or injury to any article or articles or property of the descriptions following ... con- tained in any parcel or package . . . when the value of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of ten pounds, unless at the time of the delivery thereof. . . the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering 1 “The doctrine of notice was never known until the case of Forward v. Pittard, 1 T. R. 27, which I argued many years ago. Notice does not constitute a special contract; if it did, it must be shown on the record; it only arises in defence of the carrier, and here it is rebutted by proof of positive negligence. I lament that the - doctrine of notice was ever introduced into Westminster Hall.” Borroueu, J,, in Smith v, Horne, 8 Taunt. 144 (1818). — Ep. WALKER v. YORK AND NORTH MIDLAND RAILWAY. 495 the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. g 4. ... No public notice or declaration heretofore made or hear- aftcr to be made shall be deemed or construed to limit or in any wise affect the liability at common law of any such mail contractors, stage- coach proprietors, or other public common carriers as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them ; but that all and every such mail contractor, stage-coach proprietor, and common carrier as aforesaid shall... be liable, as at the common law, to answer for the loss or any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. § 6. ... Nothing in this act contained shall extend or be construed to annul or in anywise affect any special contract between such mail carrier, stage-coach proprietor, or common carrier and any other par- ties, for the conveyance of goods and merchandises. WALKER v. YORK AND NORTH MIDLAND RAILWAY. QueeEn’s Bencw, 1853. [2 E. & B. 750.) Tue cause was first tried before Lord Campse tt, C. J., at the sittings in London after last Hilary Term, when a general verdict passed for the plaintiff: but a new trial was granted, in order that it might be asvertained whether a notice hereafter mentioned had been served on the plaintiff or not: the defendants were to admit the rest of the plain- tiff's case, and the amount of damages. On the second trial, before Co_rrtper, J., at the sittings in London during last Trinity Term, the following facts were agreed on by both sides. The plaintiff was a fish merchant at Scarborough. There is railway communication from Scarborough to Manchester and to Lon- don. ‘he terminus at Scarborough is part of the defendants’ railway, which communicates with other railways leading to Manchester and London. The defendants, as is usual, collect goods at their own ter- minus and forward them through the connecting lines to their destina- tion; ‘and it was admitted that the fish in question had been sent by defendants’ line, and not delivered in due time, to the damage of plain- tiff. The learned judge ruled that, after these admissions, made in obedience to the rule granting the new trial, the onus lay on the cefend- ants; and their counsel began. The parts of the evidence, material to the question discussed in banc, were as follows: 496 WALKER Vv. YORK AND NORTH MIDLAND RAILWAY. The defendants had caused a large number of notices to be printed ; of which the following is a copy: ‘‘York and North Midland Railway. Notice. Fish Traffic. Fish being a perishable and consequently a hazardous article of traffic, The York and North Midland Railway Company hereby give notice that, on and after the 12th April, 1852, they will carry it at the reduced rates at present charged, or which may hereafter be charged, below the rate which the said company is entitled to charge, on the following conditions only. ... “2. This company is not to be responsible for the delivery of fish in any certain or reasonable time, nor in time for any particular market; nor are they to be required to carry or forward by any particular train, nor are they to be responsible for loss or damage arising from any delay or stoppage, however occasioned. .. . ‘*4, The station clerks and servants of the company have no author- ity to alter or vary these conditions.” A clerk, ordinarily employed for defendants at York, who was called for defendants, proved that, on 2d September, 1852, he was sent with a large number of these printed notices to Scarborough ; and at Scar- borough received, from the station master there, a list of the fishdealers at Scarborough. He then went down to the sands, where the fishing boats were coming in, and where consequently many of the fishdealers were assembled, and there served as many of them as he could with copies of the notice. Amongst others, he served a person whom he believed to be the plaintiff ; but, as he was not then personally ac- quainted with the plaintiff, he could not speak very positively to the identity. On cross-examination it appeared that the persons served were very angry; that many tore up the notices and said that they would not be bound by them; and that there was considerable disturbance. The station master at Scarborough gave evidence that, on the 3d September, he saw the plaintiff, who said to him: ‘+ What is the use of sending that old fellow to serve these notices? they are of no use.” The fish, the subject of the first count, were sent off on that same 3d of September. The plaintiff himself, who was called as a witness, denied having been personally served with the notice, and denied having ever consented to be bound by its terms. The learned judge left it to the jury to say whether there was a spe- cial contract or not. He told them that the first question was one of fact, whether the plaintiff was served with the notice; and that, if they were of that opinion, they might infer a special contract. And he ad- vised them to draw that inference from the receipt of the notice and the subsequent sending of the goods, unless, in the interim, the plaintiff had unambiguously refused to deliver the goods on the terms of the notice, and the defendants had acquiesced in that refusal. The jury found that there had been a service of the notice, and that there was a special contract. The verdict was entered for the defendants on the WALKER & YORK AND NORTIE MIDLAND RAILWAY. 497 socond and third Imaies, and the corresponding issios on the pleas to the other counts, M, Chambers, in dnt Prinily Perm, obtained a rulo veisé for a new trial, on the ground of misdireetion.! Wraratan, a. Pha quostion is, Whother thera was any evidence from whiolt the Jury might find a speck contract. [tts not raised quite In that form; bub Chat is the substantial question, Pho defendants had served: the phutati with a notiee that, In considerntion of their carrying flah at reduced charges, thay would require their customers. to agree to eortain conditions on whieh, and on whieh only, thoy would carry flahy and: thoy also state dn the notloo that no servant of theirs hos power Co alter ¢hese terms, "Pho question is, Whethor the fish in question was received under a contract to earry on these terms. Now the platatit dd not assent In express words Co these conditions: on the contrary, he objected: to then; but still, for all that, he sant the goods, Kuowlng that no servant had) power to alter the conditions, and that they would be aeeepted on those conditions only sand E think he must be taken to have sont them on these terms untess thera was soma- thing dy the Taw to prevent the conditions from binding. Mr. Cowling contends that there ds soho law, and that statute TE Goo IV. & —b Wil TV, 6. 68, 8, dy prevents Chis notices from affeeting the liability of the defendants as onrriors s but PT do not think that such is the elect of the act. Th da eontined, Ethink, Co publia notices, sueh as were very come mon before the aety notives addvossed to the paublio at large, raising a question, In overy ease, whether the notiee was brought home to the portioukae person; Pde not think it applienble to a notion specitieally delivered ton partionhur person to form: the basis of a special contract with Mim. Phe Jndge told: the fury that, iP such a notion was specitl- eally delivered to the platiutiny unless ib could be shown that he dis- aontod from those terms, and the defendants vequieseod in his dissent, they ought to dnfer thas the plalatit) porsisting in sending the goods, dssonted to their being taken oan the terms. 1] think so too. [fa man fa told that: goods will not be received excepl on certain torms, and notwithstanding this he will seud the goods, TP think that le must be taken to agree that they shall bo taken on those terms, Statute 1] Goo IW EWR TV. e868. 8. 6, oxprossly saves spocint contracts: and Tthink Mr. Cowling hardly contended that a special contract might not ho proved by a letter sent to an individual addressed to him, anda subsequent delivery of the goods, though, if such a notice is in the shape of a viveular, he says itis within seotion 4. Bat TE think section dis Yimited to publio notices, advertisod or put up in an oftles. ''The atatoment of facts haa hoon abridged and arguments of counsel and concur ving opinions of Lord Camrnnia, Cod, and Conmmiban, da lave boon omitted, — Ep, 498 RAILROAD v. LOCKWOOD. RAILWAY AND CANAL TRAFFIC ACT OF 1854, 17 & 18 Vicr. c. 81. § 7. Every such company as aforesaid [railway and canal com- panies] shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such com- pany contrary thereto, or in anywise limiting such liability ; every such notice, condition, or declaration being hereby declared to be null and void; provided always, that nothing herein contained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the court or judge before whom any question relating thereto shall be tried to be just and reasonable: provided always, that no greater damages shall be recovered for the loss of or for any injury done to any of such animals, beyond the sums hereinafter mentioned; (that is to say), for any horse fifty pounds; for any neat cattle, per head, fifteen pounds; for any sheep or pigs, per head, two pounds; unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value than as above mentioned ; in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned a reasonable percent- age upon the excess of value so declared. . . . Provided also, that no special contract between such company and any other parties respect- ing the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage. RAILROAD wv. LOCKWOOD. Supreme Court or THE Unitep States, 1873. [17 Wall. 357.] / Error to the Circuit Court for the Southern District of New York; the case being thus : — Lockwood, a drover, was injured whilst travelling on a stock train of the New York Central Railroad Company, proceeding from Buffalo to Albany, and brought this suit to recover damages for the injury. He had cattle in the train, and had been required, at Buffalo, to sign RAILROAD v. LOCKWOOD. 499 an agreement to attend to the loading, transporting, and unloading of them, and to take all risk of injury to them and of personal injury to himself, or to whomsoever went with the cattle; and he received what is called a drover’s pass; that is to say, a pass certifying that he had shipped sufficient stock to pass free to Albany, but declaring that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. The agreement stated its consideration to be the carrying of the plaintifi’s cattle at less than tariff rates. It was shown on the trial, that these rates were about three times the ordinary rates charged, and that no drover had cattle carried on those terms; but that all signed similar agreements to that which was signed by the plaintiff, and received similar passes. Evi- dence was given on the trial tending to show that the injury complained of was sustained in consequence of negligence on the part of the de- fendants or their servants, but they insisted that they were exempted by the terms of the contract from responsibility for all accidents, in- cluding those occurring from negligence, at least the ordinary negli- gence of their servants; and requested the judge so to charge. This he refused, and charged that if the jury were satisfied that the injury occurred without any negligence on the part of the plaintiff, and that the negligence of the defendants caused the injury, they must find for the plaintiff, which they did. Judgment being entered accordingly, the railroad company took this writ of error. BraD ey, J.1. It may be assumed in limine, that the case was one of carriage for hire; for though the pass certifies that the plaintiff was entitled to pass free, yet his passage was one of the mutual terms of the arrangement for carrying his cattle. The question is, therefore, distinctly raised, whether a railroad company carrying passengers for hire, can lawfully stipulate not to be answerable for thcir own or their servants’ negligence in reference to such carriage. As the duties and responsibilities of public carriers were prescribed by public policy, it has been seriously doubted whether the courts did wisely in allowing that policy to be departed from without legislative interference, by which needed modifications could have been intro- duced into the law. But the great hardship on the carricr in certain special cases, where goods of great value or subject to extra risk were delivered to him without notice of their character, and where losses happened hy sheer accident without any possibility of fraud or collu- sion on his part, such as by collisions at sea, accidental fire, &c., led to a relaxation of the rule to the extent of authorizing certain exemp- tions from liability in such cases to be provided for, either by public notice brought home to the owners of the goods, or by inserting exemptions from liability in the bill of lading, or other contract of carriage. A modification of the strict rule of responsibility, exempting the carrier from liability for accidental losses, where it can be safely 1 Part of the opinion is omitted. —Ep. 500 RAILROAD v. LOCKWOOD. done, enables the carrying interest to reduce its rates of compensation ; thus proportionally relieving the transportation of produce and mer- chandise from some of the burden with which it is loaded. The question is, whether such modification of responsibility by notice or special contract may not be carried beyond legitimate bounds, and introduce evils against which it was the direct policy of the law to guard ; whether, for example, a modification which gives license and immunity to negligence and carelessness on the part of a public carrier or his servants, is not so evidently repugnant to that policy as to be alto- gether null and void; or, at least null and void under certain circum- stances. ... . It is contended that though a carrier may not stipulate for his own negligence, there is no good reason why he should not be permitted to stipulate for immunity for the negligence of his servants, over whose actions, in his absence, he can exercise no control. If we advert for a moment to the fundamental principles on which the law of common carriers is founded, it will be seen that this objection is inadmis- sible. In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties—an object essential to the welfare of every civilized community. Hence the common-law rule which charged the common carrier as an insurer. Why charge him as such? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence and fidelity underlies the law, and is the reason for ‘it; in the other it is directly and absolutely prescribed by the law. It is ob- vious, therefore, that if a carrier stipulate not to be bound to the exercise of care and diligence, but to be at liberty to indulge in the contrary, he seeks to put off the essential duties of his employ- ment. And to assert that he may do so seems almost a contradiction in terms, Now, to what avail does the law attach these essential duties to the employment of the common carrier, if they may be waived in respect to his agents and servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants? If is care- fulness and diligence in performing the service which the law demands, not an abstract carefulness and diligence in proprietors and stockhold- ers who take no active part in the business. To admit such a distinc- tion in the law of common carriers, as the business is now carried on, would be subversive of the very object of the law. It is a favorite argument in the cases which favor the extension of the carrier’s right to contract for exemption from liability, that men must be permitted to make their own agreements, and that it is no concern of the public on what terms an individual chooses to have his goods carried. Thus, in Dorr v. The New Jersey Steam Navigation RAILROAD v, LOCKWOOD. 501 Company, 1 Kern. 485, the court sums up its judgment thus: ‘To say the parties have not aright to make their own contract, and to limit the precise extent of their own respective risks and liabilities, in a matter no way affecting the public morals, or conflicting with the public interests, would, in my judgment, be an unwarrantable restric- tion upon trade and commerce, and a most palpable invasion of per- sonal right.” Is it true that the public interest is not affected by individual contracts of the kind referred to? Is not the whole business community affected ly holding such contracts valid? If held valid, the advantageous posi- tion of the companies exercising the business of common carriers is such that it places it in their power to change the law of common car- riers in effect, by introducing new rules of obligation. The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to do this, or abandon his business. In the present case, for example, the freight agent of the company testified that though they made forty or fifty contracts every week like that under consideration, and had carried on the business for years, no other ar- rangement than this was ever made with any drover. And the reason is obvious enough, — if they did not accept this, they must pay tariff rates. These rates were seventy cents a hundred pounds for carrying from Buffalo to Albany, and each horned animal was rated at 2,000 pounds, making a charge of $14 for every animal carried, instead of the usual charge of $70 for a car-load; being a difference of three to one. Of course no drover could afford to pay such tariff rates. This fact is adverted to for the purpose of illustrating how completely in the power of the railroad companies parties are; and how necessary it is to stand firmly by those principles of law by which the public interests are protected. If the customer had any real freedom of choice, if he had a reason- able and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment; then, if the customer choose to assume the risk of negligence, it could with more reason be said to be his private affair, and no concern of the public. But the condition of things is entirely different, and especially so under the modified ar- rangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept. These circumstances furnish an additional argument, if any were needed, to show that the 502 RAILROAD v. LOCKWOOD. conditions imposed by common carriers ought not to be adverse (to say the least) to the dictates of public policy and morality, The status and relative position of the parties render any such conditions void. Contracts of common carriers, like those of persons occupying a fidu- ciary character, giving them a position in which they can take undue advantage of the persons with whom they contract, must rest upon their fairness and reasonableness. It was for the reason that the limi- tations of liability first introduced by common carriers into their notices and bills of lading were just’ and reasonable, that the courts sustained them. It was just and reasonable that they should not be responsible for losses happening by sheer accident, or dangers of navi- gation that no human skill or vigilance could guard against; it was just and reasonable that they should not be chargeable for money or other valuable articles liable to be stolen or damaged, unless apprised of their character or value; it was just and reasonable that they should not be responsible for articles liable to rapid decay, or for live animals liable to get unruly from fright and to injure themselves in that state, when sucb articles or live animals became injured without their fault or negligence. And when any of these just and reasonable excuses were incorporated into notices or special contracts assented to by their customers, the law might well give effect to them without the violation of any important principle, although modifying the strict rules of responsibility imposed by the common law. The improved state of society and the better administration of the laws, had dimin- ished the opportunities of collusion and bad faith on the part of the carrier, and rendered less imperative the application of the iron rule, that he must be responsible at all events. TIence, the. exemptions referred to were deemed reasonable and proper to be allowed. But the proposition to allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are un- reasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages of the law. Hence, as before remarked, we regard the English statute called the Railway and Canal Traffic Act, passed in 1854, which declared void all notices and conditions made by common carriers except such as the judge, at the trial, or the courts should hold just and reasonable, as substantially a return to the rules of the common law. It would have ‘been more strictly so, perhaps, had the reasonableness of the contract been referred to the law instead of the individual judges. The de- cisions made for more than half a century before the courts commenced the abnormal course which led to the necessity of that statute, giving effect to certain classes of exemptions stipulated for by the carrier, may be regarded as authorities on the question as to what exemptions are just and reasonable. So the decisions of our own courts are en- titled to like effect when not made under the fallacious notion that every special contract imposed by the common carrier on his custom- MYNARD v. SYRACUSE, BINGHAMPTON, ETC. RAILROAD. 503 ers must be carried into effect, for the simple reason that it was en- tered into, without regard to the character of the contract and the relative situation of the parties. Conceding, therefore, that special contracts, made by common car- riers with their customers, limiting their liability, are good and valid so far as they are just and reasonable; to the extent, for example, of ex- cusing them for all losses happening by accident, without any negli- gence or fraud on their part; when they ask to go still further, and to be excused for negligence — an excuse so repugnant to the law of their foundation and to the public good — they have no longer any plea of justice or reason to support such a stipulation, but the contrary. And then, the inequality of the parties, the compulsion under which the customer is placed, and the obligations of the carrier to the public, operate with full force to divest the transaction of validity. Judgment affirmed} MYNARD v. SYRACUSE, BINGHAMPTON, AND NEW YORK RAILROAD. Court or Appeats, New Yoru, 1877. [71 NV. ¥. 180.] Cuurca, C. J.2. The parties stipulated that the animal was lost by reason of the negligence of some of the employees of the defendant without the fault of the plaintiff. The defence rested solely upon exemption from liability contained in the contract of shipment by which, for the consideration of a reduced rate, the plaintiff agreed to ‘‘ release and discharge the said company from all claims, demands, and liabilities of every kind whatsoever for or on account of, or connected with, any damage or injury to or the loss of said stock, or any portion thereof, from whatsoéver cause arising.” The question depends upon the construction to be given to this con- tract, whether the exemption ‘‘ from whatever cause arising,” should be taken to include a loss accruing by the negligence of the defendant or its servants. The language is general and broad. Taken literally it would include the loss in question, and it would also include a loss accruing from an intentional or wilful act on the part of servants. It is conceded that the latter is not included. We must look at the lan- guage in connection with the circumstances and determine what was intended, and whether the exemption claimed was within the contem- plation of the parties. 1 Compare: Merch. D. T. Co. v. Cornforth, 3 Col. 280; Adams Exp. Co. v. Stet- taners, 61 Il]. 184; M.S. & N. I. R. R. v. Heaton, 37 Ind. 448; Ketchum v. Amer. M. U. Exp. Co., 52 Mo. 390; Davidson v. Graham, 2 Oh. St. 131; L.& N. R. Riv. Gilbert, 88 Tenn. 430. — Ep. ? Part of the opinion is omitted. — Ep. 504 MYNARD v. SYRACUSE, BINGHAMPTON, ETC. RAILROAD. The defendant was a common carrier, and as such was absolutely liable for the safe carriage and delivery of property intrusted to its care, except for loss or injury occasioned by the acts of God or public enemies. The obligations are imposed by law, and not by contract. A common carrier is subject to two distinct classes of liabilities — one where he is liable as an insurer without fault on his part; the other, as an ordinary bailee for hire, when he is liable for default in not exer- cising proper care and diligence; or, in other words, for negligence. General words from whatever cause arising may well be satisfied by limiting them to such extraordinary liabilities as carriers are under without fault or negligence on their part. When general words may operate without including the negligence of the carrier or his servants, it will not be presumed that it was in- tended to include it. Every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the trans- action of any business, and hence the general rule is that contracts will not be so construed, unless expressed in unequivocal terms. In New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. (U.S. R.) 344, a contract that the carriers are not responsible in any event for loss or damage, was held not intended to exonerate them from liability for want of ordinary care. Nelson, J., said: ‘The language is general and broad, and might very well comprehend every description of risk incident to the shipment. But we think it would be going further than the intent of the parties upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for wilful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands.” This ‘rule has been repeatedly followed in this State. In Alexander 2. ‘Greene, 7 Hill, 533, the stipulation was to tow plaintiff's canal boat from New York to Albany at the risk of the master and owners, and the Court of Errors reversed a judgment of the Supreme Court with ‘but a single dissenting vote, and decided that the language did not in- ‘clude a loss occasioned by the negligence of the defendants or their ‘servants. In one of several opinions delivered by members of the ‘court, it was said, in respect to the claim for immunity for negligence : “To maintain a proposition, so extravagant as this would appear to be, the stipulation of the parties ought to be most clear and explicit, showing that they comprehended in their arrangement the case that actually occurred.” Wells v. Steam Navigation Co., 8 N. Y. 375, expressly approved of the decision of Alexander v. Greene, and reiterated the same principle. Gardiner, J., in speaking of that case said: ‘* We held, then, if a party vested with a temporary control of another’s property for a spe- cial purpose of this sort would shield himself from responsibility on account of the gross neglect of himself or his servants, he must show his immunity on the face of his agreement; and that a stipulation so MYNARD v. SYRACUSE, BINGHAMPTON, ETC. RAILROAD. 505 extraordinary, so contrary to usage and the general understanding of men of business, would not be implied from a general expression to which effect might otherwise be given.” So, in the Steinweg Case, 43 N. Y. 128, the contract released the carrier ‘‘ from damage or loss to any article from or by fire or explo- sion of any kind,” and this court held that the release did not include a loss by fire occasioned by the negligence of the defendant; and, in the Magnin case, still more recently decided by this court (56 N. Y. 168), the contract with the express company contained the stipulation ‘and, if the value of the property above described is not stated by the shipper, the holder thereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of, or damage to, the property aforesaid.” It was held, reversing the judgment below, that the stipulation did not cover a loss accruing through negligence, Johnson, J., in the opinion, saying: ‘* But the contract will not be deemed to except losses occasioned by the carrier’s negligence, unless that he expressly stipulated.” In each of these cases, the language of the contract was sufficiently broad to include losses occasioned by ordinary or gross negligence, but the doctrine is repeated that, if the carrier asks for im- munity for his wrongful acts, it must be expressed, and that general words will not be deemed to have been intended to relieve him from the consequences of such acts. These authorities are directly in point, and they accord with a wise public policy, by which courts should be guided in the construction of contracts designed to relieve common carriers from obligations to exer- cise care and diligence in the prosecution of their business, which the law imposes upon ordinary bailees for hire engaged in private business. In the recent case of Lockwood v. Railroad Co., 17 Wall. 357, the Supreme Court of the United States decided that a common carrier cannot lawfully stipulate for exemption from responsibility for the neg- ligence of himself or his servants. If we felt at liberty to review the question, the reasoning of Justice Bradley in that case would be en- titled to serious consideration ; but the right thus to stipulate has been so repeatedly affirmed by this court, that the question cannot with pro- priety be regarded as an open one in this State. 8 N. Y. 875; 11 N. Y. 485; 24 N. Y. 181-196; 25 N. Y¥. 442; 42 N. Y. 212; 49 N.Y. 263 ; 51 N.Y. 61.7 The remedy is with the Legislature, if remedy is needed. But, upon the question involved here, it is correctly stated in that case that ‘‘a review of the cases decided by the courts of New York shows that, though they have carried the power of the common carrier to make special contracts to the extent of enabling him to exonerate himself from the effects of even gross negligence, yet that this effect has never been given to a contract general in its terms.” Such has been the uni- 1 Compare: Carr v. L. & Y. Ry., 7 Ex. 707; McCawley v. Furness Ry., L. R. 8 Q. B. 57; Black v. Goodrich Transp. Co., 55 Wis. 319. — Ep. 506 QUIMBY v. BOSTON AND MAINE RAILROAD. form course of decisions in this and most of the other States, and public policy demands that it should not be changed. It cannot be said that parties, in making such contracts, stand on equal terms. The shipper, in most cases, from motives of convenience, necessity, or ap- prehended injury, feels obliged to accept the terms proposed by the carrier, and practically the contract is made by one party only, and should, therefore, be construed most strongly against him; and espe- cially should he not be relieved from the consequences of his own wrongful acts under general words or by implication. QUIMBY v. BOSTON AND MAINE RAILROAD. Supreme JupictaL Courr or Massacuusetts, 1890. [150 Mass. 365.] Devens, J. When the plaintiff received his injury, he was travelling upon a free pass, given him at his own solicitation and as a pure gra- tuity, upon which was expressed his agreement that in consideration thereof he assumed all risk of accident which might happen to him while travelling on or getting on or off the trains of the defendant raii- road corporation on which the ticket might be honored for passage. The ticket bore on its face the words, ‘‘ Provided he signs the agree- ment on the back hereof.” In fact, the agreement was not signed by the plaintiff, he not having been required to do so by the conductor, who honored it as good for the passage, and who twice punched it. The fact that the plaintiff had not signed it, and was not required to sign it, we do not regard as important. Having accepted the pass, he must have done so on the conditions fully expressed therein, whether he actually read them or not. Squire v. New York Central Railroad, 98 Mass. 239; Hill v. Boston, Hoosac Tunnel & Western Railroad, 144 Mass. 284; Boston & Maine Railroad v. Chipman, 146 Mass. 107. The object of the provision as to signing is to furnish complete evi- dence that the person to whom the pass is issued assents thereto; but one who actually avails himself of such a ticket, and of the privileges it confers, to secure a passage, cannot be allowed to deny that he made the agreement expressed therein because he did not and was not re- quired to sign it. Gulf, Colorado, & Santa Fé Railway v. McGown, 65 Texas, 640, 643; Illinois Central Railroad v. Read, 37 Ill. 484; Wells v. New York Central Railroad, 24 N. ¥. 181; Perkins v. New York Central Railroad, 24 N. Y.196. If this is held to be so, the case presents the single question whether such a contract is invalid, which has not heretofore been settled in this State, and upon which there has been great contrariety of opinion in different courts. If the common carrier accepts a person as a passenger, no such contract having been QUIMBY v. BOSTON AND MAINE RAILROAD. 507 made, such passenger may maintain an action for negligence in trans- porting him, even if he be carried gratuitously. Having admitted him to the rights of a passenger, the carrier is not permitted to deny that he owes to him the duty which, as carrying on a public employment, he owes to those who have paid him for the service. Todd v. Old Colony & Fall River Railroad, 3 Allen, 18; Commonwealth v. Vermont & Massachusetts Railroad, 108 Mass. 7; Littlejohn v. Fitchburg Rail- road, 148 Mass. 478; Files v. Boston & Albany Railroad, 149 Mass. 204; Philadelphia & Reading Railroad v. Derby, 14 How. 468 ; Steam- boat New World v. King, 16 How. 469. But the question whether the carrier may, as the condition upon which he grants to the passenger a gratuitous passage, lawfully make an agreement with him by which the passenger must bear the. risks of transportation, obviously differs from this. In a large number of cases, the English courts, as well as those of New York, have held that where a drover was permitted to accompany animals upon what was called a free pass, issued upon the condition that the user should bear all risks of transportation, he could not main- tain an action for an injury received by the negligence of the carrier’s servants. A similar rule would, without doubt, be applied where a servant, from the peculiar character of goods, such as delicate machin- ery, is permitted to accompany them, and in other cases of that nature. That passes of this character are free passes properly so called, has heen denied in other cases, as the carriage of the drover is a part ot the contract for the carriage of the animals. The cases on this point were carefully examined and criticised by Mr. Justice Bradley, in Rail- road Co. v. Lockwood, 17 Wall. 357, 8367; and it is there held that such a pass is not gratuitous, as it is given as one of the terms upon which the cattle are carried. The decision is put upon the ground that the drover was a passenger carried for hire, and that with such pas- senger a contract of this nature could not be made. The court, at the conclusion of the opinion, expressly waives the discussion of the ques- tion here presented, and, as it states, purposely refrains from ex- pressing any opinion as to what would have been the result had it considered the plaintiff a free passenger, instead of one for hire. Rail- way Co. v. Stevens, 95 U.S. 655, in which the same distinguished judge delivered the opinion of the court, is put upon the ground that the transportation of the defendant, although not paid for by him in money, was not a matter of charity or gratuity in any sense, but was by virtue of an agreement in which the mutual interest of the parties was consulted. Whether the English and New York authorities rightly or wrongly hold that one travelling upon a drover’s pass, as it is sometimes called, is a free passenger, they show that, in the opinion of those courts, a contract can properly be made with a free passenger that he shall bear the risks of transportation. This is denied by many courts whose Opinions are entitled to weight. It will be observed that in the case 508 QUIMBY v. BOSTON AND MAINE RAILROAD. at bar there is no question of any wilful or malicious injury, and that the plaintiff was injured by the carelessness of the defendant’s servants. The cases in which the passenger was strictly a free passenger, ac- cepting his ticket as a pure gratuity, and upon the agreement that he would himself bear the risk of transportation, are comparatively few. They have all been carefully considered in two recent eases, to which we would call attention. These are Griswold v. New York & New England Railroad, 53 Conn. 371, decided in 1885, and that of Gulf, Colorado, & Santa Fé Railway v. McGown, 65 Texas, 640, decided in 1886, in which the precise question before us was raised and decided, after a careful examination of the authorities, and opposite conclusions reached, by the highest courts of Connecticut and of Texas. No doubt existed in either case, in the opinion of the court, that the ticket of the passenger was strictly a gratuity, and it was held by the former court that, under these circumstances, the carrier and the passenger might lawfully agree that the passenger should bear the risks of transporta- tion, and that such agreement would be enforced, while the reverse was held by the court of Texas. We are brought to the decision of the question unembarrassed by any weight of authority without the Commonwealth that can be considered as preponderating. It is urged on behalf of the plaintiff, that, while the relation of pas- senger and carrier is created by contract, it does not follow that the duty and responsibility of the carrier is dependent upon the contract; that, while with reference to matters indifferent to the public, parties may contract according to their own pleasure, they cannot do so where the public has an interest; that, as certain duties are attached by law to certain employments, these cannot be waived or dispensed with by individual contracts; that the duty of the carrier requires that he should convey his passengers in safety; and that he is properly held responsible in damages if he fails to do so by negligence, whether the negligence is his own or that of his servants, in order that this safety may be secured to all who travel. It is also said, that the carrier and the passenger do not stand upon an equality; that the latter cannot stand out and higgle or seek redress in the courts; that he must take the alternative the carrier presents, or practically abandon his business in the transfer of merchandise, and must yield to the terms imposed on him as a passenger; that he ought not to be induced to run the risks of transportation by being allowed to travel at a less fare, or for any similar reason, and thus to tempt the carrier or his servants to care- lessness which may affect others as well as himself; and that, in few words, public policy forbids that a contract should be entered into with a public carrier by which he shall be exonerated from his full respon- sibility. Most of this reasoning can have no application to a strictly free passenger, who receives a passage out of charity, or as a gratuity. Certainly the carrier is not likely to urge upon others the acceptance of free passes, as the success of his business must depend on his re- ceipts. ‘There can be no difficulty in thé adjustment of terms where QUIMBY v. BOSTON AND MAINE RAILROAD. 509 passes are solicited as gratuities. When such passes are granted by such of the railroad officials as are authorized to issue them, or by other public carriers, it is in deference largely to the feeling of the community in which they are exercising a public employment. ‘The instances can- not be so numerous that any temptation will be offered to carelessness in the management of their trains, or to an increase in their fares, in both of which subjects the public is interested. In such instances, one who is ordinarily a common carrier does not act as such, but is simply in the position of a gratuitous bailee. The definition of a common carrier, which is that of a person or corporation pursuing the public employment of conveying goods or passengers for hire, does not apply under such circumstances. ‘The service which he undertakes to render is one which he is under no obligation to perform, and is outside of his regular duties. In yielding to the solicitation of the passenger, he con- sents for the time being to put off his public employment, and to do that which it does not impose upon him. The plaintiff was in no way constrained to accept the gratuity of the defendant; it had been yielded to him only on his own solicitation. When he did, there is no rule of public policy, we think, that prevented the carrier from prescribing, as the condition of it, that it should not be compelled, in addition to car- rying the passenger gratuitously, to be responsible to him in damages for the negligence of its servants. It is well known that, with all the care that can be exercised in the selection of servants for the manage- ment of the various appliances of a railroad train, accidents will some- times occur from momentary carelessness or inattention. It is hardly reasonable that, beside the gift of free transportation, the carrier should be held responsible for these, when he has made it the condition of his gift that he should not be. Nor, in holding that he need not be under these circumstances, is any countenance given to the idea that the car- rier may contract with a passenger to convey him for a less price on being exonerated from responsibility for the negligence of his servants. In snch a case the carrier would still be acting in the public employ- ment exercised by him, and should not escape its responsibilities, or limit the obligations which it imposes upon him. In some cases it has been held that, while a carrier cannot limit his liability for gross negligence, which has been defined as his own per- sonal negligence, or that of the corporation itself where that is the carrier, he can contract for exemption from liability for the negligence of his servants. It may be doubted whether any such distinction in degrees of negligence, in respect to the right of a carrier to exempt himself from responsibility therefor, can be profitably made or applied. Steamboat New World v. King, 16 How. 469. It is to be observed, however, that in the case at bar the injury occurred through the neg- ligence of the defendant’s servants, and not through any failure on the, part of the corporation to prescribe proper rules or to furnish proper appliances for the conduct of its business. We are of opinion that where one accepts purely as a gratuity a free 510 . GRACE v. ADAMS. passage in a railroad train, upon the agreement that he will assume all risk of accident which may happen to him while travelling in such train by which he may be injured in his person, no rule of public policy re- quires us to declare such contract invalid and without binding force. By the terms of the report there must, therefore, be Judgment for the defendant. GRACE v. ADAMS. Supreme JupiciaL Court or Massacuvsetts, 1868. [100 Mass. 505.] Conrract, against the defendants, who carried on business under the name of the Adams Express Company, to recover the value of a package of money. In the Superior Court, judgment was ordered for the plaintiff on agreed facts, and the defendants appealed. The agreed facts were as follows: “It is agreed that the plaintiff delivered to the Adams Express Company, as common carriers, at Wilmington, in the State of North Carolina, March 21, 1865, a package containing one hundred and fifty dollars, directed to Patrick Corbett, Taunton, Massachusetts, and the said express company at the same time delivered to the plaintiff a bill of lading, a copy whereof is hereto annexed, and. which makes part of this statement; that the said express company shipped said package with other packages from Wilmington by the steamship General Lyon, which ship was accidentally burned at sea, and said package thereby destroyed. It is further agreed, if evidence of the fact be admissible, that the plaintiff would testify that when the plaintiff delivered the package and took the bill of lading, a copy of which is annexed, he did not read the same.” The material parts of the bill of lading, of which the copy was an- nexed, were as follows: ‘¢ Adams Express Company. Great Eastern, Western & Southern Express Forwarders. $150. Form 5. Wilmington, March 21, 1865. Received from One P., Sealed and said to contain one hundred and fifty dolls. Addressed, Patrick Corbett, Taunton, Mass. “Upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destina- tion only, and there to deliver the same to other parties to complete the transportation — such delivery to terminate all liability of this company for such package; and also, that this company is not to be liable in any manner or to any extent for any loss, damage, or deten- tion of such package, or of its contents, or of any portion thereof, . . occasioned by the dangers of railroad transportation, or ocean or river navigation, or by fire or steam. For the Company. Robinson.” GRACE ¥. ADAMS. 511 Cott, J. It is to be received as now settled by the current and weight of authority, that a common carrier may, by special contract, avoid or limit his Nability at common law as an insurer of property intrusted to him against loss or damage by fire, occurring without fault on his part. It is not necessary to discuss here, how far in this or other respects he may escape those liabilities which the policy of the law imposes, by mere notices brought home to the employer, or whether the effect of such notices may not be held to vary according as it is attempted to avoid those extraordinary responsibilities which are peculiar to common carriers, or those other liabilities under which they are held in common with all other bailees for hire. Judson v. Western Railroad Co., 6 Allen, 486; York Co. v. Central Railroad Co., 3 Wallace, 107; Hooper v. Wells, 27 Cal. 11; and see article by Redfield, with collection of authorities, 5 Am. Law Reg. (N. §.) 1. It is claimed here that the shipping receipt or bill of lading con- stituted a valid and binding contract between the parties, and that, upon the loss at sea of the plaintiff's package in the course of its trans- portation under the contract, by an accidental fire, the defendants were discharged from any obligation to the plaintiff in regard to it; and the court are of opinion that this claim must be sustained. - The receipt was delivered to the plaintiff as the contract of the de- fendants; it is in proper form; and the terms and conditions are expressed in the body of it in a way not calculated to escape attention. The acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading. It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defend- ants have a right to this protection, and are not to be deprived of it by the wilful or negligent omission of the plaintiff to read the paper. The case of Rice v. Dwight Manufacturing Co., 2 Cush. 80, 87, is an « authority in point. In an action to recover for work done, the defence was that the work was performed under a special contract, and a paper of printed regulations was shown to have been given to and accepted by the plaintiff as containing the terms of the contract, but which was not signed by either party. The plaintiff denied knowledge of its contents; but it was said by Forbes, J., that where a party enters into a written contract, in the absence of fraud he is conclusively pre- sumed to understand the terms and legal effect of it, and to consent to them. See also Lewis v. Great Western Railway Co., 5 H. & N. 867; Squire v. New York Central Railroad Co., 98 Mass. 239. 512 GRACE v. ADAMS. This case, then, is brought within the rule which authorizes carriers to relieve themselves from losses of this description by express con- tracts with the employer. It differs from the cases of Brown v. Eastern Railroad Co., 11 Cush. 97, and Malone v. Boston & Worces- ter Railroad Co., 12 Gray, 888. The limitation relied on in both those cases was in the form of a notice printed on the back of a pas- senger ticket, relating to baggage; and it was held that there was no presumption of law that the party, at the time of receiving the ticket, had knowledge of the contents of the notice. It is obvious that in those cases the ticket was not designed to be held as the evidence of the contract between the parties. The contract, which was of passen- ger transportation, was not attempted to be set forth. At most, it was but a check, to be used temporarily and then delivered to the con- ductor as his voucher, with these notices on the back. The presump- tion that every man knows the terms of a written contract which he enters into, therefore, did not apply. Nor was the acceptance of the ticket conclusive evidence of assent to its terms. The recent case of Buckland v. Adams Express Co., 97 Mass. 124, requires notice, because, upon a case in most respects sinter to this, a different result was reached by the court. The legal principles upon which that case was decided are those here stated. It was a case upon an agreed statement of facts; and the difference resulted in the appli- cation of the law to the facts then presented. It is to be noticed that the receipt containing the limitation relied on was in that case delivered to a workman in the employ of a stranger, who, so far as it appears, had, in that particular instance only, been requested by the plaintiffs to deliver the parcel in their absence, and as a mere favor to them. And it further appeared that the previous course of dealing between the parties was such that, in a majority of instances in which the plain- tiffs had employed the defendants to transport like packages, no receipt was made out, and no special contract insisted upon. Under such circumstances, it was held that it could not fairly be inferred that the plaintiffs understood and assented to the contents of the receipt as fixing the terms on which the defendants were to transport the mer- chandise, or that the workman had authority to make an unusual contract. The same remarks apply to the case of Perry v. Thompson, 98 Mass. 249, which is to be distinguished from the case at bar by the fact that, in the previous dealings of the parties, property had been received and carried without any notice relating to the carrier’s liability having been given, and by the further fact that, when the notice in that instance was received, the printed parts of it were so covered up by the revenue stamp affixed to the receipt that it could not be read intelligibly. So in Fillebrown v. Grand Trunk Railway Co., 55 Maine, 462, it was held that, when a verbal contract for transportation was made without restriction, its legal effect would not be changed by the condi- tions in a receipt which was subsequently given to the clerk of the - BLOSSOM v. DODD. 513 consignor, who delivered the goods at the station, but who had no express authority either to deliver or to contract with the defendants. These cases do not reach the case at bar, where the delivery of the receipt was directly to the plaintiff; nor would they be held decisive in a case where the delivery was made and the receipt accepted under ordinary circumstances by a special or general agent of the owner, not a mere servant or porter, and who might be regarded as clothed with authority to bind the owner in giving instructions and making condi- tions affecting the transportion. Squire v. New York Central Railroad Co., 98 Mass. 239. Judgment for the defendant. BLOSSOM v. DODD. Court or Appeats, New York, 1870. [43 NV. Y. 264.] Cuacrca, C. J. The common-law liability of common carriers can- not be limited by a notice, even though such notice be brought to the knowledge of the persons whose property they carry. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485. But such liability may be limited by express contract. Dorr v. N. J. Steam Navigation Co., 1 Kern. 485; Bissell v. N. Y. Central R. R.Co., 442; French v. Buffalo, N. Y. & Erie R. R. Co., 4 Keyes, 108. The principal question in this case is, whether there was a contract made between the parties limiting the liability of the defendants to a loss of $100 for the valise and its contents, which the plaintiff in- trusted to their care. A facsimile of the card upon which the alleged contract was printed has been furnished in the papers. It does not appear, on examination, like a contract, and would not, from its gen- eral appearance, be taken for anything more than a token or check denoting the numbers of the checks received, to be used for identifica- tion upon the delivery of the baggage. The larger portion of the printed matter is an advertisement, in large type. The alleged con- tract is printed in very small type, and is illegible in the night by the. ordinary lights in a railroad car, and is not at all attractive, while other parts of the paper are quite so. Considerable stress is laid upon the fact that the words, ‘ Read this receipt,” were printed on the card in legible type. The receipt reads: “Received of M articles or checks numbered as below: 368-319.” “For Dodd’s Express.” The blank is not filled, nor is the receipt signed by any one. The invitation is not to read the contract, but the 1 Compare ; Lawrence v. N. Y. P. & B. RB. B., 36 Conn. 63; L. & N. R. R. v. Brown- lee, 14 Bush, 590; Kirkland v. Dinsmore, 62 N. Y. 171; Farnham vc. C. & A. R. R., 55 Pa. 53; Dillard v. L. & N. R. R., 2 Lea, 288. — Ep. 33 514 BLOSSOM v. DODD. receipt. In order to read it, the paper must be turned sideways; and no one, thus reading the receipt, would suspect that it had any con- nection with the alleged contract, which is printed in different and very small type across the bottom of the paper. It is no part of the re- ceipt, is not connected with it, and is not referred to in any other part of the paper. The defendants are dealing with all classes of the com- munity; and public policy, as well as established principles, demand that the utmost fairness should be observed. This paper is subject to the criticism made by Lord Ellenborongh, in Butler v. Heane, 2 Camp. 415, in which he said that “It called at- tention to everything that was attractive, and concealed what was cal- culated to repel customers ;” and added: ‘‘ If a common carrier is to be allowed to limit his liability, he must take care that any one who deals with him is fully informed of the limits to which he confines it.” Nor did the nature of the business necessarily convey the idea of a contract to the traveller in such a manner as to raise the presumption that he knew it was a contract, expressive of the terms upon which the property was carried, or limiting the liability of the carrier. Baggage is usually identified by means of checks or tokens. And such a card -does not necessarily import anything else. At all events, to have the effect claimed, the limitation should be as conspicuous and legible as «other portions of the paper. In Brown v. E. R. R. Co., 11 Cush. 97, where the limitation was printed upon the back of a passenger ticket, ‘the court says: ‘* The party receiving it might well suppose that it was a mere check, signifying that the party had paid his passage to the place indicated on the ticket.” In the case of Prentice v. Decker, 49 Barb. 21, and Limburger v. Westcott, 49 Barb. 283, limitations were claimed ‘upon the delivery of similar cards of another express com- jpany,-and the court held, in both cases, that such delivery did not ‘charge the persons receiving them with knowledge that they contained contracts. A different construction was put upon the delivery of a similar card, in Hopkins v. Westcott, 6 Blatchf. R. 64; but I infer that the learned judge who delivered the opinion intended to decide that something short of an express contract will suffice to screen the carrier from his common-law liability, and that a notice, personally served, which could be read, would have that effect. The attention of the court does not seem to have been directed to the distinction be- tween such a notice and a contract. The delivery and acceptance of a paper containing the contract may be binding, though not read, pro- vided the business is of such a nature and the delivery is undér such circumstances as to raise the presumption that the person receiving it knows that it is a contract, containing the terms and conditions upon which the property is received to be carried. In such a case it is pre- sumed that the person assents to the terms, whatever they may be. This is the utmost extent to which the rule can be carried, without abandoning the principle that a contract is indispensable. ‘The recent case of Grace v. Adams, 100 Mass. 560, relied upon by the defendant’s BLOSSOM ¥v. DODD. 515 eounsel, was decided upon this principle. The plaintiff delivered a package of money to an express company, and took a receipt contain- ing a provision exempting the company from liability for loss by fire; andl the court held that he knew that the paper contained the condi- tions upon which the money was to be carried, and was, therefore, presumed to have assented to them, although he did not read the paper. The court say: ‘‘It is not claimed that he did not know, when he took it, that it was a shipping contract, or billof lading.” So, in Van Goll v. The S. E. R. Co., 104 Eng. Com. Law R. 75, the same princi- ple was decided. Willes, J., said: ‘‘ Assuming that the plaintiff did not read the terms of the condition, it is evident she knew they were there.” Keating, J., said: ‘‘It was incumbent on the company to show that such was the contract.” . .. ‘*I think there was evidence that the plaintiff assented to those terms.” As to bills of lading and other commercial instruments of like char- acter, it has been held that persons receiving them are presumed to know, from their uniform character and the nature of the business, that they contain the terms upon which the property is to be carried. But checks for baggage are not of that character, nor is such a card as was delivered in this instance. It was, at least, equivocal in its character. In such a case a person is not presumed to know its contents, or to assent to them. The circumstances under which the paper was received repel the idea of a contract. No such intimation was made to the plaintiff. He did not, and could not, if he had tried, read it in his seat. It is found that he might have read it at the end of the car, or by the lights on the pier or in the ferryboat; and it is claimed that he should have done so, and, if dissatisfied, should have expressed his dissent. If he had done so, and, in the bustle and confusion incident to such occasions, could have found the messenger and demanded his baggage, the latter might have claimed, upon the theory of this defence, that the contract was completed at the delivery of the paper, and that he had a right to per- form it and receive the compensation. It is impossible to maintain this defence without violating established legal principles in relation to contracts. It was suggested on the argu- ment, that the stipulation to charge according to the value of the prop- erty is just and proper. This may be true; but the traveller should have something to say about it. The contract cannot be made by one party. If the traveller is informed of the charges graduated by value, he can have a voice in the bargain; but, in this case, he had none. Whilst the carrier should be protected in his legal right to limit-his re- sponsibility, the public should also be protected against imposition and fraud. The carrier must deal with the public upon terms of equality ; and, if he desires to limit his liability, he must secure the assent of those with whom he transacts business. My conclusion is, that no contract was proved. 1. Because it was obscurely printed. 516 ANCHOR LINE v. DATER. 2. Because the nature of the transaction was not such as necessarily charged the plaintiff with knowledge that the paper contained the contract. 8. Because the circumstances attending the delivery of the card re- pel the idea that the plaintiff had such knowledge, or assented in fact to the terms of the alleged contract. The order granting a new trial must be affirmed, and judgment abso- lute ordered for the plaintiff, with costs. All the judges concurring, upon the ground that no contract limiting the liability of defendants was proved. Order affirmed, and judgment absolute for the plaintiff ordered. ANCHOR LINE v. DATER. Supreme Coort oF Iviinors, 1873. [68 Ill. 369.] Bresssz, C.J.” This was an action on the case, against appellants as a common carrier, for failing to carry and deliver to the consignee two hundred barrels of flour. The general issue was pleaded, and the cause tried by the court without a jury, who found the issue for the plaintiffs, and assessed their damages at fourteen hundred dollars. A motion for a new trial was overruled and judgment rendered for the plaintiffs. To reverse this judgment the defendants appeal. The flour was destroyed in the warehouse of appellants by the great October fire. It was delivered to appellants’ agent late on Saturday, the 7th day of October, too late in the day to be placed on board the propeller of that day, and was warehoused in a safe ware- house. The bill of lading delivered to the consignors relieves the carrier from liability for loss by fire, while the property is in transit or while in depots, &e. This bill of lading, appellants insist, was the contract of the parties, by which they are bound, and the provisions of which are plainly and easily understood by any business man, and the assent of the shipper to the terms contained in it should be presumed. The court, sitting as a jury, did not find evidence sufficient to justify it in presuming assent from the mere acceptance of the receipt. The shipper had no alternative but an acceptance of it, and his assent to its conditions cannot be inferred from that fact alone. It is in proof 1 Compare : Ramaley v. Leland, 6 Robt. (N. Y.) 358. — Ep 2 Part of the opinion is omitted. — Ep. WEHMANN v. MINNEAPOLIS, ETC. RAILWAY. 517 that its terms and conditions were not known to these shippers, although they had accepted a large number of them in the course of their busi- ness with the appellants. The terms and conditions of this bill of lading, or receipt, were in- serted for the purpose of limiting the liability appellants were under by the common law. They should appear plainly in the instrument, be understood by the consignor, and knowingly accepted as the contract of the parties, and intended to evidence the terms of the contract. These were points for the court trying the case, and the finding of the court in this respect cannot be disturbed. We see no cause to depart from the rule established by this court, in Adams Express Co. v. Haynes, 42 Ill. 89, and Ill. Central R. R. Co. v. Frankenberg et a/., 54 Ill. 88, and that is, if a shipper takes a receipt for his goods from a common carrier, which contains conditions limit- ing the liability of the carrier, with a full understanding, on the part of the shipper, of such conditions, and intending to assent to them, it becomes his contract as fully as if he had signed it, and these are questions for the jury... .7 WEHMANN v. MINNEAPOLIS, ST. PAUL AND SAULT SAINTE MARIE RAILWAY. Supreme Court or Minnesota, 1894. [58 Minn. 22.] Griritian, C. J. The defendant had a connection with the Lehigh Valley Transportation Company and the Lehigh Valley Railroad Com- pany, forming a continuous line from Minneapolis to various points in the east; the defendant’s part of such continuous line being by rail from Minneapolis to Gladstone, Mich., the transportation company’s part by boat from Gladstone to Buffalo, N. Y., and the Lehigh Valley Railroad Company’s from Buffalo by rail to various points in the east, among them to Philadelphia. The three carriers had established and published joint or through tariffs of rates for freight carriage from Minneapolis to the various points in the east to which the continuous line extended, so as to come within the provisions of 25 U. S. Stat. ch. 382, p. 855. Plaintiffs shipped with defendant, at Minneapolis, a carload of flour, consigned to a party named in the bill of lading at Pbiladelphia. It arrived at Gladstone November 21, 1891, was put in defendant’s warehouse at that place, where it remained till November 29th, when it was destroyed by fire. There was no evidence on the trial that notice of the arrival of the flour at Gladstone was given to the trans- portation company or to the plaintiff. 1 Compare: Gaines v. Union T. & I. Co., 28 Oh. St. 418. Ep. 518 WEHMANN v. MINNEAPOLIS, ETC. RAILWAY. We do not think the establishing of joint or through rates in such cases of itself makes the different carriers in the continuous line joint carriers for the line, or makes any one of the carriers liable for the defaults of any of the others. At the most, the receiving carrier would be agent for each of the others to contract for carriagé over their respective lines, so as to create a duty on each to receive goods at the point where the preceding carrier’s line ends, and carry them to the end of its part of the line, and deliver them to the carrier next beyond. The bill of lading executed by defendant to plaintiff cannot be con- strued to be a contract on its own behalf to carry from Minneapolis to Philadelphia, or anything more than a contract to carry over its own line to Gladstone, and there deliver to the transportation company. Under such an arrangement for a continuous line and joint or through rates it is the duty of the first or receiving carrier, on receiv- ing goods for carriage to any point on the continuous line beyond its own line to carry them with due despatch to the end of its line, and there deliver them to the next carrier, whose duty it is to receive and carry them with due despatch to their place of destination, and deliver them to the owner or consignee; or, if the place of destination be be- yond its own line, to deliver them at the end of its line to the next carrier, to which a like duty will then attach. In such case, the owner, by delivering his goods to be carried through, does not contemplate nor make a contract for storage. His contract is for carriage, and, until the goods reach their final destination, he has a right to a con- tinuous carrier’s duty and responsibility, which cannot, without his consent, be changed to the duty and responsibility of a warehouseman, however convenient that might be for the carrier. And, from the time its duty of carrier attaches, any carrier in the line can discharge itself of the responsibility as such only by performing its full duty by carry- ing the goods, and delivering them to the next carrier if they are to go beyond its line. The responsibility of the preceding carrier does not cease until the responsibility of the next one attaches. Any other rule would make any arrangement for a continuous line and through rates a snare to the public. The liability of the defendant is to be determined as though its contract had been to carry to Gladstone, and there deliver to any consignee. There is no express evidence on the point, but under the arrange- ment for a continuous line, it is to be presumed that the transporta- tion company had an agent at that point, to whom the flour might have been delivered, and to whom notice of its arrival might have been given; and that the defendant knew who that agent was. When the consignee resides at the place of destination, or has an agent there, authorized to receive the goods, and that is known to the carrier, the latter’s liability as carrier does not end, and the liability become that of a warehouseman, until the lapse, after notice to such consignee or agent that the goods have arrived, of a reasonable time to WEHMANN ¥. MINNEAPOLIS, ETC. RAILWAY. 519 receive and remove them. Derosia v. Winona & St. Peter R. Co., 18 Minn. 183 (Gil. 119); Pinney v. First Division St. P. & P. R. Co., 19 Minn. 251 (Gil. 211). As the flour was not delivered to the transporation company, nor notice of its arrival given to its agent, so that its responsibility as carrier might attach, the responsibility of defendant as carrier had not ended at the time of the fire, unless, by virtue of a clause in the bill of lading in these words: ‘‘It being further expressly agreed that this company assumes no liability, and it is not to be held responsible as common carrier, for any loss or injury to said property after its arrival at its warehouse aforesaid, or for any loss or damage thereto, or any delay in transportation or delivery thereof, by any connecting or suc- ceeding carrier.” Conceding that, because this was a shipment for carriage beyond the limits of the State, the statutes of the State do not apply, and that the validity of the clause is to be determined by the principles of the com- mon law, then the question arises, was there a consideration to support it? Such a clause, to be of force, must stand as a contract between the shipper and the carrier, and, as in the case of all contracts, there must be a consideration for it. One exercising the employment of a com- mon carrier of goods is bound to receive and carry such (within the class of goods that he carries) as are tendered to him for the purposes, and, in the absence of special contract, to carry them with the full common-law liability of a common carrier. His receipt of and under- taking to carry them, being a duty imposed on him by law, is not a consideration to support such special contract. There must be some other. That is generally furnished by some concession in rates. And, where the agreement is set forth in the contract for carriage, it would probably be presumed that, in a case where parties could make any, there was some such concession as a consideration for relieving the carrier of part of his common-law liability. But in such a case as this, any abatement of rates is forbidden by act of Congress, and therefore none can be presumed. The tariff of joint rates in the case makes no mention of any limita- tion of liability. They are to be taken, therefore, as rates established for carriage with full common carrier's liability ; and under the act of Congress no abatement could be made to support a contract for a limited liability. The clause is void for want of a consideration to support it. Order affirmed. 520 EXPRESS COMPANY v. CALDWELL. EXPRESS COMPANY v. CALDWELL. Supreme Court or THE Unirep States, 1874. [21 Wall. 264.] Error to the Circuit Court for the Western District of quiets Caldwell sued the Southern Express Company in the court below, as a common carrier, for its failure to deliver at New Orleans a package received by it on the 23d day of April, 1862, at Jackson, Tennessee ; places the transit between which requires only about one day. The company pleaded that when the package was received ‘‘ it was agreed between the company and the plaintiff, and made one of the express conditions upon which the package was received, that the company should not be held liable for any loss of, or damage to, the package whatever, unless claim should be made therefore within ninety days from its delivery to it.” The plea further averred that no claim was made upon the defendant, or upon any of its agents, until the year 1868, more than ninety days after the delivery of the. package to the company, and not until the present suit was brought. To the plea thus made the plaintiff demurred generally, and the Circuit Court sus- tained the demurrer, giving judgment thereon against the company. Whether this judgment was correct was the question now to be passed on here. Strong, J. Notwithstanding the great rigor with which courts of law have always enforced the obligations assumed by common carriers, and notwithstanding the reluctance with which modifications of that responsibility, imposed upon them by public policy, have been allowed, it is undoubtedly true that special contracts with their employers limit- ing their liability are recognized as valid, if in the judgment of the courts they are just and reasonable —if they are not in conflict with sound legal policy. The contract of a common carrier ordinarily is an assumption by him of the exact duty which the law affixes to the rela- tion into which he enters when he undertakes to carry. That relation the law regards as substantially one of insurance against all loss or dam- age except such as results from what is denominated the act of God or of the public enemy. But the severe operation of such a rule in some cases has led to a relaxation of its stringency, when the consignor and the carrier agree to such a relaxation. All the modern authorities concur in holding that, to a certain extent, the extreme liability exacted by the common law originally may be limited by express contract. The difficulty is in determining to what extent, and here the authorities differ. Certainly it ought not to be admitted that a common carrier can be relieved from the full measure of that responsibility which ordinarily attends his occupation without a clear and express stipula- tion to that effect obtained by him from his employer. And even when such a stipulation has been obtained the court must be able to see that it is not unreasonable. Common carriers do not deal with their em- EXPRESS COMPANY v. CALDWELL. 521 ployers on equal terms. There is, in a very important sense, a neces- sity, for their employment. In many cases they are corporations chartered for the promotion of the public convenience. They have possession of the railroads, canals, and means of transportation on the rivers. They can and they do carry at much cheaper rates than those which private carriers must of necessity demand. They have on all important routes supplanted private carriers. In fact they are without competition, except as between themselves, and that they are thus is in most cases a consequence of advantages obtained from the public. It is, therefore, just that they are not allowed to take advantage of their powers, and of the necessities of the public to exact exemptions from that measure of duty which public policy demands. But that which was public policy a hundred years ago has undergone changes in the progress of material and social civilization. There is less danger than there was of collusion with highwaymen. Intelligence is more rapidly diffused. It is more easy to trace a consignment than it was. It is more difficult to conceal.a fraud. And, what is of equal importance, the business of common carriers has been_immensely increased and subdivided. The carrier who receives goods is very often not the one who is expected to deliver them to the ultimate consignees. He is but one link of a chain. Thus his hazard is greatly increased. His em- ployers demand that he shall be held responsible, not merely for his own acts and omissions, and those of his agents, but for those of other carriers whom he necessarily employs for completing the transit of the goods. Hence, as we have said, it is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable and not inconsistent with sound public policy. This subject has been so fully considered of late in this court that it is needless to review the authorities at large. In York Company v. The Central Railroad Company, 3 Wall. 107, it is ruled that the common- law liability of a common carrier may be limited and qualified by special contract with the owner, provided such special contract do not attempt to cover losses by negligence or misconduct. And in a still later case, Railroad Company v. Lockwood, 17 Wall. 357, where the decisions are extensively reviewed, the same doctrine is asserted. The latter case, it is true, involved mainly an inquiry into the reasonable- ness of an exception stipulated for, but it unequivocally accepted the rule asserted in the first mentioned case. The question, then, which is presented to us by this record is, whether the stipulation asserted in the defendant’s plea is a reasonable one, not inconsistent with sound public policy. It may be remarked, in the first place, that the stipulation is not a conventional limitation of the right of the carrier’s employer to sue. He is left at liberty to sue at any time within the period fixed by the statute of limitations. He is only required to make his claim within - 522 EXPRESS COMPANY v. CALDWELL. ninety days, in season to enable the carrier to ascertain what the facts are, and having made his claim, he may delay his suit. It may also be remarked that the contract is not a stipulation for exemption from responsibility for the defendants’ negligence, or for that of their servants. It is freely conceded that had it been such, it would have been against the policy of the law, and inoperative. Such was our opinion in Railroad Company v. Lockwood. A common carrier is always responsible for his negligence, no matter what. his stipulations may be. But an agreement that in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is perfectly consistent with hold- ing the carrier to the fullest measure of good faith, of diligence, and of capacity, which the strictest rules of the common law ever required. And it is intrinsically just, as applied to the present case. The defend- ants are an express company. We cannot close our eyes to the nature of their business. They carry small parcels, easily lost or mislaid and not easily traced. They carry them in great numbers. Express com- panies are modern conveniences, and notoriously they are very largely employed. They may carry, they often do carry hundreds, even thousands of packages daily. If one be lost, or alleged to be lost, the difficulty of tracing it is increased by the fact that so many are carried, and it becomes greater the longer the search isdelayed. If a bailor may delay giving notice to them of a loss, or making a claim indefi- nitely, they may not be able to trace the parcels bailed, and to recover them, if accidentally missent, or if they have in fact been properly delivered. With the bailor the bailment is a single transaction, of which he has full knowledge; with the bailee, it is one of a multitude. There is no hardship in requiring the bailor to give notice of the loss if any, or make a claim for compensation within a reasonable time after he has delivered the parcel to the carrier. There is great hardship in requiring the carrier to account for the parcel long after that time, when he has had no notice of any failure of duty on his part, and when the lapse of time has made it difficult, if not impossible to ascertain the actual facts. For these reasons such limitations have been held valid in similar contracts, even when they seem to be less reasonable than in the contracts of common carriers. Policies of fire insurance, it is well known, usually contain stipula- tions that the insured shall give notice of a loss, and furnish proofs thereof within a brief period after the fire, and it is undoubted that if such notice and proofs have not been given in the time designated or have not been waived, the insurers are not liable. Such conditions have always been considered reasonable, because they give the in- surers an opportunity of inquiring into the circumstances and amount of the loss, at a time when inquiry may be of service. And still more, conditions in policies of fire insurance that no action shall be brought EXPRESS COMPANY v. CALDWELL, 523 for the recovery of a loss unless it shall be commenced within a speci- fied time, less than the statutory period of limitations, are enforced, as not against any legal policy. See Riddlesbarger v. Hartford Insur- ance Co., 7 Wall. 386, and the numerous cases therein cited. Telegraph companies, though not common carriers, are engaged in a business that is in its nature almost, if not quite, as important to the public as is that of carriers. Like common carriers they cannot con- tract with their employers for exemption from liability for the consc- quences of their own negligence. But they may by such contracts, or by their rules and regulations brought to the knowlege of their em- ployers, limit the measure of their responsibility to a reasonable extent. Whether their rules are reasonable or unreasonable must be determined with reference to public policy, precisely as in the case of a carrier: And in Wolf v. The Western Union Telegraph Co., 62 Penn. St. 83, a case where one of the conditions of a telegraph company, printed in their blank forms, was that the company would not be liable for dam- ages in any case where the claim was not presented in writing within sixty days after sending the message, it was ruled that the condition was binding on an employer of the company who sent his message on the printed form. The condition printed in the form was considered a reasonable one, and it was held that the employer must make claim according to the condition, before he could maintain an action. Ex- actly the same doctrine was asserted in Young v. The Western Union Telegraph Co., 34 N. Y. Super. Ct. 390. In Lewis v. The Great Western Railway Co.,5 H. & N. 867, which was an action against the company as common carriers, the court sustained as reasonable stipulations in a bill of lading, that “no claim for deficiency, damage, or detention would be allowed, unless made within three days after the delivery of the goods, nor for loss, unless made within seven days from the time they should have been delivered.” Under the last clause of this condition the onus was imposed upon the shipper of ascertaining whether the goods had been delivered at the time they should have been, and in case they had not, of making his claim within seven days thereafter. In the case we have now in hand the agreement pleaded alloweé ninety days from the delivery of the parcel to the company, within which the claim might be made, and no claim was made until four years thereafter. Possibly such a condition might be regarded as unreasonable, if an insufficient time were allowed for the shipper to learn whether the carrier’s contract had been per- formed2 But that cannot be claimed here. The parcel was received at Jackson, Tennessee, for delivery at New Orleans. The transit re- quired only about one day. We think, therefore, the limitation of the defendants’ common-law liability to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sufficient defence to the action. 1 See Garton v. B. & E. Ry., 1 B. & S. 112; Capehart v.S.& R. R. R., 81 N.C. 438; Adams Exp. Co. v. Reagan, 29 Ind. 21. See Glenn v. Southern Exp. Co., 86 Tenn. 594.— Ep. 524 EXPRESS COMPANY v. CALDWELL. We have been referred to one case which seems to intimate, and perhaps should be regarded as deciding that a stipulation somewhat like that pleaded here is insufficient to protect the carrier. It is the Southern Express Company v. Canerton, 44 Ala. 101. There the receipts for the goods contained a provision that there should be no liability for any loss unless the claim therefor should be made in writ- ing, at the office of the company at Stevenson, within thirty days from the date of the receipt, in a statement to which the receipt should be annexed. The receipt was signed by the agent of the company alone. It will be observed that it was a much more onerous requirement of the shipper than that made in the present case, and more than was necessary to give notice of the loss to the carrier. The court, after remarking that a carrier cannot avoid his responsibility by any mere general notice, nor contract for exemption from liability for his negli- gence or that of his servants, added that he could not be allowed to make a statute of limitations so short as to be capable of becoming a means of fraud; that it was the duty of the ‘‘ defendant to deliver the package to the consignee, and that it was more than unreasonable to allow it to appropriate the property of another by a failure to perform a duty, and that too under the protection of a writing signed only by its agent, the assent to which by the other party was only proven by his acceptance of the paper.” This case is a very unsatisfactory one. It appears to have regarded the stipulation as a statute of limitations, which it clearly was not, and it leaves us in doubt whether the decision was not rested on the ground that there was no sufficient evidence of a contract. The case cited from 36 Ga. 532, has no relation to the question before us. It has reference to the inquiry, what is sufficient proof of an agreement between the shipper and the carrier, an inquiry that does not arise in the present case, for the demurrer admits an express agreement. Onr conclusion, then, founded upon the analogous decisions of courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the de- fendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity, and care as they would have been required to exercise if no such agreement had been made. All that the stipulation required was that the shipper, in case the package was lost or damaged, should assert his claim in season to enable the defendants to ascertain the facts; in other words, that he should assert it within ninety days. It follows that the Circuit Court erred in sustaining the plaintiff’s demurrer to the plea. Judgment reversed, and the cause remanded for further pro- ceedings, in conformity with this opinion. 1 See W. U. T. Co. », Dunfield, 11 Col. 335; Black v. W. S.L. & P. Ry., 111 Ill. 351 ; Sprague v. M. P. Ry., 34 Kans. 347. See also Western Ry. v. Little, 86 Ala. 159; Phifer v. C. C. Ry., 89 N. C. 311. — Ep. PRIMROSE v¥. WESTERN UNION TELEGRAPH CO. 525 PRIMROSE v. WESTERN UNION TELEGRAPH CO. Supreme Court or THE Unitep Starzs, 1894, [154 U.S.1.] Gray, J.*_ This was an action by the sender of a telegraphic mes- sage against the telegraph company to recover damages for a mistake in the transmission of the message, which was in cipher, intelligible only to the sender and to his own agent, to whom it was addressed. The plaintiff paid the usual rate for this message, and did not pay for a repetition or insurance of it. The blank form of message, which the plaintiff filled up and signed, and which was such as he had constantly used, had upon its face, im- mediately above the place for writing the message, the printed words, ‘*Send the following message subject to the terms on back hereof, which are hereby agreed to;” and, just below the place for his sig- nature, this line: — 2 ‘¢ Read the notice and agreement on back of this blank.-@a”’ . Upon the back of the blank were conspicuously printed the words, ‘All messages taken by this company are subject to the following terms,” which contained the following conditions or restrictions of the liability of the company : ‘¢ [1st.] To guard against mistakes or delays, the sender of a mes- sage should order it REPEATED; that is, telegraphed back to the original office for comparison. For this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any UNREPEATED message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same ; ‘¢[2d.] nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any REPEATED message, beyond fifty times the sum received for sending the same, unless specially insured ; ‘¢[3d.] nor in any case for delays arising from unavoidable inter- ruption in the working of its lines, or for errors in cipher or obscure messages.” After stating the rates at which correctness in the transmission of a message may be insured, it is provided that ‘* no employee of the com- pany is authorized to vary the foregoing.” ‘¢f4th.] The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.” The conditions or restrictions, the reasonableness and validity of 1 Part of the opinion, discussing the measure of damages, is omitted. — Ep. 526 PRIMROSE v. WESTERN UNION TELEGRAPH CO. which are directly involved in this case, are that part of the first, by which the company is not to be liable for mistakes in the transmission or delivery of any message, beyond the sum received for sending it, unless the sender orders it to be repeated by being telegraphed back to the originating office for comparison, and pays half that sum in ad- dition ; and that part of the third, by which the company is not to be liable at all for errors in cipher or obscure messages, Telegraph companies resemble railroad companies and other common carriers, in that they are instruments of commerce; and in that they exercise a public employment, and are therefore bound to serve all cus- tomers alike, without discrimination. They have, doubtless, a duty to the public, to receive, to the extent of their capacity, all messages clearly and intelligibly written, and to transmit them upon reasonable terms. But they are not common carriers; their duties are different, and are performed in different ways; and they are not subject to the same liabilities. Express Co. v. Caldwell, 21 Wall. 264, 269, 270; Telegraph Co. v. Texas, 105 U. 8. 460, 464. The rule of the common law, by which common carriers of goods are held liable for loss or injury by any cause whatever, except the act of God, or of public enemies, does not extend even to warehousemen or wharfingers, or to any other class of bailees, except innkeepers, who, like carriers, have peculiar opportunities for embezzling the goods or for collusion with thieves. The carrier has the actual and manual pos- session of the goods; the identity of the goods which he receives with those which he delivers can hardly be mistaken; their value can be easily estimated, 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. But telegraph companies are not bailees, in any sense. They are intrusted with nothing but an order of message, which is not to be carried in the form or characters in which it is received, but it is to be translated and transmitted through different symbols by means of elec- tricity, and is peculiarly liable to mistakes. The message cannot be the subject of embezzlement; it is of no intrinsic value; its importance cannot be estimated, except by the sender, and often cannot be dis- closed by him without danger of defeating his purpose; it may be wholly valueless, if not forwarded immediately ; and the measure of damages, for a failure to transmit or deliver it, has no relation to any value of the message itself, except as such value may be disclosed by the message, or be agreed between the sender and the company. As said by Mr. Justice Strong, speaking for this court, in Express Co. v. Caldwell, above cited: ‘+ Like common carriers they cannot con- tract with their employers for exemption from liability for the conse- quences of their own negligence. But they may by such contracts, or by their rules and regulations brought to the knowledge of their employers, limit the measure of their responsibility to a reasonable ex- tent. Whether their rules are reasonable or unreasonable must be PRIMROSE v¥. WESTERN UNION TELEGRAPH CO. 527 determined with reference to public policy, precisely as in the case of a carrier.” By the settled law of this court, common carriers of goods or passen- gers cannot, by any contract with their customers, wholly exempt themselves from liability for damages caused by the negligence of themselves or their servants. Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. 8. 397, 442, and cases cited. But even a common carrier of goods may, by special contract with the owner, restrict the sum for which he may be liable, even in case of a loss by the carrier’s negligence ; and this upon the distinct ground, as stated by Mr. Justice Blatchford, speaking for the whole court, that ‘* Where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.” Hart v. Pennsylvania Railroad, 112 U. 8. 831, 343. By the regulation now in question, the telegraph company has not undertaken to wholly exempt itself from liability for negligence; but only to require the sender of the message to have it repeated, and to pay half as much again as the usual price, in order to hold the com- pany liable for mistakes or delays in transmitting or delivering, or for not delivering a message, whether happening by negligence of its ser- vants, or otherwise. In Western Union Tel. Co. v. Hall, 124 U. S. 444,-453, the effect of such a regulation was presented by the certificate of the Circuit Court, but was not passed upon by this court, because it was of opinion that upon the facts of the case the damages claimed were too uncertain and remote. But the reasonableness and validity of such regulations have been upheld in McAndrew v. Electric Tel. Co., 17 C. B. 8, and in Baxter v. Dominion Tel. Co., 37 U. C. Q. B. 470, as well as by the great pre- ponderance of authority in this country. Only a few of the principal cases need be cited.? The only cases, cited by the plaintiff, in which, independently of statute, a stipulation that the sender of a message, if he would hold the company liable in damages beyond the sum paid, must have it repeated and pay half that sum in addition, has been held against public policy 1 The learned judge cited, to the same effect, Camp v. W. U. T. Co., 1 Met. (Ky.) 164; W.U. T. Co. v. Carew, 15 Mich. 525; Birney v. N. Y. & W. T. Co., 18 Md. 341; U.S. T. Co. v. Gildersleeve, 29 Md. 232; Passmore v. W. U. T. Co., 9 Phila. 90, 78 Pa. 246; W. U. T. Co. uv. Stevenson, 128 Pa, 442; Breese v. U.S. T. Co., 48 N. Y. 132; Kiley v. W. U. T. Co., 109 N. Y. 231; and other cases. — Ep. 528 PRIMROSE Vv. WESTERN UNION TELEGRAPH CO. and void, appear to be Tyler v. Western Union Tel. Co., 60 Tllinois, 421, and 74 Illinois, 168; Ayer v. Western Union Tel. Co., 79 Maine, 493; Telegraph Co. v. Griswold, 37 Ohio St. 301; Western Union Tel. Co. v. Crall, 38 Kansas, 679; Western Union Tel. Co. v. Howell, 38 Kansas, 685; and a charge to the jury by Mr. Justice Woods, when circuit judge, as reported in Dorgan v. Telegraph Co., 1 Amer. Law Times (N. 8.), 406, and not included in his own reports. The fullest statement of reasons, perhaps, on that side of the ques- tion, is to be found in Tyler v. Western Union Tel. Co., above cited. In that case, the plaintiffs had written and delivered to the company on one of its blanks, containing the usual stipulation as to repeating, this message, addressed to a broker, ‘‘ Sell one hundred (100) Western Union; answer price.’ In the message, as delivered by the company to the broker, the message was changed by substituting ‘* one thousand (1000).” It was assumed that “ Western Union” meant shares in the Western Union Telegraph Company. The Supreme Court of Illinois held that the stipulation was “unjust, unconscionable, without con- sideration, and utterly void.” 60 Illinois, 439. The propositions upon which that decision was based may be suf- ficiently stated, in the very words of the court, as follows: ‘‘ Whether the paper presented by the company, on which a message is written and signed by the sender is a contract or not, depends on circumstances,” and ‘‘whether he had knowledge of its terms and consented to its restrictions is for the jury to determine as a question of fact upon evi- dence aliunde.” “ Admitting the paper signed by the plaintiffs was a contract, it did not, and could not, exonerate the company from the use of ordinary care.and diligence, both as to their instruments and the care and skill of their operators.” ‘* The plaintiffs having proved the inaccuracy of the message, the defendants, to exonerate themselves, should have shown how the mistake occurred ;” and, ‘‘in the absence of any proof on their part, the jury should be told the presumption was a want of ordinary care on the part of the company.” The printed conditions could not ‘* protect this company from losses and damage occasioned by causes wholly within their own control,” but ‘* must be confined to mistakes due to the infirmities of telegraphy, and which are unavoidable.” 60 Illinois, 431-433. The effect of that construction would be either to hold telegraph companies to be subject to the liability of common carriers, which the court admitted in an earlier part of its opinion that they were not; or else to allow to the stipulation no effect whatever, for, if they were not common carriers, they would not, even if there were no express stipu- lation, be liable for unavoidable mistakes, due to causes over which they had no control. But the final, and apparently the principal, ground for that decision was restated by the court, when the case came before it a second time, as follows: ‘On the question whether the regulation requiring mes- sages to be repeated, printed on the blank of the company on which a PRIMROSE v. WESTERN UNION TELEGRAPH CO. 529 message is written, is a contract, we held, it was not a contract binding in law, for the reason the law imposed upon the companies duties to be performed to the public, and for the performance of which they were entitled to a compensation fixed by themselves, and which the sender had no choice but to pay, no matter how exorbitant it night be. Among these duties, we held, was that of transmitting messages cor- rectly ; that the tariff paid was the consideration for the performance of this duty in each particular case, and when the charges were paid the duty of the company began, and there was, therefore, no considera- tion for the supposed contract requiring the sender to repeat the mes- sage at an additional cost to him of fifty per cent of the original charges.” 74 Illinois, 170, 171. The fallacy in that reasoning appears to us to be in the assumption that the company, under its admitted power to fix a reasonable rate of compensation, establishes the usual rate as the compensation for the duty of transmitting any message whatever. Whereas, what the com- pany has done is to fix that rate for those messages only which are transmitted at the risk of the sender; and to require payment of the higher rate of half as much again if the company is to be liable for mis- takes or delays in the transmission or delivery or in the non-delivery of a message. Indeed, that learned court frankly admitted that its decision was against the general current of authority, saying: ‘‘ It must, however, be conceded that there is great harmony in the decisions that these companies can protect themselves from loss, by contract, and that such a regulation as the one under which appellees defended, is a reasonable regulation and amounts to a contract.” And again: ‘‘ We are not satisfied with the grounds on which a majority of the decisions of respectable courts are placed.” 60 Illinois, 430, 481, 435. In the case at bar, the message, as appeared by the plaintiff’s own testimony, was written by him at his office in Philadelphia, upon one of a bunch of the defendant's blanks, which he kept there for the purpose. Although he testified that he did not remember to have read the printed matter on the ,back he did not venture to say that he had not read it; still less, that he had not read the brief and clear notices thereof upon the face of the message, both above the place for writing the message, and below his signature. There can be no doubt, therefore, that the terms on the back of the message, so far as they were not inconsistent with law, formed part of the contract between him and the company under which the message was transmitted. The message was addressed by the plaintiff to his own agent in Kansas, was written in a cipher understood by them only, and was in these words: ‘* Despot am exceedingly busy bay all kinds quo perhaps bracken half of it mince moment promptly of purchases.” As delivered by the company to the plaintiff’s agent in Kansas, it had the words ‘‘ destroy ” instead of ‘* despot,” *‘ buy ” instead of ‘‘ bay,” and ‘‘ pur- chase ” instead of ‘* purchases.” 34 530 PRIMROSE v. WESTERN UNION TELEGRAPH CO. The message having been sent and received on June 16, the mistake, in the first word, of ‘* despot” for “destroy,” by which, for a word signifying, to those understanding the cipher, that the sender of the message had received from the person to whom it was addressed his message of June 15, there was substituted a word signifying that his message of June 17 had been received (which was evidently impos- sible), could have had no other effect than to put him on his guard as to the accuracy of the message delivered to him. The mistake of substituting, for the last word ‘‘ purchase” in the singular, the word ‘‘ purchases” in the plural, would seem to have been equally unimportant, and is not suggested to have done any harm. The remaining mistake, which is relied on as the cause of the injury for which the plaintiff seeks to recover damages in this action, consisted in the change of a single letter, by substituting ‘‘ u” for ‘‘a,” so as to put ‘“‘ buy ” in the place of ‘‘ bay.” By the cipher code, ‘‘ buy” had its common meaning, though the message contained nothing to suggest to any one, except the sender or his agent, what the latter was to buy; and the word ‘ bay,” according to that code, had (what no one without its assistance could have conjectured) the meaning of “I have bought.” The impression copies of the papers kept at the defendant’s offices at Brookville and Ellis, in the State of Kansas (which were annexed to the depositions of operators at those offices, and given in evidence by the plaintiff at the trial), prove that the message was duly transmitted over the greater part of its route, and as far as Brookville; for they put it beyond doubt that the message, as received and written down by one of the operators at Brookville, was in its original form ; and that, as written down by the operator at Ellis, it was in its altered form. While.the testimony of the deponents is conflicting, there is nothing in it to create a suspicion that either of them did not intend to tell the truth. Nor is there anything in the case, tending to show that there was any defect in the defendant’s instruments or equipment, or that any of its operators were incompetent persons, If the change of words in the message was owing to mistake or in- attention of any of the defendant’s servants, it would seem that it must have consisted either in a want of plainness of the handwriting of Tin- dall, the operator who took it down at Brookville, or in a mistake of his fellow operator, Stevens, in reading that writing, or in transmitting it to Ellis; or else in a mistake of the operator at Ellis, in taking down the message at that place. If the message had been repeated, the mis- take, from whatever cause it arose, must have been detected by means of the differing versions made and kept at the offices at Ellis and Brookville. As has been seen, the only mistake of any consequence in the trans- mission of the message consisted in the change of the word “ bay ” into ‘* buy,” or rather of the letter ‘a ’’ into ‘*u.” In ordinary hand- writing, the likeness between these two letters, and the likelihood of mistaking the one for the other, especially when neither the word nor PRIMROSE v¥, WESTERN UNION TELEGRAPH CO. 531 the context has any meaning to the reader, are familiar to all; and in telegraphic symbols, according to the testimony of the only witness upon the subject, the difference between these two letters is a single dot. The conclusion is irresistible, that if there was negligence on the part of any of the defendant’s servants, a jury would not have been warranted in finding that it was more than ordinary negligence; and that, upon priaciple and authority, the mistake was one for which the plaintiff, not having had the message repeated according to the terms printed upon the back thereof, and forming part of his contract with the company, could not recover more than the sum which he had paid for sending the single message. It is also to be remembered that, by the third condition or restriction in the printed terms forming part of the contract between these parties, it is stipulated that the company shall not be “liable in any case ” “ for errors in cipher or obscure messages ;” and that it is further stipulated that ‘‘no employee of the company is authorized to vary the fore- going,” which evidently includes this, as well as other restrictions. It is difficult to see anything unreasonable, or against public policy, in a stipulation that if the handwriting of a message, delivered to the company for transmission, is obscure, so as to be read with difficulty, or is in cipher, so that the reader has not the usual assistance of the context in ascertaining particular words, the company will not be re- sponsible for its miscarriage, and that none of its agents shall, by attempting to transmit such a message, make the company responsible. As the message was taken down by the telegraph operator at Brook- ville, in the same words in which it was delivered by the plaintiff to the company at Philadelphia, it is evident that no obscurity in the message, as originally written by the plaintiff, had anything to do with its failure to reach its ultimate destination in the same form. But it certainly was a cipher message; and to hold that the accep- tance by the defendant’s operator at Philadelphia made the company liable for errors in its transmission would not only disregard the ex- press stipulation that no employee of the company could vary the con- ditions of the contract, but would wholly nullify the condition as to cipher messages, for the fact that any message is written in cipher must be apparent to every reader. Judgment affirmed. Fuuter, C. J., and Haruan, J., dissented. 1 See, contra, Reed v. W. U. T. Co., 135 Mo. 661. — Ep. 5382 BELGER v. DINSMORE, BELGER v. DINSMORE. Commission or APPEALS, New York, 1872. [bl NV. ¥. 166.] Appeat from an order of the General Term of the Supreme Court in the first judicial district, setting aside a verdict in favor of defendant and granting a new trial. Reported below, 51 Barb. 69; 34 How. Pr. 421. The action was brought to recover the value of a trunk and its con- _ tents delivered by the plaintiff to the defendant for transportation, but which never reached its place of destination. It was shown, on the trial, that six trunks and three boxes were de- livered on the 4th day of May, 1864, by the wife of the plaintiff to the Adams Express Company to be carried from Baltimore, Maryland, to Newport, Rhode Island. When the said trunks and boxes were received by the company, a receipt was given therefor. The counsel for the plaintiff then offered to prove negligence on the part of the defendant, insisting that it had been guilty of gross neg- ligence and carelessness, but the court excluded such proof, and held that the said receipt was, to all intents and purposes, a contract be- tween the parties, and that defendant was by it excused from all liabil- ity, except as stated in the receipt. To this ruling the counsel for the plaintiff excepted. The court then, after the refusal of a request by the plaintiff to go to the jury on the question of gross negligence, against his exception, charged the jury that the contents of the said receipt were a contract binding on the plaintiff, and limited the liability of the Adams Express Company, and of the defendant for any loss of or damage to any of the contents of any of the trunks or boxes specified in said receipt to the sum of fifty dollars, and directed the jury to find a verdict for the plain- tiff for fifty dollars principal, with interest from the date of the re- ceipt. To which charge and direction the plaintiff's counsel excepted. The court ordered the exceptions to be heard in the first instance at General Term, and that judgment be in the meantime suspended. Lorr, C.C. The parties appear to agree upon two propositions, as established by the decision of the courts in this State. 1st. That the appellant, the Adams Express Company, is a common carrier. 2d. That common carriers may limit their liability by express contract. ‘ The question, then, arises whether there was such a contract in this case. The instrument relied on as evidence of the contract, as has al- . Part of the case is omitted. — Ep. BELGER v. DINSMORE. 533 ready been stated, does not merely acknowledge the delivery and receipt of the property in question to the express company for transportation, but, in connection therewith, it is declared to be a part of the terms and conditions on which it was received that the company was not to be responsible for loss and damages resulting from certain specified causes, unless proved to have occurred from fraud or gross negligence of the company or its agents; and that the holder thereof should not, in any event, demand beyond the sum of fifty dollars, fixed as the value of the article to be carried, unless otherwise expressed. A party accepting such an instrument, as has been already shown, declares his assent by such acceptance, to those terms and conditions. They thereby become obligatory on both parties, and prescribe their mutual rights and obligations. On the application of that rule to this case, the plaintiff assented (by omitting to have a different value expressed in the instrument) to the valuation of the property in question at the sum of fifty dollars, and to the restriction and limitation of his claim and demand for damages, in case of its loss, at that sum. Such liquidation of its value was for the advantage of both parties, to guard against controversy or difference of opinion in estimating it, in case of loss and damage, and as a pro- tection against fraud. It is reasonable to assume that the price or compensation for the transportation of property has relation to the re- stricted or limited liability assumed on agreeing to transport it, and is to a great degree regulated and graduated by its value; and if a party only pays the price fixed for articles of small value, or estimated at a low sum, he himself bears all risks beyond that value or price. The plaintiff in this case must be assumed to have paid freight on the trunk in question and its contents, worth $467, at the rate prescribed for an article not exceeding fifty dollars in value. He was then willing and agreed to assume all risks for the excess in value, and to relieve the company from all liability on account thereof beyond that sum. He can with no more propriety or justice claim remuneration therefor than the company could demand additional freight thereon. oe The rulings of the judge at the circuit were in accordance with those principles, and the General Term appear to have placed their decision, in directing a new trial, on the ground that the provision to which I have above referred, although contained in the receipt itself, was a notice merely, which it is said, in the opinion of the court, ‘‘ at most is only a proposal for a special contract which requires the assent of the other party.” The material fact in this case appears to be en- tirely overlooked, that the plaintiff, by accepting the receipt as evi- dence of the defendant’s obligation and liability, gave his assent to what was considered as a proposal, and to all its terms and conditions, and that it thereby became operative and effectual as a contract. The views above expressed show that the order of General Term, in setting aside the verdict and ordering a new trial, was erroneous. It must, therefore, be reversed and judgment on the verdict must be ren- 534 MOULTON v. ST. PAUL, MINNEAPOLIS, ETC. RAILWAY. dered against the defendant, with the costs of both appeals to the appellant. All concur. . Order reversed, and judgment accordingly. MOULTON v. St. PAUL, MINNEAPOLIS, AND MANITOBA RAILWAY. Supreme Court or Minnesota, 1883. [31 Minn. 85.] Dickinson, J.2. The plaintiffs shipped two carloads of horses at St. Paul, over defendant’s line of road, to points in Dakota. ‘Two of the horses died by reason of prolonged exposure to cold weather, as is claimed, caused by defendant’s negligent detention of the train during transportation. The action is for the recovery of the value of these two horses, which appears to have been $200 each. For the purposes of this appeal, we are to consider the negligence of the defendant as es- tablished, and are to determine whether the defendant is liable for its negligence, and the measure or extent of its liability under the contract made by the parties. The contract under which the property was shipped, and which was executed by both plaintiffs and defendant, contained the provisions that in consideration that the defendant would transport the property at the rate of $75 per carload, ‘‘ the same being a rate given, subject to the conditions of this contract,” the plaintiffs released the defendant from the liability of a common carrier, and from any liability for any delay in shipping the stock after its delivery to the defendant, and agreed that the liability of the defendant should be only that of a private carrier for hire. The plaintiffs contracted to assume all risk of damage which might be sustained by reason of any delay in transporta- tion, and all risk of damage from any other cause, not resulting from the wilful negligence of the agents of the defendant. It was further agreed that, in case of total loss, the damage should in no case exceed the sum of $100 per head, and, in case of partial loss, damage should 1 “Tf, without any representation of value by the shipper, or a request of him for a statement of value, and without notice and contract, and a valuable consideration, the carrier should place a value upon the articles received for carriage, that would not bind the shipper. In such case, he would clearly have the right to recover the full value of the articles lost by the carrier. “Tf, on the other hand, for the purpose of getting reduced rates, the shipper should place a value upon the articles for carriage, or if by any kind of artifice he should in- duce the carrier to place a lower value upon the articles, and thus gets reduced rates, it seems to be settled by the weight of authority that he could not recover beyond the value so fixed by him, or the value which by deceit he caused the carrier to fix. To hold otherwise would be to enable the shipper to take advantage of his own wrong.” Zouuars, J., in Rosenfeld v. P. D. & E. Ry., 103 Ind. 121. — Ep. 2 Part of the opinion is omitted. — Ep. MOULTON ¥. ST. PAUL, MINNEAPOLIS, ETC. RAILWAY. 535 be measured in the same proportion. A printed “ regulation” of the defendant, attached to the contract, provided that the defendant would not assume any liability over $100 per head on horses and valuable live-stock, except by special agreement. By the contract of the parties the owner of the horses attended and cared for them upon the passage, without extra charge for his own transportation. . The same reasons which forbid that a common carrier should, even by express contract, be absolved from liability for his own negligence, stand also in the way of any arbitrary preadjustment of the measure of damages, where the carrier is partially relieved from such liability. It would indeed be absurd to say that the requirement of the law as to such responsibility of the carrier is absolute, and cannot be laid aside, even by the agreement of the parties, but that one-half or three-fourths of this burden, which the law compels the carrier to bear, may be laid aside, by means of a contract limiting the recovery of damages to one- half or one-fourth of the known value of the property. This would be mere evasion, which would not be tolerated. Yet there is no reason why the contracting parties may not in good faith agree upon the value of the property presented for transportation, or fairly liquidate the damages recoverable in accordance with the supposed value. Such an agreement would not be an abrogation of the requirements of the law, but only the application of the law as it is by the parties themselves to the circumstances of the particular case. But that the requirements of the law be not evaded, and its purposes frustrated, contracts of this kind should be closely scrutinized. Upon the face of the contract under consideration, it is apparent that it was not the purpose of the parties to liquidate the damages recov- erable, with reference to the value of the property consigned to the carrier. Its provisions are somewhat contradictory, and not easily reconciled. The general regulation attached to the contract, to the effect that the company ‘‘ will not assume any liability over one hun- dred dollars per head on horses and valuable live-stock except by spe- cial agreement,” is plainly opposed to the law as established, so far as regards the negligence of the carrier. As a regulation it is, therefore, of no effect. The law declares that the carrier shall be liable to the extent of the value of the property, although there be no special agree- ment. We do not question the right of a carrier to require the dis- closure, by the consignor, of the value of the property presented for trinsportation, where its value is not apparent and well known. This is reasonable, both to the end that proper care may be taken of the property while it is in the hands of the carrier, and because the proper charges for transportation may often depend largely upon value. We see nothing, however, in this contract which can be regarded as having been intended as calling for such a disclosure on the part of the plain- titfs, or as estopping them from claiming a recovery, upon the ground of the carrier’s negligence, of the actual value of the horses. In terms, the contract purports to relieve the defendant from liability, even for 536 HART v. PENNSYLVANIA RAILROAD. its own negligence, and, at the same time, if a recovery shall be had notwithstanding this agreement, then the amount of such recovery is limited to the sum of $100 per head. These stipulations cannot natu- rally be applied to a case involving as the cause of action the negligence of the carrier, without making them, in effect, to be an agreement in the first place for absolute exemption from liability (except for wilful negligence) ; and if, notwithstanding the agreed exemption, a recovery should be awarded, it shall not excced the sum named; that is to say (as applied to a case of negligence), it is, in effect, an agreement for absolute exemption, and, that failing to be sustained, then for a partial exemption, from the liability which the law imposes in such cases, and which cannot be laid aside by the mere consent of parties. Such a contract cannot be sustained. Order affirmed. HART v. PENNSYLVANIA RAILROAD. Supreme Court oF THE Unirep States, 1884. [112 U. 8. 331.] Briatcnrorp, J. It is contended for the plaintiff that the bill of lading does not purport to limit the liability of the defendant to the amounts stated in it, in the event of loss through the negligence of the defendant. But we are of opinion that the contract is not susceptible of that construction. The defendant receives the property for transpor- tation on the terms and conditions expressed, which the plaintiff ac- cepts ‘‘as just and reasonable.” The first paragraph of the contract dis that the plaintiff is to pay the rate of freight expressed, “on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding ‘two hundred dollars each. . . . If a chartered car, on the stock and -eontents in same, twelve hundred dollars for the car-load.” Then fol- low in the first paragraph, these words: ‘* But no carrier shall be liable for the acts of the animals themselves, or to each other, such as ‘biting, kicking, goring, or sniothering, nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier released therefrom.” This statement of the fact that the risks from the acts and condition of the horses are risks beyond the control of the defendant, and are, therefore, assumed by the plaintiff, shows, if more were needed than the other language of the contract, that the risks and liability assumed by the defendant in the remainder of the same paragraph are those not beyond, but within, the control of the defendant, and, therefore, apply to loss through the negligence of the defendant. HART v. PENNSYLVANIA RAILROAD. 537 It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evi- dence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the ex- tent of the agreed valuation named, the rate of freight is graduated by the valuation. Especially is this so, as the bill of lading is what its heading states it to be, ‘‘a limited liability live-stock contract,” and is confined to live-stock. Although the horses, being race-horses, may, aside from the bill of lading, have been of greater real value than that specified in it, whatever passed between the parties before the bill of lading was signed was merged in the valuation it fixed; and it is not asserted that the plaintiff named any value, greater or less, other- wise than as he assented to the value named in the bill of lading, by signing it. The presumption is conclusive that, if the liability had been assumed ona valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is in- dissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation, on the agreed rate of freight. It is further contended by the plaintiff, that the defendant was for- bidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is said, that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. But we see no sound reason for this distinction. The valuation named was the ‘‘ agreed valuation,” the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further. We are, therefore, brought back to the main question. It is the law of this court, that a common carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for exemp- tion from the consequences of his own negligence or that of his servants.? To the views announced in these cases we adhere. But there is not in them any adjudication on the particular question now before us. It 1 The learned judge here examined the following cases. York Co. v. Central R. R., 3 Wall. 107; R. R. v. Lockwood, 17 Wall. 357; Express Co. v. Caldwell, 21 Wall. 264; Bank of Kentucky v. Adams Express Co., 93 U. S. 174. — Ep. 538 HART v. PENNSYLVANIA RAILROAD. may, however, be disposed of on principles which are well established and which do not conflict with any of the rulings of this court. Asa general rule, and in the absence of fraud or imposition, a common car- rier is answerable for the loss of a package of goods though he is ignorant of its contents, and though its contents are ever so valuable, if he does not make a special acceptance. This is reasonable, because he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them. If the shipper is guilty of fraud or imposition, by misrepresent- ing the nature or value of the articles, he destroys his claim to indem- nity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the conse- quent risk assumed, and what he has done has tended to lessen the vigi- lance the carrier would otherwise have bestowed. 2 Kent’s Comm. 603, and cases cited; Relf v. Rapp, 3 Watts & Serg. 21; Dunlap v. Inter- national Steamboat Co., 98 Massachusetts, 371; Railroad Co. v. Fra- loff, 100 U. S. 24. This qualification of the liability of the carrier is reasonable, and is as important as the rule which it qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the carriage, if there is no Joss; and the effect of disregarding the agreement, after a loss, is to expose the carrier to a greater risk than the parties intended he should assume. The agreement as to value, in this case, stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract. The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract of transportation, between the parties to that contract. The'carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practised on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss. This principle is not a new one. In Gibbon v. Paynton, 4 Burrows, HART v, PENNSYLVANIA RAILROAD. 539 2298, the sum of £100 was hidden in some hay in an old mail-bag and sent by a coach and lost. The plaintiff knew of a notice by the pro- prietor that he would not be answerable for money unless he knew what it was, but did not apprise proprietor that there was money in the bag. The defence was upheld, Lord Mansfield saying: ‘A common carrier, in respect of the premium he is to receive runs the risk of the goods, and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expense of more guards or other methods of se- curity ; and, therefore, he ought, in reason and justice, to have @ greater reward.” To the same effect is Batson v. Donovan, 4 B. & A. 21. The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance. In the present case, the plaintiff accepted the valuation as ‘‘ just and reasonable.” The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation according to the nature of the animal. It does not appear that an unreasonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is supported in Newburger v. Howard, 6 Philadelphia Rep. 174; Squire v. New York Central R. R. Co., 98 Massachusetts, 239; Hopkins v. Westcott, 6 Blatchf. 64 ; Belger v. Dinsmore, 51 New York, 166; Oppenheimer v. United States Express Co., 69 Illinois, 62; Magnin v. Dinsmore, 56 New York, 168, and 62 New York, 35, and 70 New York, 410; Earnest v. Express Co., 1 Woods, 573; Elkins v. Empire Transportation Co., 81* Pennsylvania St. 315; South & North Alabama R. R. Co. v. Henlein, 52 Alabama, 606; Same v. Same, 56 Alabama, 386; Muser v. Holland, 17 Blatchf. 412; Harvey v. Terre Haute R. R. Co., 74 Missouri, 5388; and Graves v. Lake Shore Ry. Co., 137 Massachusetts, 33. The contrary rule is sus- tained in Southern Express Co. v. Moon, 89 Mississippi, 822 ; The City of Norwich, 4 Ben. 271 ; United States Express Co. v. Backman, 28 Ohio St. 144; Black v. Goodrich Transportation Co., 55 Wisconsin, 319; Chicago, St. Louis & N. O. R. R. Co. v. Abels, 60 Mississippi, 1017; Kansas City, &c., Railroad Co. v. Simpson, 30 Kansas, 645; and Moulton v. St. Paul, &c. R. R. Co., 31 Minnesota, 85. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusions. Applying to the case in hand the proper test to be applied to every limitation of the common-law liability of a carrier —its just and reasonable character — we have reached the result indicated. In Great Britain, a statute directs this test to be applied by the courts. The same rule is the proper one to be applied in this country, in the absence of any statute. As relating to the question of the exemption of a carrier from lia- 540 GRAVES v. LAKE SHORE, ETC. RAILROAD. bility beyond a declared value, reference may be made to section 4281 of the Revised Statutes of the United States (a re-enactment of sec- tion 69 of the Act of February 28, 1871, ch. 100, 16 Stat. 458), which provides, that if any shipper of certain enumerated articles, which are generally articles of large value in small bulk, “shall lade the same, as freight or baggage, on any vessel, without at the time of such lading giving to the master, clerk, agent, or owner of such vessel re- ceiving the same, a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner, nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof so notified and entered.” The principle of this statute is in harmony with the decision at which we have arrived. The plaintiff did not, in the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehen- sion. On the contrary, he offered and read in evidence the bill of lading, as evidence of the contract on which he sued. The distinct ground of our decision in the case at bar is, that where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negli- gence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protect- ing himself against extravagant and fanciful valuations. Squire w. New York Central R. R. Co., 98 Massachusetts, 239, 245, and cases there cited. There was no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the Circuit Court is Affirmed) GRAVES v. LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD. Supreme Jupicirat Court or Massacuusetts, 1884. [187 Mass. 33.] Morton, C. J. The defendant, as a common carrier, received at Peoria, Illinois, seventy-five barrels of high wines, and agreed to de- liver them to the plaintiffs at Boston, in this Commonwealth. The 1 Compare: Graves v. Adams Express Co., 176 Mass. 280; Ballou v. Earle, 17 R. I. 441. — Ep. GRAVES v. LAKE SHORE, ETC. RAILROAD. 541 bill of lading contained the stipulation that the goods were “ shipped at an agreed valuation of $20 per barrel, owner’s risk of leakage.” It also contained the agreement, that, ‘in the event of the loss of any property for which responsibility attaches under this bill of lading to the carriers, the value or cost of the same at the time and point of ship- ment ts to govern the settlement, except the value of the articles has been agreed upon with the shipper, or is determined by the classifica- tion upon which the rates are based.” The defendant had no knowledge of the value of the goods except that furnished by the statement of the shippers, and the charge for transportation was based upon this statement and valuation. The goods were destroyed during the transit by a collision of two trains, occasioned by the negligence of the servants of the defendant. The only question presented is whether the plaintiffs can recover any more than the agreed valuation of the goods. The question whether a carrier can, by a special contract, exempt himself from liability for a loss arising from the negligence of himself or his servants, is one which has been much discussed, and upon which the adjudications are conflicting. If we adopt the general rule, that a carrier cannot thus exempt himself from responsibility, we are of opinion that it does not cover the case before us, which must be governed by other considerations. The defendant has not attempted to exempt itself from liability for the negligence of its servants. It has made no contract for that purpose, but admits its responsibility ; its claim is, that the plaintiffs, having represented and agreed that the goods are of a specified value, and having thus obtained the benefit of a diminished rate of transportation, are now estopped to claim, in con- tradiction of their representation and agreement, that the goods are of a greater value. It is the right of the carrier to require good faith on the part of those persons who deliver goods to be carried, or enter into contracts with him. ‘The care to be exercised in transporting property, and the rea- sonable compensation for its carriage, depend largely on its nature and value, and such persons are bound to use no fraud or deception which would mislead him as to the extent of the duties or the risks which he assumes. It is just and reasonable that a carrier should base his rate of compensation, to some extent, upon the value of the goods carried; this measures his risks, and is an important element in fixing his compensation. If a person voluntarily represents and agrees that the goods delivered to a carrier are of a certain value, and the carrier is thereby induced to grant him a reduced rate of compensation for the carriage, such person ought to be barred by his representation and agreement. Otherwise, he imposes upon the carrier the obligations of a contract different from that into which he has entered. Dunlap v. International Steamboat Co., 98 Mass. 871; Judson v. Western Rail- road, 6 Allen, 486. The plaintiffs admit that their valuation of the goods would be con- 542 GRAVES v. LAKE SHORE, ETC. RAILROAD. clusive against them in case of a loss from any other cause than the. negligence of the carrier or its servants; but contend that the contract does not fairly import a stipulation of exemption from responsibility for such negligence. We cannot see the justice of this distinction. Looking at the matter practically, everybody knows that the charges of a carrier must be fixed with reference to all the risks of the carriage, including the risk of loss from the negligence of servants. In the course of time, such negligence is inevitable, and the business of a carrier could not be carried on unless he includes this risk in fixing his rates of compensation. When the parties in this case made their contract, it is fair to assume that both had in mind all the usual risks of the carriage. It savors of refinement to suppose that they under- stood that the valuation of: the goods was to be deemed to be fixed if a loss occurred from some causes, but not fixed if it occurred from the negligence of the servants of the carrier. Such does not seem to us to be the fair construction of the contract. The plaintiffs voluntarily entered into the contract with the defend- ant; no advantage was taken of them; they deliberately represented the value of the goods to be $20 per barrel. The compensation for carriage was fixed upon this value; the defendant is injured and the plaintiffs are benefited by this valuation, if it can now be denied. We are of opinion that the plaintiffs are estopped to show that it was of greater value than that represented. The plaintiffs cannot recover a larger sum without violating their own agreement. Although one of the indirect effects of such a contract is to limit the extent of the re- sponsibility of the carrier for the negligence of his servants, this was not the purpose of the contract. We cannot see that any considera- tions of a sound public policy require that such contracts should be held invalid, or that a person, who in such contract fixes a value upon his goods which he intrusts to the carrier, should not be bound by his valuation. M’Cance v. London & North Western Railway, 7 H. & N. 437; s.c.3 H. & C. 343; Railroad v. Fraloff, 100 U. S. 24; Muser v. Holland, 17 Blatchf. C. C. 412; s. c. 1 Fed. Rep. 382; Hart v. Pennsylvania Railroad, 2 McCrary, 333; s. c. 7 Fed. Rep. 630; Mag- nin v. Dinsmore, 70 N..Y. 410. We are therefore of opinion, upon the facts of this case, that it was not competent for the plaintiffs to show that the value of the goods lost was greater than $20 per barrel. Judgment affirmed. 1 Compare: The Lydian Monarch, 23 Fed. 298; Brown v. S. S. Co., 147 Mass. 58, — Ep, INDEX OF SUBJECTS. [ONLY GENERAL TOPICS ARE LISTED.] APPLICANTS, all must be served, 1-100. what grounds for refusal, 141-146. prerequisites of, 298-315. no discrimination between, 412-416. BAILMENT, essential to carriage, 8-18. baggage, 128-134. . compensation necessary, 126-134. care necessary, passengers, 191-195. responsibility for goods, 215-282. limitation of liability, 493-542. BRIDGE COMPANIES, in public calling, 21-22. regulation of rates of, 340. CANAL COMPANIES, in public calling, 65-66. regulations of, 213-214, 446-449. rates of, 405-409. CARRIERS COMPANIES, in public calling, 1-18, 56-66. service of all, 100-134, 145-179, 189-191. provision for adequate facilities, 192-198, 202-212, 215-283. rates of, 283-301, 322-340. discriminations by, 854-402, 410-456. regulations of, 456-462, 483-490. limitation of liability by, 493-542. CHARTER PROVISIONS, : obligatory, 27-28. excuses, 62-66. evasions, 306. COMPENSATION, if none, 126-134. when, 301-322. reasonable, 322-333. computation of, 3383-353, DISCRIMINATION, what constitutes, 282-363. examples of, 863-400. what forbidden, 400-446. 544 INDEX OF SUBJECTS. ELECTRIC LIGHT COMPANIES, in public calling, 44-48. rates of, 808-312. EMINENT DOMAIN, a badge of public calling, 26-27. applications of this, 27-70. EQUALITY, all applicants to be taken, 100-136. no distinction between competitors, 186-176. no discriminations, 353-446. EXPRESS COMPANIES, in public calling, 135-137. relations to carriers, 148-160. FACILITIES, due care required, 191-204. adequate facilities, 204-252. equal facilities, 252-282. GAS COMPANIES, in public calling, 41-44. supply of applicants, 66-68. upon equal terms, 100-134, 187-138, 141, 186-189. rates of, 298-308, 465-468. discriminations by, 412-414. regulations of, 464-468. GUESTS, proper must be taken, 21-28. who are, 25, 100. accommodations for, 201. regulations, 450-456. HACKMEN, in public calling, 75. excluded from terminals, 168-176. HOTEL COMPANIES, in public calling, 21-25, 100. provision for all, 180,134. © accommodations, 201. lien, 296. regulations, 450-456. IRRIGATION COMPANIES, in public calling, 37-41. rates of, 301-305. LIEN, when can service be refused, 141-146. extent of, 282-290. loss of, 290-295. LIMITATION OF LIABILITY, the general doctrine, 492-542. LOG DRIVE COMPANIES, in public calling, 27-30. INDEX OF SUBJECTS. 545 MONOPOLIES, legal, 27-30. strikes may be, 60-61. nature of, 90-93. incidents of, 93-100. forbidden, 186-191. MUNICIPAL CORPORATIONS, subject to public service law, 417-418. NATURE OF PUBLIC CALLING, distinguished from private, 1-8. tests to determine, 8-70. essentials of, 70-100. NAVIGATION COMPANIES, in public calling, 5-12. NEWS COMPANIES, in public calling, 53-55. OBLIGATIONS OP PUBLIC SERVICE, to serve all, 100-191. with adequate facilities, 191-282. for reasonable consideration, 282-353. without discrimination, 353-446. OFFICERS, regulations of, 490-492. PASSENGERS, proper, must be taken, 100-118. provision for safe carriage, 191-194. with seats, 194-198. requisite stations, 202-206. proper protection, 206-213. no discriminations, 392. POLICE POWER, extent of, over public calling, 44-47. regulation of rates, 70-100. power of commissions, 363-446. PUBLIC CALLINGS, carriers companies in, 8-18, 56-66. express companies in, 135-137. bridge companies in, 27-28. subway companies in, 34-36. log drive companies in, 27-30. water companies in, 34-36. sewerage companies in, 417. irrigation companies in, 37-41. gas companies in, 41-44. electric companies in, 44-48. telephone companies in, 48-52. telegraph companies in, 52-55. hotel companies in, 34-36." stockyards companies in, 316. warehouse companies in, 70-100. 35 546 INDEX OF SUBJECTS. REGULATIONS, examined, 446-473. hours, 475-483, 489-492, time tables, 483-486. classification, 487-489. RIGHTS OF PUBLIC CALLING, to make regulations, 446-492. to enter into contracts, 493-542. SEWERAGE SERVICE, in public calling, 417-418. SHIPPERS, transportation of goods, 215-282. discriminations between, 353-446. SLEEPING CAR COMPANIES, in public calling, 139-140. regulations of, 199-200. STREET RAILWAY COMPANIES, in public calling, 297. fares of, 344-348. SUBWAY COMPANIES, in public calling, 30-33. SUPPLY, what grounds for refusal, 141-145. prerequisites of, 298-315. no discrimination in, 4038-404, 412-416, 417-420. TELEGRAPH COMPANIES, in public calling, 52-55. regulations of, 463-464, 475-483. TELEPHONE COMPANIES, in public calling, 48-52. must serve all, 142-145, 179-186. with adequate facilities, 202. TOWING COMPANIES, in public calling, 16-18. TRUCKING COMPANIES, in public calling, 2-5. WAREHOUSE COMPANIES, in public calling, 70-100. lien of, 285. WATER COMPANIES, in public calling, 34-36. rates of, 363. discriminations by, 403. regulations of, 468-475, KF 2093 B36 Author ; Vol. Beale, Joseph Henry 1 Title : Copy Cases on pub. service companies. i ue ih i te