DUPL
B 367960
ARTES
1837
LIBRARY VERITAS
SCIENTIA
OF THE
UNIVERSITY OF MICHIGAN
- PLURIBUS-UNIN
TUPBOA
S+QUAERIS-PENINSULAM AMOENAM
CIRCUMSPICE
1
HD
W984
THE SPECIAL LAW GOVERNING
PUBLIC SERVICE
CORPORATIONS
AND ALL OTHERS ENGAGED IN
PUBLIC EMPLOYMENT
BY
BRUCE WYMAN, A.M., LL.B.
PROFESSOR OF LAW IN HARVARD UNIVERSITY
VOLUME I
NEW YORK
BAKER, VOORHIS & CO.
1911
COPYRIGHT, 1911, BY
BRUCE WYMAN
T. MOREY & SON, PRINTERS AND ELECTROTYP EBS
GREENFIELD, MASS,
01 Ap12πR
TO
JOSEPH HENRY BEALE, A.M., LL.B., LL.D.
CARTER PROFESSOR OF GENERAL JURISPRUDENCE IN
HARVARD UNIVERSITY
Since with characteristic generosity he will
not permit his name to be upon the
TITLE-PAGE
With deep gratitude
I inscribe
THIS DEDICATION
PREFACE
I have felt for many years that the distinction between
the private callings-the rule—and the public callings—
the exception-was the most striking feature of the law
governing business relations. The causes of the division
are economic rather than strictly legal. Free competition,
the very basis of the modern social organization, super-
seded almost completely mediæval restrictions, but it has
just come to be recognized that the process of free com-
petition fails in some cases to secure the public good, and
it has been at last admitted that some control is necessary
over such lines of industry as are affected with a public
interest. At this point the problem of public callings be-
comes a legal one.
From the earliest times some restraint has been exer-
cised over such lines of industry as are of vital interest to
the public. The establishment of the peace, the protec-
tion of the weak against the physical violence of the
strong, is a fundamental function of government; but of
equal importance and of almost equal antiquity is the
protection of the common people against the greed and
oppression of the powerful. In matters not vital to the
life and well-being of mankind the laws of society may be
left free to operate, without limitation by the sovereign
power; but in all that has to do with the necessaries of
life the protection of the sovereign is extended. The mod-
ern State protects equally against physical violence and
against oppression that affects the means of living.
As a result of that economic evolution from mediæval
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[v]
PREFACE
times to the present day which I have sketched in my first
chapter, there have come into being in the last generation
a considerable number of employments which have gained,
if not a legal monopoly, at any rate, as a result of circum-
stances, a virtual monopoly in matters of public necessity.
The positive law of the public calling is the only protection
that the public have in a situation such as this, where
there is no competition among the sellers to operate in its
favor. So much has our law been permeated with the
theory of laissez faire, which was but lately so prominent
in the policy of our State, that the admission has been
made with much hesitation that State control is ever nec-
essary. But the modern conclusion, after some bitter
experience, is that freedom can be allowed only where
conditions of virtual competition prevail, for in conditions
of virtual monopoly, without stern restrictions, there is
always great mischief.
The spirit of our present age demands that the great
business enterprises shall be conducted in accordance with
the requirements of society. The present programme of
organized society is to see to it that those who have gained
a substantial control of their market shall not be left free
to exploit those who look to them to supply their needs.
Men now see clearly that freedom of action may, even in
the industrial world, work injuriously for the public, and it
must then be restrained in the public interest. We have
seen the results of unrestrained power; and we no longer
wish those who have control over our destinies left free to
do with us as they please. Liberty does not mean to men
at the beginning of the twentieth century what it meant to
men at the beginning of the nineteenth century.
While State regulation is the prevailing philosophy of
the people at the beginning of the twentieth century, it
must be borne in mind that this has been the result of a
gradual progress of thought, and that this progress has not
[vi]
PREFACE
affected all men equally. Now, as at all times, there are
conservatives and radicals, the former as far behind the
prevailing spirit of the time as the latter go beyond it. In
every change of popular thought there have been those
who have been unable to appreciate the change; and in
every such change there have been those who are unable
justly to estimate the true meaning of the change. We
have, therefore, three general types of thought at every
time: the conservatives, the moderates and the radicals.
And this is as true of legal as of economic thought. Many
lawyers still hold conservative views as to the application
of the law of public callings to modern conditions. They
believe that the conductors of every business, however
necessary to public welfare, should do whatever seems
good in their own eyes.
It has been remarked many times that the common law
may be relied upon to meet, by the continual develop-
ment of its fundamental principles, the complex condi-
tions created by the constant evolution in the industrial
organization. One of the most striking of modern in-
stances of this capacity of growth in the common law is
the astonishing progress in the working out of the detail
of the exceptional law governing the conduct of public
callings. In recent times there undoubtedly is an in-
creasing need of this stricter regulation of all employments
which appear to be affected with a public interest. The
most of men appreciate that the law has already taken
control of the situation for all time. It is hardly too much
to say that the efficient regulation of the public employ-
ments by sufficient law is the most pressing problem con-
fronting this nation; and it must be met without further
hesitation. Great power brings as its consequence the
need of control of that power for the good of the whole
people.
In this crisis of affairs the people must be assured that
[vii]
PREFACE
the law is adequate to deal with the situation, that it has
not only elaborated detail to meet obvious wrongs seldom
defended, but also enlightened comprehension to deal with
the large policies openly justified, which are truly incon-
sistent with public duty. That those who profess a public
employment owe the utmost public service should be gen-
erally accepted as the fundamental principle upon which
the law governing public employment is to be based. It
is not agreed, however, how far this principle should be
pressed; there is a clash of interests here, and there is an
inclination on the part of those who conduct the public
services to contest every issue. This is not even an en-
lightened selfishness.
The time has come when extension of the law and en-
forcement of it should be the avowed attitude of all con-
servative persons who wish the perpetuation of present
conditions. It would be well, therefore, if the restless and
the doubting who see many abuses and many wrongs in
the conduct of our public services without prompt remedy
or adequate redress, might be relieved and heartened by
being shown that the common law is adequate to deal with
all reai industrial wrongs, and that with the aid of reme-
dial statutes the administration of the law can be relied
upon. The proprietors of the public services should be
told sharply that they may not adopt to the prejudice of
their public various profitable policies, and then justify
them as inherent rights which other men in ordinary busi-
ness may use in the advancement of their interests.
This principle of State control does not lead one to
socialism; indeed, it saves one from socialism if truly un-
derstood. It is only in those few businesses where the
conditions are monopolistic that dangerous power over
their public has been attained by those who have the con-
trol. In most businesses the virtual competition which
prevails puts the distributors at the mercy of their public.
[viii]
PREFACE
In current opinion the recognition of this distinction is
manifest. Men are as eager for an open market as ever;
but they wish the control of monopoly to insure it. The
demand is for freer trade where competition prevails and
stricter regulation where monopoly is found. So long as
virtual competition prevails there is no necessity for
coercive law since there is then no power over the pur-
chasing public. But where in any business virtual mo-
nopoly is permanently established the people will not be
denied in their deliberate policy of effectual regulation of
such public services for the common good.
Only to this extent the individualistic ideal of society
gives place to the collectivist policy. It is with true ap-
preciation of the real issue that we are contending for
State control to gain individual liberty. It may once
have been the ideal of industrial freedom that a man
might do as he pleased with his own; in any event that is
no longer our notion of social justice. It is believed now
that with increase in power over the particular market
comes increase in responsibility to the dependent public.
Socialism would destroy all private interests in the name
of the public; regulation would preserve private interests
by reconciling them with public right. Socialism attacks
all capital to whatever business it is devoted; regulation
grapples with monopoly only when it is convinced that
there is no other way to safeguard the interests of the
public.
There is now fortunately almost general assent to State
control of the public service companies. Two ways only
can be found to exercise such control. One way, that ad-
vocated by the most radical statesmen, is the government
ownership and operation of these services. The other way,
which is in fact the conservative method of dealing with
the problem, is the control of the rates and practices of the
utilities for the public good. One or the other of these
[ix]
PREFACE
methods must be finally adopted. The conservative
method is now on trial. It behooves the lawyers to see to
it that it be so intelligently tried, and that the law ap-
plicable to the case be so accurately enforced, that we
may not be driven perforce to the radical alternative of
public ownership. The belief that this duty has, almost
without warning, been thrust upon the profession, and
that the lawyer has not been at all prepared by his train-
ing to solve the difficult questions that may arise, has led
the author to publish this treatise, with the hope that it
may help the profession to meet its new and perplexing
problems.
No one can carefully study the authorities on this sub-
ject without feeling that we are just entering upon a great
and important development of the common law. What
branches of industry will eventually be of such public
importance as to be included in the category of public
callings, and to what extent the control of the courts will
be carried in the effort to solve by law the modern eco-
nomic problems, it would be rash to predict. Enormous
business combinations, virtual monopolization of the nec-
essaries of life, the strife of labor and capital, now the
concern of the economist and the statesman, may prove
susceptible of legal control through the doctrines of the
law of public callings. These doctrines are not yet clearly
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.
All businesses both public and private are subject, to be
sure, to that general police power of the State whereby in
any civilized society the effort is made to so order things
[ x ]
PREFACE
that one may not use his own so as to injure another. But
the comparison of the large amount of regulation which it
is considered proper for the State to impose in regard to
public services with the small amount of regulation which
it is considered proper for the State to enforce in regard to
private business is in itself significant enough. The dif-
ference which is shown is more than one of degree, it be-
comes one in kind. It is only in public business that the
law imposes affirmative duties; generally speaking the
duties imposed upon those in private business are nega-
tive. The law says to those in public business you must
do this for this applicant, and you must do it thus. To
those in private business it says you must not do this, or
if you do this you must do it thus. This is the chief dis-
tinction between public calling and private calling.
It is in the firm belief that the law governing the public
services will prove upon analysis to be a unified body that
the author has been at work for many years, and this first
treatise upon the subject has been written. General
principles will be developed throughout the work and
corrollaries to them established by the use and with the
co-ordination of cases from a variety of public employ-
ments. Not only are the fundamental principles true as
to all public employments that all must be served, ade-
quate facilities must be provided, reasonable rates must
be charged, and no discriminations must be made. But
also in dealing with the minor detail of these principles,
cases from one service will be found in point in another-
as to what conditions there are precedent to service, what
will excuse failure in provision of facilities, what is a proper
basis for calculating rates and what differences constitute
discrimination. This is the way our law grows, by break-
ing down the partitions between departments of the law
which have been built up separately.
The public service law has at length reached a stage of
[xi]
PREFACE
i
development in which it may be possible to state its
principles with some degree of confidence. It is only
within the last few years that it would have been within
the range of possibility to do this. Twenty-five years ago
the public services that were recognized were still few, and
the law as to them imperfectly realized. It was known
from olden times that those who professed a public em-
ployment must serve all at a reasonable rate. As to the
duty to serve, it was recognized that there were certain
excuses. As to the restriction to reasonable rates, there was
no standard unless, indeed, the customary charge. But
the important duty to provide adequate facilities had
hardly advanced beyond the general law as to negligence.
And the duty not to discriminate, which according to
present ideas is the most important of all, was denied
altogether by the weight of authority.
Even ten years ago when these four obligations had
become generally recognized, the details as to them in re-
gard to any particular employment had been worked out
only in very fragmentary manner; but at the present day
it is just being appreciated that rapid progress may be
made by the general recognition of the unity of the public
service law, whereby cases as to one calling may be used
to show the law in all. This treatise is based upon this
method. But it is only in our present day that the at-
tempt to treat the public service law as a consistent body
of law could be made with any hope of success. As it is
the law of public service is not much further developed
than that of sales was two centuries ago.
As time goes on, I am finding myself almost among
the conservatives in standing by the original program for
State control. It is still my belief that the State should
as far as possible confine itself to regulation, leaving the
companies to work out their own problems of manage-
ment. State control need seldom go further than regula-
[ xii ]
PREFACE
tion in this sense. Whatever the companies may do should
be subject to immediate revision by the constituted au-
thorities. There should be swift reparation provided for
any individual who has suffered harm in the meantime.
And that should be the full extent of governmental regu-
lation, generally speaking. When the State goes further,
and attempts to dictate as to the policies which the com-
panies shall adopt, it usually goes too far. Legislation
going to this extent really crosses the line which divides
State control from State operation. The next step would
be government ownership with its unknowable conse-
quences. I feel, therefore, that the restriction which the
Federal Government has thus far put upon itself in regu-
lating interstate carriage is well advised. The Interstate
Commerce Commission still has virtually only the power
of revision. In some of the States, however, the Commis-
sions are virtually given the power to determine of their
own motion what the carrier shall do for the public.
This imposes government operation, without relieving the
railroad from its responsibilities in any way.
This does not mean that everything shall be left to the
discretion of the companies, as the conservatives claim.
Discretion should be left to the companies, but it should be
made clear that this discretion may be abused. Although
the companies should be left as free as possible to work
out their own problems within the law, they should be
warned that they must not go outside the limits which
the law is fixing. For example, the railroad people once
claimed the right to make such rates as it seemed to them
would be for the best interests of all concerned.
But so
long as this power is left in the hands of the railway man-
agement without power of review by any authority upon
any fundamental principle, it is in the hands of the rail-
road officials to build up an artificial market where the
natural conditions are adverse, or to turn an industrious
[ xiii]
PREFACE
city into a wilderness again. It is believed that these are
too great powers to intrust to private hands without
governmental control based upon some recognized stand-
ards. Indeed the public law in this, as in the other cases,
should put sufficient limitations upon any business policy,
however profitable, which comes in conflict with the
fundamental principle of equal service to all.
The whole problem of the regulation of public utilities
has been seen more steadily of late years. It has been
appreciated that in dealing with a public service com-
pany the State is really dealing with a private business
concern, however many the obligations may be which it
owes to the public. The risks its proprietors run are such
that their financial management should be left to them,
unless they be shown to be taking profit with outrageous
disregard of their public obligations. With these broader
views, it would be surprising if more consideration were
not paid to the rights of the owners of public services.
Perhaps for the moment there is danger that in emphasiz-
ing their duties, their rights may be forgotten. Except in
the most highly developed communities public service has
certain risks even as compared with private business, be-
sides its obvious advantages. Public services must run
whatever the times; and their fate is linked with that of
the community. They are engaged in a business with the
ordinary incidents of a business, with some of the hopes
and hazards of a business.
That the courts are approaching this great issue of
State control with the enlightened policy of fair com-
promise of conflicting interests is plain. Regulation of
public service corporations, which perform their duties
under conditions of necessary monopoly, will occur with
greater and greater frequency as time goes on. It is a
delicate and dangerous function, and ought to be exer-
cised with great caution. The courts ought not to bear
A
[ xiv]
PREFACE
the whole burden of saving property from confiscation.
The legislative bodies ought to do their part. Our social
system rests largely upon the basis of private property,
and that community which seeks to alter this will soon
discover its error in the disaster which follows. The slight
gain to the consumer, which he would obtain from a
reduction in the rates charged by public service corpora-
tions is as nothing compared with his share in the ruin of
which would be brought about by denying to private
property its just reward, thus unsettling values and de-
stroying confidence. With these the views of the United
States Supreme Court it would seem that the present
crisis may be faced with confidence.
Much that I have just written I have said in this book
and elsewhere; but I thought it might make clearer my
point of view to my readers if I brought the argument to
a focus here, at the outset. Personally I have no inclina-
tion to paraphrase what I have said formerly in one place
when I wish to say the same thing in another connection,
for fear that the repetition may be pointed out. As it
happens, many topics in this book could be identified in
other writings of mine upon this general subject. But
in reality this treatise was largely written before these
publications—not since. I wrote out the general scheme
of this treatise about ten years ago and I have been using
it as the basis for class discussion since, so that I have
had the incalculable advantage of discussing this scheme
with thousands of fellow students. From time to time I
have finished off various chapters as contributions to
various magazines, and here again I have had the great
advantage of intelligent criticism. I should not in this
preface have pointed this out, had it not been that I felt
that I owed it to myself to explain why certain portions
of this treatise have been in print before. In particular I
thought it was only fair to say that most of what has been
[ xv ]
PREFACE
apparently taken from Beale and Wyman on Railroad
Rate Regulation was the part I contributed to that work
from my draft for this treatise, which I had already in
hand five years ago at the time we were writing that book.
In the next edition of the Railroad Rate Regulation we
shall omit most of this matter, confining ourselves to
commentary upon the current legislation, Federal and
State. The general principles of the public service law
are now well enough understood, so that the inclusion of
this general matter will be unnecessary.
For my general scheme, which I have been working over
so long I can, therefore, offer no apology; indeed, I am not
ashamed of the general analysis of this new division of
the law. For the detailed execution, however, I must offer
the usual excuses; for I have been too busied in my profes-
sion to give to this work all the time I could have wished.
Some portions of the subject have perhaps interested me
more and got in consequence greater care. I have had a
policy of a sort in writing the text, however. Where I
have been dealing, as in the first third and the last third of
the treatise, with the new law of public service, I have
cited all the cases I could find and given constant quota-
tions from the decisions, so as to show that I was stating
the law as it was, not as I was imagining it to be. In the
middle third of the treatise I have dealt with much more
familiar law, which I have summarized as briefly as I
could, citing only such cases of the thousands I have
handled as I thought would be of the greatest use. In the
last few months I have hurried the whole work to conclu-
sion as one will, feeling that I wanted to have what I had
to say read while the law was in the making. For those
who can realize by experience the labor of writing and put-
ting through the press a work of this size and scope its er-
rors and omissions will appear not unnatural or altogether
inexcusable. I feel, however, that nothing of the sort will
[ xvi ]
PREFACE
be so serious as to obscure the meaning of the text, and
that the practical usefulness of the book will not be af-
fected. In regard to the revision of the citations I have
been fortunate in having this painstaking work done, with
the exception of a few chapters when the printer was press-
ing us, by Miss Helen Thompson, the expert assistant to
the Faculty of the Law School in the writing of our books.
Not only has she taken charge of that very difficult part of
modern bookmaking, the extension of the citations, but
she has been of great assistance to me in many things out-
side of this feature of the work. Further I should acknowl-
edge considerable aid in writing certain chapters from my
brother-in-law, Albin L. Richards, Esq., of the Boston
Bar. But most of all I would express my great gratitude
to my colleague, Professor Joseph H. Beale, whose wise
counsel has been my constant inspiration.
CAMBRIDGE, January, 1911.
B. W.
[ xvii ]
TABLE OF CONTENTS
CHAPTER I
HISTORICAL INTRODUCTION
§ 1. Public callings and private business.
Topic A. The Mediæval Policy of Regulation
§ 2. The medieval theory of State control.
3. The regulation of business in the middle ages.
4. Early differentiation of the public service law.
5. Examination of the early public employments.
6. The surgeon.
7. The tailor.
8. The smith.
9. The victualler.
10. The baker.
11. The miller.
12. The innkeeper.
13. The carrier.
14. The ferryman.
15. The wharfinger.
Topic B. Persistence of this Police Power
§ 16. Continuance of State regulation.
17. Parliamentary regulation of rates.
18. Restriction of prices in the colonies.
19. Persistence of the legislative power.
20. Survival of the common law.
21. Callings connected with transportation.
22. Introduction of improved highways.
23. Toll bridges.
24. Turnpikes.
25. Canals.
26. Railways.
[ xix]
TABLE OF CONTENTS
Topic C. The Period of Laissez Faire
§ 27. Alteration in economic conditions.
28. Development in the common law.
29. Freedom of business from State control.
30. Special restrictions in early charters.
31. Gas supply.
32. Water supply.
33. The struggle against encroaching monopoly.
34. Conservative and radical views of regulation.
Topic D. Present Control of Public Employment
§ 35. Economic conditions at the present time.
36. Control of the public services necessary.
37. Variety of the public services.
38. Differentiation of the public service law.
39. Unity of the public service law.
40. Present development of the public service law.
41. Imperative need of effective regulation.
42. Ultimate limitations upon public employment.
BOOK I. ESTABLISHMENT OF PUBLIC
CALLING
PART I. PUBLIC EMPLOYMENT
CHAPTER II
MONOPOLY DUE TO LEGAL PRIVILEGE
§ 50. Legal privileges accompanying public employment.
Topic A. Exclusive Franchise
§ 51. Exclusive franchise for public purposes.
52. Ferries.
53. Bridges.
54. Bonded warehouses.
55. Log driving.
Topic B. Eminent Domain
§ 56. Eminent domain for public purposes.
57. Tramways.
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TABLE OF CONTENTS
§ 58. Railways.
59. Pipe lines.
60. Transmission lines.
61. Elevated conveyors.
62. Lumber flumes.
63. Mining tunnels.
Topic C. Aid from Taxation
§ 64. Public purposes of taxation.
65. Gristmills.
66. Sawmills.
67. Drainage.
68. Sewerage.
69. Cemeteries.
70. Hospitals.
Topic D. Use of Public Highways
§ 71. Public purposes in highway use.
72. River improvements.
73. Booms.
74. Sluices.
75. Turnpikes.
76. Street railways.
77. Subways.
78. Wire conduits.
79. Pole lines.
80. Constitutional situation as to special privileges.
CHAPTER III
NATURAL MONOPOLY
§ 90. Natural limitation creates public employment.
Topic A. Restriction of Supply
§ 91. Limitation of the sources of supply.
92. Waterworks.
93. Irrigation systems.
94. Natural gas.
95. Water powers.
Topic B. Scarcity of Sites
§ 96. Scarcity of advantageous sites.
97. Grain elevators.
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TABLE OF CONTENTS
§ 98. Mechanical conveyors.
99. Cotton presses.
100. Stock yards.
101. Freight sheds.
107. Docks.
103. Basins.
104. Dry docks.
Topic C. Limitation of Time
§ 105. Instant need creates monopoly.
106. Innkeepers.
107. Hackmen.
108. Messenger service.
109. Call boxes.
Topic D. Difficulty of Distribution
§ 110. Inherent limitation upon competition.
111. Gas works.
112. Fuel gas.
113. Electric plants.
114. Electric power.
115. Steam heat.
116. Refrigeration.
117. Public need creates public interest.
CHAPTER IV
VIRTUAL MONOPOLY
§ 120. Economic limitations create public employment.
Topic A. Cost of the Plant
§ 121. Financial limitations upon potential competition.
122. Canals.
123. Channels.
124. Railroads.
125. Railway terminals.
126. Railway bridges.
127. Car ferries.
128. Railway tunnels.
129. Union railways.
130. Belt lines.
Topic B. Service on a Large Scale
§ 131. Disadvantages of the individual.
132. Signal service.
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TABLE OF CONTENTS
§ 133. Telegraph lines.
134. Wireless telegraph.
135. Submarine cables.
136. Telephone systems.
137. Ticker service.
138. Associated press.
Topic C. Inadequacy of Available Substitutes
§ 139. Insufficient substitutes for service.
140. Public stores.
141. Grain storage.
142. Tobacco warehouses.
143. Cold storage.
144. Safe deposit vaults.
145. Market places.
146. Stock exchanges.
Topic D. Subordinate Services
§ 147. Dependent position.
148. Port lighters.
149. Floating elevators.
150. Tugboats.
151. Switching engines.
152. Parlor cars.
153. Sleeping cars.
154. Refrigerator cars.
155. Tank cars.
156. Necessary regulation of virtual monopoly.
CHAPTER V
COMMON CARRIAGE AS A PUBLIC EMPLOYMENT
§ 160. Who are common carriers.
§ 161. Pack carriers.
162. Wagoners.
163. Porters.
164. Hoymen.
165. Shipmasters.
166. Canal boats.
167. River craft.
168. Draymen.
Topic A. Carriers of Goods
[ xxiii]
TABLE OF CONTENTS
§ 169. Truckmen.
170. Furniture movers.
171. Baggage transfer.
172. Steamboats.
173. Towing lines.
174. Wagon trains.
175. Automobile lines.
176. Railways.
177. Industrial railways.
178. Express companies.
179. Pneumatic tubes.
180. Dispatch companies.
181. Fast freight lines.
§ 182. Ferries.
Topic B. Carriers of Passengers
183. Ships.
184. Stagecoaches.
185. Omnibus lines.
186. Hacks.
187. Taxicabs.
188. Passenger railways.
189. Street railways.
190. Elevated railways.
191. Underground railways.
192. Interurban railways.
193. Passenger elevators.
194. Moving platforms.
195. Pleasure railways.
196. Common carriage as a public employment.
PART II. PUBLIC PROFESSION
CHAPTER VI
EXPRESS UNDERTAKING OF PUBLIC EMPLOYMENT
§ 200. Public profession an essential element.
Topic A. Explicit Profession of Public Service
§ 201. Early assumpsit associated with public calling.
202. Express assumption of a public trust.
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TABLE OF CONTENTS
§ 203. Displaying signs.
204. Public advertisement.
205. General solicitation.
206. Express disclaimer.
207. Service before business begun.
208. Profession made without authority.
209. Service undertaken beyond obligation.
210. Service undertaken in unusual manner.
Topic B. Implicit Undertaking of Public Employment
§ 211. Charter stipulation.
212. Permissive charter.
213. Taking out public license.
214. Exercise of eminent domain.
215. Acceptance of municipal franchises.
216. Entering into municipal contract.
217. Aid from taxation.
218. Governmental participation.
CHAPTER VII
IMPLIED PROFESSION OF PUBLIC EMPLOYMENT
§ 220. Conduct evidencing public employment.
Topic A. Public Employments and Private Enterprises
§ 221. Potential use by the public.
222. Public access held indispensable.
223. Industrial railroads.
224. Lateral branches.
225. Public spur.
226. Private siding.
Topic B. Characteristics of Public Business
§ 227. Public service in regular course.
228. Public employment-carter.
229. Regular service-shipmaster.
230. Established charge-expressmen.
231. Indiscriminate service-irrigation.
232. Public profession-warehousing.
Topic C. Characteristics of Private Business
§ 233. Private contract as the basis.
234. Occasional business-householders.
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§ 235. Casual employment-shipowners.
236. Intermittent employment-teamsters.
237. Limited undertaking-ferries.
238. Incidental service-merchants.
Topic D. Particular Illustrations of the Distinction
§ 239. Public and private carriers in general.
240. Public inn and private house.
241. Public and private highways of every sort.
242. Public and private waterworks.
243. Public and private gas and electricity.
244. Public and private telephone and telegraph.
CHAPTER VIII
EXTENT OF SERVICE PROFESSED
§ 250. Limitations upon the profession.
Topic A. Kinds of Service Undertaken
§ 251. Extent to which limitations may be imposed.
252. Businesses of limited scope.
253. Obligation in respect to the usual class.
254. No obligation to undertake different services.
255. Carriage of valuables separable.
256. Carriage of live stock.
257. Carriage of rolling stock.
258. Profession limited to car service.
259. Extraordinary service in transporting freight.
260. Extraordinary service in delivering freight.
Topic B. Separable Services for Different Purposes
§ 261. Separable services in general.
262. Carriers of passengers and goods.
263. Divisibility of the innkeeper's undertaking.
264. Purposes for which water is supplied.
265. Gas for illuminating and for fuel.
266. Distinct kinds of telephone service.
Topic C. Profession Defined by its Physical Limitations
§ 267. Profession to devote facilities.
268. Profession to render service.
269. Obligation limited to existing premises.
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§ 270. Profession limited to original plant.
271. Profession limited to natural supply.
272. Carriage confined to established route.
Topic D. Territorial Limits upon the Service Professed
§ 273. General problem of community service.
274. Territorial limits fixed by franchise.
275. Change in municipal boundaries.
276. Obligation beyond the profession.
277. Establishment of delivery limits.
278. What limits are reasonable.
279. Individual installation within the territory.
280. Rights of abutting owners.
281. Obligation to the community.
282. Reasonable limitation upon expansion.
CHAPTER IX
WITHDRAWAL FROM PUBLIC EMPLOYMENT
§ 290. Elements of the problem.
Topic A. Possibility of Total Withdrawal
§ 291. Closing an inn.
292. Discontinuing a ferry.
293. Making a warehouse private.
294. Withdrawing a wharf from public use.
295. Giving up common carriage.
296. Taking up a railway.
297. Shutting off water supply.
298. Discontinuing further gas supply.
299. Duty devolved upon municipality.
300. No excuse for default in charter obligation.
301. Effect of absolute insolvency.
302. Obligation persists so long as franchise retained.
Topic B. Abandonment of a Certain District
§ 303. Right to withdraw from particular district.
304. Doctrine applies only to constructed portions.
305. Discontinuance by public permission.
306. System constructed under permissive charter.
307. Cases permitting partial withdrawal.
308. Abandoned service must be separable.
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Topic C. Abandonment of a Particular Service
§ 309. Right to withdraw from a particular service.
310. Service demanded by charter.
311. Partial withdrawal generally permitted.
312. Temporary withdrawal not permissible.
313. Service abandoned must be separable.
Topic D. Reasonable Notice of Withdrawal
§ 314. Notice of withdrawal necessary.
315. Colorable withdrawal.
316. Situation requires reasonable notice.
317. What constitutes reasonable notice.
318. Substituting one service for another.
319. Results of consolidating services.
320. Division of territory served.
BOOK II. OBLIGATIONS OF PUBLIC DUTY
PART III. DUTY TO THE PUBLIC
CHAPTER X
NATURE OF PUBLIC DUTY
§ 330. Public obligation the fundamental principle.
Topic A. Essential Character of the Obligation
§ 331. Nature of the public duty.
332. Obligations of the subsequent relationship.
333. The original obligation is sui generis.
334. Nature of the obligation after acceptance.
335. Chief reliance upon tort.
336. No dependence upon contract.
337. Essential elements in contract not necessary.
338. Contract cannot be required.
339. Applicant need not have the capacity to contract.
340. Incapacity of the proprietor to contract no excuse.
341. Relationship established although another pays.
342. Statutory provisions for public service.
343. Franchise provisions for public service.
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Topic B. To Whom the Obligation Is Owed
§ 344. The duty is owed to a particular public.
345. What constitutes a default to an individual.
346. Applicants must be desirous of service.
347. Application to test rights.
348. Liability to sendee of telegram.
349. Discussion of the conflicting theories.
350. Individual rights to fire protection.
351. Common-law basis for individual rights.
352. Extent of public interest.
353. Personal character of the individual right.
354. Statutory requirements for service.
355. Statutory penalties for default.
CHAPTER XI
OBLIGATION LIMITED TO CERTAIN CLASSES
§ 360. Inherent limitation of the public service duty.
Topic A. Duty Limited to Travelers
§ 361. Special need of travelers.
362. Carriers' obligation limited to travelers.
363. Innkeepers' duty owed only to travelers.
364. Who is a traveler?
365. How long one remains a traveler.
366. When one ceases to be a traveler.
Topic B. Obligations Incidental to the Service
§ 367. Persons properly upon the premises.
368. Persons desiring shelter merely.
369. Persons assisting or meeting passengers.
370. Convenience of the patron the test.
371. Right involved is that of the person served.
372. Extent of the duty to such persons.
Topic C. Duty Limited to Occupiers
§ 373. Special need of occupiers.
374. Obligation limited to supply at premises.
375. Necessity of telephone service at residence.
376. Duty owed to occupiers.
377. Certain consequences of this doctrine.
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§ 378. Supply to incumbered premises.
379. Services to separate premises.
380. Supply to buildings divided into tenements.
Topic D. Other Limitations to Particular Classes
§ 381. When special limitations are justifiable.
382. Sleeping and parlor car service.
383. Rights in a public conduit.
384. Irrigation in accordance with water rights.
385. Basis of the public duty.
CHAPTER XII
CONDITIONS PRECEDENT TO SERVICE
§ 390. Nature of the conditions precedent.
Topic A. Service Must Be Asked at Proper Time
§ 391. Whether carrier must receive goods in advance.
392. How long in advance goods must be received.
393. Acceptance long in advance.
394. Goods tendered too late.
395. Passengers must come at proper time.
396. Services which may be demanded at any time.
397. Time-tables.
398. Office hours.
Topic B. Service Must Be Demanded at Proper Place
§ 399. Tender of goods to the carrier.
400. Placing goods in proper position not delivery.
401. Passengers must be upon the premises.
402. When passengers are accepted.
403. Establishment of regular stations.
404. Service at private sidings.
405. Service only obligatory within proper territory.
406. Services to abutting owners.
Topic C. There Must Be Application in Proper Form
§ 407. Applicant must give notice.
408. Requisitions made in advance.
409. Effect of mere notification.
410. Signal to passenger carrier.
411. Formal application for supply.
412. Use of telegraph blanks.
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Topic D. Service Must Be Demanded in Proper Manner
§ 413. Goods must be tendered properly packed.
414. Freight loaded by shipper.
415. Special freight may require special tender.
416. Service upon fungible basis.
417. Proper conditions imposed upon installation.
418. Premises must be properly prepared.
419. Conditions imposed must be reasonable.
420. Improper conditions cannot be imposed.
CHAPTER XIII
PREPAYMENT AS A CONDITION
§ 430. Payment as a condition.
Topic A. Prepayment May Be Required
§ 431. Prepayment made a condition.
432. Compensation due upon acceptance.
433. Service partially completed before demand.
434. Deposit required when charges are undetermined.
435. Whether different treatment constitutes discrimination.
436. Security required for reply telegram.
437. Security for additional charges.
Topic B. Sufficiency of Tender
§ 438. What is proper tender.
439. Denomination of money tendered.
440. Reasonable time to produce payment.
441. Tender must be in proper currency.
442. Waiver of prepayment.
443. Conduct dispensing with tender.
Topic C. The Unit of Service
§ 444. Public service upon a unit basis.
445. Company cannot insist upon more than one unit.
446. The journey as a single unit.
447. Forfeiture of right to original journey.
448. Effect of outright repudiation.
449. Present unit distinguished from past unit.
Topic D. Payment of Arrearages Demanded
§ 450. Payment for previous carriage not required.
451. Payment of arrearages not generally required.
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§ 452. Cases requiring payment of arrearages.
453. Applicant in default at other premises.
454. Payment of collateral claims cannot be demanded.
455. Cannot urge another's default.
456. No requirement to pay arrears of predecessors.
457. Assumption of predecessor's arrears.
458. Cannot shut off service for disputed arrearages.
459. Character of the dispute.
460. Waiver of right to refuse.
CHAPTER XIV
PUBLIC DUTY AS TO DEPENDENT SERVICES
§ 470. Nature of the problem.
Topic A. Public Duty Involved
§ 471. The argument is close.
472. No direct duty to the dependent service.
473. Real duty is to patrons themselves.
474. Conservative view of the duty involved.
475. Progressive view of the duty involved.
476. Necessity for the public service law.
Topic B. Transportation Services in Particular
§ 477. Express companies: conservative view.
478. Comment thereon.
479. Express companies: radical view.
480. Discussion thereof.
481. Exclusive contracts with private car lines.
482. Arrangements for hauling sleeping cars.
483. Hack service: conservative view.
484. Objections thereto.
485. Hack service: radical view.
486. Argument therefor.
487. Access to connecting steamboats.
488. No access owed except at wharf stations.
489. Treatment of baggage transfer men.
490. Rights of competing draymen.
491. Arrangements with stock yards.
492. Contracts with grain elevators.
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Topic C. Public Services in General
§ 493. Exclusive arrangements by innkeepers.
494. Equal facilities for ticker service.
495. Canal company giving monopoly of towage.
496. Arrangement for sprinkling service.
497. Telephone installation in public premises.
Topic D. No Public Duty Involved
§ 498. Special concessions when no public duty involved.
499. Special concessions for private business.
500. Whether service provided is necessary.
501. Additional favors beyond obligation.
502. Exclusive contracts in private capacity.
503. Private activities often held ultra vires.
CHAPTER XV
OBLIGATION AS TO CONNECTING SERVICES
§ 510. Public duty as to connecting services.
Topic A. Basis on Which Through Service Is Undertaken
§ 511. Through service may be undertaken.
512. English presumption of through carriage.
513. American presumption of successive service.
514. What constitutes connecting service.
Topic B. Mutual Obligations in Successive Service
§ 515. Obligation of initial service to take to connection.
516. Special law applicable thereto.
517. Special duty to make delivery to connection.
518. Further duties of the initial service.
519. Obligation of second service to accept.
520. Peculiar rules relating thereto.
521. Observance of patron's directions.
522. Results of any disobedience.
523. Discrimination permissible in granting favors.
524. Discrimination forbidden where public duty involved.
Topic C. Facilities for the Interchange of Business
§ 525. Construction of physical connections not obligatory.
526. Statutory requirements go further.
527. Obligation to have transfer facilities at junction points.
3
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§ 528. Whether freight must be taken in original cars.
529. Such transportation now usually held obligatory.
530. Qualifications of the doctrine.
531. Provision of cars for further service.
532. Statutory requirement of through facilities.
Topic D. Joint Through Routing and Rating
§ 533. Through arrangements not obligatory.
534. Initial company may select connecting line.
535. Limitations upon joint rates.
536. Statutory provision for through routes.
537. Constitutionality of such statutes.
538. Application of these statutes.
539. Statutory regulation of connecting services.
540. Policy of such legislation.
PART IV. JUSTIFICATION FOR REFUSING
SERVICE
CHAPTER XVI
INEXCUSABLE BREACHES OF PUBLIC DUTY
§ 550. Refusal illegal without proper justification.
Topic A. Distasteful Service
§ 551. Malicious motives.
552. Malice as a factor.
553. Refusal dictated by favoritism.
554. Discrimination for its own ends.
555. Disagreeable persons.
556. Unmannerly persons.
557. Slight misbehavior.
558. Personal objections.
559. Immoral persons.
560. Undesirable persons.
561. Supposed interest of patron.
562. Wiser course for patron.
563. Unwelcome service.
564. Wrongful refusal.
Topic B. Disadvantageous Service
565. Race prejudice.
566. Separation of the races.
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§ 567. Class distinctions.
568. Social differences.
569. Unpopular organizations.
570. Labor demands.
571. Assumption of peculiar risks.
572. Service involving unusual care.
573. Indirect advantage in refusing.
574. Ultimate advantage in refusing.
575. Particular service peculiarly expensive.
576. Extensions limited by profitableness.
577. Service in unprofitable ways.
578. Unprofitableness seldom an excuse.
579. Particular service not indispensable.
580. Substitute for service available.
CHAPTER XVII
1
REFUSAL BECAUSE OF ILLEGALITY INVOLVED
§ 590. Illegality involved in performing service.
Topic A. Subservience to Governmental Authority
§ 591. Obedience to executive orders.
592. Subservience to military necessity.
593. Prohibitions in administrative regulations.
594. Obedience to legal processes.
595. Contravention of charter limitations.
596. Situation at expiration of franchise.
Topic B. Contravention of Statutory Provisions
§ 597. Statutes expressly controlling service.
598. The criminal law generally.
599. Sunday laws.
600. Liquor laws.
601. Game laws.
602. Health regulations.
603. Gaming statutes.
Topic C. Service Promoting Illegal Transaction
§ 604. Participation in the illegality.
605. Implication in illegality.
606. Service aiding immoral business.
607. Service indispensable to illegal business.
608. Reasonable rejection usually justified.
609. Cases holding that rejection is at peril.
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Topic D. Proximity to the Illegality
§ 610. Service promoting the illegality.
611. Illegality prior to service.
612. Illegality subsequent to service.
613. Public policy the explanation.
CHAPTER XVIII
REJECTION FOR PERSONAL DISQUALIFICATION
§ 620. Right of protection the basis of the defense.
§ 621. Dangerous service.
Topic A. Self-Protection
622. Risk of possible liability.
623. Fraudulent customers.
624. Abuse of privileges.
625. Interference with the service.
626. Persons bringing dangerous things.
Topic B. Protection of Others Served
§ 627. Dangerous persons.
628. Suspected criminals.
629. Violent passengers.
630. Disorderly guests.
631. Persons having contagious disease.
632. Intoxicated persons.
633. Profane patrons.
634. Ejection governed by same general principles as rejection.
Topic C. Applicant Under Disability
§ 635. Disabled persons in general.
636. Persons subject to an incapacity.
637. Blind persons.
638. Sick persons.
639. Insane persons.
640. Arrested persons.
Topic D. Basis for Rejection
§ 641. Rejection for present misconduct.
642. Rejection for past misconduct.
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§ 643. Rejection upon probable cause.
644. Ejection before actual misconduct.
645. Whether refusal should be at peril.
646. Rejection for misconduct of companion.
CHAPTER XIX
JUSTIFICATION FOR SUSPENDING SERVICE
§ 650. General situations justifying suspension.
Topic A. Natural Conditions
§ 651. Failure of water supply.
652. Exhaustion of irrigation supply.
653. Division of natural gas.
654. Service dependent on water power.
Topic B. Inevitable Accidents
§ 655. Convulsions of nature.
656. Storms and floods.
657. Electrical disturbance.
658. Normal conditions.
659. Unavoidable accidents.
Topic C. Insufficient Facilities
§ 660. When accommodations offered are exhausted.
661. Limitations upon the carrier's obligation.
662. Extended obligation of the railroads.
663. Facilities unexpectedly become outgrown.
664. Normal fluctuations of business.
665. Division of facilities among applicants.
§ 666. Enemy forces.
Topic D. Human Obstacles
667. Domestic violence.
668. Refusal to receive because of strike.
669. Refusal to receive because of violent strike.
670. Situation when sympathetic strike.
671. How employés of the carriers are affected.
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CHAPTER XX
PROMOTION OF ITS BUSINESS INTERESTS
§ 680. Business policies inconsistent with public employment.
Topic A. Unfair Competition
§ 681. Exclusive custom cannot be demanded.
682. Partial service already rendered by rival carrier.
683. Telephone companies cannot forbid rival installation.
684. Exclusive regulations by the associated press.
685. Status of exclusive contracts.
686. Refusal to take another's customers.
Topic B. Contracts Opposed to Public Service
§ 687. Contract not to deal with other applicants.
688. Special contract for priority.
689. Contract to exclude others from simultaneous service.
690. Exclusive contracts with an intermediate service.
691. Effect of restrictive covenants in conveyances.
692. Contract limitations upon licensees.
693. Contract for division of territory.
694. Pooling agreements usually void.
Topic C. Refusal of the Demands of a Rival
§ 695. Shipments made by a rival.
696. No obligation to carry packed parcels.
697. Competitor must be taken as a passenger.
698. Railroad not compelled to give running rights.
699. Obligation to give trackage.
700. Connections with another telephone system.
701. Utilization of the waterworks of another.
702. Gas works not bound to supply rivals.
Topic D. Promotion of a Collateral Business
§ 703. Right to engage in a collateral business.
704. Telephone company favoring its messenger service.
705. Municipality promoting its water service.
706. Electric company favoring its wiring department.
707. Railroad cutting its own rates for itself.
708. Grain elevators storing their own grain.
709. Constitutionality of statutory prohibition.
710. Argument for radical law.
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BOOK III. CONDUCT OF PUBLIC EMPLOY-
MENT
PART V. COMMENCEMENT OF SERVICE
CHAPTER XXI
BEGINNING OF THE UNDERTAKING
§ 720. Commencement of the relation.
Topic A. When Public Service is Begun
§ 721. Position of prospective customers.
722. Requisitions made for service.
723. Actual agreement must be shown.
724. Acceptance as common carrier.
725. Reception as a guest.
726. Goods withheld from transportation.
727. Goods at carrier's disposal.
728. Conditional acceptance.
Topic B. How the Relationship is Established
§ 729. Evidence of actual acceptance necessary.
730. Notice not enough in itself.
731. When acceptance takes place.
732. Where acceptance takes place.
733. Consent to delivery implied.
734. Customary acceptance of goods.
735. Acceptance of passengers at stations.
736. Boarding a moving vehicle.
737. Carriage of goods secured by fraud.
738. Stealing a ride.
Topic C. Whether Acceptance is Authorized
§ 739. Who is the real proprietor.
740. Situation after railroad leases.
741. Dealings with unauthorized persons.
742. For whom a servant acts.
743. Independent service by servant.
744. Private arrangements with employé.
745. Guests invited by servants.
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§ 746. Service obtained by connivance.
747. Bill of lading issued without goods.
748. Jurisdictions holding carrier liable.
PART VI.
MANAGEMENT OF THE
BUSINESS
CHAPTER XXII
BASIS OF THE UNDERTAKING
§ 750. Whether the transaction is public or private.
Topic A. Service Rendered upon a Special Basis
§ 751. Boarders at an inn.
752. Special acceptance as guest.
753. Chartered accommodations.
754. Special passenger trains.
755. Special freight trains.
756. Regular train established upon special guaranty.
757. Excursion trains.
758. Chartered train.
Topic B. Unusual Methods of Service
§ 759. Passengers traveling in an unusual place.
760. Whether there is acceptance in such cases.
761. Vehicle not intended for passengers.
762. Carriage on construction trains.
763. Passenger carriage on freight trains.
764. Such transportation often upon a private basis.
765. Special services in telephoning.
766. Unrepeated telegrams.
Topic C. Peculiar Conditions of Service
§ 767. Owner accompanying his goods.
768. Carrier in general control.
769. Luggage carried by passengers.
770. Special arrangements with innkeepers.
771. Goods taken across a ferry.
772. Owner going with his freight.
773. Switching cars.
774. Towing vessels.
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§ 775. Responsibility for through cars.
776. Relations with the dependent services.
Topic D. Special Arrangements with Particular Classes
§ 777. Mail clerks.
778. Express messengers.
779. Employés of car companies.
780. Owners accompanying their shipments.
781. Employés of contracting shippers.
782. Concessionaires in general.
783. Employés while on duty.
784. Employés receiving independent service.
785. Full liability in gratuitous service.
786. Explicit limitation to private basis.
CHAPTER XXIII
PROVISION OF ADEQUATE FACILITIES
§ 790. Basis of the duty to supply equipment.
Topic A. Provision of Proper Facilities
§ 791. Profession limited to original facilities.
792. Adherence to the original scope.
793. Proper equipment must be provided.
794. Ultimate responsibility for proper equipment.
795. Improvement of present facilities.
796. Provision of special equipment.
Topic B. Obligation to Increase Facilities
§ 797. Facilities which the service requires.
798. The obligation is not absolute.
799. Equipment sufficient for expected business.
800. Expected business not provided for.
801. Demand foreseen although unusual.
802. Reasonable time to increase facilities.
803. Pressure for short periods.
804. Equipment beyond its control.
Topic C. Establishment of Stational Facilities
§ 805. Establishment of stations by legislation.
806. Requirement of stations by commissions.
807. Requirement of stations by the courts, conservative view.
808. Progressive view of the question of stations.
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§ 809. Where stations are required.
810. Closing stations.
811. Exact location of stations.
812. Proper facilities at stations.
813. Establishment of freight stations.
814. Establishing offices in other services.
Topic D. Provision of Private Installation
§ 815. No right to private sidings generally.
816. Rights of the railroad paramount.
817. When private switches must be granted.
818. The problem of stock yards.
819. Constitutionality of further legislation.
820. Railroad never obliged to construct siding.
821. Duty confined to permitting connection.
822. Obligation to receive upon spurs.
823. The company need only provide requisite facilities.
824. Provision of service pipes and feed wires.
825. Provision of transformers and meters.
826. Dictation as to fittings.
CHAPTER XXIV
DISTRIBUTION OF FACILITIES AVAILABLE
§ 830. Proper management.
Topic A. Arrangements Made for Facilities
§ 831. Notice necessary for special requirements.
832. Reservation of accommodations granted.
833. Contract obligation to supply facilities.
834. New business accepted without notification.
835. Statutory definition of these obligations.
836. Constitutionality of legislative regulation.
Topic B. Proper Priorities in Service
§ 837. Imperative need of the company itself.
838. Emergency calls given precedence.
839. Personal requirements.
840. Perishable freight.
841. Business needs of the country.
842. Priority of accepted business.
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Topic C. Assignment of Available Facilities
§ 843. Right to assign facilities.
844. Separate accommodations.
845. Changing accommodations.
846. Insistence upon the unit of service.
847. Choice of facilities.
848. Separation based upon race.
849. Nor is discrimination permissible.
Topic D. Fair Apportionment of Service
§ 850. Duty not to discriminate.
851. Serving applicants in rotation.
852. Proration of limited supply.
853. Distribution of cars to stations.
854. No part of the system given preference.
855. Apportionment of cars to shippers.
856. Basis of prorating cars.
857. Private facilities considered in the apportionment.
CHAPTER XXV
REGULATION OF THE SERVICE
§ 860. The function of regulations.
Topic A. Establishment of Regulations
§ 861. Who may make regulations.
862. Publication of regulations.
863. Changing regulations.
864. Waiver of regulations.
865. Essential elements of valid regulations.
866. Proper enforcement of regulations.
Topic B. Regulations Governing the Service
§ 867. Regulations for limiting the service.
868. Regulations relating to acceptance.
· 869. Reasonable conditions of performing service.
870. Establishment of stopping places.
871. Delivery districts.
872. Time-tables.
873. Waiting rooms.
874. Office hours.
875. Proper baggage.
876. Unusual baggage.
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Topic C. Regulation of Patron's Conduct
§ 877. Regulations requiring prepayment.
878. Regulations to prevent escape from payment.
879. Personal behavior of patron.
880. Bringing dangerous things prohibited.
881. Restriction of patron's position.
882. Passengers forbidden upon platforms.
883. Regulations governing the supply.
884. Use made of equipment.
Topic D. Regulations Relating to Tickets
§ 885. Ticket may be made indispensable.
886. Failure to produce ticket.
887. Extra charge when fare is paid on train.
888. No opportunity to obtain ticket.
889. Ticket agent's mistake.
890. Mistakes of the conductors.
891. Argument for the passenger.
892. Argument for the carrier.
PART VII. LIABILITY FOR DEFAULT
CHAPTER XXVI
CONDUCT OF THE UNDERTAKING
§ 900. Proper conduct of the undertaking.
Topic A. Delay in Performing Service
§ 901. Duty to act promptly.
902. Reasonable time allowed for performance.
903. Special circumstances calling for haste.
904. Adherence to schedule time.
Topic B. Deviation from the Undertaking
§ 905. Usual course of performing service.
906. Performance in unauthorized manner.
907. Transportation over wrong route.
908. Essential change by deviation.
Topic C. Excuses for Default in Performing Service
§ 909. Natural forces.
910. Governmental authority.
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§ 911. Violent intervention.
912. Interruption by strike.
913. Interference of patron.
914. Press of business.
Topic D. Liability Consequent upon Default
§ 915. Delay must be negligent.
916. Loss directly caused by delay.
917. Loss merely concurrent with delay.
918. Extreme liability according to other authorities.
919. Negligence contributing to the catastrophe.
920. Negligence in not avoiding the catastrophe.
921. Absolute liability the result of deviation.
922. Absolute liability of special contract.
CHAPTER XXVII
PROTECTION OWED DURING PERFORMANCE
§ 930. Extent of duty to protect.
Topic A. Duty to Care for Patrons
§ 931. Duty to care for patrons.
932. Extent of duty to care for patrons.
933. Special care in particular cases.
934. Disposition of dangerous persons.
Topic B. Liability for Injuries Caused by Its Own Servant
§ 935. Duty to protect passenger.
936. Obligation to protect guest.
937. Blameworthiness must be shown.
938. Basis of liability for unauthorized injury.
939. Action outside of the employment.
940. Cumulative liability where two services involved.
Topic C. Protection Against Injury by Third Parties
§ 941. Limited extent of the duty.
942. Protection against fellow passengers.
943. Injuries from negligent conduct.
944. Liability for injuries by outsiders.
945. Injuries resulting from overcrowding.
946. Proper extent of the duty.
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§ 947. Duty of innkeepers to protect from third parties.
948. Special protection in sleeping cars.
Topic D. Duty to Act in Emergencies
§ 949. Duty to meet emergencies.
950. Duty to repair damage.
951. Duty to stop performance.
952. Duty to take appropriate action.
CHAPTER XXVIII
FAILURE IN THE UNDERTAKING
§ 960. General theory of the liability.
Topic A. Abnormal Liability as an Insurer
§ 961. Early liability in common calling.
962. Subsequent development of the carrier's liability.
963. Absolute liability of the common carrier.
964. Subsequent development of innkeeper's liability.
965. Conflict in the American authorities.
966. Insurance liability not extended to persons.
967. Responsibility for animate chattels.
Topic B. Abnormal Liability Rigidly Confined
§ 968. The service must be public.
969. The service must be upon a public basis.
970. Service undertaken gratuitously.
971. Compensation included in the whole transaction.
972. The business must be carriage.
973. Carrier's liability not extended to other similar employments.
974. The business must be innkeeping.
975. The innkeeper's liability not extended to other employments.
Topic C. Extent of Normal Liability
§ 976. Absolute and relative liability contrasted.
977. Development of the rule requiring blameworthiness.
978. Liability of the carrier of passengers.
979. Liability of innkeepers for guests personally.
980. Liability of telegraph companies.
981. Liability of water companies.
982. Liability of gas companies.
983. Liability of electric companies,
[ xlvi ]
TABLE OF CONTENTS
Topic D. Established Excuses from All Liability
§ 984. What constitutes act of God.
985. Act of God merely contributory.
986. Damage by public enemies.
987. How far the defense extends.
988. Vice of the property.
989. Natural propensities of animals.
990. Interference by patron.
991. Assumption by patron.
CHAPTER XXIX
LIMITATION OF LIABILITY
8.1000. Limitation upon liability possible.
Topic A. Methods of Making Limitations
§ 1001. Mere notice not sufficient.
1002. Special contract necessary.
1003. Acceptance of an instrument.
1004. Such acceptance not conclusive.
1005. Where consideration is found.
1006. Certain authorities more easily satisfied.
Topic B. Limitation of Exceptional Liability as Insurer
§ 1007. Such limitation not inconsistent with public duty.
1008. Statutory regulation of such contracts.
1009. Construction of the contract.
1010. Conflict of laws.
Topic C. Stipulations against Liability for Negligence
§ 1011. Such stipulation inconsistent with public duty.
1012. Authorities permitting such limitation.
1013. Such stipulations invalid in other services.
1014. Difficulties in the telegraph cases.
1015. Services outside of the profession.
1016. Services in course of business.
1017. Arrangements with connecting services.
1018. Stipulations in gratuitous arrangements.
Topic D. Validity of Special Stipulations
§ 1019. Limitation of valuation generally permitted.
1020. Qualification of this statement.
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TABLE OF CONTENTS
§ 1021. Liability limited to set amount.
1022. Authorities opposed to such limitation.
1023. Stipulation for notification of loss.
1024. Little qualification of this doctrine.
1025. Similar stipulations in telegraph blanks.
1026. What time is reasonable.
PART VIII. TERMINATION OF SERVICE
CHAPTER XXX
END OF THE UNDERTAKING
§ 1030. When the undertaking is completed.
Topic A. How Long Service Continues
§ 1031. Interruption in transit.
1032. Temporary absence from an inn.
1033. Transfer to connecting service.
1034. End of innkeeper's liability as such.
1035. Termination of the carrier's liability as such.
1036. End of transportation.
1037. Reasonable time for removal.
1038. Whether notification is necessary.
Topic B. How the Service Is Terminated
§ 1039. Extent of obligation to deliver.
1040. Delivery by express companies.
1041. Delivery by telegraph companies.
1042. Delivery of goods by railroad companies.
1043. Delivery of bulky freight.
1044. Setting down passengers.
Topic C. Whether Delivery Is Properly Made
§ 1045. Performance according to instructions.
1046. Legal excuse for withholding delivery.
1047. Delivery to true owner.
1048. Delivery to wrong person.
1049. Delivery to the designated person.
1050. Demurrage charges.
1051. Full completion of performance.
[ xlviii]
TABLE OF CONTENTS
BOOK IV. REGULATION OF PUBLIC
SERVICE
PART IX. RESTRICTION OF CHARGES
CHAPTER XXXI
GENERAL THEORY OF RATE REGULATION
§ 1060. General principles governing reasonableness.
Topic A. The Schedule as a Whole
§ 1061. Reasonableness of the schedule as a whole.
1062. Many elements to be taken into account.
1063. Reduction of particular rates leaving sufficient total earnings.
1064. Rule of proportionality in sharing costs.
1065. Rates must be fair to all concerned.
1066. Interests of the companies to be considered.
1067. Interests of the public to be considered.
1068. Accommodation of both sought.
1069. Enlightened policy in rate regulation.
Topic B. The Particular Rate
§ 1070. Reasonableness of the separate rate.
1071. Relation of the particular rate to the whole schedule.
1072. Rates unreasonable in themselves.
1073. Value of the service.
1074. What the traffic will bear.
1075. Making rates compared with levying taxes.
1076. Service of unusual value.
1077. Service not worth usual amount.
1078. Average cost always modified.
CHAPTER XXXII
PROPER BASIS OF CAPITALIZATION
§ 1080. Various theories as to proper capitalization.
Topic A. The Original Cost as the Common-law Basis
§ 1081. Actual investment entitled to return.
4
[ xlix ]
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§ 1082. Argument for the rule of total investment.
1083. What is the actual cost.
1084. Cost enhanced by fraudulent contract.
1085. Plant built unnecessarily large.
1086. Plant adapted for a larger population.
1087. Construction now thought unwise.
1088. Proportion of plant not now utilized.
1089. Equipment long since superseded.
1090. Capital sunk in past operations.
Topic B. Outstanding Capitalization
§ 1091. Normal capitalization outstanding unconclusive.
1092. The problem of watered stock.
1093. Abandonment of par values.
1094. Bonded indebtedness beyond actual value.
1095. Stock issues based upon surplus earnings.
1096. Securities issued upon reorganization.
1097. State scrutiny of the issue of securities.
1098. Existing capitalization hardly excessive.
Topic C. Present Value as the Constitutional Basis
§ 1099. Protection of present values.
1100. Original cost as affecting present value.
1101. Value as a going concern.
1102. Whether return allowed on such value.
1103. Franchise value upon purchase.
1104. Franchise values not considered in rate regulation.
1105. Values returned for taxation inconclusive.
1106. Tax valuation does not estop the State.
Topic D. Cost of Reproduction as the Basis
§ 1107. The Minnesota rule.
1108. The Federal courts opposed.
1109. Explanation of the California decisions.
1110. Factors disregarded by the reproduction rule.
1111. Abandonment of the investment test impolitic.
1112. Two principles still persist.
CHAPTER XXXIII
RATE OF RETURN
§ 1120. Elements in determining a fair return.
Topic A. Establishment of the Doctrine
§ 1121. Establishment of the power to restrict charges.
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TABLE OF CONTENTS
§ 1122. Rates fixed must not produce a deficit.
1123. Adequate return must be left.
1124. Reduction leaving reasonable return.
Topic B. Extent to Which Return Is Protected
§ 1125. Reasonableness of return now judicial question.
1126. Fair return generally conceded.
1127. Reasonable rates not necessarily profitable.
1128. Reduction ruinous only to certain companies.
1129. Possibility of increase of business at the lowered rates.
1130. Reasonable profit upon each transaction.
Topic C. Fair Rate of Return
§ 1131. Interest upon bonds protected.
1132. Dividends upon stock protected.
1133. Current rate of return.
1134. Reasonable profits sufficiently safe.
1135. Unreasonable profits not protected.
1136. Business profit now recognized.
1137. Greater profit for better service.
Topic D. Character of the Enterprise
§ 1138. Larger returns in risky enterprises.
1139. Public service has its peculiar risks.
1140. Special hazards of the business considered.
1141. Commercial conditions affecting dividends.
CHAPTER XXXIV
OPERATING EXPENSES
§ 1150. Real cost of operation.
Topic A. Cost of Performing Service
§ 1151. Cost of rendering service.
1152. Salaries paid to cfficials.
1153. Expenditures to get business.
1154. Current taxes.
1155. Outstanding loans.
1156. Interest payable.
1157. Dividends declared.
Topic B. Expenditures on the Plant
§ 1158. Expense of maintaining equipment.
1159. Losses due to accident.
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TABLE OF CONTENTS
§ 1160. Betterments considered as maintenance.
1161. Replacement considered as repair.
1162. Renewal of equipment to offset depreciation. `
1163. Permanent improvements should not be annual charge.
1164. New construction should be charged to capital account.
1165. A liberal policy desirable.
Topic C. Amortization Requirements
§ 1166. Depreciation now generally allowed.
1167. Full allowance still begrudged.
1168. Refusal to allow depreciation.
1169. Fund to repair depreciation.
1170. Capitalization of past depreciation.
1171. Payments into sinking fund.
1172. Sinking fund for municipal bonds.
1173. Amortization of franchise rights.
Topic D. Operations of Consolidated Properties
§ 1174. Complications in case of systems.
1175. System generally taken as a whole.
1176. Unprofitable portions of the line not considered.
1177. Expenditures for different parts apportioned.
1178. Constituent companies operated under separate charters.
1179. Rent of leased portions.
1180. If rental becomes unjustifiable.
CHAPTER XXXV
DETERMINATION OF PARTICULAR RATES
§ 1190. Various theories as to rate making.
Topic A. Cost of the Service as the Basis
§ 1191. Proper proportion of total costs.
1192. Apportionment of separate costs to different services.
1193. Alloration of joint costs.
1194. Apportionment between interstate and intrastate business,
1195. Apportionment of total expense.
1196. Basis of the distribution.
1197. Proportionate share of different classes.
1198. Average rate per unit of service.
1199. Recognition of the ton-mile cost basis.
1200. Ton-mile cost basis not oppressive.
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TABLE OF CONTENTS
§ 1201. Authorities permitting disproportionate rates.
1202. Authorities opposed to disproportion.
Topic B. Factors Modifying Average Cost
§ 1203. Cost of service insufficient in itself.
1204. Current theories as to relative rates.
1205. Amount of service asked as a factor.
1206. Local business peculiarly expensive.
1207. Special conditions affecting cost.
1208. Circumstances of particular service.
1209. Proportionate rates always legal.
1210. Full extent of the doctrine.
Topic C. Value of Service as the Basis
§ 1211. What the traffic will bear.
1212. Necessity of legal limitation.
1213. Worth of the service to the individuals taken as a whole.
1214. Cost of obtaining a substitute for the service.
1215. External standards of value
1216. Rates reasonable per se.
1217. The Kansas City Stock Yards Case.
1218. The Niagara Bridge Case.
1219. These cases apparently distinguishable.
Topic D. Economic Principles Affecting Rate Making
§ 1220. Law of decreasing costs.
1221. Exceptions to law of decreasing cost.
1222. Competition as a factor.
1223. Policy for permitting competitive rates.
1224. Necessary limitation upon these principles.
1225. Equalization of commercial advantage.
1226. Argument against preferential rates.
1227. Conclusion as to proportional rate.
1228. Conflicting theories still persist.
CHAPTER XXXVI
CHARACTERISTICS OF THE RATE
§ 1230. Fixing the particular rate.
Topic A. Classification in Rate Schedules
§ 1231. Prevelance of classification.
1232. History of railroad classification.
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§ 1233. Usual division into classes.
1234. Distribution of the burden by classification.
1235. Reasonableness of classification requisite.
1236. Influences determining proper classification.
1237. Like classification for similar goods.
1238. Different classification for dissimilar goods.
1239. Business expensive to handle.
1240. Service performed at lower cost.
Topic B. Method of Fixing Rates
§ 1241. Basis upon which charges may be made.
1242. Establishment of the unit of charge.
1243. Methods of computing freights.
1244. Different basis in supply services.
1245. Requiring metering not discrimination.
1246. Query as to the flat rate.
1247. Justification of the minimum charge.
1248. Principle applicable in all public service.
1249. Unit must be reasonable.
1250. Reasonableness of the period fixed.
1251. Minimum rate distinguished from equipment charge.
1252. Initial unit distinguished from repeat unit.
Topic C. The Journey the Unit
§ 1253. The journey is a single entire unit.
1254. Ticket good only for through transportation.
1255. Passenger cannot take two journeys for a single fare.
1256. Two partial fares for a single journey.
1257. Part of journey completed before fare collection.
1258. Resumption of journey by ejected passenger.
1259. Passenger expelled at a regular station.
1260. Change of destination during the journey.
1261. Second journey on same train.
1262. No separate charge for a part of the transit.
Topic D. The Shipment the Unit
§ 1263. Maritime freight.
1264. Right to freight on land.
1265. Effect of carriage over a portion of the journey.
1266. No freight without delivery.
1267. Effect of partial delivery.
1268. Freight indivisible as a rule.
1269. Entire freight when goods arrive damaged.
1270. General principles as to additional charges.
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TABLE OF CONTENTS
PART X. PREVENTION OF DISCRIM-
INATION
CHAPTER XXXVII
PROHIBITION OF DISCRIMINATION
§ 1280. The rule against discrimination.
Topic A. Development of the Rule
§ 1281. Evolution of the rule.
1282. No law originally against discrimination as such.
1283. Later rule against unreasonable differences.
1284. Special rates may not be discriminatory.
1285. Exclusiveness once held indispensable.
1286. Discrimination as evidence of unreasonable rates.
1287. Complainant charged more than regular rates.
1288. Others charged less than regular rates.
1289. Outright discrimination universally condemned.
1290. Modern law against all discrimination.
1291. Necessity for the rule against discrimination.
1292. Discrimination inconsistent with public duty.
Topic B. What Constitutes Illegal Discrimination
§ 1293. What amounts to a rebate.
1294. Sanctity of the schedule rate.
1295. Explanation of this policy.
1296. Decisions inconsistent with this policy.
1297. Continuing contracts no justification.
1298. Executed contracts on a different basis.
1299. Rule not limited to discrimination between competitors.
1300. Rule universal in public service.
1301. Giving free passes discrimination.
1302. Statutory exceptions usually made.
1303. Reductions for charitable purposes.
1304. Concessions for government business.
1305. Reductions for general classes.
1306. No obligation to grant such concession.
CHAPTER XXXVIII
ILLEGAL DISCRIMINATION
§ 1310. What constitutes illegal discrimination.
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TABLE OF CONTENTS
Topic A. Concessions to get Competitive Business
§ 1311. Concessions once allowed in competition.
1312. Competitive conditions no justification.
1313. Concessions to get outside business.
1314. Rebating to get business illegal.
1315. Competitive rates for through business.
1316. Additional services performed for certain customers.
1317. Customers induced to make expensive preparations.
Topic B. Concessions to Large Customers
§ 1318. Whether concessions may be made to large customers.
1319. Unreasonable differences universally forbidden.
1320. Reasonable differences sometimes permitted.
1321. Authority for such differentials.
1322. Prevelant doctrine against such concessions.
1323. Services to large and small customers practically identical.
1324. Company need never grant such reductions.
Topic C. Rebates to Exclusive Customers
§ 1325. Whether exclusive policies may be adopted.
1326. Such discriminations foster monopolies.
1327. Those who use rival line charged more than usual.
1328. Lower rates to exclusive customers sometimes permitted.
1329. Comparison of these decisions.
1330. Customers contracting for large amounts.
1331. Customers under exclusive contract to give business.
Topic D. Concessions for Special Kinds of Business
§ 1332. Different rates for service differently employed.
1333. Such rates allowed by some cases.
1334. Repudiation of this doctrine.
1335. Supply put to different uses.
1336. Discrimination in such supply.
1337. Commodities carried of different character.
1338. Supply under different conditions.
CHAPTER XXXIX
JUSTIFIABLE DIFFERENCES
§ 1340. Propriety of proportionate rates.
Topic A. Actual Differences in Total Costs
1341. Extent of the rule against discrimination.
1342. Differences in the cost.
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TABLE OF CONTENTS
§ 1343. Economies in passenger transportation.
1344. Economies in freight transportation.
1345. Different charges for different service.
1346. Difference in the nature of the service.
1347. Both rates must be open to all.
Topic B. Service in More Convenient Units
§ 1348. Shipment in carloads.
1349. Shipments made in bulk.
1350. Comparison of bulk and package rates.
1351. Shipments in train loads.
1352. Regular shipments in large units.
1353. Units in passenger service.
1354. Operating units in supplying service.
1355. Such reductions apparently discriminatory.
Topic C. Facilities Furnished by Customers
§ 1356. Terminal facilities furnished by shippers.
1357. Transportation expenses paid by shipper.
1358. Rental paid for shipper's cars.
1359. Allowances for facilities closely scrutinized.
1360. Allowances for facilities still permissible.
Topic D. Independent Consideration for Reductions
§ 1361. When consideration is given for reduction.
1362. Indefinite considerations considered dangerous.
1363. Reductions for services rendered.
1364. Continuing obligations for past consideration.
1365. Concessions to those with whom it deals.
1366. Rates adopted to foster its interests.
CHAPTER XL
RELATIVE DISCRIMINATION
§ 1370. Essential illegality of relative discrimination.
Topic A. Discrimination Between Localities Served
§ 1371. Unjust rates between localities.
1372. Evidence of disproportionate charging.
1373. Railroad rates not upon a mileage basis.
1374. Various systems of making distance rates.
1375. Long and short haul.
1376. The similar circumstances proviso.
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TABLE OF CONTENTS
§ 1377. Competition as a justification for disproportion.
1378. Undue preference.
1379. Argument for competitive rates.
1380. Competitive rates must not be ruinous.
1381. Reconsignment arrangements.
1382. Back freights.
1383. Equalization of economic advantage.
1384. Law against commercial equalization.
1385. No obligation to make preferential rates.
1386. Due consideration of true differences.
Topic B. Discrimination Between Services Rendered
§ 1387. Disproportionate rates for different services.
1388. Charging what the traffic will bear.
1389. Difference in rate between freight classes.
1390. Differences should not be grossly disproportionate.
1391. Comparison the basis of the differential.
1392. Difference in commodity rates.
1393. Rates vary with values.
1394. Improper to equalize values.
1395. Policy against all discrimination.
1396. Relative discrimination inconsistent with public duty.
CHAPTER XLI
CONSTITUTIONAL SUMMARY
§ 1400. Control of public employment.
Topic A. Character of the Power to Regulate
§ 1401. Nature of the power to regulate.
1402. Power to regulate not a judicial power.
1403. Power to regulate not strictly legislative.
1404. Power to regulate is administrative.
1405. Regulating body presumably reasonable.
1406. Duty of the courts to decide reasonableness.
Topic B. Method of Exercising the Power to Regulate
§ 1407. Fixing rules by legislation.
1408. Delegation of regulating power.
1409. Functions of administrative commissions.
1410. Action by municipal, or other local government.
1411. Function of the courts in declaring regulation void.
1412. When suit is against State official.
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TABLE OF CONTENTS
Topic C. Division Between Federal and State Jurisdiction
§ 1413. What constitutes interstate commerce.
1414. Continuous carriage under common control.
1415. Continuity of interstate shipment.
1416. Carriage wholly within the State.
1417. State legislation burdening interstate commerce.
1418. Scope for State police power.
1419. Effect of action by Congress.
1420. Power of Congress to regulate.
Topic D. Impairing Obligation of Contract
§ 1421. Contract character of charter privileges.
1422. Express contractual provision necessary.
1423. Conferring powers does not create contract.
1424. Contracts made by municipal ordinance.
1425. Loss of the privilege.
1426. Assignment of the privilege.
Topic E. Confiscation of Property
§ 1427. The doctrine of the "Granger" cases.
1428. Early modification of the doctrine.
1429. Fair return finally protected.
1430. When rates are confiscatory.
1431. When fair net earnings left.
1432. Reasonable rates not necessarily profitable.
Topic F. Due Process of Law
§ 1433. Imposition of absolute liability.
1434. Requiring service outside employment.
1435. Police power unusually extensive.
1436. Regulation must not be discriminatory.
1437. New limitations upon industrial liberty.
1438. Differentiation of the public services.
1439. Ultimate regulation of all monopoly.
1440. State control not socialism.
APPENDIX A
THE INTERSTATE COMMERCE ACT
§ 1. Regulation of transportation.
2. Unjust discrimination defined and forbidden.
3. Undue or unreasonable preference or advantage forbidden.
4. Long and short hand provision.
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TABLE OF CONTENTS
§ 5. Pooling of freights and division of earnings forbidden.
6. Printing and posting of schedules.
7. Continuous carriage of freights.
8. Liability of common carriers for damages.
9. Election whether to complain to the commission or bring suit.
+
10. Penalties for violations of act by carriers.
11. The Interstate Commerce Commission.
12. Powers and duties of the commission.
13. Complaints to commission.
14. Commission must make reports.
15. Commission may prescribe rates and classifications.
16. Award of damages by commission.
16a. Commission may grant rehearings.
17. Form of procedure.
18. Organization of the commission.
19. Office of the commission.
20. Annual reports to commission.
21. Annual reports of the commission.
22. Persons and property that may be carried free or at reduced rates.
23. Jurisdiction of United States courts.
24. Constitution of the commission.
APPENDIX B
THE COMMERCE COURT ACT
§ 1. Creation and jurisdiction of Commerce Court.
2. Appeals to Supreme Court.
3. Suits to enjoin orders of commission.
4. Suits to be brought by or against United States.
5. Control of such suits.
6. Pending and other proceedings.
7. Pending cases.
8. Special commission to investigate securities.
9. Interlocutory injunctions restraining enforcement of State statutes.
10. When act effective.
APPENDIX C
THE ELKINS ACT
§ 1. Carrier corporation as well as officer liable to conviction.
2. Persons interested may be made parties.
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TABLE OF CONTENTS
§ 3. Proceedings to enjoin departures from published rates.
4. Conflicting laws repealed.
APPENDIX D
§ 1. Expedition of cases.
THE EXPEDITING ACT
2. Appeal to Supreme Court.
APPENDIX E
FORMS FOR PROCEEDINGS BEFORE COMMISSIONS
§ 1. Complaint of unreasonable charges.
2. Complaint of wrong classification.
3. Answer on the merits.
4. Answer denying the jurisdiction.
APPENDIX F
FORMS FOR PROCEEDINGS INVOLVING COMMISSIONS
§ 1. Bill to enforce order of the Commission.
2. Abstract of answer to above complaint.
3. Bill to enjoin order of the Commission.
4. Abstract of answer to this bill.
[ lxi ]
TABLE OF CASES CITED
A
[References are to sections]
Abbey v. Steamboat Stevens, 22
How. Pr. 78 (1861), 173, 774.
Abbot v. Oregon Ry. & Nav. Co.,
46 Oreg. 549 (1905), 398, 873.
Abbott v. Bradstreet, 55 Me. 530
(1868), 769.
Abraham v. Western Union Tel-
egraph Co., 23 Fed. 315
(1885), 980, 1014.
Abrams v. Platt, 23 N. Y. Misc.
637 (1898), 741.
Adams v. Clem, 41 Ga. 65 (1870),
1034.
Adams v. Freeman, 12 Johns. 408,
7 Am. Dec. 327 (1815), 106.
Adams v. Union R. R. Co., 21
R. I. 134 (1899), 347.
Adams Express Co. v. Bratton,
106 Ill. App. 563 (1902), 902.
Adams Express Co. v. Carnahan,
29 Ind. App. 606 (1902),
1003, 1021.
Adams Express Co. v. Common-
wealth, 33 Ky. L. Rep. 967
(1908), 600.
Adams Express Co. v. Common-
wealth, 29 Ky. L. Rep. 224
(1906), 600.
Adams Express Co. v. Cressap, 6
Bush, 572 (1869), 970.
Adams Express Co. v. Darnell, 31.
Ind. 20 (1869), 1040.
Adams Express Co. v. Harris, 120
Ind. 73 (1889), 1005, 1022,
Adams Express Co. v. Kentucky,
206 U. S. 129 (1907), 1418.
Adams Express Co. v. Kentucky,
214 U. S. 218 (1910), 1418.
Adams Express Co. v. McCon-
nell, 27 Kans. 238 (1882),
178, 776.
Adams Express Co. v. Nock, 2
Duv. 562 (1866), 1003.
Adams Express Co. v. Reagan, 29
Ind. 21 (1867), 1026.
Adams Express Co. v. State, 161
Ind. 328 (1903), 178.
Adams Express Co. v. Stettaners,
61 Ill. 184 (1871), 1020.
Adams & Co. v. Blankenstein, 2
Cal. 413 (1852), 1048.
Agee & Co. v. Louisville & N. R.
Co., 142 Ala. 344 (1904), 224,
225, 822.
Agnew v. Steamer Contra Costa,
27 Cal. 425 (1865), 963.
Ahern v. Minn. St. Ry. Co., 102
Minn. 435 (1907), 754.
Aiken & Co. v. Eager & Co., 35
La. Ann. 567 (1883), 102,
232.
Aiken v. Western Union Tele-
graph Co., 5 S. C. 358 (1874),
348, 1014.
Airey v. Pullman Palace Car Co.,
50 La. Ann. 648 (1898), 776.
Akron v. East Ohio Gas Co.,
53 Oh. L. Bull. 441 (1908),
305.
[ lxiii ]
TABLE OF CASES CITED
[References are to sections]
Alabama & V. Ry. Co. v. Bri-
chett, 72 Miss. 891 (1895),
952.
Alabama & V. Ry. Co. v. Missis-
sippi R. R. Comm., 203 U. S.
496 (1906), 1385.
Alabama & V. R. R. Co. v. Rail-
road Comm., 86 Miss. 667
(1905), 682, 1132, 1315,
1381.
Alabama & V. Ry. Co. v. Tirelli
Bros., 93 Miss. 797 (1909),
1046.
Alabama Gt. So. Ry. Co. v. Ar-
nold, 84 Ala. 159 (1888), 398,
873.
Alabama Gt. So. Ry. Co. v. Mt.
Vernon Co., 84 Ala. 173
(1887), 726.
Alabama Gt. So. Ry. Co. v.
Quarles & C., 145 Ala. 436
(1906), 902, 918.
Alabama Gt. So. Ry. Co. v.
Thomas, 89 Ala. 294 (1889),
525.
Alair v. Northern Pacific Ry. Co.,
53 Minn. 160 (1893), 1021.
Albany Tel. Co. v. Terry (Tex.
Civ. App.), 127 S. W. 567
(1910), 533.
Albers v. Western Union Tel. Co.,
98 Iowa, 51 (1896), 1025,
1026.
Albert v. Davis, 49 Neb. 579
(1896), 825.
Albin v. Chicago, R. I. & P. Ry.
Co., 103 Mo. App. 308
(1903), 735.
Albin v. Gulf, C. & S. F. Ry. Co.
(Tex. Civ. App.), 95 S. W.
589 (1906), 872.
Albion Lumber Co. v. De Nobra,
72 Fed. 739 (1896), 207, 223,
340.
Albright v. Penn, 14 Tex. 290
(1855), 182.
Alden v. New York C. R. R. Co.,
26 N. Y. 102 (1862), 977.
Aldrich C. S. Mfg. Co. v. Amer-
ican Exp. Co., 117 Mich. 32
(1898), 1048.
Alexander v. Green, 3 Hill, 9
(1842), 7 Ibid. 533 (1844),
150, 160, 173, 774, 972.
Alexander v. Nanticoke Light Co.,
209 Pa. St. 571 (1904), 983.
Alexandria Bay Stb. Co. v. New
York C. & H. R. R. R. Co.,
18 N. Y. App. Div. 527
(1897), 102, 488.
Alexandria Bay Stb. Co. v. New
York C. & H. R. R. R. Co.,
45 N. Y. Supp. 1091 (1897),
811.
Alexandria, The City of, 28 Fed.
202 (1886), 732, 741.
Aliso Water Co. v. Baker, 95 Cal.
268 (1892), 221, 242.
Allam v. Pennsylvania R. R. Co.,
183 Pa. St. 174 (1897), 1007,
1042.
Allen v. Jay, 60 Me. 124, 11 Am.
Rep. 185 (1872), 64.
Allen v. Lake Shore & Mich. S.
Ry. Co., 57 Ohio St. 79
(1897), 763, 870.
Allen v. Maine Central R. R. Co.,
79 Me. 327 (1887), 1046.
Allen v. Oregon Ry. & Nav. Co.,
98 Fed. 16 (1899), 534.
Allen v. Sackrider, 37 N. Y. 341
(1867), 235, 239.
Allen v. Sewell, 2 Wend. (N. Y.)
327 (1829), 255.
Allen v. Smith, 12 C. B. (N. S.)
638 Eng. (1862), 1032.
Allen v. Somers, 73 Conn. 355,
(1900), 143.
[lxiv]
TABLE OF CASES CITED
[References are to sections]
Allen v. Texas & P. Ry. Co., 100
Tex. 525 (1907), 798, 835,
836, 1433.
Allen Mfg. Co. v. Shreveport Wa-
terworks Co., 113 La. 1091
(1905), 350.
Allen & G. R. Co. v. Can. Pac.
Ry. Co., 42 Wash. 64 (1906),
512.
Allender v. Chicago, R. I. & P. R.
R. Co., 37 Ia. 264 (1873),
401.
Allis v. Voigt, 90 Mich. 125 (1892),
238, 239, 968.
Allnutt v. Inglis, 12 East, 527
(1810), 54.
Alpena Electric Co. v. Alpena,
130 Mich. 413 (1902), 1123,
1430.
Alsop v. Southern Exp. Co., 104
N. C. 278 (1889), 178, 392,
477, 868.
Altoona v. Shellenberger, 6 Pa.
Dist. Rep. 544 (1897), 456.
Alvord v. Syracuse, 103 N. Y.
158 (1900), 824.
American Banana Co. v. United
Fruit Co., 160 Fed. 184
(1908), 695, 707.
American Dist. Tel.
Tel. Co. v.
Walker, 72 Md. 454 (1890),
108.
American Express Co. v. Com-
monwealth, 30 Ky. L. Rep.
207 (1906), 600.
American Express Co. v. Green-
halgh, 80 Ill. 68 (1875), 1047.
American Express Co. v. Hag-
gard, 37 Ill. 465 (1865), 1040.
American Express Co. v. Hockett,
30 Ind. 250 (1868), 776, 1040.
American Express Co. v. Ken-
tucky, 206 U. S. 139 (1907),
600.
American Express Co. v. Ogles
(Tex. Civ. App.), 81 S. W.
1023 (1904), 758.
American Express Co. v. Perkins,
42 Ill. 458 (1867), 991.
American Express Co. v. Second
Nat. Bank, 69 Pa. St. 394
(1871), 1003.
American Express Co. v. Smith,
33 Ohio St. 511 (1878), 178,
776, 903, 909, 951, 952.
American Express Co. v. Southern
Indiana Exp. Co., 167 Ind.
292 (1906), 523, 682, 871.
American Express Co. v. United
States, 212 U. S. 522 (1909),
1290, 1302.
American Grocery Co. v. Staten
Island R. T. Ry. Co., 51 N.
Y. Supp. 307 (1898), 1023.
American Lighting Co. v. Public
Service Corporation, 132 Fed.
794 (1904), 374, 702.
American L. & T. Co. v. General
Electric Co., 71 N. H. 192
(1901), 113.
American L. S. Commission Co.
v. Chicago L. S. Exchange,
143 Ill. 210 (1892), 146.
American Merch. Union Exp. Co.
v. Milk, 73 Ill. 224 (1874),
1048.
American Merch. Union Exp.
Co. v. Phillips, 29 Mich. 515
(1874), 256.
American Rapid Telegraph Co. v.
Connecticut Telephone Co.,
49 Conn. 352 (1881), 136,
692.
American St. Ship Co. v. Bryan,
83 Pa. St. 446 (1877), 769.
American Tie & Timber Co. v.
Kansas City S. Ry. Co., 175
Fed. 28 (1909), 850, 1365.
5
[lxv ]
TABLE OF CASES CITED
[References are to sections]
American Union Coal Co. v.
Pennsylvania R. R. Co., 159
Fed. 278 (1908), 1294.
American Waterworks
Co. V.
State, 46 Neb. 194 (1895), 92,
215, 451, 690, 866.
Ames v. Fargo, 114 N. Y. App.
Div. 666 (1906), 393, 414,
727, 989, 991.
Ammons v. Railroad, 138 N. C.
555 (1905), 878.
Anchor Line v. Dater, 68 Ill. 369
(1873), 1004.
Ancrum v. Camden Water, L. &
I. Co., 82 S. C. 284 (1908),
350.
Anderson v. Citizens' St. R. R.
Co., 12 Ind. App. 194 (1894),
1044.
Anderson v. Louisville & N. R.
R. Co., 62 Fed. 46 (1894),
848.
Anderson v. Louisville & N. R.
Co., 134 Ky. 343 (1909), 440,
886.
Anderson v. Mobile & O. R. R.
Co. (Miss.), 38 So. 661 (1905),
409, 730.
Anderson v. St. Cloud, 79 Minn.
88 (1900), 795.
Anderson v. Village of Berwyn,
135 Ill. App. 8 (1907), 825.
Anderson v. Western Union Tele-
graph Co., 84 Tex. 17 (1892),
412, 437.
Andrews v. North River Electric
Co., 53 N. Y. Supp. 810
(1898), 411.
Andrus v. Columbia & O. Stb.
Co., 47 Wash. 333 (1907), 520,
521, 907, 952.
Annas v. Milwaukee & N. R. R.
Co., 67 Wis. 46 (1886), 785,
786, 1018.
Anniston Cordage Co. v. Western
Union Telegraph Co., 161
Ala. 216 (1909), 348.
Annon, Matter of, 50 Hun, 413
(1888), 149.
Anonymous, F. N. B. 948, 961.
Anonymous, Y. B. 11 Ed. IV, 6,
pl. 10, 6.
Anonymous, Y. B. 22 Ed. IV, 49,
pl. 15, 7, 8, 12.
Anonymous, Y. B. 42 Ed. III, 11,
pl. 13 (1367), 770.
Anonymous, Y. B. 42 Ed. III, 3,
pl. 11, 961.
Anonymous, Y. B. 43 Ed. III, 6,
pl. 11, 6.
Anonymous, Y. B. 43 Ed. III, 33,
pl. 38, 961.
Anonymous, Y. B. 46 Ed. III, 19,
pl. 19, 8, 201.
Anonymous, Y. B. 11 Hen. IV, 45,
pl. 18 (1410), 12, 770.
Anonymous, Y. B. 3 Hen. VI, 36,
pl. 33, 6.
Anonymous, Y. B. 10 Hen. VII,
8, pl. 14 (1494), 9, 12, 430.
Anonymous, Y. B. 14 Hen. VII,
22, pl. 4, 12.
Anonymous, Y. B. 14 Hen. VII,
Rast. Ent. 2, 6, 1, 201.
Anonymous, Y. B. 19 Hen. VI,
49, pl. 5, 6, 201.
Anonymous, Y. B. 21 Hen. VI, 55,
pl. 12, 8.
Anonymous, Y. B. 27 Lib. Assis.
138, pl. 44, 10.
Anonymous, Y. B. 39 Hen. VI,
18, pl. 24, 9, 430.
Anonymous, Godbolt, 345, pl. 440
(1623), 12, 203, 315.
Anonymous, Keilway, 50, pl. 4, 8,
12.
Anonymous, Y. B. 22 Lib. Assis.
94, pl. 41, 14, 201.
[lxvi ]
TABLE OF CASES CITED
[References are to sections]
Anonymous, Dall. 8, Y. B. 42 Lib.
Assis. 260, pl. 17, 961.
Anonymous, 12 Mod. 3 (1702),
255.
Anonymous, 1 Roll. Abr. 10, pl.
5, 6.
Apex Transportation Co. v. Gar-
bade, 32 Oreg. 582 (1898),
222.
Apollon, The, 9 Wheat. 362
(1824), 1050.
Arcade Hotel Co. v. Wiatt, 44
Ohio St. 32 (1886), 970.
Archambault v. Gt. North West-
ern Telegraph Co., 14 Que-
bec, 8 (1886), 605, 633.
Archer v. Union Pacific Ry. Co.,
110 Mo. App. 349 (1905),
395, 873.
Arctic Fire Ins. Co. v. Austin, 54
Barb. 559 (1869), 173, 774.
Arkansas & L. R. R. Co. v. Sain,
90 Ark. 278 (1909), 371.
Arkansas Railroad Rates, 163
Fed. 141 (1908), 1129, 1195,
1196, 1220.
Arkansas R. R. Rates, 168 Fed.
920 (1909), 1086, 1127, 1152,
1159, 1201.
Arkansas Southern Ry. Co. v.
German Nat. Bank, 77 Ark.
482 (1906), 1045.
Armfield v. Humphrey, 12 Ill.
App. 90 (1882), 170, 236, 238.
Armour v. Michigan Central Ry.
Co., 65 N. Y. 111 (1875),
748.
Armour Packing Co. v. Edison
Electric Illuminating Co.,
115 N. Y. App. Div. 51
(1906), 113, 214, 215, 243,
605, 1290, 1300.
Amour Packing Co. v. United
States, 209 U. S. 56, 1297.
Armstrong v. Chicago, M. & St.
P. Ry. Co., 53 Minn. 183
(1893), 1023, 1026.
Armstrong, Admx., v. Montgom-
ery St. Ry. Co., 123 Ala. 233
(1898), 865.
Arnold v. Cov. & Cin. Bridge Co.,
1 Duval, 372 (1864), 53, 241.
Arnold v. Pennsylvania R. R. Co.,
115 Pa. St. 135 (1887), 738.
Arnold v. Rhode Island Co., 28
R. I. 118 (1907), 890.
Arrowsmith v. Nashville & D. Ry.
Co. (C. C.), 57 Fed. 165
(1893), 777.
Arthur v. Texas & P. Ry. Co.,
204 U. S. 505 (1907), 399, 727
732.
Arthur et al. v. St. Paul & D. Ry.
Co., 38 Minn. 95 (1887),
1036.
Asher v. Hutchinson Water, L.
& P. Co., 66 Kan. 496 (1903),
92, 242, 297, 306, 307.
Ashley v. Rocky Mountain Bell
Telephone Co., 25 Mont. 286
(1901), 431, 443.
Ashmore v. Penn. Steam Towing
Trans. Co., 28 N. J. 180
(1860), 173, 774, 1011.
Astor v. Arcade Ry. Co., 113
N. Y. 93 (1888), 179.
Atchison & Neb. R. R. Co. v.
Miller, 16 Neb. 661 (1884),
1002.
Atchison & N. R. R. Co. v. Wash-
burn, 5 Neb. 117 (1876), 256.
Atchison, T. & S. F. R. R. Co. v.
Denver & N. O. R. R. Co.,
110 U. S. 667 (1884), 527,
533, 805, 807, 811.
Atchison, T. & S. F. R. R. Co. v.
Dill, 48 Kan. 210 (1892),
1003, 1005.
[ lxvii ]
TABLE OF CASES CITED
[References are to sections]
Atchison, T. & S. F. R. R. Co. v.
Ditmars, 3 Kan. App. 459
(1896), 772.
Atchison, T. & S. F. R. R. Co. v.
Gants, 38 Kan. 608 (1888),
865, 870, 872.
Atchison, T. & S. F. R. R. Co. v.
Jandera, 24 Okla. 106 (1909),
367.
Atchison, T. & S. F. R. R. Co.
v. Headland, 18 Colo. 477
(1893), 745, 746.
Atchison, T. & S. F. R. R. Co. v.
Holmes, 18 Okla. 92 (1907),
1294.
Atchison, T. & S. F. R. R. Co. v.
Morris, 65 Kan. 532 (1902),
1023.
Atchison, T. & S. F. R. R. Co. v.
Roberts, 3 Tex. Civ. App.
370 (1893), 438.
Atchison, T. & S. F. R. R. Co. v.
Schriver, 72 Kan. 550 (1906),
1045.
Atchison, T. & S. F. R. R. Co. v.
Weber, 33 Kan. 543 (1885),
629, 639, 933, 934.
Atchison, T. & S. F. R. R. Co.
v. Wood (Tex. Civ. App.),
77 S. W. 964 (1903), 629,
633.
Atkinson v. Sellers, 5 C. B. (N. S.)
442 (1858), 364.
Atlanta Baggage Cab Co. v.
Mizo, 4 Ga. App. 407 (1908),
171.
Atlantic & P. Ry. Co. v. United
States, 76 Fed. 186 (1896),
1099, 1175, 1407.
Atlantic & Pac. Tel. Co. v. West-
ern Union Telegraph Co., 4
Daly (N. Y.), 527 (1873),
516, 520.
Atlantic City v. Dehn, 69 N. J. L.
233 (1903), 107, 185, 213.
Atlantic City v. Fansler, 70 N. J.
L. 491 (1904), 205.
Atlantic C. L. Ry. Co. v. Com-
monwealth, 102 Va. 599
(1904), 1409.
Atlantic C. L. Ry. Co. v. Florida,
203 U. S. 256 (1906), 1071,
1078, 1198, 1199.
Atlantic C. L. Ry. Co. v. Geraty,
166 Fed. 10 (1908), 399, 795,
801.
Atlantic C. L. Ry. Co. v. Mazur-
sky, 216 U. S. 122 (1910),
1418.
Atlantic C. L. Ry. Co. v. North
Carolina Corp. Comm., 206
U. S. 1 (1907), 211, 540, 836,
1434.
Atlantic C. L. Ry. Co. v. Rice
(Ala.), 52 So. 918 (1910), 413,
414, 991.
Atlantic C. L. Ry. Co. v. Whar-
ton, 207 U. S. 328 (1907),
797, 1417.
Atlantic Express Co. v. Wilming-
ton & W. R. R. Co., 111 N. C.
463 (1892), 477.
Atlanta, City of, v. Burton, 90 Attorney General, In re, 113 Wis.
Ga. 486 (1892), 456.
Atlanta Consol. St. Ry. Co. v.
Keeny, 99 Ga. 266 (1896),
441.
Atlanta Terminal Co. v. American
Baggage & T. Co., 125 Ga.
677 (1906), 390, 391, 501.
623 (1902), 305.
Attorney General of New Bruns-
wick, Ex parte, 1 Pug. & Bur.
667, 211.
Attorney General v. City of Bos-
ton, 123 Mass. 460 (1877),
299.
[ lxviii]
TABLE OF CASES CITED
[References are to sections]
Attorney General v. Detroit &
Erie Plank Road Co., 2 Mich.
138 (1851), 75, 241.
Attorney General v. Great North-
ern R. R. Co., 29 L. J.
Eq. (N. S.) 794 (1860), 503,
703.
Attorney General v. Pingree, 120
Mich. 550 (1899), 64.
Atwater v. Delaware, L. & W. R.
R. Co., 48 N. J. L. 55 (1886),
449, 450, 642.
Atwater v. Sawyer, 76 Me. 539
(1884), 106, 213, 569, 646.
Audenried v. Philadelphia & R. R.
R. Co., 68 Pa. St. 370 (1871),
232, 501, 1282.
Auerbach v. New York C. & H. R.
R. R. Co., 89 N. Y. 281
(1882), 446, 1254.
Augusta Ry. & El. Co. v. Smith,
121 Ga. 29 (1904), 864.
Augusta S. R. Co. v. Wrightsville
& T. R. Co., 74 Fed. 522
(1896), 534, 1373, 1414.
Aurora, City of, v. West, 9 Ind.
74 (1857), 217.
Aurora v. Elgin Traction Co., 227
Ill. 485 (1907), 192.
Aurora Water Co. v. Aurora, 129
Mo. 540 (1895), 981.
Austin v. Great W. Ry., L. R. 2
Q. B. 442 (1867), 341.
Austin v. St. Louis & S. F. R. Co.
(Mo. App.), 130 S. W. 385
(1910), 1031.
Averill v. Southern Ry. Co., 75
Fed. 736 (1896), 694.
Avery v. Vermont Electric Co.,
75 Vt. 235 (1902), 60, 95, 113,
114, 243.
Avinger v. South Carolina Ry.
Co., 29 S. C. 265 (1888), 224,
225, 551, 822, 1282, 1311.
Ayer v. Western Union Telegraph
Co., 79 Me. 493 (1887), 244,
766, 1014, 1025.
Ayers v. Western Union Tel.
Co., 72 N. Y. S. 634 (1901),
1041.
Aymar v. Astor, 6 Cow. (N. Y.)
266 (1826), 235.
Ayres v. Chicago & Northwestern
Ry. Co., 71 Wis. 372 (1888),
256, 345, 408, 662, 663, 664,
665, 722, 799, 800, 831, 834,
853, 854, 914.
Ayres v. Delaware, L. & W. R. R.
Co., 28 N. Y. Supp. 789
(1894), 943.
B
Babcock v. Herbert, 3 Ala. 392
(1842), 160, 182, 213, 239.
Babcock v. Lake Shore & M. S.
Ry. Co., 49 N. Y. 491 (1872),
515, 531.
Bachant v. Boston & M. R. R.
Co., 187 Mass. 392 (1905),
1042.
Bacon v. Casco Bay Steamboat
Co., 90 Me. 46 (1897), 1017.
Bacon v. Pullman Co., 159 Fed. 1
(1908), 769.
Baehr v. Downey, 133 Mich. 163
(1903) 1034.
Baggett v. Baltimore & O. R. R.
Co., 3 D. C. App. Cas. 522
(1894), 889.
Bailey v. Damon, 3 Gray (Mass.),
92 (1854), 1263.
Baillie v. Larson, 138 Fed. 177
(1905), 63, 222.
Baily v. Fayette Gas Co., 193
Pa. St. 175 (1899), 265, 705,
1336.
Baird v. Supervisors, 138 N. Y.
95 (1893), 299.
[ lxix]
TABLE OF CASES CITED
[References are to sections]
Baker v. Boston & Maine R. R.
Co., 74 N. H. 100 (1906),
481, 781, 796, 1016.
Baker v. Dessaner, 49 Ind. 28
(1874), 965.
Baker v. San Francisco Gas Co.,
141 Cal. 710 (1904), 438.
Bald Eagle Valley Ry. Co. v.
Nittany Valley Ry. Co., 171
Pa. St. 284 (1895), 685, 1325.
Baldwin v. American Express
Co., 23 Ill. 197 (1859), 1040.
Baldwin v. Railroad Co., 50 Ia.
680 (1879), 529.
•
Baldwin v. Seaboard Air Line Ry.
Co., 128 Ga. 567 (1907),
602.
Baldwinsville
Telephone
Co.,
Matter of, 24 N. Y. Misc.
221 (1898), 526, 700.
Ball v. Beck, Fed. Cas. No. 1,161,
968.
Ball v. Mobile Light & R. R. Co.,
146 Ala. 309 (1905), 341.
Ball v. New Jersey Stb. Co., 1
Daly, 491 (1865), 730.
Ball v. Rutland R. R. Co., 93
Fed. 513 (1889), 1124, 1407,
1421, 1426, 1430.
Ballentine v. North Missouri R.
R. Co., 40 Mo. 491 (1867),
79, 256, 664, 665, 800, 909,
914.
Ballou v. Earle, 17 R. I. 441
(1891), 1003, 1021.
Baltimore & O. R. R. Co. v.
Adams Exp. Co., 22 Fed. 32
(1884), 523, 682.
Baltimore & O. R. R. Co. v.
Barger, 80 Md. 23 (1894),
935, 937, 938.
Baltimore & O. R. R. Co. v.
Blocher, 27 Md. 277 (1867),
935.
Baltimore & O. R. R. Co. v.
Brady, 32 Md. 333 (1869),
1002, 1011.
Baltimore & Ohio R. R. Co. v.
Campbell, 36 Ohio St. 647
(1881), 512.
Baltimore & O. R. R. Co. v.
Diamond Coal Co., 61 Ohio
St. 242 (1899), 1290.
Baltimore & O. R. R. Co. v.
Gray's Ferry Abattoir Co.,
27 Pa. Super. Ct. 511 (1905),
1050.
Baltimore & O. R. R. Co. v.
Hubbard, 72 Ohio St. 302
(1905), 1026.
Baltimore & O. R. R. Co. v.
Norris, 17 Ind. App. 189
(1896), 341, 438.
Baltimore & O. R. R. Co. v.
Pitcairn Coal Co., 215 U. S.
481 (1910), 665, 857.
Baltimore & O. R. R. Co. v.
Pumphrey, 59 Md. 390
(1882), 1046.
Baltimore & O. R. R. Co. v.
Rathbone, 1 W. Va. 87
(1865), 1012.
Baltimore & O. R. R. Co. v.
Shumacher, 29 Md. 168
(1868), 518, 1033.
Baltimore & O. R. R. Co. v. State,
72 Md. 36 (1890), 777.
Baltimore & O. S. W. R. R. Co. v.
Voigt, 176 U. S. 498 (1899),
777, 1015.
Baltimore & O. R. R. Co. v.
Whitehill, 104 Md. 295
(1906), 662, 831.
Baltimore & O. R. R. Co. v. Wil-
kens, 44 Md. 11 (1875), 747.
Baltimore & P. Ry. Co. v.
Mackey, 157 U. S. 72 (1895),
530.
[ lxx]
TABLE OF CASES CITED
[References are to sections]
Baltimore & P. Steamboat Co. v.
Brown, 54 Pa. St. 77 (1867),
511.
Baltimore City Pass. Ry. Co. v.
Wilkinson, 30 Md. 224 (1868),
862.
Bamberg v. So. Carolina R. Co., 9
S. C. 61 (1877), 160, 256.
Bancroft & Co. v. Merchants'
Despatch Transp. Co., 47
Iowa, 262 (1877), 180, 1017.
Bank of Havelock v. Western
Union Telegraph Co., 141
Fed. 522 (1905), 412, 605.
Bank of Kentucky v. Adams Ex-
press Co., 93 U. S. 174
(1876), 178, 776, 1011.
Bank of W. V. v. Southern Exp.
Co., 71 Miss. 741 (1894),
902.
Bankers' Mutual Casualty Co. v.
Minneapolis, St. P. & S. S.
M. Ry. Co., 117 Fed. 434
(1902), 776.
Bard v. Pennsylvania Traction
Co., 176 Pa. St. 97 (1896),
760.
Bardsly v. Boise Irr. & L. Co., 8
Idaho, 155 (1901), 434, 652,
877.
Bare v. American Forwarding
Co., 242 Ill. 298 (1909),
206.
Barker v. Central Park N. & E.
R. R. Co., 151 N. Y. 237
(1896), 439, 877.
Barker v. Chicago, P. & St. L.
Ry. Co., 243 Ill. 482 (1909),
777.
Barker v. New York C. R. R. Co.,
24 N. Y. 599 (1862), 904.
Barnard Castle Urban Dist. v.
Wilson, 2 Ch. 813 (1901),
264.
Barnes v. Long Island Ry. Co.,
100 N. Y. Supp. 593 (1906),
1008.
Barnes v. Marshall, 18 Q. B. 785
(1852), 433.
Barnes v. Western Union Tele-
graph Co., 24 Nev. 125
(1897), 1014.
Barney v. Oyster Bay & H.
Steamboat Co., 67 N. Y. 301
(1876), 472, 498.
Barre Water Co., Re, 62 Vt. 27
(1889), 92, 264.
Barrett v. Market Street Ry.
Co., 81 Cal. 296 (1889), 189,
438, 439, 877.
Barrickman v. Marion Oil Co., 45
W. Va. 634 (1898), 982.
Barrington v. Commercial D.
Co., 15 Wash. 170 (1896),
102, 232.
Barron v. Eldridge, 100 Mass. 455
(1868), 393, 726.
Barrott v. Pullman Palace Car
Co., 51 Fed. 796 (1892), 769.
Barry v. Union Ry. Co., 105 N.
Y. App. Div. 520 (1905),
623, 738, 746.
Bartlett v. Carnley, 6 Duer (N.
Y.), 194 (1856), 1263.
Bartlett v. Pittsburg, C. & St. L.
Ry. Co., 94 Ind. 281 (1883),
668, 912.
Bartlett v. Western Union Tele-
graph Co., 62 Me. 209 (1873),
133, 980, 1346.
Bartwell v. Northern Pacific Exp.
Co., 5 Dak. 463 (1889), 1004.
Basnight v. Atlantic & N. C. R.
R. Co., 111 N. C. 592 (1892),
293, 409, 726, 730.
Bass v. Chicago & N. W. Ry.
Co., 36 Wis. 450 (1874), 844,
847, 881.
[ lxxi ]
TABLE OF CASES CITED
[ References are to sections]
Bassett & Stone v. Aberdeen Coal
& Mining Co., 120 Ky. 728
(1905), 235.
Bastian v. Keystone Gas Co., 50
N. Y. Supp. 537 (1898), 417,
622, 1013.
Bates v. Chicago, M. & St. P.
Ry. Co., 60 Wis. 296 (1884),
1046.
Bates v. Old Colony R. R. Co.,
147 Mass. 255 (1888), 777,
778.
Bates v. Stanton, 1 Duer, 79
(1852), 1047.
Batson v. Donovan, 4 B. & Ald.
21 (1820), 623, 737.
Batton v. So. & No. Alabama R.
R. Co., 77 Ala. 591 (1884),
933, 941, 942, 944.
Baughman v. Louisville, E. & St.
L. Ry. Co., 94 Ky. 150
(1893), 1005, 1020.
Baxendale v. Great Western R.
Co., 5 C. B. (N. S.) 309
(1858), 1331.
Baxendale v. So. West. Ry. Co.,
35 L. J. Exch. 108 (N. S.)
(1866), 696.
Baxley v. Tallahassee & M. R. R.
Co., 128 Ala. 183 (1900),
833, 922.
Baxter v. Dominion Telegraph
Co., 37 U. C. Q. B. 470
(1875), 766, 1014.
Baxter v. Louisville, N., A. & C.
Ry. Co., 165 Ill. 78 (1897),
1023, 1026.
Beadell v. Eastern Counties Ry.
Co., 2 C. B. (N. S.) 509
(1854), 420.
Beale v. Posey, 72 Ala. 323
(1882), 365, 751.
Beall v. Beck, Fed. Cas. 1,161
(1829), 240.
Bean v. Sturtevant, 8 N. H. 146
(1835), 743.
Beard v. Illinois Central R. R.
Co., 79 Iowa, 518 (1890), 988.
Beard v. St. L., Alton & T. H.
Ry. Co., 79 Ia. 527 (1890),
512, 796.
11
Beardslee v. Richardson,
Wend. 25 (1833), 970.
Beardsley v. New York, L. E &
W. R. R. Co., 162 N. Y. 230
(1900), 836.
Beasley v. Western Union Tele-
graph Co., 39 Fed. 181
(1889), 412, 909.
Beatty Lumber Co. v. Western
Union Telegraph Co., 52 W.
Va. 410 (1903), 1014.
Beck v. Indianapolis L. & P. Co.,
36 Ind. App. 600 (1905), 113,
685.
Beck v. Kittanning Water Co.
(Pa.), 11 Atl. 300 (1887), 350.
Becker v. Haynes, 29 Fed. 441
(1887), 730.
Beckman v. Shouse, 5 Rawle, 179
(1835), 171, 184, 204, 262,
743, 1001.
Beckwirth v. Cheshire R. R. Co.,
143 Mass. 68 (1886), 341.
Baxter & Co. v. Wheeler, 49 N. H. Beckwith v. Frisbie, 32 Vt. 559
9 (1869), 181.
(1860), 236, 909, 968.
Bay City Irrigation Co., Re, 135 Bedford-Bowling Green Stone Co.
Fed. 850 (1905), 352.
Bayles v. Kansas Pac. R. R. Co.,
13 Colo. 181 (1889), 1282,
1286, 1299.
v. Oman, 115 Ky. 369 (1903),
224, 404, 817, 822, 1043.
Bedford B. G. S. Co. v. Oman, 134
Fed. 441 (1904), 403, 815, 822.
[ lxxii ]
TABLE OF CASES CITED
[References are to sections]
Beech Creek R. R. Co. v. Olanta
Coal Mining Co., 158 Fed.
36 (1907), 574.
Beers v. Boston & A. R. R. Co.,
67 Conn. 417 (1896), 875,
970.
Beeson v. Chicago, R. I. & Pac.
Ry. Co., 62 Ia. 173 (1883),
606.
Behlmer v. Louisville & N. Ry.
Co., 83 Fed. 898 (1900),
1226.
Belcher Sugar Refining Co. v. St.
Louis Grain Elevator Co.,
101 Mo. 192 (1890), 141.
Belfast & B. Ry. Co. v. Keys, 9
H. L. Cas. 556 (1861), 876.
Belger v. Dinsmore, 51 N. Y. 166
(1872), 178, 776.
Bell v. Drew, 4 E. D. Smith, 59
(1855), 876.
Benignia v. Pennsylvania R. R.
Co., 197 Pa. St. 384 (1900),
783.
Benner Livery & U. Co. v. Bus-
son, 58 Ill. App. 17 (1894),
785.
Benett v. Peninsular Co., 6 C. B.
775 (1848), 183.
Bennett v. American Express Co.,
83 Me. 236 (1891), 1046.
Bennett v. Byram & Co., 38 Miss.
17 (1859), 905, 909, 921.
Bennett v. Dutton, 10 N. H. 481
(1839), 184, 524, 682.
Bennett v. East Chester Gaslight
Co., 54 N. Y. App. Div. 74
(1900), 411, 434.
Bennett v. Filyaw, 1 Fla. 403
(1847), 172, 229, 239.
Bennett v. Mellor, 5 T. R. 273
(1793), 333, 725.
Bell v. Pidgeon, 5 Fed. 634 (1882), Bennett v. Northern Pac. Exp.
753.
Bell Telephone Co. v. Common-
wealth, 3 Atl. 825 (1886),
136, 244, 692.
Bellaire Goblet Co. v. Findlay, 5
Oh. Cir. Ct. 418 (1891), 452,
502.
Bellsdyke Coal Co. v. North
British Ry. Co., 2 Ry. & C.
Tr. Cas. 105 (1875), 1331,
1373.
Belvidere Gaslight & F. Co. v.
Jackson, 81 Ill. App. 244
(1898), 982.
Benbow v. North Carolina R. R.
Co., Phillips L. 421 (1868),
1042.
Benedict v. Arthur, 6 Up. Can.
Q. B. 204 (1849), 238.
Benedict v. Columbus Construc-
tion Co., 49 N. J. Eq. 23
(1891), 982.
Co., 12 Oreg. 49 (1885), 178,
776, 1040.
Benson v. American Illuminating
Co., 102 N. Y. Supp. 206
(1907), 418, 622, 826.
Benson v. Central Pacific R. R.
Co., 98 Cal. 45 (1893), 916.
Benson & Co., Ex parte, 18 S. C.
38 (1882), 1282, 1283, 1311,
1377.
Benson v. Gray, 154 Mass. 391
(1891), 1042.
Benson v. Oregon S. L. Ry. Co.,
99 Pac. 1072 (1909), 169, 170,
230, 236.
Berg v. The Atchison, T. & S. F.
R. R. Co., 30 Kan. 561
(1883), 513, 1017.
Bergan v. Central Vt. Ry. Co., 82
Conn. 574 (1909), 764.
Berje v. Texas & P. Ry. Co., 37
La. Ann. 468 (1885), 901.
[ lxxiii ]
TABLE OF CASES CITED
[References are to sections]
Berkshire Woolen Co. v. Proctor,
7 Cush. (Mass.) 417 (1851),
751.
Bernard v. Lalonde, 8 Leg. News,
215 (Can., 1885), 725.
Berrien Springs Water Power Co.
v. Berrien Circuit Judge, 133
Mich. 48 (1903), 95.
Berry v. Chicago, M. & St. P. Ry.
Co. (S. D.), 124 N. W. 859
(1910), 796, 872.
Berry v. Louisville & N. R. R.
Co., 109 Ky. 727 (1901), 369.
Berry v. Missouri Pac. Ry. Co.,
124 Mo. 223 (1894), 762.
Berry v. Southern Ry. Co., 122
N. C. 1002 (1898), 727.
Berry v. West Virginia & P. R. R.
Co., 44 W. Va. 538 (1898),
1037, 1038.
Bessette v. People, 193 Ill. 334
(1905), 8.
Billings Mutual Telephone Co. v.
Rocky Mt. Bell Telephone
Co., 155 Fed. 207 (1907),
539, 700.
Binghamton Bridge, The, 3 Wall.
51 (1865), 23, 53.
Bird v. Bird, 1 And. 29 (1558),
725, 745.
Bird v. Cromwell, 1 Mo. 81, 920.
Bird v. Georgia R. R. Co., 72 Ga.
655 (1884), 522.
Bird v. Railroad Co., 99 Tenn.
719 (1897), 435, 518, 1033.
Birkett v. Western Union Tele-
graph Co., 103 Mich. 361
(1894), 980, 1014.
Birmingham v. Birmingham Wa-
terworks Co. (Ala.), 42 So.
10 (1906), 264, 275.
Birmingham v. Birmingham Wa-
terworks Co., 152 Ala. 306
(1907), 380.
Betts v. Farmers' Loan Co., 21 Birmingham Ry. & E. Co. v.
Wis. 80 (1866), 256.
Bevard v. Lincoln Traction Co.,
74 Neb. 802 (1905), 941, 944.
Bibb Broom Corn Co. v. Atchi-
son, T. & S. F. Ry. Co., 94
Minn. 269 (1905), 656, 901,
918, 921, 984.
Bibber-White Co. v. White River
Valley Electric Co., 175 Fed.
470 (1910), 1281, 1286.
Bienville Water Supply Co. v.
Mobile, 112 Ala. 260 (1895),
316, 458.
Bierhaus v. Western Union Tel.
Co., 8 Ind. App. 246 (1893),
851.
Bigbee & W. R. P. Co. v. Mobile
& O. R. R. Co., 60 Fed. 545
(1893), 682, 1315.
Bigelow v. West End St. Ry. Co.,
161 Mass. 393 (1894), 1044.
Baird, 130 Ala. 334 (1900),
935, 938, 941.
Birmingham Ry. L. & P. Co. v.
Lee, 153 Ala. 386 (1907), 341.
Birmingham Ry. L. & P. Co. v.
McDonough, 153 Ala. 122
(1907), 878.
Birmingham W. W. Co. v. Truss,
135 Ala. 530 (1903), 1244.
Birney v. New York & W. P.
Telegraph Co., 18 Md. 341
(1862), 874, 980.
Black v. Chicago, B. & O. R. R.
Co., 30 Neb. 197 (1890), 920,
949.
Black Lick Mfg. Co. v. Saltsburg
Gas Co., 139 Pa. St. 448
(1891), 852.
Blackstock v. New York & E. R.
R. Co., 20 N. Y. 48 (1859),
668, 912.
[ lxxiv ]
TABLE OF CASES CITED
[References are to sections]
Blackwell M. & E. Co. v. Western
Union Telegraph Co., 17
Okla. 376 (1906), 980.
Blair v. Cuming County, 111 U. S.
363 (1884), 65.
Blair v. Erie Ry. Co., 66 N. Y.
313 (1876), 778.
Blair v. Sioux City & P. Ry. Co.,
109 Ia. 369 (1899), 535, 1377,
1378.
Blanchard v. Abraham, 115 La.
989 (1906), 237.
Blanchard v. Isaacs, 3 Barb. (N.
Y.) 388 (1848), 741, 876.
Bland v. Adams Express Co., 1
Duv. 232 (1864), 666, 911,
986.
Bland et al. v. Womack, 2 Mur-
phy, 373 (1818), 875.
Blank v. Illinois Cent. R. R. Co.,
182 Ill. 332 (1899), 477, 778,
779, 1015.
Blissett v. Hart, Willes, 508
(1744), 52.
Bliven & M. v. Hudson River R.
R. Co., 36 N. Y. 403 (1867),
1046.
Block v. Sherry, 43 N. Y. Misc.
342 (1904), 263, 974.
Blodgett v. Abbott, 72 Wis. 516
(1888), 902.
Blondell v. Consolidated Gas Co.,
89 Md. 732 (1899), 826.
Blood v. McCarty, 112 Cal. 561
(1896), 75.
Bloomfield & R. Natural Gas
Light Co. v. Richardson, 63
Barb. 437 (1872), 59, 94.
Blomsness v. Puget Sound El.
Ry. Co., 47 Wash. 620
(1907), 939.
Blondell v. Consolidated Gas Co.,
89 Md. 732 (1899), 418,
622.
Blossom v. Dodd, 43 N. Y. 264
(1870), 1004.
Blossom v. Griffin, 13 N. Y. 569
(1856), 724.
Blower v. Gt. Western Ry. Co.,
L. R. 7 C. P. 655 (1872), 256,
989.
Blum v. Southern P. P. C. Co., 1
Flip. 500 (1876), 153, 975.
Blumantle v. Fitchburg R. R.
Co., 127 Mass. 322 (1879),
875, 876.
Blumenthal v. Brainerd et al., 38
Vt. 402 (1866), 1037.
Blumenthal v. Southern Ry. Co.,
84 Fed. 920 (1898), 413,
600.
Blunk v. Dennison Water Co., 71
Ohio, 250 (1905), 350.
Blythe v. Denver & R. G. Ry.
Co., 15 Colo. 333 (1891), 655,
984.
Boal v. Citizens' Nat. Gas Co., 23
Pa. Super. Ct. 339 (1903),
654.
Board of R. R. Commrs. v. Mis-
souri Pac. Ry. Co., 71 Kan.
193 (1905), 806.
Board of Trade v. Christie Grain
& Stock Co., 198 U. S. 236
(1905), 137, 138, 603, 607.
Board of Trustees of Elizabeth-
town v. Chesapeake, etc., R.
R. Co., 94 Ky. 377 (1893),
212.
Boering v. Cheaspeake Beach Ry.
Co., 193 U. S. 442 (1903),
786, 1004, 1018.
Boerth v. Detroit City Gas Co.,
152 Mich. 654 (1907), 1321,
1335, 1354.
Boggess v. Chesapeake & O. Ry.
Co., 37 W. Va. 297 (1892),
738, 763.
[ lxxv ]
TABLE OF CASES CITED
[References are to sections]
Boggs v. Martin, 13 B. Mon.
(Ky.) 239 (1852), 1269.
Boise City Irrigation Co. v. Clark,
131 Fed. 415 (1904), 93, 1085.
Boise City, City of, v. Artesian
Hot & Cold Water Co., 4
Idaho, 392 (1895), 1304.
Bolles v. Kansas City So. Ry.
Co., 134 Mo. App. 696 (1909),
440.
Bomar v. Maxwell, 9 Humph. 620
(1849), 185.
Bonce v. Dubuque St. Ry. Co.,
53 Iowa, 278 (1880), 107
186.
Boner & C. v. Merchants' So. Co.,
1 Jones L. 211 (1853), 901,
915.
Bonner v. DeMendoza (Texas
Civ. App.), 16 S. W. 976
(1891), 769.
Bonner v. Welborn, 7 Ga. 296
(1849), 240, 968.
Bonner v. Western Union Tele-
graph Co., 71 S. C. 303
(1904), 398, 874, 1041.
Boscowitz v. Adams Express Co.,
93 Ill. 523 (1879), 178, 776.
Bosley v. Baltimore & C. R. R.
Co., 54 W. Va. 563 (1904),
902.
Boster v. Chesapeake & O. Ry.
Co., 36 W. Va. 318 (1892)
865.
Boston v. Richardson, 13 Allen,
160 (1866), 71.
Boston & A. R. R. Co. v. Brown,
177 Mass. 65 (1900), 483.
Boston & A. R. R. Co. v. Shanly,
107 Mass. 568 (1871), 621.
Boston & M. R. R. Co. v. Sulli-
van, 177 Mass. 230 (1900),
483.
Boston & Roxbury Mill Corp. v.
Newman, 12 Pick. 467 (1832),
65.
Boston Ins. Co. v. Chicago, R. I.
& P. Ry. Co., 118 Ia. 423
(1902), 776.
Boswell v. Hudson River R. R.
Co., 5 Bosw. 699 (1860),
1007.
Boom Co. v. Patterson, 98 U. S. Bosworth v. Union R. R. Co., 26
403 (1878), 55, 73.
Boonton v. United Water Supply
Co., 69 N. J. Eq. 23 (1904),
216.
Boonton v. United Water Supply
Co., 70 N. J. Eq. 692 (1906),
264, 839.
Boorman v. American Express
Co., 21 Wis. 152 (1866),
1004, 1007.
Booth v. Missouri, K. & T. Ry.
Co. (Tex. Civ. App.), 37 S.
W. 168 (1896), 522.
Bordeaux v. Erie Ry. Co., 8 Hun,
579 (1876), 873.
Borsum v. Hardie, 23 Sup. Ct.
479 (1898), 483.
R. I. 309 (1904), 944.
Bothwell v. Consumers' Co., 13
Idaho, 568 (1907), 279, 406,
443, 824.
Bouker v. Long Island Ry. Co.,
89 Hun, 202 (1895), 392,
792.
Bowden v. Atlantic C. L. Ry. Co.,
148 Ala. 29 (1906), 1037.
Bowen v. Illinois Central Ry. Co.,
136 Fed. 306 (1905), 939.
Bowie v. Balt. & Ohio R. R. Co.,
1 MacArthur, 609 (1874),
400, 772.
Bowie v. Birmingham Ry. & El.
Co., 125 Ala. 397 (1899),
566, 848.
[ lxxvi ]
TABLE OF CASES CITED
[References are to sections]
Bowman v. Chicago & N. W. Ry.
Co., 125 U. S. 465 (1881),
1418.
Bowman v. Hilton, 11 Ohio, 303
(1842), 522.
Bowring v. Wabash Ry. Co., 90
Mo. App. 324 (1901) 1005.
Boyce v. Anderson, 2 Pet. 150
(1829), 341, 636, 967.
Boylan v. Hot Springs R. Co., 132
U. S. 146 (1889), 431.
Boyes v. Moss & Co., 18 Vict.
L. R. 225 (1892), 148.
Boyle v. Great Northern Ry. Co.,
13 Wash. 383 (1896), 176.
Boys v. Pink, 8 C. & P. 361
(1838), 732.
Bradford v. Boston & M. R. R.
Co., 160 Mass. 392 (1894),
367, 372.
Bradford v. Citizens' Telephone
Co. (Mich.), 126 N. W. 444
(1910), 1300.
Bradford v. St. Louis, I. M. & So.
Ry. Co. (Ark.), 124 S. W.
516 (1910), 566, 848, 881.
Bradley v. Fallbrook Irrigation
Co., 68 Fed. 948 (1895),
242.
Bradley v. Waterhouse, 3 C. & P.
318 (1828), 623, 737.
Bradner v. Mullen, 27 N. Y. Misc.
479 (1899), 770.
Bradshaw v. South Boston Ry.
Co., 135 Mass. 407 (1883),
889, 890, 892.
Brady v. Springfield Traction Co.
(Mo. App.), 124 S. W. 1070
(1910), 933.
Braithwaite v. Power, 1 N. Dak.
455 (1891), 1047, 1264, 1266.
Branch v. Wilmington & W. R. R.
Co., 77 N. C. 347 (1877),
663, 799, 914.
Branch v. Wilmington & W. R. R.
Co., 88 N. C. 570 (1883),
835.
Brandt Milling Co. Case, 4 Can.
Ry. Cas. 259 (1904), 1315.
Bras v. McConnell, 114 Ia. 401
(1901), 535.
Brashears v. Western Union Tele-
graph Co., 45 Mo. App. 433
(1891), 563, 1041.
Brass v. North Dakota, 153 U. S.
391 (1894), 141.
Brass v. Rathbone, 153 N. Y. 435
(1897), 377, 452.
Brass v. Rathbone, 8 App. Div.
78 (1892), 1244.
Brass ex rel. v. Stoesser, 153 U. S.
391 (1894), 232.
Braun v. Northern Pac. Ry. Co.,
79 Minn. 404 (1900), 341,
636, 866.
Braymer v. Seattle & So. Ry. Co.,
35 Wash. 346 (1904), 890.
Breen v. St. Louis Tr. Co., 102
Mo. App. 479 (1903), 441.
Breese v. United States Tel. Co.,
48 N. Y. 132 (1871), 766.
Brehme v. Adams Express Co., 25
Md. 328 (1866), 1003.
Bremner v. Williams, 1 C. & P.
(Eng.) 414 (1824), 977.
Bresewitz v. St. Louis, I. M. &
So. Ry. Co., 75 Ark. 242
(1905), 844.
Bretherton v. Wood, 3 Brod. &
Bing. 54 (1821), 334.
Brevig v. Chicago, St. P., M. & O.
Ry. Co., 64 Minn. 168 (1896),
745.
Brewer v. Caswell, 132 Ga. 563,
(1909), 725.
Brewer v. Central of Ga. Ry. Co.,
84 Fed. 258 (1897), 1342,
1384.
[ lxxvii ]
TABLE OF CASES CITED
[References are to sections]
Brewer v. New York, L. E. & W.
R. R. Co., 124 N. Y. 59
(1891), 778.
Brewing Co. v. Southern Exp.
Co., 109 Va. 22 (1908), 600.
Brewster v. Miller's Sons Co., 101
Ky. 368 (1897), 9, 105.
Bricker v. Philadelphia & Read-
ing R. R. Co., 132 Pa. St. 1
(1890), 760, 761.
Bridal Veil Lumbering Co. v.
Johnson, 30 Oreg. 205 (1896),
222, 223, 224.
Briddon v. Great Northern Ry.
Co., 28 L. J. Ex. 51 (1858),
665, 839, 901, 914.
Bridgeport, City of, v. Housa-
tonic R. R. Co., 15 Conn. 475
(1843), 217.
Bridgeton v. Bridgeton Traction
Co., 62 N. J. L. 592 (1898),
211.
Brien v. Bennett, 8 Car. & P.
(Eng.) 724 (1839), 410, 736.
Briggs v. Boston & Lowell R. R.
Co., 6 Allen, 246 (1863), 522.
Briggs v. Durham Traction Co.,
147 N. C. 389 (1908), 985.
Bright v. Western Union Tele-
graph Co., 132 N. C. 317
(1903), 871, 874.
Brind v. Dale, 8 C. & P. 207
(1837), 228, 767.
Bristol v. Bristol & Warren Wa-
terworks, 28 R. I. 274 (1901),
1103.
Brittan v. Barnaby, 21 How.
(U.S.) 170 (1859), 1266, 1267.
Britton v. Atlanta & C. A. L. Ry.
Co., 88 N. C. 536 (1883),
566, 848, 881, 942.
Britton v. Green Bay & Ft. H.
Waterworks Co., 81 Wis. 48
(1892), 350.
Broadway, etc., Ferry Co. v.
Hankey, 31 Md. 346 (1869),
52.
Brockway v. American Express
Co., 168 Mass. 257 (1897),
1010.
Brooke v. New York, L. E. & W.
Ry. Co., 108 Pa. St. 529
(1885), 748.
Brooke v. Pickwick, 4 Bing. 218
(1827), 185.
Brooklyn & R. B. R. R. Co. v.
Long Island R. R. Co., 72
App. Div. 496 (1902), 305.
Brooklyn Union Gas Co. v. City
of New York, 115 App. Div.
69 (1906), 1123, 1430.
Brooks Mfg. Co. v. Southern Ry.
Co. (N. C.), 68 S. E. 243
(1910), 821, 1043.
Brooks v. Sullivan, 129 N. C. 190
(1901), 440.
Brouncker v. Scott, 4 Taunt, 1
(1811), 1050.
Brown v. Adams Express Co., 15
W. Va. 812 (1879), 1002.
Brown v. Atlanta & C. A. L. Ry.
Co., 19 S. C. 39 (1882), 399,
403.
Brown v. Central of Ga. Ry. Co.,
128 Ga. 635 (1907), 888, 890.
Brown v. Chicago, R. I. & P. Ry.
Co., 139 Fed. 972 (1905), 941.
Brown v. Chicago G. W. Ry. Co.,
137 Mo. 529 (1897), 225.
Brown v. Clayton, 12 Ga. 564
(1853), 165, 229.
Brown v. Clegg, 63 Pa. St. 51
(1869), 173, 774.
Brown v. Cunard S. S. Co., 147
Mass. 58 (1888), 1020.
Brown v. Farmers' H. L. Canal &
Reservoir Co., 26 Colo. 66
(1899), 652,
LL
[ lxxviii]
TABLE OF CASES CITED
[References are to sections]
Brown v. Georgia C. & N. Ry.
Co., 119 Ga. 88 (1903), 873.
Brown v. Gerald, 100 Me. 351
(1905), 50, 56, 60, 95, 114,
221, 271, 654.
Brown v. Illinois Central R. R.
Co., 100 Ky. 525 (1897),
1024.
Brown v. Interborough R. T. Co.,
56 N. Y. Misc. 637, 107 N. Y.
Supp. 629 (1907), 448.
Brown v. Kansas City, F. S. & G.
R. R. Co., 38 Kan. 634
(1888), 862.
Brown v. Memphis & C. Ry. Co.,
5 Fed. 499 (1880), 559, 565,
606, 610, 844, 881.
Brown v. New York Central & H.
R. R. R. Co., 75 Hun, 355
(1894), 107.
Brown v. New York C. & H. R.
R. R. Co., 151 N. Y. 674
(1897), 483, 514.
Brown v. Postal Tel. Co., 111 N.
C. 187 (1892), 766, 1014.
Brown v. Rapid Ry. Co., 134
Mich. 591 (1903), 890.
Brown v. Scarboro, 97 Ala. 316
(1893), 395.
Brown v. Weir, 95 N. Y. App. 78
(1904), 755, 772.
Brown v. Western Union Tele-
graph Co., 6 Utah, 219
(1889), 874.
Brown & B. Coal Co. v. Grand
Trunk Ry. Co., 159 Mich.
565 (1910), 435, 877.
Brown & Haywood Co. v. Penn-
sylvania Co., 63 Minn. 546
(1896), 521, 907.
Brown Hotel Co. v. Burckhardt,
13 Col. App. 59 (1899), 1032.
Browne v. Brandt, 1 K. B. 696
(1902), 269, 660, 791, 846.
Brownell v. Columbus & C. M. R.
R. R. Co., 5 I. C. C. (O. S.)
638 (1893), 1237.
Brownell v. Old Colony R. R. Co.,
164 Mass. 29 (1895), 211,
300.
Brumm's Appeal (Pa.), 12 Atl.
855 (1888), 452, 456.
Brundred v. Rice, 49 Ohio St. 640
(1892), 681, 1290, 1312, 1317,
1358.
Brunswick v. United States Ex-
press Co., 46 Iowa, 77 (1877),
1049.
Brunswick & T. Water District v.
Maine Water Co., 99 Me.
371 (1904), 92, 1070, 1076,
1085, 1099, 1101, 1104, 1132,
1136, 1138, 1139, 1151, 1212,
1213.
Brunswick & W. Ry. Co. v.
Moore, 101 Ga. 684 (1897),
946.
Brunswick & W. R. R. Co. v.
Ponder, 117 Ga. 63 (1903),
640.
Brunswick & W. Ry. Co. v. Rot-
child & Co., 119 Ga. 604
(1904), 1048.
Brunswick Gas Light Co. v.
United Gas, etc., Co., 85 Me.
532 (1893), 111, 215.
Brush Elec. Illuminating Co. v.
Consolidated T. & E. Sub-
way Co., 15 N. Y. Supp. 81
(1891), 78, 1402.
Bryan v. Missouri Pac. Ry. Co.,
32 Mo. App. 228 (1888), 786,
1018.
Bryan v. Western Union Tele-
graph Co., 133 N. C. 603
(1903), 871.
Bryant v. Rich, 106 Mass. 180
(1870), 939.
[ lxxix]
TABLE OF CASES CITED
[References are to sections]
Bryant v. Western Union Tele-
graph Co., 17 Fed. 825
(1883), 603, 607.
Brymer v. Butler Water Co., 179
Pa. St. 231 (1897), 92, 1062,
1081, 1082, 1095, 1131, 1133,
1171, 1401, 1408.
Buck v. Manhattan Ry. Co., 15
Daly, 48 (1888), 945.
Buck v. People's St. Ry. & E. L.
& P. Co., 108 Mo. 179 (1892),
745.
Buck v. People's St. Ry., E. L.
& P. Co., 46 Mo. App. 555
(1891), 785.
Buckland v. Adams Express Co.,
97 Mass. 124 (1867), 178,
776, 1002.
Buckman v. Levi, 3 Camp. 414
(1813), 400, 741.
Buckmaster v. Gt. Eastern Ry.
Co., 23 L. T. (N. S.) 471
(1870), 872.
Budd v. New York, 143 U. S. 517
(1891), 97, 232, 1401, 1407.
Buffalo v. Buffalo Gas Co., 81
App. Div. 505 (1903), 825,
1251.
Buffalo v. Delaware, L. & W.
Ry., 39 N. Y. Supp. 4 (1895),
102.
Buffalo & New York R. R. v.
Brainard, 9 N. Y. 100 (1853),
217.
Buffalo Bayou Ship Channel Co.
v. Milby & Dow, 63 Tex. 492
(1885), 73, 123, 451, 455, 495.
Buffalo P. & W. R. R. Co. v.
O'Hara, 3 Pennyp. (Pa.) 199
(1882), 785.
Buffalo County Telephone Co. v.
Turner, 82 Neb. 841, 693
(1908), 431, 444, 459, 846,
902, 1250.
Bulkley v. Naumkeag S. C. Co.,
24 How. (U. S.) 386 (1860),
732.
Bull v. New York City Ry. Co.,
192 N. Y. 361 (1908), 347.
Bullard v. Northern Pacific Ry.,
107 Mich. 695, 277, 871, 1039,
1040.
Bullard v. Northern Pacific Ry.
Co., 10 Mont. 168 (1890),
1294.
Bullock v. Adair, 63 Ill. App. 30
(1895), 240, 263.
Bullock v. Houston & T. C. Ry.
(Tex. Civ. App.), 55 S. W.
184 (1900), 371.
Bundred v. Rice, 49 Ohio St.
640 (1892), 1317.
Burgess v. Gun, 3 Har. & J. (Md.)
225 (1811), 1263.
Burgin v. Richmond & D. Ry.
Co., 115 N. C. 673 (1894),
1044.
Burke v. City of Water Valley, 87
Miss. 732 (1906), 377, 456.
Burke v. Missouri Pacific Ry. Co.,
51 Mo. App. 491 (1892), 864.
Burke v. Platt, 172 Fed. 777
(1909), 255.
Burkett v. New York Cent. & H.
R. R. R. Co., 24 Misc.
(N. Y.) 76 (1898), 875.
Burlington, Township of, v. Beas-
ley, 94 U. S. 310 (1876), 65.
Burlington, C. R. & N. Ry. Co. v.
Dey, 82 Ia. 312 (1891), 529,
1405.
Burlington, C. R. & N. Ry. Co.
v. North Western Fuel Co.,
31 Fed. 652 (1887), 1286,
1319.
Burlington County Ferry Co. v.
Davis, 48 Ia. 133, 30 Am.
Rep. 390 (1878), 52.
[ lxxx ]
TABLE OF CASES CITED
[References are to sections]
Burlington & M. R. R. R. Co. v.
Chicago Lumber Co., 15 Neb.
390 (1884), 1050.
Burlington & M. R. R. R. Co. v.
Rose, 11 Neb. 177 (1881),
431, 878.
Burlington v. Unterkircher, 99
Iowa, 401 (1896), 107.
Burnett v. Western Union Tele-
graph Co., 39 Mo. App. 599
(1890), 599.
Burnham v. Wabash Ry. Co., 91
Mich. 523 (1892), 1044.
Burns, Matter of, 155 N. Y. 23
(1898), 55, 72.
Burns v. St. Paul City Ry. Co.,
101 Minn. 363 (1907), 503.
Burr v. Adams Express Co., 71
N. J. L. 263 (1904), 1040.
Burrowes v. Chicago, B. & Q. R.
R. Co., 85 Neb. 497 (1909),
399.
Burrowes v. Chicago, B. & Q. Ry.
Co. (Neb.), 126 N. W. 1084
(1910), 390.
Buston v. Pennsylvania Ry. Co.,
119 Fed. 808 (1903), 518,
1033.
Butcher v. Commonwealth, 103
Pa. St. 528 (1883), 140.
Butcher v. London & S. W. Ry.
Co., 16 C. B. 13 (1855), 769.
Butchers' & D. S. Y. Co. v. Louis-
ville & N. R. R. Co., 67 Fed.
35 (1895), 491, 818.
Butler v. Basing, 2 Car. & P. 613
(1827), 262, 743.
Butler v. East Tennessee & V. R.
R. Co., 8 Lea, 32 (1881),
1036.
Butler v. Glens Falls, S. H. & F.
E. S. R. R. Co., 121 N. Y.
112 (1890), 736.
Butler v. St. Paul & D. R. R. Co.,
59 Minn. 135 (1894), 1044.
Butler v. Tifton Ry. Co., 121 Ga.
817 (1904), 223, 224, 822.
Butner v. Western Union Tele-
graph Co., 2 Okla. 234
(1894), 348.
Burrows v. Trieber, 21 Md. 320 Butte, A. & P. Ry. Co. v. Mon-
(1863), 770.
Burten v. Wilkinson, 18 Vt. 86
(1846), 1046.
Burton v. West Jersey Ferry Co.,
114 U. S. 474 (1885), 803.
Bush v. Artesian Hot & Cold Wa-
ter Co., 4 Idaho, 618 (1895),
350.
Bussey & Co. v. Mississippi Val-
ley Transp. Co., 24 La. Ann.
165 (1872), 150, 173, 774.
Bussey v. Gilmore, 3 Me. 191
(1824), 241.
Bussey v. Memphis & L. R. R.
Co., 4 McCrary, 405 (1882),
834.
Buston v. Pennsylvania Ry. Co.,
116 Fed. 235 (1902), 413.
tana Union Ry. Co., 16
Mont. 504 (1895), 223, 224
225.
C
Cain v. Western Union Telegraph
Co., 18 Cinn. Wk. Bul. 267
(1887), 603, 607.
Cairns v. Robins, 8 M. & W. 258
(1841), 726.
Calderon v. Atlas S. S. Co., 170
U. S. 272 (1898), 1022.
Calderwood v. North Birming-
ham St. Ry. Co., 96 Ala. 318
(1892), 1044.
Caldwell v. Richmond & D. R.
Co., 89 Ga. 550 (1892), 188,
212, 214, 1044.
6
[ lxxxi ]
TABLE OF CASES CITED
[References are to sections]
Caldwell v. Southern Express Co.,
1 Flipp, 85 (1866), 920.
Calender v. Vanderhoof Co., 99
Minn. 295 (1906), 414, 796,
991.
California v. Central Pacific Ry.,
127 U. S. 1 (1887), 51.
California Powder Works v. A. &
P. R. R. Co., 113 Cal. 329
(1896), 254.
Callen v. Columbus Edison Elec-
tric Co., 66 Oh. St. 166
(1902), 56.
Callery v. Water Works Co., 35
La. Ann. 798 (1883), 264,
496.
Calor O. & G. Co. v. Franzell, 128
Ky. 715 (1908), 691.
Calye's Case, 8 Coke, 202 (1584),
363.
Cambridge R. R. Co. v. Charles
R. St. Ry. Co., 139 Mass.
454, 1 N. E. 925 (1888), 699.
Camden & A. R. R. Co. v. Bausch
(Pa.), 7 Atl. 731 (1887), 786,
1018.
Camden & A. R. R. Co. v. Belk-
nap, 21 Wend. (N. Y.) 354
(1839), 724.
Camp v. Western Union Tele-
graph Co., 1 Met. (Ky.) 164
(1858), 766, 1014.
Campbell v. Duluth & Northeast-
ern R. R. Co., 107 Minn. 358
(1909), 223, 763.
Campbell v. East London Water-
works, 26 L. T. (N. S.) 475
(1872), 838.
Campbell
V. Morse, Harper
(N. C.), 468 (1824), 916, 963.
Campbell v. Perkins, 4 Selden.
(N. Y.), 430 (1853), 753.
Campbell v. Pullman P. C. Co.,
42 Fed. 484 (1890), 940.
Campbell v. The Bark Sunlight, 2
Hughes, 9 (1877), 732.
Campbell v. Western Union Tele-
graph Co., 74 S. C. 300
(1906), 871.
Campbellsville Telephone Co. v.
Lebaron L. & L. Telephone
Co., 118 Ky. 277 (1904), 780.
Campion v. Canadian Pacific Ry.
Co., 43 Fed. 775 (1890), 726,
906.
Canada, Attorney General of, v.
City of Toronto, 23 Can.
Sup. 514 (1892), 432.
Canada So. R. R. Co. v. Interna-
tional Bridge Co., 8 Fed. 190
(1881), 126.
Canada So. R. R. Co. v. Interna-
tional Bridge Co., L. R. 8
App. Cas. 723 (1883), 1130,
1140, 1214, 1218.
Canterbury Meat Co. v. Shaw &
Co., 7 L. R. (N. Z.) 708
(1889), 143, 972.
Cantling v. Hannibal & St. Joe
R. R. Co., 54 Mo. 385 (1873),
862.
Cantwell v. Pacific Express Co.,
58 Ark. 487 (1894), 872, 922.
Cantu v. Bennett, 39 Tex. 303
(1873), 610.
Capehart v. Seaboard & R. R. R.
Co., 81 N. C. 438 (1879),
1024, 1026.
Capital City Gas Co. v. Central
Vt. Ry. Co., 11 Int. Comm.
Comm. Rep. 103 (1906),
1334.
Capital City Light & Fuel Co. v.
Tallahasse, 186 U. S. 401
(1902), 113.
Capital City Water Co. v. State,
105 Ala. 406 (1894), 651,
797.
[ lxxxii ]
TABLE OF CASES CITED
[References are to sections]
Capital Gas Light Co. v. Des
Moines, 72 Fed. 829 (1896),
1085, 1086, 1087, 1090.
Capital Gas & Elec. L. Co. v.
Gaines, 20 Ky. L. R. 1464
(1899), 825.
Cappel v. Weir, 45 Misc. (N. Y.)
419 (1904), 1040.
Cargo ex "Argos," L. R. 5 P. C.
134 (1873), 1265.
Carland v. Western Union Tele-
graph Co., 118 Mich. 369
(1898), 412, 862.
Carleton v. Central of Ga. Ry.
Co., 155 Ala. 326 (1908), 881.
Carlisle v. Carlisle G. & Water Co.
(Pa.), 4 Atl. 179 (1886), 430,
1306.
Carlyle v. Carlyle Water L. & P.
Co., 52 Ill. App. 577 (1893),
92.
Carpenter v. Baltimore & O. R.
Co. (Md.), 64 Atl. 252 (1906),
160.
Carr v. Milwaukee L., H. & P.
Co., 132 Wis. 662 (1907),
410.
Carrey v. Spencer, 36 N. Y. Supp.
886 (1895), 848, 1414.
Carr's Case, 1 Roll. Abr. 3, pl. 4
(1583), 364.
Carroll v. Missouri Pac. Ry. Co.,
88 Mo. 239 (1885), 780.
Carroll v. Staten I. R. R. Co., 58
N. Y. 126 (1874), 336, 599,
785.
Carswell v. Macon, D. & S. R. R.
Co., 118 Ga. 826 (1903), 784.
Carter v. Commonwealth, 2 Va.
Cas. 354 (1823), 182, 292.
Carter v. Southern Ry. Co., 3 Ga.
App. 34 (1907), 1010.
Carter v. Telegraph Co., 141 N. C.
374 (1906), 398, 874.
Case v. Midland Ry. Co., 27
Beav. 247 (1859), 122.
Cash v. Wabash R. R. Co., 81
Mo. App. 109 (1899), 989.
Cassilay, etc., v. Young & Co., 39
Am. Dec. 505 (1843), 905.
Castle v. Baltimore & Ohio R. R.
Co., 8 Int. Comm. Rep. 333
(1899), 1357.
Cathey v. St. Louis & S. F. Ry.
Co., 130 S. W. 130 (1910),
866, 878.
Caton v. Romney, 13 Wend. 387
(1835), 173, 774.
Cau v. Texas & P. R. R. Co., 194
U. S. 427 (1904), 1006.
Cavallaro v. Texas & Pac. Ry.
Co., 110 Cal. 348 (1895), 513,
1038.
Cayle's Case, 8 Coke, 63 (1574),
964.
Cayo v. Pool, 108 Ky. 124 (1900),
230.
Caze v. Baltimore Ins. Co., 7 Cr.
(U. S.) 358 (1813), 1265.
Cedar Lumber Products Case, 3
Can. Ry. Cas. 312 (1903),
1365.
Cedar Rapids & I. C. Ry. & L. Co.
v. Chicago, R. I. & P. R. R.
Co. (Iowa), 124 N. W. 323
(1910), 815, 820.
Cedar Rapids Water Co. v. Cedar
Rapids, 118 Ia. 234 (1902),
1099, 1102, 1124, 1132, 1134,
1168, 1410, 1430.
Central Bridge Corp. v. Lowell,
15 Gray, 106 (1860), 53.
Central Bridge Corp. v. Sleeper, 8
Cush. 324 (1851), 241.
Central D. & P. Telegraph Co.
v. Commonwealth, 114 Pa.
St. 592 (1886), 273, 405,
1345.
[ lxxxiii]
TABLE OF CASES CITED
[References are to sections]
Central Elevator Co. v. People,
174 Ill. 203 (1898), 708.
Central Iron Co. v. Pennsylvania
R. R. Co., 17 Pa. Co. Ct. 651
(1895), 1378.
Central of Ga. Ry. Co. v. Augusta
Brokerage Co., 122 Ga. 646
(1905), 532, 840, 1283.
Central of Ga. Ry. Co. v. Brown
(Ala.), 51 So. 565 (1910), 844,
882.
Central of Ga. Ry. Co. v. Butler
Marble & G. Co. (Ga.), 68
S. E. 775 (1910), 394, 868.
Central of Ga. Ry. Co. v. Cook &
L., 4 Ga. App. 698 (1908),
414, 528, 530.
Central of Ga. Ry. Co. v. Hall,
124 Ga. 322 (1905), 256, 659,
1011.
Central of Ga. Ry. Co. v. Lipp-
man, 110 Ga. 665 (1900), 763,
1002.
Central of Ga. Ry. Co. v. Madden
(Ga.), 69 S. E. 165 (1910),
933, 951.
Central of Ga. Ry. Co. v. McLen-
don, 157 Fed. 961 (1907),
1063, 1124, 1129, 1201, 1220,
1430, 1431.
Central of Ga. Ry. Co. v. Motes,
117 Ga. 923 (1903), 879, 884.
Central of Ga. Ry. Co. v. Mur-
phey, 196 U. S. 191 (1905),
1418.
Central of Ga. Ry. Co. v. Railroad
Commission, 161 Fed. 925
(1908), 1132, 1133.
Central New York Tel. & Tel.
Co. v. Averill, 55 N. Y. Misc.
346 (1907), 493, 497.
Central R. R. & B. Co. v. Ander-
son, 58 Ga. 393 (1877), 758,
775.
Central R. R. & B. Co. v. Dwight
Mfg. Co., 75 Ga. 609 (1885),
1004.
Central R. R. & B. Co. v. Lamp-
ley, 76 Ala. 357 (1884), 776.
Central R. R. & B. Co. v. Perry,
58 Ga. 461 (1877), 735.
Central R. R. & Banking Co. v.
Strickland, 90 Ga. 562 (1892),
865, 873.
Central R. R. Co. v. Georgia F. &
V. Exch., 91 Ga. 389 (1893),
668, 670, 912.
Central R. R. Co. v. Hasselkus,
91 Ga. 382 (1893), 511.
Central R. R. Co. v. Smith, 76
Ga. 209 (1886), 812.
Central Ry. Co. v. Peacock, 69
Md. 257 (1888), 939.
Central Ry. Co. v. Smith, 74 Md.
212 (1891), 736.
Central S. & G. Exch. v. Board of
Trade, 196 Ill. 396 (1902),
603, 607.
Central S. Y. Co. v. Louisville &
N. R. R. Co., 192 U. S. 568
(1904), 491, 514, 534, 698,
813, 818.
Central Texas & N. W. Ry. Co. v.
Holloway (Tex. Civ. App.),
54 S. W. 419 (1899), 635.
Central Trust Co. v. Pittsburg S.
& N. R. R. Co., 52 N. Y.
Misc. 195 (1906), 709.
Central Trust Co. v. Wabash St.
L. & P. Ry. Co., 31 Fed. 247
(1887), 1033.
Central Union Telephone Co. v.
Fehring, 146 Ind. 189 (1896),
266.
Central Union Telephone Co. v.
State ex rel. Falley, 118
Ind. 194 (1888), 136, 266,
375.
[ lxxxiv]
TABLE OF CASES CITED
[References are to sections]
Central Union Telephone Co. v.
State, 123 Ind. 113 (1889),
266, 375.
Central Union Telephone Co. v.
Swoveland, 14 Ind. App. 341
(1895), 765, 865, 1013.
Cereghino v. Oregon S. L. Ry. Co.,
26 Utah, 467 (1903), 226.
Chagrin Falls & C. Plank Road
Co. v. Cane, 2 Ohio St. 419
(1853), 75, 241.
Chamberlain v. Milwaukee &
Miss. R. R. Co., 11 Wis. 238
(1860), 777.
Chamberlain v. Pierson, 87 Fed.
420 (1898), 778.
Chapman v. Great Western Ry.
Co., 5 Q. B. D. 278 (1880),
1037.
Chapman v. Western Union Tele-
graph Co., 90 Ky. 265 (1890),
348.
Charge to Grand Jury, 66 Fed.
146 (1895), 1301.
Charles Nelson, The, 149 Fed.
846 (1906), 597, 655.
Charles Simon's Sons Co. V.
Maryland T. & T. Co., 99
Md. 141 (1904), 1410.
Charleston Natural Gas Co. v.
Lowe, 52 W. Va. 662 (1901),
94, 112, 243, 273, 405.
Chase, The M. M., 37 Fed. 708
(1889), 1046.
Chattanooga R. & C. R. Co. v.
Liddell, 85 Ga. 482 (1890),
207.
Chattanooga Terminal Ry. Co. v.
Felton, 69 Fed. 273 (1895),
226.
Chattock v. Bellamy, 64 L. J.
B. 250 (1895), 238, 972.
Cheney v. Boston & M. R. R. Co.,
Q.
11 Met. 121 (1846), 446, 1255.
Cherry v. Chicago & A. R. Co.,
191 Mo. 489 (1905), 885.
Chesapeake & D. Canal Co. v.
Gring, 159 Fed. 662, (1908),
495.
Chesapeake & O. Ry. Co. v. Beas-
ley, 104 Va. 788 (1906), 1008.
Chesapeake & O. Ry. Co. v. Ken-
tucky, 179 U. S. 388 (1900).
566, 848.
Chesapeake & O. Ry. Co. v. Pat-
ton, 23 App. D. C. 113
(1904), 777.
Chesapeake & O. Ry. Co. v. Sauls-
berry, 112 Ky. 915 (1902),
632, 933.
Chesapeake & O. Ry. Co. v. Sauls-
berry, 126 Ky. 179 (1907),
908.
Chesapeake & O. Ry. Co. v.
Standard Lumber Co., 174
Fed. 107 (1909), 820, 1359.
Chesapeake & O. R. R. Co. v.
Wilson, 21 Gratt. 654 (1872),
970.
Chesapeake, O. & S. W. R. R. Co.
v. Wells, 85 Tenn. 613 (1887),
566, 848, 881.
Chesapeake & P. Telephone Co.
v. Baltimore & O. Telegraph
Co., 66 Md. 399 (1886), 136,
244, 692.
Chesapeake & P. Telephone Co.
v. Manning, 186 U. S. 238
(1902), 136, 823, 1121, 1407,
1420.
Chesapeake Steamship Co. v.
Merchants' Bank, 102 Md.
589 (1906), 1045.
Chevallier v. Straham, 2 Tex. 115
(1847), 162, 236, 239, 968, 985.
Chicago, City of, v. Mutual Elec-
tric Light & Power Co., 55
Ill. App. 429 (1894), 273.
[lxxxv ]
TABLE OF CASES CITED
[References are to sections]
Chicago, City of, v. Northwestern
Mut. Life Ins. Co., 218 Ill.
40 (1905), 377, 456.
Chicago, City of, v. Openheim,
229 Ill. 313 (1907), 878.
Chicago v. Rogers Pk. Co., 214
Ill. 212 (1905), 1123, 1124,
1430.
Chicago, etc., R. R. Co. v. Ackley,
94 U. S. 179 (1876), 214.
Chicago, etc., R. R. Co. v.
Thompson, 19 Ill. 578 (1858),
255.
Chicago, etc., R. R. Co. v. Wood-
ward, 164 Ind. 360 (1904),
256.
Chicago & A. R. R. Co. v. Arnol,
144 Ill. 261 (1893), 763.
Chicago & A. R. R. Co. v. Buck-
master, 74 Ill. App. 575
(1897), 626, 943.
Chicago & A. R. R. Co. v. Chi-
cago V. & W. Coal Co., 79
Ill. 121 (1875), 1297, 1311,
1330.
Chicago & Alton R. R. Co. v.
Davis, 159 Ill. 53 (1895), 796.
Chicago & A. R. R. Co. v. Dumser,
161 Ill. 190 (1896), 801.
Chicago & A. R. R. Co. v. Erick-
son, 91 Ill. 613 (1879), 408,
662, 722, 831.
Chicago & A. R. R. Co. v. Inter-
state Commerce Commission,
173 Fed. 930 (1908), 857.
Chicago & A. R. R. Co. v. Michie,
83 Ill. 427 (1876), 745.
Chicago & A. R. R. Co. v. People,
152 Ill. 230 (1894), 810.
Chicago & A. R. R. Co. v. Pills-
bury, 123 Ill. 9 (1887), 570,
942, 944.
Chicago & A. R. R. Co. v. Scott,
42 Ill. 132 (1866), 1036.
Chicago & A. R. R. Co. v. Shea,
66 Ill. 471 (1873), 623, 737.
Chicago & A. R. R. Co. v. Suffern,
129 Ill. 274 (1889), 224, 300,
308, 681, 822, 1327.
Chicago & A. R. R. Co. v. Thomp-
son, 19 Ill. 578 (1858), 176,
623, 737.
Chicago & A. R. R. Co. v. Thrapp,
5 Ill. App. 502 (1880), 922.
Chicago & A. R. R. Co. v. Tracey,
109 Ill. App. 563 (1903), 946.
Chicago & A. R. R. Co. v. United
States (C. C. A.), 156 Fed.
558 (1907), 1293, 1359.
Chicago & A. R. R. Co. v. Walker,
118 Ill. App. 397 (1905), 398.
Chicago & Alton R. R. Co. v.
Willard, 31 Ill. App. 435
(1888), 440.
Chicago & Alton R. R. Co. v.
Winters, 175 Ill. 293 (1898),
763, 932.
Chicago & Eastern R. R. Co. v.
Flexman, 103 Ill. 546 (1882),
951.
Chicago & Erie R. R. Co. v. Field,
7 Ind. App. 172 (1893), 738,
759.
Chicago & E. R. R. Co. v. Con-
ley, 6 Ind. App. 9 (1892), 890.
Chicago & E. I. Ry. Co. v. Jen-
nings, 190 Ill. 478 (1901),
401.
Chicago & E. I. Ry. Co. v. People,
222 Ill. 396 (1906), 810.
Chicago & G. E. Ry. Co. v. Dane,
43 N. Y. 240 (1870), 723.
Chicago & G. T. Ry. Co. v. Well-
man, 143 U. S. 339 (1892),
1122, 1152, 1176, 1407, 1411.
Chicago & Gt. W. Ry. Co. v.
Dunlap, 71 Kan. 67 (1905),
921.
[lxxxvi ]
TABLE OF CASES CITED
[References are to sections]
Chicago & N. W. Ry. Co. v.
Chapman, 133 Ill. 96 (1890),
1022.
Chicago & N. W. Ry. Co. v.
Chicago V. & W. Coal Co.,
79 Ill. 121 (1875), 1357.
Chicago & N. W. Ry. Co. v. Dey,
35 Fed. 866 (1888), 1094,
1122, 1129, 1131, 1151, 1156,
1220, 1403, 1408, 1409.
Chicago & N. W. Ry. Co. v. Jen-
kins, 103 Ill. 588 (1882),
1050.
Chicago & N. W. Ry. Co. v.
Lawyer, 69 Ill. 285 (1893),
1042.
Chicago & N. W. Ry. Co. v. More-
house, 112 Wis. 1 (1901), 224.
Chicago & N. W. Ry. Co. v.
O'Brien, 132 Fed. 593 (1904),
778.
Chicago & N. W. Ry. Co. v. Os-
borne, 3 C. C. A. 912 (1892),
534.
Chicago & N. W. Ry. Co. v. Peo-
ple, 56 Ill. 365 (1870), 404,
492, 817, 1043.
Chicago & N. W. Ry. Co. v. State,
74 Neb. 77 (1905), 808.
Chicago & N. W. Ry. Co. v. Wil-
liams, 55 Ill. 185 (1870), 566,
844, 849, 865, 881.
Chicago & P. M. & O. R. R. Co. v.
Becker, 35 Fed. 883 (1888),
1122.
Chicago, B. & N. R. R. Co. v.
Porter, 43 Minn. 527 (1890),
225.
Chicago, B. & Q. R. R. Co. v. An-
derson, 72 Neb. 856 (1907),
1378.
Chicago, B. & Q. R. R. Co. v.
Boger, 1 Ill. App. 472 (1877),
878.
Chicago, B. & Q. R. R. Co. v. Bur-
lington, C. R. & N. Ry. Co.,
34 Fed. 481 (1888), 570, 670.
Chicago, B. & Q. R. R. Co. v.
Curtis, 51 Neb. 442 (1897),
529, 530.
Chicago, B. & Q. R. R. Co. v. Gar-
diner, 51 Neb. 70 (1897),
1010.
Chicago, B. & Q. R. R. Co. v.
George, 19 Ill. 510 (1858),
904.
Chicago, B. & Q. R. R. Co. v.
Griffin, 68 Ill. 499 (1873),
935.
Chicago, B. & Q. R. R. Co. v. Gus-
tin, 35 Neb. 86 (1892), 513.
Chicago, B. & Q. R. R. Co. v.
Iowa, 94 U. S. 155 (1876),
124, 1121, 1427.
Chicago, B. & Q. R. R. Co. v.
Jones, 149 Ill. 361 (1894),
1403, 1405, 1409.
Chicago, B. & Q. R. R. Co. v.
Mehlsack, 131 Ill. 61 (1889),
623, 738.
Chicago, B. & Q. R. R. Co. v.
Parks, 18 Ill. 460 (1857), 1282,
1287.
Chicago, B. & Q. R. R. Co. v.
Powers, 73 Neb. 816 (1905),
727.
Chicago, B. & Q. R. R. Co. v. Slat-
tery, 107 N. W. 1045 (1906),
772.
Chicago, B. & Q. R. R. Co. v.
Troyer, 70 Neb. 293 (1905),
763.
Chicago, B. & Q. R. R. Co. v.
Williams, 61 Neb. 608 (1901),
796, 989.
Chicago, C. C. & St. L. Ry. Co. v.
Bozarth, 91 Ill. App. 68
(1900), 1026.
[ lxxxvii]
TABLE OF CASES CITED
[References are to sections]
Chicago City Ry. Co. v. Pelletier,
134 Ill. 120 (1890), 632, 933.
Chicago Dock, etc., Co. v. Gar-
rity, 115 Ill. 155 (1885),
225.
Chicago Exchange Bldg. Co. v.
Nelson, 197 Ill. 334 (1902),
193.
Chicago G. L. & C. Co. v. People's
G. L. & C. Co., 121 Ill. 530
(1887), 687, 693.
Chicago, I. & L. Ry. Co. v. Rail-
road Commission, 39 Ind.
App. 358 (1907), 1099, 1124,
1430.
Chicago, I. & L. Ry. Co. v. South-
ern Ind. Ry. Co., 38 Ind.
App. 234 (1904), 693.
Chicago, K. & W. Ry. Co. v.
Frazer, 55 Kan. 582 (1895),
207, 762, 1044.
Chicago, M. & St. P. Ry. Co. v.
Ackley, 94 U. S. 179 (1876),
124, 1121, 1427.
Chicago, M. & P. St. Ry. Co. v.
Minnesota, 134 U. S. 418
(1889), 1409, 1411, 1422,
1429.
Chicago, M. & St. P. Ry. Co. v.
Smith, 110 Fed. 473 (1901),
1195.
Chicago, M. & St. P. Ry. Co.
v. Tompkins, 90 Fed. 363
(1898), 1409.
Chicago, M. & St. P. Ry. Co. v.
Tompkins, 176 U. S. 167
(1900), 1151, 1175, 1195,
1196, 1206.
Chicago, M. & St. P. Ry. Co. v.
Wabash, St. L. & P. Ry. Co.,
61 Fed. 993 (1894), 694.
Chicago, M. & St. P. Ry. Co. v.
Wallace, 66 Fed. 506 (1895),
259, 755, 772, 969.
Chicago, etc., R. R. v. Williams,
61 Neb. 608 (1901), 256.
Chicago, P. & P. Co. v. Chicago,
88 Ill. 225, 30 Am. Rep. 545
(1878), 1410.
Chicago, P. & St. L. R. R. Co. v.
People, 136 Ill. App. 2 (1909),
1215.
Chicago, R. I. & P. Ry. Co. v.
Barrett, 16 Ill. App. 17
(1884), 1044.
Chicago, R. I. & P. Ry. Co. v.
Conklin, 32 Kan. 55 (1884),
876.
Chicago, R. I. & P. Ry. Co. v.
Fairclough, 52 Ill. 106 (1869),
769.
Chicago, R. I. & P. Ry. Co. v.
Hamler, 215 Ill. 525 (1905),
779, 1015.
Chicago, R. I. & P. Ry. Co. v. In-
terstate Comm. Comm., 171
Fed. 680 (1909), 1226, 1378,
1387.
Chicago, R. I. & P. Ry. Co. v.
Kendall, 72 Ill. App. 105
(1897), 1042, 1043.
Chicago, R. I. & P. Ry. Co. v.
Moran, 117 Ill. App. 42
(1904), 498, 782.
Chicago, R. I. & P. Ry. Co. v.
Nebraska State Ry. Commis-
sion, 85 Neb. 818 (1910), 809.
Chicago, R. I. & P. Ry. Co. v.
Pffeifer, 90 Ark. 524, 905.
Chicago, R. I. & P. Ry. Co. v.
Risley Bros. & Co. (Tex. Civ.
App.), 119 S. W. 897 (1909),
394, 408.
Chicago, R. I. & Ry. Co. v. War-
ren, 16 Ill. 502 (1855), 1036.
Chicago, R. I. & P. Ry. Co. v.
Witty, 32 Neb. 275 (1891),
1011.
[ lxxxviii]
TABLE OF CASES CITED
[References are to sections]
Chicago, R. I. & P. Ry. Co. v.
Wood, 104 Fed. 663 (1900),
1044, 1045.
Chicago, St. L. & P. R. R. Co. v.
Graham, 3 Ind. App. 28
(1891), 865, 888, 891.
Chicago, St. L. & P. R. R. Co.
v. Holdridge, 118 Ind. 287
(1889), 862.
Chicago, St. Louis & Pittsburg
R. R. Co. v. Wolcott, 141
Ind. 267 (1894), 345, 511,
663, 664, 665, 799, 841,
853.
Chicago, St. L. & N. O. R. R. Co.
v. Abels, 60 Miss. 1017
(1883), 256, 1020.
Chicago, St. L. & N. O. R. R. Co.
v. Pullman Car Co., 139 U.
S. 79 (1890), 482.
Chicago, St. P. Mo. & O. Ry. Co.
v. Becker, 35 Fed. 883 (1888),
1192.
Chicago, St. P. Mo. & O. Ry. Co.
Bryant, 65 Fed. 969
V.
(1895), 745.
Chicago Telephone Co. v. Illinois
Mfgrs. Assn., 106 Ill. App.
54 (1903), 136.
Chicago Telephone Co. v. North-
western Telephone Co., 199
Ill. 324 (1902), 211.
Chicago Terminal Transfer R. R.
Co. v. Helbreg, 99 Ill. App.
563 (1902), 1044.
Chicago T. T. R. R. Co. v. O'Don-
nell, 213 Ill. 545 (1905),
783.
Chicago Union Traction Co. v.
Chicago, 199 Ill. 484 (1902),
1096, 1410, 1426.
Chicago Union Traction Co. v.
O'Brien, 219 Ill. 303 (1906),
410.
Chiles v. Chesapeake & O. Ry.
Co., 30 Ky. L. Rep. 1332
(1907), 566, 848, 881.
Chiles v. Chesapeake & O. Ry.
Co., 218 U. S. 71 (1910), 566,
848, 881, 1417.
Chilton v. St. Louis & I. M. Ry.
Co., 114 Mo. 88 (1892), 566,
844, 848, 881.
Choctaw, O. & G. R. R. Co. v.
Hill, 110 Tenn. 396 (1903),
447, 1259.
Choctaw, O. & G. R. R. Co. v.
State, 73 Ark. 373 (1904),
415, 665, 854.
Chouteau v. Steamboat St. An-
thony, 16 Mo. 216 (1852),
255, 743, 792.
Christenson v. American Express
Co., 15 Minn. 270 (1870),
178, 776, 963.
Christian v. Augusta & A. Ry. Co.
(S. C.), 69 S. E. 17 (1910).
Christie v. Missouri P. R. R. Co.,
94 Mo. 453 (1887), 1282,
1285, 1286.
Church v. Chicago, M. & St. P.
Ry. Co., 6 S. D. 235 (1894),
905, 921.
Churchman v. Tunstall, Hardres,
162 (1659), 52.
Cincinnati, H. & D. R. R. Co. v.
Bowling Green, 57 Oh. St.
336 (1897), 113, 214, 215, 243,
692, 1290.
Cincinnati, H. & D. R. R. Co. v.
Interstate Comm. Comm.,
206 U. S. 142 (1907), 1238,
1391.
Cincinnati, H. & D. R. R. Co. v.
Carper, 112 Ind. 26 (1887),
738.
Cincinnati, I., St. L. & C. Ry. Co. v.
Case, 122 Ind. 310(1889), 902.
[ lxxxix]
TABLE OF CASES CITED
[References are to sections]
Cincinnati, I., St. L. & C. Ry.
Co. v. Cooper, 120 Ind. 469
(1889), 933.
Cincinnati, I. & W. Ry. Co. v.
City of Connersville, 170 Ind.
316 (1908), 214.
Cincinnati, J. & M. R. R. Co. v.
Morley, 4 Ohio Cir. Ct. 559
(1890), 761.
Cincinnati, N. O. & T. P. Ry. Co.
v. Interstate Comm. Comm.,
162 U. S. 184 (1896), 1222,
1377, 1414, 1420.
Cincinnati, N. O. & T. P. Ry. Co.
v. Raine, 130 Ky. 454 (1908),
832.
Cincinnati, N. O. & T. P. Ry. Co.
v. Sanders & Russell, 118
Ky. 115 (1904), 1008.
Cincinnati, etc., R. R. Co. v.
Commissioners of Clinton
County, 1 Oh. St. 77 (1852),
217.
Cincinnati R. R. Co. v. Pontius,
19 Ohio St. 221 (1869), 1017.
Citizens' Bank V. Nantucket
Steamboat Co., 2 Story (U.
S.), 16 (1841), 172, 255, 743.
Citizens' Gas & O. Co. v. Whip-
ple, 32 Ind. App. 203 (1904),
417.
Citizens' St. R. R. Co. of Ind. v.
Merl, 134 Ind. 609 (1893),
1031.
Citizens' St. R. Co. v. Twiname,
111 Ind. 587 (1887), 189, 756.
City Electric Ry. Co. v. Shrop-
shire, 101 Ga. 33 (1897),
937.
City of, See the particular city
by name.
City Water Co. v. State (Tex.
Civ. App.), 33 S. W. 259
(1895), 92.
Clancy v. Barker, 131 Fed. 161
(1904), 936, 947.
Clancy v. Barker, 71 Neb. 83
(1904), 936.
Clapp v. Stanton, 20 La. Ann.
495 (1868), 173.
Clark v. Barnwell, 12 How. 272
(1851), 165.
Clark v. Burns, 118 Mass. 275
(1875), 21, 769, 975.
Clark v. Clyde S. S. Co., 148 Fed.
243 (1905), 747.
Clark v. Colorado & N. W. Ry.
Co., 165 Fed. 408 (1908),
745.
Clark v. Ulster & D. R. R. Co.,
189 N. Y. 93 (1907), 833.
Clark v. Wilmington & W. R. R.
Co., 91 N. C. 506 (1884),
440, 447, 1259.
Clarke v. Blackmar, 47 N. Y. 150
(1871), 225.
Clarke-Lawrence Co. v. Chesa-
peake & O. Ry. Co., 63 W.
Va. 423 (1908), 1048.
Clarke v. Needles, 25 Pa. St. 338
(1855), 724, 727.
Clarke v. Rochester & S. R. R.
Co., 14 N. Y. 570 (1856), 256.
Clary v. Willey, 49 Vt. 55 (1876),
234, 240, 968.
Claypool v. McAlister, 20 Ill. 504
(1858), 182, 241, 843.
Cleburne Water, I. & L. Co. v.
City of Cleburne, 13 Tex.
Civ. App. 144 (1896), 443.
Clemson v. Davidson, 5 Binn.
(Pa.) 392 (1813), 1263.
Clerc v. Morgan's La. & Tex. R.
R. & S. S. Co., 107 La. 370
(1902), 944.
Cleveland City Ry. Co. v. Cleve-
land, 94 Fed. 385 (1899),
1410.
[ xc ]
TABLE OF CASES CITED
[References are to sections]
Cleveland v. Cleveland City Ry.
Co., 194 U. S. 517 (1904),
1411, 1424.
Cleveland, C., C. & I. Ry. Co. v.
Closser, 126 Ind. 348 (1890),
694, 1284.
Cleveland, C., C. & I. Ry. Co. v.
Coburn, 91 Ind. 557 (1883),
811.
Cleveland, C. C. & St. L. Ry. Co.
v. Bartram, 11 Ohio St. 457
(1860), 431, 446, 878, 885,
1255.
Cleveland, C., C. & St. L. Ry. Co.
v. Heath, 22 Ind. App. 47
(1899), 901, 909, 915.
Cleveland, C., C. & St. L. Ry.
Co. v. Henry, 170 Ind. 94
(1908), 259,755, 772, 792, 969.
Cleveland, C., C. & St. L. R. R.
Co. v. Illinois, 177 U. S. 544
(1900), 1417.
Cleveland, C., C. & St. L. Ry.
Co. v. Ketcham, 133 Ind.
346 (1893), 777, 778.
Cleveland, C., C. & St. L. Ry. Co. v.
Louisville Tin. & S. Co. (Ky.),
111 S. W. 358 (1908), 794.
Cleveland, C., C. & St. L. Ry.
Co. v. Moline Plow Co., 13
Ind. App. 225 (1895), 1047.
Cleveland, C., C. & S. L. R. R.
Co. v. Scott, 111 Ill. App.
234 (1903), 442.
Cleveland, C., C. & St. L. R. R.
Co. v. Wright, 25 Ind. App.
525 (1900), 1048.
Cleveland Electric Co. v. Cleve-
land, 204 U. S. 116 (1906),
298.
Cleveland G. & C. Co. v. Cleve-
land, 71 Fed. 610 (1896),
1099, 1123, 1132, 1138, 1410,
1430.
Cleveland P. & A. R. R. Co. v.
Curran, 19 Ohio St. 1 (1869),
780.
Clifford v. Stafford, 145 Ill. App.
247 (1908), 366.
Clough v. Grand Trunk Ry. Co.,
155 Fed. 81 (1907), 259.
Coal, 318½ Tons of, 14 Blatch.
453 (1878), 415, 420.
Coal & Coke Ry. Co. v. Conley
(W. Va.), 67 S. E. 613 (1910),
1061, 1068, 1081, 1084, 1091,
1092, 1099, 1126, 1127, 1128,
1132, 1135, 1138, 1163, 1175,
1193, 1202.
Coal Co. v. Caledonia Ry. Co., 2
Ry. & C. Tr. Cas. 39 (1874),
1373.
Cobb v. Boston El. Ry. Co., 179
Mass. 212 (1901), 943.
Cobb C. & Co. v. Illinois Cent. R.
R. Co., 88 Ill. 394 (1878), 914.
Cobb v. Gt. Western R. R. Co.,
(1894), A. C. 419, 944.
Coe v. Columbus, P. & I. R. R.
Co., 10 Ohio St. 372 (1859),
296.
Coe v. Louisville & N. R. R. Co.,
3 Fed. 775 (1880), 491, 492,
574, 1043.
Coe v. N. J. Midland Ry. Co., 30
N. J. Eq. 440 (1879), 264,
457.
Coger v. North Western Union
Packet Co., 37 Ia. 145 (1873),
566, 848, 849, 881.
Coggs v. Barnard, 2 Ld. Raym.
909, 962.
Cogswell v. Atchison, T. & S. F.
Ry. Co., 23 Okla. 181 (1909),
370.
Cogswell v. West St. & N. E.
Elec. R. Co., 5 Wash. 46
(1892), 207.
[xci]
TABLE OF CASES CITED
[References are to sections]
Cohen v. Frost, 2 Duer, 335
(1853), 767.
Cohen v. Platt, 48 N. Y. Misc.
378 (1906), 413, 991.
Cohn v. St. Louis, I. M. & S. Ry.
Co., 181 Mo. 30, 79 S. W. 961
(1904), 1377.
Coit v. Western Union Tel. Co.,
130 Cal. 657 (1900), 348, 766,
1014.
Colbath v. Bangor & A. R. R.
Co., 105 Me. 379 (1909), 906.
Cole v. Goodwin, 19 Wend. (N.
Y.) 251 (1838), 172, 262.
Cole v. La Grange, 113 U. S. 1
(1884), 64.
Cole v. Logan, 24 Oreg. 304
(1893), 852.
Cole v. Rowen, 88 Mich. 219
(1891), 484.
Cole v. Western Union Telegraph
Co., 33 Minn. 227 (1885),
1025.
Coleman v. Georgia R. R. Co., 84
Ga. 1 (1889), 372.
Coleman v. New York & N. H.
R. R. Co., 106 Mass. 160
(1870), 935.
Colfax Mountain Fruit Co. v.
Southern Pac. Ry. Co., 46
Pac. 668 (1896), 511, 517,
1033.
Collenberg, The, 1 Black (U. S.),
170 (1861), 988, 1267.
Collett v. London & N. W. Ry.
Co., 16 Q. B. 984 (1851), 777.
Collier v. Langan, T. S. & M. Co.
(Mo. App.), 127 S. W. 435
(1910), 170, 230, 239, 254.
Collier v. Swinney, 16 Mo. 484
(1852), 922.
Collins v. Texas & P. Ry. Co., 15
Tex. Civ. App. 169 (1897),
757.
Collman v. Collins, 2 Hall (N.
Y.), 569 (1829), 1263.
Colorado Springs v. Smith, 19
Colo. 554 (1894), 484.
Colt v. McMechen, 6 Johns. 160
(1810), 984.
Columbia Conduit Co. v. Com-
monwealth, 90 Pa. St. 307
(1879), 59.
Columbus v. Columbus St. Ry.
Co., 45 Ohio St. 98 (1886),
1424.
Columbus & I. Cent. Ry. Co. v.
Arnold, 31 Ind. 174 (1869),
783.
Columbus Ry. Co. v. Christian,
97 Ga. 56 (1895), 939.
Commander in Chief, The, 1 Wall.
43 (1863), 172.
Combs v. Lakewood, 68 N. J. L.
582 (1902), 186.
Commercial Bank, Re, and Lon-
don Gas Co., 20 Up. Can. Q.
B. 233 (1860), 454.
Commercial U. Tel. Co. v. New
England T. & T. Co., 61 Vt.
241 (1889), 136, 244, 692.
Commonwealth v. Bacon, 13
Bush. 210 (1877), 51.
Commonwealth v. Corey & Co., 2
Pittsburg, 444 (1863), 98.
Commonwealth v. Cuncannon, 3
Brewst. 344 (1869), 240.
Commonwealth V. Delaware
Canal Co., 43 Pa. St. 295
(1862), 122, 241.
Commonwealth v. Eastern R. R.
Co., 103 Mass. 254 (1869),
805.
Commonwealth v. Fitchburg R.
R. Co., 12 Gray, 180 (1858),
188, 262, 306, 311, 792.
Commonwealth v. Goldman, 205
Mass. 400 (1910), 187.
[ xcii ]
TABLE OF CASES CITED
[References are to sections]
Commonwealth v. Hancock Free
Bridge Corporation, 2 Gray,
58 (1854), 23.
Commonwealth v. Interstate Con-
solidated Ry., 187 Mass. 436
(1905), 189.
Commonwealth v. Louisville &
Nashville R. R. Co., 68 S. W.
1103 (1902), 1337.
Commonwealth v. Louisville &
N. R. R. Co., 24 Ky. L. Rep.
509 (1902), 1238.
Commonwealth v. Lowell Gas
Light Co., 12 Allen, 75
(1866), 31, 111.
Commonwealth v. Mitchell, 2
Parsons (Pa.), 431 (1850),
106, 368, 370, 628.
Commonwealth v. Norfolk & W.
Ry. Co. (Va.), 68 S. E. 351
(1910), 125, 699, 811.
Commonwealth v. People's Exp.
Co., 201 Mass. 564 (1909), 236.
Commonwealth v. Philadelphia,
132 Pa. St. 288 (1890), 456.
Commonwealth v. Power, 7 Met.
596 (1844), 484, 861.
Commonwealth v. Wetherbee,
101 Mass. 214 (1869), 263.
Commonwealth v. Wilkes-Barre
Gas Co., 2 Kulp (Pa.), 499
(1883), 31, 280.
Commonwealth v. Worcester &
N. R. R. Co., 124 Mass. 561
(1878), 1377, 1378.
Concord R. R. Co. v. Greely, 17
N. H. 47 (1845), 58.
Concord & M. R. R. Co. v. Bos-
ton & M. R. R. Co., 67 N. H.
464 (1893), 125, 527, 808,
811, 1401.
Concord & P. R. R. Co. v. For-
saithe, 59 N. H. 122 (1879),
1282, 1320.
Condit v. Grand Trunk R. R. Co.,
54 N. Y. 500 (1873), 513.
Condon v. New Rochelle Water
Co., 136 N. Y. App. Div. 879
(1909), 1121.
Condran v. Chicago, M. & St. P.
Ry. Co., 67 Fed. 522 (1895),
743, 746.
Conemaugh Gas Co. v. Jackson
Farm Gas Co., 186 Pa. St.
443 (1898), 688.
Congar v. Galena & Chicago U.
R. R. Co., 17 Wis. 477
(1863), 521.
Conklin v. Prospect Park Hotel
Co., 1 N. Y. Supp. 406
(1888), 291.
Conley v. Watauga Water Co., 99
Tenn. 420 (1897), 1300.
Connell v. Chesapeake & O. Ry.
Co., 93 Va. 44 (1896), 941,
944, 948.
Connell v. Mobile & O. Ry. Co.
(Miss.), 7 So. 344 (1890), 869.
Conolley v. Crescent City R. R.
Co., 41 La. Ann. 57 (1889),
631, 638, 933.
Connolly v. Warren, 106 Mass.
146 (1870), 875.
Connolly v. Woods, 13 Idaho,
573 (1907), 206.
Connors v. Cunard S. S. Co., 204
Mass. 310 (1910), 631, 635,
638, 643, 953.
Conroy v. Chicago, St. P., M. &
O. R. R. Co., 96 Wis. 243
(1897), 949.
Consolidated Gas Co. v. Blondell,
89 Md. 732 (1899), 883.
Consolidated Gas Co. v. Willcox,
157 Fed. 849 (1907), 1092.
Consolidated Traction Co. V.
Taborn, 58 N. J. L. 1 (1895),
863.
[ xciii]
TABLE OF CASES CITED
[References are to sections]
Continental Coal Co. v. Pennsyl-
vania R. R. Co., 13 Pa. Dist.
Ct. 702 (1904), 404, 817.
Contra Costa R. R. Co. v. Moss,
23 Cal. 323 (1863), 176, 223.
Converse v. Norwich & N. Y.
Transp. Co., 33 Conn. 166
(1865), 733.
Converse v. Washington & G. R.
R. Co., 2 MacAr. 504 (1876),
632, 933.
Conyers v. Postal Telegraph-
Cable Co., 92 Ga. 619 (1893),
520.
Cook v. Chicago, R. I. & P. R. R.
Co., 81 Iowa, 551 (1890),
1282, 1283, 1286, 1303, 1320.
Cook v. Chicago, R. I. & P. R. R.
Co., 78 Neb. 64 (1907), 1024.
Cook v. Gourdin, 2 N. & McC. 19
(1819), 771.
Cook & Wheeler v. Chicago, R. I.
& P. R. R. Co., 81 Iowa, 551
(1890), 1080, 1289.
Cooley v. Minnesota Transfer Ry.
Co., 53 Minn. 327 (1893),
1046.
Cooney v. Pullman Palace Car
Co., 121 Ala. 368 (1898), 769.
Cooper v. Berry, 21 Ga. 526
(1857), 1001.
Cooper v. Goodland, 80 Kan. 121
(1909), 406, 825, 1251.
Cooper, Matter of, 28 Hun, 515
(1883), 145.
Cooper v. Raleigh & G. R. R. Co.,
110 Ga. 659 (1900), 1012.
Cope v. Cordova, 1 Rawle (Pa.),
203 (1829), 1039.
Copland v. American DeForest
Wireless Telegraph Co., 136
N. C. 11 (1904), 134.
Copeland v. Draper, 157 Mass.
558 (1893), 107.
Coppin v. Braithwaite, 8 Jurist,
875 (1844), 598, 608, 627,
634.
Corbet v. Oil City Fuel Supply
Co., 21 Pa. Super. Ct. 80
(1902), 273.
Cordell v. Western Union Tele-
graph Co., 149 N. C. 402
(1908), 562.
Cordillera, The, 5 Blatch. 518
(1867), 731.
Corwin v. Long Island R. R. Co.,
2 N. Y. City Ct. 106 (1885),
431, 878, 885.
Cosgrove v. City Council of Au-
gusta, 103 Ga. 835 (1898),
484.
Coskery v. Nagle, 83 Ga. 696
(1889), 744.
Cotting v. Kansas City Stock
Yards Co., 183 U. S. 79
(1901), 100, 1068, 1123, 1128,
1130, 1132, 1135, 1138, 1217,
1420, 1436.
Cotton v. Mississippi River Boom
Co., 22 Minn. 372 (1876), 55,
73.
County of Hennepin v. Brother-
hood of Gethsemane, 27
Minn. 460 (1881), 70.
Coup v. Wabash, St. L. & P. Ry.
Co., 56 Mich. 111 (1885),
259, 755, 772, 792.
Coupland v. Housatonic R. R.
Co., 23 Atl. 870 (1892), 796,
847, 862, 951, 989, 1002,
1021.
Coventry v. Great Eastern Ry.
Co., 11 Q. D. 776 (1883), 748.
Covington v. Ratterman, 128 Ky.
336 (1908), 377, 450.
Covington & C. Bridge Co. v. So.
Covington & C. St. Ry. Co.,
93 Ky. 136 (1892), 53, 699.
[ xciv ]
TABLE OF CASES CITED
Covington & L. T.
Sandford, 164
[ References are to sections]
Ry. Co. v.
U. S. 578
(1896), 24, 75, 241, 1067,
1411, 1426.
Covington Gas Light Co. v. Cov-
ington, 22 Ky. Law Rep.
796 (1900), 1103.
Covington S. Y. Co. v. Keith, 139
U. S. 128 (1891), 491, 813,
818, 1043.
Cowden v. Pacific C. S. S. Co., 94
Cal. 470 (1892), 1282.
Cownie Glove Co. v. Merchants'
Dispatch Transp. Co., 106
N. W. 749 (1906), 180, 963.
Cox v. Cook, 14 Allen (Mass.),
165 (1867), 611.
Cox v. Malden & M. Gaslight
Co., 199 Mass. 324 (1908),
457.
Cox v. Missouri, K. & T. Ry. Co.,
81 Kan. 186 (1909), 408.
Coxe v. Heisley, 19 Pa. St. 243
(1852), 1002.
Coy v. Detroit, Y. & P. A. Ry.
Co., 125 Mich. 616 (1901),
887.
Coy v. Indianapolis Gas Co., 146
Ind. 655 (1897), 335, 982.
Coykendall v. Eaton, 55 Barb.
188 (1869), 970.
Coyle v. Southern Ry. Co., 112
Ga. 121 (1900), 432, 433,
887.
Cozard v. Kanawha Hardwood
Co., 139 N. C. 283 (1905),
206, 214, 223.
Cragin v. New York Central R. R.
Co., 51 N. Y. 61 (1872), 1012.
Craig v. Childress, Peck, 270
(1823), 963.
Craker v. Chicago & N. W. Ry.
Co., 36 Wis. 657 (1875), 933,
935, 938.
Cramer v. American M. U. Ex-
press Co. & Merchants' Dis-
patch Co., 56 Mo. 524 (1874),
518, 1033.
Cravens v. Rodgers, 101 Mo. 247
(1890), 485, 489.
Crawford v. Cincinnati, H. & D.
R. R. Co., 26 Ohio St. 580
(1875), 886.
Crawfordsville v. Braden, 130
Ind. 149 (1891), 218.
Creech v. Charleston & W. C. Ry.
Co., 66 S. C. 528 (1903), 395.
Crescent City Gas Light Co. v.
New Orleans Gas Light Co.,
27 La. Ann. 138 (1875), 51.
Crescent Liquor Co. v. Platt, 148
Fed. 894 (1906), 600.
Crescent Steel Co. v. Equitable
Gas Co., 23 Pitts. L. Jour.
316 (1892), 553, 1288.
Cresson v. Philadelphia & R. R. R.
Co., 11 Phila. 597 (1875), 886.
Crine v. East Tennessee V. & G.
Ry. Co., 84 Ga. 651 (1890),
763.
Crocker v. New London, W. & P.
R. R. Co., 24 Conn. 249
(1855), 888.
Crommelin v. New York & H. R.
R. R. Co., 10 Bosw. (N. Y.)
77 (1862), 1050.
Cromwell v. Stephens, 2 Daly
(N. Y.), 15 (1867), 263.
Cronan v. St. L. & S. F. Ry. Co.
(Mo. App.), 130 S. W. 437
(1910), 801.
Cronkite v. Wells, 32 N. Y. 247
(1865), 394.
Croom v. Chicago, M. & St. P.
Ry. Co., 52 Minn. 296 (1893),
631, 635, 638, 933.
Crooms v. Schad, 51 Fla. 168
(1906), 560, 566, 849.
[ xcv]
TABLE OF CASES CITED
[References are to sections]
Crosby v. City Council, 108 Ala.
498 (1895), 1410, 1424.
Crosby v. Fitch, 12 Conn. 410
(1838), 165, 172, 229, 239,
905, 921.
Crosby v. Pere Marquette R. R.
Co., 131 Mich. 288 (1902),
519.
Cross v. Andrews, Cro. Eliz. 622
(1598), 340.
Crossan v. New York & N. E. R.
R. Co., 149 Mass. 196 (1889),
522.
Crouch v. Arnett, 71 Kans. 49
(1905), 273, 276, 405, 797.
Crouch v. London & N. W. Ry.
Co., 14 C. B. 255 (1854), 420,
696.
Crouch v. Louisville & N. R. R.
Co., 42 Mo. App. 248 (1890),
513.
Crow v. San Joaquin & K. R. C.
& Irrigation Co., 130 Cal.
309 (1900), 451.
Crozier v. Boston, N. Y. & M.
Steamboat Co., 43 How. Pr.
(N. Y.) 466 (1871), 769,
975.
Crumley v. Watauga Water Co.,
99 Tenn. 420 (1897), 451,
454, 1290.
Cuba, The, 3 Ware, 260 (1860),
1269.
Cullen, Matter of, 106 N. Y. App.
Div. 250 (1905), 603, 605,
608, 646.
Culvar v. Lester, 37 Can. L. J.
421 (1901), 169, 230.
Cumberland Telephone & Tele-
graph Co. v. Baker, 85 Miss.
489 (1905), 458, 866.
Cumberland Telephone Co. v.
Brown, 104 Tenn. 56 (1900),
210.
Cumberland Telephone & T. Co.
v. Cartwright C. Telephone
Co., 128 Ky. 395 (1908), 244,
700.
Cumberland Telephone & T. Co.
v. Kelly, 160 Fed. 316 (1908),
136, 244, 273, 405, 576, 664,
797, 802.
Cumberland Telephone & T. Co.
v. Morgan's L. & T. R. R.
Co., 51 La. Ann. 29 (1889),
260, 687, 816, 817, 1043.
Cumberland Telephone & T. Co.
v. Railroad Comm., 156 Fed.
823 (1907), 1099, 1133.
Cumberland Telephone & T. Co.
v. Sanders, 83 Miss. 357
(1904), 412.
Cumberland Valley Ry. Co. v.
Baab, 9 Watts, 458 (1840),
811.
Cunningham v. Bucky, 42 W. Va.
671 (1896), 965.
Cunningham v. Seattle El. R. &
P. Co., 3 Wash. 471 (1892),
938.
Curling v. Long, 1 Bos. & P.
(Eng.) 634 (1797), 1263.
Curran v. Olson, 88 Minn. 307
(1903), 936, 947.
Currell v. Hannibal & St. J. Ry.
Co., 97 Mo. App. 93 (1902),
833, 922.
Currie v. Railroad Co., 135 N. C.
535 (1904), 414, 723.
Curry v. Georgia M. & G. R. R.
Co., 92 Ga. 293 (1893), 395.
Curry v. Kansas & C. P. R. Co.,
58 Kan. 6 (1897), 341, 1298,
1364.
Curtis v. Dinneen, 4 Dak. 245
(1886), 947.
Curtis v. Murphy, 63 Wis. 4
(1885), 559, 610, 623.
[ xcvi]
TABLE OF CASES CITED
[References are to sections]
Cutler v. Bonney, 30 Mich. 259
(1874), 965.
Cutting v. Florida Ry. & Nav.
Co., 30 Fed. 663 (1887), 524.
Cutting v. Florida Ry. & Nav.
Co., 46 Fed. 641 (1891), 1415.
Cutts v. Brainerd, 42 Vt. 566
(1870), 1042.
D
Dale v. Hall, 1 Wils. Reports, 281
(1750), 164.
Dalles Lumbering Co. v. Urqu-
hart, 16 Oreg. 67 (1888), 62.
Dalzell v. Steamboat Saxon, 10
La. Ann. 280 (1855), 518,
917, 1033.
Dan, The, 40 Fed. 691 (1889), 235.
Dana v. New York Central & H.
R. R. R. Co., 50 How. Pr.
428 (1875), 522.
Darlington v. Missouri Pac. R. R.
Co., 99 Mo. App. 1 (1903),
1050.
Darwin v. Charlotte, C. & A. Ry.
Co., 23 S. C. 531 (1885),
761.
Dave v. Morgan's Louisiana & T.
R. R. & Steamship Co., 47
La. Ann. 576 (1895), 1044.
Davenport Gas &c. Co. v. Daven-
port, 124 Ia. 22 (1904), 51.
Davenport v. Pennsylvania R. R.
Co., 173 Pa. St. 398 (1896),
796.
Davey v. Greenfield & T. F. St.
Ry. Co., 177 Mass. 106
(1900), 736.
Davey v. Mason, Car & M. 45
(1841), 732.
David & C., The, 5 Blatchf. 266
(1865), 413, 981.
Danaher v. Brooklyn, 119 N. Y. Davidson, The, 122 Fed. 1006
1 (1890), 981.
Danaher v. Southwestern Tele-
phone & T. Co. (Ark.), 127
S. W. 963 (1910), 451, 1300.
Daniel v. New Jersey St. Ry. Co.,
64 N. J. L. 603 (1900), 629,
880.
Daniel v. Petersburg Ry. Co., 117
N. C. 592 (1895), 946.
(1903), 488.
Davies v. Williamson, 21 New
South Wales L. R. (Law) 124
(1900), 446, 1256, 1260.
Davis v. Button, 78 Cal. 247
(1889), 262, 739.
Davis v. Central Vt. R. R. Co.,
66 Vt. 290 (1893), 917, 1003,
1007.
Daniel Ball, The, 10 Wall. 557 Davis v. Chesapeake & O. Ry.
(1871), 1413.
Daniel Burns, The, 52 Fed. 159
(1892), 753.
Daniels v. Ballantine, 23 Ohio St.
532 (1872), 917.
Danville v. Noone, 103 Ill. App.
290 (1901), 484.
Da Ponte v. New Orleans Trans-
fer Co., 42 La. Ann. 696
(1890), 171.
Darden v. Southern Ry. Co., 2
Ga. App. 66 (1907), 403.
Co., 122 Ky. 528 (1906), 477,
781, 787.
Davis v. Chicago, M. & St. P.
Ry. Co., 93 Wis. 470 (1896),
1011.
Davis v. Chicago, St. P. M. & O.
R. R. Co., 45 Fed. 543 (1891),
758.
Davis v. Clinton Waterworks Co.,
54 Iowa, 59 (1880), 350.
Davis v. Coventry, 65 Kans. 557
(1902), 69.
7
[ xcvii]
TABLE OF CASES CITED
[References are to sections]
Davis v. Electric Reporting Co.,
19 Weekly N. C. 567 (1887),
137.
Davis v. Garrett, 6 Bing. 716
(1830), 905, 908, 921.
Davis v. Gay, 141 Mass. 531
(1886), 263, 974.
Davis v. Kansas City, S. J. & C.
B. R. R., 53 Mo. 317 (1873),
433, 800, 1257.
Davis v. Mayor, 14 N. Y. 506
(1856), 75.
Davis v. Pacific Tel. & Teleg. Co.,
127 Cal. 312 (1899), 135.
Davis v. Paducah Ry. & L. Co.,
113 Ky. 267 (1902), 919.
Davis v. Wabash, St. L. & P. Ry.
Co., 89 Mo. 340 (1886), 918.
Davis v. Western Union Tele-
graph Co., 46 W. Va. 48
(1899), 398, 874, 1041.
Davis v. Western Union Tele-
graph Co., 107 Ky. 527
(1900), 1026.
Davison v. Gillies, 16 Ch. D. 347n
(1879), 1169.
Davis v. Williams, 2 Starkie, 279
(1817), 1001.
Dawley v. Wagner P. C. Co., 169
Mass. 315 (1897), 153.
Dawson v. Channey, 5 Q. B. 164
(1843), 964.
Dawson v. Chicago & A. R. R.
Co., 79 Mo. 296 (1883), 663,
914.
Dawson v. New York & Brooklyn
Bridge, 31 App. Div. 537
(1898), 945.
Day v. Bather, 2 H. & C. 14
(1863), 964.
Day v. Owen, 5 Mich. 520 (1858),
566, 848, 849, 865, 881.
Dayton v. Quigley, 29 N. J. Eq.
77 (1878), 378, 453, 456.
Dean v. Chicago General Ry., 64
Ill. App. 165 (1896), 189.
Dean v. King, 22 Ohio St. 118
(1871), 747.
De Bary Baya M. L. v. Jackson-
ville, T. & K. W. Ry. Co., 40
Fed. 392 (1889), 1282, 1287.
De Board v. Camden Int. Ry.
Co., 62 W. Va. 41 (1907), 862.
De Camp v. Hibernia R. R. Co.,
47 N. J. L. 43 (1885), 63, 222,
224.
Decker v. Atchison, T. & S. F. Ry.
Co., 3. Okla. 553 (1895), 593,
866, 910.
Decker v. Chicago, M. & St. P.
Ry. Co., 102 Minn. 99 (1907),
777.
De Colange v. The Chateau Mar-
gaux, 37 Fed. 157 (1888), 908.
De La Grange v. Southwestern
Telegraph Co., 25 La. Ann.
383 (1873), 348.
Delaware, The, 14 Wall. 579
(1871), 165.
Delaware & A. Telegraph & Tele-
phone Co. v. State of Dela-
ware, 50 Fed. 677 (1892), 136,
692.
Delaware, L. & W. R. R. Co. v.
Ashley, 67 Fed. 209 (1895),
780.
Delaware, L. & W. R. R. Co. v.
Bullock, 60 N. J. L. 24
(1897), 880.
Delaware, L. & W. R. R. Co. v.
Central Stockyards Co., 46
N. J. Eq. 280 (1889), 100.
Delaware, L. & W. R. R. Co. v.
Railroad Commission (N. J.),
74 Atl. 269 (1909), 806, 810.
Deming v. Grand Trunk R. R.
Co., 38 N. H. 455 (1869), 833,
922.
[ xcviii]
TABLE OF CASES CITED
[References are to sections]
Deming v. Merchants' Cotton-
Press & Storage Co., 90 Tenn.
306 (1891), 1015.
Dempsey v. New York C. & H.
R. R. R. Co., 146 N. Y. 290
(1894), 1304, 1363.
Denaby Main Colliery Co. v.
Manchester, S. & L. R. Co.,
L. R. 11 App. Cas. 97, 1314.
Denny v. New York Central R.
R. Co., 13 Gray (Mass.), 481
(1859), 917.
Densmore Commission Co. v.
Duluth, S. S. & A. Ry. Co.,
101 Wis. 563 (1899), 796.
Dent v. London Tramway Co., 16
Ch. Div. 344 (1880), 1169.
Denton v. Gt. Northern Ry. Co.,
5 El. & Bl. 860 (1856), 872,
904.
Denver & R. G. Ry. Co. v. Hill,
13 Colo. 35 (1889), 522.
Denver & R. G. Ry. Co. v. De
Witt, 1 Colo. App. 419
(1892), 905, 921, 1008.
Denver & R. G. Ry. Co. v. Whan,
39 Colo. 230 (1908), 482.
Denver Consolidated Electric Co.
v. Lawrence, 31 Colo. 301
(1903), 983, 1013.
Derosia v. Winona & St. Paul R.
R. Co., 18 Minn. 133 (1872),
1037.
De Rutte v. New York, A. & B.
Electric Magnetic Telegraph
Co., 1 Daly, 547 (1866), 133.
Des Moines v. Des Moines Water
Works Co., 95 Iowa, 348
(1895), 92, 1410.
Detroit v. Detroit Citizens' St.
Ry. Co., 184 U. S. 368 (1902),
1421, 1424, 1426.
Dewing v. Hutton, 46 W. Va. 538,
866.
Dibble v. Brown, 12 Ga. 217
(1852), 185.
Dickerson v. Rogers, 4 Humph.
179 (1843), 106, 203, 213,
234, 263, 979.
Dickerman v. St. Paul Union De-
pot Co., 44 Minn. 433 (1890),
431, 866, 878, 885.
Dickinson v. West End St. Ry.
Co., 177 Mass. 363 (1901),
784.
Dietrich v. Murdock, 42 Mo. 279
(1868), 223.
Di Giorgio Imp. & S. S. Co. v.
Pennsylvania Ry. Co., 104
Md. 693 (1906), 408, 662,
722, 796, 799, 831.
Dillard v. Louisville & N. R. R.
Co., 2 Lea, 288 (1879), 1004,
1007.
Dillon v. Erie R. R. Co., 19 N. Y.
Misc. 116 (1897), 1413.
Diphwys Casson Slate Co. v.
Festining R. Co., 2 Nev. &
Mac. 73 (1860), 1331.
District of Columbia v. Johnson,
1 Mackey, 51 (1881), 102,
232.
Dittmar v. Brooklyn Heights R.
R. Co., 91 App. Div. 378
(1904), 945.
Dittmar v. City of New Braunfels,
20 Tex. Civ. App. 293 (1899),
338, 411, 1013, 1289, 1290,
1300.
Dixon v. Central of Ga. Ry. Co.,
110 Ga. 173 (1899), 130, 726.
Dixon v. Chicago, R. I. & P. Ry.
Co., 64 Ia. 531 (1884), 665.
Dixon v. Western Union Tel. Co.,
3 App. Div. 60 (1896), 1014.
Dobbins v. Little Rock Ry. & El.
Co., 79 Ark. 85 (1906), 822,
843.
[xcix]
TABLE OF CASES CITED
[References are to sections]
Dobson v. New Orleans & W. R.
R. Co., 52 La. Ann. 1127
(1900), 783.
Dodd v. Central R. R. of N. J.
(N. J. L.), 76 Atl. 544 (1910),
778, 1015.
Doland v. Clark, 143 Cal. 176
(1904), 852.
Dominion Telegraph Co. v. Sil-
ver, 10 Can. Sup. Ct. 238
(1881), 605.
Donlon v. Southern Pacific Co.,
151 Cal. 763 (1907), 1008,
1019.
Donovan v. Hartford St. Ry. Co.,
65 Conn. 201 (1894), 410,
736.
Donovan v. Pennsylvania Co.,
199 U. S. 279 (1905), 483.
Doorman v. Jenkins, 2 Ad. & El.
256 (1834), 970.
Doran v. East River Ferry Co., 3
Lans. (N. Y.) 105 (1870),
738.
Dorr v. New Jersey Steam Nav.
Co., 11 N. Y. 485 (1854),
1002.
Dorsey v. Atchison, T. & S. F.
Ry. Co., 83 Mo. App. 528
(1900), 785.
Doss v. Missouri, K. & T. Ry.
Co., 59 Mo. 27 (1875), 369,
372.
Doty v. Strong, 1 Pinn. 313
(1843), 160, 204, 239, 723.
Dougherty v. New York Cent.
& H. R. R. R. Co., 86 N.
Y. Supp. 746 (1904), 402,
735.
Douglas v. People's Bank, 86 Ky.
176 (1887), 1045.
Douglas Co. v. Minnesota Trans-
fer Ry. Co., 62 Minn. 288
(1895), 1019, 1020, 1021.
Dow v. Beidelman, 125 U. S. 680,
31 L. ed. 841 (1888), 1122,
1411, 1428.
Dowd v. Albany Ry. Co., 47 N. Y.
App. Div. 202(1900), 626,880.
Dowd v. Chicago, M. & St. P. Ry.
Co., 84 Wis. 105 (1893), 369.
Downing v. Mt. Washington
Road Co., 40 N. H. 230
(1860), 823.
Downs v. New York & N. H. R.
R. Co., 36 Conn. 287 (1869),
886.
Downs v. Pacific Express Co., 135
Mo. App. 330 (1909), 1040.
Doyle v. Fitchburg R. R. Co., 162
Mass. 66 (1894), 785, 1016.
Doyle v. Kiser, 6 Ind. 242 (1855),
876.
Doyle v. Walker, 26 Up. Can. Q.
B. 502 (1867), 432, 844, 845.
Drake v. Penna. Ry. Co., 137 Pa.
St. 352 (1890), 864.
Draper v. Evansville & T. H. R.
R. Co., 165 Ind. 117 (1905),
398, 873.
Dresbach v. California R. R. Co.,
57 Cal. 462 (1881), 1039.
Drew, The, 15 Fed. 826 (1883),
1049.
Drew v. Central Pac. R. R. Co.,
51 Cal. 425 (1875), 1255.
D. R. Martin, The, 11 Blatch.
(U. S.) 233 (1873), 697.
Drummond v. Southern Pacific
Co., 7 Utah, 118 (1891), 1004.
DuBois Borough v. DuBois City
Waterworks Co., 176 Pa. St.
430 (1896), 981.
Duchemin v. Boston E. Ry. Co.,
186 Mass. 353 (1904), 736.
Dudley v. Camden & P. Ferry
Co., 42 N. J. Law, 25 (1880),
771, 969, 972.
[ c ]
TABLE OF CASES CITED
[References are to sections]
Dudley v. Chicago, M. & St. P.
Ry. Co., 58 W. Va. 604
(1906), 1042.
Duff v. Allegheny V. R. R. Co.,
91 Pa. 458 (1879), 746.
Dufur v. Boston & M. R. R. Co.,
75 Vt. 165 (1902), 944.
Duke v. Central N. J. Telephone
Co., 53 N. J. L. 341 (1891),
136.
Dulaney v. United Ry. & Electric
Co., 104 Md. 423 (1906), 225,
477.
DuLaurans v. St. Paul & P. R. R.
Co., 15 Minn. 49 (1870), 888.
Duling v. Philadelphia, W. & B.
R. R. Co., 66 Md. 120 (1886),
872, 904.
Dunbar v. Charleston & W. C.
Ry. Co., 62 S. C. 414 (1902),
1003.
Dunbar v. Port Royal & A. Ry.
Co., 36 S. C. 110 (1891), 513,
519.
Dunbier v. Day, 12 Neb. 596
(1882), 965.
Duncan v. Gt. Northern R. R.
Co. (N. D.), 118 N. W. 826
(1908), 414, 991.
Dunham v. Boston & Maine R.
R. Co., 70 Me. 164 (1879),
519, 520.
Dunn v. Ashville & C. M. Ry.
Co., 141 N. C. 521 (1906),
740.
Dunn v. Bean, Quebec Rep., 11
Super. Ct. 538 (1897), 974.
Dunn v. Beecknall Bros., 2 K. B.
614 (1902), 592, 910.
Dunn v. Grand Trunk Ry. Co.,
58 Me. 187 (1870), 763, 764.
Dunn v. Hannibal & St. J. R.
R. Cɔ, 68 Mo. 268 (1878),
1033.
Dunn v. Western Union Tele-
graph Co., 2 Ga. App. 845
(1908), 133, 931.
Dunne v. N. Y., N. H. & H. R. R.
Co., 99 App. Div. 571 (1904),
369.
Dunseth v. Wade, 2 Scam. 285
(1840), 172.
Dunston v. New York Cent. R. R.
Co., 3 Lans. 265 (1870), 1033.
Duntley v. Boston & Maine R. R.
Co., 66 N. H. 263 (1890),
1021.
Durden v. Southern R. R. Co., 2
Ga. App. 66 (1907), 317, 399,
815, 822, 1043.
Durgin v. American Express Co.,
66 N. H. 277 (1890), 1011,
1019.
Duval v. Pullman P. C. Co., 62
Fed. 265 (1894), 845.
Duvenick v. Mo. Pac. Ry. Co., 57
Mo. App. 550 (1894), 772.
Dwight v. Brewster, 1 Pick. 50.
(1822), 160, 184, 255, 262,
743.
Dwinelle v. New York Central &
H. R. R. R. Co., 120 N. Y.
117 (1890), 776, 935, 938,
940.
Dwyer v. Gulf, C. & S. F. Ry. Co.,
69 Tex. 707 (1888), 1045.
E
Eads v. Metropolitan St. Ry, Co.,
43 Mo. App. 536 (1891), 556,
933.
East Canada Creek Electric Light
& Power Co., Re, 49 N. Y.
Misc. 565 (1905), 95, 114.
East Grand Forks v. Luck, 9
Minn. 373 (1906), 377.
East India Co. v. Pullen, 2
Strange, 690 767, 771.
[ ci ]
TABLE OF CASES CITED
[References are to sections]
East Indian Ry. Co. v. Kalidas
Mukeriee, App. Cas. 396
(1901), 943.
East Ky. Ry. v. Holbrook, 4 Ky.
Law Rep. 730 (1883), 480.
East Line & Red River Ry. Co. v.
Hall, 64 Tex. 615 (1885),
724.
East London Waterworks Co. v.
Kellerman, 2 Q. B. 72 (1892),
456.
East Ohio Gas Co. v. Akron, 81
Ohio St. 33 (1909), 212, 298,
302, 306, 316, 596.
East Omaha Ry. Co. v. Godola,
50 Neb. 906 (1897), 76.
East St. Louis Connecting Ry.
Co. v. Wabash, St. L. & P.
Ry. Co., 123 Ill. 594 (1888),
1043.
East Tennessee & Georgia R. R.
Co. v. Montgomery, 44 Ga.
278 (1871), 1017.
East Tennessee Telephone Co. v.
Harrodsburg (Ky.), 122 S. W.
126 (1909), 1246, 1300.
East Tennessee, Va. & Ga. R. R.
Co. v. Brumley, 5 Lea, 401
(1880), 1005.
East Tennessee, Va. & Ga. R. R.
Co. v. Hunt, 15 Lea, 261
(1885), 1050.
East Tennessee, Va. & Ga. R. R.
Co. V. Interstate Comm.
Comm., 181 U. S. 1 (1901),
1204, 1222, 1373, 1377, 1380.
East Tennessee, Va. & Ga. R. R.
Co. v. Whittle, 27 Ga. 535
(1859), 176, 758, 775.
Eaton v. Delaware, L. & W. R.
R. Co., 57 N. Y. 382 (1874),
764.
Ebling v. Second Ave. Ry. Co., 69
N. Y. Supp. 1102 (1901), 864.
Eddy, The, 5 Wall. 481 (1866),
1038, 1039.
Eddy v. Elliot, 4 Tex. Ct. of App.
248 (1890), 341.
Eddy v. Harris, 78 Tex. 661
(1890), 872, 904.
Eddy v. Rowell (Tex. Civ. App.),
26 S. W. 875 (1894), 862.
Edgar Lumber Co. v. Cornie
Stave Co. (Ark.), 130 S. W.
452 (1910), 223, 226, 792,
822.
Edgerly v. Union St. Ry. Co., 67
N. H. 312 (1892), 632, 933.
Edgerton v. New York & H. R.
R. R. Co., 39 N. Y. 227
(1868), 763.
Edison U. M. Co. v. Farmington
Electric L. & P. Co., 82 Me.
464 (1890), 113.
Edson v. So. Pacific Ry. Co., 144
Cal. 182 (1904), 1353.
Edwards v. Burke, 36 Wash. 107
(1904), 193.
Edwards v. Mfrs. Building Co., 27
R. I. 248 (1905), 193.
Edwards v. Sherratt, 1 East, 604
(1801), 667.
Edwards v. Todd, 2 Ill. 462
(1837), 1269.
Edwards v. White Line Tr. Co.,
104 Mass. 159 (1870), 1046.
Edwin, The Bark, 1 Spra. 477
(1859), 732.
Eells v. St. Louis, K. & N. W. Ry.
Co., 52 Fed. 903 (1892), 1022.
Eels v. American Telephone &
Telegraph Co., 143 N. Y.
133 (1894), 56.
Eichorn v. Missouri, K. & T. Ry.
Co., 130 Mo. 575 (1895), 812.
Ela v. American Merch. Union
Exp. Co., 29 Wis. 611 (1872),
1048.
[ cii]
TABLE OF CASES CITED
[References are to sections]
Elder v. International Ry. Co.,
122 N. Y. Supp. 880 (1910),
431, 432, 877.
Electric Despatch Co. v. Bell
Telephone Co., 20 Can. Sup.
Ct. 83 (1891), 704.
Elgin, J. & E. Ry. Co. v. Bates
Machine Co., 200 Ill. 636
(1903), 413, 414, 991.
Elkins v. Boston & M. R. R. Co.,
23 N. H. 275 (1851), 167, 176,
239, 741.
Ellinghouse v. Taylor, 19 Mont.
462 (1897), 93, 242.
Emerson v. St. Louis & H. Ry.
Co., 111 Mo. 161 (1892), 796.
Emiliusen v. Pennsylvania R. R.
Co., 30 N. Y. App. Div. 203
(1898), 173, 774.
Emily, The, 5 Kans. 645 (1864),
172.
Empire State Cattle Co. v. Atch-
ison, T. & S. F. Ry. Co.,
135 Fed. 135 (1905), 656,
917.
Empire State Cattle Co. v. Atchi-
son, T. & S. F. Ry. Co., 210
U. S. 1 (1908), 522, 656, 907.
Elliott v. Rossell, 10 Johns. 1 Empire Transportation Co. v.
(1813), 165, 229.
Ellis v. American Telegraph Co.,
13 Allen, 226 (1866), 348,
1014.
Ellis v. Chicago, M. & St. P. Ry.
Co., 120 Wis. 645 (1904),
1044.
Ellis v. Houston, E. & W. Tex.
Ry. Co., 30 Tex. Civ. App.
172 (1902), 885.
Ellison v. Adams Express Co., 245
Ill. 410 (1910), 1020.
Elsworth v. Chicago, B. & Q. Ry.
Co., 95 Iowa, 98 (1895), 866,
887, 889.
El Paso Electric Ry. Co. v. Al-
derete, 36 Tex. Civ. App. 142
(1904), 557, 633.
Elvira Harbeck, The, 2 Blatchf.
336 (1851), 875.
Elwell v. Skiddy, 77 N. Y. 282
(1879), 1269.
Emerson v. Babcock, 66 Ia. 257
(1885), 71.
Emerson v. Boston & M. R. R.
Co., 75 N. H. 427 (1910),
1298.
Emerson v. McNeil, 84 Ark. 552
(1907), 484.
Wallace, 68 Pa. St. 302
(1871), 901, 905, 906, 909,
921, 949, 952.
Employers' Liability Cases, The,
207 U. S. 463 (1908), 1419.
Enfield Toll Bridge Co. v. Hart-
ford & N. H. R. R. Co., 17
Conn. 40 (1845), 53.
Equitable Securities Co. v. Mont-
rose & D. Canal Co., 79 Pac.
747 (Col., 1905), 378.
Erie v. Erie Gas & M. Co., 78
Kans. 348 (1908), 1158, 1164,
1197.
Erie Ry. Co. v. Littell, 63 C. C. A.
44 (1904), 889.
Erie Ry. Co. v. Lockwood, 28
Ohio St. 358 (1876), 1009,
1021.
Erie Ry. Co. v. Wilcox, 84 Ill.
239 (1870), 990.
Erie & North-East R. R. Co. v.
Casey, 26 Pa. St. 287 (1856),
212, 305.
Erie & P. Ry. Co. v. Douthet, 88
Pa. St. 245 (1878), 1364.
Ernst & Co. v. New Orleans
Waterworks Co., 39 La. Ann.
550 (1887), 458, 459.
[ ciii]
TABLE OF CASES CITED
[References are to sections]
Eureka Basin, Matter of, 96 N. Y. Evershed v. London & N. W. Ry.
Co., L. R. 2 Q. B. 254 (1877),
42 (1884), 103.
Eureka Springs Ry. Co. v. Tim-
mons, 51 Ark. 459 (1888),
740.
Evans v. Boston Heating Co., 157
Mass. 37 (1892), 115.
Evans v. Fitchburg R. R. Co., 111
Mass. 142 (1872), 256, 989.
Evans v. Hughes County, 3 So.
Dak. 580 (1893), 52.
Evans v. Memphis & C. R. R.
Co., 56 Ala. 246 (1876), 873.
Evans v. Rudy, 34 Ark. 383
(1879), 771.
Evans v. Western Union Tele-
graph Co., 56 S. W. 609
(1900), 765, 1345.
Evansville & H. Traction Co. v.
Henderson Bridge Co., 134
Fed. 973 (1904), 53, 126, 699.
Evansville & R. R. R. Co. v.
Barnes, 137 Ind. 306 (1893),
207, 208, 762, 783.
Evansville & R. R. R. Co. v.
Maddux, 134 Ind. 571 (1893),
783.
Evansville & T. H. R. R. Co. v.
Keith, 8 Ind. App. 57 (1893),
409, 724, 733.
Evansville & T. H. R. R. Co. v.
Wilson, 20 Ind. App. 5
(1898), 870.
Everett v. Chicago, R. I. & P. Ry.
Co., 69 Iowa, 15 (1886), 873.
Everett v. Norfolk & S. R. R. Co.,
138 N. C. 68 (1905), 1020,
1022.
Everett v. Oregon S. L. & U. N.
Ry. Co., 9 Utah, 340 (1893),
764.
Evergreen Cemetery Assn. V.
Beecher, 53 Conn. 551 (1885),
69, 430.
1293.
Evershed v. London & N. W. Ry.
Co., L. R. 3 App. Cas. 1029
(1878), 1316, 1328.
Evershed v. Railway Co., 3 Q. B.
Div. 135 (1878), 1287, 1328.
Ewald v. Chicago & N. W. Ry.
Co., 70 Wis. 420 (1888), 783.
Ewart v. Street, 2 Bailey (S. C.),
157 (1831), 920.
Exchange & Building Co. v.
Roanoke & Water Co., 90
Va. 83 (1893), 1244, 1245.
Ex parte, see the particular
party by name.
Express Cases, The, 117 U. S. 1
(1886), 474, 477, 690, 776.
Express Co. v. Caldwell, 21 Wall.
264 (1874), 1023, 1024, 1026.
Express Co. v. Jackson, 92 Tenn.
326 (1893), 920.
Express Co. v. Kountz, 8 Wall.
342 (1870), 905, 911, 920.
Extinguisher Co. v. Railroad Co.,
137 N. C. 278 (1904), 917;
921.
Exton v. Central Ry. Co., 63 N.
J. L. 356 (1899), 942.
F
Faber v. Chicago Gt. Western
Ry. Co., 62 Minn. 433
(1895), 878.
Fahey v. Northern Transportation
Co., 15 Wis. 129 (1862), 905.
Fairchance Window Glass Co. v.
Star Gas Co. (Pa. Co. Ct.),
66 Leg. Intelligencer, 409,
544 (1909), 653, 688.
Fairfax v. New York Central & H.
R. R. R. Co., 73 N. Y. 516
(1874), 875, 907.
[ civ ]
TABLE OF CASES CITED
[References are to sections]
Fairford Lumber Co. v. Tom-
bigbee Valley R. R. Co.
(Ala.), 51 So. 770 (1910),
1072.
Falk v. New York, S. & W. R. R.
Co., 56 N. J. L. 380 (1894),
1044.
Fallbrook Irrigation District v.
Bradley, 164 U.
164 U. S. 112
(1896), 64, 93, 242.
Fallsburg Power & Mfg. Co. v.
Alexander, 101 Va. 98 (1903),
60, 95, 113, 114, 243.
Falmouth, Town of, v. Falmouth
Water Co., 180 Mass. 325
(1902), 1083.
Faucher v. Wilson, 68 N. H. 338
(1895), 169, 170, 230, 236,
239, 968, 988.
Faulkner v. Wright, Rice (Law),
107 (1838), 172.
Faust v. South Carolina R. R.
Co., 8 S. C. 118 (1877), 1046.
Favor v. Philbrick, 5 N. H. 358
(1831), 915.
Fay v. Pacific Improvement Co.,
93 Cal. 253 (1892), 205, 751,
770.
Fay, Petitioner, 15 Pick. 243
(1834), 52.
Fay v. Steamer New World, 1
Cal. 348 (1850), 255, 970.
Falvery v. Georgia R. R. Co., 76 Feary v. Metropolitan St. Ry.
Ga. 597 (1886), 1033.
Farber v. Missouri Pacific Ry.
Co., 116 Mo. 81 (1893), 430.
Fargo v. Ledger Standard Co., 59
Ind. 496 (1877), 213.
Farley v. Cincinnati, H. & D. R.
R. Co., 108 Fed. 14 (1901),
395.
Farley v. Lavary, 107 Ky. 523
(1900), 169, 209, 213, 230,
272, 511, 963.
Farmers' & M. Bank v. Cham-
plain Tr. Co., 23 Vt. 186
(1851), 255, 743, 1002.
Farmers' H. L. C. & Ry. Co. v.
Southworth, 13 Colo. 111
(1889), 852.
Farmers' Loan & T. Co. v. Hen-
ning, 8 Fed. Cas. 4,666
(1878), 211, 305.
Farmers' Loan & T. Co. v. North-
ern Pac. Ry. Co., 112 Fed.
829 (1902), 592.
Farnsworth v. Groot, 6 Cow. 698
839.
Farrant v. Barnes, 11 C. B. (N.
S.) 553 (1862), 621.
Co., 162 Mo. 75 (1901),
966.
Feaver v. Montreal Telegraph
Co., 23 Upp. Can. C. P. 150
(1873), 348.
Feige v. Michigan Central R. R.
Co., 62 Mich. 1 (1886), 1002.
Feinberg v. Delaware, L. & W.
R. R. Co., 52 N. J. L. 451
(1890), 772, 989.
Fell v. Knight, 8 M. & W. 269
(1841), 431, 442, 843, 846.
Fellows v. Los Angeles, 151 Cal.
52 (1907), 297, 302, 305.
Fellows v. The Powell, 16 La.
Ann. 316 (1851), 747.
Felton v. Chicago, R. I. & P. R.
R. Co., 69 Iowa, 577 (1886),
942.
Fenner v. Buffalo & S. L. R. R.
Co., 44 N. Y. 505 (1871),
1031, 1037, 1038.
Ferguson v. Brent, 12 Md. 9
(1857), 985.
Ferguson v. Metropolitan Gas
Co., 37 How. Pr. 189 (1868),
380, 406, 824, 883.
[cv]
TABLE OF CASES CITED
[References are to sections]
Ferguson v. Michigan Central R.
R. Co., 98 Mich. 533 (1894),
440.
Ferguson v. Missouri Pacific Ry.
Co., 144 Mo. App. 262
(1910), 889.
Ferris v. Carson Water Co., 16
Nev. 44 (1881), 350.
Ferry Companies v. White, 99
Tenn. 256 (1897), 942.
Fewings v. Mendenhall, 83 Minn.
237 (1903), 667.
Fewings v. Mendenhall, 88 Minn.
336 (1903), 669, 944.
Fick v. Chicago & N. W. Ry. Co.,
68 Wis. 469 (1887), 939.
Fifth Ave. Coach Co. v. New
York, 126 N. Y. App. Div.
657 (1908), 503.
Fillebrown v. Grand Trunk Ry.
Co., 55 Me. 462 (1867),
1002.
Finkeldey v. Omnibus Cable Co.,
114 Cal. 28 (1896), 736.
First Nat'l Bk. v. Hendrie, 49
Iowa, 402 (1878), 811.
First Nat'l Bk. v. Marietta & C.
R. R. Co., 20 Ohio St. 259
(1870), 875.
First Nat'l Bk. v. Northern R. R.
Co., 58 N. H. 203 (1877),
1045.
Fish v. Chapman, 2 Ga. 349
(1847), 160, 162, 239, 252,
661, 1001.
Fish v. Clark, 49 N. Y. 122
(1872), 166, 228.
Fisher v. Boston & Maine R. R.
Co., 99 Me. 338 (1904), 518,
1033.
Fisher v. Clisbee, 12 Ill. 344
(1851), 771, 843.
Fisher v. Southern Pacific Co., 89
Cal. 399 (1891), 978.
Fisher v. West Virginia Co., 42
W. Va. 183 (1896), 632, 882,
933.
Fitch v. Newberry, 1 Doug. 1
(1843), 431, 522.
Fitch v. Seymour Water Co., 139
Ind. 214 (1894), 350.
Fitch v. Western Union Tele-
graph Co. (Mo. App.), 130
S. W. 44 (1910), 1041.
Fitchburg R. R. Co. v. Gage, 12
Gray (Mass.), 393 (1859),
685, 1238, 1282, 1287, 1328.
Fitchburg & W. R. R. Co. v.
Hanna, 6 Gray (Mass.), 539
(1856), 393, 724, 726, 727.
Fitzgerald v. Adams Express Co.,
24 Ind. 447 (1865), 255, 413.
Fitzgerald v. Grand Trunk R.
R. Co., 63 Vt. 169 (1890),
681, 1290, 1297, 1299, 1312,
1322.
Fitzgerald v. Grand Trunk Ry.
Co., 4 Ont. App. 601 (1880),
1002.
Fitzgibbons v. Chicago & N. W.
R. R. Co., 108 Ia. 614 (1889),
757.
Fitzmartin v. New York City Ry.
Co., 51 N. Y. Misc. 36
(1906), 347.
Fitzmaurice v. New York, N. H.
& H. R. R. Co., 192 Mass.
159 (1906), 738.
Flannery v. Baltimore & O. R. R.
Co., 4 Mackey, 111 (1885),
942.
Flannery v. Hastings, 15 Austral.
L. T. 1 (1893), 1261.
Flautt v. Lashley, 36 La. Ann. 106
(1884), 236, 237, 241, 968.
Fleischner v. Pacific Postal Tele-
graph Cable Co. (C. C.), 55
Fed. 738 (1893), 657.
[ cvi]
TABLE OF CASES CITED
[References are to sections]
Fleming v. Kansas City Suburban
Belt Ry. Co., 89 Mo. App.
129 (1901), 130, 177.
Fleming v. Montgomery Light
Co., 100 Ala. 657 (1892),
346.
Flinn v. Philadelphia, W. & B. R.
R. Co., 1 Houst. (Del.) 469
(1857), 780, 1001, 1004, 1011.
Flint & Pere M. Ry. Co. v. Weir,
37 Mich. 111 (1877), 785, 875,
970.
Flint v. Boston & M. R. R. Co.,
73 N. H. 141 (1905), 813.
Flint v. Norwich & N. Y. Transp.
Co., 34 Conn. 554 (1868),
941, 942.
Flint v. Transportation Co., 6
Blatch. 158 (1868), 626.
Florence & C. C. Ry. Co. v. Jen-
sen (Colo.), 108 Pac. 974
(1910), 1047.
Florida, C. & P. R. R. Co. v.
State ex rel., 31 Fla. 482
(1893), 808, 811.
Florida Southern R. R. Co. v.
Hirst, 30 Fla. 1 (1892), 881,
978.
Florida Southern R. R. Co. v.
Katz, 23 Fla. 139 (1887), 872.
Fluker v. Georgia R. R. & Bank-
ing Co., 81 Ga. 461 (1888),
500.
Fonsler v. Atlantic City, 70 N. J.
L. 125 (1903), 107, 175, 213.
Forbes v. Boston & Lowell R. R.
Co., 133 Mass. 154 (1882),
1045.
Ford v. Brooklyn Gaslight Co., 3.
Hun, 621 (1875), 434, 877.
Ford v. Cottesworth, L. R. 4 Q.
B. 127 (1868), 1050.
Ford v. East Louisiana Ry. Co.,
110 La. 414 (1903), 499, 697.
Fordyce & S. v. Manuel, 82 Tex.
527 (1891), 888.
Fordyce v. Jackson, 56 Ark. 594
(1892), 778.
Fordyce v. McFlynn, 56 Ark. 424
(1892), 256, 259, 758, 772,775.
Fordyce v. Nix, 58 Ark. 136
(1893), 800.
Forepaugh v. Delaware, L. & W.
R. R. Co., 128 Pa. St. 217
(1889), 259, 755, 772, 792,
969, 1015.
Forrester v. Southern Ry. Co.,
147 N. C. 553 (1908), 796.
Forsee v. Alabama Gt. So. R. R.
Co., 63 Miss. 66 (1885), 888.
Forsythe v. Walker, 9 Pa. St. 148
(1848), 522, 1033.
Fort Scott, W. & W. Ry. Co. v.
Sparks, 55 Kans. 288 (1895),
881.
Fort Smith & W. R. R. Co. v.
Chandler Cotton Oil Co.
(Okla.), 106 Pac. 10 (1909),
1072.
Fort Street Union Depot Co. v.
Morton, 83 Mich. 265 (1890),
125.
Fort Worth & D. C. Ry. Co. v.
Greathouse (Tex. Civ. App.),
17 S. W. 834 (1891), 989.
Fort Worth & D. C. Ry. Co. v.
Masterson, 95 Tex. 262
(1902), 602, 910, 1033.
Fort Worth & D. C. Ry. Co. v.
Riley (Tex. App.), 1 S. W.
446 (1886), 393, 727.
Fort Worth & D. C. Ry. Co. v.
State, 99 Tex. 34 (1905), 482.
Fort Worth & D. C. Ry. Co. v.
Whitehead, 6 Tex. Civ. App.
595 (1894), 1416.
Fortain v. Smith, 114 Cal. 494
(1896), 52.
[ cvii]
TABLE OF CASES CITED
[References are to sections]
Forward v. Pittard, 1 T. R. 27
(1785), 962.
Fosdick v. Schall, 99 U. S. 235
(1878), 352.
Foss v. Boston & Maine R. R.
Co., 66 N. H. 256 (1890),
635, 638.
Foster v. Gas Works of Philadel-
phia, 12 Phila.511(1878),622.
Foster G. Co. v. Kansas City So.
Ry. Co., 121 La. 1053 (1908),
1294.
Fowler v. City Waterworks Co.,
83 Ga. 219 (1889), 350.
Fowler v. Western Union Tele-
graph Co., 80 Me. 381 (1888),
980.
Fox v. Boston & Maine R. R. Co.,
148 Mass. 220 (1889), 916,
988.
Fox v. Philadelphia, 208 Pa. St.
127 (1904), 193.
Frank Bird Transfer Co. v. Krug,
30 Ind. App. 602 (1902), 169,
185.
Frank and Willie, The, 45 Fed.
488 (1891), 761.
Franke v. Paducah Water Supply
Co., 88 Ky. 467 (1889), 92,
417, 622, 826.
Franklin National Bank v. White-
head, 149 Ind. 560 (1898),
140.
Frazier & Co. v. Kansas City, St.
J. & B. Ry. Co., 48 Ia. 571
(1878), 394, 403, 868.
Frazier v. Western Telegraph Co.,
45 Greg. 414 (1904), 348.
Frederick v. Marquette, H. & O.
R. R. Co., 37 Mich. 342
(1877), 889.
Fredericks v. Northern Cent. R.
R. Co., 157 Pa. St. 103
(1893), 978.
Freedon v. New York Central &
H. R. R. R. Co., 24 App. Div.
306 (1897), 632.
Freeman v. Detroit, M. & M. R.
R. Co., 65 Mich. 577 (1887),
410.
Freeman v. Macon Gaslight &
Water Co., 126 Ga. 843
(1906), 92, 215, 216, 242,
451.
Freeport Water Co. v. Freeport,
180 U. S. 587 (1901), 1410,
1424.
Fremont, E. & M. V. R. R. Co. v.
Hagblad, 72 Neb. 773 (1904),
735.
Fremont, E. & M. V. R. R. Co. v.
Waters, 50 Neb. 592 (1897),
515.
French v. Star Union Transp. Co.,
134 Mass. 288 (1883), 1046.
Frey v. New York C. & H. R. R.
R. Co., 114 App. Div. 747
(1906), 840, 901, 903.
Frierson v. Frazier, 142 Ala. 232
(1904), 182, 241.
Frink v. Coe, 4 Green, 555 (1854),
184.
Frink v. Schroyer, 18 Ill. 416
(1857), 442.
Frothingham v. Bensen, 20 N. Y.
Misc. 132 (1897), 380.
Fry v. Louisville & N. Ry.
Co., 103 Ind. 265 (1885),
1333.
Fuller v. Azusa Irrigating Co., 138
Cal. 204 (1902), 448.
Fuller v. Dame, 18 Pick. 472
(1836), 811.
Fuller v. Naugatuck R. R. Co., 21
Conn. 557 (1852), 176.
Fulton v. Grand Trunk Ry. Co.,
17 Upp. Can. Q. B. 428
(1858), 407, 439, 440.
[ cviii]
TABLE OF CASES CITED
[References are to sections]
Funderburg v. Augusta & A. Ry.
Co., 81 S. C. 141 (1908), 439,
877.
Furgason v. Citizens' Street Ry.
Co., 16 Ind. App. 171 (1896),
635.
G
Gabbert v. Hackett, 135 Wis. 86
(1908), 785.
Gage v. Tirrell, 9 Allen, 299
(1864), 165, 963.
Gaines v. Union Transp. & Ins.
Co., 28 Ohio St. 418, 1002,
1004, 1007.
Gainesville Water Co. v. City of
Gainesville (Tex.), 128 S. W.
370 (1910), 651.
Gainey v. Telegraph Co., 136
N. C. 261 (1904), 278, 871.
Galena & C. U. R. R. Co. v.
Rae, 18 Ill. 488 (1857), 431,
854.
Galena & C. U. R. R. Co. v. Yar-
wood, 15 Ill. 468 (1854),
188.
Galesburg & G. E. R. R. Co.
v. West, 108 Ill. App. 504
(1903), 1316.
Gallagher v. Equitable Gaslight
Co., 141 Cal. 699 (1904), 460,
1317.
Gallagher v. Gt. Western Ry.
Co., 1 R. 8 C. L. 326 (1874),
1005.
Galloway v. Chicago, etc., R. Co.,
87 Iowa, 458 (1893), 369.
Galloway v. Huges, 1 Bailey, 553
(1830), 1039, 1042.
Galt v. Adams Express Co., Mac-
Arthur and M. 124 (1879),
178, 776, 1012, 1022.
Galveston C. R. R. Co. v. Hewitt,
67 Tex. 473 (1887), 756.
Galveston, H. & H. R. R. v. Alli-
son, 59 Tex. 193 (1883), 905,
921.
Galveston, H. & S. A. Ry. Co. v.
Ball, 80 Tex. 602 (1891),
1020.
Galveston, H. & S. A. Ry. Co. v.
Jones (Tex. Civ. App.), 123
S. W. 737 (1910), 1042.
Galveston, H. & S. A. Ry. Co. v.
Matzdorf, 102 Tex. 42 (1908),
371.
Galveston, H. & S. A. Ry. Co. v.
Morris, 94 Tex. 505 (1901),
800.
Galveston, H. & S. A. Ry. Co. v.
Schmidt (Tex. Civ. App.), 25
S. W. 452 (1894), 442, 443.
Galveston, H. & S. A. Ry. Co. v.
Tuckett (Tex. Civ. App.), 25
S. W. 150 (1894), 904.
Gamble-Robinson Commission
Co. v. Chicago & N. W. Ry.
Co., 168 Fed. 161 (1909),
435, 552, 564, 1341.
Gardner v. New Haven & N. Co.,
51 Conn. 143 (1883), 738.
Gardner v. Providence Telephone
Co., 23 R. I. 312 (1901), 136,
625, 826, 884, 1240, 1346.
Gardner v. Southern R. R. Co.,
127 N. C. 293 (1900), 1002,
1005.
Garner v. St. Louis, I. M. & S.
Ry. Co., 79 Ark. 353 (1906),
727, 888.
Garrett v. Western Union Tel.
Co., 83 Iowa, 257 (1891),
1014.
Garrison Co., W. B., v. Southern
Ry. Co., 150 N. C. 575
(1909), 399.
Garrison v. United Ry. & E. Co.,
97 Md. 347 (1903), 447, 1259.
[ cix]
TABLE OF CASES CITED
[References are to sections]
Garton v. Bristol & E. R. R. Co.,
1 Nev. & Mac. 218 (1856),
1331.
Gaslight Co. v. Cannon Brewery
Co., 1 K. B. 593 (1903), 457.
Gaslight Co. v. Colliday, 25 Md.
1 (1866), 111, 353, 451, 453,
456.
Gaslight Co. v. Zanesville, 47 Oh.
St. 35 (1889), 302.
Gas Co. v. Lowe & Butler, 52 W.
Va. 662 (1901), 274.
Gassenheimer v. District, 26 D. C.
App. Cas. 557 (1906), 187.
Gastenhofer v. Clair, 10 Daly,
265 (N. Y., 1881), 725.
Gast v. Gooding, 1 Ohio Dec. 315
(1849), 964, 965.
Gates v. Bekins, 44 Wash. 422
(1906), 169, 170, 230, 236.
Gates v. Quincy, O. & K. C. R.
R. Co., 125 Mo. App. 334
(1907), 886.
Gates v. Western Union Tel. Co.,
151 N. C. 497 (1909), 1041.
Gay's Gold, 13 Wall. 358 (1871),
592.
Gaylord v. Sanitary District, 204
Ill. 576 (1903), 65, 66, 95.
Geer v. Michigan Central Ry. Co.,
142 Mich. 511 (1905), 863,
872.
Geismer v. Lake Shore & M. S.
Ry. Co., 102 N. Y. 563
(1886), 667, 669.
George & Co. v. Louisville & N.
Ry. Co., 88 Miss. 306 (1906),
1045.
Georgetown v. Georgetown Wa-
ter, G. & E. P. Co., 121 S. W.
428 (1909), 981.
Georgia Pacific Ry. Co. v. Robin-
son, 68 Miss. 643 (1891), 395,
410, 736.
Georgia R. R. Co. v. Cole & Co.,
68 Ga. 623 (1882), 521, 522.
Georgia R. R. Co. v. Gann, 68 Ga.
350, 102.
Georgia R. R. Co. v. Greety, 5
Ga. App. 424 (1909), 1294.
Georgia R. R. Co. v. Johnson, 113
Ga. 589 (1901), 876.
Georgia R. R. Co. v. Richmond,
98 Ga. 495 (1896), 372,
939.
Georgia R. R. Co. v. Smith, 70
Ga. 694 (1883), 1409.
Georgia R. R. Co. v. Smith, 128
U. S. 174 (1888), 1411, 1421,
1422.
Georgia Ry. & El. Co. v. Baker,
125 Ga. 562 (1906), 885.
Georgia So. & F. Ry. Co. v. As-
more, 88 Ga. 529 (1891), 447,
1259.
Georgia So. & F. Ry. Co. v.
Johnson, 121 Ga. 231 (1904),
1021.
Georgia So. & F. Ry. Co. v.
Marchman, 121 Ga. 235
(1904), 399, 732, 734.
Getchell v. Benton, 30 Neb. 870
(1890), 56, 65, 851.
Ghormley v. Dinsmore, 19 Jones
& S. 196 (1885), 1026.
Gibbon v. Paynton, 4 Burr. 2298
(1769), 623, 737, 990, 1001.
Gibbons v. Farwell, 63 Mich. 344
(1886), 1046.
Gibbs v. Consolidated Gas Co.,
130 U. S. 396 (1889), 111,
243, 686, 694.
Gibson v. Culver, 17 Wend. 305
(1837), 1039.
Gibson v. Mason, 5 Nev. 283
(1869), 214, 217.
Gibson v. Silva, Rama-Nathan,
105 (1848), 236,
[ cx]
TABLE OF CASES CITED
[References are to sections]
Giffin v. South West Pa. Pipe
Lines, 172 Pa. St. 580 (1896),
59.
Gilbert v. Duluth General Elec-
tric Co., 93 Minn. 99 (1904),
983.
Gilbert v. Hoffman, 66 Iowa, 205
(1885), 602, 936, 947.
Giles v. Fauntleroy, 13 Md. 126
(1858), 1034.
Gillenwater v. Madison & Ind. R.
R. Co., 5 Ind. 339 (1854),785.
Gillespie v. Brooklyn Heights R.
R. Co., 178 N. Y. 347 (1904),
935.
Gilliland & G. v. South Ry. Co.,
85 S. C. 26 (1910), 1011.
Gillingham v. Ohio River R. R.,
35 W. Va. 588 (1891), 167,
183, 239, 646, 661, 938, 978.
Gillis v. Pennsylvania R. R., 59
Pa. St. 129 (1868), 371, 946.
Gillis v. Western Union Telegraph
Co., 61 Vt. 461 (1889), 133,
984, 1014.
Gillshannon v. Stony Brook R. R.
Corp., 10 Cush. 228 (1852),
783.
Gilman v. Postal Telegraph Co.,
48 N. Y. Misc. 372 (1905),
108.
Gilmore v. Carman, 1 Sm. & M.
279 (1843), 172, 985.
Gilson v. Jackson Co. Horse Ry.
Co., 76 Mo. 282 (1882), 978.
Girard Life Ins. Co. v. Phila-
delphia, 12 Phila. 293 (1878),
456.
Girard Life Insurance Co. v.
Philadelphia, 88 Pa. St. 393
(1879), 452, 456.
Girard Storage Co. v. Southwark
Co., 105 Pa. St. 248 (1884),
232.
Gisbourn v. Hurst, 1 Salk. 249
(1710), 160, 162, 228.
Gist v. Telegraph Co., 45 S. C:
344 (1895), 607.
Given v. Western Union Tele-
graph Co., 24 Fed. 119
(1885), 874, 1041.
Glaessner V. Anheuser Busch
Brewing Assn., 100 Mo. 508
(1890), 226.
Glass v. Davis, 23 Gratt. 184
(1873), 293, 314.
Gleason v. Goodrich Transp. Co.,
32 Wis. 85 (1873), 741, 769,
875.
Gleason v. Waukesha County,
103 Wis. 225 (1899), 824.
Gleeson v. Virginia Midland R. R.
Co., 140 U. S. 435 (1889),
655, 777, 984.
Glenn v. Jackson, 93 Ala. 342
(1890), 1032.
Glenn v. Lake Erie & W. R. R.
Co., 165 Ind. 659 (1905), 964,
1044.
Glenn & Sons v. Southern Express
Co., 86 Tenn. 594 (1888),
1026.
Gloucester Water Supply Co. v.
Gloucester, 179 Mass. 365
(1901), 1083, 1101, 1103.
Glover v. Cape Girardeau & So.
Ry. Co., 95 Mo. App. 369
(1902), 905.
Godbout v. Union Depot Co., 79
Minn. 188 (1900), 483.
Goddard v. Grand Trunk Ry.
Co., 57 Me. 202 (1869), 935,
938.
Goddard v. Mallory, 52 Barb. 87
(1868), 906.
Godwin v. Carolina Tel. & Tel.
Co., 136 N. C. 158 (1904),
136, 606.
[ cxi ]
TABLE OF CASES CITED
[References are to sections]
Goebel v. Gross Point Water
Works, 126 Mich. 307 (1901),
1244.
Gold Hunter, The, 1 Blatchf. &
H. 300 (1832), 165.
Goldey v. Pennsylvania R. R.
Co., 30 Pa. St. 242 (1858),
659.
Goldsmith v. Holland Bldg. Co.,
182 Mo. 597 (1904), 193.
Goodbar v. Wabash Ry. Co., 53
Mo. App. 434 (1893), 393,
726.
Goodenow v. Travis, 3 Johns.
(N. Y.) 427 (1808), 620, 630.
Goodloe v. Memphis & C. R. R.
Co., 107 Ala. 233 (1894), 937.
Goodman v. Missouri, K. & T.
Ry. Co., 71 Mo. App. 460
(1897), 1020.
Goodman v. Oregon Ry. & Nav.
Co., 22 Oreg. 14 (1892), 414,
991.
Goodridge v. Union Pacific Ry.
Co., 73 Fed. 182 (1889),
1362.
Gordon & Ferguson v. Doran, 100
Minn. 343 (1907), 264, 459.
Gordon v. Grand St. & N. R. R.
Co., 40 Barb. 546 (1863), 402,
735.
Gordon v. Hutchinson, 1 W. & S.
285 (1841), 160, 162, 205,
228, 236, 272, 792, 968.
Gordon v. Manchester & L. R. R.
Co., 52 N. H. 596 (1873),
397, 663, 664, 799, 801, 803,
872, 904.
Gordon v. West End St. Ry., 175
Mass. 181 (1900), 736.
Gore v. Norwich Trans. Co., 2
Daly (N. Y.), 254 (1867), 769.
Gorman v. Southern Pacific Ry.
Co., 97 Cal. 1 (1892), 890.
Gorrell v. Greensboro Water Sup-
ply Co., 124 N. C. 328 (1899),
350.
Gott v. Dinsmore, 111 Mass. 45
(1872), 1003.
Gould v. Edison Electric Co., 29
N. Y. Misc. 241 (1899), 825,
1251, 1252, 1345.
}
Gould v. Hill, 2 Hill, 623 (1842),
985.
Gould v. Maricopa Canal Co., 8
Ariz. 429 (1904), 93, 242.
Goup v. Wabash St. L. & P. Ry.
Co., 56 Mich. 111 (1885),
969.
Grace v. Adams, 100 Mass. 505
(1868), 1003.
Graeff v. Philadelphia & R. R. R.
Co., 161 Pa. St. 230 (1894),
941, 943.
Graffam v. Boston & M. R. R.
Co., 67 Me. 234 (1877), 875.
Graham v. Manhattan Ry. Co.,
149 N. Y. 336 (1896), 978.
Graham v. McNeill, 20 Wash.
466 (1899), 864.
Graham v. Toronto, etc., R. Co.,
23 U. C. C. P. 541 (1874), 207.
Grahn v. International & G. N.
Ry. Co., 100 Tex. 27 (1906),
746.
Grande Ronde Electric Co. v.
Drake, 46 Oreg. 243 (1905),
95, 114, 243.
Grand Haven v. Grand Haven
Water Works, 119 Mich. 652
(1899), 1166.
Grand Junction Water Co. v.
City of Grand Junction, 14
Colo. App. 424, 60 Pac. 196
(1900), 981.
Grand Rapids & I. R. R. Co. v.
Diether, 10 Ind. App. 206
(1894), 433, 442, 518.
[ cxii]
TABLE OF CASES CITED
[References are to sections]
Grand Tower M. & Transp. Co.
v. Ullman, 89 Ill. 244 (1878),
393, 724, 727.
Grand Trunk Ry. Co. v. Stevens,
95 U. S. 655 (1877), 1016.
Grant v. Norway, 10 C. B. 665
(1851), 747.
Grant v. Raleigh & Gaston R. R.
Co., 108 N. C. 462 (1891),
777.
Gratiot St. W. Co. v. Missouri, K.
& T. Ry. Co., 124 Mo. App.
545 (1907), 442.
Graves v. Adams Express Co.,
176 Mass. 280 (1900), 1003.
Graves v. Hartford & N. Y. Stb.
Co., 38 Conn. 143 (1871),
1037.
Graves v. Key City Gas Co., 83
Iowa, 714 (1891), 458.
Graves v. Lake Shore & M. S. R.
R. Co., 137 Mass. 33 (1884),
1011, 1019.
Graves v. Ticknor, 6 N. H. 537
(1834), 970.
Gray v. Cincinnati Southern Ry.
Co., 11 Fed. 683 (1882), 865,
881.
Gray v. Drepel Arms Hotel, 145
Ill. App. 604 (1909), 366.
Gray v. Jackson, 51 N. H. 9
(1871), 1010.
Gray v. Missouri River Packet
Co., 64 Mo. 47 (1876), 971.
Gray v. Wabash R. R. Co., 119
Mo. App. 144 (1906), 656.
Gray v. Western Union Telegraph
Co., 87 Ga. 350 (1891), 605,
607, 609, 610.
Great Northern Ry. Co. v. Harri-
son, 10 Exch. Rep. 376
(1854), 623, 738.
Great Northern Ry. Co. v. Shep-
herd, 8 Exch. 30 (1852), 876.
Great Western Ry. Co. v. Burns,
60 Ill. 284 (1871), 850, 914.
Great Western Ry. Co. v. Mc-
Carthy, 12 App. Cas. 182
(1887), 1021.
Green v. Ashland Water Co., 101
Wis. 258 (1892), 973, 981.
Green v. Chelsea W. W. Co., 70
L. T. 547 (1894), 981.
Green v. Louisville & R. R. Co.,
50 So. 937 (1909), 109.
Green v. Milwaukee & S. P. R. R.
Co., 38 Ia. 100 (1874), 409,
733.
Green v. Missouri, K. & T. Ry.
Co., 121 Mo. App. 720
(1906), 763.
Green v. Portland, 32 Me. 431
(1851), 226.
Green v. Telegraph Co., 136 N. C.
489 (1904), 133, 214, 244.
Green & B. R. Nav. Co. v.
Marshall, 48 Ind. 596 (1874),
906.
Green Bay Lumber Co. v. Chi-
cago, R. I. & P. Ry. Co., 102
Iowa, 292 (1897), 528, 530.
Green Wheeler Shoe Co. v. Chi-
cago, R. I. & P. Ry. Co., 130
Iowa, 123 (1906), 656, 918,
984.
Greene v. St. John & M. Ry. Co.,
22 N. B. (P. & T.) 252 (1882),
257.
Greenfield v. Detroit & M. Ry.
Co., 133 Mich. 557 (1903), 763.
Greenfield First National Bank v.
Marietta & C. R. R. Co., 20
Ohio St. 259 (1870), 769.
Greenwald v. Weir, 111 N. Y.
Supp. 235 (1908), 1020.
Gregory v. Chicago & N. W. Ry.
Co., 100 Iowa, 345 (1896),
626, 646, 866, 880.
8
[ cxiii]
TABLE OF CASES CITED
[References are to sections]
Grier v. St. Louis Merchants' B.
T. Ry. Co., 108 Mo. App.
565 (1904), 917.
Grieve v. Illinois Central R. R.
Co., 104 Iowa, 659 (1898),
1024.
Griffen v. Manice, 166 N. Y. 188
(1901), 193.
Griffin v. Goldsboro Water Co.,
122 N. C. 206 (1898), 92, 242,
280, 1091, 1094, 1287, 1288,
1290, 1300.
Griffith v. Cave, 22 Cal. 534
(1863), 862.
Griffith v. New England Tele-
phone Co., 72 Vt. 441 (1900),
1051.
Griffith v. Texas & N. O. Ry. Co.
(Tex. Civ. App.), 116 S. W.
648 (1909), 408.
Grigsby v. Chappell, 5 Rich. L.
(S. C.) 443 (1852), 53, 771,
972.
Grimes v. Minneapolis, L. & M.
Ry. Co., 37 Minn. 6 (1887),
1364.
Grimes v. Pennsylvania Ry. Co.,
36 Fed. 72 (1888), 398, 873.
Grindle v. Eastern Exp. Co., 67
Me. 317 (1877), 901.
Grinnell v. Western Union Tele-
graph Co., 113 Mass. 299
(1873), 980.
Grismer v. Lake Shore & M. S.
Ry. Co., 102 N. Y. 563
(1886), 912.
Griswold, Adm., v. New York &
N. E. R. R. Co., 53 Conn.
371 (1885), 498, 872.
Griswold v. Chicago & N. W. Ry.
Co., 64 Wis. 652 (1885), 372.
Griswold v. Illinois Central Ry.
Co., 90 Iowa, 265 (1894),
1008.
Griswold v. New York & N. E.
R. R. Co., 53 Conn. 371
(1885), 746, 786, 1015, 1018.
Griswold v. Webb, 16 R. I. 649
(1889), 473.
Grocery Co. v. Railroad Co., 136
N. C. 396 (1904), 407, 901,
990.
Grogan & Merz v. Adams Ex-
press Co., 114 Pa. St. 523
(1886), 178, 776, 1022.
Grogan v. Brooklyn Heights R.
R. Co., 97 App. Div. 413
(1904), 945.
Grosvenor v. New York Central
R. R. Co., 39 N. Y. 34
(1868), 400, 729, 734.
Guardian Trust Co. v. Fisher, 200
U. S. 57 (1906), 350.
Guinn v. W. St. L. & Pac. Ry.
Co., 20 Mo. App. 453 (1886),
599.
Gulf & C. R. R. Co. v. Fuqua, 84
Miss. 490 (1904), 1037.
Gulf & Interstate Ry. Co. v.
Texas & N. O. Ry. Co., 93
Tex. 482 (1900), 519.
Gulf, C. & S. F. Ry. Co. v. Baird,
75 Tex. 256 (1889), 513.
Gulf, C. & S. F. Ry. Co. v. Bunn,
41 Tex. Civ. App. 503 (1908),
440.
Gulf, C. & S. F. Ry. Co. v. Camp-
bell, 76 Tex. 174 (1890),
764.
Gulf, C. & S. F. Ry. Co. v. Cole,
8 Tex. Civ. App. 635 (1894),
780.
Gulf, C. & S. F. Ry. Co. v. Comp-
ton (Tex. Civ. App.), 38 S.
W. 220 (1896), 727.
Gulf, C. & S. F. Ry. Co. v. Fort
Grain Co. (Tex. Civ. App.),
72 S. W. 419 (1903), 1415.
[ cxiv]
TABLE OF CASES CITED
[References are to sections]
Gulf, C. & S. F. Ry. Co. v. Geer, 5
Tex. Civ. App. 349 (1893),
412, 742.
Gulf, C. & S. F. Ry. Co. v. Heffey,
158 U. S. 98 (1895), 1419.
Gulf, C. & S. F. Ry. Co. v. Hodge
(Tex. Civ. App.), 30 S. W.
829 (1895), 914.
Gulf, C. & S. F. Ry. Co. v. Hume,
6 Tex. Civ. App. 653, 914.
Gulf, C. & S. F. Ry. Co. v. Levi,
76 Tex. 337 (1889), 667, 669,
987.
Gulf, C. & S. F. Ry. Co. v. Levy,
59 Tex. 542 (1883), 599.
Gulf, C. & S. F. Ry. Co. v. Lone
Star Co., 26 Tex. Civ. App.
531 (1901), 529.
Gulf, C. & S. F. Ry. Co. v. Mc-
Aulay, 26 S. W. 475 (1894),
842, 914.
Gulf, C. & S. F. Ry. Co. v. Mc-
Gown, 65 Tex. 640 (1886),
785, 786, 1018.
Gulf, C. & S. F. Ry. Co. v. Miami
S. S. Co., 86 Fed. 407 (1898),
435, 488, 523, 527, 534,
682.
Gulf, C. & S. F. Ry. Co. v. Moody
(Tex. Civ. App.), 30 S. W.
574 (1895), 862.
Gulf, C. & S. F. Ry. Co. v. Nel-
son, 4 Tex. Civ. App. 345
(1893), 1414.
Gulf, C. & S. F. Ry. Co. v. Porter,
25 Tex. Civ. App. 491 (1901),
904.
Gulf, C. & S. F. Ry. Co. v. Rail-
road Commission (Tex.), 116
S. W. 795 (1909), 1064, 1191,
1199, 1202, 1210.
Gulf, C. & S. F. Ry. Co. v.
Rather, 3 Tex. Civ. App. 72
(1893), 889.
Gulf, C. & S. F. Ry. Co. v. Robin-
son (Tex. Civ. App.), 72 S.
W. 71 (1903), 907.
Gulf, C. & S. F. Ry. Co. v. State,
72 Tex. 404 (1888), 694.
Gulf, C. & S. F. Ry. Co. v. State,
97 Tex. 274 (1904), 1415.
Gulf, C. & S. F. Ry. Co. v. State
(Tex. Civ. App.), 120 S. W.
1028 (1909), 531, 1408.
Gulf, C. & S. F. Ry. Co. v. Texas,
204 U. S. 403 (1907), 1415,
1416.
Gulf, C. & S. F. Ry. Co. v. Tra-
wick, 68 Tex. 314 (1887),
1024.
Gulf, C. & S. F. Ry. Co. v. Tra-
wick, 80 Tex. 270 (1891),
393, 727.
Gulf, C. & S. F. Ry. Co. v.
Vaughn (Tex. App.), 16 S.
W. 775 (1890), 1017.
Gulf, C. & S. F. Ry. Co. v. Wil-
son, 79 Tex. 371 (1891),
778.
Gulf, C. & S. F. Ry. Co. v.
Wright, 1 Tex. Civ. App. 402
(1892), 1006.
Gulf, T., S. F. Ry. Co. v. Coop-
wood (Tex. Civ. App.), 96
S. W. 102 (1906), 933.
Gulf, W. T. & P. Ry. Co. v.
Wittnebert, 101 Tex. 368
(1908), 414, 991.
Gurney v. Minneapolis Union
Elev. Co., 63 Minn. 70
(1895), 193.
Gustafson v. Hamm, 56 Minn.
334 (1894), 226.
Gwynn v. Citizens' Telephone
Co., 69 S. C. 434 (1904), 683,
685.
Gyle v. Joline, 120 N. Y. Supp.
761 (1910), 402.
[ cxv ]
TABLE OF CASES CITED
H
[References are to sections]
Haas v. Kansas City, F. S. & G.
R. R. Co., 81 Ga. 792 (1888),
911, 912.
Hadd v. United States Exp. Co.,
52 Vt. 335 (1880), 178, 513,
776.
Haff v. Adams, 6 Ariz. 395 (1899),
366, 751, 969.
Haggerty v. Flint & P. M. R. R.
Co., 59 Mich. 366 (1886),
889.
Hahl v. Laux (Tex. Civ. App.),
93 S. W. 1080 (1906), 227,
228.
Haines v. Chicago, St. P., M. &
O. Ry. Co., 29 Minn. 160
(1882), 876.
Hale v. Grand Trunk R. R. Co.,
60 Vt. 605 (1888), 367, 372.
Hale v. New Jersey Nav. Co., 15
Conn. 539 (1843), 165, 1001.
Halifax v. Local Board, 30 L. T.
(N. S.) 513 (1874), 701.
Hall v. Connecticut River Stb.
Co., 13 Conn. 319 (1839),
978.
Hall v. Decuir, 95 U. S. 485
(1877), 848, 1417.
Hall v. Murdock, 114 Mich. 233
(1897), 193.
Hall v. Pennsylvania R. R. Co.,
14 Phila. 414 (1880), 667,
669.
Hall v. Pike, 100 Mass. 495
(1868), 751, 969.
Hall v. Renfo, 3 Met. 51 (1860),
182, 241, 256, 989.
Hall v. Western Union Telegraph
Co., 51 So. 819 (1910), 142.
Halliday v. St. Louis, K. C. & N.
Ry. Co., 74 Mo. 159 (1881),
1017.
Halsted v. Postal Telegraph-Cable
Co., 193 N. Y. 295 (1908),
1014.
Ham v. Delaware & H. C. Co.,
142 Pa. St. 617 (1891), 341,
468, 886.
Ham v. McPherson, 6 Upp. Can.
Q. B. (O. S.) 360 (1871), 393,
726.
Hamburg-Am. Packet Co. v.
Gattman, 127 Ill. 598 (1889),
876.
Hamilton v. Texas & P. Ry. Co.,
64 Tex. 251 (1855), 372.
Hamilton City v. Hamilton Gas
L. & C. Co., 11 Ohio Dec.
513 (1901), 705, 1166.
Hammond v. North Eastern R.
R. Co., 6 S. C. 130 (1874),
777.
Hampton v. Pullman Car Co., 42
Mo. App. 134 (1890), 769.
Hams v. Stevens, 31 Vt. 79
(1858), 878.
Hancock v. Rand, 94 N. Y. 1
(1883), 365, 751.
Hanley v. Brooklyn Heights R.
R. Co., 110 App. Div. 429
(1905), 878.
Hanley v. Kansas City Ry. Co.,
187 U. S. 617, 1413.
Hanlon v. Central Ry. Co., 187
N. Y. 73, 635.
Hanna v. Nassau Electric R. R.
Co., 18 N. Y. App. Div. 137
(1897), 663, 803, 866.
Hannah v. People, 198 Ill. 77
(1902), 141, 232, 416, 708,
791.
Hannibal R. R. Co. v. Swift, 12
Wall. 262 (1870), 414, 768,
775, 876.
Hansen v. Flint & P. M. R. Co.,
73 Wis. 346 (1889), 511.
[ cxvi ]
TABLE OF CASES CITED
[References are to sections]
Hansen v. North Jersey St. Ry.
Co., 64 N. J. L. 686 (1900),
945.
Hansley v. Jamesville & W. R. R.
Co., 115 N. C. 602 (1894),
872, 1044.
Hansley v. Jamesville & W. R. R.
Co., 117 N. C. 565 (1895),
662, 664, 800, 904.
Harbison v. Knoxville Water Co.
(Tenn. Chan. App.), 53 S. W.
993 (1899), 431, 444, 624,
806, 846, 883.
Hardenberg v. St. Paul, M. & M.
Ry. Co., 39 Minn. 3 (1888),
800.
Hardin v. Fort Worth & D. C. R.
R. Co. (Tex. Civ. App.), 100
S. W. 995 (1907), 881.
Harding v. Goodlett, 3 Yerg.
(Tenn.) 41 (1832), 56, 65, 851.
Harding v. International Naviga-
tion Co., 12 Fed. 168 (1882),
522.
Hardware Co. v. Railroad Co.,
150 N. C. 703 (1909), 798,
835, 1433.
Hare v. London & Northwestern
Ry. Co., 3 Johns. & H. 80
(1861), 694.
Harkness v. Western Union Tele-
graph Co., 73 Iowa, 190
(1887), 348.
Harmon v. Columbia & G. R. R.
Co., 28 S. C. 401 (1887), 757.
Harmony v. Bingham, 1 Duer
(N. Y.), 209 (1852), 922.
Harp v. Choctaw, O. & G. Ry.
Co., 118 Fed. 169 (1902),
250, 665.
Harp v. Choctaw, O. & G. Ry.
Co., 125 Fed. 445 (1903),
399, 404, 415, 420, 813, 817,
1360.
Harp v. Southern Ry. Co., 119
Ga. 927 (1904), 878, 886.
Harriman, The, 9 Wall. 161
(1869), 922.
Harrington v. Lyles, 2 Nott &
McCord, 88 (1819), 166.
Harrington v. McShane, 2 Watts,
443 (1834), 172.
Harris v. Cockermouth & W. Ry.
Co., 1 C. B. (N. S.) 454,
1288, 1314.
Harris v. Howe, 74 Tex. 534
(1889), 1011.
Harris v. Northern Indiana R. R.
Co., 20 N. Y. 232 (1859), 772.
Harris v. Rand, 4 H. N. 259
(1827), 1266.
Harris v. Stevens, 31 Vt. 79
(1858), 431.
Harris v. Western Union Tele-
graph Co., 121 Ala. 519
(1889), 412, 1076.
Harrisburg, Appeal of, 107 Pa. St.
102 (1884), 456.
Harrison v. Midland Ry. Co., 62
L. J. Q. B. (N. S.) 225
(1893), 530.
Harrison v. Roy, 39 Miss. 396
(1860), 162, 228, 236, 239,
968.
Harrison Granite Co. v. Penn-
sylvania R. R. Co., 145
Mich. 712 (1906), 443, 1072.
Harrold v. Winona & St. P. Ry.
Co., 47 Minn. 17 (1891), 632.
Hart v. Atlanta Terminal Co., 128
Ga. 754 (1908), 489.
Hart v. Baxendale, 16 L. T. (N.
S.) 390 (1867), 413.
Hart v. Chicago & N. W. Ry. Co.,
69 Iowa, 485 (1886), 990.
Hart v. Pennsylvania R. R. Co.,
112 U. S. 331 (1884), 1019,
1020, 1021.
[ cxvii]
TABLE OF CASES CITED
[References are to sections]
Hart v. State, 100 Md. 595
(1905), 848.
Hartwell v. Northern Pac. Exp.
Co., 5 Dak. 463 (1889), 1001,
1011.
Hartzig v. Lehigh Val. R. R. Co.,
154 Pa. St. 364 (1893), 1044.
Harvey v. Deep River Logging
Co., 49 Oreg. 583 (1907), 208,
223.
Harvey v. Potter, 19 La. Ann.
264 (1867), 241.
Harvey v. Rose, 26 Ark. 3 (1870),
182, 241, 771, 969.
Harvey v. Terre Haute & I. R.
R. Co., 74 Mo. 538 (1881),
1019, 1021.
Haskell v. Boston Dist. Messen-
ger Co., 190 Mass. 189
(1906), 108.
Haslam v. Adams Express Co., 6
Bosw. 235 (1860), 1040.
Hasseltine v. Southern Ry. Co.,
75 S. C. 141 (1906), 602,
834.
Hastings Express Co. v. Chicago,
135 Ill. App. 268 (1907),
169, 213.
Hastings v. Pepper, 11 Pick. 41
(1838), 172.
Hatch v. Consumers' Co., 17
Idaho, 204 (1909), 824.
Hatch v. Minneapolis, St. P. &
S. S. M. Ry. Co., 15 N. D.
490 (1906), 1023.
Hatten v. Turnan, 123 Ky. 844
(1906), 237.
Haug v. Gt. Northern Ry. Co.,
8 N. D. 23 (1898), 933,
1044.
Haugen v. Albina Light & Water
Co., 21 Oreg. 411 (1891), 92,
212, 214, 215, 242, 273, 280,
281, 379, 405, 690, 797.
Hauk v. New York Central & H.
R. R. Co., 34 N. Y. App. Div.
434 (1898), 372.
Haurigan v. Chicago & N. W.
Ry. Co., 80 Neb. 139 (1908),
1294.
Haverford Electric Co. v. Hart,
13 Pa. Co. Ct. 369 (1891),
56.
Haverhill G. L. Co. v. Barker,
109 Fed. 694 (1901), 1409.
Haver v. Central of N. J. R. R.
Co., 62 N. J. L. 282 (1898),
938, 941.
Hawgood v. 1,310 Tons of Coal,
21 Fed. 681 (1884), 1050.
Hawkins v. Great Western R. R.
Co., 17 Mich. 57 (1868),
1011.
Hawthorn v. Hammond, 1 Car.
& K. 404 (1844), 106, 407.
Hayne v. Union St. Ry. Co., 189
Mass. 551 (1905), 958.
Haynie v. Baylor, 18 Tex. 498
(1857), 208, 228.
Hays v. Millar, 77 Pa. St. 238
(1874), 173, 774.
Hays v. Paul, 51 Pa. St. 134
(1865), 173, 774.
Hays v. Pennsylvania Co., 12
Fed. 309 (1882), 1286, 1289,
1290, 1305, 1322, 1342, 1343.
Hays v, Risher, 32 Pa. St. 169
(1858), 225.
Hays v. Turner, 23 Ia. 214
(1867), 1032.
Hazard v. Chicago, B. & Q. R. R.
Co., 1 Biss. 503 (1865), 763.
Hazard, etc., v. Illinois Central
R. R. Co., 67 Miss. 32
(1889), 747.
Hazel v. Chicago, M. & St. P.
Ry. Co., 82 Iowa, 477
(1891), 1007.
[ cxviii]
TABLE OF CASES CITED
[References are to sections]
Head v. Georgia Pacific Ry. Co.,
79 Ga. 358 (1887), 889.
Healey v. Gray, 68 Me. 489
(1878), 725.
Hedding v. Gallagher, 72 N. H.
377 (1903), 171, 474, 483,
489.
Heimann v. Western Union Tel-
egraph Co., 57 Wis. 562
(1883), 1025.
Heinlein v. Boston & P. R. R.
Co., 147 Mass. 136 (1888),
368, 402, 735.
Heirn v. McCaughan, 32 Miss.
17 (1856), 842.
Helena Power Transmission Co.
v. Spratt, 35 Mont. 108
(1907), 95, 114.
Helena Waterworks Co. v. Hel-
ena, 195 U. S. 383 (1904),
1422.
Hellams v. Western Union Tele-
graph Co., 70 S. C. 83
(1904), 278, 871.
Heller v. Chicago Gt. Northern
Ry. Co., 109 Mich. 53
(1896), 989.
Helliwell v. Grand Trunk Ry.
Co., 7 Fed. 68 (1881), 799,
834, 914.
Hellman v. Holladay, 1 Woolw.
365 (1868), 255.
Helphery v. Perrault, 12 Idaho,
451 (1906), 379.
Henderson v. Galveston, H. & S.
A. Ry. Co. (Tex. Civ. App.),
38 S. W. 1136 (1896), 849,
881.
Henderson v. Louisville & N.
R. R. Co., 123 U. S. 61
(1887), 769.
Hendrick v. Chicago & A. Ry.
Co., 136 Mo. 548 (1896),
1044.
Hennington v. Georgia, 163 U. S.
299 (1896), 599, 1418.
Henson v. Urbana & C. Sy. Ry.
Co., 75 Ill. App. 474 (1897),
939.
Herbert v. Portland R. R. Co.,
103 Me. 315 (1907), 784.
Herf & Frericks Chemical Co. v.
Lackawanna Line, 100 Mo.
App. 164 (1903), 1038.
Hergog v. Municipal Electric
Light Co., 89 N. Y. App.
Div. 569 (1904), 983.
Hermann et al. v. Goodrich, 21
Wis. 536 (1867), 1038.
Hermann v. St. Joseph Ry.,
Light, Heat & Power Co.
(Mo. App.), 129 S. W. 414
(1910), 754.
Herndon v. Chicago, R. I. & P.
R. R. Co., 218 U. S. 135
(1910), 1417..
Hernshem Bros. v.
Newport
News & M. V. Co., 18
Ky. Law Rep. 227 (1896),
918.
Herring v. Chesapeake & W.
R. R. Co., 101 Va. 778
(1903), 913, 917.
Herring v. Utley, 8 Jones' L. 270
(1860), 171.
Herron v. Western Union Tel.
Co., 90 Ia. 129 (1894), 1041.
Hervey v. Hart, 149 Ala. 604
(1906), 845.
Hett v. Boston & M. R. R.
Co., 69 N. H. 139 (1897),
1046.
Hewett v. Chicago, B. & Quincy
Ry. Co., 63 Iowa, 611
(1884), 842, 916.
Hewlett v. Western Union Tele-
graph Co., 28 Fed. 181
(1886), 436, 877.
[ cxix]
TABLE OF CASES CITED
[ References are to sections]
Hibbard v. New York & E. Ry.
Co., 15 N. Y. 455 (1857),
878, 886, 937.
Hickinbottom v. Delaware, L. &
W. R. R. Co., 15 N. Y. St.
Rep. 11 (1888), 395.
Hickox v. Naugatuck R. R. Co.,
31 Conn. 281 (1863), 724,
875.
Hide v. Proprietors of T. & M.
Navigation Co., 1 Esp. 36
(1793), 1001.
Hieronymus v. Bienville Water
Co., 131 Ala. 447 (1991),
431, 432, 433, 460.
Higgins v. Cherokee R. R. Co.,
73 Georgia, 149 (1884), 761,
762.
Higgins v. Hannibal & St. J. R. R.
Co., 36 Mo. 418 (1865), 784.
Higgins v. New Orleans, M. &
C. R. R. Co., 28 La. Ann.
133 (1876), 498, 782, 1015.
Higgins v. New York & H. R. R.
Co., 2 Bosw. 132 (1857),
882.
Hilliard v. Wilmington & W.
R. R. Co., 51 N. C. 343
(1859), 1036, 1038.
Hillman v. Georgia R. & Bank-
ing Co., 126 Ga. 814 (1906),
848.
Hilton v. Adams, 71 Me. 19
(1879), 979.
Hilton Lumber Co. v. Atlantic
C. L. Ry. Co., 136 N. C.
479 (1904), 1305, 1334.
Hinckley v. New York Central
& H. R. R. R. Co., 56 N. Y.
429 (1874), 521, 548.
Hinkle v. Southern Ry. Co., 126
N. C. 932 (1900), 1024.
Hinshaw v. Raleigh & A. L. R.
R. Co., 118 N. C. 1047
(1896), 1044.
Hinson v. Postal Tel. Cable Co.,
132 N. C. 460 (1903), 1041.
Hirsch v. Am. Dist. Telegraph
Co., 98 N. Y. Supp. 371
(1906), 108.
Hix v. Gardner, 2 Bulstrode
(Eng.), 195, 11.
Higley v. Gilmer, 3 Mont. 90 Hoadley v. Northern Transp.
(1878), 623, 738.
Hill v. Boston, H. T. & W. R. R.
Co., 144 Mass. 284 (1887),
1019.
Hill v. Georgia, C. & N. Ry. Co.,
43 S. C. 461 (1895), 1017.
Hill v. Louisville & N. R. R. Co.,
124 Ga. 243 (1905), 369, 372.
Hill v. Thompson, 18 Jones & S.
165 (1884), 825.
Hill v. Western Union Telegraph
Co., 85 Ga. 425 (1890), 1026.
Hill Mfg. Co. v. Boston & Lowell
R. R. Co., 104 Mass. 122
(1870), 511.
Hilliard v. Goold, 34 N. H. 230
(1856), 888.
Co., 115 Mass. 305 (1874),
917, 1001.
Hoar v. Me. Cent. R. R. Co., 70
Me. 65 (1879), 785.
Hobart Lee Tel. Co. v. Stone,
117 S. W. 604 (1909), 501.
Hockett v. State, 105 Ind. 250
(1885), 244, 279, 1407.
Hoddesdon Gas & Coke Co. v.
Haselwood, 6 Com. B. (N.
S.) 239 (1859), 31.
Hodges v. New Hanover Transit
Co., 107 N. C. 576 (1890),
395.
Hodgman v. West Midland Ry.
Co., 5 B. & S. 173 (1865),
256.
[ cxx]
TABLE OF CASES CITED
[References are to sections]
Hoehle v. Allegheny Heating Co.,
5 Pa. Sup. Ct. 21 (1897),
112, 982.
Hoffbauer v. O. & N. W. R. R.
Co., 52 Ia. 342 (1879), 447,
1259.
Hoffman v. Cumberland R. R.
Co., 85 Md. 391 (1897),
513.
Hoffman v. Denver & N. W.
R. R. Co., 52 Ia. 342 (1879),
432.
Hoffman H. & S. Co. v. St.
Louis, I. M. & S. Ry. Co.,
119 Mo. App. 495 (1906),
723,800.
Holland v. Chicago, R. I. & P.
Ry. Co., 139 Mo. App. 702
(1910), 409.
Holland v. Festiniog Ry. Co., 2
Nev. & Mac. 278 (1876),
1352.
Holland v.
v. Pack, Peck, 151
(1823), 334.
Hollister v. Nowlen, 19 Wend.
234 (1838), 172, 262, 767,
1002.
Home Telephone Co. v. Granby
& N. Telephone Co. (Mo.
App.), 126 S. W. 773 (1910),
1300.
Home Telephone Co. v. North
Manchester Telephone Co.
1
(Ind. App.), 92 N. E. 558
(1910), 526, 539, 693, 700.
Home Telephone & Telegraph
Co. v. Los Angeles, 155 Fed.
554 (1907), 1124, 1430.
Hone v. Presque Isle Water Co.,
104 Me. 217 (1908), 350.
Honeyman v. Oregon, etc., Ry.
Co., 13 Oreg. 352 (1886),
160.
Hood v. New York & N. H. R. R.
Co., 22 Conn. 1 (1852),
1033.
Hooker v. Vandewater, 4 Denio,
349 (1847), 694.
Hooper v. Chicago, M. & St. P.
R. R. Co., 38 Minn. 281
(1888), 1409.
Hooper v. Chicago, M. & St. P.
R. R. Co., 91 Iowa, 639
(1894), 1215.
Hollister v. State, 9 Idaho, 8 Hooper v. Chicago & N. W.
(1903), 95, 114.
Holly v. Atlanta St. Ry. Co.,
61 Ga. 215 (1878), 190,
943.
Holly v. Boston Gaslight Co., 8
Gray, 123 (1857), 982.
Holmes v. Moore, 17 L. C. R.
143 (1867), 970.
Holmes v. North Eastern Ry.
Co., L. R. 4 Ex. 254 (1869),
367, 372.
Holmes v. Union Teleg. & T.
Co., 16 N. Y. Supp. 563
(1891), 109.
Holstein v. Phillips, 146 N. C.
366 (1907), 240, 751, 968.
R. R. Co., 27 Wis. 81 (1870),
169, 490, 514, 515, 1033.
Hoover v. Pennsylvania R. R.
Co., 156 Pa. St. 220 (1893),
1077, 1299, 1305, 1333, 1336.
Hope Cotton Oil Co. v. Texas &
P. R. R. Co., 10 I. C. C.
Rep. 696 (1905), 1315.
Horner v. Chicago, M. & St. P.
Ry. Co., 38 Wis. 165 (1875),
811.
Horner v. Harvey, 3 N. Mex. 197
(1885), 365, 751.
Horton v. Norwalk Tramway
Co., 66 Conn. 272 (1895),
599.
[ cxxi ]
TABLE OF CASES CITED
[References are to sections]
Hosea v. M'Crory, 12 Ala. 349
(1847), 255.
Hoskins v. Northern Pac. Ry.
Co., 39 Mont. 394 (1909),
777.
Hot Springs v. Curry, 64 Ark.
152 (1897), 472.
Hot Springs Ry. Co. v. Deloney,
65 Ark. 177, 889.
Hotel Assn. v. Walters, 23 Neb.
280 (1888), 979.
Houck v. Southern Pac. Ry. Co.,
38 Fed. Rep. 226 (1888),
566, 848, 849, 881.
House v. Houston Waterworks
Co., 88 Tex. 233 (1895),
264, 350.
Houser v. Tully, 62 Pa. 92
(1869), 744.
Houston & T. C. Ry. Co. v.
Batchler, 37 Tex. Civ. App.
116 (1904), 946, 1044.
Houston & T. C. Ry. Co. v.
Buchanan, 42 Tex. Civ.
App. 620 (1906), 792, 804.
Houston & T. C. Ry. Co. v.
Burke, 55 Tex. 323 (1881),
1008.
Houston & T. C. Ry. Co. v.
Davis, 11 Tex. Civ. App.
24 (1895), 1414.
Houston & T. C. Ry. Co. v.
Ford, 53 Tex. 364 (1880),
889.
Houston & T. C. Ry. Co. v.
Goodyear, 28 Tex. Civ.
App. 206 (1902), 932.
Houston & T. C. Ry. Co. v.
Mayes, 201 U. S. 321 (1906),
650, 722, 798, 836, 1417,
1418, 1433.
Houston & T. C. Ry. Co. v. Mc-
Cullough, 22 Tex. Civ. App.
208 (1899), 777.
Houston & T. C. Ry. Co. v.
Phillio, 98 Tex. 18 (1902),
369, 372, 946.
Houston & T. C. Ry. Co. v.
Rust & D., 58 Tex. 98
(1882), 1282, 1297.
Houston & T. C. Ry. Co. v.
Smith, 63 Tex. 322 (1885),
850.
Houston & T. C. Ry. Co. v.
Storey, 149 Fed. 499 (1906),
1092, 1171.
Houston & T. C. Ry. Co. v.
Washington (Tex. Civ.
App.), 30 S. W. 719 (1895),
442.
Houston & T. C. Ry. Co. v.
White (Tex. Civ. App.,
1901), 61 S. W. 436, 889.
Houston & T. C. Ry. Co. v. Wil-
liams (Tex. Civ. App., 1895),
31 S. W. 556, 1414.
Houston, D. & N. Co. v. In-
surance Co., 89 Tex. 1
(1895), 1415.
Houston, E. & W. T. Ry. Co. v.
Campbell, 91 Tex. 551
(1898), 399, 439, 563, 835.
Houston, E. & W. T. Ry. Co. v.
Rogers, 16 Tex. Civ. App.
19 (1897), 949.
Houtz v. Union Pacific R. R.
Co., 33 Utah, 175 (1908),
1023, 1024.
Howe v. Orange, 70 N. J. Eq.
648 (1906), 456.
Howe Machine Co. v. Pease, 49
Vt. 477 (1877), 965.
Howell v. Jackson, 6 Car. & P.
(Eng.) 723 (1834), 630.
Howth v. Franklin, 20 Tex. 798
(1858), 234, 240, 965, 968.
Hoyt v. Chicago, B. & Q. R. R.
Co., 93 Ill. 601 (1879), 272.
[ cxxii]
TABLE OF CASES CITED
[References are to sections]
Hrebrik v. Carr, 29 Fed. Rep. Humphreys v. Reed, 6 Whart.
298 (1886), 402, 735.
Huba v. Schenectady Ry. Co.,
85 N. Y. App. Div. 199,
(1903), 440.
Hubbard & Co. v. Harnden Ex-
press Co., 10 R. I. 244
(1872), 666, 986.
Hudson v. Kansas Pacific Ry.
Co., 3 McCrary (U. S.), 249
(1882), 353.
Hudson v. Lynn & Boston R. R.
Co., 178 Mass. 64 (1901),
632, 634, 644, 866, 933,
934.
Hudson & Co. v. Northern Pa-
cific Ry. Co., 92 Iowa, 231
(1894), 1010, 1026.
Hudson River L. Co. v. Wheeler
C. & E. Co., 93 Fed. 374
(1899), 1042.
Hudson Trust & S. Inst. v. Carr-
Curran Paper Co., 58 N. J.
Eq. 59 (1899), 456.
Hudson Valley Ry. Co. v. Bos-
ton & Maine R. R. Co., 106
App. Div. 375 (1905), 529,
539.
Hudston v. Midland Ry. Co., L.
R. 4 Q. B. 366 (1869).
Huffman v. Marcy Mutual Tel-
ephone Co., 143 Ia. 590
(1909), 557, 625, 633, 642,
866, 879, 884.
Hughes v. Pennsylvania R. R.
Co., 202 Pa. St. 222 (1902),
1010, 1020.
Hulett v. Swift, 33 N. Y. 371
(1865), 965.
Hull v. Chicago, St. P., M. & O.
Ry. Co., 41 Minn. 510
(1889), 1007.
435 (1841), 166.
Hunt v. New York & E. R. R.
Co., 1 Hilton (N. Y. C. P.),
228 (1856), 1017.
Hunter v. Prinsep, 10 East
(Eng.), 378 (1808), 1265.
Huntley v. Dows, 55 Barb.
(N. Y.) 310 (1864), 1037.
Huntress, The, 2 Ware, 89
(1840), 229, 990.
Hurley v. Big Sandy & C. Ry.
Co., 125 S. W. 302 (1910),
1298.
Hurley v. Eddingfield, 156 Ind.
416 (1901), 6, 105, 213.
Hurst v. Gt. Western Ry. Co.,
19 C. B. (N. S.) 310 (1865),
904.
Husdpeth v. Hall, 111 Ga. 510
(1900), 52.
Huston v. Wabash Ry. Co., 63
Mo. App. 671 (1895), 831.
Hutchings v. Ladd, 16 Mich. 493
(1868), 518, 522, 1033.
Hutchinson v. Railroad Co., 140
N. C. 123 (1905), 872, 889.
Hutchinson v. United States Ex-
press Co., 63 W. Va. 128
(1907), 1039, 1040.
Huzzey v. Field, 2 C. M. & R.
432 (1835), 52.
Hyde v. Trent Nav. Co., 5 T. R.
389 (1793), 166, 1040.
Hyndman Water Co. v. Bor-
ough of Hyndman, 7 Pa.
Super. Ct. 191 (1898), 273,
281.
Hynds v. Wynn, 71 Iowa, 593
(1887), 910.
I
Humphreys v. Perry, 148 U. S. Idaho, The, 93 U. S. 57 (1876),
627 (1893), 876.
1047.
[ cxxiii]
TABLE OF CASES CITED
[References are to sections]
Idaho Independent Telephone Co.
v. Oregon Short Line R. R.
Co., 8 Idaho, 175 (1901), 497.
Illinois & St. L. R. R. Co. v. Peo-
ple, 19 Ill. App. 141 (1886),
415, 721.
Illinois Central Ry. Co. v. Allen,
28 Ky. Law. R. 108 (1905),
637.
Illinois Central Ry. Co. v. Ander-
son, 184 Ill. 294 (1900), 780,
1016.
Illinois Central Ry. Co. v. Ash-
mead, 58 Ill. 487 (1871), 666,
726, 838.
Illinois Central Ry. Co. v. Beebe,
174 Ill. 13 (1898), 1010, 1011.
Illinois Central Ry. Co. v. Brels-
ford, 13 Ill. App. 251 (1883),
989.
Illinois Central Ry. Co. v. Bundy,
97 Ill. App. 202 (1901), 408,
722, 831.
Illinois Central Ry. Co. v. Cobb,
48 Ill. 402 (1868), 1046.
Illinois Central Ry. Co. v. Cobb,
Christy & Co., 64 Ill. 128
(1872), 664, 666, 800, 901,
910.
Illinois Central Ry. Co. v. Cru-
dup, 63 Miss. 291 (1885), 777.
Illinois Central Ry. Co. v. Daven-
port, 177 Ill. 110 (1898),
763.
Illinois Central Ry. Co. v. Dun-
nigan (Miss.), 50 So. 443
(1909), 1306.
Illinois Central Ry. Co. v. Eblen,
71 S. W. 919 (1903), 772.
Illinois Central Ry. Co. v. Frank-
enberg, 54 Ill. 88 (1870), 160,
176, 431, 963, 1002, 1033.
Illinois Central Ry. Co. v. Gorti-
kov, 90 Miss. 787 (1907), 889.
Illinois Central Ry. Co. v. Griffin,
80 Fed. 278 (1897), 372.
Illinois Central Ry. Co. v. Hall,
58 Ill. 409 (1871), 256.
Illinois Central Ry. Co. v. Handy,
63 Miss. 609 (1886), 153, 769,
975.
Illinois Central Ry. Co. v. Horn-
berger, 77 Ill. 457 (1875), 592,
666, 726.
Illinois Central Ry. Co. v. Inter-
state Comm. Comm., 206
U. S. 441 (1907), 1163.
Illinois Central Ry. Co. v. Jack-
son, 117 Ky. L. Rep. 208
(1904), 889.
Illinois Central Ry. Co. v. Kerr,
68 Miss. 14 (1890), 513.
Illinois Central Ry. Co. v. Laloge,
113 Ky. 896 (1902), 944.
Illinois Central Ry. Co. v. Lou-
tham, 80 Ill. App. 579 (1898),
431, 866, 878.
Illinois Central Ry. Co. v. Mc-
Clennan, 54 Ill. 58 (1870),
592, 838, 910, 986.
Illinois Central Ry. Co. v. Mc-
Kendree, 203 U. S. 514
(1906), 593, 1419.
Illinois Central Ry. Co. v. Mea-
cham, 91 Tenn. 428 (1892),
762.
Illinois Central Ry. Co. v. Minor,
69 Miss. 710 (1892), 942.
Illinois Central Ry. Co. v. Mit-
chell, 68 Ill. 471 (1873),
1033.
Illinois Central Ry. Co. V.
O'Keefe, 168 Ill. 115 (1897),
395, 736, 760.
Illinois Central Ry. Co. v. Parks,
54 Ill. 294 (1870), 1048.
Illinois Central Ry. Co. v. Peo-
ple, 121 Ill. 304 (1887), 1377.
[ cxxiv ]
TABLE OF CASES CITED
[References are to sections]
Illinois Central Ry. Co. v. Phelps,
4 Ill. App. 238 (1879), 591.
Illinois Central Ry. Co. v. Por-
ter, 117 Tenn. 13 (1908), 777.
Illinois Central Ry. Co. v. Scruggs,
69 Miss. 418 (1891), 989,
1007.
Illinois Central Ry. Co. v. Seitz,
214 Ill. 350 (1905), 1234,
1295.
Illinois Central Ry. Co. v. Shee-
gog, 215 U. S. 308 (1909),
740.
Illinois Central Ry. Co. v. Smith,
85 Miss. 349 (1905), 637.
Illinois Central Ry. Co. v. Smy-
ser, 38 Ill. 354 (1865), 733.
Illinois Central Ry. Co. v. Trous-
tine, 64 Miss. 834 (1887),
393, 726.
Illinois Central Ry. Co. v. Whitte-
more, 43 Ill. 420 (1867), 431.
Ilwaco Ry. & Nav. Co. v. Oregon
Short Line Ry. Co., 6 C. C.
A. 495 (1893), 488, 527,
811.
Indiana Natural & Ill. Gas Co. v.
Anthony, 26 Ind. App. 307
(1900), 658, 826.
Indiana Natural & Ill. Gas Co. v.
Long, 27 Ind. App. 219
(1901), 982.
Indiana Natural & Ill. Gas Co. v.
State ex rel., 158 Ind. 516
(1901), 653, 1290.
Indiana Natural Gas & O. Co. v.
State ex rel. Armstrong, 162
Ind. 690 (1904), 852.
Indiana Natural Gas & O. Co. v.
State ex rel., 162 Ind. 690
(1904), 271, 653.
Indiana Pullman P. C. Co. v.
Taylor, 65 Ind. 153 (1879),
845.
Indiana Traction & Terminal Co.
v. Klentschy, 167 Ind. 598
(1907), 785.
Indianapolis v. Gas Co., 66 Ind.
396 (1879), 71.
Indianapolis v. Indianapolis Gas
Co., 35 Ch. Leg. News, 165
(1902), 317.
Imhoff v. Chicago & M. R. Co., 20 Indianapolis & C. R. R. Co. v.
Wis. 344 (1866), 1044.
Independence Mills Co. v. Bur-
lington, Cedar R. & N. Ry.
Co., 72 Ia. 535 (1887), 1043.
Independent School District v.
Le Mars City Water & Light
Co., 131 Iowa, 14 (1906), 273,
280.
Indian River Steamboat Co. v.
East Coast Transportation
Co., 28 Fla. 387 (1891), 102,
232, 485, 487, 811.
Indiana C. Ry. Co. v. Mundy, 21
Ind. 48 (1863), 786, 1018.
Indiana, I. & I. Ry. Co. v. Dore-
meyer, 20 Ind. App. 605
(1898), 594.
•
Cox, 29 Ind. 360 (1868),
1002.
Indianapolis & C. R. R. Co. v.
Rutherford, 29 Ind. 82
(1867), 795.
Indianapolis & St. Louis R. R.
Co. v. Juntgen, 10 Ill. App.
295 (1881), 667, 669, 912.
Indianapolis, Decatur, etc., R. R.
Co. v. Ervin, 118 Ill. 250
(1886), 1289.
Indianapolis P. & C. Ry. Co. v.
Anthony, 43 Ind. 183 (1873),
935.
Indianapolis Traction & T. Co. v.
Lawson, 143 Fed. 834 (1906),
785.
[ cxxv ]
TABLE OF CASES CITED
[References are to sections]
Indianapolis Traction & T. Co. v.
Romans, 40 Ind. App. 184
(1907), 784.
Indianapolis U. Ry. v. Dohn, 153
Ind. 10 (1899), 485, 489.
Industrial Siding Case, 140 N. C.
239 (1905), 404, 816, 819.
Ingalls v. Bills, 9 Met. 1 (1845),
977, 978.
Ingate v. Christie, 3 C. & K. 61
(1850), 164, 203, 227.
Inman & Co. v. St. L. S. W. Ry.
Co., 14 Tex. Civ. App. 39
(1896), 521, 537.
In re, see the particular thing
by name.
Insurance Co. v. Railroad Co.,
8 Baxt. 268 (1874), 517,
1033.
Insurance Co. v. Railroad Co.,
104 U. S. 146 (1881), 513.
International & G. N. Ry. Co. v.
Anderson (Tex. Civ. App.),
21 S. W. 691 (1893), 914.
International & G. N. Ry. Co. v.
Bergman (Tex. Civ. App.),
64 S. W. 999 (1901), 917.
International & G. N. Ry. Co. v.
Davis, 17 Tex. Civ. App. 340
(1897), 777.
International & G. N. Ry. Co. v.
Dwight & Co. (Tex. Civ.
App.), 100 S. W. 1011 (1907),
414, 991.
International & G. N. Ry. Co. v.
Gilmer, 18 Tex. Civ. App.
680 (1898), 635.
International & G. N. Ry. Co.
v. Goldstein, 2 Tex. Civ.
App. Cas. 274 (1884), 431,
885.
International & G. N. Ry. Co. v.
Harder, 36 Tex. Civ. App.
151 (1904), 901.
International & G. N. Ry. Co. v.
Hynes, 3 Tex. Civ. App. 20
(1893), 909, 915, 949.
International & G. N. Ry. Co. v.
Irvine, 64 Tex. 529 (1885),
763.
International & G. N. Ry. Co. v.
Lecus (Tex. Civ. App.), 23
S. W. 323 (1893), 914.
International & G. N. Ry. Co.
v. Railroad Commission of
Texas, 99 Tex. 332 (1905),
526.
International & G. N. Ry. Co. v.
Thorton, 3 Tex. Civ. App.
197 (1893), 740.
International & G. N. Ry. Co. v.
Tisdale, 74 Tex. 8 (1889),
668, 912.
International & G. N. Ry. Co. v.
Wilkes, 68 Tex. 617 (1887),
440.
International & G. N. Ry. Co. v.
Young (Tex. Civ. App.), 28
S. W. 819 (1894), 833, 922.
International Boom Co. v. Rainy
Lake River Boom Co., 97
Minn. 513 (1906), 73.
International Express Co. V.
Grand Trunk Ry., 81 Me. 92
(1888), 479.'
International Water Co. v. El
Paso (Tex. Civ. App.), 112
S. W. 816 (1908), 824.
Inter-Ocean Publishing Co. v.
Associated Press, 184 Ill. 438
(1900), 684.
Interstate Commerce Commission
v. Alabama Mid. Ry. Co., 69
Fed. 227 (1895), 1223.
Interstate Commerce Commission
v. Alabama Mid. Ry. Co.,
168 U. S. 144 (1897), 1204,
1222, 1377, 1380.
[ cxxvi ]
TABLE OF CASES CITED
[References are to sections]
Interstate Commerce Commission
v. Atchison, T. & S. F. Ry.
Co., 50 Fed. 295 (1892),
1222.
Interstate Commerce Commission
v. Baird, 194 U. S. 25 (1904),
707.
Interstate Commerce Commission
v. Baltimore & O. R. R.
Co. (C. C.), 43 Fed. 37,
1204.
Interstate Commerce Commission
v. Baltimore & O. R. R. Co.,
145 U. S. 263 (1892), 1204,
1302, 1304, 1353.
Interstate Commerce Commission
v. Bellaire, Z. & C. Ry.
Co., 77 Fed. 942 (1897),
1416.
Interstate Commerce Commission
v. Chesapeake & O. Ry. Co.,
128 Fed. 59 (1904), 1295,
1362.
Interstate Commerce Commission
v. Chicago & Alton R. R.
Co., 215 U. S. 479 (1910),
857.
Interstate Commerce Commission
v. Chicago, B. & Q. R. R.
Co., 186 U. S. 320 (1902),
491, 818.
Interstate Commerce Commission
v. Chicago Gt. Western R.
R. Co., 141 Fed. 1003 (1905),
1070, 1074, 1204, 1211, 1377,
1379.
Interstate Commerce Commission
v. Chicago Gt. Western Ry.
Co., 209 U. S. 108 (1908),
830, 1225, 1238, 1392.
Interstate Commerce Commission
v. Chicago, R. I. & P. Ry.
Co., 218 U. S. 88 (1910),
1226, 1384.
Interstate Commerce Commission
v. Cincinnati, N. O. & T. P.
R. R. Co., 167 U. S. 479
(1897), 1402, 1420.
Interstate Commerce Commission
v. Cincinnati, P. & V. R. R.
Co., 124 Fed. 624 (1903),
1377.
Interstate Commerce Commission
v. Clyde S. S. Co., 181 U. S.
291 (1901), 1222.
Interstate Commerce Commission
v. Delaware, L. & W. Ry. Co.,
64 Fed. 723 (1894), 1238,
1393.
Interstate Commerce Commission
v. Delaware, L. & W. R. R.
Co., 216 U. S. 531 (1910),
224, 538.
Interstate Commerce Commission
v. Detroit, Grand Haven &
Milwaukee R. R. Co., 167
U. S. 633 (1897), 1204, 1316,
1378.
Interstate Commerce Commission
v. East Tennessee, V. & G.
Ry. Co., 85 Fed. 107 (1898),
1372.
Interstate Commerce Commission
v. Illinois Central R. R. Co.,
215 U. S. 452 (1910), 837,
857.
Interstate Commerce Commission
v. Lake Shore & M. S. Ry.
Co., 134 Fed. 942 (1905),
1391.
Interstate Commerce Commission
v. Lehigh Valley Railroad
Co., 74 Fed. 784 (1897),
1208.
Interstate Commerce Commission
v. Louisville & Nashville R.
R. Co., 190 U. S. 273 (1903),
1204, 1377.
[ cxxvii ]
TABLE OF CASES CITED
[References are to sections]
Interstate Commerce Commission
v. Louisville & N. R. R. Co.,
73 Fed. 409 (1896), 1215,
1371.
Interstate Commerce Commission
v. Louisville & N. R. R. Co.,
118 Fed. 613 (1902), 1072,
1175, 1215, 1372, 1384.
Interstate Commerce Commission
v. Nashville, C. & St. L. Ry.
Co., 120 Fed. 934 (1903),
1372, 1377.
Interstate Commerce Commission
v. Northern Pacific Ry. Co.,
216 U. S. 538 (1910), 538.
Interstate Commerce Commission
v. Reichman, 145 Fed. 235
(1905), 1359.
Interstate Commerce Commission
v. Southern Ry. Co., 105
Fed. 703 (1900), 1222, 1377.
Interstate Commerce Commission
v. Southern Ry. Co., 117
Fed. 741 (1902), 1372, 1377.
Interstate Commerce Commission
v. Stickney, 215 U. S. 98
(1909), 1270.
Interstate Commerce Commission
v. Texas & Pacific Railroad
Co., 52 Fed. 187 (1892), 1312.
Interstate Commerce Commission
v. Western A. R. R. Co., 88
Fed. 186 (1898), 1209.
Interstate Comm. Comm. v. West-
ern & A. R. R. Co., 93 Fed.
38 (1899), 1371.
Interstate Consolidated St. Ry.
Co. v. Massachusetts, 207
U. S. 79 (1908), 1063, 1201,
1431.
Interstate Stockyards Co. V.
Indianapolis Ry. Co., 99
Fed. 472 (1900), 129, 256,
258, 815, 1043, 1414, 1415.
Ionnone v. New York, N. H. & H.
R. R. Co., 21 R. I. 452
(1899), 783.
Irvin v. Rusville Coöperative
Telephone Co., 161 Ind. 521
(1903), 452, 877.
Isaacson v. New York Central &
H. R. R. R. Co., 94 N. Y.
278 (1884), 907.
Isham v. Erie R. R. Co., 112 N. Y.
App. Div. 612 (1906), 1026,
1033.
Ives v. Smith et al., 8 N. Y. Supp.
46 (1889), 693.
Izlar v. Manchester & A. R. R.
Co., 57 S. C. 332 (1889), 369.
J
Jack v. Williams, 113 Fed. 823
(1902), 296.
Jackson, City of, v. Anderson
(Miss.), 51 So. 896 (1910),
824.
Jackson Architectural Iron Wks.
Co. v. Hurlbut, 158 N. Y. 34
(1899), 163, 169, 230, 239,
254, 414, 991.
Jackson Electric Ry., L. & P. Co.
v. Lowry, 79 Miss. 431
(1901), 410, 870.
Jackson v. Ellendale, 4 N. D. 478
(1894), 824.
Jackson v. Grand Ave. Ry. Co.,
118 Mo. 199 (1893), 189, 870,
1044.
Jackson v. Missouri P. Ry. Co.,
104 Mo. 448 (1891), 942.
Jackson v. Railway Co., 87 Mo.
422 (1885), 604.
Jackson v. Rogers, 2 Show, 327
(1683), 661.
Jackson v. Sacramento & V. R.
R. Co., 23 Cal. 268 (1863),
963.
[ cxxviii]
TABLE OF CASES CITED
[References are to sections]
Jackson v. St. Louis, I. M. & S.
Ry. Co., 87 Mo. 422 (1885),
640.
Jackson v. St. Paul City Ry. Co.,
74 Minn. 48 (1898), 933.
Jackson's Case, Peake's Add. Cas.
185 (1800), 431.
Jacksonville Electric Light Co. v.
Jacksonville, 36
36 Fla. 229
(1895), 113.
Jacobs v. Tutt, 33 Fed. 412
(1888), 876.
Jacobs v. West End St. Ry. Co.,
178 Mass. 116 (1901), 945.
Jacobson v. Wisconsin, M. & P.
R. R. Co., 71 Minn. 519
(1898), 539, 698.
Jacobus v. St. Paul & C. Ry. Co.,
20 Minn. 125 (1873), 785,
786, 804, 1018.
Jacquelin v. Erie R. R. Co., 69
N. J. Eq. 432 (1905), 807,
810.
Jalie v. Cardinal, 35 Wis. 118
(1874), 751.
Jamiet v. American Storage Co.,
109 Mo. App. 257 (1904),
170, 230, 236.
Jenal v. Green Island Draining
Co., 12 Neb. 163 (1881), 67.
Jencks v. Coleman, 2 Sumner, 221
(1835), 172, 183, 362, 499,
612, 631, 632, 641, 697.
Jenkins v. Columbia Land Co., 13
Wash. 502 (1896), 264, 452.
Jenkins v. Picket, 9 Yerg. 480
(1836), 208.
Jennings v. Grand Trunk Ry. Co.,
52 Hun, 227 (1889), 901,
1006.
Jennings v. Smith, 106 Fed. 139
(1901), 1021.
Jerome v. Smith, 48 Vt. 230
(1876), 886.
Jersey City & B. R. R. Co. v.
Morgan, 52 N. J. L. 60
(1889), 433, 441.
Jetter v. New York & H. R. R.
Co., 2 Abb. (N. Y.) 456
(1865), 775.
Jevons v. Union Pacific R. R.
Co., 70 Kan. 491 (1904), 889.
Jewell v. Grand Trunk Ry. Co.,
55 N. H. 845 (1874), 1042.
Jewett v. Olsen, 18 Oreg. 419
(1890), 1046.
Jaquet v. Edwards, 1 Jamaica, 4 Johnson's Appeal, 115 Pa. St. 129
(1867), 220, 567.
Jardine v. Cornell, 50 N. J. L.
485 (1888), 641.
Jarmy v. Duluth St. Ry. Co., 55
Minn. 271 (1893), 945.
Jasper Trust Co. v. Kansas City,
M. & B. R. R. Co., 99 Ala.
416 (1892), 748.
Jeffersonville R. R. Co. v. Cleve-
land, 2 Bush, 468 (1867),
1037.
Jeffersonville R. R. Co. v. Rogers,
28 Ind. 1 (1867), 888.
Jeffords v. Crump, 12 Phila. (Pa.)
500 (1878), 751.
(1886), 94.
Johnson v. Atlantic City Gas Co.,
65 N. J. Eq. 129 (1903), 456.
Johnson v. Belmer, 58 N. J. Eq.
354 (1899), 602.
Johnson v. Chadbourn Furnace
Co., 89 Minn. 310 (1903),
240, 263.
Johnson v. Concord R. R. Corp.,
46 N. H. 213 (1865), 862.
Johnson v. Dominion Exp. Co.,
28 Ont. Rep. 203 (1896), 178,
696.
Johnson Express Co. v. Chicago,
136 Ill. App. 368 (1907), 169.
9
[ cxxix]
TABLE OF CASES CITED
[References are to sections]
Johnson v. Louisville & N. R. R.
Co., 104 Ala. 241 (1893), 632,
933.
Johnson v. Midland Ry. Co., 4
Exch. (Eng.) 367 (1849), 251,
295, 568.
Johnson v. New York Central R.
R. Co., 33 N. Y. 610 (1865),
522, 952, 1053.
Johnson v. Pensacola & P. R. R.
Co., 16 Fla. 623 (1878), 1282,
1283, 1287, 1299, 1311, 1361.
Johnson v. Philadelphia, W. & B.
R. R. Co., 63 Md. 106 (1884),
1004, 1044.
Johnson v. Reynolds, 3 Kan. 257
(1865), 751.
Johnson v. Richardson, 17 Ill. 302
(1855), 965.
Johnson v. Southern Ry. Co., 53
C. S. 203 (1898), 312.
Johnson v. State, 113 Ind. 143
(1887), 795, 884.
Johnson v. Texas Cent. R. R. Co.
(Tex. Civ. App.), 93 S. W.
433 (1906), 783.
Johnson v. Toledo, S. & M. Ry.
Co., 133 Mich. 596 (1903),
511, 796.
Johnson v. Western Union Tele-
graph Co., 33 Fed. 362
(1887), 1025.
Johnston v. Chicago, B. & Q. R.
R. Co., 70 Neb. 364 (1903),
902.
Johnston v. Midland Ry. Co., 4
Exch. 867 (1849), 361.
Johnstone v. Richmond R. R. Co.,
39 S. C. 55 (1892), 1019, 1021.
Jolley v. Chicago, M. & St. P. Ry.
Co., 119 Iowa, 491 (1903),
347.
Jordan v. Fall River R. R. Co., 5
Cush. 69 (1849), 876.
Jordan v. Indianapolis Water Co.
(Ind. App.), 61 N. E. 12
(1901), 264.
Jones v. Boston & A. R. R. Co.,
63 Me. 188, 522.
Jones v. Durham Water Co., 135
N. C. 553 (1904), 351.
Jones v. Earl, 37 Cal. 630 (1869),
1046.
Jones v. Mayor of Nashville, 109
Tenn. 550 (1903), 452, 455,
456, 457.
Jones v. Newport N. & M. V. R.
R. Co., 65 Fed. 736 (1895),
404, 816, 822.
Jones v. North Georgia Electric
Co., 125 Ga. 618 (1906), 56,
60, 95, 113, 114, 243.
Jones v. Pitcher, 3 Stew. & P. 136
(1833), 172.
Jones & Price v. Mahaska County
Coal Co., 47 Iowa, 35 (1877),
222.
Jones v. Priester, 1 Tex. Civ. App.
Cas. 613 (1877), 876.
Jones v. Roach, 21 Tex. Civ. App.
301 (1899), 511.
Jones v. Rochester Gas & Elec-
tric Co., 7 N. Y. App. Div.
465 (1896), 273, 281, 405,
458, 579.
Jones v. St. Louis Southwestern
Ry. Co., 125 Mo. 666 (1894),
778, 1011.
Jones & Co. v. Venable, 120 Ga.
1 (1904), 225.
Jones v. Voorhees, 10 Ohio St. 145
(1840), 185, 262.
Jones v. Wabash, St. L. & P. Ry.
Co., 17 Mo. App. 158 (1885),
763.
Jones v. Western Union Tele-
graph Co., 18 Fed. 717
(1883), 1025.
[ cxxx]
TABLE OF CASES CITED
[References are to sections]
Judson v. Western R. R. Corp., 4
Allen, 520 (1862), 726.
Julia, The, 14 Moore P. C. 210
(1860), 173, 774.
Julian v. Western Union Tele-
graph Co., 98 Ind. 327
(1884), 902.
Junction Creek & N. D. D. & I.
Ditch Co. v. Durango, 21
Colo. 194 (1895), 701.
June v. Boston & Albany R. R.
Co., 153 Mass. 79 (1891),
401.
K
Kalamazoo Hack & B. Co. v.
Sootsma, 84 Mich. 194 (1890),
485, 489, 514.
Kallman v. United States Ex-
press Co., 3 Kan. 205 (1865),
1012.
Kansas & A. V. Ry. Co. v. Ayres,
63 Ark. 331 (1897), 575, 1026.
Kansas City, F. S. & M. Ry. Co.
v. McGahey, 63 Ark. 344
(1897), 876, 1057.
Kansas City, F. S. & G. R. R. Co.
v. Morrison, 34 Kan. 502
(1886), 875.
Kansas City, F. S. & M. R. R. Co.
v. Washington, 74 Ark. 9
(1905), 512.
Kansas City Interurban Ry. Co.
v. Davis, 197 Mo. 669 (1906),
305.
Kansas City, M. & B. R. R. Co.
v. Lilly, 8 So. 644 (1891),
403.
Kansas City, M. & B. R. R. Co.
Riley, 68 Miss. 765 (1891),
V.
890.
Kansas City, M. & B. R. R. Co.
v. Spencer, 72 Miss. 491
(1894), 669, 912.
Kansas City, M. & O. Ry. Co. v.
State (Okla.), 107 Pac. 912
(1910), 809.
Kansas City & N. C. R. R. Co. v.
Baker, 183 Mo. 312 (1904),
125.
Kansas City Ry. Co. v. Holden,
66 Ark. 602 (1899), 433.
Kansas City, S. & G. Ry. Co. v.
Louisiana W. Ry. Co., 116
La. 178 (1905), 224, 225, 822.
Kansas City, St. J. & C. B. R. R.
Co. v. Rodebaugh, 38 Kan.
45 (1887), 1004.
Kansas & G. S. L. Ry. Co. v.
Dorough, 72 Tex. 108 (1888),
736.
Kansas Pacific Ry. Co. v. Mc-
Cann, 2 Wyo. 3 (1877), 1050.
Kansas Pacific Ry. Co. v. Nichols,
Kennedy & Co., 9 Kan. 235
(1872), 204, 212, 252, 256,
662, 769, 796, 989.
Kansas Pacific Ry. Co. v. Rey-
nolds, 8 Kan. 623 (1871), 256.
Kates v. Atlantic Baggage, etc.,
Co., 107 Ga. 636 (1899), 483,
489, 501.
Kean v. Driggs Drainage Co., 45
N. J. L. 91 (1883), 67.
Kearney v. Borough of West
Chester, 199 Pa. St. 392
(1901), 306.
Keen v. Mayor and Council of
Waycross, 101 Ga. 588 (1897),
706.
Keene Syndicate v. Wichita Gas,
E. L. & P. Co., 69 Kan. 284
(1904), 693.
Kellogg v. Sowerby, 87 N. Y.
Supp. 412 (1904), 224, 822.
Kellogg v. Suffolk & C. Ry. Co.,
100 N. C. 158 (1888), 399,
403, 812.
[ cxxxi ]
TABLE OF CASES CITED
[References are to sections]
Kellow, Jr., Admr., v. Cent. Ia.
Ry. Co., 68 Iowa, 470 (1886),
756.
Kelly v. New York Excise Comrs.,
54 How. Pr. 327 (1877), 263,
974.
Kelly v. C., M. & St. P. Ry. Co.,
93 Iowa, 436 (1895), 500.
Kelsey v. Board of Fire & Water
Commissioners, 113 Mich.
215 (1897), 380.
Kember v. Southern Express Co.,
22 La. Ann. 158 (1870), 1022.
Kemp v. Coughtry, 11 Johns. (N.
Y.) 107 (1814), 255, 971.
Kennebec Water District V.
Waterville, 97 Me. 185
(1902), 92, 1065, 1067, 1068,
1073, 1084, 1091, 1099, 1100,
1101, 1102, 1103, 1124, 1138,
1139, 1166, 1175, 1213, 1430.
Kennedy v. Birmingham Ry. L.
& P. R. R. Co., 138 Ala. 225
(1902), 888.
Kenney Co. v. Atlanta & W. P.
R. R. Co., 122 Ga. 365 (1905),
1042.
Kennon v. Western Union Tele-
graph Co., 92 Ala. 399
(1890), 348.
Kenrig v. Eggleston, Al. 93, 13.
Kentucky & L. Bridge Co. v.
Louisville & N. R. R. Co., 37
Fed. 567 (1889), 53, 126, 151,
525, 534, 773, 972, 1416.
Kentucky Central R. R. Co. v.
Biddle, 17 Ky. L. Rep. 1363
(1896), 932.
Kentucky Central R. R. Co. v.
Thomas, 79 Ky. 160 (1880),
760, 761.
Kentucky Wagon Mfg. Co. v.
Ohio & M. Ry. Co., 98 Ky.
152 (1895), 866, 1050.
Kerr v. Willan, 6 M. & S. 150
(1817), 1001.
Kesten v. Hildebrand, 9 B. Mon.
72 (1848), 106.
Ketchum v. Buffalo, 14 N. Y. 356
(1856), 145.
Ketchum v. New York City Ry.
Co., 118 N. Y. App. Div. 248
(1907), 878.
Kettle River R. R. Co. v. Eastern
Ry. Co., 41 Minn. 461
(1889), 223, 685.
Kevoy v. Western Union Tele-
graph Co., 4 S. D. 105
(1893), 338.
Kidder v. Fitchburg Ry. Co., 165
Mass. 398 (1896), 477.
Kilduff v. Boston Elev. Ry. Co.,
195 Mass. 307 (1907), 783.
Kiley v. Western Union Tele-
graph Co., 109 N. Y. 231
(1888), 980.
Killmer v. New York Central R.
R. Co., 100 N. Y. 395 (1885),
1282, 1287.
Kimball v. City of Cedar Rapids,
99 Fed. 130 (1900), 1124,
1430.
Kimball v. Rutland, etc., Ry.
Co., 26 Vt. 247 (1854), 256,
758, 775, 989, 1001.
Kimmich v. Ball, 129 U. S. 217
(1889), 1418.
King v. Lenox, 19 Johns. 235
(1821), 743.
King, The, v. Severn & Wye Ry.
Co., 2 B. & Ald. 646 (1819),
299.
King v. Western Union Tele-
graph Co., 89 Ark. 402
(1909), 1041.
Kingsley v. Buffalo, N. Y. & P.
R. R. Co., 37 Fed. 18 (1888),
1322, 1323.
[ cxxxii]
TABLE OF CASES CITED
[References are to sections]
Kingsley v. Lake Shore Ry. Co.,
125 Mass. 54 (1878), 769.
Kinney v. Central R. R. Co., 34
N. J. L. 513 (1869), 786,
1018.
Kinney v. Louisville & N. R. R.
Co., 99 Ky. 59 (1896), 942.
Kirby v. Adams Express Co., 2
Mo. App. 369 (1876), 178, 776.
Kirby v. Chicago & A. R. Co., 146
Ill. App. 31 (1908), 833.
Kirby v. Western Union Tele-
graph Co., 4 S. D. 439
(1892), 133, 412.
Kirby v. Western Union Tele-
graph Co., 7 S. D. 623
(1895), 1026.
Kirkland v. Charleston & W. C.
Ry. Co., 79 S. C. 273 (1907),
757, 758.
Kirkland v. Dinsmore, 62 N. Y.
171 (1875), 1003.
Kirkland V. Montgomery, 1
Swan, 452 (1852), 172, 255.
Kistern v. Hildebrand, 9 B. Mon.
72 (1848), 234, 240, 263.
Klauber v. American Express Co.,
21 Wis. 21 (1866), 963.
Klugherz v. Chicago, M. & St. P.
Ry. Co., 90 Minn. 17 (1903),
370.
Knapp v. McCaffrey, 178 Ill. 107
(1899), 173, 774, 972.
Knapp, Stout & Co. v. Transfer
Co., 126 Mo. 26 (1894), 226.
Knight v. Providence & W. R. R.
Co., 13 R. I. 572 (1882), 513,
522.
Knight v. Quincy, O. & K. C. R.
R. Co., 120 Mo. App. 311
(1906), 413, 650, 659.
Knight v. Wrightsville & T. Ry.
Co., 127 Ga. 204 (1906),
1056.
Knott v. Raleigh & Gaston R. R.
Co., 98 N. C. 73 (1887), 513,
1033.
Knottnerus v. North P. S. R. R.
Co., 93 Mich. 348 (1892),
195.
Knowles v. Atlantic & St. L. R.
R. Co., 38 Me. 55 (1854),
970.
Knowles v. Railroad Co., 102 N.
C. 59 (1809), 440.
Knox v. Rives, 14 Ala. 249
(1848), 743, 971.
Knoxville Traction Co. v. Lane,
103 Tenn. 376 (1899), 935.
Knoxville Traction Co. v. Wilker-
son, 117 Tenn. 482 (1907),
439, 862, 863, 877.
Knoxville v. Knoxville Water
Co., 212 U. S. 1 (1909), 1069,
1084, 1091, 1094, 1110, 1166,
1170, 1410.
Koehler, Ex parte, 30 Fed. 867
(1887), 1222, 1414, 1416.
Koelle v. Knecht, 99 Ill. 396
(1881), 226.
Kopper v. Willis, 9 Daly, 460
(1881), 341.
Koretke v. Irwin & Co., 100 Ala.
323 (1893), 658.
Kremer v. Southern Express Co.,
6 Cold. 356 (1869), 1040.
Kroeger v. Seattle Electric Co.,
37 Wash. 544 (1905), 401.
Krohn v. Sweeney, 2 Daly, 200
(1867), 263.
Krumenaker v. Dougherty, 77 N.
Y. Supp. 467 (1902), 623,
883.
Kuhlen v. Boston & N. St. Ry.
Co., 193 Mass. 341 (1907),
945.
Kuhn v. Knight, 115 N. Y. App.
Div. 837 (1906), 79.
[ cxxxiii]
TABLE OF CASES CITED
[References are to sections]
Kuter v. Michigan Central R. R.
Co., 1 Biss. 35 (1853), 255,
792.
Kyle v. Texas & N. O. R. R. Co.
(Tex. Civ. App.), 4 L. R. A.
275 (1889), 224.
L
Lackawanna & B. R. R. Co. v.
Chenewith, 52 Pa. St. 382
(1866), 764.
Lackland v. Chicago & A. Ry.
Co., 101 Mo. App. 420
(1903), 812.
Ladd v. Boston, 170 Mass. 332
(1898), 1246.
Ladd v. Cholard, Minor (Ala.),
366, 739.
Ladd v. Cotton Press. Co., 53
Tex. 172 (1880), 99.
Laddonia v. Poor, 73 Mo. App.
465 (1898), 472.
Lafaye v. Harris, 13 La. Ann.
553 (1858), 553.
Laguna Drainage District v.
Martin Co., 144 Cal. 209
(1904), 67.
La Harpe v. Elm Township G.
L., F. & P. Co., 69 Kans. 97
(1904), 94.
Laighton v. Carthage, 175 Fed.
145 (1909), 302, 316, 596.
Lake Erie & W. Ry. Co. v.
Acres, 108 Ind. 548 (1886),
188.
Lake Erie & W. R. R. Co. v.
Hatch, 52 Oh. St. 408 (1895),
1037, 1038.
Lake Erie & W. R. R. Co. v.
James, 10 Ind. App. 550
(1894), 597.
Lake Erie & Western R. R. Co. v.
State, 139 Ind. 158 (1894),
211, 300.
Lake Shore & M. S. Ry. Co. v.
Anderson, 39 Ind. App. 112
(1906), 408, 722.
Lake Shore & M. S. Ry. Co. v.
Bennett, 89 Ind. 457 (1883),
669, 912.
Lake Shore & M. S. Ry. Co. v.
Brown, 123 Ill. 162 (1887),
761, 862.
Lake Shore & M. S. Ry. Co. v.
Foster, 104 Ind. 293 (1885),
728.
Lake Shore & M. S. Ry. Co. v.
Greenwood, 79 Pa. St. 373
(1875), 863.
Lake Shore & M. S. Ry. Co. v.
Hodapp, 83 Pa. St. 22
(1876), 996, 1048.
Lake Shore & M. S. Ry. Co. v.
Ohio, 173 U. S. 285 (1899),
1417.
Lake Shore & M. S. Ry. Co. v.
Orndorff, 55 Oh. St. 716
(1897), 341.
Lake Shore & M. S. Ry. Co.
v. Perkins, 25 Mich. 329
(1872), 256.
Lake Shore & M. S. Ry. Co. v.
Pierce, 47 Mich. 277 (1882),
864, 870, 872.
Lake Shore & M. S. Ry. Co. v.
Prentice, 147 U. S. 101
(1893), 935, 938.
Lake Shore & M. S. Ry. Co. v.
Smith, 173 U. S. 684 (1899),
830, 836, 1201, 1344, 1353,
1431.
Lake Shore & M. S. Ry. Co. v.
Teeters, 166 Ind. 335 (1906),
881.
Lamb v. Chicago, M. & St. P. Ry.
Co., 101 Wis. 138 (1898), 796.
Lamb v. Parkman, 1 Sprague,
343 (1857), 235, 239, 968.
[cxxxiv]
TABLE OF CASES CITED
[References are to sections]
Lambert-Murray Co. v. South-
ern Express Co., 146 N. C.
321 (1907), 903.
Lamond v. Richard, 1 Q. B. 541
(1897), 366, 579.
Lamont & Co. v. Nashville & C.
R. R. Co., 9 Heisk. 58
(1871), 917.
Lancy v. Pennsylvania R. R.
Co., 154 Pa. St. 342 (1893),
987.
Landa v. Holck & Co. et al., 129
Mo. 663 (1895), 1046.
Lane v. Cotton, 12 Mod. 472
(1701), 106, 202, 391.
Lane v. East Tenn., Va. & Ga.
R. R. Co., 5 Tenn. 124
(1880), 885.
Lane v. Penniman, 4 Mass. 91
(1808), 1266.
Lang v. Brady, 73 Conn. 707
(1901), 345.
Lang v. Pennsylvania R. R. Co.,
154 Pa. St. 342 (1893), 667,
911, 950.
Langley v. Boston & Maine R. R.
Co., 10 Gray (Mass.), 103
(1859), 740.
Langley v. Western Union Tele-
graph Co., 88
88 Ga. 777
(1892), 436.
Lanier v. Youngblood, 73 Ala.
587 (1883), 213, 964, 1001.
Lannen v. Albany Gaslight Co.,
46 Barb. 264 (1865), 982.
Lanning v. Sussex R. R. Co., 1
N. J. L. Jour. 21 (1878),
551.
Laporte v. Wells-Fargo Exp. Co.,
23 App. Div. 267 (1897),
1040.
Larabee Flour Mills v. Missouri
Pacific Ry. Co., 74 Kans.
808 (1906), 130, 1413.
Latour v. Southern Ry. Co., 71
S. C. 532 (1904), 904.
Laughlin v. Chicago & N. Ry.
Co., 28 Wis. 204 (1871),
1033.
Laurel Fork & S. H. Ry. Co. v.
West Virginia T. Co., 25
W. Va. 324 (1884), 176,
1421.
Laveroni v. Drury, 8 Exch. 166
(1852), 165.
Lawler v. Baring Boom Co., 56
Me. 443 (1869), 73.
Lawrence v. Denbreens, 1 Black
(U. S.), 170 (1862), 1269.
Lawrence v. Howard, 1 Utah,
142 (1874), 751.
Lawrence v. New York P. & B.
R. R. Co., 36 Conn. 63
(1869), 1002.
Lawrence v. Pullman P. C. Co.,
144 Mass. 1 (1887), 153,
382, 847.
Lawrenceburgh & U. M. R. R.
Co. v. Montgomery, 7 Ind.
474 (1856), 762.
Lawson v. Chicago, St. P., M. &
O. Ry. Co., 64 Wis. 447
(1885), 780.
Leach v. New York, N. H. &
H. R. R. Co., 89 Hun, 377
(1895), 433.
Leavell v. Western Union Tele-
graph Co., 116 N. C. 211
(1895), 688, 801, 837.
Leavenworth, L. & G. R. R. Co.
v. Maris, 16 Kan. 333
(1876), 1037.
Le Barron
v. East B. Ferry
Co., 11 Allen, 312 (1865),
182.
Lechowitzer v. Hamburg-Amer-
ican Packet Co., 27 N. Y.
Supp. 140 (1894), 1004.
[ cxxxv ]
TABLE OF CASES CITED
[References are to sections]
Le Conteur v. London & S. W.
Ry. Co., 6 B. & S. 961
(1865), 769.
Lee v. Burgess, 9 Bush, 652
(1873), 255.
Lee v. New Orleans Gt. No. R.
R. Co., 125 La. 236 (1910),
848.
Lee v. Raleigh & G. R. R. Co.,
72 N. C. 236 (1875), 256.
Lee v. Western Union Telegraph
Co., 51 Mo. App. 375 (1892),
348.
Leech v. Baldwin, 5 Watts
(Pa.), 446 (1836), 1269.
Leggs v. New York, N. H. &
H. R. R. Co., 197 Mass. 88
(1908), 1044.
Lehigh Valley R. R. Co. v. Penn-
sylvania, 145 U. S. 192
(1892), 1413.
Leigh v. Garysburg Mfg. Co.,
132 N. C. 167 (1903), 57,
223.
Lemon v. Chanslor, 68 Mo. 340
(1878), 185, 364, 785.
Lemon v. Pullman P. C. Co., 52
Fed. 262 (1887), 153, 382.
Lemont v. Washington & G. R.
R. Co., 1 Mackey, 180
(1881), 638, 933.
Leo v. St. Paul, M. & M. Ry.
Co., 30 Minn. 438 (1883),
1033.
Leonard v. American Exp. Co.,
26 Up. Can. (Q. B.) 533
(1867), 251, 254, 792.
Leonard v. Hendrickson, 18 Pa.
St. 40 (1851), 173, 774.
Leonard v. New York, A. & B.
Telegraph Co., 41 N. Y. 544
(1820), 973.
Leonard v. St. Louis Transit Co.,
115 Mo. App. 349 (1905), 629.
Leredo,
Leredo, City of, v. Interna-
tional Bridge Co., 66 Fed.
246 (1895), 53.
Leslie v. Lorillard, 110 N. Y. 519
(1888), 693.
Lesson v. Holt, 1 Starkie, 186
(1816), 1001.
Lester v. Lancashire & Y. Ry.
Co., 1 K. B. 878 (1903), 988.
Leverich v. City of Mobile, 110
Fed. 170 (1867), 232.
Levi v. Lynn & Boston R. R.
Co., 11 Allen, 300 (1865),
262.
Levien v. Webb, 30 N. Y. Misc.、
196 (1899), 948.
Levy v. Corey, 1 City Ct. Rep.
Supp. 57 (1884), 631, 638,
947.
Lewis v. Chesapeake & Ohio Ry.
Co., 47 W. Va. 656 (1900),
517, 1033.
Lewis v. Flint & P. M. Ry. Co.,
54 Mich. 55 (1884), 916.
Lewis v. Houston Elec. Co.
(Tex. Civ. App.), 88 S. W.
489 (1905), 736.
Lewis v. Louisville & N. Ry.
Co., 135 Ky. 361 (1909),
1038.
Lewis v. New York Central R.
R. Co., 49 Barb. 330 (1867),
441.
Lewis v. Weatherford, M., W. &
N. W. Ry. Co., 36 Tex. Civ.
App. 48 (1904), 501.
Lewis v. Western R. R. Corp., 11
Met. 509 (1846), 1042.
Libby v. Maine Cent. R. R. Co.,
85 Me. 34 (1892), 777, 978.
Light v. Abel, 6 Allen, 400
(1866), 751.
Linck v. City of Litchfield, 31
Ill. App. 118 (1888), 306.
[ cxxxvi ]
TABLE OF CASES CITED
[References are to sections]
Lindsay v. Mayor & City Coun-
cil of Anniston, 104 Ala. 257
(1893), 484.
Lindsley v. Chicago, M. & St.
P. Ry. Co., 36 Minn. 539
(1887), 989.
Linn v. Chambersburg, 160 Pa.
St. 511 (1894), 218.
Linne v. Bredes, 43 Wash. 540
86 Pa. 858 (1906), 377,
456.
Liquid Carbonic Co. v. Norfolk
& W. Ry. Co., 107 Va. 323
(1907), 1024, 1026.
Litchfield & M. Ry. Co. v. The
People, 222 Ill. 242·(1906),
223, 310.
Little v. Boston & M. R. R. Co.,
66 Me. 239 (1876), 1021.
Little v. Fargo, 43 Hun, 233
(1887), 911.
324
Littlejohn v. Fitchburg R. R.
Co., 148 Mass. 478 (1889),
341, 785.
Littlejohn v. Jones, 2 McMull,
366 (1842), 237, 241, 968.
Little Miami R. R. Co. v. Wash-
burn, 22 Ohio St.
(1872), 518, 522, 1033.
Little Rock & Ft. Smith Ry. Co.
v. Conatser, 61 Ark. 560
(1896), 723.
Little Rock & Ft. Smith Ry. Co.
v. Hunter, 42 Ark. 200
(1883), 726.
Little Rock & Ft. Smith Ry. Co.
v. Miles, 40 Ark. 298 (1883),
760, 780, 978.
Little Rock & Ft. Smith Ry. Co.
v. Oppenheimer, 64 Ark. 271
(1897), 853, 1378.
Little Rock & Ft. Smith Ry. Co.
v. Tankersley, 54 Ark. 25
(1890), 1044.
Little Rock, M. R. & T. Ry. Co.
v. Glidewell, 39 Ark. 487
(1882), 207, 762, 1048.
Little Rock & M. R. R. Co. v.
St. Louis, I. M. & S. Ry.
Co., 41 Fed. 559 (1890), 534.
Little Rock & M. R. R. Co. V.
St. Louis, I. M. & S. Ry.
Co., 59 Fed. 400 (1894), 431,
435, 523, 528.
Little Rock & M. R. R. Co. v.
St. Louis S. W. Ry. Co.,
63 Fed. 775, 435, 523, 534,
682.
Little Rock Ry. & El. Co. v.
Goerner, 80 Ark. 158 (1906),
890.
Liver Alkali Co. v. Johnson, L.
Rep. 9 Exch. 338 (1874),
148, 164.
Liverpool & G. W. Steam Co. v.
Phoenix Ins. Co., 129 U. S.
397 (1889), 229, 1010.
Lloyd v. Gaslight Co., 1 Mackey,
331 (1881), 451, 453.
Lloyd v. Haugh & K. Storage &
Transfer Co., 223 Pa. St.
148 (1909), 169, 170, 204,
206, 220, 230, 236.
Loader v. Brooklyn Heights R.
R. Co., 35 N. Y. Supp. 996
(1895), 189, 313, 668.
Loan Association v. Topeka, 20
Wall. 655 (1874), 64.
Lockwood v. Boston Elevated
Ry. Co., 200 Mass. 537
(1909), 403, 736.
Lodge v. United Gas & Imp. Co.,
209 Pa. St. 553 (1904), 982.
Logan v. Mobile Trade Co.,
46 Ala. 513 (1871), 1003.
Logan v. Pontchartrain R. R.
Co., 11 Rob. 24 (1845),
1002.
[ cxxxvii]
TABLE OF CASES CITED
[References are to sections]
Logan Coal Co. v. Pennsylvania
Ry. Co., 154 Fed. 497
(1907), 857.
Logansport Gas Co. v. Pern, 89
Fed. 185 (1898), 1095.
Logansport & W. V. Gas Co. v.
Ott, 30 Ind. App. 93 (1902),
1338.
London & N. W. R. R. Co. v.
Evershed, L. R. 3 App.
Cas. 1029 (1878), 1312.
London & N. W. R. R. Co. v.
Hinchcliffe, 2 K. B. 32
(1903), 446, 1256, 1260.
Long Acre Light & Power Co.,
Re, 102 N. Y. Supp. 242
(1907), 78, 383.
Long Branch Com. v. Tintern
Manor Water Co., 71 N. J.
Eq. 790 (1906), 92.
Long Branch Com. v. Tintern
Manor Water Co., 70 N. J.
Eq. 71 (1905), 1086, 1139,
1151, 1154, 1166, 1167, 1175,
1197.
Long Island Water Supply Co.
v. Brooklyn, 166 U. S. 685
(1897), 92, 242, 1103.
Long v. Beard, 3 Murphy, 57
(1819), 52.
Long v. Pennsylvania R. R. Co.,
147 Pa. St. 343 (1892), 656,
984.
Long v. Springfield Water Co.,
8 Del. Co. (Pa.) 151 (1901),
435, 877, 1251, 1290, 1300.
Loon, The, 7 Blatch. 244 (1870),
747.
Loraine v. Pittsburg, J. E. & E.
R. R. Co., 205 Pa. St. 132
(1903), 573, 850, 1366.
Los Angeles v. Los Angeles City
Water Co., 177 U. S. 558
(1900), 216, 1424.
Lotspeich v. Central Ry. Co., 73
Ala. 306 (1882), 512, 1377.
Lottery Case, 178 U. S. 321
(1903), 1413.
Lough v. Outerbridge, 143 N. Y.
271 (1894), 681, 685, 1282,
1284, 1289, 1305, 1311, 1328.
Loughbridge v. Harris, 42 Ga.
500 (1871), 65, 851.
Louisiana & A. Ry. Co. v. State,
91 Ark. 358 (1909), 805, 809.
Louisiana Nat. Bank v. Lavielle,
52 Mo. 380 (1873), 747.
Louisiana & N. W. Ry. Co. v.
Reeves (Ark.), 128 S. W.
1051 (1910), 1041.
Louisiana Railroad Comm. v.
Cumberland Telephone Co.,
212 U. S. 414 (1909), 1129,
1170, 1221.
Louisiana Ry. & Nav. Co. v.
Railroad Commission, 121
La. 847 (1908), 806.
Louisville v. Wehmhoff, 116 Ky.
812 (1903), 603.
Louisville & A. Ry. Co. v. State,
85 Ark. 12 (1907), 805.
Louisville & C. Packet Co. v.
Bottorff, 25 Ky. L. Rep.
1324 (1904), 902, 913.
Louisville & C. Packet Co. v.
Rogers, 20 Ind. App. 594
(1898), 906.
Louisville & E. Ry. Co. v. Mc-
Nally, 31 Ky. L. Rep. 1357
(1907), 632.
Louisville & N. R. R. Co. v. Bal-
lard, 85 Ky. 307 (1887), 935.
Louisville & N. R. R. Co. v.
Behlmer, 175 U. S. 648
(1898), 1222, 1377, 1414.
Louisville & N. R. R. Co. v.
Bell, 13 Ky. L. Rep. 393
(1891), 667, 669, 912.
[ cxxxviii]
TABLE OF CASES CITED
[References are to sections]
Louisville & N. R. R. Co. v.
Bell, 100 Ky. 203 (1896),780.
Louisville & N. R. R. Co. v.
Blair, 104 Tenn. 212 (1900),
890.
Louisville & N. R. R. Co. v.
Boland, 96 Ala. 626 (1892),
529.
Louisville & N. R. R. Co. v.
1
Breckinridge, 99 Ky.
(1896), 447, 1259, 1261.
Louisville & N. R. R. Co. v.
Britton, 149 Ala. 552 (1907),
1045.
Louisville & N. R. R. Co. v.
Brown, 123 Fed. 946 (1903),
1105, 1133, 1138, 1178, 1402.
Louisville & N. R. R. Co. v.
Brownlee, 14 Bush, 590
(1879), 1001.
Louisville & N. R. R. Co. v.
Campbell et al., 7 Heisk.
253 (1872), 1033.
Louisville & N. R. R. Co. v. Ca-
tron, 102 Ky. 323 (1897),
566, 849.
Louisville & N. R. R. Co. v.
Central S. Y. Co., 30 Ky. L.
Rep. 18 (1906), 527, 529,
539, 804.
Louisville & N. R. R. Co. v.
Central S. Y. Co., 212 U. S.
132 (1909), 403, 491, 527,
532, 698, 804, 811, 818, 1043,
1434.
Louisville & N. R. R. Co. v.
Com., 102 Ky. 300 (1897),
873.
Louisville & N. R. R. Co. v.
Com., 105 Ky. 179 (1898),
1337.
Louisville & N. R. R. Co. v.
Com., 21 Ky. L. Rep. 232
(1899), 1222, 1377.
Louisville & N. R. R. Co. v.
Com., 108 Ky. 628 (1900),
1337, 1342.
Louisville & N. R. R. Co. v.
Cottengim (Ky.), 104 S. W.
280 (1907), 438.
Louisville & N. R. R. Co. v.
Crunk, 119 Ind. 542 (1889),
369, 372, 638.
Louisville & N. R. R. Co. v.
Dancy, 97 Ala. 338 (1892),
872.
Louisville & N. R. R. Co. v. Du
Bose, 120 Ga. 339 (1904), 754.
Louisville & N. R. R. Co. v.
Duncan & Orr, 137 Ala. 446
(1902), 518, 1033.
Louisville & N. R. R. Co. v. Eu-
bank, 184 U. S. 27 (1902),
1419.
Louisville & N. R. R. Co. v.
Farmers' & D. L. S. Com.
Firm, 107 Ky. 53 (1899),
834, 1033.
Louisville & N. R. R. Co. v. Ft.
Wayne Electric Co., 108.
Ky. 113 (1900), 1049.
Louisville & N. R. R. Co. v.
Fulgham, 91 Ala. 555 (1890),
1299, 1333.
Louisville & N. R. R. Co. v.
Gaines, 99 Ky. 411 (1896),
889.
Louisville & N. R. R. Co. v. Gar-
rett, 8 Lea, 438 (1881), 341,
438, 441, 447, 1259.
Louisville & N. R. R. Co. v. Gil-
mer, 89 Ala. 534 (1889),
1042.
Louisville & N. R. R. Co. v.
Hine, 121 Ala. 234 (1898),
763, 889, 891.
Louisville & N. R. R. Co. v. Kel-
ler, 104 Ky. 768 (1898), 1044.
[ cxxxix]
TABLE OF CASES CITED
[References are to sections]
Louisville & N. R. R. Co. v.
Kelley, 92 Ind. 371 (1883),
938.
Louisville & N. R. R. Co. v.
Kingman, 18 Ky. Law Rep.
82 (1896), 777.
Louisville & N. R. R. Co. v.
Landers, 135 Ala. 504 (1903),
1007.
Louisville & N. R. R. Co. v. Lo-
gan, 88 Ky. 232 (1889), 620,
629, 633, 634, 934.
Louisville & N. R. R. Co. v.
Maybin, 66 Miss. 83 (1889),
440, 646, 878, 886.
Louisville & N. R. R. Co. v.
Odill, 96 Tenn. 61 (1896),
905.
Louisville & N. R. R. Co. v.
Owen, 12 Ky. L. Rep. 716
(1890), 1042.
Louisville & N. R. R. Co. v.
Pittsburg & K. Coal Co.,
111 Ky. 960 (1901), 223,
224, 539, 597, 691, 822.
Louisville & N. R. R. Co. v.
Queen City Coal Co., 13
Ky. Law Rep. 832 (1892),
665, 837.
Louisville & N. R. R. Co. v.
Queen City Coal Co., 99
Ky. 217 (1896), 663, 799.
Louisville & N. R. R. Co. v. Rey-
nolds, 71 S. W. 516 (1903),
735.
Louisville & N. R. R. Co. v.
Setser's Admr. (Ky.), 128
S. W. 341 (1910), 646.
Louisville & N. R. R. Co. v.
Sherrod, 84 Ala. 178 (1887),
1021.
Louisville & N. R. R. Co. v.
Sowell, 90 Tenn. 17 (1891),
1019.
Louisville & N. R. R. Co. v.
Stacker, 86 Tenn. 343
(1888), 754.
Louisville & N. R. R. Co. v.
United States, 39 Ct. of Cl.
405 (1904), 724.
Louisville & N. R. R. Co. v.
Walker, 23 Ky. L. Rep. 453
(1901), 1378.
Louisville & N. R. R. Co. v. West
Coast Naval Stores Co., 198
U. S. 483 (1905), 102, 232,
488, 522, 811.
Louisville & N. R. R. Co. v. Wil-
liams, 95 Ky. 199 (1893),
529,530.
Louisville & N. R. R. Co. v.
Young, 1 Bush (Ky.), 401
(1866), 604, 636.
Louisville & W. R. R. Co. v.
Gerson & Sons, 102 Ala. 409
(1893), 970.
Louisville, C. & C. R. R. Co. v.
Chappell, Rice, 383 (1839),
58.
Louisville, E. & St. L. C. R. R.
Co. v. Crown Coal Co., 43
Ill. App. 228 (1891), 1299.
Louisville, E. & St. L. R. R. Co.
v. Wilson, 132 Ind. 517
(1892), 554, 685, 1286, 1322,
1326, 1330, 1344, 1365.
Louisville Gas Co. v. Dulaney,
100 Ky. 405 (1897), 825,
1251, 1354.
Louisville, H. & St. L. Ry. Co.
v. Joplin, 21 Ky. Law Rep.
1380 (1900), 432.
Louisville Natural Gas Co. v.
State, 135 Ind. 49 (1894),
1410, 1424.
Louisville, N. A. & C. Ry. Co. v.
Brinley, 17 Ky. L. Rep. 9
(1895), 915.
[ cxl ]
TABLE OF CASES CITED
[References are to sections]
Louisville, N. A. & C. Ry. Co. v.
Craycraft, 12 Ind. App. 203
(1894), 1003, 1004.
Louisville, N. A. & C. Ry. Co. v.
Flanagan, 113 Ind. 488
(1887), 399, 403, 723.
Louisville, N. A. & C. Ry. Co. v.
Godman, 104
104 Ind. 490
(1885), 393, 727.
Louisville, N. A. & C.
Ry.
Co. v. Keefer, 146 Ind.
21 (1896), 477, 777, 778,
1015.
Louisville, N. A. & C. Ry. Co. v.
Snyder, 117 Ind. 435 (1888),
794.
Louisville, N. A. & C. Ry. Co. v.
Taylor, 126 Ind. 126 (1890),
780.
Louisville, N. A. & C. Ry. Co. v.
Thompson, 107 Ind. 442
(1886), 966.
Louisville, N. A. & C. Ry. Co. v.
Wolfe, 128 Ind. 347 (1890),
633.
Louisville, N. A. & C. Ry. Co. v.
Wright, 18 Ind. App. 125
(1897), 865, 873.
Louisville, N. & Gt. So. R. R.
Co. v. Fleming, 14 Lea
(Tenn.), 128 (1884), 440,
635, 933.
Louisville, N. O. & T. Ry. Co.
v. Patterson, 69 Miss. 421
(1891), 662, 800.
Louisville, N. O. & Ry. T. Co. v.
State, 66 Miss. 662 (1889),
566, 848.
Louisville, St. L. & Texas Ry.
Co. v. Bourne, 16 Ky. L.
Rep. 825 (1895), 517.
Louisville Tobacco Warehouse
Co. v. Commonwealth, 106
Ky. 166 (1899), 142.
Louisville Transfer Co. v. Amer-
ican District Telegraph Co.,
1 Ky. L. J. 144 (1881), 136,
704.
Louisville Water Co. v. Wiemer,
130 Fed. 257 (1904), 496.
Lovejoy v. Blessemer Water-
works Co., 146 Ala. 374
(1906), 300, 350.
Loveland v. Burke, 120 Mass.
139 (1876), 414, 991.
Lovett v. Hobbs, 2 Show, 127
(1680), 184.
Lowe v. Yolo Co. Consol. Water
Co., 6 Cal. App. 646 (1908),
384, 652.
Lucas v. Herbert, 148 Ind. 64
(1897), 484.
Lucas v. Michigan Central Ry.
Co., 98 Mich. 1 (1893),
886.
Lucas v. Milwaukee & St. P. Ry.
Co., 33 Wis. 41 (1873), 763,
764.
Lucas v. New Bedford & T. R.
R. Co., 6 Gray (Mass.), 64
(1856), 372.
Lucas v. Taunton & N. B. R. R.
Co., 6 Gray, 64 (1856), 369,
372.
Lucia v. Omel, 53 N. Y. App.
Div. 641 (1900), 611, 965.
Lucy v. Chicago Gt. W. R. R.
Co., 64 Minn. 7 (1896),
934.
Luke v. Lyde, 2 Burr. 882 (1759),
1265.
Lumbard v. Stearns, 4 Cush. 60
(1849), 32, 92, 242.
Lumber Co. v. Railroad Co., 136
N. C. 479, 1077.
Lumsden v. L. A. Thompson S.
R. R. Co., 130 App. Div.
209 (1909), 195.
[ cxli ]
TABLE OF CASES CITED
[References are to sections]
Lundquist v. Gr. Tr. W. Ry. Co.,
121 Fed. 915 (1901), 696.
Lusk v. Belote, 22 Minn. 468
(1876), 365, 964.
Lyles v. Western Union Tel. Co.,
77 S. C. 174 (1906), 765, 1041.
Lyman v. Suburban R. R. Co.,
190 Ill. 320 (1901), 811.
Lynch v. Met. El. Ry. Co., 90
N. Y. 77 (1882), 866.
Lyne v. Western Union Tel. Co.,
123 N. C. 129 (1898), 1041.
Lyon, The, 1 Brown's Admr. 59
(1861), 173, 774.
Lyon v. Smith, Morris, 184
(1843), 203, 213, 233, 234,
240, 968.
Lyons v. N. Y. Cent. R. R. Co.,
120 N. Y. S. 1132 (1909),1045.
M
Mabb v. Stewart, 133 Cal. 556
(1901), 378.
Mace v. Southern Ry. Co., 151
N. C. 404 (1909), 889.
Mackey v. Western Union Tele-
graph Co., 16 Nev. 222
(1881), 851.
Mackin v. Boston & A. R. R. Co.,
135 Mass. 201 (1883), 529.
Mackin v. Portland Gas Co., 38
Oreg. 120 (1900), 111, 452,
453, 458.
Maclaren v. Detroit & M. R. R.
Co., 23 Wis. 138 (1868), 914.
Macon & W. R. R. Co. v. John-
son, 38 Ga. 409 (1868), 862,
882.
Macon, D. & S. R. R. Co. v.
Graham & Ward, 117 Ga. 555
(1903), 102, 232, 487, 811.
Macon Grocery Co. v. Atlantic
Coast Line Ry. Co., 163 Fed.
738 (1908), 1129.
Macrow v. Great Western Ry.
Co., L. R. 6 Q. B. 612
(1871), 875.
McAbsher v. Richmond & D. R.
R. Co., 108 N. C. 344 (1891),
831, 833, 922.
McAllan v. Hamblin, 129 Iowa,
329 (1906), 264.
McAndrew v. Electric Telegraph
Co., 17 C. B. 3 (1855), 766,
1014.
McAndrew v. Whitlock, 52 N. Y.
40 (1873), 1043.
McArthur v. Green Bay & M.
Canal Co., 34 Wis. 139
(1874), 122, 599.
McArthur v. Sears, 21 Wend. 190
(1839), 172, 985.
McBee v. Carolina Central Ry.
Co., 89 N. C. 311 (1883),
1011.
McCabe v. Narragansett Electric
Co., 26 R. I. 427 (1904), 983.
McCarter v. Greenville Tr. Co.,
72 S. C. 134 (1905), 754, 890.
McCarthy v. Humphrey, 105
Iowa, 535 (1898), 377.
McCarthy v. Louisville & N. R.
R. Co., 102 Ala. 193 (1893),
414, 991.
McCarthy v. New York & Erie
Ry. Co., 30 Pa. St. 247
(1858), 1036, 1037.
McCarty v. Gulf, C. & S. F. Ry.
Co., 79 Tex. 33 (1890), 723,
1023.
McCarty v. Houston & T. C. Ry.
Co. (Tex. Civ. App.), 54 S.
W. 421 (1899), 978.
McCaul v. Telegraph Co., 114
Tenn. 661 (1905), 874, 1041.
McCauley v. Tennessee, C. I. &
R. R. Co., 93 Ala. 356 (1890),
762, 882,
患
​[ cxlii]
TABLE OF CASES CITED
[References are to sections]
McClary v. Sioux City & P. R. R.
Co., 3 Neb. 44 (1873), 904.
McCleary v. Babcock, 169 Ind.
228 (1907), 176.
McCleneghan v. Brock, 5 Rich.
L. 17 (1851), 183.
McCluer v. Manchester & L. R.
R. Co., 13 Gray, 124 (1859),
740.
McClure v. Krumbholz, 9 Pa.
Dist. R. 544 (1900), 263.
M'Clures v. Hammond, 1 Bay, 99
(1790), 167, 172.
McConnell v. Pedigo, 92 Ky. 465
(1892), 485.
McCook v. Northrup, 65 Ark.
225 (1898), 878, 885.
M'Cook Water Works Co. v.
M'Cook, 85 Neb. 677 (1909),
1150.
McCoy & P. v. Erie & West.
Transp. Co., 42 Md. 498
(1875), 1007.
McCoy v. Railroad Co., 44 Iowa,
424 (1876), 256.
McCrae v. Canada Pac. Ry. Co.
(Mont.), L. R. 4 S. C. 186
(1888), 207.
McCrary v. Beaudry, 67 Cal. 120
(1885), 242.
McCullough v. Hellweg, 66 Md.
269 (1886), 1266.
McCune v. Norwich Gas Co.,
30 Conn. 521 (1862), 31,
111.
McDade v. Norfolk & W. Ry.
Co., 68 W. Va. 378 1044.
McDaniel v. Faubush Telephone
Co., 32 Ky. L. Rep. 572
(1908), 21.
McDaniel v. Waterworks, 48 Mo.
App. 273 (1892), 452.
McDaniels v. Robertson, 28 Vt.
387 (1856), 1032.
McDaniels v. Robinson, 26 Vt.
316 (1854), 1032.
McDermon v. Southern Pacific
Co., 122 Fed. 669 (1903), 779.
McDermont v. Anaheim Union
Water Co., 124 Cal. 112
(1899), 652.
McDonald v. Edgerton, 5 Barb.
560 (1849), 770, 1032.
McDonough v. Boston Elevated
Ry. Co., 191 Mass. 509
(1906), 864, 882.
McDuffee v. Portland & R. R. R.
Co., 52 N. H. 430 (1873),
475, 479, 690, 1286, 1289,
1303, 1304.
McDuffie v. Seaboard A. L. Ry.
Co., 145 N. C. 397 (1908),
408, 722.
McEacheran v. Michigan Central
R. R. Co., 101 Mich. 264
(1894), 1017.
McEntee v. Kingston Water Co.,
165 N. Y. 27 (1900), 458,
866.
McEntee v. New Jersey Steam-
boat Co., 45 N. Y. 34 (1871),
1046.
McEwan v. Pennsylvania, N. J.
& N. Y. Ry. Co., 72 N. J. L.
419 (1905), 128.
McFadden v. County of Los An-
geles, 74 Cal. 571 (1888), 242.
McFadden v. Missouri, Pacific
R. R. Co. 92 Mo. 343
(1887), 963.
McGearty v. Manhattan Ry.
Co., 15 App. Div. 2 (1897),
945.
McGee v. Missouri Pacific R. R.
Co., 92 Mo. 208 (1887), 763,
864.
McGhee v. Reynolds, 129 Ala.
540 (1900), 889.
[ cxliii]
TABLE OF CASES CITED
[References are to sections]
McGill v. Rowand, 3 Barr. 451
(1846), 185.
McGilvray v. West End St. Ry.
Co., 164 Mass. 122 (1895),
939.
McGinnis v. Missouri Pacific Ry.
Co., 21 Mo. App. 399 (1886),
935.
McGowan v. New York City Ry.
Co., 99 N. Y. Supp. (App.
Div.) 835 (1906), 862.
McGowan v. Wilmington & W.
R. R. Co., 95 N. C. 417
(1886), 913.
McGowen v. Morgan's La. & Tex.
R. R. & S. S. Co., 41 La. Ann.
732 (1889), 887, 888.
McGrath v. Eastern Ry. Co., 74
Minn. 363 (1898), 944.
McGraw v. Baltimore & O. R. R.
Co., 18 W. Va. 361 (1881),
665, 842, 902, 916, 917, 988.
McGregor v. Kilgore, 6 Ohio, 359
(1834), 172.
McGuinn v. Forbes, 37 Fed. 639
(1889), 566.
McHenry v. Philadelphia, W. &
V. R. R. Co., 4 Harr. 448
(1846), 1036.
McHugh v. Schlosser, 159 Pa. St.
480 (1894), 631, 632, 638,
933.
McIntosh v. Augusta & A. Ry.
Co. (S. C.), 69 S. E. 159
(1910), 626, 880.
McIntosh v. Oregon Ry. & Nav.
Co., 17 Idaho, 100 (1909),
253, 1011.
McKay v. Ohio R. R. R. Co., 34
W. Va. 65 (1890), 890.
M'Kean v. M'Ivor, L. R. 6 Ex. 36
(1870), 1049.
McKee v. Owen, 15 Mich. 115
(1866), 769.
McKenzie v. Michigan Central
R. R. Co., 137 Mich. 112
(1904), 902.
McKeon v. Chicago, M. & St. P.
Ry. Co., 94 Wis. 477 (1896),
932.
McKibbin v. Great Northern Ry.
Co., 78 Minn. 232 (1899), 876.
McKibbin v. Wisconsin Central
Ry. Co., 100 Minn. 270
(1907), 769.
McKinley v. Chicago & N. W.
Ry. Co., 44 Iowa, 314 (1877),
844, 881.
McKone v. Michigan C. R. R.
Co., 51 Mich. 601 (1883),
369, 372.
McLain v. St. Louis & G. Ry.
Co., 131 Mo. App. 733 (1908),
845.
McLean v. Interurban St. Ry.
Co., 102 N. Y. App. Div. 18
(1905), 347.
McLean v. Rutherford, 8 Mo. 109
(1843), 875.
McLeod v. Pacific Telephone
Co., 52 Oreg. 22 (1908), 980.
McLeod v. Savannah, Albany &
Gulf R. R. Co., 25 Ga. 445
(1858), 241.
M'Manus, Ex parte, 6 Austral. L.
T. (Vict.) 12 (1884), 751.
McMaster v. Pennsylvania R. R.
Co., 69 Pa. St. 374 (1871),
1042.
McMeekin v. Central Carolina
Power Co., 80 S. C. 512
(1908), 114.
McMillan v. Chicago, R. I. & 0.
Ry. Co. (Iowa), 124 N. W.
1069 (1910), 519, 529, 1033.
McMillan v. Michigan S. & N. I.
R. R. Co., 16 Mich. 79
(1867), 338, 1002, 1012.
[ cxliv ]
TABLE OF CASES CITED
[ References are to sections]
McMillian v. Federal St. & P. V.
Pass. Ry. Co., 172 Pa. St. 523
(1896), 865, 882.
McNamara v. Gt. Northern Ry.
Co., 61 Minn. 296 (1895),
745.
McNees v. Missouri Pacific R. R.
Co., 22 Mo. App. 224 (1886),
1287.
McNeill v. Durham & C. R. R.
Co., 132 N. C. 510 (1903),
1295, 1363.
McNeill v. Southern Ry. Co., 202
U. S. 543 (1906), 836, 1415.
McNulty v. Pennsylvania R. R.
Co., 182 Pa. St. 479 (1897),
784, 1016.
McPadden v. New York Central
Ry. Co., 44 N. Y. 478 (1871),
966.
McPeck v. Western Union Tele-
graph Co., 107 Iowa, 356
(1899), 874, 1041.
McQuerry v. Metropolitan St.
Ry. Co., 117 Mo. App. 255
(1906), 879, 939.
McRae v. Canadian Pacific Ry.
Co. (Montreal), L. R. 4 S. C.
186 (1888), 762.
McRae v. Wilmington & W. R. R.
Co., 88 N. C. 526 (1883),
865.
MacVeagh v. Atchison, T. & S. F.
R. R. Co., 3 N. M. 205
(1885), 1036, 1046.
McVeety v. St. Paul, M. & M.
Ry. Co., 45 Minn. 268 (1891),
745.
McWhorter v. Pensacola & A. R.
R. Co., 24 Fla. 417 (1888),
1409.
MacWilliams v. Lake Shore & M.
S. Ry. Co., 146 Mich. 216
(1906), 942.
Madison v. Madison Gas & Elec-
tric Co., 129 Wis. 249 (1906),
111, 113, 215, 1216.
Madison v. Morristown Gaslight
Co., 65 N. J. Eq. 356 (1903),
273, 274.
Maffet v. Quine, 93 Fed. 347
(1899), 62.
Magee v. Pacific Improvement
Co., 98 Cal. 678 (1893), 751.
Maggie Hammond, The, 9 Wall.
(U. S.) 435 (1869), 165, 905,
906, 921.
Maghee v. Camden & A. R. R.
Tr. Co., 45 N. Y. 514 (1871),
905, 908, 921, 1017.
Maginnis v. Knickerbocker Ice
Co., 112 Wis. 385 (1901), 223.
Magruder v. Cumberland Tele-
phone & T. Co., 92 Miss. 716
(1908), 438.
Mahan v. Michigan Telephone
Co., 132 Mich. 242 (1903),
215, 216.
Mahon v. Blake, 125 Mass. 477
(1878), 1048.
Majestic Coal & C. Co. v. Illinois
Central R. R. Co., 162 Fed.
810 (1908), 857.
Majestic, The, 166 U. S. 375
(1897), 1004.
Mallon v. Board of Water Comrs.,
144 Mo. App. 104 (1910),
825.
Malochee v. Gt. So. Telephone &
T. Co., 49 La. Ann. 1690
(1897), 431, 442.
Maloney v. Bacon, 33 Mo. App.
501 (1888), 730.
Mallory v. Tioga R. R. Co., 39
Barb. (N. Y.) 488 (1862),
775.
Malott v. Central Trust Co., 168
Ind. 428 (1906), 777.
10
[ cxlv]
TABLE OF CASES CITED
[References are to sections]
Manchester & L. R. R. Co. v.
Concord R. R. Co., 66 N. H.
100 (1889), 694.
Manistee River Improvement Co.
v. Lamport, 49 Mich. 442
(1882), 72, 123.
Mann Boudoir Car Co. v. Dupre,
54 Fed. 646 (1893), 832,
845.
Mann v. Pere Marquette R. R.
Co., 135 Mich. 210 (1903),
403, 822, 1015, 1043.
Mann v. White River Log &
Booming Co., 46 Mich. 38
(1881), 55, 972.
Mann & W. v. Birchard & P., 40
Vt. 326 (1867), 1011.
Manning v. City of Devils Lake,
13 N. D. 47 (1904), 241.
Manning v. Louisville & N. R. R.
Co., 95 Ala. 392 (1891), 433,
1257, 1258.
Manufacturers' Coal Rates Case,
3 Can. Ry. Cas. 427 (1904),
1334.
Manville v. Cleveland & T. R. R.
Co., 11 Ohio St. 417 (1860),
783.
Maples v. New York & N. H. R.
R. Co., 38 Conn. 557 (1871),
440, 886.
Margaret, The, 94 U. S. 494
(1876), 173, 774.
Markham v. Brown, 8 N. H. 523
(1837), 106, 370, 493, 628,
630, 631, 632.
Marquette, H. & O. R. R. Co. v.
Kirkwood, 45 Mich. 51
(1880), 513.
Marsh v. Union Pacific Ry. Co.,
3 M'Crary, 236 (1882),
908.
Marshall v. American Express
Co., 7 Wis. 1 (1858), 1040.
Marshall v. Nashville R. & Light
Co., 118 Tenn. 254 (1906),
786, 1018.
Marshall v. New York Central
R. R. Co., 45 Barb. (N. Y.)
502 (1866), 840, 914, 1045.
Marshall v. Pontiac, O. & N. R.
R. Co., 126 Mich. 45 (1901),
875.
Marshall v. York N. & B. Ry.
Co., 11 C. B. 655 (1851),
341.
Marshall & A. v. Kansas City,
Ft. S. & M. Ry. Co., 74 Mo.
App. 81 (1898), 1017.
Martin, The D. R., 11 Blatch.
233 (1873), 362, 472, 498.
Martin v. Columbia & G. R. R.
Co., 32 S. C. 592 (1890), 872.
Martin v. Gt. Northern Ry. Co.,
110 Minn. 118 (1910), 665,
803, 854, 885.
Martin v. Southern Ry. Co., 51
S. C. 150 (1897), 759.
Martin v. Western Union Tele-
graph Co., 81 S. C. 432
(1908), 1041.
Mary Ann Guest, The, Olcott,
498, Fed. Cas. No. 9,197
(1847), 1046.
Maryland Telephone Co. v. Sim-
mons Sons Co., 103 Md. 137
(1906), 1123, 1430.
Maslin v. Baltimore & O. R. R.
Co., 14 W. Va. 180 (1878),
160, 1011, 1012, 1022.
Mason v. Grand Trunk Ry. Co.,
37 Upp. Can. Q. B. 163
(1875), 1031.
Mason v. Missouri Pacific Ry.
Co., 25 Mo. App. 473 (1887),
393, 727.
Mason v. Thompson, 9 Pick. 280
(1830), 263, 965, 984.
[ cxlvi]
TABLE OF CASES CITED
[References are to sections]
Massengale v. Western Union
Telegraph Co., 17 Mo. App.
257 (1885), 1025.
Massiter v. Cooper, 4 Esp. 260
(1803), 402, 735.
Matere v. Brown, 1 Cal. 221
(1850), 965.
Mathis v. Southern Ry. Co., 65
S. C. 271 (1902), 796, 833,
922.
Mathis v. Western Union Tele-
graph Co., 94 Ga. 338 (1894),
338, 412.
Matter of,-see the particular
matter by name.
Matthews v. Associated Press,
136 N. Y. 333 (1893), 138.
Matthews v. Board of Corpora-
tion Commrs., 106 Fed. 7
(1901), 1141.
Mauldin v. City Council of
Greenville, 33 S. C. 1 (1898),
218.
Mauldin v. Seaboard Air Line
Ry. Co., 73 S. C. 9 (1905),
799, 802.
Maunheim Ins. Co. v. Erie & W.
Tr. Co., 75 Minn. 357 (1898),
1294.
Maving v. Todd, 4 Campb. 225
(1815), 164.
Maxwell v. Gerard, 84 Hun, 537
(1895), 1034.
May v. Manson, 5 Cal. 360
(1855), 182, 771.
May v. Ontario & Q. Ry. Co.,
10 Ont. Rep. 70 (1885),
783.
Mayhew v. Eames, 3 B. & C. 601
(1825), 1001.
Mayo v. Village Fire Co., 96 Me.
539 (1902), 274.
Mayor of,-see the particular
city by name.
Mayor v. New England Transfer
Co., 14 Blatch. 159 (1887),
127.
Mayor v. Norwich & W. R. R.
Co., 109 Mass. 103 (1871),
805.
Mayor v. Yuille, 3 Ala. 137
(1841), 10.
Mays v. Seaboard Air Line Ry.
Co., 75 S. C. 455 (1906), 403,
404, 819, 820.
Meacham v. Galloway, 102 Tenn.
415 (1899), 365, 751, 969.
Means v. Carolina Central Ry.
Co., 124 N. C. 574 (1899),
763.
Mearns v. Central R. R. of N. J.,
163 N. Y. 108 (1900), 932.
Mears v. New York, N. H. & H.
Ry. Co., 75 Conn. 171 (1902),
1003, 1005, 1017.
Mechanics' & T. Bk. v. Gordon, 5
La. Ann. 604 (1850), 255,
743, 792.
M. E. Church V. Ashtabula
Water Co., 20 Ohio C. C. 578
(1900), 264.
Medawar v. Grand Hotel, 2 Q. B.
11 (1891), 432, 1034.
Meier v. Pennsylvania R. R. Co.,
64 Pa. St. 225 (1870), 189.
Meisner v. Detroit, B. I. & W.
Ferry Co., 154 Mich. 545
(1908), 117, 237, 241, 559.
Mellor v. Missouri Pacific Ry.
Co., 105 Mo. 455 (1891), 777.
Mellquist v. The Wasco, 53 Fed.
546 (1892), 442.
Meloche v. Chicago, M. & St. P.
Ry. Co., 116 Mich. 69
(1898), 727.
Memphis & Charleston R. R. Co.
v. Benson, 85 Tenn. 627
(1887), 800, 881, 844, 882.
[ cxlvii]
TABLE OF CASES CITED
Memphis, etc., R.
Chastine, 54
(1877), 441.
[References are to sections]
R. Co. v.
Miss. 503
Memphis Consol. Gas & E. Co. v.
Letson, 68 C. C. A. 453
(1905), 983.
Memphis Freight Co. v. Mayor,
etc., of Memphis, 4 Cold. 419
(1867), 101, 232.
Memphis News Publishing Co. v.
Southern Ry. Co., 110 Tenn.
684 (1903), 204, 253, 499,
689, 750.
Menacho v. Ward, 27 Fed. 529
(1886), 681, 685, 1286, 1287,
1327.
Menaugh v. Bedford Belt Ry.
Co., 157 Ind. 20 (1901),
207.
Mendenhall v. Atchison, T. & S.
F. Ry. Co., 66 Kans. 438
(1903), 746.
Mener v. Chicago, M. & St. P.
Ry. Co., 5 S. D. 568 (1894),
1001, 1010.
Mercantile M. & Ins. Co. v.
Chase, 1 E. D. Smith, 115
(1850), 180.
Mercantile Trust Co. v. Colum-
bus, S. & H. R. R. Co., 90
Fed. 148 (1898), 404, 816,
822.
Merchants' & M. Tr. Co. v.
Granger & L., 132 Ga. 167
(1909), 408.
Merchants' Bk. v. New Jersey
Steam Nav. Co., 6 How.
(U. S.) 344 (1848), 1017.
Merchants' C. P. & S. Co. v. In-
surance Co. of N. A., 151
U. S. 368 (1894), 1295.
Merchants' Dispatch Co. V.
Bolles, 80 Ill. 473 (1875), 180,
737.
Merchants' Dispatch Co. V. Corn-
forth, 3 Colo. 280 (1877), 180,
776, 795, 1011.
Merchants' Dispatch Transp. Co.
v. Furthmann, 149 Ill. 66
(1893), 1003.
Merchants' Dispatch Co. v. Joest-
ing, 89 Ill. 153 (1878), 180.
Merchants' Dispatch Co. v. Ley-
sor, 89 Ill. 43 (1878), 180.
Merchants'
Dispatch Co. v.
Smith, 76 Ill. 542 (1875), 985.
Merchants' Dispatch Transporta-
tion Co. v. Kahn, 76 Ill. 520
(1875), 905, 921.
Merchants' Transportation Co. v.
Bloch Bros., 86 Tenn. 392
(1888), 180, 181, 512, 1017.
Merchants' Wharfboat Assoc. v.
Wood, 64 Miss. 661 (1887),
599, 917.
Mercur v. Media Electric Light
Co., 19 Pa. Sup. Ct. 519
(1902), 113.
Meredith v. Railroad Co., 137
N. C. 478 (1905), 901.
Merriam v. Hartford & N. H. R.
R. Co., 20 Conn. 354 (1850),
393, 409, 733, 727.
Merrich v. Brainard, 38 Barb. 574
(1860), 173, 774.
Merrick v. Webster, 3 Mich. 268
(1854), 906.
Merrill v. American Express Co.,
62 N. H. 514 (1883), 1003.
Merrill v. Eastern R. R. Co., 139
Mass. 238 (1885), 395, 736,
760, 761, 945.
Merrill v. Southside Irr. Co., 112
Cal. 426 (1896), 384, 652.
Merrimac, The, 2 Sawyer, 586
(1874), 173, 774.
Merrimack Bank v. Lowell, 152
Mass. 556 (1891), 451.
[ cxlviii]
TABLE OF CASES CITED
[References are to sections]
Merriman v. Great Northern Exp.
Co., 63 Minn. 543 (1896), 601.
Merritt v. Earle, 29 N. Y. 115
(1864), 985.
Merritt v. Old Colony & N. Ry.
Co., 11 Allen (Mass.), 80, 83
(1865), 731.
Mershon v. Hobensack, 22 N. J.
L. 372 (1850), 160, 229, 963.
Merwin v. Butler, 17 Conn. 138
(1845), 184, 262.
Merz v. Chicago & N. W. Ry. Co.,
86 Minn. 33 (1902), 910.
Messenger v. Pennsylvania R. R.
Co., 7 Vroom (36 N. J. L.),
407 (1874), 1290, 1291, 1312,
1341.
Meyer v. Dresser, 10 C. B. (N. S.)
646 (1864), 1269.
Meyer v. St. Louis, I. M. & S. Ry.
Co., 54 Fed. 116 (1893), 638,
639, 934.
Meyers v. Hudson County Elec-
tric Co., 63 N. J. L. 573
(1899), 71.
Michaels v. New York C. R. R.
Co., 30 N. Y. 564 (1864),
918.
Michalitschke Bros. & Co. v.
Wells, F. & Co., 118 Cal. 683
(1897), 1020.
Michie v. New York, N. H. & H.
R. Co., 151 Fed. 694 (1907),
813.
Metcalf v. Hess, 14 Ill. 129 (1852) Michigan Box Co. v. Flint & P.
965.
Metcalf v. Yazoo & M. V. Ry.
Co. (Miss.), 52 So. 355
(1910), 402.
Metropolitan Electric Co.
V.
Ginder, 2 Ch. D. 799 (1901),
1240, 1321, 1338.
Metropolitan Co. v. Houston &
T. C. R. R. Co., 90 Fed. 683
(1898), 1066, 1082, 1089,
1090, 1108, 1136, 1138, 1341,
1160, 1409.
Metropolitan Trust Co. of New
York v. Toledo, St. L. & K.
C. Ry. Co., 107 Fed. 628
(1901), 1023.
Metz v. Cape Girardeau Water
Works Co., 202 Mo. 324
(1907), 350.
Metzger v. Schnabel, 23 N. Y.
Misc. 698 (1898), 365, 751.
Meuer v. Chicago, M. & St. P. Ry.
Co., 5 S. D. 568 (1894), 780.
Mexican Nat. R. R. Co. v. Savage
(Tex. Civ. App.), 41 S. W.
663 (1897), 1415.
M. R. R., 6 I. C. C. Rep. 335
(1897), 1237.
Michigan Central R. R. Co. v.
Burrows, 33 Mich. 6 (1875),
836, 914, 916, 917.
Michigan Central R. R. Co. v.
Carrow, 73 Ill. 348 (1874),
875, 876, 971.
Michigan Central R. R. Co. v.
Curtis, 80 Ill. 324 (1875), 665,
842, 916.
Michigan Central R. R. Co. v.
Lantz, 32 Mich. 502 (1875),
1036.
Michigan Central R. R. Co. v.
Pere Marquette R. R. Co.,
128 Mich. 333 (1901), 698.
Michigan Central R. R. Co. v.
Smithson, 45
45 Mich.
Mich. 212
(1881), 529.
Michigan Central R. R. Co. v.
Ward, 2 Mich. 538 (1853),
1038, 1039, 1042.
Michigan Southern R. R. Co. v.
McDonough, 21 Mich. 165
(1870), 256, 967.
[ cxlix]
TABLE OF CASES CITED
[References are to sections]
Michigan S. & N. I. R. R. Co. v.
Day, 20 Ill. 375 (1858), 518,
901, 1053.
Michigan S. & N. I. R. R. Co. v.
Shurtz, 7 Mich. 515 (1859),
393, 726.
Midland Nat. Bank v. Missouri
Pacific Ry. Co., 132 Mo. 492
(1896), 1045.
Midland V. R. R. Co. v. Hoffman
Coal Co., 91 Ark. 180 (1909),
804.
Millard v. Missouri, K. & T. R. R.
Co., 86 N. Y. 441 (1881), 876.
Milledgeville Water Co. v. Ed-
wards, 121 Ga. 555 (1904),
690, 701.
Miller & Co. v. Georgia R. R. &
Banking Co., 88 Ga. 563
(1891), 861, 1050.
Miller v. Federal Coffee Palace, 15
Victorian Law R. 30 (1889),
263.
Miller v. Mansfield, 112 Mass. 260
(1873), 1050.
Miller v. Peeples, 60 Miss. 819
(1883), 1032.
Mills v. Seattle, Renton & S. R.
Co., 50 Wash. 20 (1908),
878.
Millville Improvement Co. v.
Pitman G. & C. Gas Co., 75
N. J. L. 410 (1907), 274.
Miltimore v. Chicago & N. W. R.
R. Co., 37 Wis. 190 (1875),
414, 530, 991.
Milwaukee Elec. Ry. & L. Co.
v. Milwaukee, 87 Fed. 577
(1898), 189, 1081, 1089, 1108,
1123, 1132, 1138, 1162, 1166,
1171, 1173, 1430.
Milwaukee M. E. Co. v. Chicago,
R. I. & P. Ry. Co., 73 Ia. 98
(1887), 600.
Mims v. Seaboard Air Line Ry.,
69 S. C. 338 (1904), 341.
Minneapolis v. Minneapolis St.
Ry. Co., 215 U. S. 417 (1910),
1424, 1425.
Minneapolis & St. L. R. R. Co.
v. Minnesota, 186 U. S. 257
(1902), 1063, 1124, 1157,
1175, 1201, 1210, 1405, 1430,
1431.
Miller Bros. v. Railway Co., 33 Minneapolis & St. L. R. R. Co. v.
S. C. 359 (1890), 1033.
Miller v. Southern Ry. Co., 69
S. C. 116 (1903), 904.
Miller v. St. Louis R. R. Co., 5
Mo. App. 471 (1878), 932.
Miller v. Wilkes-Barre Gas Co.,
206 Pa. St. 254 (1903), 456.
Milliken v. Western Union Tele-
graph Co., 110 N. Y. 403
(1888), 348.
Milliman v. New York C. & H.
R. R. R. Co., 66 N. Y. 642
(1876), 632.
Milloy v. Grand Trunk Ry. Co.,
21 Ont. App. 404 (1894),
726.
Minnesota, 193 U. S. 53
(1904), 806.
Minneapolis, St. P. & S. S. M.
Ry. Co. v. Railroad Commis-
sion, 136 Wis. 146 (1908),
806, 809, 811, 812.
Minneapolis, St. P. & S. S. M.
Ry. Co. v. Railroad Commis-
sion, 137 Wis. 80 (1908),
1124.
Minnehaha, The, 1 Lush, 335
(1861), 173, 774.
Minnesota B. & C. Co. v. St.
Paul Cold-Storage Ware-
house Co., 75 Minn. 445
(1899), 143.
[ cl]
TABLE OF CASES CITED
[References are to sections]
Minnesota C. & Power Co. v.
Koochiching Co., 97 Minn.
429 (1906), 95, 114, 221.
Minter v. Chicago, R. I. & P. Ry.
Co., 82 Mo. App. 130 (1899),
901.
Missouri, K. & T. Ry. Co. v.
Huff, 98 Texas, 110 (1904),
763.
Missouri, K. & T. Ry. Co. v. Ken-
drick (Tex. Civ. App.), 32
S. W. 42 (1895), 932, 935.
Minter v. Pacific R. R. Co., 41 Missouri, K. & T. Ry. Co. v.
Mo. 503 (1867), 876.
Mires v. St. Louis & S. F. Ry.
Co., 134 Mo. App. 379
(1908), 1294.
Mississippi Cent. Ry. Co. v. Ken-
nedy, 41 Miss. 671 (1868),
876.
Missouri & N. A. R.
Co. v.
Sneed, 85 Ark. 293 (1908),
794.
Missouri, K. & T. Ry. Co. v.
Allen, 39 Tex. Civ. App. 236
(1905), 1024.
Missouri, K. & T. Ry. Co. v.
Beard, 34 Tex. Civ. App. 188
(1904), 729.
Missouri, K. & T. Ry. Co. v.
Byrne, 100 Fed. 359 (1900),
813.
Missouri, K. & T. Ry. Co. v. Car-
ter, 9 Tex. Civ. App. 677
(1895), 1004.
Missouri, K. & T. Ry. Co. v.
Cook, 8 Tex. Civ. App. 376
(1894), 881.
Missouri, K. & T. Ry. Co. v.
Davis, 24 Okla. 677 (1909),
1011.
Missouri, K. & T. Ry. Co. v.
Dinsmore, 108 U. S. 30
(1882), 178, 776.
Missouri, K. & T. Ry. Co. v.
Fookes (Tex. Civ. App.), 49
S. W. 858 (1897), 1414.
Missouri, K. & T. Ry. Co. v.
Haber, 169 U. S. 613 (1898),
1413.
Kyser, 38 Tex. Civ. App. 355
(1905), 804.
Missouri, K. & T. Ry. Co. v.
Love, 177 Fed. 493 (1910),
1061, 1099, 1126, 1133, 1138,
1141, 1196, 1206, 1373.
Missouri, K. & T. Ry. Co. v.
May, 194 U. S. 267 (1904),
1436.
Missouri, K. & T. Ry. Co. v. Mc-
Cann, 174 U. S. 580 (1898),
511.
Missouri, K. & T. Ry. Co. v.
Miller, 8 Tex. Civ. App. 241
(1894), 369, 372.
Missouri, K. & T. Ry. Co. v. New
Era Milling Co. (Kan.), 100
Pac. 273 (1909), 524, 682,
1290.
Missouri, K. & T. Ry. Co. v.
Smith, 6 Ind. Terr. 99 (1905),
341, 438.
Missouri, K. & T. Ry. Co. v.
Smith, 152 Fed. 608 (1902),
341, 438, 447, 1259.
Missouri, K. & T. Ry. Co. v.
Trinity C. L. Co., 1 Tex. Civ.
App. 553 (1892), 1333.
Missouri, K. & T. Ry. Co. v.
Truskett, 2 Ind. T. 633
(1899), 658, 909.
Missouri, K. & T. Ry. Co. v. Wil-
liams (Tex. Civ. App.), 40
S. W. 350 (1897), 759.
Missouri, K. & T. Ry. Co. v.
Williams, 91 Tex. 255 (1897),
759.
[ cli ]
TABLE OF CASES CITED
[References are to sections]
Missouri Pacific Ry. Co. v. Divin-
ney, 66 Kans. 776 (1903),
939.
Missouri Pacific Ry. Co. v. Evans,
71 Tex. 361 (1888), 632.
Missouri Pacific Ry. Co. v. Hams,
1 W. & W. (Tex. Ct. App.),
Dec., § 1263, 252.
Missouri Pacific Ry. Co. v. Har-
ris, 67 Texas, 166 (1886), 256,
662.
Missouri Pacific Ry. Co. v. Hol-
comb, 44 Kans. 332 (1890),
763.
Missouri Pacific Ry. Co. v. Lar-
abee Flour Mills Co., 211
U. S. 612 (1909), 821, 1416.
Missouri Pacific Ry. Co. v. Levi
(Tex. Ct. of App.), 14 S. W.
1062 (1889), 668, 912.
Missouri Pacific Ry. Co. v. Ne-
braska, 164 U. S. 403 (1896),
404, 820.
Missouri Pacific Ry. Co. v. Ne-
braska, 217 U. S. 196 (1910),
503, 820, 1434.
Missouri Pacific Ry. Co. v. Nevill,
60 Ark. 375 (1895), 667,
987.
Missouri Pacific Ry. Co. v. Peru-
Van Zandt Imp. Co., 73
Kans. 295 (1906), 916.
Missouri Pacific Ry. Co. v. Sher-
wood, 84 Tex. 125 (1892),
1008.
Missouri Pacific Ry. Co. v. Smith,
60 Ark. 221 (1895), 1063,
1201, 1407, 1431.
Missouri Pacific Ry. Co. v. Texas
& P. Ry. Co., 31 Fed. 862
(1886), 1222.
Missouri Pacific Ry. Co. v. Texas
& Pac. R. R. Co., 30 Fed. 2
(1887), 1286.
Missouri Pacific Ry. Co. v. Texas
& P. Ry. Co., 31 Fed. 864
(1887), 723, 833.
Missouri Pacific Ry. Co. v. Tiet-
ken, 49 Neb. 130 (1896), 780.
Missouri Pacific Ry. Co. v. Weil,
8 Kans. App. 839 (1899),
1048.
Missouri Pacific Ry. Co. v. Weis-
man, 2 Tex. Civ. App. 86
(1893), 413, 431.
Missouri Pacific Ry. Co. v. Wor-
tham, 73 Tex. 25 (1889), 932.
Missouri Pacific Ry. Co. V.
Young, 25 Neb. 651 (1889),
514, 525.
Mitchell v. Kansas City, C. & S.
Ry. Co., 116 Mo. App. 116
(1906), 594.
Mitchell v. Marker, 62 Fed. 139
(1894), 193.
Mitchell v. Negaunee, 113 Mich.
359 (1897), 218.
Mitchell v. Western Union Tel.
Co., 12 Tex. Civ. App.
(1896), 1014.
Mittleman v. Philadelphia R. T.
Co., 70 Atl. 828 (1908), 626.
Mobile v. Bienville Water Supply
Co., 130 Ala. 379 (1901), 68,
92, 218, 242, 705, 1290,
1300.
Mobile & G. R. R. Co. v. Cope-
land, 63 Ala. 219 (1879),
1033.
Mobile & O. R. R. Co. v. Dis-
mukes, 94 Ala. 135 (1891),
1286.
Mobile & O. R. R. Co. v. Hop-
kins, 41 Ala. 486 (1868), 786,
1018.
Mobile & O. R. R. Co. v. People
ex rel., 132 Ill. 559 (1890),
808, 810.
[ clii]
TABLE OF CASES CITED
[References are to sections]
Mobile & O. R. R. Co. v. Tupelo,
67 Miss. 35 (1889), 1033.
Mobile & O. R. R. Co. v. Weiner,
49 Miss. 725 (1874), 1004.
Mobile & O. R. R. Co. v. Wis-
dom, 5 Heisk. 125 (1871),
441.
Mobile, J. & K. C. Ry. Co. v.
Bay Shore L. Co. (Ala.), 51
So. 956 (1910), 1048.
Mobile, J. & K. C. Ry. Co. v.
Mississippi, 210 U. S. 187
(1908), 301.
Mobile St. Ry. Co. v. Watters,
135 Ala. 227 (1902), 441.
Moerder v. Fremont, 19 Ohio Cir.
Ct. 394 (1899), 484.
Moffat v. Gt. Western R. R. Co.,
15 L. T. (N. S.) 630 (1867),
724.
Mogul Steamship Co. v. Mc-
Gregor, 21 Q. B. Div. 544
(1892), 1287, 1328.
Mohawk, The, 8 Wall. 153 (1868),
1047.
Mohr & Smith v. Chicago & N. W.
R. R. Co., 40 Ia. 579 (1875),
1036.
Monnier v. New York C. & H. R.
R. R. Co., 175 N. Y. 281
(1903), 888.
Monopolies, Case of, 11 Coke, 84b
(1603), 51.
Montana, The, 22 Fed. 715
(1884), 165, 621.
Montana Union Ry. Co. v. Lan-
gois, 9 Mont. 419 (1890),
475, 476, 485.
Montgomery v. Buffalo Ry. Co.,
165 N. Y. 139 (1900), 882,
885.
Montgomery & E. Ry. Co. v.
Kolb, 73 Ala. 396 (1882),
409, 733.
Montgomery Light & P. Co. v.
Watts (Ala), 51 So. 726
(1909), 1251, 1354.
Montgomery Light & Water P.
Co. v. Citizens' L. H. & P.
Co., 147 Ala. 359 (1906), 79.
Montgomery St. Ry. Co. v.
Mason, 133 Ala. 508 (1902),
1044.
Montreal Gas Co. v. Cadieux, A.
C. 589 (1899), 453.
Montrose Pickle Co. v. Dodson
& H. Mfg. Co., 76 Iowa, 172
(1888), 1046.
Moore v. Baltimore & O. R. R.
Co., 103 Va. 189 (1904), 796.
Moore v. Champlain Electric Co.,
88 N. Y. App. Div. 289
(1903), 273, 280, 1346.
Moore v. Fitchburg R. R. Co., 4
Gray, 465 (1855), 890.
Moore v. Long Beach Develop-
ment Co., 87 Cal. 483 (1891),
751.
Moore v. Michigan Central R. R.
Co., 3 Mich. 23 (1853), 517,
1033.
Moore v. St. Louis, I. M. & S. Ry.,
67 Ark. 389 (1900), 757.
Moore v. Western Union Tele-
graph Co., 87 Ga. 613 (1891),
278.
Moore-Cortes Canal Co. v. Gyle,
36 Tex. Civ. App. 442 (1904),
93.
Morgan v. Insurance Co., 4 Dal-
las (U. S.) 455 (1806), 1265.
Morgan v. Ravey, 6 H. & N. 265
(1861), 964.
Morgan v. Saks, 143 Ala. 139
(1904), 193.
Morgan's L. & T. R. & S. S. Co. v.
Railroad Commission, 109
La. 247 (1902), 806, 809, 812.
[ cliii]
TABLE OF CASES CITED
[References are to sections]
Morning Star v. Louisville & N.
R. R. Co., 135 Ala. 251
(1902), 446, 890.
Morrill v. Minneapolis St. Ry.
Co., 103 Minn. 362 (1908),
889.
1
Morris & E. R. R. Co. v. Ayres, 29
N. J. L. 393 (1862), 1038,
1051.
Morrison v. Davis, 20 Pa. St. 171
(1852), 917.
Morrison v. Thistle Coal Co., 119
Iowa, 705 (1903), 225.
Morrow v. Atlanta & A. L. Ry.
Co., 134 N. C. 92 (1903), 369.
Morse v. Canadian Pacific Ry.
Co., 97 Me. 77 (1902), 1007.
Morse v. Slue, 1 Mod. 85 (1671),
13, 391, 667, 987.
Moses v. Boston & Maine R. R.
Co., 24 N. H. 71 (1851), 393,
724, 726, 727, 1002.
Moses v. Boston & Maine R. R.
Co., 32 N. H. 523 (1856),
1001, 1037, 1038.
Mosher v. Southern Exp. Co., 38
Ga. 37 (1868), 512, 1017.
Moss v. Bettis, 4 Heisk. 661
(1871), 167, 228, 236, 968.
Mott v. Cherryvale Water Co.,
48 Kans. 12 (1892), 350.
Mott v. Long I. Ry. Co., 123
N. Y. Supp. 49 (1910), 1048.
Mottley v. Louisville & N. R. Co.,
150 Fed. 406 (1907), 341,
1298, 1364.
Moulton v. St. Paul, M. & N.
Railroad Co., 31 Minn. 85
(1883), 256, 1022.
Mountain v. Louisville & N. R. R.
Co., 29 So. 602 (1900), 1005.
Mt. Auburn Cemetery v. Cam-
bridge, 150 Mass. 12 (1889),
69.
Mt. Vernon Co. v. Alabama Gt. S.
R. R. Co., 92 Ala. 296 (1890),
1053.
•
Mudgett v. Bay State Steamboat
Co., 1 Daly (N. Y.), 151
(1861), 769.
Muehlhausen v. St. Louis R. R.
Co., 91 Mo. 332 (1886), 623,
738, 745.
Mugge v. Tampa Water Works
Co., 52 Fla. 371 (1906),
350.
Muldoon v. Seattle City Ry. Co.,
7 Wash. 528 (1893), 786,
1011, 1018.
Muldowney v. Pittsburg & B. Tr.
Co., 8 Pa. Super. Ct. 335
(1898), 439, 877.
Mullan v. Wisconsin C. Ry. Co.,
46 Minn. 474 (1891), 942.
Mulligan v. Illinois Central Ry.
Co., 36 Iowa, 181 (1873),
1003.
Mulligan v. Northern Pacific Ry.
Co., 4 Dak. 315 (1886),
726.
Mulliner v. Florence, 3 Q. B. D.
484 (1878), 431.
Mulrooney v. Obear, 171 Mo. 613
(1903), 379, 690, 701.
Munn v. Illinois, 94 U. S. 113
(1876), 19, 65, 97, 141, 186,
202, 232, 293, 294, 1121, 1401,
1402, 1407, 1427.
Munster v. South Eastern Ry.
Co., 4 C. B. (N. S.) 676
(1858), 413, 769.
Murch v. Concord R. R. Corp.,
29 N. H. 9 (1854), 763.
Murchison v. Sargent, 69 Ga. 206
(1882), 1001.
Murdock v. Boston & Albany R.
R. Co., 137 Mass. 293 (1884),
889.
[ cliv ]
TABLE OF CASES CITED
[References are to sections]
Murphy v. Great Northern Ry.
Co., 2 L. R. Irish. 301 (1897),
943.
Murphy v. Innes, 11 So. Aus-
tralia, 56 (1877), 364.
Murphy v. Western & A. R. R.
Co., 23 Fed. 637 (1885), 942.
Murphey Hardware Co. v. South-
ern Ry. Co., 150 N. C. 703
(1909), 670, 688, 912.
Murray v. International Steam-
ship Co., 170 Mass. 166
(1898), 769.
Murray v. Marshall, 9 Col. 482
(1896), 1034.
Muschamp v. Lancaster & Pres-
ton Junction Ry. Co., 8 M. &
W. 421 (1841), 512.
Myers v. Brooklyn Heights R. R.
Co., 10 App. Div. 335 (1896),
347.
Myers v. Pennsylvania Co., 2
Int. Com. Rep. 403 (1889),
1237.
Mynard v. Syracuse, B. & N. Y.
R. R. Co., 71 N. Y. 180
(1877), 1009, 1012.
Myrick v. Michigan R. R. Co., 9
Biss. 44 (1879), 1033.
Myrick v. Michigan Cent. R. R.
Co., 107 U. S. 102 (1882),
256.
Mystic Milling Co. v. C., M. &
St. P. Ry. Co., 131 Iowa, 10
(1906), 448.
N
Nairin v. Kentucky Heating Co.,
27 Ky. L. R. 551 (1900), 112,
265, 594, 595, 792.
Nanson v. Jacob, 93 Mo. 331
(1887), 514, 544.
Napman v. People, 19 Mich. 352
(1869), 484.
Nash v. Page, 80 Ky. 539 (1882),
142, 146, 293.
Nashua Lock Co. v. Worcester &
N. R. R. Co., 48 N. H. 339
(1869), 512.
Nashua & L. R. R. Corp. v. Bos-
ton & L. R. R. Corp., 136
U. S. 356 (1890), 1162.
Nashville, C. & St. L. Ry. Co. v.
Grayson County Nat. Bank,
100 Tex. 17 (1906), 1045.
Nashville, C. & St. L. Ry. Co. v.
Moore, 148 Ala. 63 (1906),
879.
Nashville, C. & St. L. Ry. Co. v.
State, 137 Ala. 439 (1902),
806.
Nashville, C. & St. L. Ry. Co. v.
Stone & H., 112 Tenn. 348
(1904), 985, 1005.
Nashville Street Ry. Co.
V.
Griffin, 104 Tenn. 81 (1900),
401, 403, 868, 870.
Nashville & C. R. R. Co. v. Jack-
son, 6 Heisk. 271 (1871),
256.
Nashville, etc., R. R. Co. v. Mes-
sino, 1 Sneed, 220 (1853),
207, 756, 762.
Nassau E. Ry. Co. v. Corliss, 126
Fed. 355 (1903), 864.
Natchez & Jackson R. R. Co. v.
McNeil, 61 Miss. 434 (1884),
795.
National Bank of Commerce v.
Chicago, B. & N. R. R. Co.,
44 Minn. 224 (1890), 747,
1047.
National Car Advertising Co. v.
Louisville & N. R. R. Co.,
110 Va. 413 (1909), 503.
National Docks Ry. Co. v. Cen-
tral R. R. Co., 32 N. J. Eq.
755 (1880), 129.
[ clv ]
TABLE OF CASES CITED
[References are to sections]
National Tel. News Co. v. West-
ern Union Telegraph Co., 119
Fed. 294 (1902), 494, 624.
Naugatuck R. R. Co. v. Water-
bury Button Co., 24 Conn.
468 (1856), 513.
Neaffie, The, 1 Abb. (U. S.) 465
(1870), 774.
Nebraska Meal Mills v. St. Louis
S. W. Ry. Co., 64 Ark. 169
(1897), 1045.
Nebraska Telephone Co. v. Cor-
nell, 59 Neb. 737 (1900),
1128, 1404.
Nebraska Telephone Co. v. State,
55 Neb. 627 (1898), 136.
Nellis v. New York Central R. R.
Co., 30 N. Y. 505 (1864), 873,
1343.
Nelson v. Bolat, 180 Fed. 779
(1910), 560, 611.
Nelson v. Gt. Northern R. R.
Co., 28 Mont. 297 (1903),
656, 1020.
Nelson v. Johnson, 104 Minn. 440
(1908), 263.
Nelson v. Woodruff, 1 Black, 156
(1861), 988.
Nettles v. South Carolina Ry.
Co., 7 Rich. L. 190 (1854),
915.
Nevin v. Pullman Palace Car Co.,
106 Ill. 222 (1883), 624, 884.
Newark, City of, v. Newark Wa-
terworks Co., 4 Ohio N. P.
341 (1897), 865, 1251.
Newark & S. O. R. R. Co. v. Mc-
Cann, 58 N. J. L. 642 (1896),
638.
Newborn v. Just, 2 C. & P. 76
(1825), 1001.
New Brunswick & Canada Ry.
Co., 1 Pugsley & Burbridge,
667 (1878), 310.
New Brunswick S. B. & C. Co. v.
Tiers, 24 N. J. L. 697 (1853),
985.
New Central Coal Co. v. George's
Creek C. & I. Co., 37 Md.
537 (1872), 223.
New England, The, 110 Fed. 415
(1901), 1010.
New England Express Co. v.
Maine Central R. R. Co., 57
Me. 188 (1869), 176, 214,
479, 1289.
New Jersey City & B. Ry. Co. v.
Morgan, 52 N. J. L. 60
(1889), 886.
New Jersey R. R. & Transp.
Co. v. Pennsylvania R. R.
Co., 27 N. J. L. 100 (1858),
775.
New Jersey Steam Nav. Co. v.
Merchants' Bank, 6 How.
344 (1848), 1002.
New Jersey Steamboat Co. v.
Brockett, 121 U. S. 637
(1886), 938.
New Memphis G. & L. Co. v.
Memphis, 72 Fed. 952
(1896), 1123, 1132, 1410,
1430.
New Mexico ex rel. v. Denver &
R. G. R. R. Co., 203 U. S.
38 (1906), 1418.
New Orleans I. & Gt. N. R. R.
Co. v. Tyson, 46 Miss. 729
(1872), 1038, 1039, 1042.
New Orleans & N. E. R. R. Co. v.
George, 82 Miss. 710 (1903),
1050.
New Orleans & N. E. R. R. Co. v.
Thomas, 60 Fed. 379 (1894),
760.
New Orleans Gas Light Co. v.
Paulding, 12 Rob. 378
(1845), 111, 377, 456.
[ clvi]
TABLE OF CASES CITED
[References are to sections]
New Orleans, J. & G. N. R. R.
Co. v. Statham, 42 Miss. 607
(1869), 635, 933.
New Orleans, M. & T. Ry. Co. v.
Southern & A. Telegraph
Co., 53 Ala. 211 (1875), 56,
133.
New Orleans, St. L. & C. R. R.
Co. v. Burke, 53 Miss. 200
(1876), 942.
Newport News & M. V. R. R. Co.
v. Mendell, 17 Ky. Law Rep.
1400 (1896), 733.
Newport News & M. V. R. R. Co.
v. Mercer, 16 Ky. Law Rep.
555 (1895), 855.
Newport News & M. V. R. R. Co.
v. Mercer & W., 96 Ky. 475
(1895), 659.
Newport News & M. V. R. R. Co.
v. Reed, 10 Ky. L. Rep. 1020
(1889), 850, 914.
New York v. Interborough R. T.
Co., 53 N. Y. Misc. 126
(1907), 503.
New York v. Starin, 106 N. Y.
1 (1887), 182, 299, 767,
771.
New York, City of, v. Interbor-
ough R. T. Co., 125 N. Y.
App. Div. 437 (1908), 77.
New York ex rel. v. Knight, 192
U. S. 21 (1904), 1416.
New York & N. R. R. Co. v. New
York & N. E. Ry. Co., 50
Fed. 867 (1892), 534.
New York & W. Printing Tele-
graph Co. v. Dryburg, 35
Pa. St. 298 (1860), 133, 348,
980.
New York Cement Co. v. Con-
solidated Rosendale Cement
Co., 178 N. Y. 167 (1904),
315, 707.
New York Central & H. R. R. R.
Co. v. Flynn, 74 Hun, 124
(1893), 483.
New York Central & H. R. R. R.
Co. v. Fraloff, 100 U. S. 24
(1879), 875.
New York Central & H. R. R.
R. Co. v. Metropolitan Gas
Light Co., 63 N. Y. 326
(1875), 31, 111.
New York Central & H. R. R. R.
Co. v. Sheeley, 27 N. Y.
Supp. 185 (1893), 483.
New York Central & H. R. R. R.
Co. v. Standard Oil Co., 87
N. Y. 486 (1882), 1042.
New York Central & H. R. R.
R. Co. v. Warren, 64 N. Y.
Supp. 781 (1900), 483.
New York, N. H. & H. R. R. Co.
v. Bork, 23 R. I. 218 (1901),
483.
New York, N. H. & H. R. R. Co.
v. Interstate Comm. Comm.,
200 U. S. 361 (1906), 707, 837.
New York, N. H. & H. R. R. Co.
v. New York, 165 U. S. 628
(1897), 1418, 1435.
New York, N. H. & H. R. R.
Co. v. Scovill, 71 Conn. 136
(1898), 483.
New York, P. & N. R. R. Co. v.
Cromwell, 98 Va. 227 (1900),
794, 796.
New York Stock Exchange v.
Chicago Board of Trade, 127
Ill. 153 (1889), 494.
New York Telephone Co. v.
Siegel-Cooper Co., 121 N. Y.
Supp. 1033 (1910), 1303,
1304.
New York, T. & M. R. R. Co. v.
Gallaher, 79 Tex. 685 (1891),
1348.
[ clvii]
TABLE OF CASES CITED
[References are to sections]
Newton v. Axon, 1 McCord, 509
(1821), 964.
Niagara v. Cordes, 21 How. 7
(1858), 239.
Niagara Falls & W. Ry. Co., Re,
108 N. Y. 375 (1888), 117,
195, 222.
Niagara L. & O. Power Co., Re,
111 App. Div. 686 (1906), 60.
Nichol v. Huntington Water Co.,
53 W. Va. 348 (1903), 300.
Nichols v. Chicago & W. M. Ry.
Co., 90 Mich. 203 (1892),
932.
Nichols v. McIntosh, 19 Colo. 22
(1893), 852.
Nichols v. Oregon Short Line Ry.
Co., 24 Utah, 83 (1901), 850,
834, 914.
Nichols v. Smith, 115 Mass. 332
(1874), 724.
Nicolette Lumber Co. v. People's
Coal Co., 26 Pa. Super. Ct.
575 (1904), 167, 270.
Nicolette Lumber Co. v. People's
Coal Co., 213 Pa. St. 379
(1906), 1050.
Nicoll v. East Tennessee, Va. &
Ga. Ry. Co., 89 Ga. 260
(1892), 1007.
Nicholson v. Gt. Western R. R.
Co., 5 C. B. (N. S.) 366
(1858), 1282, 1344, 1351,
1352.
Nicholson v. New York City Ry.
Co., 118 App. Div. 858
(1907), 347.
Nickerson v. Bridgeport Hydrau-
lic Co., 46 Conn. 24 (1878),
350.
Nitroglycerine Case, 15 Wall. (U.
S.) 524 (1872), 621.
Nixon v. Reid, 8 S. D. 507 (1896),
52.
Noble v. Atchison, T. & S. F. R.
R. Co., 4 Okla. 534 (1896),
397, 872.
Nolan v. New York, N. H. & H.
R. R. Co., 41 N. Y. Super.
Ct. 541 (1876), 889.
Noll v. Dubuque B. & M. R. R.
Co., 32 Iowa, 66 (1871), 58.
Norcross v. Norcross, 53 Me. 163
(1865), 213,725,770, 965, 969.
Norfolk & P. Belt Line v. Com-
monwealth, 103 Va. 289
(1904), 130, 151, 773.
Norfolk & W. R. R. Co. v. An-
derson, 90 Va. 1 (1893), 935,
938.
Norfolk & W. R. R. Co. v. Com-
monwealth, 93
93 Va. 749
(1896), 1413.
Norfolk & W. R. R. Co. v. Galli-
her, 89 Va. 639 (1893), 402,
735.
Norfolk & W. R. R. Co. v. Irvine,
85 Va. 217 (1888), 621.
Norfolk & W. R. R. Co. v. Marsh-
all, 90 Va. 836 (1894), 966.
Norfolk & W. R. R. Co. v. Old
Dominion Baggage Co., 99
Va. 111 (1901), 171, 489.
Norfolk & W. R. R. Co. v. Penn-
sylvania, 136 U. S. 114
(1890), 1414.
Norfolk & W. R. R. Co. v. Shott,
92 Va. 34 (1895), 777.
Norfolk & W. R. R. Co. v. Wysor,
82 Va. 250 (1886), 862, 878.
Norman v. Southern Ry. Co., 65
S. C. 517 (1903), 1004.
Normandale Lumber Co.
V.
Knight, 89 Ga. 111 (1892),
223.
Normille v. Northern Pacific Ry.
Co., 36 Wash. 21 (1904),
1037, 1038, 1042.
[ clviii ]
TABLE OF CASES CITED
[References are to sections]
Norris v. Farmers' & Teamsters'
Co., 6 Cal. 590 (1856), 53.
Norris v. Savannah, F. & W. Ry.
Co., 23 Fla. 182 (1887), 909.
North British Ry. Co. v. Cale-
donian Ry. Co., 3 Ry. & C.
Tr. Cas. 273 (1878), 775.
North Chicago St. R. R. Co. v.
Cook, 145 Ill. 551 (1893),
943, 978.
North Chicago St. R. R. Co. v.
Williams, 140 Ill. 275 (1892),
736.
North Hudson County Ry. Co. v.
Anderson, 61 N. J. L. 248
(1898), 441.
North Jersey Street Ry. Co. v.
Jersey City, 75 N. J. L. 349
(1907), 803.
Northern Central Ry. Co. v.
O'Connor, 76 Md. 207
(1892), 431, 441, 865, 878, 885.
Northern Colorado Irr. Co. v.
Richards, 22 Colo. 450
(1896), 852.
Northern Pacific Ry. Co. v.
Adams, 192 U. S. 440 (1904),
786, 1018.
Northern Pacific Ry. Co. V.
American Trading Co., 195
U. S. 439 (1904), 593.
Northern Pacific Ry. Co. v. Dus-
tin, 142 U. S. 492 (1891),
296, 306.
Northern Pacific Ry. Co. V.
Keyes, 91 Fed. 47 (1898),
1099, 1123, 1195, 1196, 1206,
1373, 1430.
Northern Pacific Ry. Co. v. Ter-
ritory, 3 Wash. Ter. 303
(1887), 808.
Northern Pacific Ry. Co. v. Wash-
ington Territory, 142 U. S.
492 (1892), 807.
Northwestern Improvement &
Boom Co. v. O'Brien, 75
Minn. 335 (1899), 73.
Northwestern Telephone
Telephone
Ex-
change Co. v. Chicago, M. &
St. P. Ry. Co., 76 Minn. 334
(1899), 64.
Northwestern Warehouse Co. v.
Oregon Ry. & Nav. Co., 32
Wash. 218 (1903), 404, 820.
Norway Plains Co. v. Boston &
M. R. R. Co., 1 Gray, 263
(1854), 1036, 1039, 1042.
Norwich Gas & E. Co. v. Nor-
wich, 76 Conn. 565 (1904),
1101, 1131.
Notara v. Henderson, L. R. 7 Q.
B. 225 (1872), 950.
Nugent v. Smith, 1 C. P. D. 19,
423 (1875), 233, 963.
Nutting v. Connecticut River R.
R. Co., 1 Gray, 502 (1854),
513.
Nuttleman v. Philadelphia R. T.
Co., 221 Pa. St. 485 (1908),
880.
Nye v. Marysville & Y. C. S. R.
R. Co., 97 Cal. 461 (1893),
431, 440, 877, 878.
Oakes v. Northern Pacific Ry.
Co., 20 Oreg. 392 (1891), 864,
875, 876.
Oakey v. Russell, 6 Martin (N.
S.), 58 (1827), 172.
O'Bannon v. Southern Express
Co., 51 Ala. 481 (1874),
480.
Oberndorfer v. Pabst, 100 Wis.
505 (1898), 193.
O'Brien v. New York Central &
H. R. R. R. Co., 80 N. Y.
263 (1880), 341, 438.
[ clix ]
TABLE OF CASES CITED
[References are to sections]
O'Brien v. Vaill, 22 Fla. 627
(1886), 1032.
O'Callaghan v. Dellwood P. Co.,
242 Ill. 336 (1909), 195.
Ocean Publishing Co. v. Associ-
ated Press, 184 Ill. 438
(1900), 138.
Ocean Steamship Co. v. Savan-
nah, L. W. & S. Co., 131 Ga.
831 (1909), 172, 229, 253,
270, 408, 553, 661, 791, 792,
841, 851.
Oconto, The, 5 Biss. 460 (1873),
173, 774.
O'Gara v. St. Louis Transit Co.,
204 Mo. 724 (1907), 944.
O'Gorman v. New York & Q. C.
Ry. Co., 89 N. Y. Supp. 589
(1904), 880.
Ohio & M. Ry. Co. v. Dickerson,
59 Ind. 317 (1877), 763.
Ohio & M. Ry. Co. v. Dunbar, 20
Ill. 623 (1858), 758, 775.
Ohio & M. Ry. Co. v. Hatton, 60
Ind. 12 (1877), 861, 872..
Ohio & M. Ry. Co. v. Nickless, 71
Ind. 271 (1880), 785, 875.
Ohio & M. Ry. Co. v. People, 120
Ill. 200 (1887), 311.
Ohio & M. Ry. Co. v. Swarthout,
67 Ind. 567 (1879), 397,
872.
Ohio & M. Ry. Co. v. Yohe, 51
Ind. 181 (1875), 1046.
Ohio Coal Co. v. Whitcomb, 123
Fed. 359 (1903), 1359.
Ohio Valley Gas Co., Re, 6 Pa.
Dist. Rep. 200 (1897), 59.
Ohio Valley Ry. Co. v. Watson's
Admr., 93 Ky. 654 (1893),
764.
Ohio Valley Rys. Receiver v.
Lander, 104 Ky. 431 (1898),
848.
Oklahoma City v. Oklahoma Ry.
Co., 20 Okla. 1 (1907), 1305.
Olanta Coal M. Co. v. Beech
Creek R. R. Co., 144 Fed. 150
(1906), 404, 817, 819, 1043.
Olcott v. Supervisors, 16 Wall.
678 (1872), 24.
Old Colony R. R. Co. v. Tripp,
147 Mass. 35 (1888), 483,
489.
Old Colony Trust Co. v. City of
Atlanta, 83 Fed. 39 (1897),*
1124, 1430.
Oliver v. Chicago, R. I. & P. Ry.
Co., 89 Ark. 466 (1909), 798.
Olmsted v. Morris Aqueduct Co.,
47 N. J. L. 311 (1885), 32,
242.
Olson v. Crossman, 31 Minn. 222
(1883), 1001.
Olson v. Northern Pacific Ry.
Co., 49 Wash. 626 (1908),
889.
Olson v. St. Paul & D. R. R. Co.,
45 Minn. 536 (1891), 780.
Omaha & R. V. Ry. Co. v. Chol-
lete, 33 Neb. 143 (1891),
1044.
O'Malley v. Great Northern Ry.
Co., 86 Minn. 380 (1902),
1020.
O'Neill v. Lynn & B. Ry. Co., 155
Mass. 371 (1892), 862, 879.
O'Neill v. New York Central &
H. R. R. R. Co., 60 N. Y.
138 (1875), 726.
Opinion of the Justices, 150
Mass. 592 (1890), 68, 111,
218, 243.
Opinion of the Justices, 182 Mass.
605 (1903), 64.
Oppenheimer v. United States
Express Co., 69 Ill. 62 (1873),
737, 990, 1001, 1021.
[ clx ]
TABLE OF CASES CITED
[References are to sections]
Orchard v. Bush, 2 Q. B. 284
(1898), 364, 752.
Oregon Ry. & W. Co. v. Campbell,
173 Fed. 957 (1909), 1124.
Oregon Short Line Ry. Co. v.
Davidson, 33 Utah, 370
(1908), 483.
Oregon S. L. & U. N. Ry. Co. v.
Northern Pacific Ry. Co., 51
Fed. 465 (1892), 528.
Oregon S. L. & U. N. Ry. Co. v.
Northern Pacific Ry. Co., 61
Fed. 158 (1894), 523, 534,
682.
O'Reiley et al. v. Kankakee Val-
ley Drainage Co., 32 Ind.
169 (1869), 67.
Ormandroyd v. Fitchburg & L.
St. R. R. Co., 193 Mass. 130
(1906), 944.
Ormsby Ry. Co. v. Union Pacific
Ry. Co., 2 McCreary, 48
(1880), 901, 914, 1026.
Orndorff v. Adams Express Co.,
3 Bush, 194 (1867), 1001,
1022.
O'Rourke v. Citizens' Street Ry.
Co., 103 Tenn. 124 (1899),
458.
Ortt v. Minneapolis & St. L. Ry.
Co., 36 Minn. 396 (1887),
513.
Osborne v. Adams County, 106
U. S. 181 (1882), 65.
Osgood v. Concord R. R. Co., 63
N. H. 255 (1884), 1377.
Oshkosh Waterworks Co. v. Osh-
kosh, 187 U. S. 437 (1910),
1421.
Oskamp et al. v. Southern Ex-
press Co., 61 Ohio St. 341
(1899), 1049.
Otis Co. v. Missouri Pacific Ry.
Co., 112 Mo. 622 (1892),
1010.
Ottawa v. Bodley, 67 Kan. 178
(1903), 484.
Overland Express Co. v. Van
Meter, 17 Fla. 783 (1880),
178.
Overland Mail & Express Co. v.
Carroll, 7 Colo. 43 (1883),
1020, 1022.
Overstreet v. Moser, 88 Mo. App.
72 (1901), 936.
Oviatt v. Dakota Central Ry.
Co., 43 Minn. 300 (1890), 756.
Owens v. Macon & B. R. R. Co.,
119 Ga. 230 (1903), 639,
640.
Owensboro Gas Light Co. v.
Hildebrand, 19 Ky. L. R. 983
(1897), 111, 113, 214, 215,
434, 435, 877, 1251, 1290,
1300.
Owensboro Harrison Telephone
Co. v. Wisdom, 23 Ky. L.
Rep. 97 (1901), 704.
Owensboro Waterworks Co. v.
Owensboro, 191 U. S. 358
(1903), 1422.
Oxadle v. North Eastern R. R.
Co., 1 C. B. (N. S.) 454
(1857), 204, 251, 661, 792,
1314.
Ozanne v. Illinois Central R. R.
Co., 151 Fed. 900 (1907), 795.
Ozark Bell Telephone Co. v.
Springfield, 140 Fed. 666
(1905), 1123, 1430.
P
Pabe v. Myers, 5 Ohio S. & C. P.
Dec. 578 (1895), 263.
Oswego v. Collins, 38 Hun, 171 Pacific, The, 1 Blatchf. (U. S.)
(1885), 238.
569 (1850), 183.
11
[ clxi ]
TABLE OF CASES CITED
[References are to sections]
Pacific Coast S. S. Co. v. Bancroft-
Whitney Co., 94 Fed. 180
(1899), 1026.
Pacific Express Co. v. Darnell, 62
Texas, 639 (1884), 178, 776.
Pacific Express Co. v. Foley, 46
Kan. 457 (1891), 1021.
Pacific Express Co. v. Hertzberg,
17 Tex. Civ. App. 100 (1897),
1008, 1049.
Pacific Express Co. v. Shearer,
160 Ill. 215 (1896), 1049.
Pacific Express Co. v. Wallace, 60
Ark. 100 (1895), 1005.
Pacific Telegraph Co. v. Under-
wood, 37 Neb. 315 (1893),
1011, 1014, 1025, 1026.
Packard v. Earle, 113 Mass. 280
(1873), 1040.
Packard v. Getman, 6 Cow. (N.
Y.) 757 (1827), 407, 733.
Packard v. Getman, 4 Wend. 613
(1830), 1048.
Packard v. Northcraft's Admr., 2
Met. 439 (1859), 770.
Packard v. Taylor, C. & Co., 35
Ark. 402 (1880), 919, 985.
Paddock v. Atchison, T. & S. F.
R. R. Co., 37 Fed. 841
(1889), 631, 645.
Padgitt v. Moll. & Citizens' Ry.
Co., 159 Mo. 143 (1900),
498, 746, 782.
Paducah Lumber Co. v. Paducah
Water Supply Co., 89 Ky.
340 (1889), 350.
Page v. Louisville & Nashville R.
R. Co., 129 Ala. 232 (1900),
806.
Paine v. Pennsylvania R. R. Co.,
7 Kulp, 187, 1342.
Paine Bros. & Co. v. Lehigh Val-
ley R. R. Co., 7 Int. Comm.
Rep. 218 (1897), 1351.
Painter v. London, B. & S. C. Ry.
Co., 2 C. B. (N. S.) 702
(1857), 483.
Palatka Waterworks v. Palatka,
127 Fed. 161 (1903), 1123,
1125, 1138, 1410, 1430.
Pallett v. Murphy, 131 Cal. 192
(1900), 378, 384.
Palmer v. Atchison, T. & S. F.
Ry. Co., 101 Cal. 187 (1894),
901, 1010.
Palmer v. Chicago, B. & Q. R. R.
Co., 56 Conn. 137 (1888),
517, 1033.
Palmer v. Danville, 154 Ill. 156
(1894), 824.
Palmer v. Larchmont Electric
Co., 158 N. Y. 231 (1899),
56, 71.
Palmer v. London & Southern
Ry. Co., L. R. 1 C. P. 588
(1866), 392, 868.
Palmer v. Lorillard, 16 Johns.
348 (1819), 591.
Palmer v. Winston-Salem Ry. &
Elec. Co., 131 N. C. 250
(1902), 939.
Palmer Transfer Co. v. Ander-
son, 131 Ky. 217 (1909), 489.
Pannell v. Louisville Tobacco
Warehouse Co., 113 Ky. 630
(1902), 142, 1153.
Panton Turnpike Co. v. Bishop,
11 Vt. 198 (1839), 75.
Pardee v. Drew, 25 Wend. 459
(1841), 172.
Paris & G. N. R. R. Co. v. Rob-
inson (Tex. Civ. App.), 114
S. W. 658 (1909), 632, 933.
Parish v. Ulster & D. R. R. Co.,
192 N. Y. 353 (1908), 889.
Parker v. Atlantic Coast Line R.
R. Co., 133 N. C. 335 (1903),
901, 1011.
[ clxii]
TABLE OF CASES CITED
[References are to sections]
Parker v. Flagg, 26 Me. 181
(1846), 172, 963.
Parker v. Great Western Ry. Co.,
7 M. & G. 253 (1844), 479.
Parker v. Great Western Ry. Co.,
11 C. B. 545, 583 (1851),
479.
Parks v. Alta Cal. Telegraph, 13
Cal. 422 (1859), 973, 980.
Parks v. Jacobs Dold Packing Co.,
6 Misc. 570 (1894), 1282.
Parks v. St. Louis & S. Ry. Co.,
178 Mo. 108 (1903), 760.
Parmelee v. Lowitz, 74 Ill. 116
(1874), 171, 514.
Parmelee v. McNulty, 19 Ill. 556
(1858), 171, 185, 364.
Parsons v. Chicago & N. W. Ry.
Co., 167 U. S. 447 (1897),
535, 1282, 1286.
Parsons v. Hardy, 14 Wend. 215
(1835), 915.
Parsons v. New York Central &
H. R. R. R. Co., 113 N. Y.
355 (1889), 1031.
Passenger R. R. Co. v. Young, 21
Ohio St. 518 (1871), 935, 938.
Pate v. Henry, 5 Stew. & P. (Ala.)
101 (1833), 182, 396, 658.
Gas Light Co. V.
Brady, 3 Dutch. 245 (1858),
31, 111.
Paterson
Patten v. Union Pac. Ry. Co., 29
Fed. 590 (1886), 522, 907.
Patterson v. Mississippi & R. R.
Boom Co., 18 Fed. Cas.
10,829 (1875), 73.
Patterson v. Missouri Pacific Ry.
Co., 77 Kan. 236 (1908), 836.
Patterson v. No. Carolina R. R.
Co., 64 N. C. 147 (1870), 666.
Patterson v. Omaha, etc., B. Ry.
& B. Co., 90 Iowa, 247
(1894), 1044, 1045.
Patterson v. Steamship Co., 53
S. E. 224 (1906), 834, 843,
850, 851.
Patterson v. Taylor, 51 Fla. 275
(1906), 848.
Patterson v. Wabash, St. L. & P.
Ry. Co., 54 Mich. 91 (1884),
740.
Patterson v. Wollmann, 5 N. D.
608 (1896), 52.
Pavitt v. Lehigh Valley Ry. Co.,
153 Pa. St. 312 (1893), 1023.
Pawnee Land & C. Co. v. Jenkins,
1 Colo. App. 425 (1892),
984.
Paxton & H. Irrigation Co. v.
Farmers' & M. Irr. Co., 45
Neb. 884 (1895), 93, 342,
701.
Paxton Tie Co. v. Detroit So. Ry.
Co., 10 U. C. C. Rep. 422
(1905), 1365.
Payne v. Terre Haute & I. Ry.
Co., 157 Ind. 616 (1902), 786,
1018.
Pearce v. Wabash R. R. Co., 89
Mo. App. 437 (1901), 431.
Pears v. Manhattan Ry. Co., N.
Y. Law Jour., Feb. 3, 1900,
503.
Pearsall v. Western Union Tele-
graph Co., 124 N. Y. 256
(1891), 412, 863.
Pearson v. Duane, 4 Wall. 605
(1866), 560, 561, 612, 634.
Pease v. Delaware, L. & W. R. R.
Co., 101 N. Y. 367 (1886),
447, 1259.
Peavey & Co. v. Union Pacific
Ry. Co., 176 Fed. 409 (1910),
815, 1360.
Peavy v. Georgia R. R. & Bank-
ing Co., 81 Ga. 485 (1888),
632, 633, 933.
[ clxiii]
TABLE OF CASES CITED
[References are to sections]
Peck v. New York Central & H.
R. R. R. Co., 70 N. Y. 587
(1877), 844, 881.
Peck v. Weeks, 34 Conn. 145
(1867), 950.
Pecos & N. T. Ry. Co. v. Evans-
Snider-Buel Co., 42 Tex. Civ.
App. 60 (1906), 914.
Peeples v. Brunswick & A. R. R.
Co., 60 Ga. 281 (1878), 939.
Peet v. Chicago & N. W. Ry. Co.,
20 Wis. 594 (1866), 840, 842,
914.
Pegram v. Western Union Tele-
graph Co., 100 N. C. 28
(1888), 742.
Peik v. Chicago N. W. Ry. Co.,
94 U. S. 164 (1876), 124,
1121, 1427.
Peixotti v. McLaughlin, 1 Strob.
L. 468 (1847), 184, 262.
Pelton v. Rensselaer & S. R. R.
Co., 54 N. Y. 214 (1873),
1040.
Pendall v. Rench, 4 McLean, 259
(1847), 963.
Pender v. Robbins, 6 Jones (N.
C.), 207 (1858), 255, 792.
Pendergast v. Adams Express
Co., 101 Mass. 120 (1869),
1017.
Pendergast v. Compton, 8 C. & P.
654 (1837), 611.
Peniston v. Chicago, St. Louis &
N. O. R. R. Co., 34 La. Ann.
777 (1882), 500, 823.
Penn v. Buffalo & E. R. R. Co.,
49 N. Y. 204 (1872), 949,
967, 989.
Penn. Steam Nav. Co. v. Dand-
ridge, 8 Gill & J. 248 (1836),
173.
Pennewill v. Cullen, 5 Harr. 238
(1849), 228, 235.
Pennington & E. v. Douglass, A.
& G. Ry. Co., 3 Ga. App. 665
(1907), 798, 835.
Pennington v. Philadelphia, W. &
B. R. R. Co., 62 Md. 95
(1883), 1258.
Pennsylvania Central R. R. Co.
v. Schwarzenberger, 45 Pa.
St. 208 (1863), 1017.
Pennsylvania Coal Co. v. Dela-
ware & Hudson Canal Co.,
31 N. Y. 91 (1865), 122, 241,
865, 1281.
Pennsylvania D. & M. Steam
Nav. Co. v. Dandridge, 8
Gill & J. 248 (1836), 774,
972.
Pennsylvania Iron Co. v. Lan-
caster, 17 Lanc. L. R. 161
(1900), 458, 549, 1324, 1354.
Pennsylvania R. R. Co. v. Balti-
more & O. Ry. Co., 60 Md.
263 (1883), 527.
Pennsylvania R. R. Co. v. Berry,
68 Pa. St. 272 (1871), 513.
Pennsylvania R. R. Co. v. Books,
57 Pa. St. 339 (1868), 784.
Pennsylvania R. R. Co. v. Bray,
125 Ind. 229 (1890), 864.
Pennsylvania R. R. Co. v. Chi-
cago, 181 Ill. 289 (1899), 485.
Pennsylvania R. R. Co. v. Clark,
2 Ind. App. 146 (1891), 901,
902.
Pennsylvania R. R. Co. v. Fries,
87 Pa. St. 234 (1878), 838, 903.
Pennsylvania R. R. Co. v. Ken-
wood Bridge Co., 170 Ill. 645
(1897), 414, 991.
Pennsylvania R. R. Co. v. Len-
hart, 120 Fed. 61 (1903), 888.
Pennsylvania R. R. Co. v. Live-
right, 14 Ind. App. 518
(1895), 1037.
[ clxiv]
TABLE OF CASES CITED
[References are to sections]
Pennsylvania R. R. Co. v. Mid-
vale Steel Co., 201 Pa. St.
624 (1902), 862, 1050.
Pennsylvania R. R. Co. v. Naive,
112 Tenn. 239 (1903), 599,
1038.
Pennsylvania R. R. Co. v. Phila-
delphia County, 220 Pa. St.
100 (1908), 1064, 1081, 1082,
1123, 1128, 1131, 1132, 1133,
1136, 1166, 1191, 1193, 1202,
1209, 1430.
Pennsylvania R. R. Co. v. Price,
96 Pa. St. 256 (1880), 777.
Pennsylvania R. R. Co. v. Reed,
60 Fed. 694 (1894), 736.
Pennsylvania R. R. Co. v. Roy,
102 U.S. 451 (1880), 776, 794.
Pennsylvania K. R. Co. V.
Shearer, 75 Ohio St. 249
(1906), 1023.
Pennsylvania R. R. Co. v. Sny-
der, 55 Ohio St. 342 (1896),
530.
Pennsylvania R. R. Co. v. Spicker,
105 Pa. St. 142 (1884), 862.
Pennsylvania R. R. Co. v. Van-
diver, 42 Pa. St. 365 (1862),
935.
Pennsylvania R. R. Co. v. Wood-
worth, 26 Ohio St. 585
(1875), 777, 778, 781.
Pennsylvania Refining Co. v.
Western N. Y. & P. R. R.
Co., 208 U. S. 208 (1908),
531, 1350.
Penny v. Atlantic Coast Line Co.,
133 N. C. 221 (1903), 942.
Penobscot Log D. Co. v. West
Branch D. & R. Dam Co.,
99 Me. 452 (1905), 55.
Pensacola & A. R. R. Co. v.
Florida, 25 Fla. 310 (1889),
1063, 1175, 1201, 1431.
People v. Albany & V. R. R. Co.,
24 N. Y. 261 (1862), 211, 300,
302, 304.
People v. Albion Water Works
Co., 121 N. Y. Supp. 660
(1910), 1300.
People v. Babcock, 16 Hun, 313
(1878), 254, 795.
People v. Board of Supervisors,
142 N. Y. 271 (1894), 299.
People v. Brooklyn Heights Ry.
Co., 75 N. Y. Supp. 202
(1902), 312, 319.
People v. Budd, 117 N. Y. 1
(1889), 20, 50, 141.
People v. Burnham Hospital, 71
Ill. App. 246 (1896), 70.
People v. Canal Co., 25 Colo. 202
(1898), 384.
People v. Caryl, 3 Park Cr. 326
(1857), 933.
People v. Chicago & A. R. R. Co.,
55 Ill. 95 (1870), 272, 531,
792.
People v. Chicago & A. R. R. Co.,
130 Ill. 175 (1889), 808, 809.
People v. Chicago Gas Trust Co.,
130 Ill. 268 (1889), 686.
People v. Chicago Telephone Co.,
220 Ill. 238 (1906), 795.
People v. Colorado Central R. R.
Co., 42 Fed. 638 (1890), 212,
302, 319.
People v. Deehan, 153 N. Y. 528
(1897), 275.
People v. Delaware & H. Canal
Co., 52 N. Y. Supp. 850
(1898), 813.
People v. Delaware & H. Canal
Co., 165 N. Y. 362 (1901),
806.
People v. Green Island Water Co.,
9 N. Y. Supp. 168 (1890).
1298.
[ clxv ]
TABLE OF CASES CITED
[References are to sections]
People v. Hudson River Tele-
phone Co., 19 Abb. N. C. 466
(1887), 136, 244, 624, 704.
People v. Illinois & St. L. R. R. &
Coal Co., 122 Ill. 506 (1887),
835.
People v. Illinois Central R. R.
Co., 233 Ill. 378 (1908), 391,
503, 703, 812.
People v. Jones, 54 Barb. 311
(1863), 234, 974.
People v. Kankakee River Im-
provement Co., 103 Ill. 491
(1882), 72, 241.
People v. Los Angeles Independ-
ent Gas Co., 150 Cal. 557
(1907), 112, 265, 792.
People v. Mago, 69 Hun, 559
(1893), 237, 241.
People v. McKay, 46 Mich. 430
(1881), 557, 879.
People v. Manhattan Gaslight
Co., 45 Barb. 136 (1865),
452, 453, 458, 460.
People v. New York Central & H.
R. R. R. Co., 28 Hun, 543
(1883), 202, 668.
People v. New York Suburban
Water Co., 56 N. Y. Supp.
364 (1899), 431, 981.
People v. New York, L. E. & W.
R. R. Co., 104 N. Y. 58
(1887), 805, 806.
People v. Northern Central Ry.
Co., 164 N. Y. 289 (1900),
299.
People v. People's Gas Light Co.,
205 Ill. 482 (1903), 51.
People v. Plainfield Ave. Gravel
Road Company, 105 Mich. 9
(1895), 300, 301.
People v. Rome, W. & O. R. R.
Co., 103 N. Y. 95 (1886), 299
306, 319.
People v. San Francisco & A. R.
R. Co., 35 Cal. 606 (1868), 241.
People v. St. Louis, A. & T. H.
R. R. Co., 176 Ill. 512 (1898),
211, 578, 740, 794, 797, 839.
People v. St. Louis & B. Electric
Ry. Co., 122 Ill. App. 422
(1905), 595.
People v. Stevens, 197 N. Y. 1
(1909), 1097.
People v. Western Union Tel. Co.,
166 Ill. 15 (1897), 412, 472,
497, 514.
People's Gaslight & Coke Co. v.
Chicago, 194 U. S. 1 (1904),
144, 1421, 1426.
People's Gas Light & C. Co. v.
Hale, 94 Ill. App. 406 (1900),
111, 112, 265, 1077, 1225,
1306.
Peoria & P. M. Ry. Co. v. Chi-
cago, R. I. & Pac. Ry. Co.,
109 Ill. 135 (1884), 529.
Peoria & P. Union Ry. Co. v.
United States Rolling Stock
Co., 136 Ill. 643 (1891), 775,
1043.
Pepper v. Telegraph Co., 87
Tenn. 554 (1889), 1014.
Pere Marquette R. R. Co. v.
Strange, 171 Ind. 160 (1908),
402, 735.
Perkins v. Chicago, S. L. & N. O.
R. R. Co., 60 Miss. 726
(1883), 763.
Perkins v. Missouri Pacific Ry.
Co., 155 Fed. 445 (1897),
1166.
Perkins v. New York Central R.
R. Co., 24 N. Y. 196 (1862),
785.
Perkins v. Northern Pacific Ry.
Co., 155 Fed. 445 (1908),
1091, 1092, 1124, 1430.
[ clxvi ]
TABLE OF CASES CITED
[References are to sections]
Perkins v. Portland, S. & P. R. R.
Co., 47 Me. 573 (1859), 511,
513.
Phenix Insurance Co. v. Liver-
pool & G. W. Steamship Co.,
22 Blatchf. 372 (1884), 165.
Perkins v. Wright, 37 Ind. 27 Phettiplace v. Northern Pacific
(1871), 875, 970.
Perry v. Philadelphia B. & W.
R. R. Co. (Del. Supr.), 77
Atl. 725 (1910), 778.
Perry v. Pittsburg Union Pass.
Ry. Co., 153 Pa. St. 236
(1893), 862, 877.
Perth General Station Committee
v. Ross, A. C. 479 (1897), 500.
Peters v. New Orleans & Gt. N.
R. R. Co., 16 La. Ann. 222
(1861), 772.
Petersen v. Case, 21 Fed. 885
(1884), 834.
Peterson, In re, 21 Fed. 885
(1884), 518, 1184.
Peterson v. Chicago & North-
western Ry. Co., 119 Wis.
197 (1903), 778.
Peterson v. Chicago, R. I. & P.
Ry. Co. (Iowa), 45 N. W.
573 (1890), 1017.
Peterson V. Seattle Traction
Co., 23 Wash. 615 (1900),
784.
Pfister v. Central Pacific R. R.
Co., 70 Cal. 169 (1886), 239,
255, 477, 792.
Phelan v. Boone Gas Co. (Icwa),
125 N. W. 208 (1910), 435,
552, 865, 877, 1300.
Phelan v. Boone Gas L., F. & P.
Co. v. Orr, 27 Ind. App. 1
(1910), 1300.
Phelps v. Illinois Central R. R.
Co., 94 Ill. 548 (1880), 666.
Phelps v. Windsor Stb. Co., 131
N. C. 12 (1902), 753.
R. R. Co., 84 Wis. 412 (1893),
888.
Philadelphia v. Philadelphia R. T. ·
Co. (Pa. St.), 73 Atl. 923
(1909), 1344.
Philadelphia & R. R. R. Co. v.
Beck, 125 Pa. St. 620 (1889),
522, 548, 906.
Philadelphia & R. R. R. Co. v.
Derby, 14 How. 468 (1852),
337, 785.
Philadelphia & R. R. R. Co. v.
Interstate Commerce Com-
mission, 174 Fed. 687 (1909),
1394.
Philadelphia, M. & S. St. Ry.
Co.'s Petition, 203 Pa. St. 354
(1902), 698.
Philadelphia, W. & B. R. R. Co.
v. Anderson, 72 Md. 519
(1890), 978.
Philadelphia, W. & B. R. R. Co.
v. Lehman, 56 Md. 209
(1881), 599.
Philadelphia, W. & B. R. R. Co.
v. Rice, 64 Md. 63 (1885),
862, 890.
Phillips v. Brigham, 26 Ga. 617
(1859), 905, 908, 921.
Phillips v. Earle, 8 Pick. 182
(1829), 737, 990,
1020,
1021.
Phillips v. Edwards, 3 H. & N. 813
(1858), 1001.
Phillips v. Southern Ry. Co., 114
Ga. 284 (1901), 697.
Phillips v. Southern Ry. Co., 124
N. C. 123 (1899), 398, 873.
Phelps, I. & Co. v. Hill, 1 Q. B. Phillips v. Watson, 63 Ia. 28
605 (1891), 909.
(1884), 223.
[ clxvii ]
TABLE OF CASES CITED
[References are to sections]
Phillips Co. v. Pruitt, 26 Ky.
Law Rep. 831 (1904), 193.
Phipps v. London & Northwestern
Ry. Co., 2 Q. B. D. 229
(1892), 1204, 1223, 1377.
Phoenix L. & F. Co. v. Bennett,
8 Ariz. 314 (1903), 983, 984.
Phoenix Powder Mfg. Co. v.
Wabash Ry. Co., 101 Mo.
App. 442 (1903), 1005.
Pickford v. Grand Junction Ry.
Co., 10 M. & W. 399 (1842),
479.
Pickett v. Southern Ry. Co., 69
S. C. 445 (1904), 395.
Piedmont Mfg. Co. v. Railroad
Co., 19 So. C. 353 (1882),
170, 230, 236, 1001.
Pierce v. Drew, 136 Mass. 75
(1883), 133.
Pierce v. Milwaukee R. R. Co., 23
Wis. 38 (1868), 971.
Pierce v. Southern Pacific Co., 120
Cal. 156 (1898), 907, 1010,
1021.
Pike v. Nash, 3 Abb. App. Dec.
610 (1864), 55, 238.
Pinchon's Case, 9 Coke, 87
(1611), 442.
Pinckney v. Western Union Tele-
graph Co., 19 S. C. 71 (1883),
133, 851, 980.
Pine Grove, Township of, v. Tal-
cott, 19 Wall. 666 (1873),
217.
Pingree v. Detroit, L. & N. R. R.
Co., 66 Mich. 143 (1887),
1046.
Pingree v. Michigan Central R.
R. Co., 118 Mich. 314 (1898),
1407.
Pinkerton v. Woodward, 33 Cal.
557 (1867), 204, 234, 240,
263, 725.
Pitcher v. Old Colony St. Ry. Co.,
196 Mass. 69 (1907), 978.
Pitlock v. Wells, Fargo & Co., 109
Mass. 452 (1872), 251, 531,
792.
Pittsburg & B. Traction Co. v.
Seidell, 6 Pa. Dist. R. 414
(1896), 503.
Pittsburg & M. Pass. Ry. Co. v.
Caldwell, 74 Pa. St. 421
(1873), 933.
Pittsburg & W. E. Pass. Ry. v.
Point Bridge Co., 165 Pa.
St. 37 (1894), 53, 241, 699.
Pittsburg, C. C. & St. L. Ry. Co.
v. Barrett, 36 Ohio St. 448
(1881), 393, 726.
Pittsburg, C., C. & St. L. Ry. Co.
v. City of Chicago, 242 Ill.
178 (1909), 547, 667, 987.
Pittsburg, C., C. & St. L. Ry. Co.
v. Daniels, 90 Ill. App. 154
(1899), 886, 889.
Pittsburg, C., C. & St. L. Ry. Co.
v. Higgs, 165 Ind. 694 (1905),
1011, 1016.
Pittsburg, C., C. & St. L. Ry. Co.
v. Hollowell, 65 Ind. 188
(1879), 669.
Pittsburg, C., C. & St. L. Ry. Co.
v. Krouse, 30 Ohio St. 222
(1876), 1044.
Pittsburg, C., C. & St. L. Ry. Co.
v. Lyon, 123 Pa. St. 140
(1888), 812.
Pittsburg, C., C. & St. L. Ry. Co.
v. Mahoney, 148 Ind. 196
(1897), 778, 1015.
Pittsburg, C., C. & St. L. Ry. Co.
v. Mitchell, 91 N. E. 735
(1910), 916, 1005.
Pittsburg, C., C. & St. L. Ry. Co.
v. Mooar Lumber Co., 27 Oh.
Cir. Ct. 588 (1905), 1050.
[ clxviii]
TABLE OF CASES CITED
[References are to sections]
Pittsburg, C., C. & St. L. Ry. Co.
v. Morton, 61 Ind. 539
(1878), 272, 333, 513, 531,
792, 804.
Pittsburg, C., C. & St. L. Ry. Co.
v. Nash, 43 Ind. 423 (1873),
1042, 1043.
Pittsburg, C., C. & St. L. Ry. Co.
v. Nuzum, 50 Ind. 141
(1875), 870, 872, 904.
Pittsburg, C., C. & St. L. Ry. Co.
v. Pillow, 76 Pa. St. 510
(1874), 632.
Pittsburg, C., C. & St. L. Ry. Co.
v. Racer, 10 Ind. App. 503
(1894), 831, 833, 922.
Pittsburg, C., C. & St. L. Ry. Co.
v. Racer, 5 Ind. App. 209
(1892), 722, 833.
Pittsburg, C., C. & St. L. Ry. Co.
v. Sheppard, 56 Ohio St. 68
(1897), 1010, 1011.
Pittsburg, C., C. & St. L. Ry. Co.
v. Street, 26 Ind. App. 224
(1901), 889.
Pittsburg, C., C. & St. L. Ry. Co.
v. Vandyne, 57 Ind. 576
(1877), 431, 632, 878, 885.
Pittsburg, C., C. & St. L. Ry. Co.
v. Van Houton, 48 Ind. 90
(1874), 800.
Pittsburg, C., C. & St. L. Ry. Co.
v. Viers, 113 Ky. 526 (1902),
272, 792.
Pittsburg, C., C. & St. L. Ry. Co.
v. Wood (Ind. App.), 84
N. E. 1009 (1908), 408, 443,
722, 853.
Pittsburg, F. W. & C. Ry. Co. v.
Hazen, 84 Ill. 36 (1876), 668,
912.
Pittsburg, F. W. & C. Ry. Co. v.
Hinds, 53 Pa. St. 512 (1866),
942, 944.
Pittsburg, W. & K. R. R. Co. v.
Benwood Iron Works, 31
W. Va. 710 (1888), 226.
Planters' Cotton Oil Co. v. West-
ern Union Teleg. Co., 126
Ga. 621 (1906), 412.
Planz v. Boston & Albany R. R.
Co., 157 Mass. 377 (1892),
623, 738.
Platt v. Le Cocq, 150 Fed. 391
(1906), 178, 392, 419, 580,
865, 868.
Playford v. United Kingdom Elec-
tric Telegraph Co., L. R. 4
Q. B. 706 (1869), 348.
Plessy, Ex parte, 45 La. Ann. 80
(1893), 848, 849, 566.
Plessy v. Ferguson, 163 U. S. 537
(1896), 848.
Plott v. Chicago & N. W. Ry.
Co., 63 Wis. 511 (1885),
865.
Pocantico Water Works Co. v.
Bird, 130 N. Y. 249 (1891),
221, 242.
Pocatello Water Co. v. Standley,
7 Idaho, 155 (1900), 273, 405,
706, 797, 824.
Pokrok Zapadu Pub. Co. v. Ziz-
kovsky, 42 Neb. 64 (1894),
69.
Polk v. Coffin, 9 Cal. 56 (1858),
213.
Polk & Co. v. Melenbacker, 136
Mich. 611 (1904), 751.
Pollard v. Vinton, 105 U. S. 7
(1881), 747.
Pollits v. Consolidated Gas Co.,
102 N. Y. Supp. 1017 (1907),
434.
Pollock v. Landis, 36 Ia. 651
(1873), 751.
Pomeroy v. Donaldson, 5 Mo.
36 (1837), 182.
[ clxix]
TABLE OF CASES CITED
[References are to sections]
Poole v. Northern Pacific R. R.
Co., 16 Oreg. 261 (1888), 887,
888.
Poole v. Paris Mt. Water Co., 81
S. C. 438 (1908), 377, 456,
458.
Pooling Freights, In re, 115 Fed.
588 (1902), 694.
Pope v. Western Union Tel. Co.,
9 Ill. App. (9 Bradw.) 283
(1881), 1041.
Porcher v. Northeastern R. R.
Co., 14 Rich. Law, 181
(1867), 663, 664, 800, 831.
Porter v. Gilkey, 57 Mo. 235
(1874), 1001.
Porter v. New York Central R. R.
Co., 34 Barb. 353 (1861), 888.
Porter v. Raleigh & G. R. R. Co.,
132 N. C. 71 (1903), 442,
978.
Porterfield V.
Humphreys, 8
Humph. 497 (1847), 229.
Portland Gas & Oil Co. v. State,
135 Ind. 54 (1893), 111, 243,
280, 320, 579, 686, 1325.
Portland Ry. Co. L. & P. Co. v.
Railroad Commission (Oreg.),
109 Pac. 273 (1909), 1377.
Post v. Railroad Co., 103 Tenn.
184 (1899), 521, 907.
Postal Cable Telegraph Co. v.
Cumberland Telephone &
Telegraph Co., 177 Fed. 726
(1910), 700, 704, 1216, 1246,
1287, 1290, 1300.
Postal Telegraph Cable Co. v.
Oregon S. L. Ry. Co., 23
Utah, 474 (1901), 56.
Potter v. Railway Co., 95 Mich.
389 (1893), 241.
Potwin Place, City of, v. Topeka
Ry. Co., 51 Kans. 609 (1893),
211, 305.
Poucher v. New York Central R.
R. Co., 49 N. Y. 263 (1872),
735, 780.
Poulin v. Canadian Pacific Ry.
Co., 52 Fed. 197 (1892), 889.
Pounder v. North E. Ry. Co., 1
Q. B. 385 (1891), 570, 942,
944.
Powell v. Duluth, 91 Minn. 53
(1903), 1245, 1246, 1251.
Powell v. Mills, 37 Miss. 691
(1859), 182, 241, 743, 963.
Powell v. Myers, 26 Wend. 591
(1841), 185.
Powers v. Boston & Maine R. R.
Co., 153 Mass. 188 (1891),
764.
Powers v. Davenport, 7 Blackf.
497 (1845), 905, 921.
Powers Mercantile Co. v. Wells-
Fargo & Co., 93 Minn. 143
(1904), 1010.
Pratt et al. v. Ogdensburg & L.
C. R. R. Co., 102 Mass. 557
(1869), 990.
Pray v. Omaha St. Ry. Co., 44
Neb. 167 (1895), 189, 945.
Prendergast v. Compton, 8 C. &
P. 454 (1837), 555.
Prentice v. Atlantic C. L. Ry.
Co., 211 U. S. 210 (1908),
1124, 1125, 1430.
Prescott & A. C. R. R. Co. v.
Atchison, T. & S. F. R. R.
Co., 73 Fed. 438 (1896), 534.
Prescott Irrigation Co. v. Fla-
thers, 20 Wash. 454 (1899),
93, 242.
Preston v. Water Commissioners
117 Mich. 589 (1898), 1075,
1172, 1303, 1304.
Prevost v. Gt. Eastern Ry. Co.,
13 L. T. (N. S.) 20 (1865),
872.
[ clxx]
TABLE OF CASES CITED
[References are to sections]
Price v. Chesapeake & O. Ry.
Co., 46 W. Va. 538 (1899),
878.
Price v. Denver & R. G. Ry. Co.,
12 Colo. 402 (1888), 522.
Price v. Oswego & S. R. R. Co.,
50 N. Y. 213 (1872), 1049.
Price v. Riverside Canal & Irr.
Co., 56 Cal. 431 (1880), 93,
242, 411.
Price v. St. Louis, I. M. & S.
Ry. Co., 75 Ark. 479 (1905),
632, 933.
Prickett v. New Orleans Anchor
Line, 13 Mo. App. 436
(1883), 1044.
Primrose v. Western Union Tele-
graph Co., 154 U. S. 1
(1893), 412, 766, 1014.
Princeton, The, 3 Blatch. 54
(1853), 173, 774.
Prince v. Crocker, 166 Mass. 347
(1896), 77, 191.
Prince. v. International & Great
Northern Ry. Co., 64 Tex.
144 (1885), 761.
Prindiville v. Jackson, 79 Ill. 337
(1875), 406, 824.
Propeller Mohawk, The, 8 Wall.
(U. S.) 153 (1869), 1265.
Propeller Niagara v. Cordes, 21
How. 7 (1858), 165, 239.
Provident Inst. for Savings v.
Allen, 37 N. J. Eq. 36
(1883), 374.
Pruitt v. Hannibal & St. J. R.
R. Co., 62 Mo. 527 (1786),
909.
Pryor, In re, 55 Kan. 724 (1895),
111, 1410, 1424.
Public Service Corp. v. American
Lighting Co., 67 N. J. Eq.
122 (1904), 111, 243, 282,
374, 406, 702.
Pudsey Coal Gas Co. v. Brad-
ford, L. R. 15 Eq. 167
(1873), 274.
Pugh v. City & Sub. Telephone
Assn., 9 Cinn. Law Bull.
104 (1883), 633.
Pullman P. C. Co. v. Adams, 120
Ala. 581 (1898), 153, 975.
Pullman P. C. Co. v. Bales, 80
Tex. 211 (1891), 606, 608,
645.
Pullman P. C. Co. v. Barker, 4
Colo. 344 (1878), 635, 933.
Pullman P. C. Co. v. Booth
(Civ. App.), 28 S. W. 719
(1894), 153, 832.
Pullman P. C. Co. v. Cain, 15
Tex. Civ. App. 503 (1897),
566, 832, 848, 849, 881.
Pullman P. C. Co. v. Freuden-
stein, 3 Colo. App. 540
(1893), 153, 975.
Pullman P. C. Co. v. Gavin, 93
Tenn. 53 (1893), 153, 938,
975.
Pullman P. C. Co. v. Gaylord, 9
Ky. L. Rep. 58 (1887), 153.
Pullman P. C. Co. v. Hall, 106
Ga. 765 (1899), 153, 975.
Pullman P. C. Co. v. Hunter, 21
Ky. L. Rep. 1248 (1900),
769.
Pullman P. C. Co. v. Krauss, 145
Ala. 395 (1906), 631, 638,
639, 643, 879, 934.
Pullman P. C. Co. v. Lawrence,
74 Miss. 782 (1897), 153,
940, 975.
Pullman P. C. Co. v. Lee, 49
Ill. App. 75 (1892), 382, 847.
Pullman P. C. Co. v. Lowe, 28
Neb. 239 (1889), 21, 153.
Pullman P. C. Co. v. Lutz, 154
Ala. 517 (1908), 932.
[ clxxi ]
TABLE OF CASES CITED
[References are to sections]
Pullman P. C. Co. v. Martin,
95 Ga. 314 (1894), 769.
Pullman P. C. Co. v. Nelson, 22
Tex. Civ. App. 223 (1899),
832.
Pullman P. C. Co. v. Reed, 75
Ill. 125 (1874), 832, 886.
Pullman P. C. Co. v. Smith, 73
Ill. 360 (1874), 153, 975.
Pullman P. C. Co. v. Smith, 79
Tex. 468 (1891), 932.
Purcell v. Daly, 19 Abb. N. C.
301 (1886), 117.
Purcell. v. Richmond & D. R. R.
Co., 108 N. C. 414 (1891),
664, 801.
Purnell v. McLane, 98 Md. 589
(1904), 78, 383.
Purple v. Union Pacific R. R.
Co., 114 Fed. 123 (1902),
764.
Purvis v. Coleman, 1 Bosw. 321
(1860), 1001.
Putman v. Broadway & 7th Ave.
R. R. Co., 55 N. Y. 108
(1873), 941, 942.
Pyle v. East Tenn., Va. & Ga.
Ry. Co., 1 I. C. C. 465
(1888), 1237.
Q
Queen v. McFarlane, 7 Can.
Sup. 216 (1882), 74, 972.
Quickstep, The, 9 Wall. 66
(1869), 173, 774.
Quigley v. Central Pacific R. R.
Co., 11 Nev. 350 (1876),
938.
Quimby v. Boston & M. R. R.
Co., 150 Mass. 365 (1890),
786, 1004, 1018.
Quincy, Inhabitants of, v. Bos-
ton, 148 Mass. 389 (1889),
274, 281.
Quinn v. Louisville & N. Ry.
Co., 98 Ky. 231 (1895), 848.
R
Radley v. Columbia Southern
R. R. Co., 44 Oreg. 332
(1904), 761.
Rae v. Grand Trunk Ry. Co.,
14 Fed. 401 (1882), 529.
Ragan & B. v. Aiken, 9 Lea, 609
(1882), 681, 1282, 1283,
1299, 1311, 1313.
Rahmel v. Lehndorff, 142 Cal.
681 (1904), 936.
Railroad Commission Cases, 116
U. S. 307 (1886), 124, 1122,
1401, 1408, 1409, 1411, 1420,
1423, 1428.
Railroad Commission v. A. C.
L. R. R. Co., 71 S. C. 130
(1905), 806.
Railroad Commission v. Hous-
ton & T. C. R. R. Co., 90
Tex. 340 (1897), 1409.
Railroad Commission v. Kansas
City So. Ry. Co., 111 La.
133 (1903), 404, 819.
Railroad Commission v. Port-
land & O. C. R. R. Co., 63
Me. 269 (1872), 806.
Railroad Commission V. St.
Louis & S. W. Ry. (Tex.),
80 S. W. 102 (1904), 224, 822.
Railroad Commission v. Weld,
96 Tex. 394 (1902), 1348.
Railroad Commission v. West-
ern Union Telegraph Co.,
113 N. C. 213 (1893), 814.
Railroad Commissioners, Re, 15
Neb. 679 (1883), 1404.
Railroad Commissioners, Re, 79
Vt. 266 (1906), 805, 806.
Railroad Co. v. Bunnell, 138
Ala. 247, 889.
[ clxxii]
TABLE OF CASES CITED
[References are to sections]
Railroad Co. v. Gilbert, Parkes
& Co., 88 Tenn. 430 (1889),
1005.
Railroad Co. v. Hailey, 94 Tenn.
383 (1895), 764.
Railroad Co. v. Husen, 95 U. S.
465 (1877), 1418.
Railroad Co. v. Kelley, 91 Tenn.
699 (1892), 919.
Railroad Co. v. Kuhn, 107 Tenn.
106 (1901), 966.
Railroad Co. v. Lockwood, 17
Wall. 357 (1873), 176, 780,
1002, 1007, 1011.
Railroad Co. v. Manufacturing
Co., 16 Wall. 318 (1872),
1003, 1004.
Railroad Co. v. Mitchell, 98
Tenn. 27 (1896), 635.
Railroad Co. v. Odil, 96 Tenn. 61
(1895), 912.
Railroad Co. v. O'Donnell, 49
Ohio St. 489 (1892), 610,
667, 910, 913.
Railroad Co. v. Pratt, 22 Wall.
123 (1874), 794.
Railroad Co. v. Reeves, 10 Wall.
176 (1870), 917, 920.
Railroad Co. v. Skillman, 39
Ohio St. 444 (1883), 447,
887, 1259.
Railroad Co. v. Southern Seat-
ing & Cabinet Co., 104
Tenn. 568 (1900), 518, 1033.
Railroad Co. v. Telegraph Co.,
38 Ohio St. 24 (1882), 814.
Railroad Co. v. Turner, 100
Tenn. 213 (1898), 862.
Railroad Co. v. Walrath, 38
Ohio St. 461 (1882), 776.
Railway Co. v. Bruce, 55 Ark. 65
(1891), 1042.
Railway Co. v. Lawton, 55 Ark.
428 (1892), 369.
Railway Co. v. Murphy, 60 Ark.
333 (1895), 733, 734.
Railway Co. v. Neville, 60 Ark.
375 (1895), 911, 1038.
Railway Co. v. Salzman, 52
Ohio St. 558 (1895), 933.
Railway Co. v. Smith, 60 Ark.
221 (1895), 577.
Railway Co. v. Sowell, 90 Tenn.
17 (1890), 1021.
Railway Co. v. Wynn, 88 Tenn.
320 (1890), 1020, 1022.
Raleigh & Gaston R. R. Co. v.
Davis, 2 D. & B. 451 (1837),
26, 58.
Ramberg v. South Carolina R.
R. Co., 9 S. C. 61 (1877), 989.
Ramm v. Minneapolis & St. R.
R. R. Co., 94 Ia. 296 (1895),
738, 761.
Rand v. Merchants' Dispatch
Transp. Co., 59 N. H. 363
(1879), 1007.
Randall v. Chicago, R. I. & P.
Ry. Co., 102 Mo. App. 342
(1903), 341, 440, 468.
Randall v. New Orleans & N. E.
R. R. Co., 45 La. Ann. 778
(1893), 889, 1011.
Randall v. Railroad Co., 108
N. C. 612 (1891), 431, 435.
Randolph v. Quincy, O. & K.
C. R. R. Co., 129 Mo. App.
1 (1908), 889.
Ransome v. Eastern Counties
Ry. Co., 1 C. B. (N. S.) 437
(1855), 1313.
Raritan River R. R. Co. v.
Middlesex & S. Traction
Co., 70 N. J. L. 732 (1904),
694.
Ratcliff v. Wichita Union Stock-
yards Co., 74 Kan. 1 (1906),
100.
[ clxxiii]
TABLE OF CASES CITED
[References are to sections]
Ratliff v. Quincy, O. & K. C. R.
R. Co., 118 Mo. App. 644
(1906), 904.
Rathbone v. Oregon R. R. Co.,
40 Oreg. 225 (1901), 761.
Ratzer v. Burlington, C. R. &
N. Ry. Co., 64 Minn. 245
(1896), 1045.
Rawlins v. Wabash Ry. Co., 97
Mo. App. 515 (1903), 341.
Rawson v. Holland, 59 N. Y. 611
(1875), 1053.
Ray v. United Traction, 96 N. Y.
App. Div. 48 (1904), 626.
Re,-see the particular name.
R. E. Lee, The, 2 Abb. (U. S.)
49 (1870), 769.
Read v. Amidon, 41 Vt. 15
(1868), 341, 770, 969.
Read v. St. Louis, K. C. & N.
R. R. Co., 60 Mo. 199 (1875),
912.
Readhead v. Midland Ry. Co.,
L. R. 4 Q. B. 379 (1869),
977.
Reagan v. Farmers' Loan &
Trust Co., 154 U. S. 362
(1894), 1091, 1099, 1122,
1161, 1166, 1401, 1402, 1406,
1407, 1411, 1412, 1429.
Reagan & B. v. Aiken, 9 Lea, 609
(1882), 1377.
>
Reary v. Louisville, N. O. & T.
Ry. Co., 40 La. Ann. 32
(1888), 745.
Reber v. Bond, 38 Fed. 822
(1889), 763.
Redkey Natural
Natural Gas v. Orr
(Ind.), 60 N. E. 716 (1901),
243, 707, 1288, 1300.
Redlands L. & C. D. Water Co.
v. Redlands, 121 Cal. 365
(1898), 1099, 1109, 1131,
1168, 1410.
Red Star Steamship Co. v. Jer-
sey City, 45 N. J. L. 246
(1883), 406, 825.
Reed v. Duluth & S. S. & A. Ry.
Co., 100 Mich. 507 (1894),
872.
Reed v. Philadelphia, W. & B.
R. R. Co., 3 Houst. 176
(1865), 723, 872, 904.
Reed v. Western Union Tele-
graph Co., 135 Mo. 661
(1896), 133, 1014.
Reed v. Wilmington Stb. Co., 1
Marv. (Del.) 193 (1893), 727.
Reed & Walker v. Philadelphia,
W. & B. R. R. Co., 3 Houst.
176 (1865), 442.
Reem v. St. Paul City Ry. Co.,
77 Minn. 503 (1899), 945.
Reese v. Pennsylvania R. R. Co.,
131 Pa. St. 422 (1890), 887.
Reg. v. Bristol & Exeter Ry. Co.,
4 Q. B. 162 (1843), 211, 300.
Reg. v. Eastern Counties Ry. Co.,
10 Ad. & El. 531 (1839), 304.
Reg. v. Rymer, 2 Q. B. D. 136
(1877), 263, 626, 974.
Regan v. Grand Trunk Ry. Co.,
61 N. H. 579 (1881), 521.
Reg. v. Sprague, 63 J. P. 233
(1899), 558, 568.
Regner v. Glens Falls, S. H. & F.
E. St. Ry. Co., 26 N. Y.
Supp. 625 (1893), 638, 645.
Reid & B. v. Southern Ry. Co.,
149 N. C. 423 (1908), 407.
Reidman v. Brooklyn, Q. C. & S.
Ry. Co., 51 N. Y. Supp. 196
(1898), 740.
Relf v. Rapp, 3 W. & S. (Pa.) 21
(1841), 737, 990.
Relyea v. New Haven R. M. Co.,
42 Conn. 579 (1873), 748,
1269,
[ clxxiv ]
TABLE OF CASES CITED
[References are to sections]
Renneker v. South Carolina R. R.
Co., 20 S. C. 219 (1883), 978.
Renville, Matter of, 46 N. Y.
App. Div. 37 (1899), 244.
Reuter v. El. T. Co., 6 E. & B.
341 (1856), 851.
Rex v. Collins, Palmer, 373, 2
Rolle, 345 (1623), 12, 106,
203, 291, 314.
Rex v. Ivens, 7 Car. & P. 213
(1835), 106, 396, 442, 557,
599, 632, 633.
Rex v. Luellin, 12 Mod. 445
(1700), 363.
Rex v. Smith, 65 J. P. 521 (1901),
106, 569.
Reynolds v. Western Union Tele-
graph Co., 81 Mo. App. 223
(1899), 871, 1041.
R. G. Winslow, The, 4 Biss. 13
(1860), 731.
Rhinehart, Matter of, 93 N. Y.
App. Div. 410 (1904), 116.
Rhodes v. Northern P. R. R. Co.,
34 Minn. 87 (1885), 850.
Rice v. Boston & W. R. R. Corp.,
98 Mass. 212 (1867), 1043.
Rice v. Illinois Central Ry.
Co., 22 Ill. App. 643 (1887),
970.
Rice v. Kansas Pacific Ry. Co., 63
Mo. 314 (1876), 1007.
Richardson v. North Eastern Ry.
Co., L. R. 7 C. P. 75 (1872),
414, 991.
Richardson v. Sewell, 2 Smith,
205 (1805), 229.
Richardson, Admr. v. Harrison,
Admx., 36 Mo. 96 (1865),
(1033).
Richberger v. American Express
Co., 73 Miss. 161 (1895), 931.
Richman v. Consolidated Gas
Co., 114 App. Div. 216
(1906), 1124, 1430.
Richmond v. Dubuque & Sioux
City R. R. Co., 26 Iowa, 191
(1868), 404, 492, 817.
Richmond v. Smith, 8 B. & C. 9
(1828), 770, 964.
Richmond v. Southern Pacific
Co., 41 Oreg. 54 (1902), 1011.
Richmond & D. R. R. Co. v. Jef-
ferson, 89 Ga. 554 (1892),
942.
Richmond & D. R. R. Co. v.
Payne, 86 Va. 481 (1890),
1002, 1021.
Richmond & D. R. R. Co. v.
Trammel, 53 Fed. 196
(1892), 1405.
Richmond & D. R. R. Co. v.
Trousdale & Sons, 99 Ala.
389 (1893), 916.
Rich v. Kneeland, Hob. 17, Ricker v. Lancaster, 14 Lanc.
13.
Richards v. London, B. & S. C.
Ry. Co., 7 C. B. 839 (1849),
769.
Richards v. Wescott, 2 Bosw. 589
(1858), 171, 990.
Richardson v. Chicago & A. Ry.
Co., 149 Mo. 311 (1899),
1005.
Richardson v. Hallstead, 44 Neb.
606 (1895), 1033.
L. Rev. (Pa.) 393 (1897),
1159.
Rickerson Roller Mill Co. v.
Grand Rapids & I. R. R. Co.,
67 Mich. 110 (1887), 517,
1033.
Rider v. Wabash, St. L. & P. Ry.
Co., 14 Mo. App. 529 (1884),
876.
Ridyard v. Phillips, 4 Blatch. 443
(1860), 1269.
[ clxxv ]
TABLE OF CASES CITED
[References are to sections]
Riley v. Chicago City Ry. Co.,
189 Ill. 384 (1901), 892.
Riley v. Horne, 5 Bing. 217
(1828), 1001.
Riley v. Vallejo Ferry Co., 173
Fed. 330 (1909), 402.
Riley v. Wrightsville & T. R. R.
Co., 133 Ga. 413 (1909), 904.
Ripley v. New Jersey R. R. &
Transp. Co., 31 N. J. L. 388
(1866), 886.
Rishton Local Board v. Lanca-
shire & Y. Ry. Co., 8 R. & C.
T. C. 74 (1893), 691.
Ritz v. Pennsylvania R. R. Co., 3
Phila. 82 (1858), 256, 989.
Rixford v. Smith, 52 N. H. 355
(1872), 256, 989.
Roach v. Canadian Pacific Ry. Co.,
1 Manitoba, 158 (1884), 514.
Robbins v. Bangor Ry. & Elec.
Co., 100 Me. 496 (1905), 431,
448, 624, 866, 883, 1244,
1245.
Robbins v. Western Washington
R. R. Co., 31 Pitts. L. J. (N.
S.) 181 (1900), 226.
Roberts v. Koehler, 30 Fed. 94
(1887), 353, 1255.
Roberts v. Western Union Tele-
graph Co., 73 S. C. 520
(1906), 874.
Robertson v. Kennedy, 2 Dana,
430 (1834), 160, 162, 163,
168, 184, 228, 239, 262.
Robertson v. New York & E. R.
R. Co., 22 Barb. (N. Y.) 91
(1856), 745, 761.
Robertson v. Old Colony R. R.
Co., 156 Mass. 525 (1892),
259, 755, 769, 772, 792.
Robinson v. Baltimore & O. R. R.
Co., 129 Fed. 753 (1904),
399, 420, 813, 868.
Robinson v. Baltimore & O. R.
Co., 64 W. Va. 406 (1908),
1294.
Robinson v. Cornish, 13 N. Y.
Supp. 577 (1890), 168, 213.
Robinson v. Dunmore, 2 B. & P.
416 (1801), 767, 769.
Robinson v. Holst & W., 96 Ga.
19 (1895), 905.
Robinson v. Merchants' Dispatch
Co., 45 Iowa, 470 (1877), 180.
Robinson v. Rockland, T. & C.
St. Ry. Co., 87 Me. 387
(1895), 632, 933.
Robinson v. St. Johnsbury & L.
C. Ry. Co., 80 Vt. 129
(1907), 477, 778.
Roby v. State ex rel. Farmers' G.
& L. S. Co., 76 Neb. 450
(1906), 224, 404, 491, 817,
822.
Rochester v. Rochester & Lake
Ontario Water Co., 189 N.
Y. 323 (1907), 92, 274.
Rochester & P. C. & I. Co. v.
Berwind-White C. M. Co.,
24 Pa. Co. Ct. 104 (1900),
226.
Rockingham County Light &
Power Co. v. Hobb, 72 N. H.
531 (1904), 56, 60, 95, 114,
243.
Rockland Water Co. v. Adams, 84
Me. 472 (1892), 242, 846,
1249, 1250.
Rocky Ford Canal, etc., Co. v.
Simpson, 5 Colo. App. 30
(1894), 242.
Rocky Mount Mills v. Wilming-
ton & W. R. Co., 119 N. C.
693 (1896), 181.
Rogers v. Atlantic City R. R.
Co., 57 N. J. L. 703 (1895),
878.
[ clxxvi ]
TABLE OF CASES CITED
[References are to sections]
Rogers v. Kennebec Stb. Co., 86
Me. 261 (1894), 786, 1018.
Rogers v. Long Island R. R. Co.,
2 Lans. (N. Y.) 269 (1869),
409, 730.
Rogers v. Missouri Pacific Ry.
Co., 75 Kan. 222 (1907), 917,
921.
Rogers v. Stophel, 32 Pa. St. 111
(1858), 102.
Rogers v. Wheeler, 52 N. Y. 262
(1873), 393, 724, 726.
Rogers Locomotive Works V.
Erie Ry. Co., 20 N. J. Eq.
379 (1869), 176, 214, 257,
473, 479, 695.
Rogers Park Water Co. v. Chi-
cago, 131 Ill. App. 35 (1907),
273.
Rogers Park Water Co. v. Fergus,
178 Ill. 571 (1899), 1410.
Rogers Park Water Co. v. Fergus,
180 U. S. 624 (1901), 1424.
Rohrig v. Chicago, R. I. & P. Ry.
Co., 130 Iowa, 380 (1906),
742.
Rome v. Oswego Road Co. v.
Stone, 62 Barb. 601 (1863),
442.
Rommel v. Schambacher,
120
Pa. St. 579 (1887), 936, 947.
Root v. Great Western R. R. Co.,
45 N. Y. 524 (1871), 212.
Root v. Long I. R. R. Co., 114
N. Y. 300 (1889), 1282, 1356.
Rose v. Des Moines Valley R. R.
Co., 39 Iowa, 246 (1874), 785,
1011.
Rosenberg v. Brooklyn Heights
St. Ry. Co., 91 N. Y. App.
Div. 580 (1904), 558.
Rosenfield v. Express
v. Express Co., 1
Woods (U. S.), 131 (1871),
1047.
Rosenfield v. Peoria, D. & E. Ry.
Co., 103 Ind. 121 (1885),
1019.
Ross v. Mellin, 36 Minn. 421
(1887), 725, 751.
Ross v. New York Central & H.
R. R. R. Co., 74 N. Y. 617
(1878), 783.
Ross v. Troy & B. R. R. Co., 49
Vt. 364 (1877), 414, 991.
Rosser v. Western Union Tele-
graph Co., 130 N. C. 251
(1902), 765.
Rothschild v. Wabash, St. L. & P.
R. R. Co., 92 Mo. 91 (1887),
1287, 1320, 1361, 1363.
Rott v. Forty-second St. Ferry R.
Co., 56 N. Y. Super. Ct. 151
(1888), 369.
Roussel v. Aumais, Rap. Jud.
Quebec, 18 C. S. 474 (1900),
236, 237, 241, 268.
Rowe v. Brooklyn Heights Ry.
Co., 75 N. Y. Supp. 893
(1902), 881.
Rowland v. New York, N. H. &
H. R. R. Co., 61 Conn. 103
(1891), 1294.
Rowley v. Horne, 3 Bingham, 2
(1825), 1001.
Roy & R. v. Northern Pacific Ry.
Co., 42 Wash. 572 (1906),
747.
Royston v. Illinois Central R. R.
Co., 67 Miss. 376 (1889), 942.
Rucher v. Missouri Pacific Ry.
Co., 61 Tex. 499 (1884), 745.
Rudell v. Grand Rapids Cold
Storage Co., 136 Mich. 528
(1904), 143.
Rudell v. Ogdensburg Transit Co.,
117 Mich. 568 (1898), 922.
Rudy v. Rio Grande E. Ry. Co., 8
Utah, 165 (1892), 889.
12
[ clxxvii ]
TABLE OF CASES CITED
[References are to sections]
Ruggles v. Illinois, 108 U. S. 526
(1883), 1428.
Runyan v. Central R. Co., 61 N.
J. L. 537, 64 N. J. L. 67, 65
N. J. L. 228 (1900), 626, 697,
875.
Ruppel v. Allegheny Ry. Co., 167
Pa. St. 166 (1895), 1122.
Rural Home Telephone Co. v.
Kentucky & I. Telephone
Co., 32 Ky. Law Rep. 1068
(1908), 700.
Safe Deposit Co. of Pittsburg v.
Pollock, 85 Pa. St. 391
(1877), 144.
Sage v. Evansville & T. H. R. R.
Co., 134 Ind. 100 (1892),
887.
Sager v. Northern Pac. Ry. Co.,
166 Fed. 526 (1908), 259.
Sager v. Portsmouth, S. & B.
Railroad Co., 31 Me. 228
(1850), 256, 796, 1001,
1011.
Rusell v. Neriemann, 17 C. B. (N. St. Clair v. Kansas City, M. &
S.) 163 (1864), 987.
Rushville v. Rushville Natural
Gas Co., 132 Ind. 575 (1892),
94, 112, 273.
Russ v. Steamboat Eagle, 14
Iowa, 363 (1862), 442.
Russell v. Erie R. R. Co., 70 N. J.
808 (1904), 1007.
Russell v. Fegan, 7 Houst. 389
(1886), 965.
Russell v. Pittsburg, C., C. & St.
L. Ry. Co., 157 Ind. 305
(1901), 482, 779, 785, 1015.
Russell v. Western Union Tele-
graph Co., 57 Kan. 230
(1906), 348, 1014, 1025.
Russel Grain Co. v. Wabash R.
R. Co., 114 Mo. App. 488
(1905), 834.
Rutherford v. Grand Trunk Ry.
Co., 5 Rev. Leg. (Can.) 483
(1873), 251, 554.
Rutland R. R. Co. v. Bellows
Falls & S. R. St. Ry. Co., 73
Vt. 20 (1900), 526.
Ryan v. Terminal Co., 102 Tenn.
111 (1899), 125.
S
Sadler v. Langham, 34 Ala. 311
(1859), 65, 241, 851.
B. R. R. Co., 76 Miss. 473
(1899), 602.
St. Clair v. Kansas City, M. &
B. R. R. Co., 77 Miss. 789
(1900), 602.
St. Clair County v. Interstate
Transfer Co., 192 U. S.
454 (1904), 127.
St. Clair Tunnel Co. v. Powers,
138 Fed. 262 (1905), 128.
St. John v. Express Co., 1 Woods,
612 (1871), 255, 413, 868,
1017.
St. Joseph & Denver City R. R.
Co. v. Ryan, 11 Kan. 602
(1873), 811.
St. Joseph & G. I. R. Co. v.
Palmer, 38 Neb. 463 (1893),
176, 963.
St. Joseph & Western R. R. Co.
v. Wheeler, 35 Kan. 185
(1886), 745, 762.
St. Louis & A. & C. R. R. Co. v.
Dalby, 19 Ill. 353 (1857),
888.
St. Louis & C. R. R. Co. v.
Postal Tel. Co., 173 Ill.
508 (1898), 691.
St. Louis & S. F. Ry. Co. v.
Garner (Miss.), 51 So. 273
(1910), 410.
[ clxxviii]
TABLE OF CASES CITED
[References are to sections]
St. Louis & S. F. Ry. Co. v.
Gill, 54 Ark. 101 (1891),
1127, 1175.
St. Louis & S. F. Ry. Co. v.
Gill, 156 U. S. 649 (1895),
1063, 1123, 1201, 1411, 1426,
1430, 1432.
St. Louis & S. F. Ry. Co. v. Gos-
nell, 23 Okla. 588 (1909), 763.
St. Louis & S. F. Ry. Co. v.
Hadley, 168 Fed. 317 (1909),
1099, 1128, 1129, 1132, 1135,
1152, 1195, 1196, 1206, 1220,
1301, 1373.
St. Louis & S. F. Ry. Co. v.
Hurst, 67 Ark. 407 (1900),
1023.
St. Louis & S. F. Ry. Co. v.
Marrs, 60 Ark. 637 (1895),
527.
St. Louis & S. F. Ry. Co. v.
Ostrander, 66 Ark. 567
(1899), 1294.
St. Louis & S. F. Ry. Co. v.
Phillips, 17 Okla. 264 (1906),
1023.
St. Louis & S. F. Ry. Co. v.
Roane, 93 Miss. 7 (1908),
602.
St. Louis & S. F. Ry. Co. v.
Sherlock, 59 Kan. 23 (1898),
1022.
St. Louis & S. F. Ry. Co. v.
Vaughan, 84 Ark. 311
(1907), 872.
St. Louis, A. & T. Ry. Co. v.
Finley, 79 Tex. 85 (1890),
638.
St. Louis, A. & T. Ry. Co. v.
Hardy, 55 Ark. 134 (1891),
1239.
St. Louis, A. & T. H. R. R. Co.
v. Hill, 14 Ill. App. 579
(1884), 1286, 1292.
St. Louis, A. & T. H. R. R. Co.
v. Montgomery, 39 Ill. 335
(1866), 726.
St. Louis, A. & T. H. R. R. Co. v.
South, 43 Ill. 176 (1867), 873.
St. Louis, A. & T. Ry. Co. v.
Turner, 1 Tex. Civ. App.
625 (1892), 1026.
St. Louis Brewing Assn. v. St.
Louis, 140 Mo. 419 (1897),
1321, 1324, 1335, 1354.
St. Louis Drayage Co. v. Louis-
ville & N. R. R. Co., 5 Int.
Com. Rep. 137 (1894), 534.
St. Louis Drayage Co. v. Louis-
ville & N. R. R. Co., 65 Fed.
39 (1894), 490, 514.
St. Louis, I. M. & S. Ry. Cọ. v.
Bone, 52 Ark. 26 (1889),
1007.
St. Louis, I. M. & So. Ry. Co. v.
Edwards (Ark.), 127 S. W.
713 (1910), 1050.
St. Louis, I. M. & So. Ry. Co. v.
Green, 85 Ark. 117 (1908),
933.
St. Louis, I. M. & So. Ry. Co. v.
Greenthal, 77 Fed. 150
(1896), 942.
St. Louis, I. M. & S. Ry. Co. v.
Hampton, 162 Fed. 693
(1908), 799.
St. Louis, I. M. & S. Ry. Co. v.
Heath, 41 Ark. 476 (1883),
901.
St. Louis, I. M. & S. Ry. Co. v.
Jones, 93 Ark. 537 (1910),
1011.
St. Louis, I. M. & S. Ry. Co. v.
Knight, 122 U. S. 79 (1887),
393, 726, 727.
St. Louis, I. M. & S. Ry. Co. v.
Lee, 69 Ark. 584 (1901),
399, 403, 723.
[ clxxix]
TABLE OF CASES CITED
[References are to sections]
St. Louis, I. M. & S. Ry. Co. v.
Marshall, 74 Ark. 597
(1905), 794, 796.
St. Louis, I. M. & S. Ry. Co. v.
Ozier, 86 Ark. 179 (1908),
394, 399.
St. Louis, I. M. & S. Ry. Co. v.
Petty, 57 Ark. 359 (1893),
224.
St. Louis, I. M. & S. Ry. Co. v.
Renfroe, 82 Ark. 143 (1907),
795.
St. Louis, I. M. & S. Ry. Co. v.
Shaw (Ark.), 125 S. W.
654 (1910), 944.
St. Louis, I. M. & S. Ry. Co. v.
State, 84 Ark. 150 (1907),
391, 797, 812.
St. Louis, I. M. & S. Ry. Co. v.
Taylor, 87 Ark. 331 (1908),
723.
St. Louis, I. M. & S. Ry. Co.
v. Tomlinson, 69 Ark. 489
(1901), 371.
St. Louis, I. M. & S. Ry. Co. v.
Townes, 93 Ark. 430 (1910),
1038.
St. Louis, I. M. & S. Ry. Co. v.
Weakly, 50 Ark. 397 (1887),
1003, 1021.
St. Louis, I. M. & S. Ry. Co. v.
Wilson, 70 Ark. 136 (1902),
941.
St. Louis, I. M. & S. Ry. Co. v.
Wynne H. & C. Co., 81
Ark. 373 (1907), 399, 404,
663, 664, 798, 816, 835,
1433.
St. Louis, J. & C. R. R. Co. v.
Mathers, 71 Ill. 592 (1874),
811.
St. Louis Ry. Co. v. Bland
(Tex. Civ. App.), 34 S. W.
675 (1896), 920.
St. Louis S. W. Ry. Co. v. Clay
Ginn. Co., 77 Ark. 357
(1906), 798, 802, 835, 855.
St. Louis S. W. Ry. Co. v. Grif-
fith, 12 Tex. Civ. App. 631
(1896), 946.
St. Louis S. W. Ry. Co. v. Jack-
son & Co. (Tex. Civ. App.),
118 S. W. 853 (1909), 514.
St. Louis S. W. Ry. Co. v. John-
son, 29 Tex. Civ. App. 184
(1902), 938.
St. Louis S. W. Ry. Co. v.
Leder, 79 Ark. 59 (1906),
798.
St. Louis S. W. Ry. Co. v. Mc-
Cullough, 18 Tex. Civ. App.
534 (1898), 872.
St. Louis S. W. Ry. Co. v. Mc-
Intyre, 36 Tex. Civ. App.
399 (1904), 1022.
St. Louis S. W. Ry. Co. v.
Phoenix Cotton Oil Co., 88
Ark. 594 (1909), 804.
St. Louis S. W. Ry. Co. v. Ray
(Tex. Civ. App.), 127 S. W.
281 (1910), 407.
St. Louis S. W. Ry. Co. v. State,
85 Ark. 311 (1907), 529, 531.
St. Paul v. Smith, 27 Minn. 364
(1880), 484.
Sales v. Western Stage Co., 4
Iowa, 547 (1857), 262, 978.
Salt Lake City v. Salt Lake City
W. & E. Power Co., 24
Utah, 249 (1902), 114.
Salt River Valley Canal Co. v.
Nelssen, 10 Ariz. 9 (1906),
93.
Saltonstall v. Stockton, Taney,
11 (1838), 184, 335.
Sammons v. Kearney P. & I.
Co., 77 Neb. 580 (1906), 95,
687.
[ clxxx ]
TABLE OF CASES CITED
[References are to sections]
Samms v. Stewart, 20 Ohio, 70 San Diego L. & T. Co. v. Na-
(1851), 162, 228.
Sample v. Fresno F. & Irrigation
Co., 129 Cal. 222 (1900), 594.
Samuel v. Cheney, 135 Mass. 278
(1883), 1049.
Samuels v. Louisville & N. Ry.
Co., 31 Fed. 57 (1887), 524,
533, 682, 1286, 1287.
Samuels v. Richmond & D. R.
R. Co., 35 S. C. 493 (1891),
1044.
San Antonio & A. P. Ry. Co. v.
Josey (Tex. Civ. App.), 71
S. W. 606 (1903), 916.
San Antonio & A. P. Ry. Co. v.
Lynch (Tex.), 55 S. W. 517
(1900), 864.
San Antonio & A. P. Ry. Co. v.
Newman, 17 Tex. Civ. App.
606 (1897), 889.
San Antonio & A. P. Ry. Co. v.
Robinson, 79 Tex. 608
(1891), 207, 762.
San Antonio & A. P. Ry. Co. v.
Safford (Tex. Civ. App.), 48
S. W. 1105 (1898), 410.
San Antonio & A. P. Ry. Co. v.
Stribling, 99 Tex. 319 (1905)
515, 521.
San Antonio & A. P. Ry. Co. v.
Turner, 42 Tex. Civ. App.
532 (1906), 902.
San Antonio St. Ry. Co. v.
State, 90 Tex. 520 (1897),
212, 306, 308.
San Diego Flume Co. v. Souther,
112 Fed. 228 (1901), 652.
San Diego L. & T. Co. v. Jasper,
189 U. S. 439 (1903), 1085,
1099, 1124, 1166, 1410, 1430.
San Diego L. & T. Co. v. Na-
tional City, 74 Fed. 79
(1896), 1092, 1177.
tional City, 174 U. S. 739
(1899), 93, 1065, 1091, 1099,
1166, 1177, 1410,
1124,
1430.
San Diego L. & T. Co. v. Sharp,
97 Fed. 394 (1899), 305, 338,
411.
San Diego Water Co. v. San
Diego, 118 Cal. 556 (1897),
1081, 1109, 1111, 1168, 1171,
1410.
San Francisco A. & S. R. R. Co.
v. Caldwell, 31 Cal. 367
(1866), 58.
San Joaquin & Kings R. C. &
I. Co. v. Stanislaus County,
163 Fed. 567 (1898), 1166.
San Joaquin Canal & Irrigation
Co. v. Stanislaus County,
113 Fed. 930 (1902), 1425,
1430.
Sanders v. Young, 1 Head, 219
(1858), 182, 241.
Sanderson v. Panther L. Co., 50
W. Va. 42 (1901), 783.
Sandford v. Am. Dist. Tel. Co.,
13 Misc. 88 (1895), 108.
Sandford v. Catawissa R. R.
Co., 24 Pa. St. 378 (1855),
473, 479, 1290.
Sandford v. Housatonic R. R.
Co., 11 Cush. 155 (1853),
1023.
Sands v. Manistee River Im-
provement Co., 123 U. S.
288 (1887), 72.
Sandys v. Florence, 47 L. I. C.
P. 598 (1878), 966, 979.
Santa Fe, P. & P. Ry. Co. v.
Grant Bros. C. Co. (Ariz.),
108 Pac. 467 (1910), 209,
239, 250, 253, 259, 399, 750,
756.
[ clxxxi ]
TABLE OF CASES CITED
[References are to sections]
Sargent v. Boston & L. R. R. Co.,
115 Mass. 416 (1874), 477,
1328.
Sasseen et al. v. Clark, 37 Ga.
242 (1867), 1034.
Satterlee v. Groat, 1 Wend. 272
(1828), 208, 295, 314.
Savannah & O. Canal Co. v.
Shuman, 91 Ga. 400 (1893),
122, 212, 241, 299, 302,
578.
Savannah, F. & W. Ry. Co. v.
Boyle, 115 Ga. 836 (1902),
941, 942, 944.
Savannah, F. & W. Ry. Co. v.
Burdick, 94 Ga. 775 (1894),
1289, 1290, 1294.
Savannah, F. & W. Ry. Co. v.
Harris, 26 Fla. 148 (1890),
513.
Savannah, F. & W. Ry. Co. v.
Quo, 103 Ga. 125 (1897),
935, 938.
Savannah, G. & N. A. R. R. Co.
v. Wilcox, Gibbs & Co., 48
Ga. 432 (1873), 1046.
Savannah Ry. Co. v. Commer-
cial Guana Co., 103 Ga. 590
(1898), 920.
Savannah, S. & S. R. R. Co. v.
Bonand, 58 Ga. 180 (1877),
872, 904.
Savannah Street Ry. Co. v.
Bryan, 86 Ga. 312 (1890),
946.
Savitz v. Ohio & M. Ry. Co., 150
Ill. 208 (1894), 1356.
Sayre v. Louisville Union Benev-
olent Association, 1 Duv.
143 (1863), 694.
Scaife v. Farrant, L. R. 10 Ex.
358 (1875), 169.
Scarfe v. Farrant, L. R. 10 Exch.
358 (1875), 230.
Schalscha v. Third Ave. R. R.
Co., 19 Misc. (N. Y.) 141
(1897), 769.
Schiffler v. Chicago & N. W.
Ry. Co., 96 Wis. 141 (1897),
397, 804, 861.
Schlesinger & Sons v. New York,
N. H. & H. R. R. R. Co.,
85 N. Y. Supp. 372 (1903),
1048.
Schloss v. Wood, 11 Colo. 287
(1888), 204, 205.
Schmidt v. Chicago & N. W. Ry.
Co., 90 Wis. 504 (1895), 393,
726.
Schneider v. People, 30 Colo.
493 (1903), 384.
Schofield v. Lake Shore & Mich-
igan Southern Ry. Co., 43
Ohio St. 571 (1885), 1290,
1291, 1322, 1326, 1356.
Scholes v. Ackerland, 15 Ill. 474
(1854), 1039.
School District v. Enterprise
Nat. Gas Co., 18 Pa. Sup.
Ct. 73 (1901), 216.
Schooner Freeman v. Bucking-
ham, 18 How. (U. S.) 182
(1855), 747.
Schuyler v. Southern Pacific Ry.
Co. (Utah), 109 Pac. 458
(1910), 777, 1302.
Schumaker v. Chicago & N. W.
Ry. Co., 207 Ill. 199 (1904),
1050.
Schwede v. Hemrich Bros. Brew-
ing Co., 29 Wash. 21 (1902),
226.
Scioto Valley Traction Co. v.
Graybill, 29 Ohio Cir. Ct.
95 (1906), 629.
Scull v. Atlantic C. L. R. R.
Co., 144 N. C. 180 (1907),
1382.
[ clxxxii]
TABLE OF CASES CITED
[References are to sections]
Seaboard Air Line Ry. Co. v.
Florida, 203 U. S. 261
(1908), 1078, 1081, 1100,
1198, 1200, 1209, 1210,
1385.
Seaboard Air Line Ry. Co. v.
O'Quin, 124 Ga. 357 (1905),
645.
Seaboard Air Line Ry. Co. v.
Railroad Comm., 155 Fed.
792 (1907), 1123, 1129, 1220,
1430.
Seaboard Air Line Ry. Co. v.
Seegers, 207 U. S. 73 (1907),
1436.
Seaman v. Adler, 37 Fed. 268
(1889), 1269.
Searles v. Mann Boudoir Car
Co., 45 Fed. 330 (1891), 153,
832, 846.
Sears v. Eastern R. R. Co., 14
Allen, 433 (1867), 204, 397,
863, 872, 904.
Sears v. Street Commissioners,
180 Mass. 274 (1880), 64,
125.
Sears v. Wingate, 3 Allen, 103
(1861), 747.
Seasongood v. Tennessee & 0.
R. Transp. Co., 21 Ky. Law
Rep. 1142 (1899), 515.
Seattle Electric Co. v. Snoqua-
lime Falls Power Co., 40
Wash. 380 (1905), 316, 352.
Seaver v. Bradley, 179 Mass. 329
(1901), 193.
Seavey Co. v. Union Transit Co.,
106 Wis. 394 (1900), 907.
Seawell v. Carolina Central R.
R. Co., 133 N. C. 515
(1903), 944.
Seawell v. Kansas City, F. S. &
M. R. R. Co., 119 Mo. 222
(1893), 1413.
Secombe v. Milwaukee & St.
Paul Ry. Co., 23 Wall. 108
(1874), 58.
Segal v. St. Louis S. W. Ry. Co.,
35 Tex. Civ. App. 517
(1904), 944.
Seibert v. Railway Co., 15 Pa.
Super. Ct. 435 (1900), 1049.
Selby v. Wilmington & W. R.
Co., 113 N. C. 588 (1893),
989.
Self v. Dunn, 42 Ga. 528 (1871),
237, 239, 241, 968.
Seligman v. Armijo, 1 N. Mex.
459 (1870), 174, 666, 911,
986.
Seller v. Steamship Pacific, 1
Oreg. 409 (1861), 1004.
Selma & M. R. R. Co. v. Butts
& Foster, 43 Ala. 385 (1869),
517.
Selway v. Holloway, 1 Ld. Ray.
46 (1695), 400.
Sevier v. Vicksburg & M. R.
R. Co., 61 Miss. 8 (1883),
933.
Sewall v. Allen, 6 Wend. (N. Y.)
335 (1830), 255.
Sewickley School Dist. v. Ohio
Valley Gas Co., 154 Pa. St.
539 (1893), 458.
Seybolt v. New York, L. E. &
W. R. R. Co., 95 N. Y. 562
(1884), 777.
Seyfer v. Otoe County, 66 Neb.
566 (1902), 795.
Seymour v. Cook, 53 Barb. 451
(1868), 1034.
Shackelford's Heirs v. Coffey, 4
J. J. Marsh. 40 (1830), 65.
Sharp & M. v. Clark et al., 13
Utah, 510 (1896), 1042.
Sharrer v. Paxson, 171 Pa. St. 26
(1895), 736.
[ clxxxiii]
TABLE OF CASES CITED
[References are to sections]
Shaw v. Berry, 31 Me. 478
(1850), 965.
Shaw v. Gt. Western Ry. Co.
(1894), 1 Q. B. 373 (1893),
1012.
Shaw v. Northern Pac. R. R.
Co., 40 Minn. 144 (1889),
393, 727.
Shaw v. Postal Telegraph & C.
Co., 79 Miss. 670 (1901),
1010.
Shelton v. Erie R. R. Co., 73
N. J. L. 558 (1907), 889.
Shelton v. Lake S. & M. S. Ry.
Co., 29 Ohio St. 214 (1876),
890.
Shenk v. Philadelphia Steam
Propeller Co., 60 Pa. St. 109
(1869), 1038.
Shepard v. Gold & Stock Tele-
graph Co., 38 Hun, 338
(1885), 137, 624, 884.
Shepard v. Milwaukee Gaslight
Co., 6 Wis. 539 (1858),
Shaw v. Ray, 1 Cr. & Dix. C. C. Shepard v.
•
84 (1839), 770, 969.
Shaw v. San Diego Water Co.
(Cal.), 50 Pac. 693 (1897),
1244, 1245.
Shaw Stocking Co. v. Lowell,
199 Mass. 118 (1908), 825,
1244, 1245.
Sheerman v. Toronto, etc., Co.,
34 U. C. Q. B. 451 (1874),
207.
Sheets v. Ohio River Ry. Co., 39
W. Va. 475 (1894), 863,
889.
Sheffer v. Willoughby, 163 Ill.
518 (1896), 263, 974.
Sheffield Waterworks Co. V.
Wilkinson, 4 C. P. D. 410
(1879), 456.
Shelbyville R. R. Co. v. Louis-
ville C. & L. R. R. Co., 82
Ky. 541 (1885), 527, 811.
Shelby v. Farmers' Coöperative
Ditch Co., 10 Idaho, 732
(1905), 652.
Shelden v. Robinson, 7 N. H.
157 (1834), 160, 184, 744.
Sheldon v. New Orleans Canal
Co., 9 Rob. (La.) 360 (1844),
122.
Shellenberg v. Fremont, E. & M.
V. R. R. Co., 45 Neb. 487
(1895), 1047.
111, 273, 280, 411, 434, 877,
883.
Shepard v. Milwaukee Gaslight
Co., 15 Wis. 318 (1862), 31.
Shepherd v. Milwaukee Gas-
light Co., 11 Wis. 234
(1860), 411.
Sheridan v. Brooklyn & N. Ry.
Co., 36 N. Y. 39 (1873),
635, 638, 933.
Sherley v. Billings, 8 Bush (Ky.),
147 (1871), 939.
Sherlock v. K. C. Belt Ry. Co.,
142 Mo. 172 (1897), 226.
Sherman v. Hannibal & S. J.
R. R. Co., 72 Mo. 62 (1880),
745.
Sherman v. Hudson River R. R.
Co., 64 N. Y. 254 (1876),
1033.
Sherman v. Pennsylvania R. R.
Co., Fed. Cas. No. 12,769
(1880), 667, 987.
Sherman v. Wells, 28 Barb. 403
(1858), 963.
Sherrill v. Western Union Tele-
graph Co., 109 N. C. 527
(1891), 348, 1025, 1026.
Sherwood v. Atlantic & D. Ry.
Co., 94 Va. 291 (1897),
306.
[ clxxxiv]
TABLE OF CASES CITED
[References are to sections]
Sheward v. Citizens' Water Co.,
90 Cal. 635 (1891), 452,
1244, 1245, 1251, 1354.
Shingleur v. Western Union Tel-
egraph Co., 72 Miss. 1030
(1895), 348.
Shinn v. Cotton, 52 Ark. 90
(1889), 237, 239, 241, 968.
Shipley v. Baltimore & Potomac
R. R. Co., 34 Md. 336
(1871), 58.
Shipper v. Pennsylvania R. R.
Co., 47 Pa. St. 338 (1864),
431.
Shipton v. Thornton, 9 A. & E.
314 (1838), 1264.
Shiras v. Ewing, 48 Kan. 170
(1892), 411, 452, 866.
Shoecraft v. Bailey, 25 Ia. 553
(1868), 751, 969.
Shoemaker v. Kingsbury, 12
Wall. 369 (1870), 207,
764.
Sholl v. German Coal Co., 118
Ill. 427 (1887), 226.
Short v. St. Louis & S. F. Ry.
Co. (Mo. App.), 130 S. W.
488 (1910), 738.
Show v. Carruth, 1 Sprague, 324
(1856), 724.
Shultz v. Wall, 134 Pa. St. 262
(1890), 964.
Sibley v. Aldrich, 33 N. H. 553
(1856), 965.
Sickles v. Brooklyn Heights R.
R. Co., 99 N. Y. S. 953
(1906), 864.
Sickles v. Manhattan Gaslight
Co., 64 How. Pr. 33 (1882),
S. c., 66 How. Pr. 314
(1884), 458.
Silkman
V. Water Commis-
sioners, 152 N. Y. 327 (1897),
218, 456, 1321, 1354.
Siller v. Louisville & N. R. R.
Co., 213 U. S. 175 (1909),
1408.
Silver v. Hall, 2 Mo. App. 557
(1876), 952.
Simkins v. Norwich & N. L. St.
Co., 11 Cush. 102 (1853),
905, 906, 921.
Simons v. Gt. Western Ry. Co.,
18 C. B. 805 (1856), 1023.
Simmons v. Oregon R. R. Co.,
41 Oreg. 151 (1902), 784.
Simmons v. Seaboard A. L. Ry.
Co., 133 Ga. 635 (1909), 408.
Sioux City & P. Ry. Co. v. First
Nat. Bank of F., 10 Neb.
556 (1880), 748.
Six Carpenters' Case, The, 8
Coke 146a (1610), 630.
Skinner v. Atchison, T. & S. F.
Ry. Co., 39 Fed. 188 (1889),
937.
Skinner v. Chicago & R. I. R. R.
Co., 12 Iowa, 191 (1861),
1046.
Skinner v. Hall, 60 Me. 477
(1872), 1033.
Skinner v. London, B. & S. C.
Ry. Co., 5 Ex. 787 (1850),
757.
Slater v. South Carolina Ry.
Co., 29 S. C. 96 (1888), 655,
984, 985.
Slim v. Great Northern R. R.
Co., 14 C. B. 647 (1854),
400, 1001.
Sloman v. Great Western Ry.
Co., 67 N. Y. 208 (1876),
876.
Slosser v. Salt River Canal Co.,
7 Ariz. 376 (1901), 93, 231,
242.
Smallman v. Whilter, 87 Ill. 545
(1877), 500.
[ clxxxv ]
TABLE OF CASES CITED
[References are to sections]
Smeltzer v. St. Louis & S. F.
Ry. Co., 158 Fed. 649
(1908), 1008.
Smith v. Alabama, 124 U. S. 465
(1888), 1418.
Smith v. Atchison, T. & S. F.
Ry. Co., 122 Mo. App. 85
(1907), 626, 880.
Smith v. Barre Water Co., 73
Vt. 310 (1901), 264.
Smith v. Birmingham Water-
works, 104 Ala. 315 (1893),
216, 451, 825.
Smith v. Birmingham Ry. L. &
P. Co., 147 Ala. 702 (1906),
401.
Smith v. Boston & M. R. R. Co.,
44 N. H. 325 (1862), 875.
Smith v. Capital Gas Co., 132
Cal. 209 (1901), 825.
Smith v. Chamberlain, 38 S. C.
529 (1892), 566, 848, 881.
Smith v. Chicago, R. I. & P. Ry.
Co., 112 Mo. App. 610
(1905), 1026.
Smith v. City & Surburban Ry.
Co., 29 Oreg. 539 (1896),
1044.
Smith v. Cleveland, C., C. &
St. L. Ry. Co., 92 Ga. 539
(1893), 915.
Smith v. Gold & S. Tel. Co., 42
Hun, 454 (1886), 137.
Smith v. Great No. Ry. Co., 15
N. D. 195 (1906), 1234.
Smith v. Keyes, 2 Th. & C.
(N. Y.) 650 (1874), 432,
751.
Smith v. Louisville, E. & St. L.
R. R. Co., 124 Ind. 394
(1890), 764.
Smith v. Michigan Cent. Ry.
Co., 100 Mich. 148 (1894),
256.
Smith v. Nashville, 88 Tenn. 464
(1890), 218.
Smith v. New York, L. E. &
W. R. R. Co., 149 Pa. St.
249 (1892), 484.
Smith v. Pierce, 1 La. 349 (1830),
173.
Smith v. Pittsburg, Ft. W. & C.
R. R. Co., 23 Ohio St. 10
(1872), 888.
Smith v. St. Paul City Ry. Co.,
32 Minn. 1 (1884), 736, 966.
Smith v. Scranton Gas & Water
Co., 5 Lack. L. News, 235
(1899), 448, 452.
Smith v. Seward, 3 Pa. St. 342
(1846), 182.
Smith v. State, 100 Tenn. 494
(1898), 566, 848.
Smith v. Western Ry. of Ala., 91
Ala. 455 (1890), 656, 920, 985.
Smith v. Western Union Tele-
graph Co., 83 Ky. 104
(1885), 1025.
Smith v. Western Union Tele-
graph Co., 72 S. C. 116
(1905), 599.
Smith v. Western Union Tele-
graph Co., 84 Ky. 664
(1887), 603, 607.
Smith & Melton v. North Car-
olina R. R. Co., 64 N. C.
235 (1870), 1007.
Smitha v. Louisville & N. Ry.
Co., 86 Tenn. 198 (1887),
1026.
Smyth v. Ames, 169 U. S. 466
(1898), 1062, 1067, 1071,
1091, 1099, 1123, 1131, 1156,
1194, 1196, 1402, 1411, 1412,
1430.
Snaman v. Mo., K. & T. Ry. Co.
(Tex. Civ. App.), 42 S. W.
1023 (1897), 876.
[ clxxxvi]
TABLE OF CASES CITED
[References are to sections]
Sneider v. Geiss, 1 Yeates (Pa.), Souther v. San Diego Flume Co.,
34 (1791), 743, 744.
Snell v. Clinton Electric Light
Co., 196 Ill. 626 (1902), 113,
243, 502, 706, 823, 824, 825,
826, 1290, 1300.
Snelling v. Yetter, 25 App. Div.
590 (1898), 170, 236, 238.
Snider v. Adams Express Co., 63
Mo. 376 (1876), 1003.
Snow v. Indiana, B. & W. Ry.
Co., 109 Ind. 422 (1886), 521,
533.
Snyder v. Depot Co., 19 Ohio Cir.
Ct. 368 (1899), 483.
Snyder v. Natchez R. R. & T. R.
R. Co., 42 La. Ann. 302
(1890), 761, 762.
Solan v. Chicago, M. & St. P. Ry.
Co., 95 Iowa, 260 (1895),
1022.
South & N. O. A. R. R. v. Henlein,
52 Ala. 606 (1875), 256, 989,
1011.
South & N. Alabama R. R. Co. v.
Wood, 66 Ala. 167 (1880),
1042, 1043.
South Chicago City Ry. Co. v.
Calumet Ry. Co., 171 Ill.
391 (1898), 693.
South Eastern
Eastern
Ry. V. Ry.
Commrs., 50 L. J. Q. B.
201 (1881), 807.
South Florida R. R. Co. V.
Rhodes, 25 Fla. 40 (1889),
558, 697, 865.
South Florida Telegraph Co. v.
Maloney, 34 Fla. 338 (1894),
345.
South Kansas Ry. v. Hinsdale,
38 Kans. 507 (1888), 431,
878.
Southcote's Case, 4 Coke, 836,
962.
121 Fed. 347 (1903), 93, 852.
Southern B. & L. Assn. v. Law-
son, 97 Tenn. 367 (1896), 193.
Southern Bell Telephone & T. Co.
v. McTyer, 137 Ala. 601
(1902), 984, 1051.
Southern Express Co. v. Arm-
stead, 50 Ala. 350 (1873),
1004, 1040.
Southern Express Co. v. Ashford,
126 Ala. 591 (1899), 230.
Southern Express Co. v. Bailey, 7
Ga. App. 331 (1910), 988.
Southern Express Co. v. Barnes,
36 Ga. 532 (1867), 1024.
Southern Express Co. v. Caper-
ton, 44 Ala. 101 (1870), 1002,
1024, 1026.
Southern Express Co. v. Crook, 44
Ala. 468 (1870), 178, 776.
Southern Express Co. v. Dixon,
94 U. S. 549 (1876), 1045.
Southern Express Co. v. Everett,
37 Ga. 688 (1868), 623, 737,
990.
Southern Express Co. v. Hess, 53
Ala. 19 (1875), 776.
Southern Express Co. v. Hill,
Ark. 1 (1906), 1022.
Southern Express Co. v. Holland,
109 Ala. 362 (1895), 1040.
Southern Express Co. v. Hunni-
81
cutt, 54 Miss. 566 (1877),
1023, 1025.
Southern Express Co. v. Kauf-
mann, 12 Heisk. 161 (1873),
990.
Southern Express Co. v. Memphis
R. R. Co., 2 McCreary, 570
(1881), 477.
Southern Express Co. v. Meyer
Co. (Ark), 125 S. W. 642
(1910), 338.
[ clxxxvii]
TABLE OF CASES CITED
[References are to sections]
Southern Express Co. v. Moon, 39
Miss. 822 (1863), 178, 1011.
Southern Express Co. v. Newby,
36 Ga. 635 (1867), 178, 732,
776.
Southern Express Co. v. Owens,
146 Ala. 412 (1906), 1019,
1020, 1021.
Southern Express Co. v. Palmer
et al., 48 Ga. 85 (1873), 1047.
Southern Express Co. v. Rose Co.,
124 Ga. 581 (1905), 178, 600.
Southern Express Co. v. St. Louis,
I. M. & S. Ry. Co., 3 Mc-
Creary, 872 (1882), 776.
Southern Express Co. v. Seide, 67
Miss. 609 (1890), 1022.
Southern Express Co. v. State,
107 Ga. 670 (1899), 600, 612.
Southern Express Co. v. Van
Meter, 17 Fla. 783 (1880),
178, 776, 1049.
Southern Express Co. v. Wil-
liams, 99 Ga. 482 (1896),
1048.
Southern Express Co. v. Wor-
mack, 1 Heisk. 256 (1870),
178, 666, 776, 911, 986.
Southern Ill. & Mo. Bridge Co.
v. Stone, 174 Mo. 1 (1902),
126.
Southern Indiana Express Co. v.
United States Express Co.,
88 Fed. 659 (1898), 523.
Southern Indiana Express Co. v.
United States Exp. Co., 92
Fed. 1022 (1899), 431, 435,
523, 682.
Southern Indiana R. R. Co. v.
Railroad Commission, 87 N.
E. 966 (1909), 1127.
Southern Kansas Ry. Co. v. Hins-
dale, 38 Kans. 507 (1888),
885.
Southern Kansas Ry. Co. v. Mor-
ris (Tex. Civ. App.), 99 S. W.
433 (1907), 833.
Southern Kansas Ry. Co. v.
Samples (Tex. Civ. App.),
109 S. W. 417 (1908),
833.
Southern Light & Traction Co. v.
Compton, 86 Miss. 269
(1905), 848, 881.
Southern Pacific Co. v. Arnett,
61 C. C. A. 131 (1903), 902,
915.
Southern Pacific Co. v. Bartine,
170 Fed. 751 (1910), 1086,
1092, 1099.
Southern Pacific Co. v. Booth
(Tex. Civ. App.), 39 S. W.
585 (1897), 908.
Southern Pacific Co. v. Cavin,
144 Fed. 348 (1906), 777.
Southern Pacific Co. V. In-
terstate Comm. Comm.,
200 U. S. 536 (1906), 534,
694.
Southern Pacific Co. v. Patterson
(Tex. Civ. App.), 451 (1894),
126, 1262.
Southern Pacific Co. v. Railroad
Commissioners, 78 Fed. 236
(1896), 1099, 1105, 1123,
1154, 1155, 1156, 1166, 1179,
1409, 1430.
Southern Pacific Co. v. Robinson,
132, Cal. 408 (1901), 347.
Southern Pacific Co. v. Redding
(Tex. Civ. App.), 43 S. W.
1061 (1897), 1294.
Southern Ry. Co. v. Adams, 115
Ga. 705 (1902), 1023.
Southern Ry. Co. v. Atlanta Sand
& S. Co. (Ga.), 68 S. E. 807
(1910), 663, 665, 668, 799,
801, 840, 912, 914.
[ clxxxviii]
TABLE OF CASES CITED
[References are to sections]
Southern Ry. Co. v. Atlanta
Stove Works, 128 Ga. 207
(1907), 1063, 1201, 1225,
1383.
Southern Ry. Co. v. Barlow, 104
Ga. 213 (1898), 347.
Southern Ry. Co. v. Common-
wealth, 98 Va. 758 (1900),
540, 872.
Southern Ry. Co. v. Deakins,
107 Tenn. 522 (1901), 914,
922.
Southern Ry. Co. v. Franklin Ry.
Co., 96 Va. 693 (1899), 211,
212, 305.
Southern Ry. Co. v. Harrington
(Ala.), 52 So. 57 (1910), 777.
Southern Ry. Co. v. Harrison, 119
Ala. 539 (1898), 1294.
Southern Ry. Co. v. Lanning, 83
Miss. 161 (1903), 410.
Southern Ry. Co. v. Lee, 30 Ky.
L. Rep. 1360 (1907), 341.
Southern Ry. Co. v. Levy, 39 So.
95 (1905), 963.
Southern Ry. Co. v. Lockwood
Mfg. Co., 142 Ala. 322
(1904), 1050.
Southern Ry. Co. v. McNeil, 155
Fed. 756 (1907), 1063, 1123,
1201, 1430, 1431.
Southern Ry. Co. v. Moore (Ga.),
67 S. E. 85 (1910), 332.
Southern Ry. Co. v. Railroad
Commission, 42 Ind. App.
90 (1907), 1238, 1382.
Southern Ry. Co. v. St. Louis, H.
& G. Co., 156 Fed. 728
(1906), 1373.
Southern Ry. Co. v. St. Louis H.
& G. Co., 214 U. S. 297
(1909), 1192.
Southern Ry. Co. v. State (Miss.),
48 So. 236 (1909), 809.
Southern Ry. Co. v. Thurman,
28 Ky. L. Rep. 699 (1906),
849.
Southern Ry. Co. v. Tift, 206
U. S. 428 (1906), 1129, 1294.
Southern Ry. Co. v. Wallis, 133
Ga. 553 (1909), 410.
Southern Ry. Co. v. Webb, 143
Ala. 304 (1905), 772.
Southern Ry. Co. v. Wilcox, 99
Va. 394 (1901), 723, 915.
Southern Ry. Co. v. Wood, 114
Ga. 159 (1901), 844.
Southern Wire Co. v. St. Louis,
B. & T. R. R. Co., 38 Mo.
App. 191 (1899), 1297.
Southward v. Myers, 3 Bush, 681
(1868), 240, 968.
Southwestern R. R. Co. v. Webb,
48 Ala. 585 (1872), 176, 740.
Southwestern R. R. Co. v. Single-
ton, 66 Ga. 252 (1880), 754.
Southwestern Teleg. & Tel. Co.
v. Luckett (Tex. Civ. App.),
127 S. W. 856 (1910), 451,
1250.
Southwood v. Myers, 3 Bush, 681
(1868), 234.
Spade v. Hudson R. R. R. Co., 16
Barb. 383 (1853), 393, 399,
726.
Spade v. L. & Boston Ry. Co., 172
Mass. 488 (1899), 943.
Spalding v. Macomb & W. I. Ry.
Co., 225 Ill. 585 (1907), 262.
Spangler v. St. Joseph & G. I.
Ry. Co., 68 Kans. 46 (1903),
942.
Spannagle v. C. & A. R. R. Co., 31
Ill. App. 460 (1889), 401.
Southern Ry. Co. v. Smith, 86 Sparks v. Philadelphia, etc., Ry.,
Fed. 292 (1898), 401.
212 Pa. St. 105 (1905), 191.
[ clxxxix]
TABLE OF CASES CITED
[References are to sections]
Spears & G. v. Lake Shore & M.
S. R. R. Co., 67 Barb. 513
(1876), 971.
Speers v. Spartanburg, U. & C. R.
R. Co., 11 S. C. 158 (1878),
1036.
Spellman v. Lincoln Rapid Tran-
sit Co., 36 Neb. 890 (1893),
190, 978.
Spence v. Chicago, R. I. & P. Ry.
Co., 117 Ia. 1 (1902), 207.
Spencer v. Daggett, 2 Vt. 92
(1829), 166, 229, 239.
Spring Valley Water Works v.
Schottler, 110 U. S. 347
(1884), 92, 1428.
Sproul v. Hemmingway, 14 Pick.
1 (1833), 173, 744.
Sproule v. St. Louis & S. F. Ry.
Co. (Tex. Civ. App.), 91 S.
W. 657 (1906), 777.
Squire v. New York Central R. R.
Co., 98 Mass. 239 (1867),
1021.
Stadhecker v. Combs, 9 Rich.
Law, 193 (1856), 178, 776.
Spivy v. Farmer, 2 Hawy. 339 Stamey v. Western Union Tel.
(1805), 182, 241.
Split Rock Cable Road Co., Mat-
ter of the, 128 N. Y. 408
(1891), 61, 222.
Spofford v. Boston & M. R. R.
Co., 128 Mass. 326 (1880),
1283.
Spofford v. Pennsylvania R. R.
Co., 11 Pa. Super. Ct. 97
(1899), 400, 729.
Sprague v. Missouri Pacific Ry.
Co., 34 Kans. 347 (1885), 1023.
Sprague v. New York Cent. R.
R. Co., 52 N. Y. 637 (1873),
517, 1033.
Sprague v. Southern Ry. Co., 92
Fed. 59 (1899), 763.
Springer v. Wescott, 29 N. Y.
Supp. 149 (1894), 756.
Springfield Consolidated Ry. Co.
v. Flynn, 55 Ill. App. 600
(1894), 942.
Spring Valley Water Works v. San
Francisco, 82 Cal. 286 (1890),
92, 1091, 1099, 1123, 1430.
Spring Valley Water Works v.
San Francisco, 124 Fed. 574
(1903), 92, 1091, 1099, 1101,
1104, 1109, 1123, 1131, 1136,
1410, 1430.
Co., 92 Ga. 613 (1894), 742,
980, 1014.
Standard Oil Co. of Ind. v. United
States, 164 Fed. 376 (1908)
1296.
Standish v. Narragansett Steam-
ship Co., 111 Mass. 512
(1873), 886.
Stanislaus Co. v. San Joaquin C.
& I. Co., 192 U. S. 201 (1903),
1099, 1124, 1132, 1135, 1138,
1423, 1425.
Stanton v. Allen, 5 Denio, 434
(1848), 694.
Stapleton v. Grand Trunk Ry.
Co., 133 Mich. 187 (1903), 726.
Starnes v. Railroad Co., 91 Tenn.
516 (1892), 1020.
Starr v. Gt. Northern Ry. Co., 67
Minn. 18 (1896), 781, 1011.
State v. Adams Exp. Co., 171
Ind. 138 (1908), 277, 1040.
State v. Adams Exp. Co., 85 Neb.
25 (1909), 1127, 1129.
State v. Allen, 178 Mo. 555
(1903), 56, 113.
State v. American & E. News Co.,
43 N.J.L.381 (1881), 133, 214.
State v. Associated Press, 159
Mo. 410 (1900), 684, 1138.
[ cxc ]
TABLE OF CASES CITED
[References are to sections]
State v. Atlantic Coast Line, 48
Fla. 114 (1904), 1193.
State v. Atlantic Coast Line R. R.
Co., 51 Fla. 543 (1906), 260,
1043.
State v. Atlantic Coast Line R.
Co., 52 Fla. 646 (1906),
816.
State v. Atlantic Coast Line Ry.
Co., 53 Fla. 650 (1907), 794,
802.
State v. Atlantic Coast Line Ry
Co. (Fla.), 52 So. 4 (1910),
332, 1382.
State v. Atchison, T. & S. F. Ry.
Co., 176 Mo. 687 (1903),
1381.
State v. Baltimore & O. R. R. Co.,
24 Md. 84 (1865), 623, 738.
State v. Bell Telephone Co., 22
Alb. L. J. 363 (1880), 692.
State v. Bell Telephone Co., 36
Ohio St. 296 (1880), 136,
692.
State v. Bell Telephone Co., 23
Fed. 539 (1885), 136, 692.
State v.
Birmingham Waterworks
(Ala.), 51 So. 354 (1910),
1288.
State v. Board of Water Commis-
sioners, 105 Minn. 472
(1908), 452, 456.
State v. Boston, C. & M. R. R.
Co., 25 Vt. 433 (1853), 176.
State v. Bridgeton Traction Co.,
62 N. J. L. 592 (1898), 189,
299, 305.
State v. Butte City Water Co., 18
Mont. 199 (1896), 92, 214,
215, 216, 242, 376.
State v. Cadwallader (Ind.), 87
N. E. 644 (1909), 700.
State v. Campbell, 32 N. J. L. 309
(1867), 447, 1259.
State v. W. W. Cargill Co., 77
Minn. 223 (1899), 213, 232.
State v. Central Iowa Ry. Co., 71
Iowa, 410 (1887), 211, 300.
State v. Central Vt. Ry. Co., 81
Vt. 463 (1908), 1123, 1282,
1283, 1320, 1430.
State v. Chicago & A. Ry. Co.,
148 Fed. 648, 1295.
State v. Chicago & N. W. Ry.
Co., 83 Neb. 518 (1909), 799,
840, 850, 854.
State v. Chicago & N. W. Ry. Co.
(Neb.), 120 N. W. 165 (1909),
854, 855.
State v. Chicago, B. & Q. R. R.
Co., 71 Neb. 593 (1904), 663,
664, 665, 803, 855.
State v. Chicago, B. & Q. R. R.
Co., 72 Neb. 542 (1904), 803,
855.
State v. Chicago, M. & St. P. Ry.
Co., 36 Minn. 402 (1887), 492.
State v. Chicago, M. & St. P. Ry.
Co., 38 Minn. 281 (1888),
1409.
State v. Chicago, St. P., M. & O.
R. R. Co., 40 Minn. 267
(1889), 1413.
State v. Chicago, St. P., M. & 0.
R. R. Co., 12 S. D. 305 (1900),
806, 812.
State v. Cincinnati, N. O. & T.
P. Ry. Co., 47 Ohio St. 130
(1890), 155, 796, 1290, 1350,
1358.
State v. Citizens' Telephone Co.,
61 S. C. 83 (1901), 136, 576,
580, 664, 683, 797, 802, 1325.
State v. Connersville Nat. Gas
Co., 163 Ind. 563 (1904), 306.
State v. Consumers' Gas Co., 157
Ind. 345 (1901), 94, 214, 215,
653, 852.
[ exci]
TABLE OF CASES CITED
[References are to sections]
State v. Delaware, L. & W. Ry.
Co., 48 N. J. L. 55 (1887),
1353.
State v. Des Moines & K. C. Ry.
Co., 87 Iowa, 644 (1893), 806.
State v. Dodge City, M. & T. Ry.
Co., 53 Kans. 329 (1894),
296, 301.
State v. Edwards, 86 Me. 102
(1893), 65, 66, 851.
State v. Fremont & E. M. V. R.
R. Co., 22 Neb. 313, 1409.
State v. Frost, 113 Wis. 623
(1902), 212.
State v. Goodfellow, 1 Mo. App.
495 (1876), 417, 826.
State v. Goold, 53 Me. 279 (1865),
887, 888.
State v. Gosnell, 116 Wis. 606
(1903), 825, 1245.
State v. Johnson, 61 Kan. 843
(1900), 1404.
State v. Jones, 125 S. W. 1169
(1910), 451, 866, 1051.
State v. Joplin Waterworks Co.,
52 Mo. App. 312 (1893), 92,
215.
State v. Kansas City Ry. Co., 51
La. Ann. 200 (1899), 807.
State v. Kinlock Telephone Co.,
93 Mo. App. 349 (1902), 136,
266, 435, 449.
State v. Laclede Gaslight Co., 102
Mo. 472 (1890), 216, 1410,
1424.
State v. Louisville & N. R. R. Co.,
51 Fla. 311 (1906), 531.
State v. Manitowoc Waterworks
Co., 114 Wis. 487 (1902),
825.
State v. Goss, 59 Vt. 266 (1886), State v. Martyn, 82 Neb. 225
600.
State v. Gt. Northern R. R. Co.,
14 Mont. 381 (1894), 669, 912.
State v. Gt. Northern R. R. Co.,
100 Minn. 445 (1907), 1097.
State v. Gulf, C. & S. F. Ry. Co.
(Tex. Civ. App.), 44 S. W.
542 (1898), 1414, 1415.
State v. Hampton, 2 N. H. 22
(1819), 75.
State v. Hartford & N. H. R. R.
Co., 29 Conn. 538 (1861),
212, 299, 305, 687.
State v. Helena P. & L. Co., 32
Mont. 391 (1899), 189, 212,
304, 306, 308.
State v. Hungerford, 39 Minn. 6
(1888), 887.
State v. Independent Telephone
Co., 109 Pac. 366 (1910), 865.
State v. Jacksonville Terminal
Co., 41 Fla. 377 (1899), 125,
211, 699.
(1908), 1301, 1363.
State v. Mathews, 2 Dev. & B.
424 (1837), 240.
State v. Milwaukee Gas Light
Co., 29 Wis. 454 (1872), 51.
State v. Minneapolis & St. L. R.
R. Co., 80 Minn. 191 (1900),
537, 1063, 1081, 1099, 1100,
1107, 1124, 1132, 1201, 1225,
1371, 1377, 1379, 1383, 1430,
1431.
State v. Minneapolis & St. L. R.
R. Co., 87 Minn. 195 (1902),
806.
State v. Missouri, K. & T. Ry.
Co., 99 Tex. 516 (1906), 479.
State v. Missouri Pacific Ry. Co.,
81 Neb. 174 (1908), 214.
State v. Mobile, J. & K. C. R. R.
Co., 86 Miss. 172 (1905),
305, 806.
State v. Murphy, 134 Mo. 548
(1896), 78.
[ excii ]
TABLE OF CASES CITED
[References are to sections]
State v. National Subway Co. v.
St. Louis, 145 Mo. 551
(1898), 78, 383.
State v. Nebraska Telephone Co.,
17 Neb. 126 (1885), 136, 242,
266, 451, 458, 459, 692.
State v. New Haven & N. Co., 37
Conn. 153 (1870), 805.
State v. New Orleans Gas Co.,
108 La. 67 (1902), 112, 265,
411, 417, 622, 826, 1077,
1347.
State v. Northern Pacific Ry. Co.,
89 Minn. 363 (1903), 318,
806, 809, 810.
State v. Northern Pacific Ry. Co.,
90 Minn. 277 (1903), 809.
State v. Northern Pacific Ry. Co.
(N. D.), 120 N. W. 869
(1909), 1063, 1201, 1431.
State v. Overton, 24 N. J. L. 435
(1854), 446, 1255.
State v. Pacific Express Co., 85
Neb. 823 (1908), 178.
State v. Patterson, 50 Fla. 127
(1905), 849.
State v. Portland Natural Gas
and Oil Co., 153 Ind. 483
(1899), 686.
State v. Proprietors of the Morris
Aqueduct, 46 N. J. L. 495
(1884), 651.
State v. Railroad Commission,
137 Wis. 80 (1908), 1097,
1124.
State v. Redman, 134 Wis. 89
(1908), 846.
State v. Reed, 76 Miss. 211
(1898), 485.
State v. Republican Valley R.
R. Co., 17 Neb. 647 (1885),
808.
State v. St. Louis, 161 Mo. 371
(1901), 71.
State v. St. Louis & S. F. R. R.
Co., 105 Mo. App. 207
(1904), 539, 540.
State v. St. Paul City Ry. Co., 78
Minn. 331 (1899), 189, 212.
State v. St. Paul Gaslight Co., 92
Minn. 467 (1904), 502.
State v. Seaboard Ry. Co. (Fla.),
37 So. 314 (1901), 1432.
State v. Seaboard Air Line Ry.
Co., 48 Fla. 129 (1904), 1073,
1100, 1124, 1127, 1132, 1134,
1164, 1178, 1430.
State v. Sedalia Gaslight Co., 34
Mo. App. 501 (1889), 825,
1251, 1354.
State v. Sioux City & P. R. R.
Co., 7 Neb. 357 (1878), 211,
300, 302, 305.
State v. Southern Ry. Co. (Tex.
Civ. App.), 49 S. W. 252
(1899), 1415.
State v. Southern Minnesota R.
R. Co., 18 Minn. 40 (1871),
302.
State v. Southern Pacific Ry.
Co., 52 La. Ann. 1822 (1900),
501.
State v. Spokane Ry. Co., 19
Wash. 518 (1898), 76, 189,
212, 215, 305.
State v. Steele, 106 N. C. 766
(1890), 106, 361, 472, 499,
565, 631, 632, 660.
State v. Stone, 6 Vt. 295 (1834),
106, 263.
State v. Superior Court, 42 Wash.
660 (1906), 60, 95, 114.
State v. Swett, 87 Me. 99 (1895),
601.
State v. Telephone Co., 61 S. C.
83 (1901), 244.
State v. Thompson, 20 N. H. 250
(1850), 878.
13
[ cxciii]
TABLE OF CASES CITED
[References are to sections]
State v. Toledo, 48 Ohio St. 112
(1891), 218.
State v. Union Depot Co., 71
Ohio St. 379 (1905), 483.
State v. Union Pacific R. R. Co.
(Neb.), 126 N. W. 859
(1910), 1302, 1362, 1363.
State v. Union Stockyards Co.,
81 Neb. 67 (1908), 130, 151,
160.
State v. Western Maryland R.
R. Co., 63 Md. 433 (1884),
784, 785.
State v. Western Union Tele-
graph Co., 75 Kan. 609
(1907), 814.
State v. Western Union Tele-
graph Co. (Ind.), 87 N. E.
641 (1909), 1041.
State v. Wiggins Ferry Co., 208
Mo. 622 (1907), 129.
State v. Willmar & S. F. Ry.
Co., 88 Minn. 448 (1903),
224, 822.
State v. Wrightsville & T. R. R.
Co., 104 Ga. 437 (1898),
533.
State v. Wynne, 1 Hawks, 451
(1821), 213.
State v. Yazoo & M. Valley Ry.
Co., 87 Miss. 679 (1905),
806.
State v. Young, 119 Mo. 495
(1894), 842.
State Trust Co. v. City of Du-
luth, 70 Minn. 257 (1897),
651, 797.
Steamboat Angelina Corning, 1
Ben. 109 (1867), 173, 774.
Steamboat Crystal Palace V.
Vanderpool, 16 B. Monr.
(Ky.) 302 (1855), 769, 975.
Steamboat Keystone v. Moies,
28 Mo. 343 (1859), 1038.
Steamboat Lynx v. King, 12 Mo.
272 (1848), 950.
Steamer New Philadelphia, 1
Black, 62 (1861), 173, 774,
972.
Steamer Webb, 14 Wall. 406
(1871), 173, 774.
Steamship Hammonia, 10 Ben.
512 (1879), 638.
Steenerson v. Great Northern
Ry. Co., 69 Minn. 353
(1897), 577, 1065, 1084,
1088, 1091, 1094, 1099, 1107,
1131, 1138, 1141, 1156, 1166,
1176, 1180, 1194.
Steiger v. Erie Ry. Co., 5 Hun,
345 (1875), 669, 912.
Stein v. McArdle, 24 Ala. 344
(1854), 377, 380.
Stein v. State, 37 Ala. 123
(1861), 981.
Steinweg v. Erie Ry. Co., 43
N. Y. 123 (1870), 795, 796.
Sterling v. St. Louis, I. M. & S.
Ry. Co. (Tex. Civ. App.), 86
S. W. 655 (1905), 519.
Sternberger v. Cape Fear & Y.
V. R. R. Co., 29 S. C. 510
(1888), 1413.
Sterrett v. Philadelphia Local
Telegraph Co., 18 Wk. N.
Cas. 77 (1886), 603, 607.
Stevens v. Boston & M. R. R.
Co., 1 Gray, 277 (1854), 918.
Stevens v. Boston Elev. Ry.
Co., 184 Mass. 476 (1907),
864.
Stevenson V. Montreal Tele-
graph Co., 16 Upp. Can.
Q. B. 530 (1858), 511.
Stevenson v. West Seattle L. &
Imp. Co., 22 Wash. 84
(1900), 182, 559, 561, 606,
612, 632, 633, 642.
[ cxciv ]
TABLE OF CASES CITED
[References are to sections]
Steward v. Brooklyn & C. T.
R. R. Co., 90 N. Y. 588
(1882), 939.
Stewart v. Erie & W. Transp.
Co., 17 Minn. 372 (1871), 511.
Stewart v. Head, 70 Ga. 449
(1883), 970.
Stewart v. Lehigh Valley R. R.
Co., 38 N. J. Law, 505
(1875), 122, 1290.
Stewart v. Merchants' Dispatch
Co., 47 Iowa, 229 (1877),
180, 906, 921.
Stiles v. Davis, 1 Black, 101
(1861), 1046.
Stockton v. Frey, 4 Gill, 406
(1846), 184.
Stoddard v. New York, N. H. &
H. R. R. Co., 181 Mass. 422
(1902), 777.
Stone v. Chicago & N. W. R. R.
Co., 47 Iowa, 82 (1877),
1258.
Stone v. New Orleans & N. E. R.
R. Co., 116 U. S. 352 (1886),
1421.
Stone v. Rice, 58 Ala. 95 (1877),
1039, 1040.
Story v. New York Elevated R.
R. Co., 90 N. Y. 122 (1882),
190.
Story v. Norfolk & S. R. Co.,
133 N. C. 59 (1903), 188,
588, 632, 642.
Stott v. Churchill, 15 N. Y.
Misc. 80 (1895), 966, 979.
Stoy v. Indiana Hydraulic Power
Co., 166 Ind. 316 (1906),
95, 114.
Straight Creek Coal Mining Co.
v. Straight Creek Coal, etc.,
Co. (Ky.), 122 S. W. 842
(1909), 225.
Strand v. Chicago & W. Ry.
Co., 67 Mich. 380 (1887),
933.
Stranger, The, 1 Brown's Adm.
281 (1871), 173.
Strauss v. County Hotel & W.
Co., 12 Q. B. D. 27 (1883),
367.
Street v. Morrison, 5 Allen
(New Bruns.), 296 (1862),
731.
Streets v. Grand Trunk Ry. Co.,
178 N. Y. 553 (1904), 783.
Stone v. Wisconsin, 94 U. S. 181 Strohmeyer v. Consumers' Elec-
(1876), 1427.
Stone v. Yazoo & M. V. R. R.
Co., 62 Miss. 607 (1885),
1294, 1421.
Stone Co. v. Atlantic Coast Line
R. R. Co., 144 N. C. 220
(1907), 901.
Stoneman v. Erie Ry. Co., 52
N. Y. 429 (1873), 876.
Stoner v. Chicago Gt. W. Ry.
Co., 109 Iowa, 551 (1899),
913, 922.
Storrs v. Pensacola & A. R. R.
Co., 29 Fla. 617 (1892),
1409.
tric Co., 111 La. 506 (1904),
113.
Strohn v. Detroit & M. R. R.
Co., 23 Wis. 126 (1868), 904.
Strohn v. Detroit & M. Ry. Co.,
21 Wis. 554 (1867), 1003.
Strother v. Aberdeen & A. R. R.
Co., 123 N. C. 197 (1898),
937.
Strough v. N. Y. C. & H. R. R.
R. Co., 92 App. Div. 584
(1904), 665, 799, 903, 1298.
Strough v. N. Y. C. & H. R. R.
R. Co., 181 N. Y. 533 (1905),
842, 850.
[ exev ]
TABLE OF CASES CITED
[References are to sections]
Suarez v. The Washington, 1 Sweet v. Western Union Tel.
Woods, 96 (1871), 743.
Sullivan v. Chicago Board of
Trade, 111 Ill. App. 492
(1903), 353.
Sullivan v. Jefferson Ave. R. R.
Co., 133 Mo. 1 (1895), 942,
943.
Sullivan V. Postal Telegraph
Cable Co., 123 Fed. 411
(1903), 603, 607.
Sultan Ry. & T. Co. v. Gt.
Northern Ry. Co. (Wash.),
109 Pac. 320 (1910), 1020,
1361.
Summerlin v. Seaboard Air L.
Ry. Co., 56 Fla. 687 (1908),
256.
Summit v. State, 8 Lea, 413
(1881), 473.
Sumner v. Caswell, 20 Fed. 249
(1884), 235.
Suttle v. Western Union Tel.
Co., 148 N. C. 480 (1908),
1041.
Sutton v. Housatonic R. R. Co.,
45 Fed. 507 (1891), 1050.
Swaffield v. Atlantic Coast Line,
10 I. C. C. Rep. 281 (1904),
1237.
Swan v. Manchester & L. R. R.
Co., 132 Mass. 116 (1882),
873, 888, 1258.
Swan v. Railroad Co., 106 Tenn.
229 (1901), 1050.
Swan v. Williams, 2 Mich. 427
(1852), 58.
Swanberg v. New York, 123
App. Div. 774 (1908), 825.
Sweet v. Louisville Ry. Co., 113
Ky. 15 (1902), 1044.
Sweet v. Postal Tel. & Cable
Co., 22 R. I. 344 (1901),
1041.
Co., 139 Mich. 322 (1905),
1041.
Swetland v. B. & A. R. R. Co.,
102 Mass. 276 (1869), 665,
840.
Swift & Co. v. Ronan, 103 Ill.
App. 475 (1902), 130, 151,
773, 972.
Swindler v. Hilliard, 2 Rich. 286
(1845), 165, 229.
Sword v. Young, 89 Tenn. 126
(1890), 1049.
Symonds v. Pain, 6 Hurl & N.
709 (1861), 173, 774.
Synder v. Colorado Springs &
C. C. Dist. Ry. Co., 36 Colo.
288 (1906), 942, 945.
T
Taber v. Seaboard Air Line Ry.
Co., 84 S. C. 291 (1909), 776.
Tacoma Hotel Co. v. Tacoma L.
& Water Co., 3 Wash. 316
(1891), 92, 432, 452.
Tadhunter v. Buckley, 7 L. T.
(N. S.) 273 (1862), 237, 241,
968.
Talbert v. Charleston & W. C.
Ry. Co., 72 S. C. 137 (1905),
888.
Talbot v. Dent, 9 B. Mon. 526
(1849), 217.
Talcott v. Pine Grove, 1 Flipp.
120 (1872), 211.
Tall v. Baltimore Steam Packet
Co., 90 Md. 248 (1899), 879,
942.
Talley v. Gt. Western R. R.
Co., L. R. 6 C. P. 44 (1870),
769.
Tampa, City of, v. Tampa Water
Works Co., 45 Fla. 600
(1903), 92, 215, 1410.
[ exevi]
TABLE OF CASES CITED
[References are to sections]
Tanner v. Treasury Tunnel M. &
R. Co., 35 Colo. 593 (1906),
63, 222.
Tarbell v. Central Pacific R. R.
Co., 34 Cal. 616 (1868), 431,
438, 441.
Tate v. Illinois Central R. R. Co.,
26 Ky. L. Rep. 309 (1904),
944.
Tate v. Yazoo & M. V. R. R. Co.,
78 Miss. 842 (1901), 399, 734.
Taylor v. Great Northern Ry.
Co., L. R. 1 C. P. 385 (1866),
915.
Taylor v. Humphreys, 30 L. J. M.
C. 242 (Eng., 1861), 364.
Taylor v. Western Union Tele-
graph Co., 163 Ky. 1 (1909),
1041.
Tecumseh Celery Co. v. Cincin-
nati, J. & M. Ry. Co., 4 Int.
Com. Rep. 318 (1893), 1237.
Telegraph Co. v. Frith, 105 Tenn.
167 (1900), 980.
Telegraph Co. v. Griswold, 37
Ohio St. 301 (1881), 766, 980,
1014.
Telegraph Co. v. Mellon, 96 Tenn.
66 (1896), 851.
Telegraph Co. v. Munford, 87
Tenn. 190 (1889), 520, 851.
Telephone Case, The, 3 Can. Ry.
Cas. 205 (1904), 497.
Telephone Co. v. Brown, 104
Tenn. 56 (1900), 516, 765.
Terre Haute & I. R. R. Co. v.
Chicago, Peoria & St. L. Ry.
Co., 150 Ill. 502 (1894), 768.
Terre Haute & I. R. R. Co. v.
Peoria & P. Ry. Co., 167 Ill.
296 (1897), 125, 699.
Terre Haute & I. R. R. Co. v.
Peoria & P. Ry. Co., 182 Ill.
501 (1899), 125.
Territory v. DeWolfe, 13 Okla.
454 (1903), 51.
Teutonia, The, L. R. 3 Adm. 394
(1871), 1265.
Texarkana & F. S. Ry. Co. v.
Anderson, 67 Ark. 123
(1899), 757.
Texas & N. O. Ry. Co. v. Sabine
Tram. Co. (Tex. Civ. App.),
121 S. W. 256 (1909), 1123,
1430.
Texas & P. Ry. Co. v. Abilene Oil
Co., 204 U. S. 426 (1907),
1050, 1294.
Texas & P. Ry. Co. v. Allen, 42
Tex. Civ. App. 331 (1906),
798.
Texas & P. Ry. Co. v. Avery
(Tex. Civ. App.), 33 S. W.
704 (1895), 1415.
Texas & P. Ry. Co. v. Avery, 19
Tex. Civ. App. 235 (1898),
1005.
Texas & P. Ry. Co. v. Barrow, 33
Tex. Civ. App. 611 (1903),
722, 796, 835.
Texas & P. Ry. Co. v. Barrow
(Tex. Civ. App.), 94 S. W.
176 (1906), 804.
Texas & P. Ry. Co. v. Black, 87
Tex. 160 (1894), 763.
Texas & P. Ry. Co. v. Blocker, 48
Tex. Civ. App. 100 (1907),
722.
Texas & P. Ry. Co. v. Bowlin
(Tex. Civ. App.), 32 S. W.
918 (1895), 946.
Texas & P. Ry. Co. v. Capps, 2
Wills App., § 34 (1883), 876.
Texas & P. Ry. Co. v. Carlton, 60
Tex. 397 (1883), 529, 530.
Texas & P. Ry. Co. v. Cornelius,
10 Tex. Civ. App. 125 (1895),
873.
[ cxcvii]
TABLE OF CASES CITED
[References are to sections]
Texas & P. Ry. Co. v. Dick, 26
Tex. Civ. App. 256 (1901),
1044.
Texas & P. Ry. Co. v. Diefen-
bach, 167 Fed. 39 (1909),
646.
Texas & P. Ry. Co. v. Elliott, 22
Tex. Civ. App. 31 (1899),
864.
Texas & P. Ry. Co. v. Hughes, 99
Tex. 533 (1906), 408.
Texas & P. Ry. Co. v. Interstate
Comm. Comm., 162 U. S. 197
(1896), 535, 1204, 1222, 1376,
1377.
Texas & P. Ry. Co. v. James, 82
Tex. 306 (1891), 438.
Texas & P. Ry. Co. v. Jones (Tex.
Civ. App.), 39 S. W. 124
(1897), 735.
Texas & P. Ry. Co. v. Klepper
(Tex. Civ. App.), 24 S. W.
567 (1893), 1005.
Texas & P. Ry. Co. v. Mugg, 202
U. S. 242 (1906), 1294.
Texas & P. Ry. Co. v. Pearl, 3
Wills. 4 (1885), 843.
Texas & P. Ry. Co. v. Texas
Short Line R. R. Co., 35
Tex. Civ. App. 387 (1904),
529.
Texas & P. Ry. Co. v. Townsend
(Tex. Civ. App.), 106 S. W.
760 (1907), 794.
Texas & P. Ry. Co. v. W. Scott &
Co. (Tex. Civ. App.), 86 S.
W. 1065 (1905), 833.
Texas & P. Ry. Co. v. White
(Tex. Civ. App.), 17 S. W.
419 (1891), 872.
Texas Central R. R. Co. v. Dorsey
(Tex. Civ. App.), 70 S. W.
575 (1902), 913.
Texas Midland Ry. Co. v. Ger-
aldon (Tex.), 128 S. W. 611
(1910), 873.
Texas Telegraph & Telephone Co.
v. Seiders, 9 Tex. Civ. App.
431 (1895), 412.
Thayer v. Burchard, 99 Mass. 508
(1868), 914.
Thayer v. St. Louis, A. & T. H.
R. R. Co., 22 Ind. 26 (1864),
1002, 1007.
Texas & P. Ry. Co. v. Reiss, 183 The, see the thing liable by
U. S. 621 (1903), 517.
Texas & P. Ry. Co. v. Scott, 64
Tex. 549 (1885), 783.
Texas & P. Ry. Co. v. Shawnee
Cotton Oil Co. (Tex. Civ.
App.), 118 S. W. 776 (1909),
833, 922.
Texas & P. Ry. Co. v. Smissen, 31
Tex. Civ. App. 549 (1903),
918.
Texas & P. Ry. Co. v. Smith
(Tex.), 84 S. W. 852 (1905),
441.
Texas & P. Ry. Co. v. Southern
Pacific Ry. Co., 41 La. Ann.
970 (1889), 694.
name.
Thomas v. Boston & P. R. R. Co.,
10 Mete. 472 (1845), 176.
Thomas v. Chicago & G. T. Ry.
Co., 72 Mich. 355 (1888),
885.
Thomas v. Cincinnati, N. O. & T.
P. Ry. Co., 62 Fed. 803
(1894), 570, 671.
Thomas v. Day, 4 Esp. 262
(1803), 731.
Thomas v. Frankfort & C. Ry.
Co., 25 Ky. L. Rep. 1051
(1903), 513.
Thomas v. Geldart, 20 New Br.
(4 Pug. & B.) 95 (1880), 440.
[ excviii]
TABLE OF CASES CITED
[References are to sections]
Thomas v. Missouri Pacific Ry.
Co., 109 Mo. 187 (1891), 529.
Thomas v. Wabash, St. L. & P.
Ry. Co., 63 Fed. 200 (1894),
834, 914.
Thompson v. Alabama Midland
Ry. Co., 122 Ala. 378 (1898),
915.
Thompson v. Chicago & Alton
R. R. Co., 22 Mo. App. 321
(1886), 1026.
Thompson v. Fargo, 49 N. Y. 188
(1872), 1045.
Thompson v. Lacy, 3 B. & Ald.
283 (1820), 106, 240, 263,
567.
Thompson v. London, etc., Ry.
Co., 2 Nev. & Mac. 115,
1314.
Thompson v. Matthews, 2 Edw.
Ch. 212 (1834), 53, 241, 270.
Thompson v. Midland Ry. Co., 34
L. T. (N. S.) 34 (1875), 872.
Thompson v. Missouri, K. & T.
Ry. Co. (Tex.), 126 S. W. 257
(1910), 521, 532.
Thompson v. New York Storage
Co., 97 Mo. App. 135 (1902),
170.
Thompson v. Western Union
Telegraph Co., 107 N. C. 449
(1890), 1014.
Thompson Glass Co. v. Fayette
Fuel Gas Co., 137 Pa. St. 317
(1890), 852.
Thompson-Houston Electric Co.
v. Newton, 42 Fed. 723
(1890), 218.
Thompson-Houston Electric Co.
v. Simon, 20 Oreg. 60 (1890),
189, 190, 262.
Thorley, Ltd., v. Orchis S. S. Co.,
Ltd., 1 K. B. 660 (1907), 908,
921.
Thorpe v. New York Central &
H. R. R, R. Co., 76 N. Y.
402 (1879), 152, 845, 847.
Thorpe v. Rutland & V. R. R.
Co., 27 Vt. 140 (1855), 1435.
Thousand Island Park Assn. v.
Tucker, 173 N. Y. 203
(1903), 51.
Thousand Island Stb. Co. v. Vis-
gar, 86 N. Y. App. Div. 126
(1903), 103, 232, 488.
Thurn v. Alta Telegraph Co., 15
Cal. 472 (1860), 520.
Thurston v. Union Pacific R. R.
Co., 4 Dillon, 321 (1877),
188, 598, 603, 604, 608, 627,
631, 641.
Thweatt v. Houston, E. & W. T.
Ry. Co., 31 Tex. Civ. App.
227 (1903), 942.
Tidwell v. Western Union Tele-
graph Co. (Ala.), 51 So. 934
(1910), 1041.
Tierney v. New York Central &
H. R. R. R. Co., 76 N. Y. 305
(1879), 408, 664, 665, 722,
831, 834, 842.
Tift v. Southern Ry. Co., 138
Fed. 753 (1905), 1069, 1074,
1075, 1076, 1211, 1212, 1239,
1371.
Tillett v. Lynchburg & D. R. R.
Co., 115 N. C. 662 (1894),
395.
Tilley v. Savannah, F. & W. R. R.
Co., 5 Fed. 641 (1881), 1121,
1409.
Timpson v. Manhattan Ry. Co.,
52 Hun (N. Y.), 489 (1889),
1044.
Tindall v. Taylor, 4 E. & B.
(Eng.) 219 (1854), 1263.
Tirrell v. Gage, 4 Allen, 245
(1862), 922.
[ cxcix]
TABLE OF CASES CITED
[References are to sections]
Tobin v. London & N. W. R. R.
Co., 2 Ir. 22 (1895), 872.
Tobin v. Portland, S. & P. R. R.
Co., 59 Me. 183 (1871), 369,
372.
Todd v. Old Colony R. R. Co., 3
Allen (Mass.), 18 (1861), 785.
Toffe v. Oregon R. R. Co., 41
Oreg. 64 (1902), 513.
Toledo v. Northwestern Ohio
Natural Gas Co., 5 Ohio C.
C. 577 (1890), 94, 112, 1300.
Toledo, A., A. & N. M. Ry. Co.
v. Pennsylvania Co., 54 Fed.
746 (1893), 352, 570, 670,
671.
Toledo & O. C. Ry. Co. v. Bowler
& B. Co., 63 Ohio St. 274
(1900), 876.
Toledo & O. C. Ry. Co. v. Wren,
78 Ohio St. 137 (1908), 850.
Toledo Electric St. Ry. Co. v.
Toledo Consolidated St. Ry.
Co., 26 Ohio Wk. L. Bul. 172,
698.
Toledo, S. & M. R. R. Co. v.
East Saginaw & S. C. R. R.
Co., 72 Mich. 206 (1888),
224, 225.
Toledo, W. & W. Ry. Co. v.
Beggs, 85 Ill. 80 (1887), 738,
786, 1018.
Toledo, W. & W. Ry. Co. v.
Brooks, 81 Ill. 245 (1876),
745, 746.
Toledo, W. & W. Ry.
Elliott, 76 Ill. 67
1285.
Co. v.
(1875),
Toledo, W. & W. Ry. Co. v.
Grush, 67 Ill. 262 (1873),
367, 372.
Toledo, W. & W. Ry. Co. v.
Lockhart, 71 Ill. 627 (1874),
511.
Tolman v. Abbot, 78 Wis. 192
(1890), 512.
Tombler v. Kælling, 60 Ark. 62
(1894), 117.
Tompkins v. Boston Elevated Ry.
Co., 201 Mass. 114 (1909),
1031.
Tons of Coal, 318½, 14 Blatch.
(U. S.) 453 (1878), 867, 1270.
Toomer v. London Ry. Co., 3
Nev. & Mac. 79 (1865),
1331.
Topeka, City of, v. Topeka Water
Co., 58 Kan. 349 (1897), 273,
282.
Topeka City Ry. Co. v. Higgs,
38 Kans. 375 (1888), 189,
945.
Townsend v. New York Central
& H. R. R. R. Co., 56 N. Y.
295 (1874), 890.
Towson v. Havre de Grace Bank,
6 Har. & J. 47 (1823), 965.
Tozer v. United States, 52 Fed.
917 (1892), 535, 1373.
Tracy v. Pullman P. C. Co., 67
How. Pr. 154 (1884), 153,
975.
Trammell v. Dinsmore, 183 U. S.
115 (1901), 1409.
Transit Co. v. Venable, 105 Tenn.
460 (1900), 783.
Transportation Co. v. Parkers-
burg, 107 U. S. 691 (1882),
102, 232.
Transportation Line v. Hope, 95
U. S. 297 (1877), 173, 774.
Transportation of Fruit, Re, 10
Int. Com. Rep. 360 (1904),
154.
Travelers' Ins. Co. v. Austin, 116
Ga. 264 (1902), 783.
Treadwell v. Whittier, 80 Cal.
574 (1889); 193.
[ cc ]
TABLE OF CASES CITED
[References are to sections]
Tremaine v. Halifax Gas Co., 3
Nova Scotia, 360, 982.
Trent Nav. Co. v. Wood, 3 Esp.
127 (1785), 164, 963, 984,
985.
Trenton & N. B. Tp. Co. v. Amer-
ican & E. News Co., 43 N. J.
L. 381 (1881), 56.
Trice v. Chesapeake & O. Ry.
Co., 40 W. Va. 271 (1895),
889.
Trinity Val. Ry. Co. v. Stewart
(Tex. Civ. App.), 62 S. W.
1085 (1901), 780, 1015.
Trotlinger v. East Tennessee, Va.
& Ga. R. R. Co., 11 Lea, 533
(1883), 862, 870.
Trout v. Watkins L. & V. Co.
(Mo. App.), 130 S. W. 136
(1910), 107.
Troutman v. Smith, 105 Ky, 231
(1899), 1138, 1140, 1158,
1408.
Trowbridge v. Chapin, 23 Conn.
595 (1855), 409, 733.
Truax v. Philadelphia, P. W. & B.
R. R. Co., 3 Houst. 233
(1865), 513, 850, 872.
Trumbull v. Erickson, 97 Fed.
891 (1899), 664, 801.
Trustees v. Chesapeake, O. & S.
W. R. R. Co., 94 Ky. 377
(1893), 305.
Tuckahoe Canal Co. v. Tuckahoe
Ry. Co., 11 Leigh, 42 (1840),
65.
Tucker v. Housatonic R. R. Co.,
39 Conn. 447 (1872), 908.
Tucker v. Missouri Pacific R. R.
Co. (Kans.), 108 Pac. 89
(1910), 1124, 1152, 1193,
1200, 1210, 1391, 1430.
Tucker v. Pacific R. R. Co., 50
Mo. 385 (1872), 662, 914.
Tucker v. Pennsylvania Ry. Co.,
12 N. Y. Misc. 117 (1895),
796.
Tulane Hotel Co. v. Holohan, 112
Tenn. 214 (1904), 728, 744,
970.
Tunnel v. Pettijohn, 2 Harr.
(Del.) 48 (1835), 162, 254,
270, 661, 791, 792.
Tunney v. Midland Ry. Co., L.
R. C. P. 291 (1866), 783.
Turner v. Huff, 46 Ark. 222
(1885), 1039.
Turner v. North Carolina R. R.
Co., 63 N. C. 522 (1869), 604.
Turner v. Revere Water Co., 171
Mass. 329 (1898), 377, 434,
435, 453, 456, 877, 1250.
Twellis v. Pa. R. R. Co., 3 Am. L.
Reg. (N. S.) 728 (1863),
1331.
Twitchell v. Spokane, 55 Wash.
86 (1909), 1166, 1172, 1303,
1304.
Tyler v. Beacher, 44 Vt. 648
(1871), 65.
Tyler v. Western Union Tel. Co.,
60 Ill. 421 (1871), 766, 980,
1014.
Tyler & Co. v. Western Union
Telegraph Co., 60 Ill. 421
(1871), 133.
Tyrone Gas & Water Co. v. Bur-
ley, 19 Pa. Super. Ct. 348
(1902), 433.
U
Udall Milling Co. v. Atchison, T.
& S. F. R. R. Co., 82 Kans.
256 (1910), 663, 799.
Udell v. Citizens' St. Ry. Co., 152
Ind. 507 (1899), 760.
Udell v. Illinois C. Ry. Co., 13
Mo. App. 254 (1883), 796.
[cci ]
TABLE OF CASES CITED
[References are to sections]
Ukiah City v. Ukiah Water &
Imp. Co., 142 Cal.
Cal. 173
(1904), 350.
Ullman v. Chicago & N. W. Ry.
Co., 112 Wis. 150 (1901),
1005, 1021, 1022.
Ulmer v. Lime Rock R. R. Co.,
98 Me. 579 (1904), 223, 224,
225.
Umatilla Irrigation Co. v. Barn-
hart, 22 Oreg. 389 (1892),
93.
Underwood Lumber Co. v. Peli-
can Boom Co., 76 Wis. 76
(1890), 73.
Union Depot & Ry. Co. v. Meek-
ing, 42 Colo. 89 (1908), 483.
Union Express Co. v. Graham, 26
Ohio St. 595 (1875), 413, 414,
991.
Union Express Co. v. Ohleman, 92
Pa. St. 323 (1879), 776, 1040.
Union Pacific Ry. Co. v. Evans,
52 Neb. 50 (1897), 372, 1286.
Union Pacific Ry. Co. v. Good-
ridge, 149 U. S. 680 (1893),
1286.
Union Pacific Ry. Co. v. Hall, 91
U. S. 343 (1875), 211, 299,
301.
Union Pacific Ry. Co. v. John-
son, 45 Neb. 57 (1895), 1045.
Union Pacific Ry. Co. v. Mason
City & F. D. R. R. Co., 199
U. S. 160 (1905), 126.
Union Pacific Ry. Co. v. Nichols,
8 Kans. 505 (1871), 623, 738,
778.
Union Pacific Ry. Co. v. United
States, 117 U. S. 355 (1886),
535, 1373.
Union Pacific Ry. Co. v. United
States, 99 U. S. 402 (1878),
1160, 1166.
Union Pacific Ry. Co. v. Updike
Grain Co., 178 Fed. 223
(1910), 854.
Union Railway of Baltimore v.
Canton R. R. Co., 105 Md.
12 (1907), 129, 699.
Union S. S. Co. v. Clark, L. R.
(N. Z.) 2 S. C. 282 (1884),
1033.
United Fruit Co. v. New York &
B. Tr. Line, 104 Md. 567
(1906), 1038.
United Rys. & E. Co. v. Deane,
93 Md. 619 (1901), 941.
United Rys. & E. Co. v. Hertel,
97 Md. 382 (1903), 864,
1044.
United States v. American Water-
works Co., 37 Fed. 747, 379,
701.
United States v. Atchison, T. &
S. F. Ry. Co., 142 Fed. 176
(1905), 136, 177, 1293.
United States v. Atchison, T. &
S. F. Ry. Co., 163 Fed. 11
(1907), 1362.
United States v. Baltimore & O.
R. Co., 153 Fed. 997 (1907),
815.
United States v. Chicago & A. Ry.
Co., 148 Fed. 646 (1906),
1347.
United States v. Chicago & N. W.
R. R. Co., 127 Fed. 785
(1904), 1306.
United States v. Chicago, K. & S.
R. R. Co., 81 Fed. 783 (1897),
1416.
United States v. Choctaw, O. &
G. Ry. Co., 3 Okla. 404
(1895), 211.
United States v. Delaware & H.
Co., 213 U. S. 366 (1909),
709, 1436.
[ccii]
TABLE OF CASES CITED
[References are to sections]
United States v. Delaware, L. &
W. R. R. Co., 40 Fed. 101
(1889), 481.
United States v. Delaware, L. &
W. Ry. Co., 152 Fed. 269
(1907), 1153.
United States v. Illinois Terminal
Ry. Co., 168 Fed. 546 (1909),
1295.
United States v. Joint Traffic As-
sociation, 171 U. S. 505
(1898), 694.
United States v. Lehigh Valley
R. R. Co., 115 Fed. 373
(1992), 1413.
United States v. M. & L. R. R. R.
Co., 6 Fed. 237 (1881), 477.
United States v. Michigan Cen-
tral R. R. Co., 122 Fed. 544
(1903), 1292.
United States v. Milwaukee Re-
frig. Transit Co. (C. C. A.),
145 Fed. 1007 (1906), 1293.
United States v. Norfolk & W.
Ry. Co., 109 Fed. 831 (1901),
665, 856.
United States v. Norfolk & W.
Ry. Co., 138 Fed. 849 (1905),
665.
United States v. Norfolk & W.
Ry. Co., 143 Fed. 266 (1906),
665, 856.
United States v. Northern Pacific
Ry. Co., 120 Fed. Rep. 546
(1903), 516.
United States v. Oregon Ry. &
Nav. Co., 159 Fed. 975
(1908), 419, 856, 867.
United States v. Ormsbee, 74
Fed. 207 (1896), 122.
United States v. Saul, 58 Fed. 763
(1893), 763.
United States v. Seaboard Ry.
Co., 82 Fed. 563 (1897), 1414.
United States v. Sioux City Stock-
yards Co., 162 Fed. 556
(1908), 130, 160, 258, 773,
792, 1043.
United States v. Southern Ry.
Co., 125 N. C. 666 (1900),
1301.
United States & M. T. Co. v.
Delaware W. Const. Co.
(Tex. Civ. App.), 112 S. W.
447 (1908), 1097.
United States Express Co. v.
Backman, 28 Ohio St. 144
(1875), 1022.
United States Express Co. v.
Harris, 51 Ind. 127 (1875),
1023.
United States Express Co. v.
Joyce, 36 Ind. App. 1 (1905),
1020.
United States Express Co. v.
Root, 47 Mich. 231 (1881),
178, 776.
United States Express Co. v.
Rush, 24 Ind. 403 (1865),
1017.
United States Express Co. v.
State, 164 Ind. 196 (1905),
178, 278, 871.
United States Telegraph Co. v.
Gildersleve, 29 Md. 232
(1868), 348, 412, 766, 1014.
United States Telephone Co. v.
Central Union
Union Telephone
Co., 171 Fed. 130 (1909),
700.
United States v. Tozer, 39 Fed.
369 (1889), 1323.
United States v. Trans-Missouri
Freight Association, 166 U. S.
290 (1897), 694.
United States v. Union Pacific Ry.
Co., 160 U. S. 1 (1895), 211,
300.
[cciii]
TABLE OF CASES CITED
[References are to sections]
United States v. Vacuum Oil Co.,
158 Fed. 536 (1908), 1296.
United States v. West Virginia
Northern Ry. Co., 125 Fed.
252 (1903), 665, 856.
V
Valk v. Erie R. R. Co., 130 N. Y.
App. Div. 446 (1910), 1010.
Van Buskirk v. Purinton, 2 Half
(N. Y.), 561 (1829), 1263.
Van Camp v. Michigan Cent. R.
R. Co., 137 Mich. 467 (1904),
397, 863, 872, 904.
Van Patten v. Chicago, M. & St.
P. R. R. Co., 81 Fed. 545
(1891), 1294, 1376.
Van Winkle v. United States Mail
S. S. Co., 37 Barb. 122
(1862), 963, 1046.
Varble v. Bigley, 14 Bush, 698
(1879), 173, 774.
Varner v. Martin, 21 W. Va. 534
(1883), 241.
Vassau v. Madison E. Ry. Co.,
106 Wis. 301 (1900), 441.
Veeder v. Fellows, 20 N. Y. 126
(1859), 878.
Vance, Ex parte, 42 Tex. Cr. App. Vega S. S. Co. v. Consolidated
619 (1901), 484.
Vance v. Throckmorton, 5 Bush
(Ky.), 41 (1868), 770.
Vance v. Vandercook Co. 110,
U. S. 438 (1898), 1418.
Vanderberg v. Kansas City, Mo.,
Gas Co., 126 Mo. App. 600
(1907), 51, 111, 339, 376, 434,
455, 877.
Vanderslice v. The Superior, 28
Fed. Cas. 16,843 (1850), 173,
774.
Van Dusan v. Grand Trunk R.
Co., 97 Mich. 439 (1893), 431,
855, 862, 878.
Van Horn v. Kermit, 4 E. D.
Smith (N. Y.), 453 (1855),
769.
Vankirk v. Pennsylvania R. R.
Co., 76 Pa. St. 66 (1874), 446,
1255.
Vannatta v. Central R. R. Co.,
154 Pa. St. 262 (1893), 517.
Van Nest Land Co. v. New York
Water Co., 7 N. Y. App. Div.
295 (1896), 458.
Van Ostran v. New York Central
& H. R. R. Co., 35 Hun
(N. Y.), (1885), 1044.
Elevator Co., 75 Minn. 308
(1899), 141.
Veneman v. Jones, 118 Ind. 41
(1888), 484.
Vermilye v. Postal Telegraph
Cable Co., 205 Mass. 598
(1910), 571, 903.
Vermont & M. R. R. Co. v. Fitch-
burg R. R. Co., 14 Allen
(Mass.), 462 (1867), 529, 775.
Verner v. Sweitzer, 32 Pa. St. 208
(1858), 876.
Vickers v. Canadian Pacific Ry.
Co., 13 Ont. App. 210 (1908),
477.
Vicksburg & M. R. R. Co. v.
Ragsdale, 46 Miss. 458
(1872), 901.
Vicksburg L. & T. Co. v. United
States Exp. Co., 68 Miss. 149
(1890), 413.
Vicksburg Waterworks Co. v.
Vicksburg, 185 U. S. 65
(1902), 1424.
Vidal Sala, The, 12 Fed. 207
(1882), 104.
Viemeister v. Brooklyn Heights
R. R. Co., 87 N. Y. S. 162
(1904), 945.
[cciv ]
TABLE OF CASES CITED
[References are to sections]
Vincent v. Chicago & A. R. R.
Co., 49 Ill. 33 (1868), 404, 817.
Vincent v. Yazoo & M. V. R. Co.,
114 La. 1021 (1905), 513.
Vinton v. Middlesex St. Ry. Co.,
11 Allen (Mass.), 304 (1865),
644.
Violett v. Stettinius, 5 Cr. C. C.
(D. C.) 559 (1839), 1264.
Virginia & S. W. Ry. Co. v. Hill,
105 Va. 729 (1906), 889.
Virginia & T. R. R. Co. v. Sayer,
26 Gratt. 328 (1875), 1011,
1022.
Virginia C. & I. Co. v. Louisville
& N. R. R. Co., 98 Va. 77
(1900), 513.
Virginia Cañon Toll-Road Co. v.
People, 22 Colo. 429 (1896),
75.
Virginia Midland R. R. Co. v.
Roach, 83 Va. 375 (1887),
761.
Vitrified Pipes, In re, 14 Blatch.
274 (1877), 1268.
Vlierboom v. Chapman, 13 M. &
W. (Eng.) 230 (1844), 1265.
Voight v. Baltimore, O. & S. W.
Ry. Co., 79 Fed. 561 (1897),
781.
Volkmar v. Volkmar, 147 Cal. 175
(1905), 852.
Vreeland v. O'Neil, 36 N. J. Eq.
399 (1883), 456.
W
Wabash Ry. Co. v. Brown, 152
III. 484 (1894), 1012.
Wabash Ry. Co. v. Jellison, 124
Ill. App. 652 (1906), 777.
Wabash Ry. Co. v. Mathew, 199
U. S. 605 (1905), 635, 638.
Wabash Ry. Co. v. Savage, 110
Ind. 156 (1886), 939.
Wabash Ry. Co. v. Sharpe, 76
Neb. 424 (1906), 656, 918,
984.
Wabash Ry. Co. v. Thomas, 222
Ill. 337 (1906), 512, 1026.
Wabash, St. L. & P. Ry. Co. v.
Illinois, 118 U. S. 557 (1886),
1417.
Wabash, St. L. & P. Ry. Co. v.
McCasland, 11 Ill. App. 491
(1882), 909.
Wabaska Electric Co. v. City
of Wymore, 60 Neb. 199
(1900), 1123, 1430.
Wade v. Lutcher & Moore Cy-
press Lumber Co., 74 Fed.
517 (1896), 207, 212, 223,
762.
Wade v. Wheeler, 3 Lans. 201
(1870), 726.
Wagner v. Brooklyn Heights R.
R. Co., 95 App. Div. 219
(1904), 945.
Wagner v. City of Rock Island,
146 Ill. 139 (1893), 377,
1342.
Wagner v. Missouri Pac. Ry.
Co., 97 Mo. 512 (1888), 754,
763.
Wainwright v. Queens County
Water Co., 78 Hun, 146
(1894), 350.
Wald v. Pittsburg, C., C. & St.
L. R. R. Co., 162 Ill. 545
(1896), 656, 918, 921, 985.
Walker v. Jackson, 10 M. & W.
161 (1842), 771.
Walker v. Keenan, 73 Fed. 758
(1896), 818.
Walker v. McDonald, 49 Tex.
458 (1878), 825.
Walker v. Shasta Power Co.,
160 Fed. 856 (1908), 60, 95,
114, 243.
[ ccv ]
TABLE OF CASES CITED
[References are to sections]
Walker v. Skipwith, Meigs, 502
(1838), 184, 262, 1002.
Walker v. York & N. M. Ry.
Co., 2 E. & B. 750 (1853),
1001.
Walla Walla v. Walla Walla
Water Co., 172 U. S. 1
(1898), 1424.
Wallace v. Arkansas Cent. R. R.
Co., 118 Fed. 422 (1902),
1409.
Wallace v. Landers, 42 Ga. 486
(1871), 666.
1
Wallace v. Pecos & N. T. Ry.
Co. (Tex. Civ. App.), 110
S. W. 162 (1908), 663,
799.
Wallace v. Rosenthal, 40 Ga. 419
(1869), 517, 1033.
Wallace v. Sanders, 50 Ga. 134
(1871), 986.
Wallace v. Wilmington & N. Ry.
Co., 8 Houst. 529 (1889),
1044.
Walling v. Potter, 35 Conn. 183
(1868), 234, 240, 263, 337,
364, 751, 752, 969.
Walsh v. Chicago, M. & St. P.
Ry. Co., 42 Wis. 23 (1877),
599, 934.
Walsh v. New York Floating Dry
Dock Co., 77 N. Y. 448
(1879), 104.
Walsh v. The H. M. Wright,
Newb. Adm. (U. S.) 494
(1854), 769, 975.
Walston v. Myers, 5 Jones, 174
(1857), 173, 774.
Waltham Mfg. Co. v. New York
& T. S. S. Co., 204 Mass.
253 (1910), 908.
Wampum Cotton Mills v. Caro-
lina & N. W. Ry. Co., 150
N. C. 608 (1909), 516, 564.
Wamsley v. Atlas S. S. Co., 168
N. Y. 533 (1901), 905.
Ward v. Birmingham Water-
works Co., 152 Ala. 285
(1907), 1249.
Ward v. Fellers, 3 Mich. 281
(1854), 1269.
Ward v. Missouri Pacific Ry.
Co., 158 Mo. 226 (1900),
1023.
Wardwell v. Chicago, M. & St.
P. Ry. Co., 46 Minn. 514
(1891), 432.
Warfield v. Louisville & N. R. R.
Co., 104 Tenn. 74 (1900),
636, 646.
Warner v. Burlington & Mo.
R. R. R. Co., 22 Ia. 166
(1867), 875, 970.
Warner v. Western Transporta-
tion Co., 5 Robt. 490 (1868),
623, 737.
Warren v. Chicago, 118 Ill. 329
(1887), 824.
Warren v. Fitchburg R. R. Co.,
8 Allen, 227 (1864), 401.
Washburn v. Jones, 14 Barb. 193
(1851), 979.
Washburn v. Nashville & C. R.
R. Co., 3 Head (Tenn.),
638 (1859), 764.
Washington Luna P. Co. v.
Goodrich (Va.), 66 S. E.
977 (1910), 195.
Washington Toll Bridge v. Beau-
fort, 81 N. C. 491 (1879),
53.
Washington,
Borough of, v.
Washington Water Co., 70
N. J. Eq. 254 (1905), 459.
Watauga Water Co. v. Wolfe,
99 Tenn. 429 (1897), 92,
212, 214, 215, 216, 242, 264,
411, 445, 883, 1249, 1250,
[ cevi ]
TABLE OF CASES CITED
[References are to sections]
Waterbury v. New York Cen-
tral & H. R. R. R. Co., 17
Fed. Rep. 671 (1883), 745.
Waters v. Railroad Co., 110 N.
C. 338 (1892), 610.
Waterworks Co. v. Kansas City,
4 McCreary, 198 (1882),
1304.
Waterworks Co. v. Kansas City,
62 Fed. 853 (1894), 1110.
Watson v. Cross, 2 Duv. 147
(1865), 339.
Watson v. Memphis & Ry. Co.,
9 Heisk. 255 (1872), 748.
Watson v. St. Paul City Ry. Co.,
42 Minn. 46 (1889), 190.
Watts v. Boston & Lowell R. R.
Corp., 106 Mass. 466 (1871),
727.
Way v. Chicago, R. I. & Pac.
Ry. Co., 64 Ia. 48 (1884),
623, 738.
Wear v. Gleason, 53 Ark. 364
(1889), 970.
Weaver v. Wible, 20 Ohio, 270
(1855), 239.
Webbe v. Western Union Tele-
graph Co., 169 Ill. 610
(1897), 862.
Weber v. Brooklyn, Q. C. & S.
R. R. Co., 47 App. Div.
306 (1900), 937.
Webster v. Fitchburg R. R. Co.,
161 Mass. 298 (1894), 401.
Weed v. Panama R. R. Co., 17 N.
Y.362 (1858), 872, 904, 915.
Weeks v. McNulty, 101 Tenn.
495 (1898), 966, 978.
Weeks v. New Orleans, S. F. &
L. Ry. Co., 40 La. Ann. 800
(1888), 399, 403.
Weeks v. New York, N. H. &
H. R. R. Co., 72 N. Y. 50
(1878), 769, 944.
•
Weems Stb. Co. v. People's Stb.
Co., 214 U. S. 345 (1909),
102, 232, 294, 314.
Wehmann v.
Wehmann v. Minneapolis, St.
P. & S. Ste. M. Ry. Co., 58
Minn. 22 (1894), 518, 1005,
1017, 1033.
Weidenfeld v. Sugar Run Ry.
Co., 48 Fed. 615 (1892), 223.
Weisinger v. Southern Ry. Co.,
129 Ky. 592 414, 845.
Welch v. Boston & A. R. R. Co.,
41 Conn. 333 (1874), 1011.
Welch v. Pullman P. C. Co., 16
Abb. Pr. (N. S.) 352 (1874),
153.
Weld v. Gas & Electric Light
Commissioners, 197 Mass.
556 (1908), 113, 273, 276,
320, 405, 693, 797.
Wellman v. Chicago & Grand
Trunk Railway Co., 83
Mich. 592 (1890), 1207.
Wells v. American Exp. Co., 55
Wis. 23 (1882), 178, 776,
1047.
Wells v. American Exp. Co., 44
Wis. 342 (1878), 990.
Wells v. Maine Steamship Co.,
4 Cliff. (U. S.) 228 (1879),
1046.
Wells v. New York Central R. R.
Co., 24 N. Y. 181 (1862),
786, 1018.
Wells v. Oregon Ry. & Nav. Co.,
15 Fed. 561 (1883), 1121.
Wells v. Steam Nav. Co., 2 N. Y.
204 (1849), 173, 774.
Wells v. Western Union Tele-
graph Co., 123 N. W. 371
(1909), 1025.
Wells v. Wilmington & W. R. R.
Co., 6 Jones L. (N. C.) 47
(1858), 729.
[ ccvii]
TABLE OF CASES CITED
[References are to sections]
Wells, Fargo & Co. v. Northern
Pac. Ry. Co., 23 Fed. 469
(1884), 477.
Wells, Fargo & Co. v. Oregon Ry.
& Nav. Co., 8 Sawyer, 600
(1883), 477.
Wells, Fargo & Co.'s Exp. v.
Fuller, 4 Tex. Civ. App. 213
(1893), 907.
Welsh v. Pittsburg, Ft. W. & C.
R. R. Co., 10 Ohio St. 65
(1859), 256.
Wente v. Chicago, B. & Q. Ry.
Co., 79 Neb. 175 (1907),
518.
Wentz-Bates Mercantile Co. v.
Union Pacific Ry. Co., 85
Neb. 584 (1909), 1294.
Werbowlsky v. Ft. Wayne & E.
Ry. Co., 86 Mich. 236
(1891), 932.
Wertz v. Western Union Tele-
graph Co., 7 Utah, 446
(1891), 133.
Wescott v. Seattle, R. & S. R.
R. Co., 84 Pac. 588 (1906),
626, 942.
West v. Rawson, 40 W. Va. 480
(1895), 65, 851.
West v. Thomas, 97 Ala. 622
(1892), 966, 979.
West Branch Lumbermen's Ex-
change v. Fisher, 150 Pa. St.
475 (1892), 73.
West Chester & Philadelphia R.
R. Co. v. Miles, 55 Pa. St.
209 (1867), 566, 848, 881.
West Chicago St. R. R. Co. v.
Walsh, 78 Ill. App. 595
(1898), 1044.
West Hartford, Town of, v.
Board of Water Commis-
sioners, 68 Conn. 323 (1896),
273, 274, 405.
West Memphis Packet Co. v.
White, 99 Tenn. 256 (1897),
934.
West Side Electric Co. v. Consol.
T. & E. Co., 110 N. Y. App.
Div. 171 (1905), 383.
West Virginia Transp. Co. v.
Ohio R. Pipe Line Co., 22
W. Va. 600 (1883), 59, 687,
691.
West Virginia Transp. Co. v.
Volcanic O. & C. Co., 5
W. Va. 382 (1872), 59,
416.
Western & A. Ry. Co. v. Voils,
98 Ga. 446 (1896), 635.
Western Irrigation & L. Co. v.
Chapman (Kan.), 59 Pac.
1098 (1899), 93.
Western Maryland R. R. Co. v.
Herold, 74 Md. 510 (1891),
862.
Western Maryland R. R. Co. v.
Schaun, 97 Md. 563 (1903),
890.
Western Maryland R. R. Co. v.
Stocksdale, 83 Md. 245
(1896), 889.
Western N. Y. & P. Ry. Co. v.
Penna. Ry. Co., 137 Fed.
343 (1905), 796.
Western Ry. Co. v. Harwell, 91
Ala. 340 (1890), 1026.
Western Ry. Co. v. Little, 86
Ala. 159 (1888), 1024.
Western Transportation Co. v.
Hoyt, 69 N. Y. 230 (1877),
1265, 1266, 1268.
Western Union Telegraph Co. v.
Adams, 75 Tex. 531 (1889),
348.
Western Union Telegraph Co. v.
Allen, 66 Miss. 549 (1889),
133, 348.
[ ccviii]
TABLE OF CASES CITED
[References are to sections]
Western Union Telegraph Co. v.
American Union Tel. Co.,
65 Ga. 160 (1880), 694.
Western Union Telegraph Co. v.
Arwine, 3 Tex. Civ. App.
156 (1893), 412.
Western Union Telegraph Co. v.
Ayers (Tex.), 93 S. W. 199
(1906), 437.
Western Union Telegraph Co. v.
Baltimore & O. Tel. Co., 19
Fed. Rep. 660 (1884), 691.
Western Union Telegraph Co. v.
Barefoot, 97 Tex. 159 (1903),
1041.
Western Union Telegraph Co.
v. Beck, 58 Ill. App. 564
(1895), 1025.
Western Union Telegraph Co. v.
Bell (Tex. App.), 90 S. W.
714 (1905), 348.
Western Union Telegraph Co. v.
Bibb (Ky.), 125 S. W. 257
(1910), 1041.
Western Union Telegraph Co. v.
Bierhans, 12 Ind. App. 17
(1895), 657.
Western Union Telegraph Co. v.
Birge-Forbes Co., 29 Tex.
Civ. App. 526 (1902), 657.
Western Union Telegraph Co.
v. Blanchard, 68 Ga. 299
(1882), 1014.
Western Union Telegraph Co. v.
Boots (Tex. Civ. App.), 31
S. W. 825 (1895), 980.
Western Union Telegraph Co.
v. Broesche, 72 Tex. 654
(1889), 412.
Western Union Telegraph Co. v.
Burns, 51 So. 373 (1910), 871.
Western Union Telegraph Co. v.
Cain (Tex. Civ. App.), 40
S. W. 624 (1897), 871.
Western Union Telegraph Co. v.
Call Pub. Co., 44 Neb. 326
(1895), 244.
Western Union Telegraph Co. v.
Call Pub. Co., 58 Neb. 192
(1895), 851.
Western Union Telegraph Co. v.
Call Pub. Co., 181 U. S. 92
(1901), 133, 244, 1204, 1290,
1319, 1322.
Western Union Telegraph Co. v.
Carew, 15 Mich. 525 (1867),
133, 520, 766, 1014.
Western Union Telegraph Co.
v. Chamblee, 122 Ala. 428
(1898), 766, 1014.
Western Union Telegraph Co. v.
Cobb, 95 Tex. 333 (1902),
1041.
Western Union Telegraph Co. v.
Cobbs, 47 Ark. 344 (1886),
1014, 1025, 1026.
Western Union Telegraph Co. v.
Cooper, 29 Tex. Civ. App.
591 (1902), 1010.
Western Union Telegraph Co. v.
Courtney, 113 Tenn. 482
(1904), 1025.
Western Union Telegraph Co. v.
Crall, 38 Kan. 679 (1888),
766, 1014.
Western Union Telegraph Co. v.
Crider, 107 Ky. 600 (1900),
398, 874.
Western Union Telegraph Co. v.
Culberson, 79 Tex. 65 (1890),
1026.
Western Union Telegraph Co. v.
Cullers, 3 Willson Cir. Cas.
Ct. App. (Tex., 1887), § 289,
1041.
Western Union Telegraph Co. v.
Cunningham, 99 Ala. 314
(1892), 433, 442.
14
[ccix]
TABLE OF CASES CITED
[References are to sections]
Western Union Telegraph Co.
v. Dougherty, 54 Ark. 221
(1891), 1026.
Western Union Telegraph Co. v.
Dozier, 67 Miss. 288 (1889),
412.
Western Union Telegraph Co. v.
Dubois, 128 Ill. 248 (1889),
348, 436.
Western Union Telegraph Co.
v. Dunfield, 11 Colo. 335
(1888), 1025, 1026.
Western Union Telegraph Co. v.
Edsall, 63 Tex. 668 (1885),
742.
Western Union Telegraph Co. v.
Eubank, 100 Ky. 591 (1897),
1008, 1014.
Western Union Telegraph Co. v.
Fenton, 52 Ind. 1 (1875),
348.
Western Union Telegraph Co.
v. Ferguson, 57 Ind. 495
(1877), 609, 633.
Western Union Telegraph Co. v.
Fisher, 21 Ky. Law Rep.
1293 (1900), 874.
Western Union Telegraph Co. v.
Ford, 77 Ark. 531 (1906), 874.
Western Union Telegraph Co. v.
Foster, 64 Tex. 220 (1885),
412, 742.
Western Union Telegraph Co. v.
Georgia Cotton Co., 94 Ga.
444 (1894), 874, 1041.
Western Union Telegraph Co. v.
Gibson (Tex. Civ. App.), 53
S. W. 712 (1899), 874.
Western Union Telegraph Co. v.
Graham, 1 Col. 230 (1871),
851, 1014.
Western Union Telegraph Co. v.
Hamilton, 36 Tex. Civ. App.
300 (1904), 21, 133.
Western Union Telegraph Co.
v. Harding, 103 Ind. 505
(1885), 133, 398, 874,
1041.
Western Union Telegraph Co. v.
Harper, 15 Tex. Civ. App.
37 (1896), 607.
Western Union Telegraph Co. v.
Harvey, 67 Kan. 729 (1903),
1041.
Western Union Telegraph Co.
v. Henderson, 89 Ala. 510
(1889), 277, 412, 437, 562,
871, 1014, 1025, 1041.
Western Union Telegraph Co. v.
Hendricks, 29 Tex. Civ.
App. 413 (1902), 1041.
Western Union Telegraph Co. v.
Henley, 23 Ind. 14 (1899),
599.
Western Union Telegraph Co. v.
Hill, 163 Ala. 18 (1909),
1041.
Western Union Telegraph Co. v.
Hill (Tex.), 26 S. W. 252
(1894), 874.
Western Union Telegraph Co.
v. Hill (Tex. Civ. App.), 65
S. W. 1123 (1902), 607.
Western Union Telegraph Co. v.
Hines, 96 Ga. 688 (1895),
1025.
Western Union Telegraph Co. v.
Hinkle, 3 Tex. Civ. App.
518 (1893), 412.
Western Union Telegraph Co.
v. Hutcheson, 91 Ga. 252
(1892), 599.
Western Union Telegraph Co.
v. Hyer Bros., 22 Fla. 637
(1886), 133, 980.
Western Union Telegraph Co. v.
Jackson, 163 Ala. 9 (1909),
1041.
[ ccx]
TABLE OF CASES CITED
[References are to sections]
Western Union Telegraph Co. v.
James, 90 Ga. 254 (1892),
348, 417.
Western Union Telegraph Co. v.
Johnson, 9 Tex. Civ. App.
48 (1894), 902.
Western Union Telegraph Co. v.
Jones, 69 Miss. 658 (1892),
412, 1014, 1025.
Western Union Telegraph Co.
v. Lewison, 182 Fed. 369
(1910), 348.
Western Union Telegraph Co. v.
Liddell, 68 Miss. 1 (1890), 412.
Western Union Telegraph Co. v.
Lilliard, 86 Ark. 208 (1908),
551, 573.
Western Union Telegraph Co. v.
Longwill, 5 New Mex. 308
(1889), 1025.
Western Union Telegraph Co. v.
Love Banks Co., 73 Ark. 205
(1904), 398, 874.
Western Union Telegraph Co.
v. Mathews, 107 Ky. 663
(1900), 437, 1041.
Western Union Telegraph Co. v.
Matthews, 24 Ky. L. Rep. 3
(1902), 575.
Western Union Telegraph Co. v.
McCaul, 115 Tenn. 99 (1905),
871, 1041.
Western Union Telegraph Co.
v. McGuire, 104 Ind. 130
(1885), 436, 877.
Western Union Telegraph Co.
v. McKibben, 114 Ind. 511
(1887), 1025.
Western Union Telegraph Co.
v. McLaurin, 70 Miss. 26
(1892), 336, 599.
Western Union Telegraph Co. v.
McMillan (Tex. Civ. App.),
30 S. W. 298 (1895), 862.
Western Union Telegraph Co. v.
Meredith, 95 Ind. 93 (1888),
980, 1026.
Western Union Telegraph Co. v.
Milton, 53 Fla. 484 (1907),
1014.
Western Union Telegraph Co. v.
Mississippi R. R. Commis-
sion, 74 Miss. 80 (1896), 244,
814.
Western Union Telegraph Co. v.
Mitchell, 91 Tex. 454 (1898),
1041.
Western Union Telegraph Co. v.
Moore, 12 Ind. App. 136
(1894), 1041.
Western Union Telegraph Co. v.
Moran (Tex. Civ. App.), 113
S. W. 625 (1908), 1041.
Western Union Telegraph Co. v.
Moseley, 28 Tex. Civ. App.
562 (1902), 1041.
Western Union Telegraph Co. v.
Myatt, 98 Fed. 335 (1899),
1402, 1404.
Western Union Telegraph Co. v.
Neel, 86 Tex. 368 (1894), 874,
1041.
Western Union Telegraph Co. v.
O'Keefe (Tex. Civ. App.),
29 S. W. 1137 (1895),
442.
Western Union Telegraph Co. v.
Pendelton, 122 U. S. 347
(1886), 1417.
Western Union Telegraph Co. v.
Phillips (Tex. Civ. App.), 30
S. W. 494 (1893), 1026.
Western Union Telegraph Co. v.
Pierce, 170 S. W. 360 (1902),
874.
Western Union Telegraph Co. v.
Power, 93 Ga. 543 (1894),
438.
[ ccxi ]
TABLE OF CASES CITED
[References are to sections]
Western Union Telegraph Co. v.
Pratt, 18 Okla. 274 (1907),
1010.
Western Union Telegraph Co. v.
Price, 137 Ky. 758 (1910),
1041.
Western Union Telegraph Co. v.
Rains, 63 Tex. 27 (1885),
1025.
Western Union Telegraph Co.
v. Rawls (Tex. Civ. App.),
62 S.
S. W. 136 (1901),
874.
Western Union Telegraph Co. v.
Reynolds Bros., 77 Va. 173
(1883), 133, 348, 1025.
Western Union Telegraph Co.
v. Robinson, 97 Tenn. 638
(1896), 871.
Western Union Telegraph Co.
v. Rosentreter, 80 Tex. 406
(1891), 688.
Western Union Telegraph Co. v.
Rowell (Ala.), 21 So. 880
(1910), 1041.
Western Union Telegraph Co. v.
Sanders (Ind.), 79 N. E. 406
(1906), 412, 742.
Western Union Telegraph Co.
v. Schockley (Tex. Civ.
App.), 122 S. W. 945 (1909),
1041.
Western Union Telegraph Co. v.
Scircle, 103 Ind. 227 (1885),
903.
Western Union Telegraph Co. v.
Scott, 27 Ky. Law Rep. 975
(1905), 871, 1041.
Western Union Telegraph Co. v.
Shaw, 40 Tex. Civ. App. 277
(1905), 1041.
Western Union Telegraph Co. v.
Short, 53 Ark. 434 (1890), 56,
133, 980.
Western Union Telegraph Co. v.
Shumate, 2 Tex. Civ. App.
429 (1893), 412.
Western Union Telegraph Co. v.
Simmons (Tex. Civ. App.),
93 S. W. 686 (1906), 515,
520.
Western Union Telegraph Co. v.
Smith (Tex. Civ. App.), 30
S. W. 937 (1894), 903.
Western Union Telegraph Co.
v. Snodgrass, 94 Tex. 284
(1901), 433, 442.
Western Union Telegraph Co. v.
Sorsby, 29 Tex. Civ. App.
345 (1902), 1017.
Western Union Telegraph Co. v.
State, 165 Ind. 492 (1905),
603, 607.
Western Union Telegraph Co.
v. Stevenson, 128 Pa. St.
442 (1889), 412, 742, 766,
1014.
Western Union Telegraph Co. v.
State ex rel., 165 Ind. 492
(1905), 137, 138.
Western Union Telegraph Co. v.
Swearingen, 95 Tex. 420
(1902), 278, 871, 1041.
Western Union Telegraph Co. v.
Swoveland, 8 Ind. App. 563
(1895), 837, 841.
Western Union Telegraph Co. v.
Taylor, 3 Tex. Civ. App. 310
(1893), 765.
Western Union Telegraph Co. v.
Todd, 22 Ind. App. 701
(1899), 412.
Western Union Telegraph Co. v.
Totten, 141 Fed. 533 (1905),
605.
Western Union Telegraph Co. v.
Trissal, 98 Ind. 566 (1884),
1041.
[ ccxii]
TABLE OF CASES CITED
[References are to sections]
Western Union Telegraph Co. v.
Trotter, 55 Ill. App. 659
(1894), 277, 278, 871, 1041.
Western Union Telegraph Co. v.
Turner, 94 Tex. 304 (1901),
514, 521.
Western Union Telegraph Co. v.
Tyler, 74 Ill. 168 (1874), 1014.
Western Union Telegraph Co. v.
Van Cleave, 107 Ky. 464
(1900), 874.
Western Union Telegraph Co. v.
Ward, 23 Ind. 377 (1864),
841, 851.
Western Union Telegraph Co. v.
Warren (Tex.), 36 S. W. 314
(1896), 437, 765.
Western Union Telegraph Co. v.
Waters, 139 Ala. 652 (1904),
597.
Western Union Telegraph Co.
v. Waxelbaum Co., 113 Ga.
1017 (1901), 412.
Western Union Telegraph Co.
v. Way, 83 Ala. 542 (1887),
1025.
Western Union Telegraph Co. v.
Whitson, 145 Ala. 426 (1906),
1041.
Western Union Telegraph Co. v.
Williams, 86 Va. 696 (1890),
56.
Western Union Telegraph Co. v.
Wilson, 93 Ala. 32 (1890),
412, 599.
Western Union Telegraph Co. v.
Wingate, 6 Tex. Civ. App.
394 (1894), 874, 1041.
Western Union Telegraph Co. v.
Woods, 56 Kans. 737 (1896),
1041.
Western Union Telegraph Co.
v. Woodward, 84 Ark. 323
(1907), 348.
Western Union Telegraph Co. v.
Wright (Ala.), 53 So. 95
(1910), 1041.
Western Union Telegraph Co v.
Yopst, 118 Ind. 248 (1889),
442, 599, 1025.
Weymouth v. Penobscot Log
Driving Co., 71 Me. 29
(1880), 55, 211.
Whalen v. Baltimore & O. R. Co.,
108 Md. 11 (1908), 306, 318.
Whalen v. Consolidated Traction
Co., 61 N. J. L. 606 (1898),
932.
Wheeler, Matter of, 62 N. Y.
Misc. 37 (1908), 299.
Wheeler v. Northern Colorado
Irr. Co., 10 Colo. 582 (1887),
93, 231, 242, 445, 846, 973,
1249, 1402.
Whicher v. Boston & A. R. R. Co.,
176 Mass. 275 (1900), 153,
769, 975.
Whitehead v. St. Louis, I. M. &
S. Ry. Co., 99 Mo. 263
(1889), 745, 763.
White v. Ashton, 51 N. Y. 280
(1873), 905, 906, 907, 921.
White v. Atlanta St. Ry. Co., 92
Ga. 494 (1893), 736.
White v. Chesapeake & O. R. R.
Co., 26 W.Va. 800 (1885), 888.
White v. Evansville & T. N. R. R.
Co., 133 Ind. 480 (1892), 864.
White v. Highline Canal & Ry.
Co., 22 Colo. 191 (1886), 852.
White v. Humphery, 11 Q. B. 43
(1847), 393, 726.
White v. Kennon & Co., 83 Ga.
343 (1889), 223.
White v. Mary Ann, 6 Cal. 462
(1856), 173, 774.
White v. Missouri Pacific Ry. Co.,
19 Mo. App. 400 (1885), 723.
[ ccxiii]
TABLE OF CASES CITED
[References are to sections]
White v. Norfolk & S. R. R. Co.,
115 N. C. 631 (1894), 935,
957.
White v. Postal Telegraph Co., 25
App. D. C. 364 (1905), 108,
255.
White v. Winnisimet Ferry Co., 7
Cush. 155 (1851), 771, 772,
767, 972.
White Live Stock Commission Co.
v. Chicago, M. & St. P. R. R.
Co., 87 Mo. App. 330 (1900),
1047.
White, W. & K. v. Western Union
Telegraph Co., 14 Fed. 710
(1882), 657, 984.
Whitehouse v. Staten Island Wa-
ter Co., 91 N. Y. Supp. 544
(1905), 280.
Whiting v. Mills, 7 Upp. Can. Q.
B. 450 (1849), 751.
Whiting v. Sheboygan & F. Du
Lac, 25 Wis. 167 (1870), 807.
Whitmore v. Bowman, 4 Green,
148 (1853), 182, 241.
Whitney v. New York, N. H. &
H. R. R. Co., 43 C. C. A. 19
(1900), 784.
Whitsell v. Crane, 8 Watts & S.
369 (1845), 862.
Whittimore v. Haroldson, 2 Lea
(Tenn.), 312 (1879), 1032.
Wibert v. New York & E. R. R.
Co., 12 N. Y. 245 (1855), 663,
914.
Wichita Sav. Bank v. Atchison,
T. & S. F. Ry. Co., 20 Kans.
519 (1878), 748.
Wieland v. Southern Pac. Co., 1
Cal. App. 343 (1905), 763,
764.
Wiemer v. Louisville Water Co.,
130 Fed. Rep. 251 (1903),
264.
Wiggins Ferry Co. v. East St.
Louis V. Ry. Co., 107 Ill. 450
(1883), 188, 258, 262, 792,
1043.
Wight v. United States, 167 U. S.
512 (1897), 1293, 1312, 1316.
Wilcox v. Durham & C. R. R. Co.
(N. C.), 67 S. E. 758 (1910),
1317.
Wilcox v. San Antonio & A. Pass.
R. R. Co., 11 Tex. Civ. App.
487 (1895), 761.
Wilde v. Merchants' Dispatch
Co., 47 Iowa, 247 (1877),
180.
Wilder v. St. Johnsbury & L. C.
Ry., 66 Vt. 636 (1891), 346,
394, 431, 723.
Wilkes-Barre v. Spring Brook
Water Co., 4 Lack. (Pa.) Leg.
News, 367 (1899), 1082, 1087,
1111, 1138, 1139, 1146, 1166,
1167.
Wilkinson v. Light, Heat & Wa-
ter Co., 78 Miss. 389 (1900),
350.
Will v. Postal Tel. Cable Co., 3
App. Div. 22 (1896), 742.
Willcox v. Consolidated Gas Co.,
212 U. S. 19 (1909), 1063,
1088, 1096, 1104, 1106, 1124,
1129, 1201, 1209, 1220, 1430,
1431.
Williams v. Branson, 1 Murphy,
417 (1810), 166.
Williams v. Grant, 1 Conn. 487
(1816), 985.
Williams v. Maysville Telephone
Co., 26 Ky. L. Rep. 945
(1904), 1252.
Williams v. Mutual Gas Co., 52
Mich. 449 (1884), 1345.
Williams v. Pullman P. C. Co., 40
La. Ann. 87 (1888), 940.
[ ccxiv]
TABLE OF CASES CITED
[References are to sections]
Williams et al. v. Judge, 45 La.
Ann. 1295 (1893), 223.
Williams v. Louisville & N. Ry.
Co., 150 Ala. 324 (1907), 932.
Williams v. Mut. Gas Co., 52
Mich. 499 (1884), 111, 434,
877.
Williams v. Oregon S. L. R. R.
Co., 18 Utah, 210 (1898), 784.
Williams v. Pullman Palace Car
Co., 40 La. Ann. 417 (1888),
367.
Williams v. Webb, 22 Misc.
(N. Y.) 513 (1898), 769.
Williams v. Wilmington & W. R.
R., 93 N. C. 42 (1885), 747.
Williamson v. Chicago, R. I. & P.
R. Co., 53 Ia. 126 (1880), 811.
Willis v. Atlantic R. R. Co., 120
N. C. 508 (1897), 761.
Willis v. McMahan, 89 Cal. 156
(1301), 106, 551.
Willock v. Pennsylvania R. R.
Co., 166 Pa. St. 184 (1895),
1011.
Wilmington City Ry. Co. v. Wil-
mington, etc., Ry. Co., 8
Del. Ch. 468 (1900), 693.
Wilsey v. Louisville & N. R. R.
Co., 83 Ky. 511 (1886),
887.
Wilson v. Adams Express Co., 27
Mo. App. 360 (1887), 1049.
Wilson v. Atlantic C. L. Ry. Co.,
129 Fed. 774 (1904), 259, 755,
772.
Wilson v. Atlanta & Charlotte
Ry. Co., 82 Ga. 386 (1889),
399, 729.
Wilson v. California Central Ry.
Co., 94 Cal. 166 (1892), 1037.
Wilson v. Chesapeake & O. R. R.
Co., 21 Gratt. (Va.) 654
(1872), 875.
Wilson v. Hamilton, 4 Ohio St.
722 (1855), 182, 241, 771.
Wilson v. New Orleans & N. E. R.
R. Co., 63 Miss. 352 (1885),
872, 904.
Wilson v. Platt, 84 N. Y. Supp.
143 (1903), 1003.
Wilson v. Telegram Co., 18 N. Y.
State Rep. 78 (1888), 494.
Wilson Sewing Machine Co. v.
Louisville & N. R. R. Co., 71
Mo. 203 (1879), 1048.
Wilson Water & Elec. Co. v.
Arkadelphia, 129 S. W. 1091
(1910), 825, 1251.
Wilterding v. Green, 4 Ida. 773
(1896), 93, 384.
Wilton v. Middlesex R. R. Co.,
107 Mass. 108 (1871), 745.
Wilton v. Middlesex R. R. Co.,
125 Mass. 130 (1878), 785.
Winchester & S. R. R. Co. v.
Commonwealth, 106 Va. 264
(1906), 740, 836.
Winchester &c. Turnpike Road
Co. v. Croxton, 98 Ky. 739
(1898), 75, 241.
Windsor Glass Co. v. Carnegie
Co., 204 Pa. St. (1903), 129.
Wing v. New York, etc., Ry. Co.,
1 Hilton (N. Y. C. P.), 235,
920.
Winona & St. P. R. R. Co. v.
Blake, 94 U. S. 180 (1876),
1427.
Winslow v. Vermont & M. R. R.
Co., 42 Vt. 700 (1870), 1049.
Wintermute v. Clarke, 5 Sandf.
242 (1851), 240, 263, 1032.
Winters v. Cowen, 90 Fed. 99
(1898), 874.
Wisconsin, M. & P. R. R. Co. v.
Jacobson, 179 U. S. 287
(1900), 525, 698, 1434.
[ ccxv ]
TABLE OF CASES CITED
[References are to sections]
Wise v. Ackerman, 76 Md. 375
(1892), 193.
Wise v. Covington & C. St. Ry.
Co., 91 Ky. 537 (1891), 939.
Wiser v. Chesley, 53 Mo. 547
(1873), 970.
Withey v. Pere Marquette R. R.
Co., 141 Mich. 412 (1905),
341.
Woas v. St. Louis Transit Co.,
198 Mo. 664 (1906), 941, 944.
Wolf v. Express Co., 43 Mo. 421
(1869), 916.
Wolf v. Western Union Tele-
graph Co., 62 Pa. St. 83
(1869), 1025, 1026.
Wolf Brothers v. Allegheny Val-
ley R. R. Co., 7 I. C. C. Rep.
40 (1897), 1237.
Wood v. City of Auburn, 87 Me.
287 (1895), 451, 458, 460.
Wood v. Chicago, M. & St. P. Ry.
Co., 68 Iowa, 491 (1886),
833, 922.
Wood v. Crocker, 18 Wis. 345
(1864), 1037.
Woods v. Devlin, 13 Ill. 746
(1852), 724, 875, 971.
Wood v. Louisville & N. Ry. Co.,
101 Ky. 703 (1897), 848, 849.
Wood v. Maine Central Ry. Co.,
98 Me. 98 (1903), 875.
Wood v. Milwaukee & St. P. Ry.
Co., 27 Wis. 541 (1871), 1033.
Wood v. Southern Ry. Co., 118
N. C. 1056 (1896), 1026.
Woodruff v. Havemeyer, 106 N.
Y. 129 (1887), 232.
Woodruff S. & P. C. Co. v. Diehl,
84 Ind. 474 (1882), 153, 975.
Woodward v. Birch, 4 Bush, 510
(1869), 979.
Woodworth v. Morse, 18 La. Ann.
156 (1866), 965.
Woolsey v. Chicago, B. & Q. R.
R. Co., 39 Neb. 798 (1894),
745, 761.
Wright v. Caldwell, 3 Mich. 51
(1853), 409, 733.
Wright v. California Central Ry.
Co., 78 Cal. 360 (1889),
862.
Wright v. Chicago, B. & Q. R. R.
Co., 4 Colo. App. 102 (1893),
944.
Wright v. Glen Telephone Co.,
112 App. Div. 745 (1906),
826.
Wright & C. Co. v. Warren, 177
Mass. 283 (1901), 1045.
Wright v. Northampton & H. R.
R. Co., 122 N. C. 852 (1898),
783.
Wright v. Platte Valley Irr. Co.,
27 Colo. 322 (1900), 384.
Wright v. United States, 167 U.
S. 512 (1897), 681.
Wyckoff v. Queen's County Ferry
Co., 52 N. Y. 32 (1873), 182,
241, 771.
Wyld v. Pickford, 8 M. & W. 443
(1841), 431.
Wyman v. Chicago & A. R. R.
Co., 14 Mo. App. 35 (1877),
181.
Wyman v. Northern Pacific R. R.
Co., 34 Minn. 210 (1885),
1044.
Wynn v. City & Suburban Ry.
Co. of Savannah, 91 Ga. 344
(1893), 738.
Wynn v. Georgia Ry. & El. Co.,
6 Ga. App. 77 (1909), 439,
877.
X
Xenia Real Estate Co. v. Macy,
147 Ind. 568 (1896), 458.
[ ccxvi ]
TABLE OF CASES CITED
Y
[References are to sections]
Yancey v. Batesville Telephone
Co., 81 Ark. 487 (1907),
435.
Yazoo & M. V. R. R. Co. v. Blum
Co., 88 Miss. 180 (1906), 662,
664, 801, 803, 914.
Yazoo & M. V. R. R. Co. v. Mc-
Kay, 91 Miss. 138 (1907),
799.
Yazoo & M. V. R. R. Co. v.
Searles, 85 Miss. 520 (1904),
130, 448, 1050.
Yazoo & M. V. R. R. Co. v.
White, 82 Miss. 120 (1903),
410.
Yellow River Improvement Co. v.
Wood County, 81 Wis. 554
(1892), 72.
Yeomans v. Contra C. S. Nav.
Co., 44 Cal. 71 (1872), 778.
Yerkes v. Sabin, 97 Ind. 141
(1884), 771.
Yoakum v. Dryden (Tex. Civ.
App.), 26 S. W. 312 (1894),
399, 409, 721, 729, 730.
York Co. v. Central R. R. Co., 3
Wall. 107 (1865), 1007.
York & N. M. Ry. Co. v. Reg., 1
El. & Bl. 858 (1853), 304.
Yorton v. Milwaukee, L. S. & W.
Ry. Co., 54 Wis. 234 (1882),
890.
Youghiogheny & Ohio Coal Co. v.
Erie Ry. Co. et al., 24 Ohio
Civ. Ct. 289 (1902), 98, 689.
Youmans v. Wabash Ry. Co.
(Mo. App.), 127 S. W. 959
(1910), 745.
Young v. Boston, 104 Mass. 95
(1870), 380.
Young v. Buckingham, 5 Ohio,
485 (1832), 53, 241.
Young v. Central of Ga. Ry. Co.,
120 Ga. 25 (1904), 441, 885.
Young, Ex parte, 209 U. S. 123
(1908), 1406.
Young v. Western Union Tele-
graph Co., 34 N. Y. Super.
Ct. 390 (1872), 1025.
Younger v. Judah, 111 Mo. 303
(1892), 565.
Z
Zackery v. Mobile & Ohio R. R.
Co., 75 Miss. 751 (1898),
572, 635, 637, 746.
Zagelmeyer v. Cincinnati, S. & M.
R. R. Co., 102 Mich. 214,
887.
Zanesville v. Gas Light Co., 47
Ohio St. 1 (1889), 31, 111.
Zehren v. Milwaukee Electric Ry.
Co., 99 Wis. 83 (1898), 192.
Zenobia, The, 1 Abb. Adm. 48
(1847), 183.
Zimmer v. New York Central &
H. R. R. R. Co., 137 N. Y.
460 (1893), 1019.
Zinn v. New Jersey Stb. Co., 49
N. Y. 442 (1872), 1038.
Zircle v. Southern Ry. Co., 102
Va. 17 (1903), 225.
Zollinger v. The Emma, Fed. Cas.
No. 18,218 (1876), 971.
Zouch v. Chesapeake & O. Ry.
Co., 36 W. Va. 524 (1892),
1002, 1019, 1021.
[ ccxvii]
PUBLIC SERVICE
CORPORATIONS
CHAPTER I
HISTORICAL INTRODUCTION
§ 1. Public callings and private business.
Topic A. The Mediaval Policy of Regulation
§ 2. The medieval theory of State control.
3. The regulation of business in the middle ages.
4. Early differentiation of the public service law.
5. Examination of the early public employments.
6. The surgeon.
7. The tailor.
8. The smith.
9. The victualer.
10. The baker.
11. The miller.
12. The innkeeper.
13. The carrier.
14. The ferryman.
15. The wharfinger.
Topic B. Persistence of this Police Power
§ 16. Continuance of state regulation.
17. Parliamentary regulation of rates.
18. Restriction of prices in the colonies.
19. Persistence of the legislative power.
20. Survival of the common law.
21. Callings connected with transportation.
22. Introduction of improved highways.
23. Toll bridges.
24. Turnpikes.
25. Canals.
26. Railways.
1
[ 1 ]
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PUBLIC SERVICE CORPORATIONS
]
Topic C. The Period of Laissez Faire
§ 27. Alteration in economic conditions.
28. Development in the common law.
29. Freedom of business from State control.
30. Special restrictions in early charters.
31. Gas supply.
32. Water supply.
33. The struggle against encroaching monopoly.
34. Conservative and radical views of regulation.
Topic D. Present Control of Public Employment
§ 35. Economic conditions at the present time.
36. Control of the public services necessary.
37. Variety of the public services.
38. Differentiation of the public service law.
39. Unity of the public service law.
40. Present development of the public service law.
41. Imperative need of effective regulation.
42. Ultimate limitations upon public employment.
§ 1. Public callings and private business.
The difference between public callings and private
business is a distinction in the law governing business re-
lations which has always had and will always have most
important consequences. Those in a public calling have
always been under the extraordinary duty to serve all
comers, while those in a private business may always
refuse to sell if they please. So great a distinction as this
constitutes a difference in kind of legal control rather
than merely one of degree. The causes of this division
are, of course, rather economic than strictly legal; and
the relative importance of these two classes at any given
time, therefore, depends ultimately upon the industrial
conditions which prevail at that period. Thus in the
England which we see through the medium of our earliest
law reports the medieval system of established monopo-
lies called for the legal requirement of indiscriminate serv-
ice from those engaged in almost all employments. There
followed in succeeding centuries an expansion of trade
[2]
HISTORICAL INTRODUCTION
сод
which gradually did away with the necessity for coercive
law. Indeed in the early part of the nineteenth century,
free competition became the very basis of the social or-
ganization, with the consequence that the recognition
of the public callings as a class almost ceased. It is only
in very recent years that it has again come to be recog-
nized that the process of free competition fails in some
cases to secure the public good; and it has been reluc-
tantly admitted that State control is again necessary over
such lines of industry as are affected with a public in-
terest. Thus with varying importance the distinction
between the public callings and the private callings has
been present in our law from the earliest times to the
present day. The common law requiring public service
from those who profess a public calling has been ready to
deal with every public employment at the instant of its
recognition as such, for the protection of the whole
people so far as it was generally felt that such protection
was necessary.
Topic A. The Mediaval Policy of Regulation
§ 2. The medieval theory of State control.
The medieval system involved almost universal reg-
ulation of all the doings of men, and therefore its com-
mercial policy was almost completely restrictive. The
ideal held was a society in which all things were ordered,
the full conception being that every man had a right to
his place in this established order. This state of affairs
was by most men greatly desired. Indeed, a regulated
monopoly with the corresponding obligation of public
service seemed in that age to the great majority of people
far better than an unregulated competition without pub-
lic obligation. It was thought that things were put in a
true balance by requiring each person to perform his part
and allowing no person to interfere with the employment
[3]
83]
PUBLIC SERVICE CORPORATIONS
of another. And all of this control of industrial affairs
was felt to be ultimately for the benefit of the whole pub-
lic who could obtain thereby without favor at reasonable
prices proper service in accordance with their require-
ments. In this industrial regulation it has been well said
that the medieval system was a consumer's policy far
more than it was a producer's policy.
§ 3. The regulation of business in the middle ages.
In medieval England this thorough system of State
control reached a high state of development. Most of
the trades in the towns were parceled out to the gilds.
Under this system the services to be rendered to the
public in the trades were governed by gild codes. These
by-laws were continually declared void by the local
courts if they were really inconsistent with public serv-
ice. In the country at the same time there were to be
met similar privileges in carrying on business in connec-
tion with the manorial system. Some business required
the investment of more or less capital in constructing a
plant, as the bakehouse and the mill. It may have been
necessary at the outset that these should be provided by
the lord of the manor; at all events in later times the
seignorial ban covered these, the lord granting franchises
to certain persons. Here again those who conducted
these businesses were bound to serve all fairly or answer
for it to the courts of the manor. But, upon the whole,
the ordinary trades and crafts were more freely open to
anyone in the country than in the towns, with their
craft gilds and merchant gilds. This may explain why
the cases requiring public service of carriers and inn-
keepers, ferrymen and farriers, appear so early in the
royal courts; for there were no local courts with
clear jurisdiction over the lines of travel across the
country.
[ 4 ]
HISTORICAL INTRODUCTION
[§§ 4, 5
§ 4. Early differentiation of the public service law.
Thus there is to be found from the earliest times a pe-
culiar law governing the conduct of those engaged in a
public employment. The characteristic thing then as
now was the legal imposition of an affirmative duty of
proper actions upon those who openly professed a public
employment, while those who carried on private business
were under practically no duties which were not purely
negative in character. This general distinction between
the legal obligations of those in public calling and in
private business was often of the utmost importance in
our early common law. Indeed, whether the defendant ·
was in common employment or not, made more dif-
ference in the success of a plaintiff's action or its failure
than it does to-day. In those days contract law was so
undeveloped that in an ordinary business one could not
be held to his bargains, yet at that time in a public calling
one was held to the public undertaking he made to serve
all that might apply. So, too, while the law of tort as
yet gave no remedy against one for negligent injury to
property voluntarily intrusted to him in the course of
ordinary business, in public employment one was answer-
able for failing to use proper skill in the calling he had
assumed. However obsolete this substantive law may
be as to private business, the subsequent developments
in the law in no manner affect the force of these decisions
in establishing the fundamental difference in legal sit-
uation between those engaged in public employment and
those in private business.
5. Examination of the early public employments.
The modern law governing public employments may
therefore be said to be a survival of a more generally
applicable principle of the medieval law. It will be in-
structive with this in view to examine some of the early
[ 5 ]
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PUBLIC SERVICE CORPORATIONS
applications of the medieval law which depend upon
the recognition of the common calling as presenting dif-
ferent conditions, and make plain, therefore, the neces-
sity for this further law. It will be seen then that the
law which suffices for ordinary business is never enough
for these extraordinary callings. Moreover, in these
earliest examples there are certain elements in the situa-
tion which are so characteristic that the realization of
them should lead to some conception of the inherent
character of the public employment and the special law
necessary for its regulation. These principles of our
common law are for all time. It would be too much to
expect to see the law finally settled in those times, to
find modern aspects of the problem altogether antici-
pated. But one may discover in these early cases the
essential factors in the establishment of public calling,
and the first principles involved in the law governing
public employment.
§ 6. The surgeon.
1
The case dealing with the common surgeon most often
cited is an anonymous suit in 1441. This was a writ of
trespass on the case against one R., a veterinary surgeon,
to the effect that the defendant had undertaken to cure
the plaintiff's horse with skill and care of a certain trouble,
and that he then so negligently and carelessly gave his
medicines that the horse died. But Judge Paston said:
"You have not shown that he is a common surgeon to
cure such horses, and therefore although he has killed
your horse by his medicines, you shall have no action
against him without an assumpsit." The court accord-
ingly decided that a traverse of the assumpsit made a
1 Y. B. 19 Hen. VI, 49, pl. 5.
See also Y. B. 43 Ed. III, 6, pl.
11; Y. B. 3 Hen. VI, 36, pl. 33; Y. B.
11 Ed. IV, 6, pl. 10; 1 Roll. Abr. 10,
pl. 5.
[6]
HISTORICAL INTRODUCTION
[§ 7
good issue. The significance of an actual assumpsit in
those days, as has just been pointed out, was that when
one man had authorized another to deal with personal
property in the course of private business, the latter was
under no legal liability to use care, unless he had made
an express undertaking to that effect and entered upon
the performance of it. 'In public business, on the other
hand, the legal obligation to perform the act with proper
skill in accordance with the public profession was well
established. From other cases it is plain that the curing
of man or beast was considered a public calling. In the
rude England of these unlettered times such professional
men were comparatively few. Frequently only one sur-
geon would be at hand in any one district, so that if he
should refuse his services, all might be lost. Such being
the situation it is easy to understand why the law was
so stern in the case of the common doctor, requiring
him to cure all who came by reason of his general pro-
fession and giving the patient an action, although he had
submitted himself to the operation, if the doctor was neg-
ligent, although no care had been promised in the par-
ticular case. It was the unusual situation which pro-
duced this extraordinary law. To-day, however, there
are so many physicians in most communities that the
law apparently no longer deems it necessary to compel
them to accept any patient who may call upon them.¹
§ 7. The tailor.
Some light upon the position of the medieval tailor be-
fore the law we obtain from an opinion of the great Brian:
"I know well, if I put a robe with a tailor to be made,
(or if I come to a common inn or a common smith with my
horse) in all cases of the sort I may have my robe lying in
1 Hurley v. Eddingfield, 156 Ind.
416, 59 N. E. 1058, 53 L. R. A. 135,
83 Am. St. Rep. 198 (1901).
[7]
сод
PUBLIC SERVICE CORPORATIONS
the tailor's shop as long as I please (without its being sub-
ject to distraint); for he is compelled by the law to do it,
and he may by the law detain until he be satisfied for the
making.” 1
It is rather difficult at present to imagine a
state of society where there was not competition enough
among tailors. Still, the time was when this most neces-
sary calling was followed by so few comparatively, that
for the protection of the public coercive law was deemed
necessary. But in this calling there has been lively com-
petition for so long that the tailor at a very early time
dropped from the list of public callings, and is mentioned
in the books no more as a member of this exceptional
class of public servants.
8. The smith.
Another instance is shown in an anonymous memoran-
dum of 1450.2 "Note that it was agreed by all the court
that where a smith declines to shoe my horse, or an inn-
keeper refuses to give me entertainment at his inn, I shall
have an action on the case, notwithstanding no act is done;
for it does not depend upon agreement. But where a
builder makes a bargain to build me a house and does
nothing, no action on the case, because that does sound in
agreement." The meaning of this is that in those days
no action lay upon a mere bargain and even the promisor
in a contract need not perform; but one who undertook a
public employment must perform, whether he agreed or
not. Here again the obligation resting upon those in com-
mon callings to serve all that apply is the basis of the case.
Why is this entire distinction made between the wayside
smith and the journeyman carpenter? Because again the
economic conditions of these trades were so different.
1 Y. B. 22 Ed. IV, 49, pl. 15.
2 Anon, Keilway, 50, pl. 4.
19; Y. B. 2 Ed. IV, 13, pl. 9; Y. B.
22 Ed. IV, 9, pl. 15; Y. B. 21 Hen.
See also Y. B. 46 Ed. III, 19, pl. VI, 55, pl. 12.
[8]
HISTORICAL INTRODUCTION
[ § 9
So far apart were they in the eyes of the courts, that the
ordinary law was protection enough for those that dealt
with the carpenter, while an extraordinary law was needed
in behalf of those that came to the smith. There is time
enough in getting at builders to make the situtation in
that business one of virtual competition, so that there
would be no hardship in leaving builders free to bargain;
but the farriers were so scattered that those who required
their service immediately, were at the mercy of the par-
ticular one at hand. A special code, therefore, was neces-
sary else a good horse might be ruined for want of a shoe,
if the wayside smith should take it into his head to refuse
service. Under modern conditions of trade, however, the
public need is not so imperative as to keep the blacksmith
in the class of public servants.¹
§ 9. The victualer.
There was a time also when common victualers were
strictly regulated by common law. The regular purveying
of food and drink to the local public was felt to be of as
much importance as the proper entertainment of the
traveling public at the established inns. In a leading
case in 14602 Judge Moill treated these two callings as
analogous. "If I come to an innkeeper to lodge with him,
and he will not lodge me, I shall have on my case an action
of trespass against him; and in the same way if I come to
a victualer to buy victual and he will not sell, I shall have
an action of trespass on my case against him." Without
such regulation it was felt that there might be oppressive
treatment as the need of the purchaser was usually imme-
diate and his market limited in many ways by the eco-
nomic conditions of early trade. And to the strictness
¹ Bessette v. People, 193 Ill. 334,
62 N. E. 215, 56 L. R. A. 558
(1905).
2 Y. B. 39 Hen. VI, 18, pl. 24.
See also Y. B. 10 Hen. VII, 8,
pl. 14.
[9]
§§ 10, 11] PUBLIC SERVICE CORPORATIONS
with which the sale of such necessities of life as bread and
beer were regulated innumerable assizes bear witness. A
certain police power is still exercised to-day over these
matters, but beyond this even those selling the most
necessary food may refuse to sell to any person; a baker
may refuse to sell bread to a starving man who tenders
payment, so far as the modern law goes. This is only to
be explained on the ground that there is now usually
sufficient competition among dealers, so that a case of
the refusal of a cash buyer can hardly be imagined. Even
so a man turned away can usually find another shop
near by.
§ 10. The baker.
1
In the manorial economy the baker had his established
place and was obliged therefore to supply his patrons upon
reasonable terms, his rights being recognized and his
obligations being enforced in the seignioral courts. Even
after the business of baking became enfranchised by the
breaking up of the medieval system, the bakers at hand
in any community had still such control of their local
patronage as to make their continued regulation seem
still necessary. Thus we have the assize of bread a regu-
lar part of the royal eyres 2 indeed the assize of bread was
defended as late as the nineteenth century in an Alabama
case. 3
§ 11. The miller.
The early history of the gristmill is of the same tenor.
Milling was originally a franchise in the manor and sub-
1 See Brewster v. Miller, 101 Ky.
368, 41 S. W. 301, 38 L. R. A. 505
(1897).
2 See for a typical instance, Lib.
Assis. 138, pl. 44.
3 Mayor v. Yuille, 3 Ala. 137
(1841), in which it is said: "Upon
the same principle is founded the
control which the legislature has
always exercised in the establish-
ment and regulation of mills, fer-
ries, bridges, turnpike roads, and
other kindred subjects."
[ 10 ]
HISTORICAL INTRODUCTION
[ § 12
ject therefore to seignioral regulation.¹ As the miller had
the exclusive franchise, he was considered bound to be
ready to grind corn for all comers at reasonable rates and
without discrimination. After these conditions changed
the established mill still retained its virtual monopoly
over its local district and the miller was bound now by the
common law to grind for all in rotation. Indeed it remains
law to this day, that the public miller is in common calling
bound to serve all without discrimination.2
§ 12. The innkeeper.
Innkeeping has been regarded as a public employment
from time immemorial. In all the cases from the time of
our earliest reports the right of the traveler to entertain-
ment at the common inn is affirmed. Hingham has many
cases to support him when he says arguing in an early
case, "If I come to an innkeeper and pray to be lodged
with him, and he says that at that time he will not, but
if I come at another time he will with pleasure, I shall
have an action on my case because it was his duty to lodge
me, and by law he was bound to do it." The surrounding
circumstances must again explain the origin of this un-
usual law. The whole system of travel and communica-
tion in rural England at the time the law of inns was in the
making required that the weary traveler should find at
convenient places beside the highway houses of entertain-
ment and shelter to which he might resort during his
journey for food, rest and protection. The ordinary laws
of supply and demand might indeed lead to the establish-
ment of such houses by the roadside at places which
would sufficiently serve the public convenience; but those
¹ See Hix v. Gardner, 2 Bulstrode
(Eng.), 195.
2 See cases cited § 71, infra.
³ Y. B. 14 Hen. VII, 22, pl. 4.
See also Y. B. 11 Hen. IV, 45,
p. 8; Y. B. 22 Hen. VI, 21, pl. 38;
Y. B. 22 Ed. IV, 49, pl. 15; Y. B.
10 Hen. VII, 8, pl. 14; Keilway, 50,
pl. 4; Rex v. Collins, Palmer, 373;
Anonymous, Godbolt, 345.
[ 11 ]
§ 13]
PUBLIC SERVICE CORPORATIONS
laws could not be trusted to secure to each individual the
benefit of the food and shelter therein provided. In a
matter of such importance the public had an interest and
the law must see that, so far as was consistent with
justice to the innkeeper, his inn was carried on for the
benefit of the whole public. The inn has always been in
a true sense a public house.¹
§ 13. The carrier.
From the earliest times also, it has been agreed that
the common carrier of goods is in a public employment.
A statement of the early law is to be found in one of the
leading cases on carriers, Jackson v. Rogers,2 "This was
an action on the case for that whereas defendant is a
common carrier from London to Lymmington et abinde
retrorsum, setting forth as the custom of England, that he
is bound to carry goods, and that the plaintiff brought
him such a pack, he refused to carry them, though offered
his hire. And held by JEFFRIES, C. J., that the action is
maintainable, as well as it is against an innkeeper for
refusing a guest, or a smith on the road who refuses to
shoe my horse, being tendered satisfaction for the same.
Note, that it was alleged and proved that he had conven-
ience to carry the same; and the plaintiff had a verdict.'
Again the explanation must be sought in the history of
the times. In Plantagenet England the population lived
apart in separate communities. Small attention was paid
to the roads connecting them which were no more than
trails winding through the wilderness. No cart could
pass over them, only pack animals with the goods in their
panniers. So many were the bands of outlaws in the
1 See the modern cases in § 121,
infra.
22 Show. 327 (1683). The whole
report of this case is included in the
quotation which follows.
""
See also Rich v. Kneeland, Hob.
17; Kenrig v. Eggleston, Al. 93;
Nicholls v. More, 1 Sid. 36; Morse
v. Slue, 1 Vent. 190.
[ 12 ]
HISTORICAL INTRODUCTION
[ 88 14, 15
greenwood that no man might with safety traverse these
paths alone. The transportation of goods was, therefore,
given over to the carrier, who traveled oftentimes with
trains of pack animals, and a considerable company.
Few would pass over the same roads between the same
towns, because the traffic was still comparatively small,
as England had as yet but little beyond a local economy
where each community was sufficient to itself, into a
national economy which involved interchanges of goods
between distant markets. The conditions surrounding
transportation, therefore, were those of virtual monopoly.
The merchant must appeal to the protection of the law,
a protection without which he was at the mercy of the
carrier with whom circumstances forced him to deal with-
out a chance for choice.¹
§ 14. The ferryman.
Ferrymen are found in public employment in our early
reports. Their necessity in maintaining through routes
of travel was most obvious in England with its coast so
indented with estuaries and its many rivers sufficiently
large to make bridging in those times a financial, if not
an engineering impossibility. Apparently the most of the
early cases in regard to them had to do with the exclusive
franchise which they almost invariably possessed, although
there are a few in relation to their duties. In one of these 2
it was said that a ferryman who invited business was liable
in tort if he overloaded his boat whereby a passenger's
horse was drowned.3
§ 15. The wharfinger.
In a commercial port those who own the convenient
sites for wharfage upon deep water possess a peculiar
1 See the modern cases, §§ 189, 2 Y. B. 22, Lib. Ass. 94, pl. 41.
234, passim.
•
[ 13 ]
§ 16]
PUBLIC SERVICE CORPORATIONS
1
advantage. It was of such wharfinger that Lord Hale in
his De Portibus Maris ¹ wrote the most famous paragraph
in the whole law relating to public service. It is there
that he says that whenever the king or a subject have a
public wharf to which all persons must come who come to
that port to unload their goods-"in that case there
cannot be taken arbitrary and excessive duties for cranage,
wharfage, etc., but the duties must be reasonable and
moderate, for now the wharf and crane and other con-
veniences are affected with a public interest and they
cease to be juris private only." 2 No more significant
phrases were ever penned.
Topic B. Persistence of this Police Power
§ 16. Continuance of State regulation.
The irresistible advances of the modern competitive
system gradually worked the destruction of the mediaval
organization of industry. Great, however, as was this
change from the old economic theory to the new, it was
gradual, and it was never complete. There was a swing
of the pendulum. General but not absolute restriction
of freedom of trade was the policy of the middle ages;
general freedom of trade, with the restriction of certain
exceptional occupations, has become the policy of mod-
ern times. A state of free competition has been for sev-
eral centuries now considered to be for the best interests
of society; and, therefore, in modern times almost every
business has been opened to almost every man. And
yet at all times in economic history, both restriction
and freedom are to be found in the law.
The propor-
tion, however, changes greatly. In one epoch there is
much legal limitation, with little freedom left; in an-
other age there is almost universal competition, with
¹ Hargrave Law Tracts, 78.
2 See § 116, infra.
[14] :
HISTORICAL INTRODUCTION
[ §§ 17, 18
some little franchise to be found. And the rule will gen-
erally hold true that the more the natural laws of com-
petition regulate service and price, the less the State
need interfere in these respects; but conversely when
competition ceases to act efficiently State control becomes
necessary.
§ 17. Parliamentary regulation of rates.
During this transitional period when the mediaval
system of customary laws ceased to operate effectively
Parliament itself frequently regulated the prices of nec-
essaries of life by direct legislation. The great staples,
like wool and food, were habitually regulated in this way,
and the employment and the price of labor was a subject
of statutory provision. Thus, in 1266, Henry III, after
reciting former statutes to the same effect, regulated the
price of bread and ale according to the price of wheat and
barley, and forbade forestalling; that is, cornering the
market.¹ In 1337 it was made felony to export wool,
and the importation of cloth was forbidden.2 In 1349
all laborers were obliged to serve for the customary wages,
and “butchers, fishmongers, regrators, hostelors (i. e.,
innkeepers), brewers, bakers, poulterers, and all other
sellers of all manner of victuals," were bound to sell for
a reasonable price. These statutes continued in force
throughout the middle ages, and until after the settle-
ment of America.
§ 18. Restriction of prices in the colonies.
This legislative power the colonists brought to America
with them. In a new colony life is a serious thing, the
necessaries of life are scarce, and the needs of the public
are pressing. The conditions are ideal for a distressing
151 Hen. 3 Stat. 1.
2 11 Ed. 3, cap. 1.
3 23 Ed. 3, cap. 1.
[ 15 ]
§ 19 ]
PUBLIC SERVICE CORPORATIONS
cornering of the market by merchants. Accordingly,
though most of the statutory regulations of trades and
prices had either been repealed or had become obsolete
in the mother country, the colonies at an early time
passed statutes regulating the prices of staple commod-
ities. Thus in Massachusetts in 1635 shopkeepers and
merchants were forbidden to charge excessive prices.¹
In Plymouth colony the price of boards was fixed in 1668.2
Corn and tobacco, beer and bread, beef and boards, all
that was most important for the colonists to have was
regulated as a matter of course by the assemblies of the
time.
$ 19. Persistence of the legislative power.
This extreme form of the police power over public
employment remained in the legislative branch not-
withstanding the general guaranties of individual liberty
contained in the American constitutions. To compel the
proprietors of those businesses which had been regarded
as peculiarly affected with a public interest to serve all
that applied at reasonable rates was immemorial practice
and therefore was indisputably due process of law. This
historical argument was given chief place by the Supreme
Court of the United States in the leading case 3 on this
branch of the police power. "Under these powers," said
the court, "the government regulates the conduct of its
citizens one towards another, and the manner in which
each shall use his own property, when such regulation
becomes necessary for the public good. In their exercise
it has been customary in England from time immemorial,
and in this country from its first colonization, to regu-
late ferries, common carriers, hackmen, bakers, millers,
1 Mass. Colon. Laws, 1672, p.
120.
2 Plymouth Colon. Laws, p. 46.
³ Munn v. Illinois, 94 U. S. 113,
24 L. ed. 77 (1876).
[ 16 ]
HISTORICAL INTRODUCTION
[ § 20
wharfingers, innkeepers, etc., and in so doing to fix a
maximum of charge to be made for services rendered,
accommodations furnished, and articles sold. To this
day, statutes are to be found in many of the States upon
some or all these subjects; and we think it has never yet
been successfully contended that such legislation came
within any of the constitutional prohibitions against
interference with private property."
§ 20. Survival of the common law.
From one point of view the constitutional validity of
legislative control is conclusive evidence of the persist-
ence of the common-law principles regulating public em-
ployments. The common law persists from age to age,
and though the instance of its rules may be seen to change
as old conditions pass away and new conditions arise,
its fundamental principles remain. The early cases
which were just under discussion are illustrations of this
course of events. Barber, surgeon, smith and tailor are
no longer in common calling because the situation in the
modern times does not require it; but innkeeper, carrier,
ferryman and wharfinger are still in that classification,
since even in modern business the conditions require
them to be so treated. With changed economic condi-
tions in modern times new callings have come into being
with such potentialities that this special law has been
utilized as never before in regulating them. Indeed, from
the point of view of one who believes in our common law
the class of public callings is capable of indefinite exten-
sion whenever new conditions bring new employments
within its scope.¹ And in all times our law has held to
the principle that this peculiar regulation was necessary
1 The historical argument is ef-
fectively used in many cases, but in
no one is it more elaborately put
15
than in People v. Budd, 117 N. Y.
1, 22 N. E. 670, 5 L. R. A. 549,
Am. St. Rep. 460 (1889).
2
[ 17 ]
§ 21]
PUBLIC SERVICE CORPORATIONS
in certain kinds of business. It depends largely upon
the opinion current at the time how far this law shall be
extended. But however much public opinion may change
this possibility of the enforcement of the obligation to
the public owed by those who conduct a business public
in character remains.
§ 21. Callings connected with transportation.
Certainly as to those callings intimately connected
with common carriage this regulation by the common
law has always been felt necessary. The traveler who is
far from home must depend upon strangers; and the
shipper who must send his goods through strange lands
takes unknown risks. As has been seen the situation is
such that the carrier of passengers or goods by land or
sea has always been obliged by law to serve all, and is
by the common law under extraordinary liabilities. And
also the situation continuing the same as before, the
innkeeper remained under obligation to serve all and un-
der other extraordinary liabilities. The ferryman too
remained in public employment as a sort of carrier.
And the wharfinger receiving goods in transit was held
to be not unlike the innkeeper receiving travelers. All
the other mediæval public employments had disappeared
and these alone survived. In the first part of the nine-
teenth century, therefore, the generalization was being
made (and not without a certain justification from the
facts) that all of the public employments were connected
in one way or another with transportation. Indeed this
generalization became so accepted that when later in the
century new conditions pressed for further application
of the law requiring the service to the public, the attempt
was made in the first common-law decisions dealing with
these businesses to include other services quite different
in character within this generalization. Thus telegraph
[ 18 ]
HISTORICAL INTRODUCTION
[ § 22
4
3
2
companies ¹ and even telephone companies were said
to be common carriers, and sleeping cars and steam-
boats were by some thought to be inns. But those
judges who looked at these new callings in this light saw
through a glass darkly. It was given to others to see
the vision of a great class of public callings of which
those connected with transportation constituted but one
branch, although the principal one.
§ 22. Introduction of improved highways.
What was destined to give the greatest scope to the
public service law was the improved facilities for trans-
portation. It was late in the eighteenth century that
the need for transportation of persons and goods more
quickly and more cheaply between distant communi-
ties began to outgrow the facilities for commerce then at
the disposal of the public. The solution of this question
thenceforth became one of the most pressing economic
problems of the time, engaging the attention of states-
men, as every great commercial problem must. The
scheme gradually worked out was a system of improved
turnpikes all over the country supplemented by toll
bridges, and between the most important markets the
construction of canals and the development of existing
water ways. The theory of the statesmen of the early
nineteenth century who dealt with the conditions un-
der which these works of internal improvement should
be constructed was that private enterprises were better
than State ownership. However, they were willing to
meet the need of the time for immediate construction
1 See this phrase in Western
Union Telegraph Co. v. Hamilton,
36 Tex. Civ. App. 300 (1904).
2 See for one example McDaniel
v. Faubush Telephone Co., 32 Ky.
L. Rep. 572, 106 S. W. 825 (1908).
3 See especially Pullman P. C. Co.
v. Lowe, 28 Neb. 239, 44 N. W.
226, 6 L. R. A. 809 (1889).
4 See, however, Clark v. Burns,
118 Mass. 275 (1875), 19 Am. Rep.
456.
[ 19 ]
§§ 23, 24] PUBLIC SERVICE CORPORATIONS
of these expensive works by grants from the State treasury
or by guaranty of the bonds of the private companies.
These improved highways were considered like other high-
ways, public in character and open to all, though main-
tained by private companies which were given the franchise
to charge tolls without which none could be demanded.
§ 23. Toll bridges.
On important lines of travel even over considerable
spans, bridges began to replace the ferries. As the fer-
ries had been maintained by private parties with an ex-
clusive franchise, charging ferriage, the bridges were
built by private companies with an exclusive franchise ¹
such as the ferryman had, charging tolls as the ferryman
did. For the charging of tolls it is to be remarked a
rough classification was made, and on that point there is
some public service law from this period. One interest-
ing scheme was the chartering of bridge companies with
the provision that when the cost of the bridge, together
with a certain per cent of profit should have been repaid
to the proprietors, the bridge should become free.2
§ 24. Turnpikes.
Throughout the country, turnpikes were constructed
of various kinds, gravel roads and plank roads, for ex-
ample. These were built by private companies with a
protecting franchise, charging tolls roughly classified.
Some little public service law dates from this period; for
such improved highways were regarded as public in
character by whomsoever owned. As one court put this
¹ See the Binghamton Bridge, 3
Wall. 51, 18 L. ed. 137 (1865).
And see generally § 53, infra.
2 See Commonwealth v. Hancock
Free Bridge Corporation, 2 Gray,
58 (1854).
3 See citations in Covington & L.
3
4
Turnpike Road v. Sandford, 164
U. S. 578, 41 L. ed. 560, 17 Sup. Ct.
198 (1896). And see generally § 84,
infra.
4 The quotation is from Olcott
v. Supervisors, 16 Wall. 678, 21 L.
ed. 382 (1872).
[ 20 ]
HISTORICAL INTRODUCTION
[ §§ 25, 26
principle in those earlier days: "Though the ownership is
private, the use is public. So turnpikes, bridges, ferries
and canals, although made by individuals under public
grants, or by companies, are regarded as publici juris.”
§ 25. Canals.
In England the canal period was of considerable dura-
tion. Construction was begun soon after the middle of
the eighteenth century and did not noticeably cease until
about the middle of the nineteenth century. From the
first the canals carried a very large traffic upon which
they imposed regular tolls upon a classified basis. In
the United States also many canals were constructed,
largely aided by the State governments. At one time it
seemed to the most enthusiastic believers in the canal
system that it was the ultimate solution of the transpor-
tation problem. It was recognized in all cases that all
boatmen had the right to pass through these canals upon
paying to their proprietors the established tolls.¹ Much
public service law dates from this time. The cases upon
the proper priorities to be observed in the management
of a public business are particularly interesting.2
§ 26. Railways.
3
The early railways as is generally known were first in-
troduced as improved turnpikes, draft animals being
used to haul the wagons upon the rails. The invention
of the steam locomotive with its great cost and high
speed soon put an end to that system. But for a short
period it was still supposed that both animals and loco-
motives might be used upon the same rails; the railroad
might both carry goods and maintain a tramway for its
patrons. However, it was soon seen that the whole
¹ See § 142, infra.
2 See, for example, Farnsworth v.
Groot, 6 Cow. (N. Y.) 698 (1827).
³ See Raleigh & Gaston R. R. v.
Davis, 2 D. & B. 451 (1837).
[ 21 ]
§§ 27, 28] PUBLIC SERVICE CORPORATIONS
operation must be by the railway company; and the
railroad entirely ceased to be a turnpike and became a
carrier altogether.¹
Topic C. The Period of Laissez Faire
$27. Alteration in economic conditions.
In the early part of the nineteenth century a combina-
tion of economic factors brought about in the business
world as near an approach to a condition of freedom in
competition as can ever happen in a world limited by
time and space. Naturally enough with such individual
freedom of action laissez faire became the accepted pol-
icy for dealing with the business world as the occasions
for the application of the principles of law regulating
public callings become fewer. This condition of affairs
prevailed to a remarkable extent in the United States
during the first half of the nineteenth century. The
English system of excessive legislative regulation by Par-
liament having become distasteful, the constitutions of
the original States and of the United States carefully
limited the power of legislatures to interfere with the
ordinary affairs of business. Regulation of private af-
fairs by the law may be said to have been at a minimum
in the first half of the nineteenth century. And in this
time of small enterprises it was safe to leave the individual
proprietor free to deal with his customers as he pleased.
§ 28. Development in the common law.
It is almost a truism that the spirit of the age molds
its law. Those who frame the laws are members of the
community and share its spirit. The age's ideal of right
is their ideal, the method of thought about justice which
is prevalent at the time is their method of thought, too;
and it therefore follows that in working out legal prob-
1 See § 144, infra.
[ 22 ]
HISTORICAL INTRODUCTION
[ § 29
lems, both bench and bar work along the lines prescribed
by the spirit of the age in which they live. Nowhere is
the influence of the spirit of the time on the common law
more evident and more potent than in this question of
the regulation of common callings. Following the change
in economic thought which has been described, the
judges of the last century began to say as to his business
activities that it lay with the tradesman to conduct his
business as he pleased, at his own prices. This was a
period when all men were much attracted by the theory
of laissez faire-that the most desirable thing was the
least possible interference with business relations by the
State. That the coercive law of public calling survived
this period is proof positive of its absolute necessity to
a greater or lesser extent in every society.
§ 29. Freedom of business from state control.
It will have been noticed, therefore, that the principle
of law which permits the regulation of these callings has
never been abandoned, though the conditions calling
for its application at various times have greatly changed.
Whenever the public is subjected to a monopoly the power
of oppression inherent in a monopoly is restricted by law.
Whenever, on the other hand, competition becomes free,
both in law and in fact, the need of governmental regu-
lation ceases; public opinion ceases to demand such regu-
lation, and the law withdraws it. At the beginning of the
nineteenth century was the extreme swing of the pendu-
lum. In earlier times, when most trades were privileged,
it was felt that there was a correspondingly great need
of regulation. In this fortunate time when in most
businesses the field seemed free to all, the belief was that
the ordinary processes of competition would produce
with sufficient certainty adequate service at fair prices.
But an absolutely free competition is practically an im-
[ 23 ]
§ 30 ]
PUBLIC SERVICE CORPORATIONS
possible economic condition; and to this men later awoke
when with the growth in the power of the proprietors of
the industries the people still demanded protection from
the State in many ways.
§ 30. Special restrictions in early charters.
One method of regulation of enterprises public in char-
acter during this period has not been mentioned as yet.
These were great undertakings which were projected—
bridges and turnpikes, canals and railways. To carry
them out required aggregated capital; to maintain them
required permanent organization. There was a form of
organization as yet confined to purposes in some degree
governmental, which was best designed to bring together
the necessary capital and give the necessary permanence-
the corporation. And although it was not as yet con-
sidered proper to give this franchise of being a corpora-
tion to men engaged in purely private business, it was
thought most appropriate for the State to create a cor-
poration for such purposes. Moreover in granting the
franchises the State could impose upon the grantee such
terms as it might think necessary for the protection of
the public in its dealings with the corporation. And so
the charters of this period are often elaborate in their
provisions, imposing upon the corporation the duty to
serve all that apply properly and without exceeding a
certain fixed profit. Later in the century, however, in-
corporation under general law for the conduct of private
business became possible; and in the case of such corpora-
tions there were no provisions for public service. There
followed a short period about the middle of the century
when it was felt by some that unless in the incorporation
of an enterprise its public character was sufficiently de-
clared by express clauses in its charter, the proprietors
were free to carry on their own business in their own way.
[24]
HISTORICAL INTRODUCTION
[ § 31
§ 31. Gas supply.
When, therefore, the first gas works were constructed
under general charters of incorporation imposing no
specific duties upon them, the courts declined to interfere
with them in their dealings with their public, although
the continuous complaints of the consumers should have
made obvious the necessity for relief from the oppression
of the established monopoly. Thus in Paterson Gas
Light Company v. Brady,¹ where the plaintiff complained
that although his buildings were located upon the lines
of the main pipes of the defendant company, it refused
to furnish him with gas, although he was willing to pay
the fixed price, the upper court held that the action
should have been dismissed, Mr. Justice Elmer saying:
"The language of the charter is throughout permissive,
and not compulsory. The company may organize, may
make and sell gas, or not, at their pleasure; and I see no
more reason to hold that the duty of doing so is meant
to be imperative, than to hold that other companies in-
corporated to carry on manufactures, or to do any other
business, are bound to serve the public any further than
they find it to be their interest to do so. It was earnestly
insisted, on the argument, that the community have a
great interest in the use of gas, and that companies set
up to furnish it ought to be treated like innkeepers and
common carriers, and that, if no precedent can be found
for such a decision, this court ought to make.one. But
that there is no authority for so holding in England or
America, where companies have been so long incorpo-
rated for supplying water and gas to the inhabitants of
numerous towns and cities, affords a strong presumption
that there is no principle of law upon which it can be
supported." 2
13 Dutch. (N. J.) 245, 72 Am.
Dec. 360 (1856',.
2 Other early cases to the same
effect were:
3
[25]
§ 32 1
PUBLIC SERVICE CORPORATIONS
§ 32. Water supply.
The difficulty was, as the reader will recognize, that
these questions arose just at a time when the doctrines
of laissez faire had almost destroyed the class of public
employments, and almost obliterated the general prin-
ciples of the common law relative to public service. But
the new situation called forth the old law and eventually
restored it. In a case¹ regarding the constitutionality
of the grant of eminent domain to a waterworks com-
pany, decided about the middle of the nineteenth cen-
tury by Chief Justice Shaw, he worked out a duty to
supply the public by reason of the enabling clauses in
the charter of the company in a way which would be
plainly unjustifiable unless there were an underlying
public duty. "The supply of a large number of inhabit-
ants with pure water is a public purpose," he said: “But
it is urged, as an objection to the constitutionality of the
act, that there is no express provision therein requiring
the corporation to supply all families and persons who
should apply for water on reasonable terms; that they
may act capriciously and oppressively; and that by fur-
nishing some houses and lots and refusing supply to
Connecticut.-McCune v. Nor-
wich Gas Co., 30 Conn. 521, 79 Am.
Dec. 278 (1862).
Massachusetts.-Com. v. Lowell
Gas Light Co., 12 Allen, 75 (1866).
New York.-New York Central
& H. R. R. Co. v. Metropolitan
Gas Light Co., 63 N. Y. 326 (1875).
Ohio.-See Zanesville V. Gas
Light Co., 47 Oh. St. 1, 23 N. E. 55
(1889).
Pennsylvania.—Com. v. Wilkes-
Barre Gas Co., 2 Kulp, 499 (1883).
England.-Hoddesdon Gas &
Coke Co. v. Haselwood, 6 Com. B.
(N. S.) 239 (1859).
The honor of being the first to
appreciate that the gas business was
public in character belongs to the
court which decided Shepard v.
Milwaukee Gas Light Co., 15
Wis. 318, 82 Am. Dec. 679 (1862).
The modern decisions establishing
that the gas companies are in pub-
lic calling are discussed in § 131,
infra.
¹ Lumbard v. Stearns, 4 Cush. 60
(1849). The modern cases estab-
lishing that the water companies
are in public calling are discussed
in § 102, infra.
[ 26 ]
HISTORICAL INTRODUCTION
[ § 33
others, they may thus give a value to some lots, and
deny it to others. This would be a plain abuse of their
franchise. By accepting the act of incorporation, they
undertake to do all the public duties required by it. When
an individual or a corporation is guilty of a breach of
public duty by misfeasance or non-feasance, and the law
has provided no other specific punishment for its breach,
an indictment will lie. Perhaps, also, in a suitable case,
a process to revoke and annul the franchise might be
maintained.
99 1
§ 33. The struggle against encroaching monopoly.
As the prevalence of competitive conditions in busi-
ness limits the application of the principles of public
service law, so the prevalence of monopolistic conditions
extends their application. Such a change came about in
the latter part of the nineteenth century. About a gen-
eration ago a change in commercial practice showed with
remarkable distinctness the advantage of combination.
Great enterprises took the place of small ones, and great
enterprises required co-operation and combination. As
the people became accustomed to look upon combination
as the price of success, they came more and more to re-
gard it as a blessing rather than an evil; and public opin-
ion has gradually turned away from the individualistic
ideal until to-day it has been fairly discarded by the cur-
rent philosophy. With the principle of combination as
the spring of action has come a corresponding need of
controlling the action of such combinations for the good
of the whole public. As the rights of the individual
trader yield to the rights of the great corporation, so in
the view of the man of the present day, the rights of the
corporation, should in their turn yield to the rights of
the whole people. The same spirit which fosters combi-
¹ See Olmsted v. Morris Aqueduct Co., 47 N. J. L. 311 (1885).
[ 27 ]
§ 34]
PUBLIC SERVICE CORPORATIONS
nation, fosters also control of the combination for the
public benefit. The spirit of the present age, therefore,
has come to be a spirit which demands that great busi-
ness enterprises should be conducted in accordance with
the requirements of society. The programme of organ-
ized society is practically to see to it that those who have
gained a substantial control of their market shall not be
left free to exploit those who look to them to supply their
needs. Men now see clearly that freedom of action in
the industrial world may work injuriously for the pub-
lic, and it must then be restrained in the public interest.
Having seen the results of unrestrained power we no
longer wish those who have control of our destinies to
be left free to do with us as they please. Such liberty
for them would mean enslavement for us.
§ 34. Conservative and radical views of regulation.
·
While it is generally agreed that a change has come over
the spirit of our time, that State regulation is the prevail-
ing. philosophy of the people at the beginning of the
twentieth century; it must be borne in mind that this has
been the result of a gradual progress of thought, and that
this progress has not affected all men or all lawyers
equally. Now, as at all times, there are conservative
lawyers and radical lawyers, the former as far behind the
prevailing spirit of the time as the latter go beyond it.
In every change of popular thought there have been
laggards, and in every such change there have been those
who are unable justly to estimate the true meaning of the
change, and work beyond it into eccentricities in which
the people will never follow them. We have, therefore,
three general types of thought at every time: the con-
servatives, the moderates and the radicals. And this is
as true of legal as of economic thought. Many lawyers
still hold conservative views as to the application of the
[ 28 ]
HISTORICAL INTRODUCTION
[ § 35
law of public callings to modern conditions. They be-
lieve that the conductors of every business, however
necessary to public welfare, should do whatever seems
good in their own eyes. And some economists still tell
us that the only way to get efficient service for the public
is to allow the public service companies the right of ex-
acting such rewards as they are able to get. But in spite
of these now obsolescent views there can be no question
that the tendency to-day is to restrain in the interests of
society all business which has obtained undue power.
Individual freedom is limited by the modern notion of
social justice.
Topic D. Present Control of Public Employment
§ 35. Economic conditions at the present time.
As a result of these changed business ideas, and of the
great inventions which have constantly tended to increase
the magnitude of business enterprises there has been as
has been seen in the last fifty years a great growth of em-
ployments which have gained virtual monopoly in mat-
ters of public necessity. The positive law of the pub-•
lic calling is the only protection that the public have
in a situation such as this, where there is no competi-
tion among the sellers to operate in its favor. So much
has our law been permeated with the theory of laissez ·
faire, which was but lately so prominent in the policy of
our State, that the admission has been made with much
hesitation that State control is ever necessary. But the
modern conclusion, after some bitter experience, is that•
freedom can be allowed only where conditions of virtual
competition prevail; for in conditions of virtual mo-
nopoly, without stern restrictions, there is always great
mischief. There is now fortunately almost general assent
to State control of the public service companies, since it is
recognized that the special situation requires a special law.
[ 29 ]
§§ 36, 37] PUBLIC SERVICE CORPORATIONS
§ 36. Control of the public services necessary.
The hypothesis here put forward is that whether a
business is public or not depends upon the situation of the
public with respect to it. Are there enough of such pur-
veyors to serve the public? or are there, for permanent
reasons, never enough? If so, there will be virtual com-
petition; if not, there will be virtual monopoly. In all of
the businesses to be discussed in these chapters, competi-
tion, although from a legal point of view possible, is from
the economic point of view improbable. So far as one can
see, virtual competition is at an end in these industries,
and virtual monopoly will henceforth prevail. Therefore
it must be said that the public has now an interest in the
conduct of these businesses by their owners. They are
affected with a public interest, since these agencies are car-
ried on in a manner to make them of public consequence.
Therefore, having devoted their property to a use in which
the public has an interest, they in effect have granted to
the public an interest in that use, and must submit to be
controlled by the public for the common good to the
extent of the interest they have created. Plainly we have
in the accepted use of these phrases the manifestation of
a deep-seated change in habits of thought. Only twenty-
five years ago the general feeling as to every sort of
industrial relation was that it was better to leave all
alone, that it was better to leave people to work out their
own salvation. But of late years we have been calling
upon the State to save us from monopoly in all its forms;
and we are impatient if it delays.
§ 37. Variety of the public services.
The present situation is plain enough to all of us. What-
ever way we turn we depend upon a service that is public
in character. Not only in long travels but in short jour-
neys we employ common carriers-railroads and steam-
[ 30 ]
HISTORICAL INTRODUCTION
[ § 38
ships, coaches and cabs, street cars and omnibuses, the
subway car and the elevated train. If we ship goods
there are various transportation services at our disposal
beside railroads and ships, such as express companies and
dispatch lines, refrigerator lines and tank lines. If we are
journeying ourselves we eat at hotel restaurants, and put
up at public inns, or travel in palace cars and lodge our-
selves in sleeping cars. Our freight in its transit has its
needs attended to-for our goods, warehouses, for our
grain, elevators, for our cattle, stockyards, and for our
exports, docks. In almost every community, even rela-
tively small, we have for our household needs gas, elec-
tricity, water supply and sewerage service provided for
us, usually, except the last two, by private companies
in public service, but even where the service is provided
by the municipality it is subject to the same law governing
public service. For speedy communication in our business
and pleasure, we have the telephone and telegraph in
common use, and ticker service and messenger call for
special needs. One may judge by this incomplete list how
common to every part of our modern life are the various
public services, and how necessary it is that they should
be required by law to serve us all with adequate facili-
ties for reasonable compensation and without discrimina-
tion.
•
§ 38. Differentiation of the public service law.
It is unnecessary at this day to point out the plain
distinction of the law governing public services from that
governing private employment. All businesses both pub-
lic and private are subject, to be sure, to that general
police power of the State whereby in any civilized society
the effort is made to so order things that one may not use
his own so as to injure another. But any comparison of
the large amount of regulation which it is considered
[31]
§ 39 ]
PUBLIC SERVICE CORPORATIONS
proper for the State to enact in regard to public services
with the small amount of regulation which it is considered
proper for the State to enact in regard to private business
is in itself significant enough. The difference thus shown
is more than one of degree; it is one of kind. For it will
be noted that it is in public business that the law imposes
affirmative duties; while generally speaking the duties
imposed upon those in private business are negative.
The law says to those in public business you must do this
for this applicant, and you must do it thus and so. To
those in private business it says you must not do this, or
if you do this you must do it thus and so. As has been
pointed out before, this is the chief distinction between
public calling and private calling; in one there is a coer-
cive law intimate in its details, in the other there is a
restraining law general in its rules.
§ 39. Unity of the public service law.
Not only has it been realized at last that we have
relating to the public services a distinct department of
the law, but also it is becoming recognized that within
this department there is a consistent body of law in
process of unification. Not merely does the law governing
the supply of gas differ from the law as to the sale of
candles, but the law governing the supply of gas is the
same in all essentials as the law as to the supply of elec-
tricity. It is in the firm belief that the law governing the
public services will prove upon analysis to be a really
unified body that the author has been working for many
years. General principles will be developed throughout
this book and corollaries to them established by the use
and with the co-ordination of cases from a variety of
public employments. Certainly the general propositions
hold true as to all public employments-that all must
be served, adequate facilities must be provided, reason-
[ 32 ]
HISTORICAL INTRODUCTION
[ § 40
able rates must be charged, and no discriminations must
be made. Moreover in dealing with the minor details
of these principles, cases from one service will be found
in point in another-what conditions there are precedent
to service, what will excuse failure in provision of facilities,
what is a proper basis for calculating rates and what
differences constitute discrimination.
§ 40. Present state of the public service law.
In the belief of the writer the public service law has at
length reached a stage of development in which it may be
possible to state its principles with some degree of con-
fidence. It is only within the last few years that it would
have been within the range of possibility to do this.
Twenty-five years ago the public services which were rec-
ognized were still few and the law as to them imperfectly
realized. It was known from olden times that those who
professed a public employment must serve all at a reason-
able rate. As to the duty to serve it was thought that
there were exceptions. As to the restriction of rates
there was no standard. The important duty to provide
adequate facilities had hardly advanced beyond the gen-
eral law as to negligence. And the duty not to discrimi-
nate was denied altogether. Even ten years ago when
these four obligations had become generally recognized,
the details as to them in regard to any particular employ-·
ment had been worked out only in very fragmentary
manner. - But at the present day it is just being appre-
ciated that rapid progress may be made by the general
recognition of the unity of the public service law, whereby
cases as to one calling may be used to show the law in all.
In this treatise this method is adopted for the first time.
Indeed, it is only in our present day that the attempt
to treat the public service law as a consistent body of
law could be made with any hope of success.
•
3
[ 33 ]
§ 41 ]
PUBLIC SERVICE CORPORATIONS
§ 41. Imperative need of effective regulation.
It has been remarked many times that the common
law may be relied upon to meet, by the continual develop-
ment of its fundamental principles, the complex condi-
tions created by the constant evolution in the industrial
organization. One of the most striking of modern in-
stances of this capacity of growth in the common law is
the astonishing progress in the working out of the detail
of the exceptional law governing the conduct of public
callings. As the public service law grows it is becoming
both more intensive and more extensive. In recent times
there undoubtedly is an increasing need of this stricter
regulation of all employments which appear to be affected
with a public interest. While it is true that there are
many men who still avow the principle of laissez faire,
who say that it is the better policy to leave all business
with as little interference from the law as possible; the
most of men at least appreciate that the law has already
taken control of the situation for all time. It is hardly
too much to say that the efficient regulation of the public
employments by sufficient law is the most pressing prob-
lem confronting this nation; and it must be met without
further hesitation. As these great combinations of capital
have grown up under the law, so their legal rights must
be subject to the rights of the whole people. Great power
brings as its consequence the need of control of that
power for the good of the whole people. Two ways only
can be found to exercise such control. One way, that
advocated by the radical persons, is government owner-
ship and operation of the public utilities. The other way,
which is in fact the conservative method of dealing with
the problem, is the control of the rates and practices of
the public service corporations for the public good. One
or the other of these methods must be finally adopted.
The conservative method is now on trial. It behooves
·
[ 34 ]
HISTORICAL INTRODUCTION
[ § 42
the lawyers to see to it that it be so intelligently tried,
and that the law applicable to the case be so accurately
enforced, that we may not be driven perforce to the radical
alternative of public ownership.
§ 42. Ultimate limitations upon public employment.
In this crisis of affairs the people must be assured that
the law is indeed adequate to deal with the situation,
that it has not only elaborated detail to meet obvious
wrongs seldom defended, but also enlightened compre-
hension to deal with the large policies openly justified
which are truly inconsistent with public duty. That
those who profess a public employment owe the utmost
public service, should be generally accepted as the funda-
mental principle upon which the law governing public
employment is to be based. It is not agreed, however,
how far this principle should be pressed; there is a clash
of interests here, and there is an inclination on the part
of those who conduct the public services to contest every
issue. This is hardly an enlightened selfishness; for it
seems to many who appreciate the temper of the public,
that the time has come when extension of the law and
enforcement of it should be the avowed attitude of all
conservative persons who wish the perpetuation of the
present condition of individual enterprise. It would be
well, therefore, if the restless and the doubting who see
many abuses and many wrongs in the conduct of our
public services without prompt remedy or adequate
redress, might be relieved and heartened by being shown
that the common law is adequate to deal with all real
industrial wrongs, and that with the aid of remedial
statutes the administration of the law can be relied upon.
And it should be sufficiently emphasized at all times in
all situations that public servants may not adopt to the
prejudice of their publi@ various profitable policies, and
[ 35 ]
§ 42]
PUBLIC SERVICE CORPORATIONS
then justify them as inherent rights which other men in
ordinary business may use in the advancement of their
interests.
[ 36 ]
BOOK I. ESTABLISHMENT OF PUBLIC
CALLING
[ 37 ]
PART I. PUBLIC EMPLOYMENT
CHAPTER II
MONOPOLY DUE TO LEGAL PRIVILEGE
§ 50. Legal privileges accompanying public employment.
Topic A. Exclusive Franchise
§ 51. Exclusive franchise for public purposes.
52. Ferries.
53. Bridges.
54. Bonded warehouses.
55. Log driving.
Topic B. Eminent Domain
§ 56. Eminent domain for public purposes.
57. Tramways.
58. Railways.
59. Pipe lines.
60. Transmission lines.
61. Elevated conveyors.
62. Lumber flumes.
63. Mining tunnels.
Topic C. Aid from Taxation
§ 64. Public purposes of taxation.
65. Gristmills.
66. Sawmills.
67. Drainage.
68. Sewerage.
69. Cemeteries.
70. Hospitals.
Topic D. Use of Public Highways
§ 71. Public purposes in highway use.
72. River improvements.
73. Booms.
74. Sluices.
[ 39 ]
§ 50 ]
PUBLIC SERVICE CORPORATIONS
§ 75. Turnpikes.
76. Street railways.
77. Subways.
78. Wire conduits.
79. Pole lines.
80. Constitutional situation as to special privileges.
§ 50. Legal privileges accompanying public employment.
That legal privileges frequently accompany public em-
ployment is the first thing that has struck many observers
as characteristic of the class. It is indeed common to find
in the case of certain public employments an exclusive
franchise; and such legal monopoly has been said to carry
with it the consequent obligation of public service. To
aid in the construction of its works, it will frequently be
found that eminent domain has been given to the public
service companies conducting the business; and here again
it is often said that the acceptance of such a special privi-
lege creates obligation to serve the public. From time to
time, the statement is made that when aid is granted from
the public treasury whether in the form of outright gift or
by guaranty of the securities of the corporation conduct-
ing the services, the result is that the services of these com-
panies are at the disposal of the public. Finally, many
public service corporations are given in one way or an-
other special privileges in the public highways; if these
companies accept these favors from the public, it is said,
they must serve the public. It is, of course, true, that in
the case of the most of the public services some one of
these privileges will ordinarily be found in any particular
case. In many instances several of these different kinds
of aid from the State will be found to have been given to
a single company. That under such conditions if the
grant is valid those who are enjoying such special privi-
leges must be at the disposal of the public is plain; but it
cannot be said that such a coincidence establishes a con-
[ 40 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 50
sequence. One insuperable difficulty with this common
explanation that public employment owes its origin to
the grant of public privileges, is that there are a con-
siderable number of public employments always recog-
nized as such, which have no such public privileges what-
soever.¹ What is perhaps of even greater significance is
that there are very many cases in which the grant of
special rights, such as exclusive franchises, eminent do-
main, State aid, or highway franchise to a business con-
cern of private character is held to be wholly void upon
the ground that such special rights may only be given to
such enterprises as are public in character.2 It would
seem, therefore, that the effect has sometimes been mis-
taken for cause here; that although many of these spe-
cial privileges often accompany public employment, the
truth is that these very privileges could not have been
validly granted unless these businesses were public in
character. It is submitted therefore, without going into
more detail about the matter, that under our constitu-
tional system no special privileges can be granted except
for a public purpose. Unless there is public interest
apparent the grant is void. The question thus arises
whether the conditions of virtual monopoly, however
caused, may not give rise to public calling if the State has
had no hand in the establishment of the situation. These
considerations are most suggestive; indeed, one is led by
them to an entire inversion of the common statement of
the relation between the existence of public privileges and
the establishment of public employment. It is common
to argue that because a certain business has had a certain
privilege granted to it, the consequence of that limitation
is that the business is put by the courts in the class of
¹ See People v. Budd, 117 N. Y.
1, 22 N. E. 670, 5 L. R. A. 559, 15
Am. St. Rep. 460 (1889).
་
2 See Brown v. Gerald, 100 Me.
351, 61 Atl. 785, 70 L. R. A. 472
(1905).
[ 41 ]
§ 511
PUBLIC SERVICE CORPORATIONS
public callings. But the real truth of the matter seems to
be in the opposite statement, that no business can be
granted a privilege under our constitutional system unless
it is public in character.
Topic A. Exclusive Franchise
§ 51. Exclusive franchise for public purposes.
1
Modern ideas as to exclusive franchises first appeared
in the opposition to the patents of monopoly which were
disposed of all too freely by the Tudors and the Stuarts.
Originally instituted as a method for the encouragement
of new industries and large enterprises, as glass and steel,
it was naturally felt to have become an abuse when
patents of monopoly were granted for ordinary trades and
commodities, as oil and leather. These private monopolies
were decried in the great Case of Monopolies ¹ in language
as extreme as any which has ever been used since; "for the
end of all of these monopolies is for the private gain of the
patentees and although provisions and cautions are added
to moderate them, yet res profecto stulta est nequitiæ modus,
it is mere folly to think that there is any measure in mis-
chief or wickedness." According to present ideas, there-
fore, exclusive franchises can only be granted for public
purposes. "Generalized and divested of the special form
which it assumes under a monarchial government based
on feudal traditions, a franchise is a right, privilege, or
power of public concern which ought not to be exercised
by private individuals at their mere will and pleasure, but
should be reserved for public control and administration
either by the government directly, or by public agents,
acting under such conditions and regulations as the gov-
ernment may impose in the public interest and for the
public security."2 In this light our problem is made at
111 Coke, 84b.
2 California v. Central Pacific
Ry., 127 U. S. 1, 32 L. ed. 150
(1887).
[ 42 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 51
3
once clearer and more difficult. When the validity of the
grant of an exclusive franchise to a business enterprise is
in question, the rule is that such franchises can be granted
only to such businesses as are public in character. It is
well established that exclusive franchises may be given
for gas supply¹ and electric lighting,² to give two modern
instances. On the other hand, when an exclusive right is
claimed by virtue of some incautious grant for such
private businesses as baiting animals or selling mer-
chandise the grant is disposed of simply enough as
invalid under our constitutional law. No one would think
of saying that these businesses were made public by the
grant of the franchise and therefore the legislation was
made constitutional; such a course of reasoning would be
too patently circular. To this general theory there are ap-
parently two important exceptions at the present time—
the patent and the copyright which are still freely granted
for any purpose without any corresponding legal obliga-
tion. The policy still seems to be that new inventions and
novel ideas should be fostered and protected at all costs.
But, as will be seen later, in the case of the telephone it is
already law that a patent so devoted to a public use is
subject to the full regulation of the public service law
notwithstanding that it is generally said that the owner
¹ Illinois. People v. People's Gas
Light Co., 205 Ill. 482, 68 N. E.
950, 98 Am. St. Rep. 244 (1903).
Louisiana.-Davenport Gas &c.
Co. v. Davenport, 124 Ia. 22, 98
N. W. 892 (1904); Crescent City
Gas Light Co. v. New Orleans
Gas Light Co., 27 La. Ann. 138
(1875).
Missouri.-Vanderberg v. Kan-
sas City &c. Gas Co., 126 Mo. App.
600 (1907).
Wisconsin.-State v. Milwaukee
Gas Light Co., 29 Wis. 454, 9 Am.
Rep. 598 (1872).
2 Iowa.-Davenport Gas & Elec-
tric Co. v. Davenport, 124 Iowa, 22,
98 N. W. 892 (1904).
Oklahoma.-Territory
V. De-
Wolfe, 13 Okla. 454, 74 Pac. 98
(1903).
³ Com. v. Bacon, 13 Bush, 210,
26 Am. Rep. 189 (1877).
4 Thousand Island Park Assn. v.
Tucker, 173 N. Y. 203, 65 N. E.
975 (1903).
[ 43 ]
§ 52 ]
PUBLIC SERVICE CORPORATIONS
of a patent can deal with it as he pleases. So although the
owner of a copyright is said to be free to get such returns
from it as he pleases this statement cannot now be made
with entire confidence. The publishers of market quota-
tions for example cannot deal with the public at their
caprice.
§ 52. Ferries.
The practice of granting exclusive franchises for the
operation of ferries is found in our earliest reports, the
cases being frequent where the franchise is recognized and
protected from invasion.¹ The propriety of such grants
has never been denied even in those times when there has
been the most outcry against monopolies. For the ne-
cessity of such protection to those engaged in the service
is recognized; and the evil of monopoly is curbed by the
requirement of public service. As a result the exclusion
of other ferrymen by an exclusive franchise has been
always held under American constitutions to be due proc-
ess of law. In the North Dakota case the propriety of
2
¹ Georgia.-Hudspeth v. Hall, 111
Ga. 510, 36 S. E. 770 (1900).
Massachusetts.-Fay, Petitioner,
15 Pick. 243 (1834).
North Carolina.-Long v. Beard,
3 Murphy, 57 (1819).
South Dakota.-Evans v. Hughes
County, 3 So. Dak. 580 (1893).
England.-Blissett v. Hart, Willes,
508 (1744); Huzzey v. Field, 2 C. M.
& R. 432 (1835). See, however,
Churchman v. Tunstall, Hardres,
162 (1659), where a Commonwealth
court felt that an exclusive ferry
was in restraint of trade. In an-
other bill between the same parties
after the Restoration, Lord Hale
is said to have decided in favor of
the same plaintiff. Huzzey v. Field,
2 C. M. & R. 432 (1835).
2 Exclusive franchises for ferries
are also justified under our Ameri-
can constitutional law in the follow-
ing cases, among others:
California.—Fortain v. Smith, 114
Cal. 494, 46 Pac. 381 (1896).
Iowa.-Burlington County Ferry
Co. v. Davis, 48 Ia. 133, 30 Am.
Rep. 390 (1878).
Maryland.-Broadway, etc., Fer-
ry Co. v. Hankey, 31 Md. 346
(1869).
V.
North Dakota.-Patterson
Wollmann, 5 N. D. 608, 67 N. W.
1040, 33 L. R. A. 539 (1896).
South Dakota.-Nixon v. Reid, 8
S. D. 507, 67 N. W. 57, 32 L. R. A.
315 (1896).
[ 44 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 53
such franchises from the modern point of view was stated
thus: "For centuries such police power has embraced this
element of the right to grant an exclusive franchise; and
it has been found that, as a general rule, the best results
are obtained by granting an exclusive right. Indeed it
often is the case that on no other terms will the citizen
assume the burdens incident to the operation of a ferry.
There is nothing in the history of the English nation or of
the American people which warrants the conclusion that
this practice has resulted in imposing intolerable burdens
upon the public, or has led to other than beneficial re-
sults."
§ 53. Bridges.
A similar policy has been employed by the State from
early times in making provision for long bridges on im-
portant lines of through travel. Toll bridges built and
maintained under charters giving exclusive rights against
competing bridges were once much more common than
they are now; and the policy of such arrangements in
furtherance of the public service ¹ has been vigorously de-
¹ Toll bridges are of such public
character that all persons have a
right of passage over them upon
payment of the established rates.
United States.-See Evansville
Traction Co. v. Henderson Bridge
Co., 134 Fed. 973 (1904).
California.-Norris v. Farmers'
& Teamsters' Co., 6 Cal. 590, 65
Am. Dec. 535 (1856).
Kentucky.-Covington &c. Bridge
Co. v. Covington &c. St. Ry. Co.,
93 Ky. 136, 19 S. W. 403, 15 L. R. A.
828 (1892).
New York.-Thompson v. Mat-
thews, 2 Edw. Ch. 212 (1834).
Pennsylvania.-Pittsburg & W.
1
E. Pass. Ry. v. Point Bridge Co.,
165 Pa. St. 37, 30 Atl. 511 (1894).
But as the owners of the bridge
do not assume the control or pos-
session of goods and passengers
conveyed, or passing across the
bridge, they do not come under the
extraordinary liabilities of common
carriers.
United States.-Kentucky & L.
Bridge Co. v. Louisville & N. R. R.
Co., 37 Fed. 567 (1889).
V.
South Carolina.-Grigsby
Chappell, 5 Rich. L. (S. C.) 443
(1852). See § 146, infra, as to rail-
way bridges.
[ 45 ]
§ 54]
PUBLIC SERVICE CORPORATIONS
1
fended. In the leading case of the Binghamton Bridge ¹
the United States Supreme Court said: "They are deemed
beneficial to the country, and this benefit constitutes the
consideration and in most cases the sole consideration for
the grant. The purposes to be attained are generally be-
yond the ability of individual enterprise and can only be
accomplished through the aid of associated wealth. This
will not be risked unless privileges are given and securities
furnished in the act of incorporation. The wants of the
public are often so imperative that a duty is imposed on
government to provide for them; and as experience has
proved that a State should not directly attempt to do this,
it is necessary to confer on others the faculty of doing
what the sovereign power is unwilling to undertake.".
§ 54. Bonded warehouses.
܂
That an exclusive franchise constituting a legal monop-
oly puts the person who possesses it in the position of
public servant should be clear. The leading case upon
legal monopoly is Allnutt v. Inglis.2 The question raised
was whether the London Dock Company had a right to
insist upon an arbitrary hire for receiving wines into its
warehouses, or whether they were bound to receive them
there for a reasonable reward only. It appeared that by
virtue of the Warehousing Act that company alone had
1 The Binghamton Bridge, 3
Wall. 51, 18 L. ed. 137 (1865). To
the same effect as to the propriety
of the grant of special legal privi-
leges in aid of the construction of
bridges, see:
United States.-City of Leredo v.
International Bridge Co., 66 Fed.
246, 14 C. C. A. 1 (1895).
Connecticut.-Enfield Toll Bridge
Co. v. Hartford & N. H. R. R. Co.,
17 Conn. 40, 42 Am. Dec. 716 (1845).
Kentucky.-Arnold v. Covington
&c. Bridge Co., 1 Duv. 372
(1864).
Massachusells.-Central Bridge
Corp. v. Lowell, 15 Gray, 106
(1860).
North Carolina.-Contra Wash-
ington Toll Bridge v. Beaufort, 81
N. C. 491 (1879).
Ohio.-Young v. Buckingham,
5 Ohio, 485 (1832).
2 12 East, 527 (1810).
[ 46 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 55
the legal privilege of taking goods in bond in the port of
London. What Lord Ellenborough said in that case de-
serves careful consideration: "There is no doubt that the
general principle is favored both in law and justice, that
every man may fix what price he pleases upon his own
property or the use of it; but if, for a particular purpose,
the public have a right to resort to his premises and make
use of them, and he have a monopoly in them for that
purpose, if he will take the benefit of that monopoly, he
must as an equivalent perform the duty attached to it
on reasonable terms. Here then the company's ware-
houses were invested with the monopoly of a public
privilege, and therefore they must by law confine them-
selves to take reasonable rates for the use of them for
that purpose.
991
§ 55. Log driving.
Weymouth v. Penobscot Log Driving Company,2 a
case outside the beaten track, is a modern instance of this
principle, that the doctrine of public calling will be ex-
tended to any case in which the decisive circumstance of
legal monopoly is shown. This was an action brought
against the log driving company by a lumberman whose
logs had not been taken although he had notified the
company in due form. The company requested the court
to instruct the jury that the corporation was not under any
legal obligation to drive the logs upon request. Mr. Jus-
tice Danforth held that the instruction was properly re-
fused under the circumstances. "In this case the charter
conferred the privilege of driving, not a part, not such a
portion as the company might choose, but 'all' the logs
to be driven. This right having been accepted by the
1 As to the public character of
warehouses in general, see the anno-
tation to § 140, infra.
271 Me. 29 (1880).
[ 47 ]
§ 56 ]
PUBLIC SERVICE CORPORATIONS
company, it became a vested and also an exclusive right.
It is therefore taken not only from all other corporations,
but excludes the owner as well. By its acceptance and
exclusion of the owner from the privilege, in justice and
in law it assumed an obligation corresponding to, and
commensurate with its privilege."¹
Topic B. Eminent Domain
§ 56. Eminent domain for public purposes.
It has often been remarked how frequently eminent
domain is granted to companies which are conducting
public services. Indeed, it has often urged that the reason
that such companies may be regulated by law is because
they have been endowed with the right of eminent do-
main, and are therefore quasi-public corporations. This
reasoning, however, seems to be inadequate if the matter is
sufficiently analyzed, because it is taking the effect for the
cause. A legislature can give a railroad or a canal, the
right of eminent domain only because the company, ir-
respective of the enjoyment of that right, is already public
in character; for private property, under our constitutional
limitations, cannot be taken, even when compensation
is given, except for public purposes. A few examples
of the businesses for which it has been held eminent
domain may be given will make the point plainer, that
1 Log driving is so affected with
a public interest as to justify the
grant of various special legal privi-
leges to those engaged in it.
United States.-Boom Co. v. Pat-
terson, 98 U. S. 403 (1878).
Maine.-Penobscot Log D. Co.
v. West Branch D. & R. Dam Co.,
99 Me. 452, 59 Atl. 593 (1905).
Minnesota.-Cotton Missis-
sippi River Boom Co., 22 Minn. 372
(1876).
V.
New York.-Matter of Burns,
155 N. Y. 23, 49 N. E. 246 (1898).
And yet as the service is con-
ducted it is not common carriage.
Michigan.-Mann v. White River
Log & Booming Co., 46 Mich. 38,
8 N. W. 550, 41 Am. Rep. 141
(1881).
New York.-Pike v. Nash, 3 Abb.
App. Dec. 610, 1 Keyes, 335 (1864).
[ 48 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 57
it is only in public employment that eminent domain
may be granted. Thus according to all the cases emi-
nent domain may be granted for such extraordinary
businesses as electric plants and telegraph lines,2 while
if it is attempted to give eminent domain for businesses
essentially private, such as sugar factories or paper
mills, the grant is held unconstitutional.
4
§ 57. Tramways.
1
3
It is common knowledge that the tramway was the di-
rect successor of the turnpike and the immediate pred-
ecessor of the railroad. It was expected at the outset
that like the turnpike it would furnish a highway over
which those who had provided themselves with proper
wagons and sufficient beasts would haul their goods as
1 Georgia.-Jones v. North Geor-
gia Electric Co., 125 Ga. 618, 54
S. E. 85 (1906).
Maine.-Brown v. Gerald, 100
Me. 351, 61 Atl. 785, 70 L. R. A.
472 (1905).
Missouri.—State v. Allen, 178
Mo. 555, 77 S. W. 868 (1903).
New Hampshire.-Rockingham
County Light & Power Co. v. Hobb,
72 N. H. 531, 58 Atl. 46, 66 L. R. A.
581 (1904).
New York.-Palmer v. Larch-
mont Electric Co., 158 N. Y. 231,
52 N. E. 1092 (1899).
Ohio.-Callen v. Columbus Edi-
son Electric Co., 66 Oh. St. 166, 58
L. R. A. 782, 64 N. E. 141 (1902).
Pennsylvania.—Haverford Elec-
tric Co. v. Hart, 13 Pa. Co. Ct. 369
(1891). See the full citation of cases
establishing that the business of
electric lighting is public in charac-
ter, § 113, infra.
2 Alabama.-New Orleans, M. &
T. R. Co. v. Southern & A. Tele-
graph Co., 53 Ala. 211 (1875).
Arkansas.-Western Union Tele-
graph Co. v. Short, 53 Ark. 434, 14
S. W. 649, 9 L. R. A. 744 (1890).
New Jersey.-Trenton & N. B.
Tp. Co. v. American & E. News
Co., 43 N. J. L. 381 (1881).
New York.-Eels v. American
Telephone & Telegraph Co., 143
N. Y. 133, 38 N. E. 202, 25 L. R. A.
640 (1894).
Utah.-Postal Telegraph Cable
Co. v. Oregon S. L. Ry. Co., 23
Utah, 474, 65 Pac. 735, 90 Am. St.
Rep. 705 (1901).
Virginia.-Western Union Tele-
graph Co. v. Williams, 86 Va. 696,
11 S. E. 106, 8 L. R. A. 429, 19 Am.
St. Rep. 908 (1890). See § 157,
infra.
3 Getchell v. Benton, 30 Neb.
870, 47 N. W. 468 (1890).
4 Harding v. Goodlett, 3 Yerg.
(Tenn.) 40, 24 Am. Dec. 546 (1832).
4
[ 49 ]
§ 58]
PUBLIC SERVICE CORPORATIONS
they pleased. Unlike the turnpike, however, existing
roads could not be utilized and incorporated into the
system. Such railways must strike across country for
themselves, and eminent domain was consequently nec-
essary to get the right of way without interruptions. It
has certainly always been law that when such tramways
are thus open to public use they are in the public service
and may be given eminent domain.¹ In this way the
law was prepared for that very different business of mod-
ern railroad operation where the use of the right of way is
necessarily confined exclusively to the company conduct-
ing the transportation.2
§ 58. Railways.
When the right of eminent domain was first given to
the early railroads its constitutionality was doubted. All
such doubts were set at rest by the masterly opinion of
Chief Justice Ruffin in Raleigh & Gaston Railroad v.
Davis,³ in the course of which he showed his apprecia-
tion of the benefits accruing from the undertaking of
public services by private concerns. "An immense and
beneficial revolution has been brought about in modern
times by engaging individual enterprise, industry and
economy in the execution of public works of internal im-
provement. The general management has been left to
individuals whose private interests prompt them to con-
duct it beneficially to the public, but it is not entirely
confided to them. From the nature of their undertaking
and the character of the work they are under sufficient
responsibilities to insure the construction and preserva-
¹ In Leigh v. Garysburg Mfg. Co.,
132 N. C. 167, 43 S. E. 632 (1903),
it is recognized that a tramway con-
'structed to haul out logs will be
sufficiently public in character to
justify the grant of eminent domain
if its proprietors open it to the use
of all desirous of availing themselves
of it.
2 See § 144, infra.
32 Dev. & Bat. 451 (1837).
[ 50 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 59
tion of the work, which is the great object of the govern-
ment.” 1
§ 59. Pipe lines.
Upon the same principle it has been held that the right
of taking property by eminent domain may be conferred
upon a pipe line system constructed for the transporta-
tion of oil. The right having been conferred by the
West Virginia 2 legislature upon a certain company the
act was attacked as unconstitutional, because the taking
was not for a public purpose; but the Supreme Court of
that State speaking by Mr. Justice Moore said: "It has
been decided, time and time again, and is therefore
settled by the best authority, that the construction of
railroads, turnpikes, canals, ferries, telegraphs, wharves,
basins, etc., constitutes what is generally known by the
name of internal improvements, and gives occasion for
the exercise of the right of eminent domain. And other
measures of general utility in which the public at large
are interested, and which require the appropriation of
private property, are within the power where they fall
1 The subsequent decisions jus-
tifying the grant of eminent domain
in aid of a public railway are too
numerous to be included here in
full; the general doctrine is suffi-
ciently shown in the earlier cases,
such as:
United States.-Secombe v. Mil-
waukee & St. Paul Ry. Co., 23 Wall.
108, 23 L. ed. 67 (1874).
California.-San Francisco A. &
S. R. R. Co. v. Caldwell, 31 Cal.
367 (1866).
Iowa.-Noll v. Dubuque B. & M.
R. R. Co. 32 Iowa, 66 (1871).
Maryland.-Shipley v. Baltimore
& Potomac R. R. Co., 34 Md. 336
(1871).
Michigan.-Swan v. Williams, 2
Mich. 427 (1852).
New Hampshire.-Concord R.
R. Co. v. Greely, 17 N. H. 47
(1845).
South Carolina.-Louisville C. &
C. R. R. Co. v. Chappell, Rice, 383
(1839).
2 West Virginia Transp. Co. v.
Volcanic O. & C. Co., 5 W. Va. 382
(1872). “A pipe line company is a
common carrier bound to receive
and transport for all persons alike
all goods intrusted to its care."
Giffin v. South West Pa. Pipe
Lines, 172 Pa. St. 580, 33 Atl. 578
(1896).
[51]
§ 60]
PUBLIC SERVICE CORPORATIONS
within the reasons underlying the cases mentioned. The
charter granted to the West Virginia Transportation
Company by special enactment of the legislature, shows
that the object was to construct a line for the transpor-
tation of petroleum. The charter also established the
maximum charges the company should make for trans-
portation of oils. I cannot see the propriety of admitting
a railroad or canal or aqueduct to be an internal improve-
ment, and declare this tube highway not to be." 1
§ 60. Transmission lines.
It is difficult to say, as the authorities stand at the
present moment, whether the transmission of electric
energy to be utilized as power is public in character or
not. Of course in particular cases there is no public
employment if those engaged in the transmission have
made no profession to sell the power to the public in
general, but are either using the power transmitted in
their own business exclusively or are making special
contracts with particular customers. But if the power
company holds itself out as ready to serve all customers
indifferently to the extent of its capacity it would seem
that in such a case the business is sufficiently public to
¹ Although there are now several
statutes declaring that pipe lines
shall be at the service of the public,
there are as yet only a few decisions
to that effect; but there are enough
to make the prediction safe that the
constitutionality of these statutes
will be upheld. The cases nearest
in point that have been found are
subjoined:
New York.—Bloomfield & R.
Natural Gas Light Co. v. Richard-
son, 63 Barb. 437 (1872).
Ohio.-Re Ohio Valley Gas Co.,
6 Pa. Dist. Rep. 200 (1897).
2
Pennsylvania.-Columbia
Con-
duit Co. v. Commonwealth, 90
Pa. St. 307 (1879).
West Virginia.-West Virginia
Transportation Co. v. Ohio R. Pipe
Line Co., 22 W. Va. 600, 46 Am.
Rep. 527 (1883).
2 Vermont.—Avery v. Vermont
Electric Co., 75 Vt. 235, 54 Atl. 179,
59 L. R. A. 817, 98 Am. St. Rep.
818 (1902).
Virginia.-Fallsburg v. Alexan-
der, 101 Va. 98, 43 S. W. 194, 61 L.
R. A. 129, 99 Am. St. Rep. 855
(1903).
[ 52 ]
MONOPOLY DUE TO LEGAL PRIVILEGE [ § 61
3
2
justify the grant of eminent domain to gain right of way
for its transmission lines.¹ The modern policy leading
the courts to this conclusion, that the business of sup-
plying electricity for power is now public in character
is thus fully set forth in a late New Hampshire case
which relies much upon the present day demand for
power. On the other hand, in a recent Maine case the
court insists that the service is not sufficiently necessary
to the public to justify eminent domain. But this ar-
gument may easily be pressed too far in this subject.
A man may make provision for illuminating his premises
without the aid of the State, and yet as is conceded by
the court, the distribution of electricity for lighting is
public in character beyond question.5
§ 61. Elevated conveyors.
Another method of transportation which is met with
in the reports is the elevated conveyor or cable tramway.
It is described in one case as consisting of two elevated
cables held upon supports so as to run parallel to each
other about ten feet apart on which buckets are carried
along by means of a moving trolley, one line bringing
the buckets in one direction, the other in the other. In
1 United States.-Walker V.
Shasta Power Co., 160 Fed. 856
(1908).
Georgia.-Jones v. North Georgia
Electric Co., 125 Ga. 618, 54 S. E.
85 (1906).
New Hampshire.-Rockingham
County Light & Power Co. v. Hobb,
72 N. H. 531, 58 Atl. 46, 66 L. R. A.
581 (1904).
New York.-Re Niagara L. & O.
Power Co., 111 App. Div. 686, 97
N. Y. Supp. 853 (1906). See also
the full citation of cases relating to
electric power, § 114, infra.
6
2 Rockingham County Light &
Power Co. v. Hobbs, supra.
3 Brown v. Gerald, 100 Me.
351, 61 Atl. 785, 70 L. R. A. 472
(1905).
4 State ex rel. v. Superior Court
of Thurston County, 42 Wash. 660,
85 Pac. 666, 5 L. R. A. (N. S.) 672
(1906), is apparently in full accord
with Brown v. Gerald, which it
quoted with approval.
5 See § 113, infra.
6 Matter of the Split Rock Cable
Road Co., 128 N. Y. 408, 28 N. E.
506 (1891).
[53]
§§ 62, 63] PUBLIC SERVICE CORPORATIONS
that particular case the New York Court of Appeals re-
fused to permit such a road to exercise the power of emi-
nent domain upon the ground that it was wholly engaged
in serving the concern which controlled it, transporting
rock from its quarry to its works, both termini being
upon its private premises. However, it would seem that
if such elevated conveyor was really operated as a common
carrier offering to transport all freight, that should be
offered to it suitable to be carried in buckets, it might
well be held in public employment.¹
§ 62. Lumber flumes.
Another unusual public service is the maintenance of
a flume through which lumber may be brought from
rather distant forests to convenient points. These flumes
are commonly constructed by those owning timber lands
in the region served; but it is often true that other owners
may make use of the flume by paying a proper price.
In such a case there would seem to be no objection to
granting eminent domain to aid in their construction, as
the service would then be public in character. In the
leading case involving such flumes, Judge Strahan for
the Supreme Court of Oregon said: "The public certainly
have an interest in the cheap delivery of the timber,
lumber, and other products of the forest, or whatever
other commodity may be transported by being floated
to cities or other places for consumption.” ³
§ 63. Mining tunnels.
2
Still another enterprise found necessary for the de-
velopment of natural resources is the mining tunnel. In
several of the western States corporations are chartered
¹ See other cases as to mechanical
conveyors, § 98, infra.
2 Dalles Lumbering Co. v. Urqu-
hart, 16 Oreg. 67, 19 Pac. 78
(1888).
3 To the same effect is Maffet v.
Quine, 93 Fed. 347 (1899).
[54]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 64
for the sole purpose of boring such tunnels and are given
the power of eminent domain to pass through the various
locations. In defending the grant of this power in the
case of Tanner v. Treasury Tunnel, Mining & Reduction
Company,¹ Chief Justice Gabbert said: "The number
who may avail themselves of the benefit of the tunnels
will be limited, but this is merely the result of natural
conditions arising from the character and location of
mining properties. The use and benefit of the tunnel will
be in common, and may be enjoyed by all those whose
properties are so located with reference thereto that they
may avail themselves if they so desire, of the oppor-
tunities thus afforded for the development and operation
of their properties." 2
Topic C. Aid from Taxation
§ 64. Public purposes of taxation.
Another basis of the right of public regulation is said
to be the receipt by the regulated company of aid from
taxation. And indeed it is in public businesses that the
various forms of State aid are given, either in the form of
direct grant or public guaranty. It is doubtless true, in
general, that a business which receives public aid from
taxation is a public business, and is subject to public
regulation; but again the effect seems to have been taken
for the cause. Under our constitutions State aid can be
granted only for a public purpose; the character of the
enterprise does not result from the grant of State aid, for
it must precede it in order to make the grant valid. Thus
State aid may be given to such recognized public services
135 Colo. 593, 83 Pac. 464, 4
L. R. A. (N. S.) 106 (1906).
2 There are several cases sub-
stantially to the same effect, among
them:
United States.-Baillie v. Larson,
138 Fed. 177 (1905).
New Jersey.-DeCamp v. Hi-
bernia R. R. Co., 47 N. J. L. 43
(1885).
[55]
§ 65]
PUBLIC SERVICE CORPORATIONS
4
1
2
3
as telephone lines or irrigation reservoirs, not to men-
tion such obvious cases as street railways and railroad
terminals; but State aid may not be given to such
private business as a box mill 5 and a coal yard, or even
to great enterprises such as foundries and factories.8
§ 65. Gristmills.
9
7
6
From time immemorial the gristmill has been held to
be in public service. There are many early cases which
bring out the obligation of the proprietor of a gristmill
who is receiving the grain of the community to grind, to
serve all without discrimination. So necessary are such
mills in the early economy when the immediate country
is entirely dependent upon turning its crops into food
that the propriety of State aid for such works has seldom
been questioned. 10 There is a decision as to gristmills in
1 Northwestern Telephone Ex-
change Co. v. Chicago, etc., M. &
St. P. Ry. Co., 76 Minn. 334 (1899).
2 Fallbrook Irrigation District v.
Bradley, 164 U. S. 112, 41 L. ed.
369, 17 Sup. Ct. 56 (1896).
3 Attorney-General v. Pingree,
120 Mich. 550, 79 N. W. 814 (1899).
4 Sears v. Street Commissioners,
180 Mass. 274, 62 N. E. 397 (1880).
5 Allen v. Jay, 60 Me. 124, 11 Am.
Rep. 185 (1872).
6
• Opinion of Justices, 182 Mass.
605, 66 N. E. 25 (1882).
7 Loan Association v. Topeka, 20
Wall. 655, 22 L. ed. 455 (1874).
8 Cole v. La Grange, 113 U. S. 1,
28 L. ed. 896, 5 Sup. Ct. 416 (1884).
9 United States.—Munn Il-
linois, 94 U. S. 113, 24 L. ed. 77
(1876), semble.
V.
Alabama. Sadler v. Langham,
34 Ala. 311 (1859).
Georgia.-Loughbridge v. Harris,
42 Ga. 500 (1871).
Maine.-State v. Edwards, 86
Me. 102, 41 Am. St. Rep. 528
(1893).
Nebraska.—Getchell v. Benton,
30 Neb. 870, 47 N. W. 468 (1890).
Virginia.-Tuckahoe Canal Co.
v. Tuckahoe Ry. Co., 11 Leigh, 42
(1840), semble.
West Virginia.-West v. Raw-
son, 40 W. Va. 480, 21 S. E. 1019
(1895).
10 Upon similar principles eminent
domain may be given to aid in the
construction of the works of a grist-
mill, particularly to acquire flow-
age rights.
Illinois.—Gaylord v.
v. Sanitary
District, 204 Ill. 576, 68 N. E. 522,
63 L. R. A. 582, 98 Am. St. Rep.
235 (1903).
Kentucky.-Shackelford's Heirs
v. Coffey, 4 J. J. Marsh. 40 (1830).
Massachusetts.-Boston & Rox-
bury Mill Corp. v. Newman, 12
Pick. 467, 23 Am. Dec. 622 (1832).
[56]
MONOPOLY DUE TO LEGAL PRIVILEGE [ § 66
1
the Supreme Court of the United States ¹ in which the
tests are discussed by which the public character of a
business may be judged. The issue was whether an issue
of bonds made to aid in the construction and completion
of a steam custom gristmill within the township, was
valid. The Constitution empowered the execution of
bonds for the purpose of building bridges, free or other-
wise, or to aid in the construction of railroads or water
power by donation thereto or taking stock therein, or for
other works of public improvement. Mr. Justice Hunt in
delivering the opinion of the court said in part: "Does
such an establishment fall within the description of other
works of internal improvement? It would require great
nicety of reasoning to give a definition of the expression
internal improvement which would show that the means
of transportation were more valuable to the people of
Kansas than the means of obtaining bread. It would be
a poor consolation to the people of this town to give them
the power of going in or out of the town upon a railroad,
while they were refused the means of grinding their
wheat."2
§ 66. Sawmills.
There is some evidence that in certain States sawmills
are regarded as public services also.
Tennessee.-Harding v. Goodlett,
3 Yerg. 41, 24 Am. Dec. 546 (1832).
But the mill must be conducted
as a public one or special rights may
not be given.
Georgia.-Loughbridge v. Harris,
42 Ga. 500 (1871).
Vermont.-Tyler v. Beacher, 44
Vt. 648, 8 Am. Rep. 398 (1871).
1 Township of Burlington v. Beas-
ley, 94 U. S. 310, 24 L. cd. 161
(1876).
They are thus
2 In view of this decision it is
rather curious that in Osborne v.
Adams County, 106 U. S. 181, 27
L. ed. 129 (1882), it was held that
a steam power gristmill could not
be aided under a Nebraska statute,
but the terms of the Nebraska acts
were not so broad. In Blair v.
Cuming County, 111 U. S. 363,
28 L. ed. 457 (1884), strangely
cnough a water power gristmill was
held within the Nebraska statute.
[57]
§ 671
PUBLIC SERVICE CORPORATIONS
grouped with gristmills in State v. Edwards,¹ Haskell, J.,
saying, "Mills for the grinding of grain and for the sawing
of lumber for all comers have been aided or established by
the legislature from the earliest Colonial times. Those
mills were usually water mills; but it is of no moment
what the propelling power may be. They have always
been considered so necessary for the existence of the
community that it was proper for government to foster
or maintain them; and in the absence of government aid,
the individual proprietor, not pretending to serve the
public, might maintain such mills as private mills, free
from legislative interference, precisely as he might main-
tain a store, shop or other private business; but when
such proprietor makes his mill public, assumes to serve the
public, then he dedicates his mill to public use and it
becomes a public mill, subject to public regulation and
control. He is not compelled to continue such public use,
but so long as he does, he becomes a public servant and
may be regulated by the public.” 2
§ 67. Drainage.
Drainage, on the other hand, is an example of a public
necessity 3 that is almost always provided for by the
State itself in some other way than by the chartering of
public service companies. Indeed it is usually arranged
for by governmental agencies, such as reclamation dis-
tricts, with the extraordinary power of levying assessments
upon those benefited. It is possible that a public corpo-
ration might be duly empowered to construct a drainage
4
¹ 86 Me. 102, 29 Atl. 947, 25 L. R.
A. 504, 41 Am. St. Rep. 528 (1893).
2 Sawmills are included in the
list of public mills in Gaylord v.
Sanitary Dist., 204 Ill. 576, 68 N. E.
522, 63 L. R. A. 582, 98 Am. St.
Rep. 235 (1903).
³ See Laguna Drainage District
v. Martin Co., 144 Cal. 209, 77 Pac.
933 (1904).
4 Jenal v. Green Island Draining
Co., 12 Neb. 163, 10 N. W. 547
(1881).
[58]
MONOPOLY DUE TO LEGAL PRIVILEGE [ §§ 68, 69
1
system and take such reasonable profit as it might get
by the charges it could collect from those who wished to
avail themselves of the benefit of its system. But it is
beyond the range of possibility that any corporation of
such sort can be given the power to coerce unwilling
customers to deal with it by compulsory assessments.2
§ 68. Sewerage.
Sewerage systems likewise are usually constructed by
governmental bodies so that examples of the conduct of
this service by private corporations are practically un-
known. But it is plain that in their conduct by a govern-
mental body the principles of the public service law must
be obeyed. Thus in a recent case 3 the city of Mobile was
enjoined against maintaining a schedule outrageously
discriminatory. Mr. Justice Haralson saying, emphatic-
ally, “These sewers of the city are for the public at large
and every one should be permitted to use them without
any discrimination in charges against him. The franchise
to construct sewers being in the nature of a public use,
the duty is on the city to supply sewerage at rates to all
impartially on reasonable terms.” 4
§ 69. Cemeteries.
The absolute necessity of public cemeteries is obvious.
This necessity may be met either by cemeteries owned
directly by the government or by chartered corporations.
Such corporations are rarely empowered to take private
profit from the conduct of the cemetery, but are obliged
to devote their receipts to the purposes of the cemetery.5
¹ See O'Reiley et al. v. Kankakee
Valley Draining Co., 32 Ind. 169
(1869).
2 See Kean v. Driggs Drainage
Co., 45 N. J. L. 91 (1883).
3 Mobile v. Bienville Water Sup-
ply Co., 130 Ala. 379, 30 So. 445
(1901).
4 See Opinion of the Justices, 150
Mass. 592, 596, 24 N. E. 1084, 8
L. R. A. 487 (1890).
5 See Davis v. Coventry, 65 Kans.
557, 70 Pac. 583 (1902).
[59]
§ 701
PUBLIC SERVICE CORPORATIONS
Such being the case the law concerning them is mostly
that relating to public charities which is outside the scope
of this treatise. It may be noted, however, that it is com-
mon to exempt such cemeteries from taxation and these
exceptions are liberally construed in favor of the ceme-
tery.¹ Moreover, it is possible to have cemetery corpora-
tions which are justified in distributing their profits to
their stockholders; and it would seem on the decisions that
these may receive State aid in every form provided that
their privileges are open to all upon equal terms. "But it
is a matter of common knowledge that there are many
cemeteries which are strictly private; in which the public
have not and cannot acquire the right to bury." Clearly
the proprietors of such cemeteries cannot constitutionally
receive State aid.³
3
§ 70. Hospitals.
2
The same situation exists as to hospitals. These are
usually organized as public charities and the discussion of
the law relating to them is again outside the scope of this
treatise, which is confined to such corporations engaged
in public service as are entitled to take private profit.
Nevertheless there may be hospitals of this type which are
open to all comers with reasonable restrictions, and it
would seem that such hospitals might be given such aid
from the State as is deemed desirable, particularly exemp-
tion from taxation. Such a hospital would seem to be
public in character within the definition of that term
given in a leading case 5 dealing with the propriety of
¹ Mt. Auburn Cemetery v. Cam-
bridge, 150 Mass. 12, 22 N. E. 66,
4 L. R. A. 836 (1889).
2 See Pokrok Zapadu Pub. Co. v.
Zizkovsky, 42 Neb. 64, 60 N. W.
358 (1894).
4
Beecher, 53 Conn. 551, 5 Atl. 353
(1885).
* See People ex rel. Burnham
Hospital, 71 Ill. App. 246 (1896).
5 Quoted from County of Henne-
pin v. Brotherhood of Gethsemane,
3 Evergreen Cemetery Assn. v. 27 Minn. 460, 8 N. W. 595 (1881).
[60]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 71
such exemptions. "The word 'public' has two proper
meanings. A thing may be said to be public when owned
by the public and also when its uses are public.”
Topic D. Use of Public Highways
§ 71. Public purposes in highway use.
1
Many public service companies are granted special
privileges in public highways of one sort or another. And
these rights in the streets have often been urged as a rea-
son for holding the user subject to special regulation by
law. But here again the point may be urged that unless
these were public purposes it would be unjustifiable to
give them special rights. Thus although special franchises
may be given to gas companies to lay pipes through public
streets ¹ and to electric companies to string their wires
along public ways 2 these are to be defended only by
showing that the businesses themselves are public in
character. And it is generally true that the use of high-
ways may be given in the furtherance of any public pur-
pose which is not destructive of its use as a highway,
although some uses are so unusual as to constitute an ad-
ditional servitude for which compensation must be made
to the owner of the fee. On the other hand, it would seem
clear that special rights in public highways should not be
given for private enterprises in which the public has no
rights to service even if compensation were provided,
such as advertising stands 3 or private scales. The en-
1 ¹ Indiana.—See Indianapolis v.
Gas Co., 66 Ind. 396 (1879).
Massachusetts.-Boston v. Rich-
ardson, 13 Allen, 160 (1866).
2 New Jersey.-Meyers v. Hudson
County Electric Co., 63 N. J. L.
573, 44 Atl. 713 (1899).
New York.-Palmer v. Larch-
4
mont Electric Co., 158 N. Y. 231,
52 N. E. 1092, 43 L. R. A. 672
(1899).
3 State v. St. Louis, 161 Mo. 371,
61 S. W. 658 (1901).
4 Emerson v. Babcock, 66 Ia. 257,
26 N. W. 656, 55 Am. Rep. 273
(1885).
[61]
§§ 72, 73] PUBLIC SERVICE CORPORATIONS
joyment of highway privileges is therefore again a case of
consequence rather than cause, since these rights may only
be given for the furtherance of a business already deter-
mined to be public in character.
§ 72. River improvements.
The improvement of navigable waters furnishes one of
the most striking illustrations of the use of public high-
ways in enterprises designed to promote the service of the
public. The improvement of rivers in particular has been
the subject of great expenditures.¹ This partial canaliza-
tion is often accomplished by dredging a deeper channel
by mechanical means or scouring it by a jetty system; or
it may be brought about by an opposite system of slack
waters impounded by dams with weirs, and canals with
locks. These works are usually done by the government
itself which, it may be noted, often does not charge toll
for their use. Still it may be done by private companies
specially chartered, in which case the law is plain that
they must permit all proper boats to pass without dis-
crimination upon the payment of reasonable charges.²
§ 73. Booms.
The boom companies which impound logs floated down-
stream for the benefit of their owners are within the same
principles. As was said in one leading case-Cotton v.
1 The following cases among
others relating to river improve-
ments bear out the text:
Illinois. People ex rel. v. Kan-
kakee River Improvement Co., 103
Ill. 491 (1882).
Michigan.-Manistee River Im-
provement Co. v. Lamport, 49
Mich. 442, 13 N. W. 810.
New York.-Matter of Burns,
155, N. Y. 23, 49 N. E. 246 (1898).
Wisconsin.-Yellow River Im-
provement Co. v. Wood County,
81 Wis. 554, 51 N. W. 1004, 17
S. R. A. 92 (1892).
2 See the language in:
United States.-Sands v. Manis-
tee River Improvement Co., 123
U. S. 288, 31 L. ed. 149 (1887).
Texas.-Buffalo Bayou Ship
Channel v. Milby & Dow, 63 Tex.
492, 51 Am. Rep. 668, (1885).
[ 62 ]
MONOPOLY DUE TO LEGAL PRIVILEGE [§§ 74, 75
Mississippi & Rum River Boom Company “The
Mississippi River is, among other things, a public high-
way for the running of logs, and a boom company may
properly be regarded as an improvement of the highway,
an improvement, the purpose and effect of which are to
render the highway more available and valuable for the
running of logs." 2
§ 74. Sluices.
Other minor improvements sometimes utilized in con-
nection with river transportation are sluices, slides, rollers,
or planes by which portages around obstacles are avoided.
There is a case 3 as to one such slide which holds prop-
erly enough that even if the proprietors are permitting
passage to all for a regular toll they are not common
carriers. It is obviously true that they are not carriers
at all because they do not assume possession of what
passes through. Nevertheless it should be clear that
they are in common employment and obliged to let all
use the improved highway at the established tolls.
§ 75. Turnpikes.
}
It has already been made sufficiently obvious that the
turnpikes although owned by corporations conducting
them for profit were always regarded as public highways
over which all might pass by paying the established
122 Minn. 372 (1876).
2 See also to the same effect:
United States.-Boom Co. V.
Patterson, 98 U. S. 403, 25 L. ed.
206 (1878); Patterson v. Mississippi
& R. R. Boom Co., 18 Fed. Cas.
10829 (1875).
Maine.-Lawler v. Baring Boom
Co., 56 Me. 443 (1869).
Minnesota.International Boom
Co. v. Rainy Lake River Boom
Co., 97 Minn. 513, 107 N. W. 735
(1906); Northwestern Improvement
& Boom Co. v. O'Brien, 75 Minn.
335, 77 N. W. 989 (1899).
Pennsylvania.-West Branch
Lumbermen's Exchange v. Fisher,
150 Pa. St. 475, 24 Atl. 735 (1892).
Wisconsin.-Underwood Lumber
Co. v. Pelican Boom Co., 76 Wis.
76, 45 N. W. 15 (1890).
3 Queen v. McFarlane, 7 Can. 216
(1882).
[63]
§ 76]
PUBLIC SERVICE CORPORATIONS
1
tolls. This idea went so far that it was even held jus-
tifiable for the legislature to authorize a turnpike com-
pany to take over existing public highways and operate
them as part of the turnpike system, charging tolls for
passage, and to do this without paying compensation
to the abutting owners as for a change in the character
of the use. Notwithstanding what had been a free high-
way before and was now a turnpike with toll gates, the
court held that it was still a public highway over which
all might pass, and it was for the legislature to judge
whether it was desirable to have the public service main-
tained in this way.2
§ 76. Street railways.
Of course the most obvious illustration of the coinci-
dence of street privileges with public service is that of
street railways with their special rights to occupy the
public streets. And this is seized upon in various cases 3
as the explanation of their obligations to the public.
But this sort of explanation although it contains a cer-
tain truth 4 will not account for the fact that a passenger
1 The following cases among
many others show that turnpikes
were commonly regarded as public
in character:
United States.-Covington & L.
Turnpike Road v. Sandford, 164
U. S. 578, 41 L. ed. 560, 17 Sup. Ct.
198 (1896).
Colorado.-Virginia Cañon Toll
Road Co. v. People, 22 Colo. 429,
45 Pac. 398, 37 L. R. A. 711 (1896).
Kentucky.-Winchester &c. Turn-
pike Road Co. v. Croxton, 98 Ky.
739, 34 S. W. 518, 33 L. R. A. 177
(1898).
New York.—Davis v. Mayor,
14 N. Y. 506, 67 Am. Dec. 186
(1856).
2 The following cases are sufficient
evidence to this rule:
California.—Blood v. McCarty,
112 Cal. 561, 44 Pac. 1025 (1896).
Michigan.-Attorney General v.
Detroit & Erin Plank Road Co., 2
Mich. 138 (1851).
New Hampshire.-State v. Hamp-
ton, 2 N. H. 22 (1819).
Ohio.-Chagrin Falls Co. v. Cane,
2 Oh. St. 419 (1853).
Vermont.-Panton Turnpike Co.
v. Bishop, 11 Vt. 198 (1839).
3 See for one example State v.
Spokane Ry. Co., 19 Wash. 518,
53 Pac. 719, 67 Am. St. Rep. 739
(1898).
4 See § 259, infra.
[64]
MONOPOLY DUE TO LEGAL PRIVILEGE [ §§ 77, 78
1
railway laid across country without use of the streets is
subject to precisely the same law as one laid upon the
highway. As is said in East Omaha Street Railway
Company v. Gondola ¹ by Chief Justice Post in replying
to the contention that the particular railway was not a
common carrier as its right of way was constructed upon
its own private property: "That proposition is not it
seems to us entitled to serious consideration. The de-
fendant by undertaking to transport passengers for hire
between Courtland Beach and the City of Omaha assumed
the relation towards its passengers of a common carrier
and the character of the easement in the right of way is
wholly immaterial.” 2
§ 77. Subways.
Of late years in many of the largest cities subways have
been constructed beneath principal streets. These have
usually been built in theory at least by the municipalities
themselves as special highways and then exclusive rights
for a term of years upon proper compensation are given
to some traction line in analogy to street franchises for
surface railways. In litigation challenging the validity
of this method of constructing the Boston subway, it
was held that although these highways were not free to
all they provided facilities for public passage, and that
the building of the subway for the carriage of such pas-
sengers as pay the regular fare was therefore a proper
use of public credit.ª
§ 78. Wire conduits.
3
A late method of permitting the use of the streets by
347, 44 N. E. 446, 32 L. R. A. 610
(1896).
1 East Omaha Ry Co. v. Godola,
50 Neb. 906, 70 N. W. 491 (1897).
See § 227, infra, for numerous
citations.
3 Prince v. Crocker, 166 Mass.
4 See also City of New York v.
Interborough R. T. Co., 125 N. Y.
App. D. 437, 108 N. Y. Supp. 885
(1908).
5
[65]
§ 79]
PUBLIC SERVICE CORPORATIONS
electrical companies is by authorizing the construction
of a duct large enough to hold the wires of various com-
panies. The electrical subway company chartered for
such a purpose may or may not be given an exclusive
privilege against the construction of other similar enter-
prises; it is sufficient that it has a practical monopoly.
For the purpose of accommodation of various interests
full power of control is often reserved by the govern-
mental authority which grants the rights. And some-
times the obligations of the conduit company to serve
proper applicants are defined in its charter.¹ In the lead-
ing case 2 it was held that such a corporation might prop-
erly be given the right to construct its subway under
public streets although the franchise had no provision
giving the electric companies the right to use them. But
the court held that the business was public in character
and the use proposed to make of the streets was a public
"The corporation is not a mere private one for
personal gain only, but the business in which it is en-
gaged is for the benefit of, and used for the benefit of the
general public, and in which many companies are en-
gaged all over the United States and elsewhere."
would seem plain, therefore, that such a conduit company
is a public service itself and may be obliged to give space
to any applicant company having lawful power to extend
its wires through the city.
one.
§ 79. Pole lines.
It
Upon the analogy of the wire conduit which may either
¹ In Brush Elec. Illuminating Co.
v. Consolidated T. & E. Subway
Co., 15 N. Y. Supp. 81 (1891), it is
held that such explicit provisions
are indispensable. See also Re
Long. Acre Light & P. Co., 117
App. Div. 80, 102 N. Y. Supp. 242
(1907).
2 State ex rel. National Subway
Co. v. St. Louis, 145 Mo. 551, 46
S. W. 981 (1898), overruling State
ex rel. St. Louis Underground Serv-
ice Co. v. Murphy, 134 Mo. 548,
34 S. W. 51 (1896); see also Purnell
v. McLane, 98 Md. 589, 56 Atl. 830
(1904).
[ 66 ]
MONOPOLY DUE TO LEGAL PRIVILEGE
[ § 80
be constructed by an electric company engaged in public
service for its own exclusive use or which may be con-
ducted for the use of other companies subject to the
public service law, is the case of the pole line above
ground. These to be sure are generally erected by an
electric company for its own use; but the other alterna-
tive is not impossible. And the company maintaining a
pole line may have so far undertaken to permit other
companies to string wires on its poles that it will be com-
pelled to do so for subsequent applicants. Montgomery
Light & Water Power Company v. Citizens' Light, Heat
and Power Company,¹ looks that way, holding a fran-
chise provision so providing enforceable.²
§ 80. Constitutional situation as to special privileges.
No attempt will be made to write a treatise upon con-
stitutional law here in a few paragraphs, for it is recog-
nized that one cannot make safe rules for any branch of
the law without the many qualifications which excep-
tional cases dictate. Yet as the subject of constitutional
law touches that of the public services so intimately, it is
fair to suggest what seems from this inquiry the unifying
principle, although in any such generalization which
ignores details, there will necessarily be a certain per cent
of error. First of all it is clear from the cases already cited
that none of these special grants-exclusive franchise, emi-
nent domain, State aid, or highway franchises—can be
extended except for a public purpose. This is the leading
principle in the constitutional law relating to each of
these subjects, although there are some negligible vari-
ations between the various sets of authorities as to what
is a public purpose, due probably to the fact that the
question has not been considered as a whole, rather than
1 147 Ala. 359, 40 So. 981 (1906).
2 See also Kuhn v. Knight. 115
N. Y. App. Div. 837, 101 N. Y.
Supp. 1 (1906).
[67]
§ 80 ]
PUBLIC SERVICE CORPORATIONS
to any inherent differences as to what constitutes a pub-
lic purpose in these various subjects. When it is a ques-
tion of giving State aid in any form to a business enter-
prise privately owned this public purpose must appear.
This does not mean that such State aid may always be
given to the proprietors of all public services. But unless
the public may enjoy the service furthered as of right,
can the aid of its owners truly be said to be a public pur-
pose. There are several variations from this rule in the
authorities; but properly considered they are negligible
in generalization. It is therefore only the business which
is public in character which the State may aid in further-
ance of public purposes. For such public businesses must
give the public the service which the law requires of them.
This means that the public businesses exist independently
of State aid and have material differences from private
businesses which it will be necessary to determine in sub-
sequent chapters. For the present it will be sufficient to
put forward as the working hypothesis that this difference
lies in external conditions. That where there is from any
cause a permanent condition of virtual monopoly, whether
or not the government has had any hand in establishing
that monopoly, the State must take control of the situa-
tion for the protection of the public, and may constitu-
tionally do whatever the situation requires. The differ-
ence between public calling and private calling is thus
inherent in the nature of things. This is because the
conditions which permit competition or produce monopoly
are external matters with which the law must deal as
existing facts.
[68]
CHAPTER III
NATURAL MONOPOLY
§ 90. Natural limitation creates public employment.
Topic A. Restriction of Supply
§ 91. Limitation of the sources of supply.
92. Waterworks.
93. Irrigation systems.
94. Natural gas.
95. Water powers.
Topic B. Scarcity of Sites
§ 96. Scarcity of advantageous sites.
97. Grain elevators.
98. Mechanical conveyors.
99. Cotton presses.
100. Stock yards.
101. Freight sheds.
107. Docks.
103. Basins.
104. Dry docks.
Topic C. Limitation of Time
§ 105. Instant need creates monopoly.
106. Innkeepers.
107. Hackmen.
108. Messenger service.
109. Call boxes.
Topic D. Difficulty of Distribution
§ 110. Inherent limitations upon competition.
111. Gas works.
112. Fuel gas.
113. Electric plants.
114. Electric power.
115. Steam heat.
116. Refrigeration.
117. Public need creates public interest.
[ 69 ]
§§ 90, 91] PUBLIC SERVICE CORPORATIONS
88
§ 90. Natural limitation creates public employment.
It is common knowledge that there are certain busi-
nesses which are so affected with a public interest that
those who undertake them must serve the public properly.
It is thus the character of the business which makes it
public and this character it takes from the conditions
surrounding the business. This is most clear in the case
of those businesses which have by reason of physical
limitation a natural monopoly. In such circumstances
the ordinary laws of competition either practically fail
to operate, or act but feebly. Natural limitation is used
here in its widest sense. It is not confined to those
obvious cases first considered where there is actual re-
striction of supply, as in the case of water supply or nat-
ural gas. It includes those physical limitations in the
character of the supply which involve difficulties in its
distribution, as in the case of gas supply or electric energy.
It includes also those most fundamental limitations of
space and time. It is the scarcity of sites that gives the
grain elevator or the stock yard its practical monopoly.
And it is because of the instant need of the customer that
the telegraph and the ticker are classed as public neces-
sities. As all these limitations are inherent, all of these
instances are cases of natural monopoly. And it is sub-
mitted that since this monopoly is essentially permanent,
the situation requires the stern regulation of coercive law
for those who undertake these services in order to protect
those who must deal with them or go without adequate
service.
Topic A. Restriction of Supply
§ 91. Limitation of the sources of supply.
The case for public service is plainest in those few
utilities where there are natural limitations upon the
sources of supply which are essential to the business.
[70]
NATURAL MONOPOLY
[ § 92
This situation in itself gives some degree of monopoly
to those who control the sources of supply most accessible
to their market in preventing effective competition with
the local service. Thus those who control the most ad-
vantageous watershed have a natural monopoly of the
supply of water in a given district; and so by established
law they must supply all that apply to the extent of their
undertaking. For the same reason those who have pre-
empted the natural gas fields must deal without discrim-
ination with the public which they have assumed to
serve therefrom. It would be going too far doubtless at
the present time to claim that it is accepted law that
natural limitation of a public necessity necessarily makes
its general sale public employment. So long as those
who have virtual monopoly of the anthracite coal fields
are left free to charge what prices they please, the prin-
ciple is in abeyance. And so long as those who have
virtual control of the petroleum oil wells are left free to
discriminate as they please between their customers, the
duty is not recognized. But it may be that in the fullness
of time these now all too powerful purveyors to public
needs will be brought within this law and subjected to
public regulation.
$ 92. Waterworks.
The most conspicious example of an employment which
is public in character by reason of the natural monopoly
which it enjoys is the waterworks.
The established com-
pany possessing as it does almost invariably the water
supply which is most accessible has a natural monopoly
of the local market; indeed for that reason it almost
always has in fact a permanent monopoly, no other com-
pany being able to enter its field upon equal terms. As
one of the earliest needs of a community is a supply of
water for domestic uses, it has been always obvious that
[71]
§ 921
PUBLIC SERVICE CORPORATIONS
this service is a public utility. Accordingly it was con-
ceded almost from the first that the situation demanded
coercive law. The extent to which this law takes the dis-
position of the business out of the discretion of the cor-
poration which provides the supply may be seen in
Haugen v. Albina Water Company,¹ a late illustration.
The defendant company laid a main through the street
upon which the applicant lived, refusing, however, to
supply water to persons living between certain limits.
But Mr. Justice Lord said: "In such case, how can the
defendant, upon the tender of the proper compensation,
refuse to supply water without distinction to one and all
whose property abuts upon the street in which its pipes.
are laid? If the supplying of a city or town with water
is not a public purpose, it is difficult to conceive of any
enterprise intrusted to a private corporation that could
be classed under that head.”2
¹ 21 Oreg. 411, 28 Pac. 244, 14
L. R. A. 424 (1891).
2 In these cases the language used
by the court in declaring that the
supply of water is public in charac-
ter is particularly significant:
United States.-Spring Valley
Water Works v. Schottler, 110 U. S.
347, 28 L. ed. 173, 4 Sup. Ct. 48
(1884); Long Island Water Supp.
Co. v. Brooklyn, 166 U. S. 685, 41
L. ed. 1165, 17 Sup. Ct. 718 (1897);
Spring Valley Water Works v. San
Francisco, 124 Fed. 574 (1903).
Alabama.-Mobile v. Bienville
Water Supply Co., 130 Ala. 379, 30
So. 445, B. & W. 417 (1900).
California.-Spring Valley W. W.
v. San Francisco, 82 Cal. 286, 16
Am. St. Rep. 116 (1890).
Florida.-City of Tampa v. Tam-
pa Water Works Co., 45 Fla. 600, 34
So. 631 (1903).
Georgia.-Freeman v. Macon G.
& W. Co., 126 Ga. 843, 56 S. E. 61
7 L. R. A. (N. S.) 917 (1906).
Illinois.-Carlyle v. Carlyle
Water L. & P. Co., 52 Ill. App. 577
(1893).
Iowa.-Des Moines v. Des
Moines Water Works Co., 95 lowa,
348, 64 N. W. 269 (1895).
Kansas.-Asher v. Hutchinson
Water L. & P. Co., 66 Kans. 496, 71
Pac. 813, 61 L. R. A. 52 (1903).
Kentucky.--Franke v. Paducah
Water Supply Co., 88 Ky. 467, 11
S. W. 432, 718, 4 L. R. A. 265 (1889).
Maine.-Kennebec Water Dis-
trict v. Waterville, 97 Me. 185, 54
Atl. 6, 60 L. R. A. 856 (1902);
Brunswick & T. Water District v.
Maine Water Co., 99 Me. 371, 59
Atl. 537 (1904).
Massachusetts.-Lumbard
Stearns, 4 Cush. 60 (1849).
V.
[72]
NATURAL MONOPOLY
[ § 93
$.93. Irrigation systems.
That irrigation is a service which is public in character
is well established.¹ The obvious explanation of this
would seem to be the natural limitation of the water
supply in those regions where irrigation systems must be
constructed. It should be noted, however, that some of
the courts in those States in their desire to put irrigation
canals under public obligation, at first analogized them to
common carriers. What led them to this comparison was
the idea that the users of water were in effect appropriators,
and the canal companies were carrying the appropriated
water to its owners. But the forced character of this
analogy to common carriage is now recognized. The most
accurate statement of the actual situation is to be found
in the leading case of Slosser v. Salt River Valley Canal
Missouri.-State ex rel. v. Joplin
Water Works Co., 52 Mo. App. 312
(1893).
Montana.-State v. Butte City
Water Co., 18 Mont. 199, 44 Pac.
966, 56 Am. St. Rep. 574 (1896).
Nebraska.-American Water
Works v. State, 46 Neb. 194, 64
N. W. 711, 50 Am. St. Rep. 610, 30
L. R. A. 447 (1895).
New Jersey.-Long Branch Com.
v. Tintern Manor Water Co., 71
N. J. Eq. 790, 62 Atl. 474 (1906).
New York.-Rochester v. Roches-
ter & Lake Ontario Water Co., 189
N. Y. 323, 82 N. E. 154 (1907).
North Carolina.-Griffin v. Golds-
boro Water Co., 122 N. C. 206, 30
S. E. 319, 41 L. R. A. 240 (1898).
Pennsylvania.-Brymer v. Butler
Water Co., 179 Pa. St. 231, 36 Atl.
249, 36 L. R. A. 260 (1897).
Tennessee.—Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841, B. & W.
468 (1897).
Texas. City Water Co. v. State
(Tex. Civ. App.), 33 S. W. 259
(1895).
Vermont.-Re Barre Water Co.,
62 Vt. 27, 20 Atl. 107, 9 L. R. A.
195 (1889).
Washington.-Tacoma Hotel Co.
v. Tacoma L. & Water Co., 3 Wash.
316, 28 Pac. 516, 14 L. R. A. 669, 28
Am. St. Rep. 35 (1891).
1 United States.-Fallbrook Irri-
gation Dist. v. Bradley, 164 U. S.
112, 41 L. ed. 369, 17 Sup. Ct. 56
(1896); San Diego Land & Town
Co. v. National City, 174 U. S. 739,
43 L. ed. 1154, 19 Sup. Ct. 804
(1899); Souther v. San Diego Flume
Co., 121 Fed. 347, 57 C. C. A. 561
(1903); Boise City Irrigation Co. v.
Clark, 131 Fed. 415, 65 C. C. A. 399
(1904).
Arizona.-Gould v. Maricopa Ca-
[73]
§ 94]
PUBLIC SERVICE CORPORATIONS
Company¹ where Mr. Justice Sloan said: "Some of the
courts in the arid States have chosen to regard such
corporations as, in a sense, public carriers. Inasmuch as,
in the nature of things, their ability to supply the public
with water must be limited, and as the consumers under
the law of prior appropriation are not and cannot be upon
the same footing as to their rights to the use of such water,
the statutory term 'public acequia' much more accurately
describes their character and status."
§ 94. Natural gas.
The conditions surrounding the supply of natural gas
present natural monopoly in its most extreme form. The
fields from which such gas can be drawn are extremely
limited, so much so that in the case of any particular
community there will not usually be many sources avail-
able for its supply. This is true although there may be
other fields in the surrounding territory which are not
beyond the possibility of piping, since the product has
such a high value in any community that it would not
usually be commercially advisable to construct expensive
lines to convey it to distant communities instead of selling
nal Co., 8 Ariz. 429, 76 Pac. 598
(1904); Salt River Valley Canal Co.,
v. Nelssen, 10 Ariz. 9, 85 Pac. 117,
12 L. R. A. (N. S.) 711 (1906).
California.-Price v. Riverside
Canal & Irr. Co., 56 Cal. 431
(1880).
Colorado.-Wheeler v. No. Colo.
Irr. Co., 10 Colo. 582, 17 Pac. 487,
3 Am. St. Rep. 603 (1887).
Montana.-Ellinghouse v. Taylor,
19 Mont. 462, 48 Pac. 755 (1897).
Nebraska.-Paxton & H. Irriga-
tion Co. v. Farmers' & M. Irr. Co.,
45 Neb. 884, 64 N. W. 343, 29 L. R.
A. 853, 50 Am. St. Rep. 585 (1895).
Oregon.-Umatilla Irrigation Co.
v. Barnhart, 22 Oreg. 389, 30 Pac.
37 (1892).
Texas.-Moore-Cortes Canal Co.
Idaho.-Wilterding v. Green, 4 v. Gyle, 36 Tex. Civ. App. 442, 82
Ida. 773, 45 Pac. 134 (1896).
Kansas.-Western Irrigation &
L. Co. v. Chapman (Kan.), 59 Pac.
1098 (1899).
S. W. 350 (1904).
Washington.-Prescott Irrigation
Co. v. Flathers, 20 Wash. 454, 55
Pac. 635 (1899).
17 Ariz. 376, 65 Pac. 332 (1901).
[74]
NATURAL MONOPOLY
[ 895
1
it in the most accessible market. These conditions in
themselves make the inclusion of this service within the
class of public services certain; indeed in relation to such
companies the law of public services has been pressed to
the furthest extremes, as will be seen. In one such case,
State ex rel. Wood v. Consumers' Gas Company ¹ in brush-
ing aside the excuses of the company, Mr. Justice Hadley
insisted upon unquestioning obedience to the whole pub-
lic service law. "The principle here announced is not new.
It is as old as the common law itself. It has arisen in a
multitude of cases affecting railroad, navigation, telegraph,
telephone, water, gas, and other like companies, and has
been many times discussed and decided by the courts,
and no statute has been deemed necessary to aid the courts
in holding that when a person or company undertakes to
supply a demand which is affected with a public interest,
it must supply all alike, who are like situated, and not
discriminate in favor of, nor against any."
§ 95. Water powers.
"" 2
It would seem that a power company organized to
impound water and dispose of its flow is in practically the
same position as an irrigation company, so far at least as
this factor of natural monopoly is concerned. Indeed the
¹ 157 Ind. 345, 61 N. E. 674, 55
L. R. A. 245 (1901).
2 From the list of cases which
recognize that the purveying of
natural gas is affected with a public
interest a few are selected for in-
sertion here because their language
is significant:
Indiana. Rushville v. Rushville
Natural Gas Co., 132 Ind. 575,
28 N. E. 853, 15 L. R. A. 321
(1892).
Kansas.-La Harpe v. Elm Town-
ship G. L. F. & P. Co., 69 Kans. 97,
76 Pac. 448 (1904).
New York.-Bloomfield & R. N.
G. Co. v. Richardson, 63 Barb. 437
(1872).
Ohio.-Toledo v. Northwestern
Ohio Natural Gas Co., 5 Oh. C. C.
577 (1890).
Pennsylvania.-Johnson's Ap-
peal, 115 Pa. St. 129, 7 Atl. 167
(1886).
West Virginia.-Charleston Nat.
Gas Co. v. Lowe, 52 W. Va. 662, 44
S. E. 410 (1901).
[75]
§ 951
PUBLIC SERVICE CORPORATIONS
limitation is even more marked, since not only must there
be an ample supply from the stream impounded but a
considerable fall within a short distance. Thus the pos-
session of water power is perhaps the clearest example of
natural monopoly, as people in general are just beginning
to realize now that the most advantageous powers have
been pre-empted by the farseeing few. All that remains
that can be done is to protect the public from the abuse
of this monopoly when the power is offered to the public
for resale by those who have acquired it. The law reg-
ulating the service of the public by those who are engaged
in a business so circumstanced as to be public in character
seems peculiarly necessary for the protection of the in-
terests of the future against the abuse of the grants of the
past. It would seem, therefore, that the law ought to be
in readiness to deal with the disposition of water with the
potentiality of power. In Sammons v. Kearney Power &
Irrigation Company,¹ indeed, we have a case where a
development company had entered into a contract with
one taker of power, agreeing not to sell power to any other
taker intending to compete with the original taker in
the generation of electricity for sale. This contract was
unanimously held void as inconsistent with the public
duty, Commissioner Albert saying: "In the case at bar we
are dealing with an irrigation company-a quasi-public
corporation. It is also a governmental utility. To the
extent of its capacity it is bound to furnish water from its
canal to persons desiring to use it on equal terms and
without discrimination." But in the only other recent
case squarely on the point a contrary view is taken as to
the direct supply of water power. In Minnesota Canal &
Power Company v. Koochching Company² the court held
177 Neb. 580, 110 N. W. 308, 8
L. R. A. (N. S.) 404 (1906).
2 97 Minn. 429, 107 N. W. 405,
5 L. R. A. (N. S.) 638 (1906).
The most of these modern au-
[76]
NATURAL MONOPOLY
[ § 95
that the creation of a water power for sale to mills located
on the premises was not a public use, as a hydro-electric
development is. "Water power from the wheels must be
thorities are concerned with hydro-
electric power development, but it
is not perceived by the writer that
these differ fundamentally in prin-
ciple from the direct sale of water
from the power canal. Massing
these cases together to emphasize
the point, the following cases hold
water power distribution to be
public in character provided that
the proprietors profess as their
principal business the sale of power
to others, not the utilization of it
in their own industries.
United States.-Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C. A.
660 (1908).
Georgia.-Jones v. No. Georgia
Electric Co., 125 Ga. 618, 54 S. E.
85, 6 L. R. A. (N. S.) 122 (1906).
Idaho.-Hollister v. State, 9 Ida.
8, 71 Pac. 541 (1903).
Indiana.-Stoy v. Indiana Hy-
draulic Power Co., 166 Ind. 316, 76
N. E. 1057 (1906).
Montana.-Helena Power Trans-
mission Co. v. Spratt, 35 Mont.
108, 88 Pac. 773, 8 L. R. A. (N. S.)
567 (1907).
New Hampshire.-Rockingham L.
& Power Co. v. Hobbs, 72 N. H.
531, 58 Atl. 46, 66 L. R. A. 581
(1904).
New York.-Re East Canada Cr.
Electric L. & Power Co., 49 N. Y.
Misc. 565, 99 N. Y. Supp. 109
(1905).
Oregon.-Grande Ronde Electric
Co. v. Drake, 46 Orcg. 243, 78 Pac.
1031 (1905).
See contra, holding such power de-
velopment not even public in char-
acter:
Maine.-Brown v. Gerald, 100
Me. 351, 61 Atl. 785, 70 L. R. A.
472, 109 Am. St. Rep. 526 (1905).
Washington.-State ex
ex rel. V.
Superior Court, 42 Wash. 660, 85
Pac. 666, 5 L. R. A. (N. S.) 672
(1906), and cases cited.
The cases holding that those who
utilize their own water power in
their own private business have no
right to enjoy eminent domain, are
plainly distinguishable as there is
no public profession.
Illinois.-Gaylord v.
v. Sanitary
Dist., 204 Ill. 576, 68 N. E. 522, 63
L. R. A. 582, 98 Am. St. Rep. 235
(1903).
Michigan.-Berrien Springs Wa-
ter Power Co. v. Berrien Circuit
Judge, 133 Mich. 48, 94 N. W. 379,
103 Am. St. Rep. 438 (1903).
The same is true in dealing with
the remaining cases relating to
hydro-electric power development;
it should be recognized that the
cases are entirely correct which hold
invalid the grant of legal privileges
to the proprietors of those power
developments which do not profess
to sell to the public indiscriminately.
Sec:
Vermont.-Avery V. Vermont
Electric Co., 75 Vt. 235, 54 Atl. 179,
59 L. R. A. 817, 98 Am. St. Rep. 818
(1902).
Virginia. Fallsburg Power &
Virginia.—Fallsburg
Mfg. Co. v. Alexander, 101 Va. 98,
43 S. E. 194, 61 L. R. A. 129, 99 Am.
St. Rep. 855 (1903).
[77]
§§ 96, 97] PUBLIC SERVICE CORPORATIONS
used at the wheels," said Mr. Justice Elliot for a bare
majority, "and the actual result necessarily is that a very
few individuals will use the power for manufacturing pur-
poses to the exclusion of all others.'
""
Topic B. Scarcity of Sites
§ 96. Scarcity of advantageous sites.
It has already been remarked that the sites upon which
certain services can be conducted to best advantage are
few in number. The necessity of these locations to proper
conduct of the business may be so great that those who
are possessed of these sites may well be said to enjoy a nat-
ural monopoly, since if others venture to establish them-
selves at all at such disadvantage, their competition will
be comparatively ineffectual. At all events those in the
favorable locations could exact higher prices than would
be fair, were it not for the fact that the law intervened.
Of course the importance of the site depends upon the
character of the business. Terminal facilities operated in
connection with railway systems furnish the most strik-
ing examples of this importance of particular sites. To a
lesser extent this is true of those services which although
not dependent upon an exact location are operated with
peculiar advantage in particular areas, such as ware-
houses in business districts.
§ 97. Grain elevators.
The grain elevator furnishes the principal case upon
the subject of the legal regulation of established monopoly.
Any discussion of the foundations of our industrial rela-
tions must give chief place to the case of Munn v. Illinois ¹
1 94 U. S. 113, 24 L. ed. 77 (1876).
Munn v. Illinois is undoubtedly
one of the leading cases in American
constitutional law. It has been
1
cited with approval hundreds of
times, both in the Federal and the
State courts. Sec Rose's Notes on
U.S. Sup. Ct. Rep., vol. 9, pp. 21–55.
[78]
NATURAL MONOPOLY
[ § 97
since it is recognized that this case has within its view all
public duties and all private rights which are established
and respected under our system of government. Upon
the right understanding of this case depends the true
conception of our general theory of the function of State
regulation.
The facts of the case are worth careful examination.
The General Assembly of Illinois in 1871 had passed a
statute which provided a maximum rate beyond which no
person should charge for the storage of grain in public
elevators. The firm of Munn & Scott refused to obey the
act, and accordingly were fined. They appealed the case
from court to court until the Supreme Court of the United
States was reached. The Supreme Court confirmed all the
decisions which had been given below and decided against
the defendant. It is to be noted that the proprietors of
this elevator had no legal privileges whatsoever. The
elevator of Munn & Scott stood upon land bought by
them by private treaty; they had no rights in the public
streets; they had no aid from the public treasury; they
were not even incorporated. Here, then, is a case that
raises the question of virtual monopoly without the com-
plication of legal monopoly.
And as a general problem, Mr. Justice Waite discusses
it: "This brings us to inquire as to the principles upon
which this power of regulation rests, in order that we may
determine what is within and what without its operative
effect. Looking, then, to the common law, from whence
came the right which the constitution protects, we find
that when private property is 'affected with a public
interest, it ceases to be juris privati only.' This was said
by Lord Chief Justice Hale more than two hundred years
ago in his treatise De Portibus Maris, and has been ac-
cepted without objection as an essential element in the
law of property ever since. Property does become clothed
[79]
§ 98]
PUBLIC SERVICE CORPORATIONS
with a public interest when used in a manner to make it
of public consequence, and affect the community at large.
When, therefore, one devotes his property to a use in
which the public has an interest, he, in effect, grants to the
public an interest in that use, and must submit to be con-
trolled by the public for the common good to the extent
of the interest he has thus created. He may withdraw his
grant by discontinuing the use; but so long as he main-
tains the use, he must submit to the control.” 1
Why is it true that in the elevation of grain, monopo-
listic conditions generally prevail? Not by accidental co-
incidence, but by natural limitation. The facts are that
in any given community the plots of ground upon which
this business may be conducted with convenience and
efficiency are few and concentrated. In this case of the
Chicago elevator those are the lots which both border
upon the river and are adjacent to the terminals of the
railroads entering the city. Thus grain elevators because
of the nature of the traffic must be placed within a limited
area, and thereby they have a virtual monopoly over their
business. Their number cannot be indefinitely multiplied,
and competition cannot effectively regulate their business.
And where the regulation of competition ceases to work
efficiently the law must step in.
§ 98. Mechanical conveyors.
It would seem that the same law would apply to any
mechanical conveyor for transferring bulk freight in
transit. In one case of this sort 2 a mechanical conveyor
was operated upon a railroad wharf by a separate com-
pany called the Erie Coal Transfer Company. This was
1 Munn v. Illinois, supra, was
elaborately reaffirmed in Budd v.
New York, 143 U. S. 517, 36 L. ed.
247, 12 Sup. Ct. 468, affirming a
notable opinion in 117 N. Y. 1, 22
N. E. 670. For further discussion
see § 141, infra.
2 Youghiogheny & Ohio Coal Co.
v. Erie Ry. et al., 24 Oh. Cir. Ct.
289 (1902).
[80]
NATURAL MONOPOLY
[ $ 99
constructed upon railway property under a special con-
tract with restrictive conditions. It was held that it
was in itself a public service. As a necessary consequence
a grant to one shipper of coal of the exclusive use of the
conveyor was held illegal as an unlawful discrimination.
Judge Hall had this to say about the conveyor: "It was
the means designed by both parties to be open to all
shippers of that class of freight without discrimination;
and it seems clear that while this arrangement remained
in force, the whole plant, the tracks, the trestles and
foundation which the railroad was bound to furnish,
and the machine to be used and operated by the trans-
fer company under the restrictions and conditions named
in said contract were intended to be and were in fact
devoted to a public use." ¹
§ 99. Cotton presses.
2
It would seem that the case of the cotton press would
be quite analogous to the case of the grain elevator; for
the service is almost as closely connected with transporta-
tion, and is dependent for successful operation upon the
proper location to almost the same extent. However, the
conservative attitude in dealing with this service ap-
parently still prevails. Some twenty-five years ago in
Ladd v. Cotton Press Company, it was held that the
proprietors of a cotton press could discriminate in their
charges between their patrons if they pleased. The court
which decided this, however, recognized that it was deal-
ing with a doubtful case, near to the line separating public
employment from private business. But in the absence
of legislation making it such, this court would not hold it
to be a case of public calling. This conservative attitude
V.
¹ Compare Commonwealth
Corey & Co., 2 Pittsburg, 444 (1863),
denying the public the right to use
a conveyor not put at their dis-
posal by its owners.
2 53 Tex. 172 (1880).
6
[ 81 ]
§ 100 ]
PUBLIC SERVICE CORPORATIONS
toward this whole problem is well presented in the opinion
of Mr. Chief Justice Moore: "The business of warehousing
and compressing cotton is free to every one who wishes to
engage in it. No grant or franchise need be obtained from
the State to authorize those desiring to do so to embark
in this character of business. It is not one of the em-
ployments which the common law declares public. Nor
is it claimed to have been made so by statute. And we
know of no authority, and none has been shown us, for
saying that a business strictly juris privati will become
juris publici merely by reason of its extent. If the mag-
nitude of a particular business is such, and the persons
affected by it so numerous, that the interest of society
demands that the rules and principles applicable to public
employments should be applied to it, this would have to
be done by the legislature if not restrained from doing so
by the constitution before the demand for such an use
could be enforced by the courts."
§ 100. Stock yards.
1
That the public stock yards are to be classed as public
services must now be regarded as settled. In the most
recent case ¹ the modern argument is put in most excellent
form. In holding the Wichita Union Stock Yards Com-
pany subject to State regulation as a public service,
Chief Justice Johnson emphasized the fact that a business
may often be affected with a public interest although it
has no special franchises; for, as he points out, where
monopolistic conditions prevail, public necessity usually
justifies State control. And in the case of stock yards this
monopoly is largely due to position. "Because of the
nature of the business and the railroad facilities, the es-
tablishment of other markets at or near Wichita is
1 Ratcliff v. Wichita Union Stock-
yards Co., 74 Kans. 1, 86 Pac. 150,
6 L. R. A. (N. S.) 834, 118 Am. St.
Rep. 298 (1906).
[82]
NATURAL MONOPOLY
[ §§ 101, 102
impracticable, and hence these stock yards are, and
of necessity will be, the only available place where the
breeders, feeders and dealers of a great scope of country
can conveniently market their live stock. The company
has therefore a practical monopoly of a vast business
affecting thousands of people who are almost obliged to
deal at that market and at the rates which the company
may choose to charge.
§ 101. Freight sheds.
وو
1
For ordinary freight not requiring special facilities for
its handling, the railroad almost always maintains suffi-
cient terminals. However, there are cases where the
provision of freight terminals has been undertaken by
outside parties. Such freight houses like other ware-
houses 2 would seem to be public or private in character
according to whether their proprietors undertake a general
service for all consignees or confine the use of their fa-
cilities to themselves and persons allied with them. Of
this latter sort is the case usually cited to show that this
business is not so public as to justify the grant of eminent
domain to it.³
§ 102. Docks.
It has been established from the earliest times that
docks are at least public in character. Vessels calling
at a port are forced to use the docks that are maintained
there. And there will necessarily be few such docks since
¹In Cotting v. Kansas City
Stockyards Co., 183 U. S. 79, 46
L. ed. 92, 22 Sup. Ct. 30 (1901),
the United State Supreme Court
held that stock yards were doing a
work in which the public had a
modified interest, and must there-
fore be considered as subject to
legislative regulation. In Delaware,
L. & W. Ry. Co. v. Central Stock-
yards Co., 46 N. J. Eq. 280, 19 Atl.
185 (1889), it was intimated that a
court would not of its own motion
feel justified in holding the stock
yards in public service.
2 See § 145, infra.
3 See Memphis Freight Co. v.
Mayor, 4 Cold. 419 (1867).
[83]
§ 102 ]
PUBLIC SERVICE CORPORATIONS
1
the locations which are both upon deep water and near to
the commercial centers will always be limited. All this
necessarily calls for the law requiring public service from
those proprietors who have given it out that their docks.
are public. A modern instance of this is Barrington v.
Commercial Dock Company. In that case Mr. Justice
Gordon founded his opinion that this dock was public upon
certain fundamental propositions: "When wharves belong-
ing to individuals are legally thrown open to the use of the
public, they become affected with a public interest. We
think that in determining the character of the appellant's
wharf, regard should be had to the use to which it has
been devoted rather than its private ownership, and that
upon the facts found the position of the appellant cannot
be maintained. As well might the proprietor of a stage
coach claim the right to discriminate upon the ground that
the property employed in his business was private prop-
erty. The doctrine, if maintained, would tend to promote
and further monopolies which it is not the policy of our law
to favor." 2
¹ 15 Wash. 170, 45 Pac. 748, 33
L. R. A. 116 (1896).
2 Of the various cases showing
that the business of the wharfinger
is public in character the following
are selected because of the fullness
of their reasoning:
United States.-See Transporta-
tion Co. v. Parkersburg, 107 U. S.
691, 27 L. ed. 584, 2 S. Ct. 732
(1882).
District of Columbia.—District of
Columbia v. Johnson, 1 Mackey, 51
(1881).
Florida.-Indian River Stb. Co.
v. East Coast Transportation Co.,
28 Fla. 387, 10 So. 480, 29 Am. St.
Rep. 258 (1891).
Georgia.-Macon, D. & S. R. R.
v. Graham & Ward, 117 Ga. 555, 43
S. E. 1000 (1903).
Louisiana.-Aiken v. Eager, 35
La. Ann. 567 (1883).
New York.-Buffalo v. Delaware,
L. & W. Ry., 39 N. Y. Supp. 4
(1895).
Pennsylvania.-Rogers v. Sto-
phel, 32 Pa. St. 111, 72 Am. Dec.
111 (1858).
The cases which decide that a
wharf is not public unless the pro-
prietors have in some way under-
taken to permit the public in gen-
eral to utilize their facilities are not
inconsistent with the cases just
cited. See:
United States.-Louisville & N.
R. R. Co. v. West Coast Naval
[84]
NATURAL MONOPOLY
[ §§ 103, 104
$103. Basins.
As to artificial basins the case would seem still clearer.
These will be few since they are constructed at great cost;
and in ports where tidal conditions require them the
proprietors have shipmasters at their mercy. Every ele-
ment in the situation conspires to make it a case of virtual
monopoly which must be under State control. Indeed
these basins are usually constructed by the public au-
thorities and opened to all at reasonable rates. What is
said here again applies only to those proprietors who have
opened their basins to many ships and are now refusing
particular ones; for it is admitted that even in a business
which is public in character, the obligation to serve the
public rests only upon those who have professed to serve
the public. Thus a New York decision is to be sup-
ported which holds that a basin to be used principally
by its owners in their private business is not a public
service; and that they consequently cannot properly
exercise the right of eminent domain.
§ 104. Dry docks.
1
2
As there is practically no authority as to the nature
of dry docks, it is impossible to say with any confidence
whether they are public or private in character. Those
constructed by governments very commonly are open
under various regulations for commercial use, and are
conducted as public services therefore to a considerable
extent. As to those docks maintained by private owners,
Stores Co., 198 U. S. 483, 49 L. ed.
1135, 25 Sup. Ct. 745 (1905); Weems
Stb. Co. v. People's Stb. Co., 214
U. S. 345, 53 L. ed. 1024, 29 Sup.
Ct. 661 (1909).
New York.-Alexandria Bay Stb.
Co. v. New York C. & H. R. R. R.
Co., 18 N. Y. App. Div. 527, 45
N. Y. Supp. 1091 (1897); Thousand
Island S. S. Co. v. Visger, 86 N. Y.
App. Div. 129, 83 N. Y. Supp. 325
(1903).
1 Matter of Eureka Basin, 96
N. Y. 42 (1884).
2 In the Vidal Sala, 12 Fed. 207,
the conduct of a dry dock is ex-
plained (1882).
[85]
§ 105]
PUBLIC SERVICE CORPORATIONS
these are not generally opened to the public indiscrimi-
nately, but are used in connection with the private busi-
ness of the proprietors. These may only be used by
special arrangement by owners in general who wish to
do their own work with their own force upon the vessel
when the dock is dry; in such cases there is lacking the
element of public profession. However, when the use
of a dry dock may be had in regular course by those who
apply, it should be decided that it is a public service.
There is an obvious necessity for an accessible location
upon deep water within city limits where the work may
be done with the greatest facility. The need of the ship-
owner is usually so pressing that he cannot make terms.
Usually the cost of such docks is so great that even a very
large port can support but few while very often there will
be but one. All these factors in the situation give to the
established dock that virtual monopoly which is charac-
teristic of public employment. Although the dry dock
has been used as the illustration what has been said
would be equally true of other costly mechanisms for
performing much the same service, such as marine rail-
ways.¹
Topic C. Limitation of Time
§ 105. Instant need creates monopoly.
Another obvious restriction upon effective competition
results from limitation of time. When the need of the
applicant is immediate the person from whom he asks
service has the upper hand. This monopoly may only
be temporary; but it is none the less real. This insistent
need for present service largely explains why the inn-
keeper dealing with the wayfarer and the carrier bargain-
ing with the shipper have always been held subject to
1 As to a floating dry dock, see
Walsh v. New York Floating Dry
Dock Co., 77 N. Y. 448 (1879).
[86]
NATURAL MONOPOLY
[ § 106
1
special law governing their dealings. It is the instant
need also which gives to those agencies established for
the rapid transmission of intelligence the virtual mo-
nopoly which the telegraph and telephone obviously have.
Here again this classification of the authorities cannot as
yet be safely taken as a generalization as two recent cases
will show. In one of these a physician was held not
liable for refusing service to a patient in a desperate con-
dition; in the other an undertaker was held not bound to
take charge of a corpse.2 In both cases the need was ur-
gent, and in the nature of things must always be. But
perhaps in the community at present there are enough
of such men always at hand to preclude the probability
of injury by delay in the average case. Or perhaps the
modern law balks at requiring personal service.
§ 106. Innkeepers.
Innkeeping as has already been shown, has been re-
garded as a public calling from the earliest times. The
same law continues to the present day, even when hotels
are many; for it is still the truth that competition cannot
be relied upon for the protection of the traveler. The
need of the weary wayfarer will always be so immediate
that did the law not interfere in his favor, he would pay
often an exorbitant price rather than be turned back into
the night to seek other accommodations. He has no time
to choose, no opportunity to bargain. The innkeeper
would almost invariably have the upper hand, the trav-
eler for the moment be at the chance of his caprice, prej-
udice, hatred, or greed, did not the law interpose itself.
But the law has interfered from time immemorial.³ The
¹ Hurley v. Eddingfield, 156 Ind.
416, 59 N. E. 1058, 83, Am. St.
Rep. 198 (1901).
2 Brewster v. Miller's Sons Co.,
101 Ky. 368, 41 S. W. 301, 38 L. R.
A. 505 (1897).
³ Lane v. Cotton, 12 Mod. 472
(1701), and see cases cited in § 12,
supra.
[ 87 ]
§ 107 ]
PUBLIC SERVICE CORPORATIONS
public house where food is dispensed and lodging is pro-
vided has always been beyond dispute one of the public
services.1
§ 107. Hackmen.
The hackmen who ply for hire have always been re-
garded as in the employment of the public. Theirs is
really one of the most striking cases of temporary monop-
oly. In the case of any hackman his rival may be around
the corner prepared to make a fair price; and yet as the
traveler cannot bide his time he will often submit to an
extortionate price rather than let a moment pass. For
the time being the monopoly is effective; and, therefore,
the necessity of regulating the business of hackmen upon
the principles of public service law has long been appar-
ent. At times hackmen who are hampered by the en-
forcement of such regulations complain that they are
unreasonable. In Fonsler v. Atlantic City,2 for instance,
it was contended that the ordinance of the city that re-
1 The following cases bring out
the many factors which have caused
the innkeeper to be held at the serv-
ice of the public in all ages:
California.-Willis v. McMahan,
89 Cal. 156, 26 Pac. 649 (1891).
Kentucky.-Kesten
Hilde-
brand, 9 B. Mon. 72, 48 Am. Dec.
416 (1848).
V.
Maine.-Atwater v. Sawyer, 76
Me. 539, 49 Am. Rep. 634 (1884).
New Hampshire.—Markham v.
Brown, 8 N. H. 523, 31 Am. Dec.
209 (1837).
New York.-Adams v. Freeman,
12 Johns. 408, 7 Am. Dec. 327
(1815).
North Carolina.-State v. Steele,
106 N. C. 766, 11 S. E. 478, 8
L. R. A. 516, 19 Am. St. Rep. 573
(1890).
Pennsylvania.—Com. v. Mitchell,
2 Parsons, 431, 1 Phila. 63 (1850).
Tennessee.-Dickerson v. Rogers,
4 Humph. 179, 40 Am. Dec. 642
(1843).
Vermont.-State v. Stone, 6 Vt.
295 (1834).
England.-Thompson v. Lacy,
3 B. & Ald. 283 (1820); Rex v.
Ivens, 7 Car. & P. 213 (1835); Haw-
thorn v. Hammond, 1 Car. & K.
404 (1844); Rex v. Collins, Palmer,
367, 373, 2 Rolle, 345 (1623); Rex
v. Smith, 65 J. P. 521 (1901);
Lamond v. Richard, 1 Q. B. 541
(1897).
270 N. J. L. 125, 56 Atl. 119
(1903).
[88]
NATURAL MONOPOLY
[ § 108
quired every hackman to take anyone who applied at the
established rates unless the sign "engaged" was dis-
played in good faith was unjustifiable. But Mr. Justice
Garretson said, upon certiorari to dispose of a conviction
under this ordinance: "We are unable to see that any of
the regulations imposed by this ordinance are unreason-
able. There is nothing unreasonable in requiring the
driver of an omnibus, permitted by the city's license to
run his vehicle on the public street, to carry all persons
applying to him for passage and legally tendering the
fare, as common carriers are required to do." 1
§ 108. Messenger service.
It is a disputed question whether the city companies
which furnish messenger boys on call are engaged in
common carriage, but the cases seem to show that they
are at least engaged in public employment. The need
of those who employ messengers is generally immediate
and the established company has usually virtual monop-
oly. This business of furnishing boys is publicly solicited
by them; and the company have a regular basis for in-
stalling call boxes in congested districts. All that can be
said with certainty as to the profession of such companies
is that they undertake to provide their public with mes-
sengers. It seems to be the better opinion that this reg-
1 That hackmen are at the service
of the public is generally recognized,
see:
Iowa.-Bonce v. Dubuque St.
Ry. Co., 53 Iowa, 278 (1880), 5
N. W. 177, 36 Am. Rep. 221 (1880).
New York.-Brown v. New York
Central & H. R. R. R. Co., 75 Hun,
355 (1894), 27 N. Y. Supp. 69.
On the other hand, liverymen who
make no pretense of serving the pub-
lic can bargain as they please.
See:
Iowa.-Burlington v. Unterkir-
cher, 99 Iowa, 401, 68 N. W. 795
(1896).
Massachusetts.-Copeland v. Dra-
per, 157 Mass. 558, 32 N. E. 944
(1893).
Missouri.-Trout v. Watkins L.
& V. Co. (Mo. App.) 130 S. W. 136
(1910).
New Jersey.-Atlantic City v.
Dehn, 69 N. J. L. 233, 54 Atl. 220
(1903).
[89]
§§ 109, 110] PUBLIC SERVICE CORPORATIONS
ular service is not common carriage.¹ But it is not al-
together impossible that in particular instances messenger
companies might specially undertake as common car-
riers.2
109. Call boxes.
In connection with messenger service it is common for
the corporation conducting the business to install call
boxes upon the premises of their patrons. If this is done
as a special favor for particular patrons it would be diffi-
cult to show that this is a part of the regular service pro-
fessed. But if it is generally done for all customers in
the same classification, the company could not refuse to
install these boxes for an applicant of the same sort unless
it had some personal defense. One other possible case of
this class is that of the alarm service which for many years
now has been maintained in large cities. The need of this
protection by those engaged in certain lines of business is
obvious. Moreover, the companies who install the call
boxes must ask special privileges from the community to
install its wiring system. It would seem, therefore, that
this service came within cases as to messenger call just
discussed.
3
Topic D. Difficulty of Distribution
§ 110. Inherent limitations upon competition.
Another natural limitation upon competition results
from the character of the product. If the physical char-
¹ District of Columbia.-White v.
Postal Telegraph Co., 25 App. D. C.
364 (1905).
Massachusetts.-Haskell v. Bos-
ton Dist. Messenger Co., 190 Mass.
189, 76 N. E. 215, 2 L. R. A. (N. S.)
1091, 112 Am. St. Rep. 324 (1906).
New York.-Hirsch v. Am. Dist.
Telegraph Co., 98 N. Y. Supp. 371,
112 N. Y. App. Div. 265 (1906).
2 Maryland.-American Dist. Tel.
Co. v. Walker, 72 Md. 454, 20 Atl.
1, 20 Am. St. Rep. 479 (1890).
New York.-See Sandford V.
Am. Dist. Tel. Co., 13 Misc. 88, 34
N. Y. Supp. 144 (1895), and Gilman
v. Postal Telegraph Co., 48 Misc.
372, 95 N. Y. Supp. 564 (1905).
3 Holmes v. Union Telegraph &
T. Co., 16 N. Y. Supp. 563 (1891).
[90]
NATURAL MONOPOLY
[ § 111
acteristics of the product are such that it can only have
a local distribution the barrier against outside competi-
tion may fairly be said to be natural. Thus those who
supply water through pipes are in public employment,
while those who bottle water are not. And what after
all is that element in the situation which makes the sale
of gas a public employment while the vending of candles
is a private business? Is it not this-that the box of
candles may be sent from any factory into any market,
a condition which preserves virtual competition in every
market, while a thousand cubic feet of gas can only be
got from the pipes of the local company, which gives it
control of the situation. When the market is thus lim-
ited by the nature of the product it may fairly be said
that the monopoly of the local company is natural.
§ 111. Gas works.
When the first works were constructed to furnish gas
through mains laid in the public streets to various house-
holders in the community at large, new conditions in the
supply of illumination were created. In the first cases,
as has been noted, the change in the conditions of supply
whereby the local company had gained a virtual monop-
oly was not appreciated, and it was said in the earlier
American cases that the proprietor of a gas works was
free as the owner of any factory to sell his product as it
should please him best.2 The honor of being the first to
1
1 These cases still have an histor-
ical interest although they have long
since become obsolete even in the
jurisdictions which decided them.
See § 31, supra, for discussion of
them.
Connecticut.-McCune v. Nor-
wich Gas Co., 30 Conn. 521, 79 Am.
Dec. 278 (1862).
Massachusetts.-Com. v. Lowell
Gas Light Co., 12 Allen, 75
(1866).
New Jersey.-Paterson Gas Light
Co. v. Brady, 3 Dutch. 245, 72 Am.
Dec. 360 (1858).
New York.-New York C. & H.
R. R. v. Metropolitan Gas Light
Co., 63 N. Y. 326 (1875).
2 This evolution in England is to
be traced in legislation. The earlier
[91]
§ 111]
PUBLIC SERVICE CORPORATIONS
point out the essential change wrought by these new
conditions belongs to Mr. Justice Smith who held in
Shepard v. Milwaukee Gas Light Company,¹ that the
gas company was bound to sell its gas to every citizen of
Milwaukee upon compliance with such regulations only
as the company might rightfully impose. "Corporations
of this kind," he said, "are not like trading or manufac-
turing corporations whose productions may be transported
from market to market throughout the world. Its manu-
facture depends upon the consumption of the immediate
neighborhood for its profit and success, and upon no other
place. From the nature of the article, the objects of the
company, their relations to the community, and from all
the considerations before mentioned, it is to me apparent
that the company is not at all analogous to an ordinary
manufacturing or trading corporation." 2
gas companies act provided simply
that these companies might make
such arrangments as they pleased
for the sale of gas to consumers. It
was not until comparatively re-
cently that the gas legislation was
expanded to provide that these com-
panies must serve all who made
proper application.
16 Wis. 539, 70 Am. Dec. 479
(1858).
2 From the great number of
modern decisions which hold gas
companies subject to the obligation
of the public service law, the fol-
lowing are selected in which the
general principle is well discussed:
United States.-Gibbs v. Con-
solidated Gas Co., 130 U. S. 396, 32
L. ed. 979, 9 Sup. Ct. 553 (1889).
Illinois. People's Gas Light &
C. Co. v. Hale, 94 Ill. App. 406
(1900).
Indiana.-Portland Gas Co. v.
State ex rel. Keen, 135 Ind. 54, 34
N. E. 818, 21 L. R. A. 639 (1893).
Kansas. In re Pryor, 55 Kan.
724, 41 Pac. 958, 29 L. R. A. 398, 49
Am. St. Rep. 280 (1895).
Kentucky.-Owensboro Gas Light
Co. v. Hildebrand, 19 Ky. L. R.
983, 42 S. W. 351 (1897).
Louisiana.—New Orleans Gas
Light Co. v. Paulding, 12 Rob. 378
(1845).
Maine.-Brunswick Gas Light
Co. v. United Gas, etc., Co., 85 Me.
532, 27 Atl. 525, 35 Am. St. Rep.
385 (1893).
Maryland.-Gas Light Co. of
Baltimore v. Colliday, 25 Md. 1
(1866).
Massachusetts.-Opinion of Jus-
tices, 150 Mass. 592, 24 N. E. 1084
(1890).
Michigan.-Williams v. Mut. Gas
Co., 52 Mich. 499, 18 N. W. 236,
50 Am. Rep. 266 (1884).
[92]
NATURAL MONOPOLY
[ § 112
§ 112. Fuel gas.
The same principles apply to the supply of gas for
fuel. The only practical question seems to be whether
the gas company has generally undertaken the supply
of gas for fuel; it being apparently universally held that
such supply is public in character. In a recent case 1
where the public character of this supply was questioned,
the Supreme Court of West Virginia in an elaborate
opinion pointed out the fundamental causes which make
this service a public one, Judge Poffenbarger saying:
"Heating being an agent or principle indispensable to
the health, comfort and convenience of every inhabitant
of our cities, we do not see why, through the medium of
natural gas, it may not be as much a public service to
furnish it to the citizens, as to furnish water. It is in-
quired, why do not municipalities also purchase coal
mines and issue their bonds therefor, and embark in the
business of mining and selling coal to private consumers?
An obvious reply is that coal and other fuel may be carried
to the consumer by the ordinary channels of transpor-
tation, at a comparatively moderate expense, while in
conveying natural gas, streets must be opened, pipes
laid, works erected, fixtures and machinery purchased,
and other expenses incurred, beyond the enterprise and
capital of an individual." 2
Missouri.-Vanderberg v. Kan-
sas City Gas Co., 126 Mo. App.
600, 105 S. W. 17 (1907).
New Jersey.-Public Service
Corp. v. American Lighting Co.,
67 N. J. Eq. 122, 57 Atl. 482 (1904).
Ohio. Zanesville v. Gas Light
Co., 47 Ohio St. 1, 23 N. E. 55
(1889).
Oregon.—Mackin v. Portland Gas
Co., 38 Oreg. 120, 61 Pac. 134, 62
Pac. 20, 49 L. R. A. 596 (1900).
Wisconsin.-Madison v.
-Madison v. Madi-
son Gas & Electric Co., 129 Wis.
249, 108 N. W. 65, 8 L. R. A.
(N. S.) 529, 116 Am. St. Rep. 944
(1906).
1 Charleston Natural Gas Co. v.
Lowe, 52 W. Va. 662, 44 S. E. 410
(1901).
2 In the following cases also the
supply of gas for fuel is treated as
public in character.
California.—People ex rel. v. Los
[ 93 ]
§ 113 ]
PUBLIC SERVICE CORPORATIONS
§ 113. Electric plants.
In the present generation a new method of illumination
by electricity was devised which involved distribution
from a central plant by a system of wires radiating
through the localities served a very expensive plant to
install. The essential features of the electric business
were so like the main conditions in the gas business with
its generating plant and pipe system that it was obvious
from the outset that the same law of public service was to
be enforced in this instance. Indeed, it is striking that in
no adjudicated case has an electric light company ever
squarely denied that there rested upon it the primary
obligation to serve all. All this is most significant; for it
shows that the law of public service has now such general
acceptation that in any new instance similar in character
it will be applied by the courts without hesitation. One
of the latest cases as to electric lighting is Snell v. Clin-
ton Electric Light Company,¹ where the company refused
to furnish electric light to an applicant upon the same
terms as to others. In his holding for this applicant
Mr. Justice Carter stated the fundamental propositions
involved in this way: "There is no statute regulating the
manner under which electric light companies shall do
business in this State. They are therefore subject only
to the common law, and such regulations as may be im-
Angeles Independent Gas Co., 150
Cal. 557, 89 Pac. 108 (1907).
Illinois.-People's Gas Light &
Coke Co. v. Hale, 94 Ill. App. 406
(1900).
Indiana.-Rushville v. Rushville
Natural Gas Co., 132 Ind. 575, 28
N. E. 853, 15 L. R. A. 321 (1892).
Kentucky.-Nairin v. Kentucky
Heating Co., 27 Ky. L. R. 551, 86
S. W. 676 (1900).
Louisiana.-State v. New Orleans
Gas Co., 108 La. 67, 32 So. 179
(1902).
Ohio.-Toledo v. North Western
Ohio Natural Gas Co., 6 Oh. N. P.
531 (1898).
Pennsylvania.-Hoehle v. Alle-
gheny Heating Co., 5 Pa. Sup. Ct.
21 (1897).
¹ Snell v. Clinton Electric Light
Co., 196 Ill. 626, 63 N. E. 1082, 89
Am. St. Rep. 341, 58 L. R. A. 284
(1902).
[94]
NATURAL MONOPOLY
[ § 113
posed by the municipality which grants them privileges.
Appellee, being organized to do a business affected with a
public interest, must treat all customers fairly and with-
out unjust discrimination. Both reason and authority
deny to a corporation clothed with such rights and powers
and bearing such a relation to the public the power to
arbitrarily fix the price at which it will furnish light to
those who desire to use it. The company was bound
to serve all its patrons alike; it could impose on the
plaintiff in error no greater charge than it exacted of
others." 1
¹ In the following cases the recog-
nized public obligations of electric
companies are discussed:
United States.-Capital City
Light & Fuel Co. v. Tallahasse, 186
U. S. 401, 46 L. ed. 1219, 22 Sup.
Ct. 866 (1902).
Florida.—Jacksonville Electric
Light Co. v. Jacksonville, 36 Fla.
229, 18 So. 677, 30 L. R. A. 540, 51
Am. St. Rep. 24 (1895).
Georgia.-Jones v. North Georgia
Electric Co., 125 Ga. 618, 54 S. E.
85, 6 L. R. A. (N. S.) 122 (1906).
Indiana.—Beck v. Indianapolis
Light & P. Co., 36 Ind. App. 600, 76
N. E. 312 (1905).
Kentucky.-Owensboro Gas Light
Co. v. Hildebrand, 19 Ky. L. Rep.
983, 42 S. W. 351 (1897).
Louisiana.-Strohmeyer v. Con-
sumers' Electric Co., 111 La. 506,
35 So. 723 (1904).
Maine.-Edison U. M. Co. v.
Farmington Electric L. & P. Co.,
S2 Me. 464, 19 Atl. 859 (1890).
Massachusetts.-Weld v. Gas &
Electric Light Consumers, 197
Mass. 556, 84 N. E. 101 (1908).
Minnesota.—Minnesota Co. &
Power Co. v. Koochiching, 97 Minn.
429, 107 N. W. 405, 5 L. R. A.
(N. S.) 638 (1906), semble.
Missouri.-State ex rel. v. Allen,
178 Mo. 555, 77 S. W. 868 (1903).
New Hampshire.-American L. &
T. Co. v. General Electric Co., 71
N. H. 192, 51 Atl. 660 (1901).
New York.-Armour Packing Co.
v. Edison El. Co., 115 N. Y. App.
Div. 51, 100 N. Y. Supp. 605
(1906).
Ohio.-Cincinnati R. R. v. Bowl-
ing Green, 57 Ohio St. 336, 49 N. E.
121, 41 L. R. A. 422 (1897).
Pennsylvania.—Mercur v. Media
Electric Light Co., 19 Pa. Sup. Ct.
519 (1902).
Vermont.-Avery
V.
Vermont
Electric Co., 75 Vt. 235, 54 Atl. 179,
59 L. R. A. 817, 98 Am. St. Rep.
818 (1903), semble.
Virginia.—Fallsburg Power &
Mfg. Co. v. Alexander, 101 Va. 98,
43 S. E. 194, 61 L. R. A. 129, 99
Am. St. Rep. 855 (1903), semble.
Wisconsin.-Madison v. Madi-
son Gas & Electric Co., 129 Wis.
249, 108 N. W. 65, 8 L. R. A. (N. S.)
529, 116 Am. St. Rep. 944 (1906).
[95]
§ 114]
PUBLIC SERVICE CORPORATIONS
§ 114. Electric power.
The supply of electric energy for power purposes, how-
ever, has not yet been universally recognized as a public
service, although it seems that there can be no real doubt
as to the final outcome. It may be admitted that those
cases which hold that electric power development is not
a public employment when its proprietors do not under-
take to serve the public indiscriminately are correct.¹
Distinguishing these cases thus, the cases which deny
that the supply of electricity for power is public in char-
acter are in a distinct minority.2 Even in these jurisdic-
tions the general supply of electricity for illumination is
held to be a public employment as a matter of course.
And where the company in question is supplying elec-
tricity for both illumination and power the whole enter-
prise is considered of a public nature. It is indeed diffi-
cult to find any really essential differences between the
supply of electricity for power and its sale for illumina-
tion. Where, therefore, there is openly made a sufficient
profession of public service, the supply of electricity for
power would seem to be as plain a case of public employ-
ment as the supply of electricity for illumination; and so
the majority of the cases dealing with the problem now
hold. The actual point upon which the cases are di-
3
1 Vermont.-Avery v. Vermont
Electric Co., 75 Vt. 235, 54 Atl.
179, 59 L. R. A. 817, 98 Am. St.
Rep. 818 (1902).
Virginia. Fallsburg Power &
Mfg. Co. v. Alexander, 101 Va. 98,
43 S. W. 194, 61 L. R. A. 129, 99
Am. St. Rep. 855 (1903).
2 Maine.-Brown v. Gerald, 100
Me. 351, 61 Atl. 785, 70 L. R. A.
472 (1905).
Washington.-State ex rel. v. Su-
perior Court, 42 Wash. 660, 85 Pac.
666, and cases cited (1906).
3 United States.-Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C.
A. 660 (1908).
Georgia.-Jones v. No. Georgia
Electric Co., 125 Ga. 618, 54 S.
E. 85, 6 L. R. A. (N. S.) 122 (1906).
Idaho.-Hollister v. State, 9 Ida.
8, 71 Pac. 541 (1903).
Indiana.-Stoy v. Indiana Hy-
draulic Power Co., 166 Ind. 316, 76
N. E. 1057 (1906).
[96]
NATURAL MONOPOLY
[ § 115
vided just at present is whether eminent domain is jus-
tified for such a purpose; but this really involves the
character of the business. It is readily seen as is said in
several of these cases that one of the essential and con-
stituent obligations upon the part of the individual who
attempts to exercise the power of eminent domain under
these acts is that he shall serve all of the public fairly and
without discrimination. Without such obligation of pub-
lic service the legislation granting eminent domain would
be unconstitutional.¹
§ 115. Steam heat.
As matters now stand all but an infinitesimal per cent
of steam heating is done by private plants, almost always
by the owner of the heated premises. There are some
instances where steam is sold for heating purposes from
near-by boilers, but as this is by special contract, without
any holding out to serve the public in general, even this is
not an instance of public business. There remain the
Minnesota.-Minnesota C. &
Power Co. v. Koochching Co., 97
Minn. 429, 107 N. W. 405, 5 L. R. A.
(N. S.) 638 (1906).
Montana.-Helena Power Trans-
mission Co. v. Spratt, 35 Mont.
108, 88 Pac. 773, 8 L. R. A. (N. S.)
567 (1907).
New Hampshire. - Rockingham
Rockingham
County L., H. & P. Co. v. Hobbs, 72
N. H. 531, 58 Atl. 46, 66 L. R. A.
581 (1904).
New York. Re East Canada
Creek Electric Light & Power Co.,
49 N. Y. Misc. 565, 99 N. Y. Supp.
109 (1905).
Oregon.-Grande Ronde El. Co.
v. Drake, 46 Oreg. 243, 78 Pac. 1031
(1905).
South Carolina.-McKeekin v.
Central Carolina Power Co., 80
S. C. 512, 61 S. E. 1020 (1908).
Utah.-Salt Lake City v. Salt
Lake City W. & E. Power Co., 24
Utah, 249, 67 Pac. 672, 61 L. R. A.
648 (1902), semble.
1 This is seen to be the issue in the
cases on both sides of this question.
See particularly:
Georgia.-Jones v. North Georgia
Electric Co., 125 Ga. 618, 54 S. E.
85, 6 L. R. A. (N. S.) 122 (1906), the
court being convinced of this pub-
lic obligation.
Maine.-Brown v. Gerald, 100
Me. 351, 61 Atl. 785, 70 L. R. A.
472 (1905), the court believing that
there was no public service in-
volved.
7
[97]
§§ 116, 117] PUBLIC SERVICE CORPORATIONS
cases (as yet very few for with present methods the loss
in transmission is too large) of companies organized to
supply steam through pipes placed in the public streets
with the design of selling it to abutting owners. The very
fact that they ask the use of the streets for this purpose
is announcement enough of their public profession pro-
vided that the business is public in character by reason
of the nature of the service. But although the com-
pany need not fear outside competition,¹ the consumer
at present can perhaps better supply himself.
§ 116. Refrigeration.
Almost exactly the same argument may be repeated in
regard to the modern method of supplying refrigeration
by ice machines driving refrigerating fluids through pipes.
Most of these plants are wholly devoted to the private
business of their owners, with some considerable amount
of incidental private sale. However, there are cases of
refrigeration plants in market districts with their pipes
laid through the streets. It would seem that with the
profession thus established, the business becomes public.
It seems public in character because again the nature
of the service makes outside competition practically im-
possible. And the small dealer who finds his rivals served
by such a company while he is himself refused may not
improbably have a remedy at law.
§ 117. Public need creates public interest.
The most prominent thing in this chapter is perhaps
1 Just what the status of these
companies is, it is difficult to affirm.
The only case dealing in any way
with the matter seems to be Evans
v. Boston Heating Co., 157 Mass.
37, 31 N. E. 698 (1892), which
really leaves their position undeter-
mined.
2 In Matter of Rhinehart, 93 N. Y.
App. Div. 410, 87 N. Y. Supp. 789
(1904), it was held indispensable to
the legality of the use of streets for
refrigeration pipes that the pro-
prietor of the service should have
assumed the obligation to serve all
applicants in their district.
[98]
NATURAL MONOPOLY
[ § 117
the attention paid to the public need in determining
whether a business is so public in character that those
who undertake it must serve the public in accordance
with their profession. Where there are natural restric-
tions particularly it behooves the State to see to it that
those who are exploiting them upon a public basis should
live up to their public profession, so that each member
of the public may have his needs supplied in accordance
with his requirements, so far as may be, at a reasonable
price. This extraordinary activity of the law in behalf
of the individual is, however, confined to necessary serv-
ices. The law has little concern with the monopolization
of unessential things. It subjects a "scenic railway" at
an amusement park to no exceptional liabilities.¹ It
leaves a circular railway built primarily to view the Niag-
ara Gorge 2 outside the pale of State aid. And it leaves
skating rinks³ and theaters to deal as they please with
their public, and exclude whomsoever they choose.
1 In Meisner v. Detroit, B. I. &
W. Ferry Co., 154 Mich. 545, 118
N. W. 14 (1908), it was said in pass-
ing that theaters, circuses, race
tracks, private parks, and the like
are, in the absence of statutes regu-
lating the business, private enter-
prises, under the control of private
persons, who may license the per-
sons they will admit, and refuse ad-
mission to others, and the right
4
given to enter such places is a mere
license which may be revoked.
2 Matter of Niagara Falls & W.
Ry. Co., 108 N. Y. 375, 15 N. E.
429 (1888).
3 Tombler v. Kælling, 60 Ark.
62, 28 S. W. 795, 27 L. R. A. 502, 46
Am. St. Rep. 146 (1894).
4 Purcell v. Daly, 19 Abb. N. C.
301 (1886).
[99] OF
CHAPTER IV
VIRTUAL MONOPOLY
§ 120. Economic limitations create public employment.
Topic A. Cost of the Plant
§ 121. Financial limitations upon potential competition.
122. Canals.
123. Channels.
124. Railroads.
125. Railway terminals.
126. Railway bridges.
127. Car ferries.
128. Railway tunnels.
129. Union railways.
130. Belt lines.
Topic B. Service on a Large Scale
§ 131. Disadvantages of the individual.
132. Signal service.
133. Telegraph lines.
134. Wireless telegraph.
135. Submarine cables.
136. Telephone systems.
137. Ticker service.
138. Associated press.
Topic C. Inadequacy of Available Substitutes
§ 139. Insufficient substitutes for service.
140. Public stores.
141. Grain storage.
142. Tobacco warehouses.
143. Cold storage.
144. Safe deposit vaults.
145. Market places.
146. Stock exchanges.
Topic D. Subordinate Services
§ 147. Dependent position.
148. Port lighters.
[100]
VIRTUAL MONOPOLY
[ §§ 120, 121
§ 149. Floating elevators.
150. Tugboats.
151. Switching engines.
152. Parlor cars.
153. Sleeping cars.
154. Refrigerator cars.
155. Tank cars.
156. Necessary regulation of virtual monoploy.
§ 120. Economic limitations create public employment.
The common fact in all the instances of public employ-
ment which have been discussed thus far is virtual monop-
oly. It matters not by what conditions this situation is
established. The conditions which may produce virtual
monopoly are various; and some of them will suffice alone.
The effect of various natural limitations, such as available
sources of supply, restricted opportunities of access, lim-
ited time at disposal and difficulties in distribution have
just been discussed. But of almost equal importance are
other factors producing true economic monopoly by de-
terring effectual competition, such as the cost of the plant,
the large scale upon which the business is done, the ab-
sence of effectual substitutes and the dependent position
of the particular service. These elements in the general
situation have doubtless already been taken into account
unconsciously, but they are of such importance that they
deserve full discussion. With all the factors which may
produce virtual monopoly in mind it will be evident
enough that in this general situation however established
there is real danger to society calling for regulation by
the State.
Topic A. Cost of the Plant
§ 121. Financial limitations upon potential competition.
One usual characteristic of a public employment is the
relatively large cost of the plant. In very many instances
this runs high into millions which must be invested before
[ 101 ]
§ 122 ] PUBLIC SERVICE CORPORATIONS
the service can be begun. This necessity of getting
together so much capital limits fundamentally the amount
of such construction. Canals and railroads furnish the
chief examples of this. It would take perhaps twenty
billion dollars to duplicate the present facilities for trans-
portation; and it is, therefore, practically inconceivable
that it will be done. Moreover, in most public services
there is still another reason why capital is kept from
investment in a competing service. As has been seen
these are mostly local services and the capital invested
must be sunk at the risk of failure in this one market.
For example, an investment made in a gas works or an
electric plant cannot be withdrawn; nor can the product be
sold elsewhere. Thus to the enormous cost as a deterrent
to competition is added the imminent risk of total loss in
a desperate competition in which one must perish.
§ 122. Canals.
It is obvious that the great cost of a canal system as
compared with the infinitesimal use which the individual
boatman makes of the system puts the user entirely at the
mercy of the company operating the existing canal. This
is indeed characteristic of all highway use to which canal
maintenance is most closely allied. As was said in a
leading case of a Wisconsin canal, "The canal of the
defendant is a public highway, which all persons upon
complying with all lawful requirements may navigate and
use at their pleasure."2
¹
1 McArthur v. Green Bay & M.
Canal Co., 34 Wis. 139 (1874).
2 That canals are subject to the
law governing public service is
shown by the following cases among
others:
United States.-United States v.
Ormsbee, 74 Fed. 207 (1896).
Georgia. Savannah & O. Canal
Co. v. Shuman, 91 Ga. 400, 17 S. E.
937, 44 Am. St. Rep. 43 (1893).
Louisiana.-Sheldon v. New Or-
leans Canal Co., 9 Rob. (La.) 360
(1844)..
New Jersey.-Stewart v. Lehigh
Valley R. R., 38 N. J. Law, 505
(1875).
New York. -Pennsylvania Coal
[ 102 ]
VIRTUAL MONOPOLY
[ §§ 123, 124
123. Channels.
What has been said of canals is even more true of chan-
nels. Necessary as these are for access to ports, the de-
mands of the community so usually anticipate commercial
practicability that the government is usually called upon
to dredge them; and when completed the merchants are
unwilling that their commerce should be hampered by
the imposition of any considerable dues for their use.
Hence it is unusual to find these channels constructed
by private corporations. But whenever they are so con-
structed there can be no doubt that the public must
be given passage upon reasonable terms.
This was
squarely decided in Buffalo Bayou Ship Channel v. Milby
& Dow,¹ where it was held that the channel company
could not turn back a vessel upon the ground that the
tugboat towing her owed tolls, Mr. Justice Walker saying:
"This water channel or cut, owned and controlled by the
defendant under its charter from the State was a public
highway for vessels beyond question; and as such the
owners of all vessels had a right to regard and to treat it,
using it at their pleasure, subject to the lawful conditions
imposed upon them therefor. A toll bridge, built in pur-
suance of an act of the legislature, is a public highway;
manifestly, this ship channel was so too."2
$124. Railroads.
The common example of the cost of construction as the
deterrent influence is the railway system. The fact must,
however, be reckoned with that, notwithstanding this great
Co. v. Delaware & Hudson Canal
Co., 31 N. Y. 91 (1865).
Pennsylvania.-Commonwealth
v. Delaware Canal Co., 43 Pa. St.
295 (1862).
England.-Case v. Midland Ry.
Co., 27 Beav. 247 (1859).
163 Tex. 492, 51 Am. Rep. 668
(1885).
2 See Manistee River Improve-
ment Co. v. Lamport, 49 Mich.
442, 13 N. W. 810 (1882).
[103]
§ 125 1
:
PUBLIC SERVICE CORPORATIONS
first cost, the construction of competing railroad systems
has in the past been not uncommon. But experience has
proved the folly of such investments. The potential ca-
pacity of an existing railroad is but seldom reached, so
that the new railroad must fight for a traffic essential
to both of them. There follows a death struggle, as the
history of rate wars shows. The result of all this is that
to-day even if the bodies granting franchises generally
believed still that such duplication of plant was wise under
such circumstances, the first cost accompanied by the
recognized risk would largely prevent competition by
parallel lines in most instances. The established railroad
along its own route has therefore a virtual monopoly not
sufficiently restrained even by potential competition.
In this situation regulation by law is inevitable. Since
the "Granger Cases" at all events it has been accepted
law that, without any of those charter provisions with
which the public was wont in earlier days to safeguard it-
self in granting franchises, the railroads are so affected by
the public interest that they are subject to exacting regu-
lation of their service.2
§ 125. Railway terminals.
In many of the larger cities there are union stations
owned by separate terminal corporations which are used
in common by several railway companies which enter the
city. These stations and their yards are constructed at
great expense upon advantageous sites, almost always with
¹ Peik v. Chicago N. W. Ry., 94
U. S. 164, 24 L. ed. 97 (1876); Chi-
cago, B. & Q. R. R. Co. v. Iowa, 94
U. S. 155, 24 L. ed. 94 (1876); Chi-
cago, M. & St. P. R. R. Co. v. Ack-
ley, 94 U. S. 179, 24 L. ed. 99 (1876);
Railroad Commission Cases, 116
U. S. 307, 29 L. ed. 636, 6 S.
Ct. 334, 348, 349, 388, 391, 1191
(1886).
2 It is needless to collect at this
point the innumerable decisions
since that time which have held the
railway systems subject to public
regulation, as this forms in large
part the subject-matter of this book.
[104]
VIRTUAL MONOPOLY
[ § 125
1
the aid of eminent domain and very often with other
special privileges. Naturally enough the question has
already been raised whether these terminal corporations
can refuse to admit other railroads which later apply for
terminal facilities. There are already a few cases in which
that issue has been squarely involved, State v. Jackson-
ville Terminal Company ¹ being perhaps the most promi-
nent. In that case a mandamus was granted to enforce
an order of the railroad commissioners of Florida directing
the terminal company to permit the use of the station by
the applicant railway at a reasonable compensation to be
fixed by the commission. The court decided that the
commission had constitutional power to issue this order,
Mr. Justice Carter saying of the position of such a ter-
minal company: "By undertaking to permit the use of
this property by, and to furnish facilities for, one or more
railroad common carriers it dedicates it to a use that is
essentially public; and, to the extent that the public has
an interest in that use, it must submit to be controlled by
the public for the common good. The legislature may,
therefore, for the common good, require it to admit all
railroad common carriers, to the extent of its capacity,
which the public interest may demand, and to limit the
charges for the uses and privileges of its terminal to
reasonable compensation." 2
141 Fla. 363, 377, 27 So. 221,
225 (1899).
See also Union Ry. of Balt. v.
Canton R. R. Co., 105 Md. 12,
65 Atl. 409 (1907).
2 In the following cases the public
character of railway terminals was
recognized:
Illinois. Terre Haute & I. R. R.
Co. v. Peoria & P. Ry. Co., 182 Ill.
501, 55 N. E. 377 (1899) semble.
Massachusetts.-Sears v. Street
Commrs., 180 Mass. 274, 62 N. E.
397, 62 L. R. A. 144 (1902).
Michigan.-Fort Street Union
Depot Co. v. Morton, 83 Mich. 265,
47 N. W. 228 (1890).
Missouri.-Kansas City & N. C.
R. R. Co. v. Baker, 183 Mo. 312,
82 S. W. 85 (1904).
New Hampshire.-Concord & M.
R. R. Co. v. Boston & M. R. R.
Co., 67 N. H. 464, 41 Atl. 263
(1893).
[105]
$ 126 1 PUBLIC SERVICE CORPORATIONS
§ 126. Railway bridges.
1
Railway bridges are sometimes constructed by inde-
pendent companies with the design of selling running
rights to various railways. Usually in the charters of
such bridge companies it is expressly provided that they
shall grant the trains of all railways that make proper
application running rights over the bridge upon the pay-
ment of reasonable tolls. But whenever a bridge company
gains legal privileges by the acceptance of such a charter
as it generally does, it should be clear whether its charter
is mandatory or permissive that the bridge is put at the
service of railways in general. As the United States
Supreme Court ¹ recently said of a bridge company whose
charter was explicit (after remarking that there was no
question in the particular case of the reasonableness of the
compensation tendered by the railway applying, or the
capacity of the bridge for the service asked). "The con-
struction of the bridge, doing away as it did with the
delay and annoyance of transportation across the river
by ferry, added largely not merely to the value of the
entire property, but also to the great convenience of the
traveling and shipping public. The Act giving authority
for a large issue of bonds thereby insuring the immediate
construction of the bridge was accompanied by a proviso
that upon reasonable compensation the use of the bridge
should be accorded to other companies. Availing itself
of the privileges conferred, the company accepted the
Tennessee.-Ryan v. Terminal
Co., 102 Tenn. 111, 50 S. W. 744, 45
L. R. A. 303 (1899).
But unless the proprietors of the
union station have undertaken gen-
erally to admit all railroads to its
use they cannot be compelled to do so.
Illinois.-Terre Haute & I. R. R.
Co. v. Peoria & P. V. Ry. Co., 167
Ill. 296, 47 N. E. 513 (1897).
V.
Virginia.-Commonwealth
Norfolk & W. Ry. Co. (Va.), 68
S. E. 351 (1910).
1 Union Pacific R. R. Co. v.
Mason City & F. D. R. R. Co.,
199 U. S. 160, 50 L. ed. 134, 26 Sup.
Ct. 19 (1905). But see Evansville
& H. Traction Co. v. Henderson
Bridge, 134 Fed. 973 (1904).
[106]
VIRTUAL MONOPOLY
[ § 127
amendment in its entirety and is bound by its terms as
fully as though it had embodied them in a contract."
§ 127. Car ferries.
3
Car ferries are obviously like railway bridges. It would
not be impossible to have such a ferry operated for the
transportation of the cars of various companies, and it
would then undoubtedly be considered a public service.
But as a practical matter the investment is so relatively
small for a railroad company that it would almost always
operate its own ferry and then it would not be obliged to
take the cars of other companies. The character of the
business of these car ferries has been the subject of some
litigation. The nature of this service was fully described
in one of the earlier cases 2 in language which has since
been quoted with approval by the United States Supreme
Court. "The boat of the defendants is provided with
two railroad tracks, which prevent the entrance or egress
of ordinary vehicles, and also of foot passengers, except as
they are transported in cars which run upon the railroad
tracks. The boat is exclusively used for the transporta-
tion of railroad cars, in connection only with the arrival
of trains. It is impossible to transport ordinary vehicles
upon the boat, it is impracticable to transport foot pas-
sengers, except as they are conveyed to the boat in cars.
1 In the following cases, bridges bridge companies are not common
which have offered their facilities carriers.
to railways in general were properly
considered to be public in charac-
ter:
United States.-Canada Southern
Ry. v. International Bridge Co., 8
Fed. 190 (1881).
Missouri.-Southern Ill. & Mo.
Bridge Co. v. Stone, 174 Mo. 1,
73 S. W. 453, 63 L. R. A. 301
(1902).
Although in public service such
United States.-Kentucky & I.
Bridge Co. v. Louisville & N. Ry.,
37 Fed. 567 (1889).
Texas.-Southern Pacific Rail-
way Co. v. Patterson, 7 Tex. Civ.
App. 451, 27 S. W. 194 (1894).
2 Mayor v. New England Trans-
fer Co., 14 Blatch. 159 (1887).
3 St. Clair County v. Interstate
Transfer Co., 192 U. S. 454, 48 L.
cd. 518, 24 Sup. Ct. 300 (1904).
[107]
§§ 128, 129] PUBLIC SERVICE CORPORATIONS
The whole arrangement of boat and docks is for the
ingress and egress of railroad cars, and not for the accom-
modation of anything else."
§ 128. Railway tunnels.
The case of a railway tunnel constructed and main-
tained by an independent company through which the
trains of various railways are hauled is more uncommon
although not absolutely unknown. The situation is en-
tirely analogous to those instances which have just been
discussed,¹ and if in any way the tunnel company has
assumed the obligation of serving various railways it
should not be allowed upon general principles to dis-
criminate between them. And it would then be true of
such tunnels also that although in public service they
would not be common carriers of the contents of the
trains which pass through even if the trains are hauled
by peculiar locomotives furnished by the tunnel company,
since the possession of the goods or the control of passen-
gers within the trains would not pass from the railways.2
§ 129. Union railways..
A union railway constructed to enable various railways
connecting with it to run their trains (usually solely
freight trains) through to various terminal points, is prac-
tically in the same position as the union station. In a
recent case ³ the Union Railway of Baltimore chartered
to provide running rights to the railways entering the
city refused to make connections with the Canton Rail-
1 In one of the few cases which
have been found involving such
tunnel companies they are treated
as being subject to exactly the same
law as bridge companies. St. Clair
Tunnel Co. v. Powers, 138 Fed. 262
(1905).
2 See also justifying eminent do-
main for tunnel companies, Mc-
Ewan v. Pennsylvania, N. J. &
N. Y. Ry. Co., 72 N. J. L. 419, 60
Atl. 1130 (1905).
3 Union Railway of Baltimore v.
Canton R. R. Co., 105 Md. 12, 65
Atl. 409 (1907).
[108]
VIRTUAL MONOPOLY
[ § 130
road. But the court held that such service was exactly
within the duties resting upon the Union Railway in
accordance with its charter. And as to the validity of such
charter provisions, even in the form of subsequent amend-
ments, Mr. Justice Jones said: "The grant therein, there-
fore, to other corporations of the right to use its railroad
was not an incongruous provision, but one similar to, and
consistent with, the object of the incorporation. It can
hardly be questioned that the Legislature could incor-
porate a railroad company for the express purpose of
building a railroad for the use of other railroads in getting
their freight and the articles of traffic to tide water in
conditions that would make it expedient or desirable to
do so. There can be no difference in principle between a
railroad company incorporated solely for such use and one
incorporated with that as one of its purposes.'
§ 130. Belt lines.
991
It is also not uncommon for the handling of traffic at
large commercial centers, or at important junction points,
to find a short line of railway operated by a company
with a distinct charter connecting the various lines of
railroad converging at this point. These are variously
named: "Connecting railways," "junction railways,'
"belt lines," or "terminal railways," all denoting the
special character of the service that is rendered. These
transfer companies very commonly conduct the trans-
portation themselves, furnishing the motive power, and
¹ In the following cases the public
character of such union railways is
recognized:
United States.-Interstate S. Y.
Co. v. Union Ry. Co., 99 Fed. 472
(1900).
""
gins Ferry Co., 208 Mo. 622, 106
S. W. 1005 (1907).
New Jersey.-Nat. Docks Ry.
Co. v. Central R. R. Co., 32 N. J.
Eq. 755 (1880).
Pennsylvania.-Windsor Glass
Missouri.-State ex rel. v. Wig-. Co. v. Carnegie Co., 204 Pa. St.
459, 54 Atl. 329 (1903).
•
[109]
§ 130 ] PUBLIC SERVICE CORPORATIONS
the train crew as well; and therein they differ from the
various railways just discussed which generally undertake
no more than to provide trackage or at most haulage.
It is plainly true of such belt lines as serve their public
indiscriminately in accordance with their profession that
they are in a public employment and subject to public
regulation. Thus in Norfolk & Portsmouth Belt Line
Railroad v. Commonwealth,¹ upon an appeal of the com-
pany from a judgment of the State Corporation Commis-
sion reducing the price for an incidental switching service
to twenty-five cents per car, the Supreme Court of Ap-
peals of Virginia held this switching line to be a public
service corporation and subject to the jurisdiction of the
Commission. "If the power of the Commission is lim-
ited merely to fixing the rate for carriage, and it is with-
out authority so to regulate that service as to render it
effective, it is obviously wholly inefficacious with respect
to this large class of consignees and shippers. Upon the
first assignment of error, therefore, the court is of opin-
ion that the service in question is cognate to and so in-
timately connected with the public service involved in the
carriage and delivery of freight by the railroad company
to patrons along its route as to constitute a part of such
service, and, consequently, is subject to governmental
control." 2
¹ 103 Va. 289, 49 S. E. 39 (1904).
2 The following cases bring out
the public nature of belt lines:
United States.-United States v.
Sioux City Stockyards Co., 162
Fed. 556 (1908).
Georgia.-Dixon v. Cent. of Ga.
Ry., 110 Ga. 173, 35 S. E. 369
(1900).
Kansas.-Larabee Flour Mills v.
Missouri Pacific Ry. Co., 74 Kans.
808, 88 Pac. 72 (1906).
Mississippi.-Yazoo & M. V.
R. R. Co. v. Searles, 85 Miss. 520,
37 So. 939, 68 L. R. A. 715 (1904).
Nebraska.-State ex rel. v. Union
Stockyards Co., 81 Neb. 67, 115
N. W. 627 (1908).
Whether this switching service is
common carriage in the strict sense
so as to make the transfering com-
pany liable as an insurer of all the
property or persons within its con-
trol or disposition would seem to be
[110]
VIRTUAL MONOPOLY
[ §§ 131, 132
Topic B. Service on a Large Scale
§ 131. Disadvantages of the individual.
Another characteristic of public employment is that
the applicant who wishes an individual service of the
kind rendered by the established company is almost
always at great disadvantage relatively in supplying him-
self. This is due largely to the obvious economies of op-
eration upon a large scale. Two leading cases in the Su-
preme Court of the United States bring this out. A grain
elevator can handle grain at a fraction of what manual
transfer would cost. Again a stock yard can care for a
cow at a fraction of what a shipper would have to pay
for the keep of a single cow elsewhere. Were it not for
the coercive law of public service it is only too probable
that these economies from service on a large scale would
be largely retained by the serving company and not given
to the public served.
§ 132. Signal service.
Many examples might be put of the disadvantages to
which an individual would be put if he were refused serv-
ice, by reason of the much greater cost to him of making
arrangements to serve himself, for this is an element in
the situation creating public employment which is very
generally present. But it is proposed in this topic to
confine the discussion to one class of callings where this
factor is peculiarly prominent in modern times. For
a question of fact. It is probable
that more often than not such
switching is conducted without that
assumption of actual possession
which is necessary to make out
carriage strictly, but certainly where
the connecting railway enters into
the transportation scheme as a con-
necting carrier it must be held liable
as such. On this point compare the
facts and the decisions of the two
following cases, both of which seem
to be correct on their facts, although
apparently oppositely decided: Swift
& Co. v. Ronan, 103 Ill. App.
475 (1902)-common carriage not
found-with Fleming v. Kansas
City Suburban Belt R. Co., 89 Mo.
App. 129 (1901)-common
riage held established.
car-
[111]
§ 133]
PUBLIC SERVICE CORPORATIONS
the rapid intercommunication of intelligence there are
widespread systems now established which it would be
beyond the power of any individual to duplicate if he
would; while for a small fee a message can be sent to any
part of the world. These transmission systems had their
beginnings about a century ago in the semaphore lines
established across the country between certain important
European cities. These continued to grow until they were
altogether displaced by the discovery of the telegraph.
There do not appear to have been any common-law de-
cisions as to the character of this business as far as its
commercial side had been developed. It is quite con-
ceivable that a similar problem may arise in connection
with submarine signaling, now in its experimental stage.
§ 133. Telegraph lines.
The telegraph by the middle of the last century was
rapidly becoming a commonplace of everyday commerce.
That without regulation by law the telegraph companies
could dictate their own terms was obvious from the first
in view of the general situation. And casting about
for law to control them an analogy was forced between
the transmission of a message and the carriage of a pack-
age, because it was well recognized that in common car-
riage reasonable service was obligatory. Almost from
the earliest times, therefore, the telegraph service has
been held to be a public employment. It is difficult to
select one case for quotation among so many at one's
disposal, but perhaps the various elements combining to
make the telegraph service public in character are best
set forth in short compass in a recent North Carolina
case ¹ where Mr. Justice Douglass said: "A telegraph com-
pany is a quasi-public corporation-private in the owner-
1
¹ Green v. Telegraph Co., 136
N. C. 489, 49 S. E. 165, 67 L.
R. A. 985, 103 Am. St. Rep. 955
(1904).
[112]
VIRTUAL MONOPOLY
[ § 133
ship of its stock, but public in the nature of its duties.
It has all the powers of a private corporation, such as a
separate legal existence, perpetual succession and free-
dom from individual liability; and possesses also in addi-
tion thereto the extraordinary privileges which under
our Constitution can be exercised only by such corpora-
tions as are organized for a public purpose, and then only
when necessary for the proper fulfillment of such purpose.
Among the extraordinary privileges enjoyed by such cor-
porations is the condemnation of private property, which
can never be taken for a private purpose. The accept-
ance of such privileges at once fixes upon the corpora-
tion the indelible impress of a public use. A telegraph
company is essentially public in its duties. Without
such public duties there would be neither reason for its
creation nor excuse for its continued existence. In fact,
being the complement of the postal service, it is one of
those great public agencies so important in its nature and
far reaching in its application that some of our wisest
statesmen have deemed its continued ownership in pri-
vate hands a menace to public interests." 1
1 The cases involving the prop-
osition that telegraph companies
are in public service are practically
innumerable; from this mass a se-
lection is made in which the gen-
eral principle is stated particularly
well:
United States.-Western Union
Telegraph Co. v. Call Publishing
Co., 181 U. S. 92, 45 L. ed. 765, 21
S. Ct. 561 (1901).
Alabama.-New Orleans, M. & T.
R. R. Co. v. Southern & A. Tele-
graph Co., 53 Ala. 211 (1875).
Arkansas.-Western Union Tele-
graph Co. v. Short, 53 Ark. 434, 14
S. W. 649 (1890).
Florida.-Western Union Tele-
graph Co. v. Hyer Bros., 22 Fla.
637, 1 So. 129, 1 Am. St. Rep. 222
(1886).
Georgia.-Dunn v. Western
Union Telegraph Co., 2 Ga. App.
845 (1907).
Illinois.-Tyler & Co. v. Western
Union Telegraph Co., 60 Ill. 421,
14 Am. Rep. 38 (1871).
Indiana.-Western Union Tele-
graph Co. v. Harding, 103 Ind. 505,
3 N. E. 172 (1885).
Maine.-Bartlett v. Western
Union Telegraph Co., 62 Me. 209,
16 Am. Rep. 437 (1873).
Massachusetts.-Pierce v. Drew,
136 Mass. 75, 49 Am. Rep. 7 (1883).
Michigan.-Western Union Tele-
8
[113]
§ 134]
PUBLIC SERVICE CORPORATIONS
§ 134. Wireless telegraph.
Within the last few years the transmission of electrical
signals between distant points without the use of wire
has become practicable by the use of a powerful appara-
tus for sending and a delicate mechanism for receiving.
Although the construction of a wireless telegraph system
will be much less expensive than the usual plant required,
still the fact will remain that when a sender brings a
message to a wireless company, the service he asks is
infinitesimal in comparison with the whole business of the
company. And there can be no doubt whatever that
whole law of ordinary telegraphing will be applied to
wireless telegraphy.¹ "This action against a wireless tel-
egraph company which first makes its appearance in this
graph Co. v. Carew, 15 Mich. 525
(1867).
Mississippi.-Western Union
Telegraph Co. v. Allen, 66 Miss.
549, 6 So. 461 (1889).
Missouri.-Reed v. Western
Union Telegraph Co., 135 Mo. 661,
37 S. W. 904, 34 L. R. A. 492, 58
Am. St. Rep. 609 (1896).
Nebraska.-Pacific Telegraph Co.
v. Underwood, 37 Neb. 315, 55
N. W. 1057, 40 Am. St. Rep. 490
(1893).
New Jersey.-State v. American
Com. News Co., 43 N. J. L. 381
(1881).
New York.-De Rutte v. New
York, A. & B. Electric Magnetic
Telegraph Co., 1 Daly, 547 (1866).
Pennsylvania.—New York & W.
Printing Telegraph Co. v. Dryburg,
35 Pa. St. 298, 78 Am. Dec. 338
(1860).
South Carolina.-Pinckney Bros.
v. Western Union Telegraph Co.,
19 S. C. 71, 45 Am. Rep. 765
(1882).
South Dakota.-Kirby v. Western
Union Telegraph Co., 4 So. Dak.
439, 57 N. W. 199 (1892).
Texas.-Western Union Tele-
graph Co. v. Hamilton, 36 Tex. Civ.
App. 300, 81 S. W. 1052 (1904).
Utah.-Wertz v. Western Union
Telegraph Co., 7 Utah, 446, 27 Pac.
172, 13 L. R. A. 510 (1891).
Vermont.-Gillis v. Western
Union Telegraph Co., 61 Vt. 461, 17
Atl. 736, 4 L. R. A. 611, 15 Am. St.
Rep. 917 (1889).
Virginia.-Western Union Tele-
graph Co. v. Reynolds Bros., 77 Va.
173, 46 Am. Rep. 715 (1883).
1 There is already a case in the
books against one such wireless tele-
graph company, not involving, how-
ever, its duties to one wishing to
send a message. Copland v. Amer-
ican DeForest Wireless Telegraph
Co., 136 N. C. 11, 48 S. E. 501
(1904).
[114]
VIRTUAL MONOPOLY
[ §§ 135, 136
court proves the oft repeated observation that every
phase of life, the customs, pursuits and progress of a
people, soon or late, are photographed in the records of
its courts as flies are preserved in amber and as the rays
of the sun are imprisoned in the diamond."
§ 135. Submarine cables.
1
The argument of the necessary dependence of the per-
son served upon getting the service asked is far greater
in respect to the submarine cable; for alternative methods
of transmitting intelligence are disproportionately dis-
advantageous across the sea than across the land. As
the first cable was laid many years after the first tele-
graph was established the law was prepared to treat the
cable like the telegraph, as indeed it is in the essential
respect of the transmission of symbols to a distance by
means of electricity. This unity of the problem under
discussion is thus set forth by Mr. Justice Henshaw
in Davis v. Pacific Telephone & Telegraph Company
where the general rule of considering telegraphs and
telephones as interchangeable terms in statutory provi-
sions was followed. "In the very early history of the
telegraph it is a matter of common knowledge that there
was an actual recordation of letters under the Morse
code; that soon passed away and the telegraph operator
of to-day receives by sound upon a principle no different
from that which obtains in the telephone. Again in the
case of submarine cables neither sound nor writing is
always employed, but the varied deflections of an in-
dicator within sight of the receiver serve the like purpose.
The words, therefore, cannot be limited to their etymo-
logical meaning."
§ 136. Telephone systems.
The best example of public duty based upon the virtual
1 127 Cal. 312, 59 Pac. 698 (1899).
[115]
§ 136 ]
PUBLIC SERVICE CORPORATIONS
monopoly of the established plant is the telephone com-
pany. In the case of the telephone, duplicate services
must be provided. From an economic point of view the
duplication of plant that is necessary to make competi-
tion possible in this public utility is sheer waste, with-
out compensating advantages. From a business point of
view this fact is a most effective deterrent; when one of
these public services is established in a neighborhood, it is
infrequent that men will be found to invest their money
in the construction of another plant. Therefore, the best
discussion of the nature of public calling is to be found
in the cases concerning the telephone. And since almost
all of these are common-law decisions, they disclose the
essential tests by which public calling is established.
From the many excellent decisions discussing the pub-
lic nature of the telephone system, State v. Nebraska Tele-
phone Company 1 is selected because of its full working
out of the problem. In that case the company refused to
comply with the relator's request for a telephone, giving
various excuses which the court held invalid; and there-
upon a mandamus was granted ordering the telephone
company to fulfill its public duty to the applicant. Upon
the general issue Mr. Justice Reese said: "While it is
true, as claimed by respondent, that it has been organized
under the general corporation laws of the State, and in
some matters has no higher or greater right than an ordi-
nary corporation, yet it is also true that it has assumed to
act in a capacity which is to a great extent public, and
has, 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 telephone, and which new de-
mand or necessity in commerce the respondent proposes
¹ 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404 (1885).
[116]
VIRTUAL MONOPOLY
[ § 136
satisfying. It is also true that the respondent is not pos-
sessed of any special privileges under the statutes of the
State, and that it is not under quite so heavy obligations,
legally, to the public as it would be, had it been favored
in that way, but we fail to see just how that fact relieves
it. While there is no law giving it a monopoly of the bus-
iness in the territory covered by its wires, yet it must be
apparent to all that the mere fact of this territory being
covered by the 'plant' of respondent, from the very na-
ture and character of its business gives it a monopoly of
the business which it transacts. No two companies will
try to cover this same territory. The demands of the com-
merce of the present day makes the telephone a necessity.
All the people upon complying with the reasonable rules
and demands of the owners of the commodity-patented
as it is should have the benefits of this new commerce.
The wires of respondent pass the office of the relator.
Its posts are planted in the street in front of his door.
In the very nature of things no other wires or posts will
be placed there while those of respondent remain. The
relator never can be supplied with this new element of
commerce so necessary in the prosecution of all kinds of
business, unless supplied by the respondent."
1 The language used in the tele-
phone cases gives the best idea of
the prevailing conditions which de-
termine public employment at com-
mon law.
United States.-Chesapeake &
Potomac Telephone Co. v. Man-
ning, 186 U. S. 238, 46 L. ed. 1144,
22 Sup. Ct. 881 (1902); State v.
Bell Telephone Co., 23 Fed. 539
(1885); Delaware & A. Telegraph
& Telephone Co. v. State of Dela-
ware, 50 Fed. 677, 2 C. C. A. 1
(1892); Cumberland Telephone &
99 1
T. Co. v. Kelly, 160 Fed. 316, 87
C. C. A. 268 (1908).
Illinois.-Chicago Telephone Co.
v. Illinois Mfgrs. Assn., 106 Ill. App.
54 (1903).
Indiana.-Central Union Tele-
phone Co. v. State ex rel. Falley,
118 Ind. 194, 19 N. E. 604, 10 Am.
St. Rep. 114 (1888).
Transfer
Kentucky.-Louisville
Co. v. American District Telegraph
Co., 1 Ky. L. J. 144 (1881).
Maryland. Chesapeake & Po-
tomac Telephone Co. v. Baltimore
[117]
§ 137]
PUBLIC SERVICE CORPORATIONS
$137. Ticker service.
The ticker service by which corporations organized for
the purpose distribute by electrical devices quotations
gathered at the exchanges is a striking example of a busi-
ness given its public character by reason of its virtual
monopoly. In an early New York case,¹ it was held that
defendants are a public corporation under obligation to
render their services impartially and without discrimi-
nation to all persons who comply with their reasonable
rules. And as has recently been held in an Indiana case, 2
when a general telegraph company buys the continuous
quotations of a board of trade, and supplies them at a
fixed price to such persons as desire them for such a
& Ohio Telegraph Co., 66 Md. 399,
7 Atl. 809, 59 Am. Rep. 167, B. &
W. 183 (1886).
Missouri.-State v. Kinlock Tele-
phone Co., 93 Mo. App. 349, 67 S.
W. 684 (1902).
Nebraska.-Nebraska Telephone
Co. v. State, 55 Neb. 627, 76 N. W.
171, 45 L. R. A. 113 (1898).
New Jersey.-Duke v. Central
N. J. Telephone Co., 53 N. J. L. 341,
21 Atl. 460 (1891).
New York.-People v. Hudson
R. Telephone Co., 19 Abb. N. C.
466 (1887).
Ohio.-State v. Bell Telephone
Co., 36 Oh. St. 296, 38 Am. Rep.
583 (1880).
North Carolina.-Godwin v. Caro-
lina Tel. & Tel. Co., 136 N. C. 158,
48 S. E. 636 (1904).
Pennsylvania.-Bell Telephone
Co. v. Commonwealth, 3 Atl. 825
(1886).
South Carolina.-State v. Citi-
zens' Telephone Co., 61 S. C. 83, 39
S. E. 257, 85 Am. St. Rep. 870
(1901).
Rhode Island.—Gardner v. Provi-
dence Telephone Co., 23 R. I. 312,
49 Atl. 1004, 50 Atl. 1014, 55 L. R.
A. 113 (1901).
Vermont.-Commercial Union
Telegraph Co. v. New Eng. Tele-
phone Co., 61 Vt. 241, 17 Atl. 1071,
5 L. R. A. 161, 15 Am. St. Rep. 893
(1888).
But see American Rapid Tele-
graph Co. v. Connecticut Telephone
Co., 49 Conn. 352 (1881), which,
however, must now be regarded as
obsolete.
¹ Shepard v. Gold & Stock Tele-
graph Co., 38 Hun, 338 (1885).
See Smith v. Gold & S. Tel. Co.,
42 Hun, 454 (1886).
See also Davis v. Electric Report-
ing Co., 19 Weekly N. C. 567 (1887).
2 Western Union Telegraph Co.
v. State ex rel. Hammond Elevator
Co., 165 Ind. 492, 76 N. E. 100, 3
L. R. A. (N. S.) 153 (1905).
See also Board of Trade v.
Christie Grain & Stock Co., 198
U. S. 236, 49 L. ed. 1031, 25 Sup.
Ct. 637 (1905).
[118]
VIRTUAL MONOPOLY
[ § 138
length of time that they become necessary to the success-
ful conduct of business in the products covered by the
quotations, it cannot, while continuing this business, re-
fuse to supply them to anyone able to pay for them and
willing to be governed by its reasonable rules and regu-
lations in reference thereto.
§ 138. Associated press.
Whether an established monopoly is real or fictitious,
natural or accidental, is the principal question. A funda-
mental case that comes to mind at this point is Inter-
Ocean Publishing Company v. Associated Press.¹ The
plaintiff newspaper had regularly taken the news of the
defendant bureau. One of the by-laws of the Associated
Press forbade members from buying news of any other
agency, notwithstanding which the plaintiff took specials
of the Sun Publishing Association. Thereupon the As-
sociated Press enforced its by-law against the plaintiff,
which was the basis of the suit. In the Supreme Court of
Illinois Mr. Justice Phillips held the by-law bad upon gen-
eral principles. "The organization of such a method of
gathering information and news from so wide an extent of
territory as is done by the appellee corporation, and the dis-
semination of that news, requires the expenditure of vast
sums of money. It reaches out to the various parts of the
United States, where its agents gather news which is wired
to it, and through it such news is received by the various
important newspapers of the country. Scarcely any news-
paper could organize and conduct the means of gathering
the information that is centered in an association of the
character of the appellee because of the enormous expense,
and no paper could be regarded as a newspaper of the
day unless it had access to and published the reports from
¹ 184 Ill. 438, 56 N. E. 822, 48
L. R. A. 568, 75 Am. St. Rep. 184
(1900).
[119]
§ 139]
PUBLIC SERVICE CORPORATIONS
such an association as appellee. For news gathered from
all parts of the country the various newspapers are almost
solely dependent on such an association, and if they are
prohibited from publishing it or its use is refused to them,
their character as newspapers is destroyed and they would
soon become practically worthless publications. The
Associated Press, from the time of its organization and
establishment in business, sold its news reports to various
newspapers who became members, and the publication
of that news became of vast importance to the public,
so that public interest is attached to the dissemination
of that news. The manner in which that corporation
has used its franchise has charged its business with a pub-
lic interest. It has devoted its property to a public
use, and has, in effect, granted to the public such an in-
terest in its use that it must submit to be controlled by
the public for the common good, to the extent of the in-
terest it has thus created in the public in its private
property." 1
Topic C. Inadequacy of Available Substitutes
§ 139. Insufficient substitutes for service.
It is of course rare that the possibilities in any given
case will be so restricted that if the applicant is refused
service by the particular company no alternative is open
¹ The following cases seem to be
in accord with the principal case on
general principles:
United States.-Board of Trade v.
Christie Grain & S. Co., 198 U. S.
236, 49 L. ed. 1031, 25 Sup. Ct. 637
(1905).
Indiana.-Western Union Tele-
graph Co. v. State ex rel. Hammond
Elevator Co., 165 Ind. 492, 76 N. E.
100, 3 L. R. A. (N. S.) 153 (1905).
On the other hand, the following
cases seem to hold the news business
as a private enterprise, at least un-
less it has professed general service.
Missouri.-State v. Associated
Press, 159 Mo. 410, 60 S. W. 91, 51
L. R. A. 151, 81 Am. St. Rep. 368
(1900).
New York.-Matthews v. Asso-
ciated Press, 136 N. Y. 333, 32 N. E.
981, 32 Am. St. Rep. 741 (1893).
[120]
VIRTUAL MONOPOLY
[ § 140
to him; usually in some way or other he could hit upon
some way out in such a case. But the alternative of-
fered will often be an inadequate substitute, disadvan-
tageous to a greater or lesser degree. In such a situation
there is no effectual competition to regulate the action
of the original company, and without the interposition
of the law there might be great oppression. A house-
holder refused water by the established company might
haul water from the river in hogsheads, but this method
is obviously no real substitute. A traveler refused food
and shelter might purchase provisions and tenting, yet
he will pay an extortionate price rather than be put to
that. Indeed the mere fact that there are two gas com-
panies in a town is not enough to alter the fact that the
situation is essentially monopolistic, for if one may re-
fuse service, the other may also; and obviously where
there are competing telephone systems the service of one
is not a substitute for the other.
140. Public stores.
The warehousing of staple commodities in the course
of commercial transactions is to a certain extent uni-
versally regarded as affected with a public interest.
Where there is some legal privilege connected with the
service, as in the case of the bonded warehouse,¹ or some
special circumstances creating a monopoly as in the case
of the wharfinger, 2 the courts hold the business public.
And in the case of the storage of certain staples there are
decisions that the warehouses in question are public,
such as grain elevators, tobacco warehouses. In view
of these particular examples just mentioned it would
seem that generalization is justifiable, that those who
conduct the business of warehousing staples upon a pub-
1 See § 54, supra.
2 See § 102, supra.
3
³ See § 141, infra.
4 See § 142, infra.
4
[121]
§ 141]
PUBLIC SERVICE CORPORATIONS
lic basis owe peculiar duties to the public. And indeed
that public warehousmen constitute at least a peculiar
class is recognized in recent statutes¹ and to some extent
in the current decisions concerning them.²
§ 141. Grain storage.
3
2
That warehousing in general is public in character
would seem to be proved by the later cases involving
grain elevators. In Munn v. Illinois it will be remem-
bered the virtual monopoly of the Chicago elevators by
reason of the scarcity of proper sites for conducting the
business of transferring grain from railroads to lake boats
was much insisted upon. But in a later case, Brass v.
North Dakota, where the validity of a statute applying
generally in all circumstances throughout an entire State
was questioned, the United States Supreme Court held
the business of grain storage public in character, Mr.
Justice Shiras saying, "When it is once admitted as it
must be admitted here that it is competent for the legis-
4
1 In contemplation of such stat-
utes a warehouseman is defined to
be the owner of a warehouse; one
who, as a business, and for hire,
keeps and stores the goods of others,
a person who receives goods and
merchandise to be stored in his
warehouse for hire. Butcher v.
Commonwealth, 103 Pa. St. 528
(1883).
2 Only such corporations as are
authorized by the law under which
they are organized to carry on the
business of warehousemen can avail
themselves of the provision of said
act. Franklin National Bank v.
Whitehead, 149 Ind. 560, 49 N. E.
592, 39 L. R. A. 725, 63 Am. St.
Rep. 302 (1898).
4 153 U. S. 391, 38 L. ed. 757, 14
Sup. Ct. 857 (1894).
That the business of grain storage
may be regarded as public in char-
acter is shown by the following
cases:
Illinois. Hannah v. People, 198
Ill. 77, 64 N. E. 776 (1902).
•
Minnesota.-Vega S. S. Co. v.
Consolidated Elevator Co., 75
Minn. 308, 77 N. W. 973, 43 L. R. A.
843, 74 Am. St. Rep. 484 (1899),
and cases cited.
Missouri.-Belcher Sugar Refin-
ing Co. v. St. Louis Grain Elevator
Co., 101 Mo. 192, 13 S. W. 822, 8
L. R. A. 801 (1890).
New York.-People v. Budd, 117
N. Y. 1, 22 N. E. 670, 682, 5 L. R. A.
3 94 U. S. 113, 24 L. ed. 77 (1876). 559, 15 Am. St. Rep. 460 (1889).
[122]
VIRTUAL MONOPOLY
[ § 142
lative power to control the business of elevating and
storing grain whether carried on by individuals or by as-
sociations in cities of one size and in some circumstances,
it follows that such power may be legally exerted over
the same business when carried on in smaller cities and
under other circumstances."
§ 142. Tobacco warehouses.
This commanding position, however established, is
the persistent factor in the establishment of public em-
ployment. The most extreme case of this sort is Nash v.
Page,¹ involving the position of tobacco warehouses.
That case was a controversy between the proprietors of
ten of the tobacco warehouses in the city of Louisville,
and the appellants, twenty-seven in number, who were
dealers in tobacco. It appeared that the appellants had
been denied the right to make purchases of tobacco at
the warehouses of which the defendants were the pro-
prietors, upon the basis of a general restriction which had
been lately attempted to members of the Board of Trade.
The opinion of Mr. Justice Pryor is one of the most
significant on this subject: "Since the formation of the
State government, the sale of this great staple has been
fostered and protected by legislation. Such warehouses
have always been regulated by law for the benefit of the
producer as well as those who are proprietors of these
warehouses, and the latter have assumed an obligation
to the public which exists as long as they continue public
warehousemen. It is a conceded fact that more than five
millions in value of tobacco annually find its way from
the producer to the warehouses in that city. The greater
part of this product is grown within the State, and the
producer has almost of necessity to place his tobacco
under the control of and for sale by these several ware-
180 Ky. 539, 44 Am. Rep. 490 (1882).
[123]
§ 143 1
PUBLIC SERVICE CORPORATIONS
housemen at public auction. All this tobacco must nec-
essarily pass through these warehouses, subject to such
charges as are reasonable and proper. Such a public
duty may be imposed on these warehousemen in express
terms or by implication, but whether so imposed or not,
it arises from the facts of the case. In this great tobacco
center the producer is restricted to these public ware-
houses, or rather these public warehouses have a mutual
monopoly of the sales of tobacco at auction, and the fact
that there is more than one or a dozen such warehouses
cannot affect the question." 1
§ 143. Cold storage.
It would seem that in view of the usual situation the
law requiring public service might well be applied to the
cold storage warehouses, so necessary are they in the
provision business; especially as the small dealer who is
refused storage is at great disadvantage in many market
contingencies. The few cases that relate to the obliga-
tions of those conducting cold storage warehouses have
already gone so far as to question the right of the pro-
prietors to exempt themselves from neglect of their un-
dertaking to maintain proper refrigeration.2 At the same
time it is, of course, clear that they are not like common
carriers liable as insurers of the provisions stored with
them.3
¹ Pannell v. Louisville Tobacco
Warehouse Co., 113 Ky. 630, 68
S. W. 662, 23 Ky. Law. Rep. 2423,
82 S. W. 1141 (1902); Louisville
Tobacco Warehouse Co. v. Com-
monwealth, 106 Ky. 165, 20 Ky.
Law Rep. 1747, 49 S. W. 1069, 57
L. R. A. 33 (1899)—accord.
2 Michigan.-Rudell V. Grand
Rapids Cold Storage Co., 136 Mich.
528, 99 N. W. 756 (1904).
Minnesota.-Minnesota B. & C.
Co. v. St. Paul Cold-Storage Ware-
house Co., 75 Minn. 445, 77 N. W.
977, 74 Am. St. Rep. 515 (1899).
3 Connecticut.-Allen v. Somers,
73 Conn. 355, 47 Atl. 653, 52 L. R.
A. 106 n., 84 Am. St. Rep. 158
(1900).
New Zealand.—Canterbury Meat
Co. v. Shaw & Co., 7 L. R. (N. Z.)
708 (1889).
[124]
VIRTUAL MONOPOLY
[ §§ 144, 145
§ 144. Safe deposit vaults.
The question may arise in the near future whether
the safe deposit vaults as at present conducted should
not be obliged to serve all that apply in accordance with
their undertaking. It would seem that many of the ele-
ments that create public employment are present in their
business. Their vaults are constructed at great cost,
while the individual charge is relatively small; and they
are not in fact numerous, although their service meets
a real necessity in modern life. And particularly there is
no sufficient substitute for the service they render in the
use of a private safe, so that the person whom they might
capriciously refuse would be at a real disadvantage.
These elements taken together are by other analogies
sufficient to put the business within the class of public
services.¹
1
§ 145. Market places.
In accordance with the principles which have been
brought out in this topic, it would seem probable that
market places provided for the sale of necessary commod-
ities are public in character.2 The few modern cases that
deal with this subject deal mostly with the provision of
such market places by public authorities. That public
powers may be exercised in the construction of such
market places is indeed proof enough that their main-
tenance is a public purpose. In justifying the taking of
land by eminent domain for such a produce market for
market gardeners, the Supreme Court of New York
said: “It is a public market for the benefit of the public
where the sale of certain commodities takes place and
where therefore they can be found and the erection of
¹ See Safe Deposit Co. of Pitts-
burg v. Pollock, 85 Pa. St. 391, 27
Am. Rep. 660 (1877).
2 Ketchum v. Buffalo, 14 N. Y.
356 (1856).
[125]
§§ 146, 147] PUBLIC SERVICE CORPORATIONS
which must consequently be regarded as a public con-
venience. 1
§ 146. Stock exchanges.
2
It is an interesting question how far the law that has
been developed in this chapter would go in justifying
public regulation of the stock exchanges, which many
people now demand. The stock exchanges stood out
against public opinion not long since, asserting their
private right to make such arrangements as they pleased
in making public their current quotations. But the
law generally was found to be able to deal with this
public demand for indiscriminate publication upon the
common-law principles of public service, holding that the
property right of the stock exchange in their current
quotations had been impressed with a public use, and
that they must see to it that all proper persons who ap-
plied for such quotations were served indiscriminately.
This general demand for the enforcement of obligations
to the public upon exchanges by reason of their virtual
monopoly is comparatively recent and its further develop-
ment can hardly be predicted.³
Topic D. Subordinate Services
§ 147. Dependent position.
For the conduct of certain public businesses connection
with the facilities of another public service is necessary.
1 Matter of Cooper, 28 Hun, 515
(1883).
2 As has been noted, the public
necessity of maintaining an open
market led the Kentucky court to
hold that all proper brokers must
be admitted to the privileges of the
tobacco auction rooms. Nash v.
Page, 80 Ky. 539, 44 Am. Rep. 490
(1882), discussed in § 126, supra.
The ruling case at present ap-
pears to be American L. S. Com-
mission Co. v. Chicago L. S. Ex-
change, 143 Ill. 210, 32 N. E. 274,
36 Am. St. Rep. 385, 10 L. R. A.
190 (1892), in which the court de-
clined to decide upon common prin-
ciples that the exchanges were nec-
essarily public in character upon
the ground that the case being
doubtful, legislative declaration of
this was desirable.
[ 126 ]
VIRTUAL MONOPOLY
[ §§ 148, 149
The opportunity to carry on such dependent services at
all is necessarily limited; and the dependent service is
usually without competition. Thus the companies that
furnish special passenger car service, as parlor cars and
sleeping cars, are few in number; and so are the com-
panies which provide special freight car service, as ex-
press cars and refrigerator cars. This would be so by
the nature of the case in any event; but since by the
weight of authority it is permissible to make an exclusive
contract with one subordinate company the situation is
most usually one of complete monopoly. The same sit-
uation leads to the same results in various terminal
services also, such as those of hackmen and baggage
transfer men, teamsters and truckmen. Most of these
services which have just been listed are elaborately dis-
cussed elsewhere.
§ 148. Port lighters.
In all ports there are lightermen ready for employment
by the shipping public.¹ So important are these to casual
shippers that there is high probability of serious abuse
of their practical monopoly which they have for the time
being. By the situation itself they seem to be affected
with a public interest and, therefore, subject to public
regulation. The public character of their business is
shown by the fact that if such lightermen take actual
possession of the goods they are handling they are held
to be common carriers; but if the owner retains control
they are of course not carriers at all 2 within this rule.
§ 149. Floating elevators.
In large ports where grain is commonly transshipped,
1 The most of the law as to light-
erage is to be found in the early
case of Liver Alkali Co. v. Johnson,
L. Rep. 9 Exch. 338 (1874).
2 Boyes v. Moss & Co., 18 Vict.
L. R. 225 (1892).
[127]
§ 150 ]
PUBLIC SERVICE CORPORATIONS
floating elevators will usually be found which are at the
disposal of shipping interests in general. These elevators
in the port of New York, for example, proceed under their
own power to the dock or anchorage indicated upon order
and charge fixed rates for elevating grain from canal
boats to ocean steamships. These elevators in New York
are subject to the same regulation as other grain eleva-
tors. In the leading case ¹ this regulation is justified
squarely upon the existence of virtual monopoly in all
kinds of grain elevating. "In the harbor of New York
the evidence informs us at least five different business
firms operate and control floating elevators and that
charges are fixed by a committee of the Produce Exchange,
of which body some or all of these firms are members.
It is apparent, therefore, that the opportunity for vir-
tual monopoly is the same in each case."
§ 150. Tugboats.
Tugboats play an indispensable part in the commerce
of a port, principally towing sailing vessels, helping
steamships, and incidentally moving about barges and
lighters, floats and scows. In performing these services
which have been described it is obvious that the tugboat
does not act as a carrier, as the possession of the goods
remains with the vessel. And therefore the many cases
holding that such incidental towage is not common car-
riage and not subject to the extreme liabilities which the
common law lays upon common carriers are undoubtedly
correct as towage is usually conducted.2 On the other
hand, it would seem to be true that as conducted in most
¹ Matter of Annon, 50 Hun, 413
(1888), affirmed in 117 N. Y. 621.
2 Compare Alexander v.
Alexander v. Greene, 3
Hill, 9, 7 ibid. 533 (1842) and cases
cited, § 173, infra, holding towage
not carriage with Bussey & Co. v.
Mississippi Valley Transp. Co., 24
La. Ann. 165, 13 Am. Rep. 120
(1872), holding a towing line a
common carrier. For full citation
on these points see § 173, infra.
[128]
VIRTUAL MONOPOLY
[ §§ 151, 152
ports, tugboat service is so affected with a public interest
as to be subject to public regulation. It is with this
impelling them that some cases have gone so far as to
hold this service to be common carriage; but as will be
seen later, these cases upon examination will usually
prove to involve more than mere towage.
§ 151. Switching engines.
The switching engines perform a similar service for
freight cars that towboats do for freight barges. Such
haulage is not usually common carriage ¹any more than
towage is; for in neither case is possession assumed in con-
ducting the transportation. The position of these belt
lines has already been considered. It is enough at this
point to refer again to these decisions in which such
transfer service is held to be common carriage and sub-
ject to that law but under circumstances essentially dif-
ferent from the mere switching here described.2
§ 152. Parlor cars.
There is an obvious public demand for car service
different from the ordinary coach provided by the rail-
roads generally. Upon long runs a sleeping car is an
absolute necessity and so is a dining car, unless as rarely
happens the journey is broken by the train stopping for the
night at a convenient town where hotel accommodation
may be had, or as often happens the train is scheduled
to stop at eating houses. Moreover, although there is
not the actual necessity, perhaps, there is a public demand
1 See:
United States.-Kentucky & I.
Bridge Co. v. Louisville & N. Ry.,
37 Fed. 567 (1889).
Illinois.-Swift & Co. v. Ronan,
103 Ill. App. 475 (1902).
And see § 150, supra.
2 See:
Nebraska.-State ex rel. v. Union
Stockyards Co., 81 Neb. 67, 115
N. W. 627 (1908).
Virginia.-Norfolk & P. Belt
Line v. Commonwealth, 103 Va.
289, 49 S. E. 39 (1904).
See § 181, following.
9
[129]
§ 153 ] PUBLIC SERVICE CORPORATIONS
for parlor cars for day travel, and this is within the public
service professed when such facilities are offered. It is
much the same here as with smoking cars. It is doubtful
if there is any obligation to provide them, but if they
are offered they are open to all desirous of using them for
smoking. At all events "the business of running drawing-
room cars in connection with ordinary passenger cars has
become one of the common incidents of passenger traffic
on the leading railroads of the country."¹
§ 153. Sleeping cars.
It is as to sleeping cars particularly that the most of
litigation has taken place, and the part played by these
car companies has been worked out. In the insistent de-
sire to put these companies under public obligations, the
contention has sometimes been made that the sleeping car
was a sort of public inn, as one exceptional case ² held, or
a common carrier, as another exceptional case decided.³
A sleeping car is not an inn; in reality it is a facility for
¹ Quoted from Thorpe v. New
York C. & H. R. R. R., 76 N. Y.
at p. 407 (1879).
2 Pullman P. C. Co. v. Lowe, 28
Neb. 239, 44 N. W. 226, 6 L. R. A.
809, 26 Am. St. Rep. 325 (1889).
3 Pullman P. C. v. Lawrence, 74
Miss. 782, 22 So. 53 (1897).
4 United States.-Blum v. South-
ern P. P. C. Co., 1 Flip. 500, Fed.
Cas. No. 1,574 (1876).
Alabama.-Pullman P. C. Co. v.
Adams, 120 Ala. 581, 24 So. 921, 74
Am. St. Rep. 53, 45 L. R. A. 767
(1898).
Georgia.-Pullman's P. C. Co. v.
Hall, 106 Ga. 765, 32 S. E. 923, 44
L. R. A. 790, 71 Am. St. Rep. 293
(1899).
Illinois.-Pullman P. C. Co. v.
2
Smith, 73 Ill. 360, 24 Am. Rep. 258
(1874).
Indiana.-Woodruff S. & P. C.
Co. v. Diehl, 84 Ind. 474, 43 Am.
Rep. 102 (1882).
Massachusetts.-Whicher v. Bos-
ton & A. R. R., 176 Mass. 275, 57
N. E. 601, 79 Am. St. Rep. 314
(1900).
Mississippi.-Illinois C. R. R.
v. Handy, 63 Miss. 609, 56 Am.
Rep. 846 (1886).
New York.-Welch v. Pullman P.
C. Co., 16 Abb. Pr. (N. S.) 352
(1874).
Tennessee.-Pullman P. C. Co.
v. Gavin, 93 Tenn. 53, 23 S. W.
70, 42 Am. St. Rep. 902, 21 L. R. A.
298 (1893).
[130]
VIRTUAL MONOPOLY
[ § 153
a traveling passenger. Nor is it a carrier,¹ for the rail-
road is that. Though neither an innkeeper nor a carrier,
the sleeping-car company is engaged in an analogous
public employment, and must serve such members of the
public as are within the class which it undertakes to
serve.2 As Mr. Justice Mulkey said in Nevin v. Pullman
Palace Car Company:3 "The running of these sleepers has
become a business and social necessity. Such being the
case, can it be maintained the law imposes no obligations
or restrictions on this company in the discharge of its
duties to the public? Or, more accurately put, is it true
that this company owes no duties to the public except
such are due from one mere private person to another?
Can it be possible that the common carrier, the ferryman,
the innkeeper, and even the blacksmith on the roadside,
are all, by mere force of law, placed under special obliga-
tions and duties to the public which they are bound to
observe in the exercise of their respective callings, while,
at the same time, this company is entirely relieved from
1 United States.-Lemon v. Pull-
man P. C. Co., 52 Fed. 262 (1887).
Alabama.-Pullman P. C. Co. v.
Adams, 120 Ala. 581, 24 So. 921,
74 Am. St. Rep. 53, 45 L. R. A.
767 (1898).
Colorado.-Pullman P. C. Co. v.
Freudenstein, 3 Col. App. 540, 34
Pac. 578 (1893).
Georgia.-Pullman's P. C. Co. v.
Hall, 106 Ga. 765, 32 S. E. 923,
71 Am. St. Rep. 293 (1899).
Illinois.-Pullman P. C. Co. v.
Smith, 73 Ill. 360, 24 Am. Rep. 258
(1874).
Indiana.-Woodruff S. & P. C.
Co. v. Diehl, 84 Ind. 474, 43 Am.
Rep. 102 (1882).
Kentucky.-Pullman P. C. Co.
v. Gaylord, 9 Ky. L. Rep. 58 (1887).
Massachusetts.-Dawley v. Wag-
ner P. C. Co., 169 Mass. 315, 47
N. E. 1024 (1897).
New York.-Tracy v. Pullman
P. C. Co., 67 How. Pr. 154 (1884).
2 See especially:
United States.-Searles v. Mann
Co., 45 Fed. 330 (1891).
Illinois.-Nevin v. Pullman P.
C. Co., 106 Ill. 222, 46 Am. Rep.
688 (1883).
V.
Massachusetts.-Lawrence
Pullman P. C. Co., 144 Mass. 1,
10 N. E. 723 '59 Am. Rep. 58
(1887).
Texas.-Pullman P. C. Co. v.
Booth (Civ. App.), 28 S. W. 719
(1894).
³ 106 III. 222, 46 Am. Rep. 688
(1883).
[131]
§§ 154, 155] PUBLIC SERVICE CORPORATIONS
the observance of all such duties and obligations which
are not expressly contracted for? We think not. To so
hold would be to unjustly discriminate between parties
similarly situated, and make the law inconsistent with
itself, to the great detriment of the public."
§ 154. Refrigerator cars.
Similar in character is the special freight car service
now so prevalent in railroad operation. To meet certain
needs of certain classes of shippers car companies are or-
ganized which provide the appropriate equipment. Thus
there are companies providing refrigerator cars and venti-
lator cars for special uses, and tank cars and stock cars
for certain traffic. The position of these private freight
car services is substantially similar to that of the private
passenger car services just discussed; it is again not a
case of common carriage, the railway company performs
the carriage, the car company furnishing merely addi-
tional conveniences. Thus, to take as one prominent
example, the refrigerator car line. Although not tech-
nically a carrier, the refrigerator car line is carrying on a
business which is of public importance in connection with
the railway, and like the sleeping-car company, it is there-
fore engaged in a public employment which, though not
identical with that of a common carrier, is analogous to
it, and imposes similar legal obligations upon the corpo-
ration.¹
§ 155. Tank cars.
To take another illustration, the same thing would be
true of a tank car line. As a matter of fact the tank car
lines seem usually to have been owned or controlled by
private shippers and used by them for their own ship-
1 See the discussion of this prob-
lem in Re Transportation of Fruit,
10 Int. Com. Rep. 360 (1904).
[ 132 ]
VIRTUAL MONOPOLY
[§ 156
ments only. In such a case there seems to be no question
of public employment since there is no undertaking to
serve people generally.¹ But although not technically
carriers, the conductors of the private car business as a
class, when upon a public basis, are necessarily in the
public employment and engaged in a calling analogous to
that of the common carrier; and statutory regulations
adopted for the control of common carriers often apply to
them.
§ 156. Necessary regulation of virtual monopoly.
A review of all of the instances which have been cited
in the course of this whole discussion will show that this
conception of virtual monopoly will cover everything.
Nothing narrower will do, as for example the difference
sometimes put forward between the undertaking of a
public service in contradistinction to the furnishing of a
public supply. Now, it is true that most of the cases are
cases of service-the railway and the warehouse, for
example; but other of the cases are of supply, the water-
works and gas works, for instance. Indeed, there is
nothing in this distinction, either in economics or in law.
It is submitted that any business is made out to be public
in character where there is a virtual monopoly inherent
in the nature of things. If virtual monopoly is made
out as the permanent condition of affairs in a given
business, then the law, it seems, will consider that calling
public in its nature. On the other hand, if effective com-
petition is proved as the regular course of things in a
given industry, the law will hold all businesses within it
as private in their character. Under our constitutional
system a distinction is made upon this line. In the pub-
lic calling, regulation of service, facilities, prices and dis-
¹ See the discussion of this prob-
lem in State v. Cincinnati, N. O.
& T. P. Ry., 47 Oh. St. 130, 23
N. E. 928, 7 L. R. A. 319 (1890).
[ 133 ]
§ 156 1
PUBLIC SERVICE CORPORATIONS
criminations is possible to any extent. Monopolistic con-
ditions demand such policy; and at no period in history
has this been more apparent than now. In the private
callings no such legislation should be permitted. Where
competitive conditions prevail there should be freedom;
and at no epoch in our industries has it been more im-
portant to insist upon this.
[134]
CHAPTER V
COMMON CARRIAGE AS A PUBLIC EMPLOYMENT
§ 160. Who are common carriers.
§ 161. Pack carriers.
162. Wagoners.
163. Porters.
164. Hoymen.
165. Shipmasters.
166. Canal boats.
167. River craft.
168. Draymen.
169. Truckmen.
Topic A. Carriers of Goods
170. Furniture movers.
171. Baggage transfer.
172. Steamboats.
173. Towing lines.
174. Wagon trains.
175. Automobile lines.
176. Railways.
177. Industrial railways.
178. Express companies.
179. Pneumatic tubes.
180. Dispatch companies.
181. Fast freight lines.
Topic B. Carriers of Passengers
§ 182. Ferries.
183. Ships.
184. Stagecoaches.
185. Omnibus lines.
186. Hacks.
187. Taxicabs.
188. Passenger railways.
189. Street railways.
190. Elevated railways.
[135]
§ 160 1
PUBLIC SERVICE CORPORATIONS
§ 191. Underground railways.
192. Interurban railways.
193. Passenger elevators.
194. Moving platforms.
195. Pleasure railways.
196. Common carriage as a public employment.
§ 160. Who are common carriers.
As will be seen later in more detail, common carriage
involves a particular kind of service.¹ The conception of
carriage itself involves not only transportation but control
during the transit. To be common carriage this partic-
ular business must be upon the basis of public service.
In this view of it there are various callings which although
upon a public basis are not common carriage, although
once analogized to it to bring them within the law govern-
ing public service at a time when the extent of that law
1 Good definitions of common car-
riage abound. See the following
cases among others:
United States.-United States v.
Sioux City Stockyards Co., 162 Fed.
556 (1908).
Alabama.-Babcock v. Herbert,
3 Ala. 392, 37 Am. Dec. 695
(1842)
Georgia.-Fish v. Chapman, 2
Ga. 349, 46 Am. Dec. 393 (1847).
Illinois.—Illinois Central R. R.
v. Frankenberg, 54 Ill. 88, 5 Am.
Rep. 92 (1870).
Kentucky.-Robertson v. Ken-
nedy, 2 Dana, 430, 26 Am. Dec. 466
(1834).
Maryland.-Carpenter v. Balti-
more & O. R. Co. (Md.), 64 Atl.
252 (1906).
Massachusetts.-Dwight v. Brew-
ster, 1 Pick. 50, 11 Am. Dec. 133
(1822).
Nebraska.-State ex rel. v. Union
Stockyards Co., 81 Neb. 67, 115
N. W. 627 (1908).
New Hampshire. Shelden v.
Robinson, 7 N. H. 157, 26 Am.
Dec. 726 (1834).
New Jersey.-Mershon v. Hoben-
sack, 22 N. J. L. 372 (1850).
New York.-Alexander v. Greene,
7 Hill, 533 (1844).
Oregon.-Honeyman v. Oregon,
etc., R. Co., 13 Oreg. 352, 10 Pac.
628, 57 Am. Rep. 20 (1886).
Pennsylvania.-Gordon v. Hutch-
inson, 1 W. & S. 285, B. & W. 3, 37
Am. Dec. 464 (1841).
South Carolina.-Bamberg v. So.
Carolina R. Co., 9 S. C. 61, 30 Am.
Rep. 13 (1877).
West Virginia.-Maslin v. Balti-
more & O. R. R. Co., 14 W. Va. 180,
35 Am. Rep. 748 (1878).
Wisconsin.-Doty v. Strong, 1
Pinn. 313, 40 Am. Dec. 773 (1843).
England.-Gisbourn v. Hurst, 1
Salk. 249 (1710).
!
[136]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 161
was not appreciated. Thus even irrigation and telegraph-
ing were once said in argument to be similar to common
carriage in order to bring them within the obligations of
public service. And it took decisions to show for example
that towboat men and wharfingers were not liable as com-
mon carriers; and yet clearly enough in the first no
possession is taken although transportation is undertaken,
and in the second there is no moving but merely pos-
session. The traditional division of common carriers
is into carriers of goods and carriers of passengers. In
strictness only carriage of goods presents true bailment;
and although to a certain extent the control which the
carrier of passengers exercises is sufficiently analogous,
yet the distinction between them is strong enough to make
one measure of liability for the common carrier of goods
and another for the carrier of passengers. There are some
problems as to this division, but mostly these are diffi-
culties in application. Thus after some litigation, the
carriage of slaves was held to be passenger carriage, while
the carriage of cattle was held to be freight carriage.
Moreover, many carriers transport both passengers and
freight, although some confine their business to one or the
other. Still the established division is too settled to
ignore.
Topic A. Carriers of Goods
§ 161. Pack carriers.
The earliest form of common carriage in England was
by means of pack horses. The country roads were not
adapted for wheeled vehicles, and the carrier was obliged
to carry his goods on the horses' backs in panniers. Such
were the two carriers who appear in the first part of
Shakespeare's Henry IV.¹ One of them had "a gammon
of bacon and two razes of ginger to be delivered as far as
¹ Act II, scene 1.
[137]
§§ 162, 163] PUBLIC SERVICE CORPORATIONS
Charing-cross," while the other had turkeys in his pannier.
Such also was the carrier who took certain bales to carry to
Southampton, and by breaking open the bales and steal-
ing the contents provided a leading case in the law of
larceny.¹
§ 162. Wagoners.
As the roads grew better and traffic between different
parts of the country consequently increased, goods began
to be carried in wagons; and the common carrier by land
was a wagoner or carter. This continued to be the com-
mon method of land carriage of goods down to the inven-
tion of railroads, and such carriers might unquestionably
be common carriers. The many cases involving wagoners
are concerned with the question of fact, often difficult
to determine, whether in the particular case the carriage
was undertaken as common carriage or whether it was a
case of special arrangement upon a private basis.2
§ 163. Porters.
It is said in many cases, early and recent, that porters
who undertake as a regular business to carry packages
from point to point or to aid in loading or unloading goods
are engaged in a public employment and are accordingly
subject to public regulation as to the conduct of their
business. 3
1 Y. B. 13 Ed. IV, 9, pl. 5 (1473).
2 At this descriptive stage it is
sufficient to cite the leading cases
which are discussed later.
Delaware.-Tunnel v. Pettijohn,
2 Harr. 48 (1836).
Georgia.—Fish v. Chapman, 2
Ga. 349, 46 Am. Dec. 393 (1847).
Kentucky.-Robertson v. Ken-
nedy, 2 Dana, 430, 26 Am. Dec.
466 (1834).
Mississippi. Harrison v. Roy,
39 Miss. 396 (1860).
Ohio.-Samms v. Stewart, 20
Ohio, 70, 55 Am. Dec. 445 (1851).
Pennsylvania.-Gordon v. Hutch-
inson, 1 W. & S. 285, 37 Am. Dec.
464, B. & W. 3 (1841).
Texas.-Chevallier v. Straham, 2
Tex. 115, 47 Am. Dec. 639 n. (1847).
England.-Gisbourn v. Hurst, 1
Salk. 249 (1710).
3 See Robertson v. Kennedy, 2
Dana (Ky.), 430, 26 Am. Dec. 466.
And see Jackson Architectural I.
Wks. Co. v. Hurlbut, 158 N. Y. 34,
[138]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ §§ 164, 165
§ 164. Hoymen.
1
As in the case of land carriage, so in the case of water
carriage, there are carriers who do not ply regularly be-
tween fixed termini, but carry for those who employ them
anywhere on a certain river or within a certain harbor.
There are several early cases concerning the Thames
watermen who transfer goods from vessel to shore or
from vessel to vessel. Such hoymen are ordinary carriers,
at least, though whether they are common carriers or not
may depend upon the nature of their profession. If, how-
ever, the lighterman does not take the goods, but they
remain in the control and possession of the owner, the
lighterman is to be regarded as merely furnishing the
motive power: not taking possession he cannot be tech-
nically a carrier.
§ 165. Shipmasters.
At the very first there seem to have been doubts as to
whether carriers by sea who went beyond the realm were
within the common-law rules as to the liability of common
carriers. But that there was no essential difference between
carriage by land and carriage by sea was established at
a comparatively early day. In this country there was
never any doubts of this as the following summary taken
from the opinion of Mr. Justice Williams in an early
Connecticut case 2 will show: "It was long since settled
that any man undertaking for hire to carry the goods of all
persons indifferently, from place to place, is a common
carrier. Common carriers, says Judge Kent, consist of
52 N. E. 665, 70 Am. St. Rep. 432
(1899).
¹ Liver Alkali Co. v. Johnson, L.
R. 9 Exch. 338 (1874); Ingate v.
Christie, 3 C. & K. 61 (1850); Mav-
ing v. Todd, 4 Campb. 225, 1
Starkie, 72 (1815); Dale v. Hall,
1 Wils. Reports, 281 (1750); Trent.,
etc., Nav. Co. v. Wood, 4 Dougl.
287, 3 Esp. 127 (1785).
2 Hale v. New Jersey Nav. Co.,
15 Conn. 539, 39 Am. Dec. 398
(1843).
[139]
§ 166]
PUBLIC SERVICE CORPORATIONS
two distinct classes of men, viz., inland carriers by land
or water, and carriers by sea; and in the aggregate body
are included the owners of stage-coaches, who carry goods,
as well as passengers for hire,-wagoners, teamsters, cart-
men, the masters and owners of ships, vessels and all
water-craft, including steam vessels and steam towboats
belonging to internal as well as coasting and foreign
navigation, lightermen and ferrymen. And there is no
difference between a land and a water carrier." 1
§ 166. Canal boats.
Transportation over most canals has been largely car-
ried on from the time of their first construction to the
present day by canal boatmen who take possession of the
goods to be forwarded, store them in their canal boats,
keep charge over them during the transit, and make
provision for the beasts by which the boats are usually
hauled from point to point. Obviously this business is
carriage, and if it is professed for all that apply it is
common carriage, and subject to all the liabilities of com-
mon carriage. As is said in one of the early cases, 2 "The
counsel have not contended but that the defendant's
1 See for other examples:
United States.—Propeller Niagara
v. Cordes, 21 How. 7, 16 L. ed. 41
(1858); Clark v. Barnwell, 12 How.
272, 13 L. ed. 985 (1851); The Dela-
ware, 14 Wall. 579, 20 L. ed. 779
(1871); The Maggie Hammond, 9
Wall. 435, 19 L. ed. 772 (1869);
The Gold Hunter, 1 Blatchf. & H.
300, 10 Fed. Cas. 5,513 (1832);
The Phenix Insurance Co. v. Liver-
pool & G. W. Steamship Co., 22
Blatchf. 372, sub nom. The Mon-
tana, 22 Fed. 715 (1884).
Connecticut.—Crosby v. Fitch,
12 Conn. 410, 31 Am. Dec. 745
(1838).
Georgia.-Brown v. Clayton, 12
Ga. 564 (1853).
Massachusetts.-Gage v. Tirrell,
9 Allen, 299 (1864).
New York.-Elliott v. Rossell, 10
Johns. 1, 6 Am. Dec. 306 (1813).
South Carolina.-Swindler v. Hil-
liard, 2 Rich. 286, 45 Am. Dec. 732
(1845).
England.-Laveroni v. Drury, 8
Exch. 166, 16 Eng. L. & E. 510
(1852).
2 Spencer v. Daggett, 2 Vt. 92
(1829).
[ 140 ]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 167
liability stood upon the principles of a common carrier.
It should so stand. He carries for hire. The plaintiffs
could not control him in the manner of lading and navi-
gating his boat.”
991
§ 167. River craft.
2
Upon similar principles the cases generally have held
the owners of river craft transporting goods to the strict
liability of common carriers. This has been so whether
these were flatboats carried down the river by the current
guided by their steersmen, or whether they were boats
proceeding along the river by their own motive power.
In some jurisdictions the necessity of this law was felt so
strongly that the courts were much too easily satisfied as to
the public character of a particular undertaking. But as is
said in the leading case³ of this sort: "One who undertakes
for a reward, to convey produce or goods of any sort,
from one place upon the river to another, becomes thereby
liable as a common carrier; having to transact the business
entrusted to his care, at places distant from the residence
of the plaintiff, it is always difficult, and frequently im-
possible for the plaintiff to obtain the evidence necessary
to fix fraud or negligence on the defendant; and to super-
¹ See for other examples:
New York.-Fish v. Clark, 49
N. Y. 122 (1872).
North Carolina.-Williams v.
Branson, 1 Murphy, 417, 4 Am.
Dec. 562 (1810).
Boston & Maine R. R. Co., 3 Fost.
275 (1851).
Pennsylvania.-Nicolette
Lum-
ber Co. v. People's Coal Co., 26 Pa.
Sup. Ct. 575 (1904).
South Carolina.-M'Clures
V.
Pennsylvania.—Humphreys v. Hammond, 1 Bay, 99, 1 Am. Dec.
Reed, 6 Whart. 435 (1841).
South Carolina.-Harrington v.
Lyles, 2 Nott & McCord, 88 (1819).
Vermont.-Spencer v. Daggett, 2
Vt. 92 (1829).
England.-Hyde v. Trenton Nav.
Co., 5 T. R. 389 (1793).
2 New Hampshire.-Elkins v.
598 (1790).
West Virginia.-Gillingham v.
Ohio River R. R., 35 W. Va. 588, 14
S. E. 243, 14 L. R. A. 798, 29 Am.
St. Rep. 827 (1891).
³ Moss v. Bettis, 4 Heisk. 661.
(1871).
[ 141 ]
§§ 168, 169] PUBLIC SERVICE CORPORATIONS
sede this difficulty, the law throws the burthen of proof
upon the defendant, to exempt himself from the plain-
tiff's action, and makes him liable for all accidents but
those which are occasioned by the acts of God or of a
public enemy."
§ 168. Draymen.
Draymen of all sorts may be common carriers if they
have generally undertaken to transport the goods of all
who apply, for a reasonable compensation. The vehicle
employed is immaterial. In one early case,¹ the question
was whether a proprietor of an ox team dragging a sled
laden with general merchandise was a common carrier,
and the court held that he was. "Every one who pursues
the business of transporting goods for hire, for the public
generally, is a common carrier. According to the most
approved definition, a common carrier is one, who under-
takes, for hire or reward, to transport the goods of all
such as choose to employ him, from place to place. Dray-
men, cartmen, and porters, who undertake to carry goods
for hire, as a common employment, from one part of a
town to another, come within the definition. So also does
the driver of a slide with an ox team. The mode of
transporting is immaterial."2
§ 169. Truckmen.
The case of the truckman also well illustrates the gen-
eral principles. Even where a truckman is professing
publicly the business of carrying goods from one part of a
town to another, a few authorities discussed in the next
section have held that he is not a common carrier. But
there should be, of course, no doubt that he is a carrier
essentially as he both takes possession of the goods of his
1 Robinson & Co. v. Kennedy, 2
Dana, 430 (1834), 26 Am. Dec. 466.
2 See also Robinson v. Cornish,
13 N. Y. Supp. 577 (1890).
[142]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 170
patrons and transports them.¹ The law is summarized
succinctly in the leading case of Jackson Architectural
Iron Works v. Hurlbut 2 by Mr. Justice O'Brien thus:
"Truckmen, wagoners, cartmen and porters who under-
take to carry goods for hire as a common employment in
a city, or from one town to another, are common carriers.”
§ 170. Furniture movers.
But mere movers, such as furniture movers, will seldom
be found to have undertaken as common carriers. Their
business is generally conducted upon the basis of special
contract; and they do not undertake, upon any general
schedule of prices, to serve all that apply. Moreover,
there are usually numerous carters with whom the person
who wishes the service might deal, and as it is a matter
arranged for in advance there is ample opportunity of-
fered for access to these competitors. Naturally enough,
therefore, the few cases that deal with this matter hold
that the furniture movers are liable only as private car-
riers. It is of course a question of fact, in last analysis,
and it may be shown, always, just what the facts are as
1 Illinois.—Hastings Express Co.
v. Chicago, 135 Ill. App. 268 (1907);
See also Johnson Exp. Co. v. Chi-
cago, 136 Ill. App. 368 (1907).
Indiana. Frank Bird Transfer
Co. v. Krug, 30 Ind. App. 602, 65
N. E. 309 (1902).
Kentucky. Farley v. Lavary, 21
Ky. L. Rep. 1252, 54 S. W. 840, 47
L. R. A. 383 (1900).
Pennsylvania.-Lloyd v. Haugh
& K. Storage & Transfer Co., 223
Pa. St. 148, 72 Atl. 576, 21 L. R. A.
(N. S.) 188 (1909).
Utah.-Benson v. Oregon S. L.
Ry. Co., 99 Pac. 1072 (1909).
Washington.-Gates v. Bekins,
44 Wash. 422, 87 Pac. 505 (1906).
England.-Scaife v. Farrant, L.
R. 10 Ex. 358 (1875).
Canada.-Culvar v. Lester, 37
Can. L. J. 421 (1901).
2 158 N. Y. 34, 52 N. E. 665, 70
Am. St. Rep. 432 (1899).
But in several cases of trucking
the courts have not found common
carriage. See:
New Hampshire.-Faucher v.
Wilson, 68 N. H. 338, 38 Atl. 1002,
39 L. R. A. 431 (1895).
Wisconsin.-Hooper v. Chicago
& N. W. Ry. Co., 27 Wis. 81, 9 Am.
Rep. 439 (1870).
[ 143 ]
§ 171 ]
PUBLIC SERVICE CORPORATIONS
1
to the business in question. As is said in one case:
"Whether a person was a common carrier bound by all
the extraordinary responsibility and entitled to the priv-
ilege of that class of bailees can sometimes be known only
by particular proof of how his business was conducted
and what profession he made to the public regard-
ing it."2
§ 171. Baggage transfer.
3
On the other hand, omnibus lines that transfer passen-
gers and their baggage across cities to their destinations
are obviously within the conception of common carriers.
A square case in point is Parmelee v. McNulty, where
Mr. Chief Justice Caton said: "It is further objected that
the court assumed that Parmelee was a common carrier,
without proof of that fact. The proof showed that he
was the owner of an omnibus line, to the agents of which
the proof tended to show the trunk was delivered. The
court was authorized to take notice that the owner of an
omnibus line is a common carrier, just as much as the
owner of a railroad or of a line of steamboats. The court
¹ Thompson v. New York Storage
Co., 97 Mo. App. 135, 70 S. W. 938
(1902).
2 Cases finding no common car-
riage in the arrangement in ques-
tion are:
Illinois.-Armfield v. Humphrey,
12 Ill. App. 90 (1882).
Missouri.-Jamiet v. American
Storage Co., 109 Mo. App. 257, 84
S. W. 128 (1904). But see Collier
v. Langan T. S. & M. Co. (Mo.
App.), 127 S. W. 435 (1910).
V.
New Hampshire.-Faucher
Wilson, 68 N. H. 338, 38 Atl. 1002,
39 L. R. A. 431 (1895).
South Carolina.-Piedmont Mfg.
Co. v. Railroad Co., 19 So. Car. 353
(1882).
Cases finding common carriage
in the moving in question are:
New York.-Snelling v. Yetter,
25 App. Div. 590, 49 N. Y. Supp.
917 (1898).
Pennsylvania.-Lloyd v. Haugh
& K. Transfer Co., 223 Pa. St. 148,
72 Atl. 516, 21 L. R. A. (N. S.) 188
(1909).
Utah.-Benson v. Oregon S. L.
Ry. Co. 99 Pac. 1072 (1909).
Washington.-Gates v. Bekins, 44
Wash. 422, 87 Pac. 505 (1906),
3 19 Ill. 556 (1858).
[144]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 172
will take notice of the general meaning of words; and we
know that an omnibus line means a line of coaches for the
carriage of passengers and their baggage.”¹
$172. Steamboats.
The invention of the application of steam propulsion
to vessels did not alter the rule already established that
those who carry goods and passengers as a general busi-
ness by any vehicles or vessels are common carriers. The
business is therefore public in character, provided that
those who conduct it profess to serve all that apply, which
may be established by the usual tests already discussed.
A few representative cases are collected in the footnote;
In one of the earliest of these, Bennett v. Filyard 2 the
instances of common carriage by water are thus enu-
merated: "A common carrier in law has been defined to
be one who undertakes for hire or reward to transport the
goods of such as choose to employ him from place to
place as a business and not as a casual occupation pro hac
vice. Common carriers by water are the masters and
owners of ships, and all water crafts including steam
vessels, towboats, and other steamboats, belonging to
internal as well as coasting and foreign navigation, light-
men, hoymen, ferrymen, canal boatmen, and others en-
1 To the same effect are:
Georgia.—Atlanta Baggage, etc.,
Co. v. Mizo, 4 Ga. App. 407, 61 S.
E. 844 (1908).
Illinois.-Parmelee v. Lowitz, 74
Ill. 116, 24 Am. Rep. 276 (1874).
Louisiana.-Da Ponte v. New
Orleans Transfer Co., 42 La. Ann.
696, 7 So. 608 (1890).
V.
New Hampshire.—Hedding
Gallagher, 72 N. H. 377, 57 Atl.
225, 64 L. R. A. 811 (1903).
New York.-Richards v. Wescott,
2 Bosw. 589.
North Carolina.-Herring v. Ut-
ley, 8 Jones, L. 270 (1860).
Pennsylvania.-Beckman
Shouse, 5 Rawle, 179, 28 Am. Dec.
653 (1835).
V.
Virginia.-Norfolk & W. Ry. Co.
v. Old Dominion Baggage Co., 99
Va. 111, 37 S. E. 784, 50 L. R. A.
722 (1901).
21 Fla. 403 (1847).
10
[ 145 ]
§ 173 ]
PUBLIC SERVICE CORPORATIONS
gaged in the transportation of goods by water for per-
sons generally for hire."1
§ 173. Towing lines.
To what extent towboats are engaged in a public em-
ployment is a vexed question; but the difficulty seems to
lie more in the determination of the question of fact in
the cases that have arisen than in any difference as to
legal possibilities. One of the principal cases is Bussey
& Co. v. Mississippi Valley Transportation Co.2 The
regular business of the defendants in that case was proved
to be the towing of barges upon the route between St.
Louis and New Orleans. The court reviewed fully the
various authorities apparently bearing upon the point;
the opinion of Mr. Justice Howe concluding much as
follows: "Such conflict of authority might be very dis-
tressing to the student, but for the fact that when these
1 United States.-The Commander
in Chief, 1 Wall. 43, 17 L. ed. 609
(1863); Jencks v. Coleman, 2 Sum-
ner, 221, Fed. Cas. 7,258 (1835);
Citizens' Bl. v. Nantucket Steam-
boat Co., 2 Story, 16, B. & W. 8,
Fed. Cas. 2,730 (1841).
Massachusetts.-Hastings v. Pep-
per, 11 Pick. 41 (1838).
Mississippi.-Gilmore v. Car-
man, 1 Sm. & M. 279 (1843).
New York.-Hollister v. Nowlen,
19 Wend. 234 (1838); Cole v. Good-
win, 19 Wend. 251 (1838); McAr-
Alabama.-Jones v. Pitcher, 3 thur v. Sears, 21 Wend. 190 (1839);
Stew. & P. 136 (1833).
Pardee v. Drew, 25 Wend. 459
Connecticut.—Crosby v. Fitch, (1841).
12 Conn. 410 (1838).
Georgia.-Ocean S. S. Co. v. Sa-
vannah L. W. & S. Co. (Ga.) 63
S. E. 577, 20 L. R. A. (N. S.) 867
(1909).
Ohio.-McGregor v. Kilgore, 6
Ohio, 359 (1834).
V.
Pennsylvania.-Harrington
McShane, 2 Watts, 443 (1834).
South Carolina.-Faulkner v.
Illinois.-Dunseth v. Wade, 2 Wright, Rice (Law), 107 (1838);
Scam. 285 (1840).
Kansas.-The Emily, 5 Kans.
645 (1864).
Louisiana.-Oakey v. Russell, 6
Martin (N. S.), 58 (1827).
Maine.-Parker v. Flagg, 26
Me. 181 (1846).
McClures v. Hammond, 1 Bay, 99,
1 Am. Dec. 598 (1790).
Tennessee.-Kirkland v. Mont-
gomery, 1 Swan, 452 (1852).
2 24 La. Ann. 165, 13 Am. Rep.
120 (1872).
[146]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ § 173
writers and cases cited by them are examined the dis-
crepancy is more imaginary than real. There are two very
different ways in which a steam towboat may be employed,
and it is likely that Mr. Story was contemplating one
method and Mr. Kent the other. In the first place it may
be employed as a mere means of locomotion under the en-
tire control of the towed vessel; or the owner of the towed
vessel and goods therein may remain in possession and
control of the property thus transported to the exclusion
of the bailee; or the towing may be casual merely, and not
as a regular business between fixed termini. It might well
be said that under such circumstances the towboat or tug
is not a common carrier. But a second and quite different
method of employing a towboat is where she plies reg-
ularly between fixed termini, towing for hire and for all
persons, barges laden with goods, and taking into her full
possession and control, and out of the control of the
bailor the property thus transported. Such is the case at
bar." If therefore the towing line is really making a bus-
iness of carrying, that is, if it actually takes control of
the barges towed and itself transports them, the towboat
proprietors are common carriers.¹ But if we have the case.
of the harbor tug which is engaged in towing along vessels
which remain in the control of their masters we do not have
common carriage as the most of cases hold 2 although very
likely we have a case of public employment.³
1 United States.-See Vanderslice
v. The Superior, 28 Fed. Cas.
16,843 (1850).
California.-White v. Mary Ann,
6 Cal. 462, 65 Am. Dec. 523
(1856).
Louisiana.-Clapp v. Stanton,
20 La. Ann. 495, 96 Am. Dec. 417
(1868).
North Carolina.-Walston v.
Myers, 5 Jones, 174 (1857).
New Jersey.-Ashmore v. Penn.
St. Towing, etc., Co., 28 N. J. L.
180 (1860).
2 United States.-Steamer New
Philadelphia, 1 Black, 62, 17 L. ed.
84 (1861); The Quickstep, 9 Wall.
665, 19 L. ed. 767 (1869); Steamer
3 See § 150, supra.
[147]
§ 174]
PUBLIC SERVICE CORPORATIONS
§ 174. Wagon trains.
At one stage of the development of a country, the wagon
train often appears after the single wagon and before the
railroad construction. One interesting case from the
American frontier is Seligman v. Armijo.¹ In that case
settling the preliminary point of whether it was a case of
common carriage the court said: "The plaintiff having
sent his train to Junction City without any special agree-
ment for freight to transport for reward the goods of such
as might employ him, and having undertaken to carry
goods for the defendants and others, thereby assumed the
duties, obligations and liabilities of a common carrier in
respect to the goods carried by him."
Webb, 14 Wall. 406, 20 L. ed. 774
(1871); The Margaret, 94 U. S. 494,
24 L. ed. 146 (1876); Transporta-
tion Line v. Hope, 95 U. S. 297, 24
L. ed. 477; (1877) The Princeton, 3
Blatch. 54, Fed. Cas. 11,434 (1853);
The Lyon, 1 Brown's Adm. 59, 15
Fed. Cas. 8,645 (1861); Steamboat
Angelina Corning, 1 Ben. 109, Fed.
Cas. 384 (1867); The Stranger, 1
Brown's Adm. 281, Fed. Cas. 13,525
(1871); The Oconto, 5 Biss. 460,
Fed. Cas. 10,421 (1873); The Mer-
rimac, 2 Sawyer, 586, Fed. Cas.
9,478 (1874).
Illinois.―Knapp v. McCaffrey,
178 Ill. 107, 52 N. E. 898, 69 Am.
St. Rep. 290 (1899).
Kentucky. Varble v. Bigley, 14
Bush, 698, 29 Am. Rep. 435
(1879).
Maryland.-Penn., etc., Steam
Nav. Co. v. Dandridge, 8 Gill & J.
248, 29 Am. Dec. 543 (1836).
Massachusetts.—Sproul v. Hem-
mingway, 14 Pick. 1, 25 Am. Dec.
350 (1833).
New York.-Caton v. Rumney,
13 Wend. 387 (1835); Alexander v.
Greene, 3 Hill, 9, 7 ibid. 533 (1842);
Wells v. Steam Nav. Co., 2 N. Y.
204 (1849); Wells v. Steam Naviga-
tion Company, 2 Com. 204, 4 Seld.
375 (1853); Merrich v. Brainard, 38
Barb. 574 (1860); Arctic Fire Ins.
Co. v. Austin, 54 Barb. 559 (1869);
Abbey v. Steamboat Stevens, 22
How. Pr. 78 (1861); Emiliusen
v. Penn. R. Co., 30 N. Y. App.
Div. 203, 51 N. Y. Suppl. 606
(1898).
Pennsylvania.-Leonard v. Hen-
rickson, 18 Pa. St. 40, 55 Am. Dec.
587 (1851); Hays v. Paul, 51 Pa.
St. 134 (1865); Brown v. Clegg, 63
Pa. St. 51 (1869); Hays v. Millar,
77 Pa. St. 238, 18 Am. Rep. 445
(1874).
England.-The Julia, 14 Moore
P. C. 210 (1860); Symonds v. Pain,
6 Hurl & N. 709 (1861); The Minne-
haha, 1 Lush, 335 (1861).
11 N. Mex. 459 (1870).
[148]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§§ 175, 176
§ 175. Automobile lines.
In modern times in new districts the automobile line
often supplants the wagon train in the later development
of the frontier. These lines of cars cross long stretches of
country at high speed crossing frail-appearing bridges
specially constructed to fit their wheels. As this is now
becoming one of the commonplaces of transportation in
these regions, cases dealing with their relations with the
public may soon be expected. In the cities as well the
automobile truck is supplanting the horse drawn wagon
for express service. It may take the law some little time
to adjust itself to these new conditions, simply because
in restrictive statutes one is permitted to quibble.¹
§ 176. Railways.
It is a matter of history that where the first railways
were laid down at the beginning of the nineteenth century
the theory upon which they were constructed was that
they would be public highways, for the use of which those
that drove their vehicles over them should pay toll as for
the use of a turnpike or a canal. The introduction of the
steam locomotive brought about the end of that theory
almost before it was put into practice. A train drawn by
a locomotive was too expensive, the operation was too
costly, and its management too intricate for any shipper,
or even for any private carrier. Almost from the outset,
therefore, the railway company provided and operated the
engines and cars themselves, and accepted for trans-
portation such goods as were offered. They thus became
common carriers. The cases that hold this form so enor-
mous a list that it is difficult to select any one in particular
¹ See Fousler v. Atlantic City, 70
N. J. L. 125, 56 Atl. 119 (1905),
permitting general regulation of au-
tomobile service upon the basis that
this constitutes common carriage
whatever be the power utilized for
locomotion.
[149]
§ 177]
PUBLIC SERVICE CORPORATIONS
2
as an illustration. Indeed all courts will take judicial
knowledge that public railways are common carriers.
In one of the earlier cases, Chicago & Aurora Railroad v.
Thompson, the appellant railroad denied that it was a
common carrier because the charter of the corporation did
not declare it to be so, but Mr. Justice Breese said: "We
suppose it is not necessary that the charter should provide
in so many words that the railroad companies created by
them shall be common carriers. The authorities are nu-
merous to the point that such companies using cars for
the purpose of carrying goods for all persons indifferently,
for hire, and whose custom and uniform practice it is to
do so are common carriers and liable as such. There can
be no doubt on this point. There needs no legislative
declaration to make them such."
§ 177. Industrial railways.
It has already been pointed out, however, that it will
not do to say even to-day that all those who maintain
1 United States.-Railroad Co. v.
Lockwood, 17 Wall. 357, 21 L. ed.
627 (1873).
Alabama.-South Western R. Co.
v. Webb, 48 Ala. 585 (1872).
California.-Contra, Costa R. R.
Co. v. Moss, 23 Cal. 323 (1863).
Connecticut.-Fuller v. Nauga-
tuck R. R. Co., 21 Conn. 557 (1852).
Georgia.-East Tenn., etc., R.
Co. v. Whittle, 27 Ga. 535, 73 Am.
Dec. 741 (1859).
Illinois. Illinois Railroad Co. v.
Frankenberg, 54 Ill. 88, 5 Am. Rep.
92 (1870).
Indiana.-McCleary v. Babcock,
169 Ind. 228, 82 N. E. 453 (1907).
Maine.-New England Exp. Co.
v. Maine C. R. R. Co., 57 Me. 188,
2 Am. Rep. 31 (1869).
Massachusetts.-Thomas v. Bos-
ton & P. R. R. Co., 10 Metc. 472,
43 Am. Dec. 444 (1845).
Nebraska.-St. Joseph & G. I. R.
Co. v. Palmer, 38 Neb. 463, 56 N.
W. 957, 22 L. R. A. 335 (1893).
New Hampshire.—Elkins v. Bos-
ton & M. R. R., 23 N. H. 275
(1851).
New Jersey.-Rogers Locomotive
Works v. Erie Railway Co., 5 C. E.
Green, 379 (1869).
Vermont.-State v. Boston, C. &
M. R. R. Co., 25 Vt. 433 (1853).
Washington.-Boyle v. Great
Northern Ry. Co., 13 Wash. 383, 43
Pac. 344 (1896).
West Virginia.-Laurel Fork &
S. H. R. Co. v. West Virginia T.
Co., 25 W. Va. 324 (1884).
2 19 Ill. 578 (1858).
[150]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 178
3
1
4
railway trackage even if they have devoted it to public
service are engaged in common carriage. They may only
furnish facilities over which other carriers may run their
trains as do bridge companies ¹ and terminal companies, 2
or they may undertake to furnish the motive power to
switch the trains of others about and yet not so take
possession as to be carriers which is often the case of
union railways ³ and belt lines. But in dealing with these
services we may often come upon common carriage in
fact where the connecting railway both takes possession
and furnishes the motive power, in which case they would
be common carriers.5 An added importance has accrued
to this subject because of the recent invention of a kind
of railway known as the "industrial" railway. This is a
short line of railway, owned by an industrial corporation
or by the owners of some business enterprise, and connect-
ing the factory or the place of business with the main
line of some railway. When such a road, however short
it may be, is actually operated independently with its
own locomotives and cars, it would seem to be an in-
dependent carrier, though it is operated for the exclusive
benefit of the industrial enterprise which owns it provided
it would accept such general traffic along its line as might
be offered to it.
6
§ 178. Express companies.
The business of transporting small or valuable goods
has come largely into the hands of express companies.
So far as such companies merely transmit parcels locally
in their own teams, they are evidently carriers. The more
important work of the companies, however, is done in
1 See § 126, supra.
2 See § 125, supra.
3 See § 129, supra.
4 See § 130, supra.
Fleming v. Kansas City Subur-
ban Belt R. R., 89 Mo. App. 129
(1901).
• See United States v. Atchison,
T. & S. F. Ry. Co., 142 Fed. 176
(1905).
[151]
§ 178 1 PUBLIC SERVICE CORPORATIONS
connection with the carriage of parcels over a long dis-
tance over the lines of railways or steamboats. The
express company has at the place of departure a local
agent who receives the parcel for transmission; it is then
transported over the line of a railway or steamboat, but
always in a part of the train or boat set aside for the ex-
press company, and at all times in the control and care of
an agent of the company; and upon the arrival of the
train or boat at the place of destination the parcel is taken
by a local agent and by him delivered to the consignee.
At first the express companies attempted to maintain that
they were only forwarders under such circumstances-
not carriers, properly speaking. But it is now well rec-
ognized that their service constitutes carriage since they
retain possession throughout.¹ And as they exercise this
1 United States.-Bank of Ken-
tucky v. Adams Exp. Co., 93 U. S.
174, 23 L. ed. 872; Missouri, K. &
T. Ry. v. Dinsmore, 108 U. S. 30, 27
L. ed. 640, 2 Sup. Ct. 9 (1883).
Alabama.-Southern Express Co.
v. Crook, 44 Ala. 468, 4 Am. Rep.
140 (1870).
Colorado.-Overland Express Co.
v. Carroll, 7 Col. 43, 1 Pac. 682
(1883).
District of Columbia.-Galt v.
Adams Express Co., MacArthur
and M. 124, 48 Am. Rep. 742
(1879).
Florida.-Southern Express Co.
v. Van Meter, 17 Fla. 783, 35 Am.
Rep. 107 (1880).
Georgia.-Southern Express Co.
v. Newby, 36 Ga. 635, 91 Am. Dec.
783 (1867).
Illinois.-Boscowitz V. Adams
Express Co., 93 Ill. 523, 34 Am.
Rep. 191 (1879).
Indiana.-United States Express
Co. v. State, 164 Ind. 196, 73 N. E.
101 (1905).
Kansas.-Adams Exp. Co. v.
McConnell, 27 Kans. 238 (1882).
Massachusetts.—Buckland v. Ad-
ams Express Co., 97 Mass. 124, 93
Am. Dec. 68 (1867).
Michigan.-United States Exp.
Co. v. Root, 47 Mich. 231, 10 N. W.
351 (1881).
Minnesota.-Christenson v.
American Express Co., 15 Minn.
270, 2 Am. Rep. 122 (1870).
Missouri.-Kirby v. Adams Ex-
press Co., 2 Mo. App. 369 (1876).
New York.-Belger v. Dinsmore,
51 N. Y. 166, 10 Am. Rep. 575
(1872).
Ohio.—American Express Co. v.
Smith, 33 Ohio St. 511, 31 Am. Rep.
561 (1878).
Oregon.-Bennett v. Northern
Exp. Co., 12 Oreg. 49, 6 Pac: 160
(1885).
Pennsylvania.-Grogan v. Adams
[152]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 179
employment of receiving, carrying, and delivering goods,
wares, and merchandise for hire on behalf of all persons
who may see fit to require their services, there has never
been any doubt that their employment was sufficiently
public to make it a case of common carriage. Their
service is therefore at the disposal of the public in gen-
eral.¹ 1
$179. Pneumatic tubes.
A company operating lines of pneumatic tubes under
the streets of a city for the transportation of small parcels
for the general public would undoubtedly be a public
service corporation and obliged, therefore, to transport for
all suitable parcels at reasonable rates without discrim-
ination.2 Some few examples of this sort of service are
known, but just at present the use of this system of trans-
portation seems to be confined to the government which
contracts for their exclusive service in handling the mails.
Exp. Co., 114 Pa. St. 523, 7 Atl.
134, 60 Am. Rep. 360 (1886).
South Carolina.-Stadhecker v.
Combs, 9 Rich. Law, 193 (1856).
Tennessee.-Southern Exp. Co.
v. Womack, 1 Heisk. 256 (1870).
Texas.-Pacific Exp. Co. v. Dar-
nell, 62 Texas, 639 (1884).
Vermont.-Hadd v. United States
Exp. Co., 52 Vt. 335, 36 Am. Rep.
757 (1880).
Wisconsin.-Wells v. American
Exp. Co., 55 Wis. 23, 11 N. W. 537,
12 N. W. 441, 42 Am. Rep. 695
(1882).
¹ In the following cases particu-
larly the public duty of the express
companies is emphasized:
v. Rose Co., 124 Ga. 581, 53 S. E.
185 (1905).
Indiana.-Adams Express Co. v.
State, 161 Ind. 328, 67 N. E. 1033
(1903).
Mississippi.-Southern Express
Co. v. Moon, 39 Miss. 822 (1863).
Nebraska.-State v. Pacific Ex-
press Co., 80 Neb. 823, 115 N. W.
619, 18 L. R. A. (N. S.) 664 (1908).
North Carolina.-Alsop v. South-
ern Express Co., 104 N. C. 278, 10
S. E. 297, 6 L. R. A. 271 (1889).
Canada.-Johnson v. Dominion
Exp. Co., 28 Ont. Rep. 203 (1896).
2 This was assumed in Astor v.
Arcade Ry. Co., 113 N. Y. 93, 20
N. E. 594, 2 L. R. A. 789 n. aff. 48
United States.-Platt v. Le Cocq, Hun, 562, 1 N. Y. Supp. 174
150 Fed. 391 (1906).
Georgia.-Southern Express Co.
(1888).
[153]
§ 180]
PUBLIC SERVICE CORPORATIONS
As these contracts are the basis upon which these lines are
constructed and operated they show that there is no
general profession to serve the public contemplated, and
therefore the business is not as yet upon a public basis.
§ 180. Dispatch companies.
The same question came up several times for decision
in regard to the dispatch companies. These freight lines
again claimed that they were forwarders only and not
carriers at all; but the courts held consistently that as
they took possession they were carriers, and that as they
professed a common calling they were common carriers.
One representative case where these companies were
charged as common carriers will do for all-Merchants'
Transportation Company v. Bloch Brothers,¹-in which
it was said: "This instruction properly treats the defend-
ant as a common carrier. The duties which it undertakes,
and which it holds itself out to the public as willing to
undertake and perform, give it that character. In very
many cases it has been expressly adjudged to be a common
carrier, and in others such has been assumed to be its
character without a discussion of the question. The text-
writers say that dispatch companies are common carriers,
and class them with express companies because of the
many points of similarity in their business, and the fact
that they alike generally use the vehicles of others in the
transportation of freight.2
186 Tenn. 392, 6 S. W. 881, 6
Am. St. Rep. 847 (1888).
2 Colorado.-Merchants' Dispatch
Co. v. Cornforth, 3 Colo. 280, 25
Am. Rep. 757 (1877).
Illinois.—Merchants'
Dispatch
Co. v. Bolles, 80 Ill. 473 (1875);
Merchants' Dispatch Co. v. Leysor,
89 Ill. 43 (1878); Merchants' Dis-
patch Co. v. Joesting, 89 Ill. 153
(1878).
Iowa.-Cownie Glove Co. v.
Merchants' Dispatch Co., 130 Iowa,
327, 106 N. W. 749, 4 L. R. A.
(N. S.) 1060 (1906); Robinson v.
Merchants' Dispatch Co., 45 Iowa,
470 (1877); Stewart v. Merchants'
Dispatch Co., 47 Iowa, 229 (1877);
Wilde v. Merchants' Dispatch Co.,
47 Iowa, 247 (1877); Bancroft v.
Merchants' Dispatch Co., 47 Iowa,
262 (1877).
[ 154 ]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§§ 181, 182
§ 181. Fast freight lines.
The nature of the fast freight lines which so often are
advertised is always a question of fact. Sometimes these
will be found to be dispatch companies, such as have
just been described,¹ operating under this name. As
usually distinguished from dispatch companies, however,
these fast freight lines will generally be found to be main-
tained directly by the railways concerned themselves. As,
however, this service is offered to the public as through
carriage, shippers are led to deal with the line itself in
this matter; and the railways concerned in establishing
these fast freight lines are generally held to be liable
practically as partners pro hac vice.2
Topic B. Carriers of Passengers
§ 182. Ferries.
The ferryman, as has been seen, has been in public
employment from time immemorial. Obviously a ferry-
man is a common carrier of goods if it is shown that he has
taken the goods into his control; but he does not usually
do so.
He more commonly takes passengers only, and if
the passengers have goods they commonly keep possession
of their property. But whether he usually carries passen-
New
3
York.-Mercantile M. &
Ins. Co. v. Chase, 1 E. D. Smith,
115 (1850).
¹ See particularly Merchants'
Transportation Co. v. Bloch Bros.,
86 Tenn. 392, 6 S. W. 881, 6 Am.
St. Rep. 847 (1888). See also Bax-
ter & Co. v. Wheeler et al., 49 N. H.
9 (1869).
2 See, for one example, Rocky
Mount Mills v. Wilmington & W.
R. Co., 119 N. C. 693, 56 Am. St.
Rep. 682, 25 S. E. 854 (1896). And
for another Wyman v. Chicago &
A. R. R. Co., 14 Mo. App. 35 (1877).
3 Alabama.-Babcock v. Herbert,
3 Ala. 392, 37 Am. Dec. 695 (1842);
Frierson v. Frazier, 142 Ala. 232,
37 So. 825 (1904).
Arkansas.-Harvey v. Rose, 26
Ark. 3, 7 Am. Rep. 595 (1870).
California.-May v. Hanson, 5
Cal. 360, 63 Am. Dec. 135 (1855).
Illinois.-Claypool v. McAllister,
20 Ill. 504 (1858).
Iowa.-Whitmore v. Bowman, 4
Green, 148 (1853).
Kentucky.-Hall v. Renfo, 3 Met.
51 (1860).
Massachusetts.—Le Barron V.
[155]
§ 183 1
PUBLIC SERVICE CORPORATIONS
gers only or goods only he may obviously be shown to be
a common carrier.¹ The law then imposes upon him the
duties and liabilities of a common carrier of passengers or
of goods or of both as the case may be.
§ 183. Ships.
That vessels of all kinds may be common carriers of
goods has already been pointed out. It is also obvious
that if their proprietors have also undertaken the carriage
of passengers they will be liable as public carriers. In
summing up to the jury in the leading case 2 dealing with
carriers of passengers by water, Judge Story said, "There
is no doubt that this steamboat is a common carrier of
passengers for hire; and therefore the defendant as com-
mander was bound to take the plaintiff as a passenger
on board if he had suitable accommodations and there
was no reasonable objection to the character or conduct
of the plaintiff."3
East B. Ferry Co., 11 Allen, 312, 87
Am. Dec. 717 (1865).
Mississippi.-Powell v. Mills, 37
Miss. 691 (1859).
Missouri.-Pomeroy v. Donald-
son, 5 Mo. 36 (1837).
New York.-Wyckoff v. Queen's
County Ferry Co., 52 N. Y. 32, 11
Am. Rep. 650 (1873).
North Carolina.-Spivy v. Farm-
er, 2 Hawy. 339 (1805).
Alabama.-Pate v. Henry, 3
Stew. & P. 101 (1833).
New York.-Mayor, etc., of New
York v. Starin, 106 N. Y. 1, 12
N. E. 631. (1887).
Virginia.-Carter v. Common-
wealth, 2 Va. Cas. 354 (1823).
Washington.-Stevenson v. West
Seattle L. & Imp. Co., 22 Wash. 84,
60 Pac. 51 (1900).
2 Jenks v. Coleman, 2 Sumn. 225
Ohio.-Wilson v. Hamilton, 4 (1835).
Ohio St. 722 (1855).
Pennsylvania.-Smith v. Seward,
3 Pa. St. 342 (1846).
Tennessee.-Sanders v. Young, 1
Head, 219, 73 Am. Dec. 175 (1858).
Texas.-Albright v. Penn, 14 Tex.
290 (1855).
1 In the following cases among
many others the public duties of
ferrymen are discussed:
3 See the following cases among
many others:
United States.-The Pacific, 1
Blatchf. 569 (1850); The Zenobia, 1
Abb. Adm. 48 (1847).
South Carolina.-McCleneghan v.
Brock, 5 Rich. L. 17 (1851).
V.
West Virginia.-Gillingham
Ohio River R. Co., 35 W. Va. 588, 14
S. E. 243, 29 Am. St. Rep. 827 (1891).
[156]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ §§ 184, 185
§ 184. Stagecoaches.
The common method of carrying passengers before the
invention of railways was by stagecoach; and there can,
of course, be no doubt that public coaches are common
carriers. In the leading American case, Bennett v. Dut-
ton,¹ Chief Justice Parker said: "We are of opinion that
the proprietors of a stagecoach for the regular transpor-
tation of passengers for hire from place to place, are, as
in the case of common carriers of goods, bound to take all
passengers who come so long as they have convenient
accommodation for their safe carriage unless there is
a sufficient excuse for a refusal."
§ 185. Omnibus lines.
112
Omnibus lines which transport passengers and their
baggage across cities between railroad terminals are obvi-
ously carriers of passengers and their baggage. In some
few cases this has been contested, but it has been uni-
formly held that these lines are not only common car-
riers of their passengers, but also common carriers,
strictly, of their baggage, liable for its loss at all events.
As is said in one case,3 "The court will take notice of the
England.-Benett v. Peninsular
Steamboat Co., 6 C. B. 775 (1848).
1 10 N. H. 481 (1839).
2 As to the public liabilities of
proprietors of stagecoaches, see:
V.
United States.-Saltonstall
Stockton, Taney, 11 (1838).
Connecticut.-Merwin v. Butler,
17 Conn. 138 (1845).
Iowa.-Frink v. Coe, 4 Green,
555, 61 Am. Dec. 141 (1854).
Kentucky.-Robertson v. Ken-
nedy, 2 Dana, 430, 26 Am. Dec. 466
(1834).
ter, 1 Pick. 50, 11 Am. Dec. 133
(1822).
New Hampshire.-Shelden v.
Robinson, 7 N. H. 157, 26 Am. Dec.
726 (1834).
V.
Pennsylvania.-Beckman
Shouse, 5 Rawle, 179, 28 Am. Dec.
653 (1835).
South Carolina.-Peixotti v. Mc-
Laughlin, 1 Strob. L. 468, 47 Am.
Dec. 563 (1847).
Tennessee.-Walker v. Skipwith,
Meigs, 502, 33 Am. Dec. 161 (1838).
England.-Lovett v. Hobbs, 2
Maryland.—Stockton v. Frey, 4 Show. 127 (1680).
Gill, 406 (1846).
Massachusetts.-Dwight v. Brews-
3 Illinois.-Parmelee v. McNulty,
19 Ill. 556 (1858).
[157]
§§ 186, 187] PUBLIC SERVICE CORPORATIONS
general meaning of words, and we know that an omnibus
line means a line of coaches for the carriage of passengers
and their baggage. If this line was established for other
purposes, that should have been shown in the defence.” 1
§ 186. Hacks.
From time immemorial hackmen have been subject to
regulation as to the terms which they shall make in
rendering their services. As is said in Munn v. Illinois 2
in reviewing the public callings universally recognized:
"The hackney coachman pursues a public employment
and exercises a sort of public office." As has been seen,
at the foundation of this law lie the monopolistic condi-
tions, temporary though they may be, which circumscribe
the dealings between the hackman and his passenger,
making the situation such that the law must intervene to
save him from extortion.³
§ 187. Taxicabs.
The latest development in urban service of this sort
is the taxicab. These being automobiles are subject to
¹ The following cases deal with
this service:
Georgia.-Dibble v. Brown, 12
Ga. 217, 56 Am. Dec. 460 (1852).
Illinois.-Parmelee v. Lowitz, 74
Ill. 116, 24 Am. Rep. 276 (1874).
Indiana. Frank Bird Transfer
Co. v. Krug, 30 Ind. App. 602
(1902).
Missouri.-Lemon v. Chanslor,
68 Mo. 340, 30 Am. Rep. 799 (1878).
New Jersey.-See Atlantic City v.
Dehn, 69 N. J. L. 233, 54 Atl. 220
(1903).
New York.-Powell v. Myers, 26
Wend. 591 (1841).
Ohio.-Jones v. Voorhees, 10
Ohio, 145 (1840).
Pennsylvania.-McGill v. Ro-
wand, 3 Barr, 451, 45 Am. Dec. 654
(1846).
Tennessee.-Bomar v. Maxwell, 9
Humph. 620, 51 Am. Dec. 682
(1849).
England.-Brooke v. Pickwick, 4
Bing. 218 (1827).
2 94 U. S. 113, 24 L. ed. 77 (1876).
3 In the following cases among
others the propriety of the regula-
tion of the services of hackmen is
recognized:
Iowa.-Bonce v. Dubuque St.
Ry. Co., 53 Iowa, 278, 5 N. W. 177,
36 Am. Rep. 221 (1880).
New Jersey.-Combs v. Lake-
wood, 68 N. J. L. 582, 53 Atl. 697
(1902).
[158]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ § 188
peculiar regulation in their use of the highways. All the
general law governing the operation of automobiles relate
to them, and a special license is often necessary for those
who engage in the business for hire. If they ply the
streets for hire they are undoubtedly holding themselves
out as common carriers of passengers. Strictly speaking
they are not so identified with ordinary hackney carriages
as to be within statutes applying to them. "The Legisla-
ture, in using the word carriage had no thought of a ve-
hicle made up in large part of complicated machinery and
propelled by a powerful engine whose operation is sim-
ilar to that of locomotive engines on railroads." 1
§ 188. Passenger railways.
It is needless to state that railways in general are public
carriers of passengers as well as common carriers of goods.
Examples will occur where a railway has confined its
carriage to the carriage of goods only,2 and in such case it
cannot be called upon to take passengers. But the usual
fact is that it has undertaken to carry passengers 3 as
well as goods, and then the railway company is bound as
¹ A public taxicab was thus held
not to be a public carriage within
the meaning of a penal statute pun-
ishing those who evade the estab-
lished carriage fares in Common-
wealth v. Goldman, 205 Mass. 400,
91 N. E. 392 (1910)—quoted in the
text. But in Gassenheimer v. Dis-
trict, 26 D. C. App. Cas. 557 (1906)
holding a taxicab a vehicle within a
statute against loitering.
2 Illinois.-Wiggins Ferry Co. v.
East St. Louis V. Ry. Co., 107 Ill.
450 (1883).
Massachusetts.
Commonwealth
V. Fitchburg R. R. Co., 12 Gray,
180 (1858).
3 A very few of the many cases
that hold that a passenger railroad
is a common carrier bound to ac-
cept all proper passengers who ap-
ply, are subjoined:
United States.-Thurston v. Union
Pacific R. R. Co., 4 Dillon, 321
(1877).
Georgia.-Caldwell v. Richmond
& D. R. Co., 89 Ga. 550, 15 S. E.
678 (1892).
Illinois. Galena & C. U. R. R.
Co. v. Yarwood, 15 Ill. 468 (1854).
Indiana.-Erie Lake & W. Ry.
Co. v. Acres, 108 Ind. 548, 9 N. E.
453 (1886).
North Carolina.-Story v. Nor-
folk & S. R. Co., 133 N. C. 59, 45
S. E. 349 (1903).
[159]
§ 189]
PUBLIC SERVICE CORPORATIONS
a common carrier, when not overcrowded, to take all
proper persons who may apply for transportation over its
line on their complying with reasonable rules of the com-
pany.
§ 189. Street railways.
1
Considered merely as an improved omnibus line a street
railway is obviously a common carrier of passengers.
So clearly is this service public in character that the
cases all deal with the extent of their obligations, the
primary obligation of public service being assumed. For
as was said in a leading case in Washington ¹ by Mr.
Justice Reeves: "Its franchise was granted to appellant
by the State, not for its own profit alone or that of its
stockholders, but in a large measure for the public bene-
fit. Peculiar privileges were conferred upon it in con-
sideration that it would provide facilities for communi-
cation and for intercourse for the public. It is a common
carrier. It was granted the power of eminent domain, a
part of the sovereignty of the State, and, with the consent
of the municipalities it may lay its tracks over the public
streets or highways."2
¹ State v. Spokane St. Ry., 19
Wash. 518, 53 Pac. 719, 41 L. R. A.
515, 67 Am. St. Rep. 739 (1898).
2 The following are selected al-
most at random from the in-
numerable cases which define the
public duties of street railways as
common carriers of passengers:
United States.-Milwaukee Elec.
Ry. v. Milwaukee, 87 Fed. 577
(1898).
California.-Barrett v. Market
St. Ry., 81 Cal. 296, 22 Pac. 859,
15 Am. St. Rep. 61, B. & W. 297
(1889).
Illinois.-Dean v. Chicago Gen-
eral Ry., 64 Ill. App. 165 (1896).
Indiana.-Citizens' St. R. Co. v.
Twiname, 111 Ind. 587, 13 N. E. 55
(1887).
Kansas.-Topeka City Ry. Co. v.
Higgs, 38 Kan. 375, 16 Pac. 667, 5
Am. St. Rep. 754 (1888).
Massachusetts. · Commonwealth
v. Interstate Consolidated Ry., 187
Mass. 436, 73 N. E. 530, 11 L. A. R.
(N. S.) 973 (1905).
Minnesota.-State v. St. Paul
City Ry. Co., 78 Minn. 331, 81 N.
W. 200 (1899).
Missouri.-Jackson v. Grand
Ave. Ry. Co., 118 Mo. 199, 24 S. W.
192 (1893).
Montana.-State v. Helena P. &
[160]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ §§ 190, 191
§ 190. Elevated railways.
3
4
The successive changes in street railways came about by
such imperceptible degrees that it was not held that there
was in these gradual developments any change in the
situation. The motive power utilized was successively
horse,¹ cable,2 steam, and electricity; but still the law
regarded street railways as ordinary carriers over the
highways. Thus the occupation of the surface of streets
for tramways, whatever motive power may be used, has
been held not only a public use but so within the original
uses as a highway as not to constitute an additional serv-
itude. The construction of elevated railways, however,
although admittedly a public use, was held to create an
additional servitude by reason of their extensive and
permanent occupation of location, and their interference
with the light and air of the abutters. This, however,
was a close question as a comparison of the majority and
minority opinions in the leading case,5 will show.
§ 191. Underground railways.
Underground railways have the same status of common
carriers that all public urban passenger services have.
L. Co., 32 Mont. 391, 56 Pac. 685
(1899).
Nebraska.-Pray v. Omaha St.
Ry. Co., 44 Neb. 167, 62 N. W. 447,
48 Am. St. Rep. 717 (1895).
New Jersey.-State ex rel. City of
Bridgeton v. Bridgeton Traction
Co., 62 N. J. L. 592, 43 Atl. 715, 45
L. R. A. 837 (1898).
New York.-Loader v. Brooklyn
Heights R. R. Co., 35 N. Y. Supp.
996, 14 Misc. 208 (1895).
Oregon. Thompson-Houston
Elec. Co. v. Simon, 20 Oreg. 60, 25
Pac. 147, 10 L. R. A. 251, 23 Am. St.
Rep. 86 (1890).
Pennsylvania.-Meier v. Penn-
sylvania R. Co., 64 Pa. St. 225, 3
Am. Rep. 581 (1870).
¹ See Holly v. Atlanta St. Ry.
Co., 61 Ga. 215, 34 Am. Rep. 97
(1878)
2 See Watson v. St. Paul City
Ry. Co., 42 Minn. 46, 43 N. W. 904
(1889).
³ See Spellman v. Lincoln Rapid
Transit Co., 36 Neb. 890, 55 N. W.
270, 38 Am. St. Rep. 753 (1893).
4 See Thompson-Houston Elec-
tric Co. v. Simon, 20 Oreg. 60, 25
Pac. 147, 23 Am. St. Rep. 86, 10
L. R. A. 251 (1890).
5 See Story v. New York Elevated
R. R. Co., 90 N. Y. 122 (1882).
11
[161]
§ 192]
PUBLIC SERVICE CORPORATIONS
1
This underground railway may be arranged for as has been
seen ¹ by the construction of subways by public author-
ities in analogy to highways for the use of which the
railway company pays a specified compensation. Or these
underground railways may construct their own tunnels
under statutes similar to those authorizing the construc-
tion of any railroad in which tunneling is incidental
merely. In a recent case 2 the Pennsylvania court in
deciding such railways to be like other railroads held that
such property rights as they invade in such construc-
tion they might condemn by eminent domain, paying
proper compensation, and thus acquire a permanent right
of way underground.
§ 192. Interurban railways.
As has been seen, so long as the street railway might be
regarded as a development of transportation by such
vehicles as omnibuses over highways, it was properly
held that its construction involved no additional servi-
tudes upon abutters but that they were in fact an actual
relief from congested traffic. The modern interurban
railway with its heavy trains operated at high speed over
country roads as through traffic is very different as the
cases now generally hold. In Zehren v. Milwaukee Elec-
tric Railway, to quote one case as an example, Judge
Jordan said: "The urban railway has developed into the
interurban railway, and threatens soon to develop into the
interstate railway. The small car which took up passen-
gers at one corner, and dropped them at another, has
become a large coach, approximating the ordinary railway
coach in size, and has become a part, perhaps, of a train
3
¹ Prince v. Crocker, 166 Mass.
347, 44 N. E. 446, 32 L. R. A. 610
(1896), discussed in § 77, supra.
2 Sparks v. Philadelphia, etc.,
Ry., 212 Pa. St. 105, 61 Atl. 881
(1905)
3 99 Wis. 83, 74 N. W. 538, 41 L.
R. A. 575, 67 Am. St. Rep. 844
(1898).
[162]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [§ 193
which sweeps across the country from one city to another,
bearing its load of passengers ticketed through, with an
occasional local passenger picked up on the highway.
The purely city purpose which the urban railway sub-
served has developed into or been supplanted by an
entirely different purpose, namely, the transportation of
passengers from city to city over long stretches of inter-
vening country." 1
§ 193. Passenger elevators.
2
In maintaining and operating an elevator for passengers,
the owner is, according to the majority of the cases, under
a duty to exercise the same measure of care as is required
of a public carrier of passengers, the highest degree of
care which human foresight can suggest. But certain
other cases refuse to go to this extent, holding that as the
owner of the elevator is not engaged in a public calling,
there is no occasion for imposing the extraordinary lia-
bility. In the matter of exercising care, it may be con-
3
¹ See also Aurora v. Elgin Trac-
tion Co., 227 Ill. 485, 81 N. E. 544,
118 Am. St. Rep. 284 (1907).
2 United States.—Mitchell v.
Marker, 62 Fed. 139, 22 U. S. App.
325, 10 C. C. A. 306, 25 L. R. A. 33
(1894).
Alabama.-Morgan v. Saks, 143
Ala. 139, 38 So. 848 (1904).
California.-Treadwell v. Whit-
tier, 80 Cal. 574, 22 Pac. 266, 5 L.
R. A. 498, 13 Am. St. Rep. 175
(1889).
Exchange
Illinois.-Chicago
Bldg. Co. v. Nelson, 197 Ill. 334,
64 N. E. 369 (1902).
Maryland.-Wise v. Ackerman,
76 Md. 375, 25 Atl. 424 (1892).
Minnesota.-Gurney v. Minneap-
olis Union Elev. Co., 63 Minn. 70,
65 N. W. 136, 30 L. R. A. 534
(1895).
Missouri.-Goldsmith v. Holland
Bldg. Co., 182 Mo. 597, 81 S. W.
1112 (1904).
Pennsylvania.-Fox v. Philadel-
phia, 208 Pa. St. 127, 57 Atl. 356
(1904).
Tennessee.-Southern B. & L.
Assn. v. Lawson, 97 Tenn. 367, 37
S. W. 86, 56 Am. St. Rep. 804
(1896).
Washington.-Edwards v. Burke,
36 Wash. 107, 78 Pac. 610 (1904).
Wisconsin.-Oberndorfer v.
Pabst, 100 Wis. 505, 76 N. W. 338
(1898).
3
Kentucky.-Phillips Co. v.
Pruitt, 26 Ky. Law Rep. 831, 82
S. W. 628 (1904).
[163]
§ 194]
PUBLIC SERVICE CORPORATIONS
ceded, his position is fairly analogous to that of the com-
mon carrier of passengers, but beyond this the analogy
ceases. No court, indeed, would regard the owner of the
elevator as a common carrier for all purposes in the sense
that he is engaged in a public calling and obliged to serve
all without discrimination. "Carriers not exercising a
common calling as such are not common carriers whatever
their liabilities may be. But the defendant did not exer-
cise the common calling of a carrier, as sufficiently appears
from the fact that he might have shut the elevator door
in the plaintiff's face and arbitrarily have refused to carry
him without incurring any liability to him."
§ 194. Moving platforms.
A company operating a moving platform by which
passengers might be regularly transported from place to
place for an established fare would undoubtedly be held
a common carrier. Such a method of transportation has
been seriously proposed as a method of relief from the con-
gestion of passenger transportation in the city of New
York. Just at present this sort of carriage is practically
confined to moving stairways. In so far as these are part
of the facilities provided by railway companies at their
terminals the cases would undoubtedly hold the company
liable as a carrier of passengers for any injuries caused in
the course of their operation. Such stairways in business
buildings would by many cases be held to be covered by
the law governing the carriage of passengers in analogy
to elevators.
Massachusetts.-Seaver v. Brad-
ley, 179 Mass. 329, 60 N. E. 795, 88
Am. St. Rep. 384 (1901), quoted
above.
Michigan.-Hall v. Murdock,
114 Mich. 233, 72 N. W. 150 (1897).
New York.-Griffen v. Manice,
166 N. Y. 188, 59 N. E. 925, 52 L.
R. A. 922, 82 Am. St. Rep. 630
(1901).
Rhode Island.-Edwards v. Mfrs.
Building Co., 27 R. I. 248, 61 Atl.
646, 2 L. R. A. (N. S.) 744, 114 Am.
St. Rep. 37 (1905).
[164]
COMMON CARRIAGE AS PUBLIC EMPLOYMENT [ §§ 195, 196
§ 195. Pleasure railways.
Where any railway is being actually used in regular
travel for the use of which a regular fare is paid, it would
seem to be a common carrier of passengers. Mountain
railways in general, however devised, would seem to come
within these conditions. One must be cautious in stating
this, however, as there is a decision in the highest court
of New York¹ to the effect that eminent domain could
not be granted to the Niagara Gorge trolley line, Mr. Jus-
tice Andrews saying: "The case does not, we think, differ
in principle from an attempt on the part of a private
corporation, under color of an Act of the Legislature,
to condemn lands for an inclined railway, or for a circular
railway, or for an observatory, to promote the enjoyment
or convenience of those who may visit the Falls." And it
is of course true that there are certain enterprises whereby
people are moved about, such as "merry-go-rounds,'
"scenic railways," "shooting-the-chutes," "ferris wheels,
and "roller coasters," which are obviously not common
carriage, however willing their proprietors may be to take
all who will pay. We are certainly outside the range of
real travel now, which alone is properly within the coercive
law of public carriage.2
""
""
§ 196. Common carriage as a public employment.
As has been seen, common carriage has for a long time
¹ Matter of the Niagara Falls &
W. Railway, 108 N. Y. 375, 15 N.
E. 429 (1888).
2 As to the liability of the pro-
prietors of such pleasure railways,
see:
Illinois.-O'Callaghan v. Dell-
wood Park Co., 242 Ill. 336, 89 N. E.
1005, 26 L. R. A. (N. S.) 1054
(1909), all the care practicable.
Michigan.-In Knottnerus V.
North Park Street R. Co., 93 Mich.
348, 17 L. R. A. 726, 53 N. W. 529
(1892), not liable as insurer.
New York.-Lumsden v. L. A.
Thompson Scenic R. Co., 130 App.
Div. 209, 114 N. Y. Supp. 421
(1909), not obliged to explain.
Virginia. Washington Luna
Park Co. v. Goodrich, 110 Va. 692,
66 S. E. 977 (1910), liable for real
negligence.
[165]
§ 196 ] PUBLIC SERVICE CORPORATIONS
been regarded as the typical and indeed almost the only
public employment; and though the number of public
service companies has been greatly increased of late years,
it still remains the most important. Upon what grounds
is the regulation of common carriers to be justified.
Legal privileges are often found, to be sure. Thus emi-
nent domain is granted, the steam roads facilitate their
construction, and the use of the streets is given to street
railways to conduct their business. But, on the other
hand, there are many sorts of common carriers which have
no special privileges as, for instance, steamship lines and
city truckmen. There must be some wider principle,
therefore, which operates in establishing the public duties
of common carriers as a class. And this is not to be
found in natural monopoly, for there is no reason in
nature why there should not be as many carriers as any-
one might wish for, but in the virtual monopoly of the
established service. In the case of the important carriers
to-day-the railway, the street railway, the express com-
pany, the steamship line the enormous amount of money
invested discourages and prevents competition. The
amount of money necessary to be raised and put at risk
in order to enter upon the business of carriage is too
great to subject it to competition with an already estab-
lished and successful enterprise. Even when an invest-
ment is made, a competing line of railroad built or a new
express company organized, it soon becomes apparent
that competition is ruinous to one if not to both of the
enterprises, and consolidation results, bringing monopoly
again. The business of carriage is essentially monopo-
listic in character, and therefore the situation calls for
the special law regulating established monopoly which it
has always received.
[166]
PART II. PUBLIC PROFESSION
CHAPTER VI
EXPRESS UNDERTAKING OF PUBLIC EMPLOYMENT
§ 200. Public profession an essential element.
Topic A. Explicit Profession of Public Service
§ 201. Early assumpsit associated with public calling.
202. Express assumption of a public trust.
203. Displaying signs.
204. Public advertisement.
205. General solicitation.
206. Express disclaimer.
207. Service before business begun.
208. Profession made without authority.
209. Service undertaken beyond obligation.
210. Service undertaken in unusual manner.
Topic B. Implicit Undertaking of Public Employment
§ 211. Charter stipulation.
212. Permissive charter.
213. Taking out public license.
214. Exercise of eminent domain.
215. Acceptance of municipal franchises.
216. Entering into municipal contract.
217. Aid from taxation.
218. Governmental participation.
§ 200. Public profession an essential element.
It should be remembered, in justification of the impo-
sition of the extraordinary law which requires those who
are engaged in public callings to serve all that apply, that
the service is voluntarily assumed. Even one who has
acquired a virtual monopoly is not forced into public
|
[167]
§ 2011
PUBLIC SERVICE CORPORATIONS
service against his will; it is only when he has held him-
self out in some way as ready to serve that he is bound
thereafter to deal with all indiscriminately. There is no
complete case of public employment made out when the
business is public in character if there has been in the
particular case no profession to serve the public. The
converse of this is also true, that there is no case of pub-
lic employment if the business is private in character,
however much eagerness to deal with the public may
have been evinced. That is, the rule is fundamental
that in any case of public employment the evidence of
profession to serve the public and the proof that the bus-
iness is public in character must both be sufficient to
carry conviction. For whether there has been profes-
sion enough in the particular instance and whether the
business is sufficiently public in its general character is
in each instance in last analysis a question of fact, al-
though rules of law may aid in dealing with these facts.
And since this is a question of fact rather than a question
of law in most cases, the discussion of it requires the
statement of many cases involving many close issues of
fact. For although the public profession is often enough
made in express terms, it is also not infrequently left to
implication from the general course of the business in
question.
Topic A. Explicit Profession of Public Service
1
§ 201. Early assumpsit associated with public calling.
It has been seen ¹ that in the course of the development
of our law the obligation resting upon one who had made
a general assumption of public service preceded the obli-
gation of one who had made a special promise in a par-
ticular case. It has been remarked 2 that the earliest cases
¹ See § 4, infra.
See Professor Ames on the His-
tory of Assumpsit in 2 Harvard
Law Review, pp. 2-4, citing es-
[168]
UNDERTAKING OF PUBLIC EMPLOYMENT [$202
in which an assumpsit was laid in the declaration were
cases against a ferryman who undertook to carry the plain-
tiff's horse over the river but who overloaded the boat,
whereby the horse was drowned, against surgeons who
undertook to cure the plaintiff or his animals but who ad-
ministered bad medicines or otherwise unskillfully treated
their patients, against a barber who negligently injured
the plaintiff's face, and against a smith for laming a horse
while shoeing it. The general assumption to the whole
public which is the characteristic feature of public employ-
ment was the very basis of these actions, for the public
profession of a common calling was held to oblige one to
act with proper skill in his business relations with each
patron.
§ 202. Express assumption of a public trust.
In the earlier cases of public employment the profession
to serve all that apply was spoken of as the assumption of
a public trust in undertaking the business or as the grant
to the public of an interest in that business. The original
rule was clearly expressed over two centuries ago by
Lord Holt.¹ "Wherever any subject takes upon himself
a public trust for the benefit of the rest of his fellow-
subjects he is eo ipso bound to serve the subject in all the
things that are within the reach and comprehension of
such an office, under pain of an action against him; and
for that see Keilway, 50. If on the road a shoe falls off
my horse, and I come to a smith to have one put on, and
the smith refuses to do it, an action will lie against him,
because he has made profession of a trade which is for the
public good, and has thereby exposed and vested an in-
terest of himself in all the king's subjects that will employ
pecially as to the ferryman, Y. B.
22 Lib. Ass. 94, pl. 41; as to the
surgeon, Y. B. 19 Hen. VI, 49, pl.
5; as to the barber, 14 Hen. VII,
Rast. Ent. 2, 6, 1; as to the smith,
Y. B. 46 Ed. III, 19, pl. 19.
¹ In Lane v. Cotton, 12 Mod.
472 (1701).
[169]
§§ 203, 204] PUBLIC SERVICE CORPORATIONS
him in the way of his trade." And in many later cases
this rather figurative language is used.¹
§ 203. Displaying signs.
3
It has been usual from time immemorial for an innkeeper
to advertise his business by hanging out a sign. “The
person who erects the sign," as it is said quaintly in one
old case, 2 "charges himself to the commonwealth." But
it should be noted that as public profession is a question
to be determined upon all the facts, it is not essential
that he should do so. If he in fact carries on business as
an innkeeper on a public basis he will be held to be such
although he is not displaying a sign. One leading case on
this matter dealt with a lighterman who had his sign over
his door. Baron Alderson had no hesitation in holding
him liable as a common carrier. "Here, we have a per-
son with a counting-house, 'lighterman' painted at his
door, and he offers to carry for everyone."
§ 204. Public advertisement.
5
The most obvious method of professing public employ-
ment is by general advertisement, particularly in news-
papers. Such newspaper advertisement has always been.
common, for railroads particularly as they generally pub-
lish their time-tables. Where a carrier was soliciting bus-
iness publicly in various ways, by signs upon its wagons.
and upon fences, by its cards and its tags, a court said
lately: "These advertisements speak for themselves, and
unquestionably establish the fact, independent of every-
¹ See for examples of this:
United States.-Munn v. Illinois,
94 U. S. 113, 24 L. ed. 77 (1876).
New York.-People v. New York
C. & H. R. R. R., 28 Hun, 543
(1883).
2 Quoted from Rex v. Collins,
Palmer, 372 (1623).
3 Anonymous, Godbolt, 345, pl.
440 (1623).
4 Iowa.-Lyon v. Smith, Morris,
184 (1843).
Tennessee.-Dickerson v. Rogers,
4 Humph. 179 (1843).
5
Ingate v. Christie, 3 C. & K.
61 (1850).
[170]
UNDERTAKING OF PUBLIC EMPLOYMENT § 205
thing else in the case, that the defendant does hold itself
out to the public." This is equally established as to inn-
keepers who employ similar methods of publicity. One
is held liable as a public innkeeper "who by his agents,
cards, bills, advertisements, signs, and all the means by
which publicity and notoriety can be given to his bus-
iness, represents himself as an innkeeper. Of late
years also advertising campaigns have been a feature
of the competition between gas companies and electric
companies, while even telephone and telegraph companies
have solicited public patronage through newspaper ad-
vertisements.
§ 205. General solicitation.
11 2
The profession of willingness to serve the public need
not be made by the proprietor in any particular way; it
is enough if his intention is made public in any way that
will give the community to understand that he wishes to
do business with all comers. "Whether a person is a
common carrier depends wholly upon whether he holds
himself out to the world as such, and he can hold himself
out as a common carrier by engaging in the business
generally, or by announcing or proclaiming it by cards,
¹ Quoted from Lloyd v. Haugh
& K. Storage & Transfer Co., 223
Pa. St. 148, 72 Atl. 516, 21 L. R. A.
(N. S.) 188 (1909).
See also similar language in:
Colorado. Schloss v. Wood, 11
Colo. 287, 17 Pac. 910 (1888).
Kansas. Kansas Pacific Ry. Co.
v. Nichols, Kennedy & Co., 9 Kans.
235, 12 Am. Rep. 494 (1872).
Massachusetts.-Sears v. Eastern
R. R. Co., 14 Allen, 433, 92 Am.
Dec. 780 (1867).
Pennsylvania.-Beckman
V.
Shouse, 5 Rawle, 179, 28 Am. Dec.
653 (1835).
Tennessee.-Memphis News Pub-
lishing Co. v. Southern Ry. Co.,
110 Tenn. 684, 75 S. W. 941, 63
L. R. A. 150 (1903).
Wisconsin.-Doty v. Strong, 1
Pinn. (Wis.) 313, 40 Am. Dec. 773
(1843).
2 Quoted from Pinkerton v.
Woodward, 33 Cal. 557, 91 Am.
Dec. 657 (1867).
But see Oxlade v. North Eastern
R. R. Co., 1 C. B. (N. S.) 454
(1857).
[171]
§ 206 ] PUBLIC SERVICE CORPORATIONS
advertisements, or by any other means that would let
the public know that he intended to be a common or
general carrier for the public." The employment of
agents to solicit business, usually makes a plain case.
The court had in one leading case but little doubt as to
the status of a keeper of a hotel who not only kept a public
register but also "ran a coach to the railroad station to
induce guests to come to his house."2 So, a hackman who
stations himself behind a rail at a station and gesticulates
to incoming passengers indicates his character,³ as does a
wagoner who takes his stand in a public square.¹
§ 206. Express disclaimer.
5
The opposite case where there is at the outset an express
disclaimer of public service is equally plain. According
to the general theory here developed, one gets into public
service only by undertaking it voluntarily, and conversely
one may keep himself out of it altogether by express
disavowal of public employment. This point came up
recently in North Carolina, where the question involved
was whether a railway projected by a lumber corporation
could have the right of eminent domain under a general
statute. The company openly declared that it did not
propose to transport timber for other parties over the
projected road, but intended to construct and operate the
road for its sole and exclusive use in removing its timber
and lumber from its lands. This attitude, the court held,
¹ Schloss v. Wood, 11 Colo. 287, W. & S. (Pa.) 285, 37 Am. Dec. 464
17 Pac. 910 (1888).
2 Fay v. Pacific Improvement Co.,
93 Cal. 253, 26 Pac. 1029, 28 Pac.
943, 16 L. R. A. 188, 27 Am. St.
Rep. 198 (1892).
3 See Atlantic City v. Fansler,
70 N. J. L. 491, 56 Atl. 119 (1904).
4 See Gordon v. Hutchinson, 1
(1841).
5 Cozard v. Kanawha Hardwood
Co., 139 N. C. 283, 51 S. E. 932, 1
L. R. A. (N. S.) 969, 111 Am. St.
Rep. 779 (1905).
Compare Connolly v. Woods, 13
Idaho, 591, 92 Pac. 573 (1907).
[172]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 207
put the company outside the general statute. "They say
that it is their purpose to construct the railway for their
exclusive use. This concession deprives them of the bene-
fits of the statute." But when the matter comes up in
another way, when duties not rights are involved, such
declarations that the business is private will not prevail
if the other evidence is to the contrary. Thus in a recent ¹
case where a trucking company which had solicited busi-
ness by public advertisements sought to show when sued
for a loss that they had often refused to serve particular
applicants and were therefore not common carriers, the
court said sharply: "To claim that one is not a common
carrier, because he has persistently disregarded his duty
and has arbitrarily chosen whom he would serve notwith-
standing that he has invited the public generally to apply
is to make a public duty determinable by the pleasure of
the individual, and not by principle or law."
§ 207. Service before business begun.
While preparations for establishing the service are
going on the business should not be regarded as yet upon
a public basis. Thus where a railroad is under construc-
tion and is not yet publicly opened for passengers, it is
not a common carrier of passengers. This is true though
persons have occasionally been carried over the road in
construction trains at their own solicitation.2 In McRae
¹ Lloyd v. Haugh & K. Storage
& Transfer Co., 223 Pa. St. 148,
72 Atl. 516, 21 L. R. A. (N. S.) 188
(1909).
See also Bare v. American For-
warding Co., 242 Ill. 298, 89 N. E.
1021 (1909).
2 United States.-Shoemaker v.
Kingsbury, 12 Wall. 369, 20 L. ed.
432 (1870); Wade v. Lutcher Cy-
press Lumber Co., 74 Fed. 517, 41
U. S. App. 45, 20 C. C. A. 515, 33
L. R. A. 255 (1896); Albion Lumber
Co. v. De Nobra, 72 Fed. 739, 44
U. S. App. 347, 19 C. C. A. 168
(1896).
Indiana.-Menaugh v. Bedford
Belt Ry. Co., 157 Ind. 20, 60 N. E.
694 (1901); Evansville & R. R. R.
Co. v. Barnes, 137 Ind. 306, 36
N. E. 1092 (1893).
Kansas.-Chicago, K. & W. R.
Co. v. Frazer, 55 Kans. 582, 40 Pac.
923 (1895).
[173]
§ 208 ] PUBLIC SERVICE CORPORATIONS
v. Canada Pacific Railway,¹ Mr. Justice Johnson charging
the jury, said: “A railway which occasionally carries goods
or freight in passenger trains is not a common carrier of
goods on such trains; and the same rule applies to a rail-
way which occasionally carries passengers in its freight or
construction trains, though when persons got on to ride,
the defendants did not put them off. If you find the de-
fendants did not solicit passengers, or publicly announce
they would be carried, even, if in some or many instances,
they have carried passengers for hire at the request and for
the special accommodation of applicants, it is clear you
have no right to impose upon the defendants the severe
obligations which attach to common carriers." Where,
however, notwithstanding the road has not been completed
the railroad has made a practice of receiving for hire goods
and passengers for carriage on its construction trains it will
be held to be a common carrier.²
§ 208. Profession made without authority.
The public profession to carry must be made by the
carrier himself, or some one duly authorized by him to
do it. A particularly clear case is an early one in the Su-
preme Court of New York. There the defendant who
Texas.-San Antonio & A. P. Ry.
v. Robinson, 79 Tex. 608, 15 S. W.
584 (1891).
¹ Tennessee.—Nashville, etc., R.
R. Co. v. Messino, 1 Sneed, 220
(1853).
Washington.-Cogswell v. West
St. & N. E. Elec. R. Co., 5 Wash.
46, 31 Pac. 411 (1892);
1 Mont. L. R. 4 S. Ct. 186 (1888).
2 Arkansas.-Little Rock, M. R.
& T. Ry. v. Glidewell, 39 Ark.
487 (1882).
Georgia.-Chattanooga R. & C.
R. Co. v. Liddell, 85 Ga. 482, 11
3
S. E. 853, 21 Am. St. Rep. 169
(1890).
Iowa.-Spence v. Chicago, R. I.
& P. Ry. Co., 117 Ia. 1, 90 N. W.
346 (1902).
Canada.-Graham v. Toronto,
etc., R. Co., 23 U. C. C. P. 541
(1874); Sheerman v. Toronto, etc.,
Co., 34 U. C. Q. B. 451 (1874).
3 Satterlee v. Groat, 1 Wend, 272
(1828).
See also:
Tennessee.-Jenkins v. Picket, 9
Yerg. 480 (1836).
[174]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 209
had abandoned the occupation of a common carrier was
engaged by a certain person to bring some goods for him.
A servant was sent by the defendant to take the goods,
but the goods not being ready the servant against ex-
press orders solicited and obtained an order from the plain-
tiff and then stole some of the goods. It was properly
held that the defendant was not liable as common carrier.
In a closer case where a person had been accepted as
passenger on construction train of an incomplete railroad
by the man in charge of the work, the Supreme Court of
Indiana well said: "Allen was a superintendent of con-
struction and a civil engineer, and it is not shown that
he had authority to receive the appellee as a passenger
upon a road that had never been opened to the traveling
public. The board of directors and the established rules
of the company alone could make the appellant a common
carrier for hire and the appellee a passenger. The power
was not delegated to Allen, and it was beyond the scope
of his authority to convert a construction train into a
passenger train. He could not open an imperfect and
incomplete road into one for passenger traffic without the
consent of his superior officers."
§ 209. Service undertaken beyond obligation.
Another point as to the making of the profession should
be referred to here although it is more fully discussed
later on. There are many instances where service is
undertaken not within the general obligation resulting
Texas.--Haynie v. Baylor, 18
Tex. 498 (1857).
1 Evansville & R. R. Co. v.
Barnes, 137 Ind. 306 (1893).
In Harvey v. Deep River Log-
ging Co., 49 Oreg. 583, 90 Pac. 501,
12 L. R. A. (N. S.) 131 (1907), it
was held that although those in
charge of the train of a logging
company have no authority but by
virtue of their employment alone,
to carry passengers on the train,
still where for a period of years the
manager of a logging company per-
mits the carriage of passengers on
its trains, the corporation owes per-
sons so carried the duty of not in-
juring them by its negligence.
[175]
§ 210]
PUBLIC SERVICE CORPORATIONS
from the usual profession, but by special undertaking in
the particular case outside of the usual limitations. The
difficult problem in these cases is to determine whether
the special acceptance is upon a public basis or upon a
private basis, for since it is outside his obligation it is
open to the proprietor of the service to extend specially
his public profession to the particular case so that the pub-
lic law will apply it, or to undertake the service within the
private law of ordinary contract. For example, a carrier
who does not generally undertake service beyond certain
limits might in a particular case undertake service beyond
these limits. "It has been repeatedly held that while a
railroad cannot be compelled to accept and agree to carry
goods to points beyond its line, yet it might do so. If
the carrier contracts to convey beyond its line it would be
liable as a common carrier for the whole distance." 1 This,
however, will only be true where the railroad leaves it to
be understood that it is acting as a common carrier. It
may in unusual circumstances by special acceptance in
the particular case exempt itself from the usual liabilities
of common carriers.2
§ 210. Service undertaken in unusual manner.
Another instance of this general problem of particular
undertakings outside usual profession may be seen in a
recent case dealing with the public liabilities of telephone
companies. The usual business of the telephone com-
panies is to put those who wish to converse in communi-
cation with each other, the company never accepting a
message or delivering it. But it will sometimes be found
that the telephone companies have gotten in the way of
accepting messages for transmission and delivering them
¹ Farley v. Lavary, 107 Ky. 523,
45 S. W. 840, 47 L. R. A. 383
(1900). See Chapter XV.
2 See the excellent discussion of
this general problem in Santa Fe
P. & P. Ry. Co. v. Grant Bros. C.
Co. (Ariz.), 108 Pac. 467 (1910).
See Chapter XXII.
1
[ 176 ]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 211
(6
1
to the people to whom they are addressed. Of course if
no more can be shown in a particular instance than that
employés have undertaken this at the instance of some
patrons, the company will not be held responsible in the
matter; but sometimes the facts will be stronger, show-
ing that this has been so largely practiced as to hold
the telephone companies responsible during its contin-
uance. In the case in mind ¹ it was held that although
'a telephone company instructed its operator not to re-
ceive messages to be by any agent of the company de-
livered to the sendee, yet if it knowingly permitted its
employés, over its wires, to make arrangements for such
delivery, and collected from the customer the full charge,
including that for delivery, it is liable for the nondelivery,
notwithstanding that under its arrangement with its dis-
tant operators they were to receive the pay for the de-
livery." 2
Topic B. Implicit Undertaking of Public Employment
§ 211. Charter stipulation.
In the chartering of the early public service companies,
as has been seen, the cautious policy was followed of ex-
pressly settling in the very charter the public duties of
the chartered company; and mandatory provisions of this
sort are not unknown at the present day. Such a charter
provision expressly requiring public service of the gran-
tee corporation makes a plain case of public obligation
by voluntary assumption. The acceptance of such a
charter is the voluntary undertaking of the particular
corporation by which it is irrevocably bound to perform
the service expressly required by the terms of the charter
in consideration of the accompanying privileges. This
1 Cumberland Telephone Co. v. 3 Of course the grantee in charter
Brown, 104 Tenn. 56, 55 S. W. 155, offering franchises is only bound
50 L. R. A. 277 (1900).
upon its acceptance of them. See:
Illinois. Chicago Telephone Co.
2 See § 765, infra.
3
12
[ 177 ]
§ 212]
PUBLIC SERVICE CORPORATIONS
point is really too plain for argument, and so the Con-
necticut court regarded it when a railroad attempted
to withdraw a service which was plainly enough com-
manded by its charter: "We hardly know what doubtful
principles of law are thought to be involved in this case.
The respondents were certainly bound to make their
road (if at all) prescribed by their charter, and having
made it to put it into use every material part of it-
and keep it in use until discharged by the legislature." 1
§ 212. Permissive charter.
The beginnings of the modern law of public service are
v. Northwestern Telephone Co.,
199 Ill. 324, 65 N. E. 329 (1902).
New York.-People v. Albany &
Vt. R. R. Co., 24 N. Y. 261, 82 Am.
Dec. 295 (1862).
¹ An explicit charter provision re-
quiring service must be obeyed.
See:
United States.-Union Pacific R.
R. Co. v. Hall, 91 U. S. 343, 23 L.
ed. 428 (1875); Atlantic Coast Line
Ry. Co. v. North Carolina Corp.
Comm., 206 U. S. 1, 51 L. ed. 933
(1906); United States v. Union Pac.
Ry. Co., 160 U. S. 1, 40 L. ed. 319,
16 Sup. Ct. 190 (1895); Talcott v.
Pine Grove, 1 Flipp. 120, Fed. Cas.
No. 13,735 (1872); Farmers' Loan &
Trust Co. v. Henning, 8 Fed. Cas.
4,666 (1878).
Florida.-State v. Jacksonville
Terminal Co., 41 Fla. 377, 27 So.
225 (1899).
Illinois. People v. St. L., A. &
T. H. R. R. Co., 176 III. 512, 52 N.
E. 292 (1898).
Indiana.-Lake Erie, etc., R. R.
Co. v. The State ex rel. Mushlitz,
139 Ind. 158, 38 N. E. 596 (1894).
Iowa.-The State V. Central
Iowa Ry. Co. et al., 71 Iowa, 410, 32
N. W. 409, 60 Am. Rep. 806 (1887).
Kansas.-City of Potwin Place v.
Topeka Ry. Co., 51 Kans. 609, 33
Pac. 309, 37 Am. St. Rep. 312
(1893).
Maine.-Weymouth v. Penob-
scot Log Driving Co., 71 Me. 29
(1880).
Massachusetts.-Brownell v. Old
Colony R. R. Co., 164 Mass. 29, 41
N. E. 107, 29 L. R. A. 169, 49 Am.
St. Rep. 442 (1895).
Nebraska.-State of Nebraska v.
Sioux City, etc., R. R. Co., 7 Neb.
357 (1878).
New Jersey.-Bridgeton v. Trac-
tion Co., 62 N. J. L. 592, 43 Atl. 715
(1898).
Oklahoma.—United States v.
Choctaw, O. & G. Ry. Co., 3 Okla.
404, 41 Pac. 729 (1895).
Virginia.-Southern Ry. Co. v.
Franklin, etc., R. R. Co., 96 Va.
693, 32 S. E. 485 (1899).
England.-Reg. v. Bristol, etc.,
Ry. Co., 4 Q. B. 162 (1843).
New Brunswick.-Attorney Gen-
eral of New Brunswick, Ex parte, 1
Pug. & Bur. 667
[178]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 212
1
to be found in those cases just before the middle of the
nineteenth century, in which it was held that although
there was no express provision in chartering a supply
company compelling it to serve the public, the situation
was such that even where its character was permissive,
the obligation was assumed. In the leading case of Lum-
bard v. Stearns, Chief Justice Shaw with characteristic
insight held that a water company enjoying privileges
under a permissive charter must give public service.
"By accepting the act of incorporation," he said, "they
undertake to do all the public duties required by it.'
And indeed it is now well-accepted doctrine that the very
acceptance of a charter providing for the carrying on of
a business public in character is a sufficient profession in
the particular case.2
14 Cush. 61 (1849).
2 United States.-People v. Col-
orado Central R. R. Co., 42 Fed.
638 (1890); Laighton v. Carthage,
175 Fed. 145 (1909).
Connecticut.—State v. Hartford
& N. H. R. R. Co., 29 Conn. 538
(1861).
Georgia.-Savannah Canel Co.
v. Shuman, 91 Ga. 400, 17 S. E.
937, 44 Am. St. Rep. 43 (1892).
Kansas.-Kansas Pac. Ry. Co.
v. Nichols & Co., 9 Kans. 235, 12
Am. Rep. 494 (1872).
Kentucky.-Board of Trustees of
Elizabethtown v. Chesapeake, etc.,
R. R. Co., 94 Ky. 377, 22 S. W. 609
(1893).
Minnesota.-State ex rel. City of
St. Paul v. St. Paul City Ry.
Co., 78 Minn. 331, 81 N. W. 200
(1899).
Montana.-State v. Helena P. &
L. Co., 22 Mont. 391, 56 Pac. 685
(1899).
""
New York.-Root v. Great West-
ern R. R. Co., 45 N. Y. 524 (1871).
Ohio.-East Ohio Gas Co. v.
Akron, 81 Oh. St. 33, 90 N. E. 40
(1909).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Pennsylvania.-Erie & North-
East R. R. v. Casey, 26 Pa. St. 287
(1856).
Tennessee.-Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
Texas. San Antonio St. Ry. Co.
v. State, 90 Tex. 520, 39 S. W. 926,
35 L. R. A. 662, 59 Am. St. Rep.
834 (1897).
Virginia.-Southern Ry. Co. v.
Franklin, etc., R. Co., 96 Va. 693, 32
S. E. 485, 44 L. R. A. 297 (1899).
Washington.-State v. Spokane
St. Ry. Co., 19 Wash. 518, 53 Pac.
719, 67 Am. St. Rep. 739 (1898).
Wisconsin.-State ex rel. v. Frost,
[179]
§ 213]
PUBLIC SERVICE CORPORATIONS
§ 213. Taking out public license.
1
When it is a question whether a person who is engaged
in a business that is public in character ¹ has undertaken
it upon a public basis, the fact that the proprietor of the
enterprise has taken out the license required by public
authority of all who are engaged in that business is highly
probative. Thus is one case 2 where the evidence was
conflicting as to whether the particular carriage was com-
mon carriage, the Court of Appeals of Kentucky said:
"We are of opinion that by the evidence of appellant
himself it is shown that he was a common carrier within
the limits of the City of Lexington. He admits that he
hauled for all or any persons, and had obtained a license
113 Wis. 623, 88 N. W. 912, 89 N. W. gists cannot usually to-day practice
915 (1902).
It should be added that there are
even cases where a company which
has undertaken a service upon a
public basis has been held to the
liabilities of that position although
such service is ultra vires.
United States.-Wade v. Lutcher
& Moore Cypress Lumber Co., 74
Fed. 517, 41 U. S. App. 45, 33 L. R.
A. 255, 20 C. C. A. 515 (1896).
Georgia.-Caldwell v. Richmond,
etc., R. Co., 89 Ga. 550, 15 S. E.
678 (1892).
1 The mere fact that a license is
required for the conduct of a certain
business has no conclusive weight in
determining the other question as to
whether the business is public in
character; for although such licens-
ing shows that the business is one
over which some degree of State
control is necessary, it does not
prove that the extreme regulation of
the extraordinary law relating to
public services is demanded. Thus
lawyers, doctors, dentists and drug-
their callings without State license
based upon special examinations;
nor for that matter can electricians,
plumbers, engineers and firemen act
as such without a license. And yet
although such licensing is proper,
the law is plain that these callings
are not public services in conse-
quence. See Hurley v. Edding-
field, 156 Ind. 416, 59 N. E. 1058, 53
L. R. A. 135, 83 Am. St. Rep. 198
(1901).
2 Farley v. Lavary, 107 Ky. 523,
54 S. W. 840, 47 L. R. A. 383 (1900).
See also:
Alabama.-Babcock v. Herbert, 3
Ala. 392, 37 Am. Dec. 695 (1842).
Illinois. Hastings Express Co.
v. Chicago, 135 Ill. App. 268
(1907).
Indiana. Fargo v. Ledger Stand-
ard Co., 59 Ind. 496 (1877).
New Jersey.-Atlantic City v.
Fonsler, 70 N. J. L. 125, 56 Atl. 119
(1903).
New York.-Robinson v. Corn-
ish, 13 N. Y. Supp. 577 (1890).
[ 180 ]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 214
so to do." But a failure to take out a license although
such license is required of those who are engaged in the
employment in question, is not conclusive against public
employment if public profession is otherwise evidenced
by usual conduct. As was said in such a case by a
California court: "It was proven, that defendants held
themselves out as public ferrymen, and were accustomed
to convey persons and property across the straits, for hire;
and, so far as the rights of plaintiffs were concerned, it was
immaterial whether or not they were duly authorized to
run such a ferry. If they were assuming to act as ferry-
men, without license, they could not take advantage of
their own wrong to avoid the responsibility which at-
tached to their calling."
11 2
§ 214. Exercise of eminent domain.
A factor which if present is always seized upon first
to show that the service in question is necessarily con-
ducted upon a public basis, is the exercise of the right of
eminent domain by the proprietors of the enterprise.
This has always been considered as conclusive evidence
of irrevocable profession of public employment in the ab-
¹ Polk v. Coffin, 9 Cal. 56 (1858).
Thus the failure of an innkeeper
to procure a license as required by
law, does not prevent him from be-
ing held liable as an innkeeper.
Alabama.-Lanier v. Young-
blood, 73 Ala. 587 (1883).
Iowa.-Lyon v. Smith, Morris,
184 (1843).
Maine.-Norcross v. Norcross, 53
Me. 163 (1865); Atwater v. Saw-
yer, 76 Me. 539, 49 Am. Rep. 634
(1884).
North Carolina.-State v. Wynne,
1 Hawks, 451 (1821).
4 Humph. 179, 40 Am. Dec. 642
(1843).
2 Even as to those callings which
may be public in character, a license
is sometimes required of those who
are carrying on that business upon a
private basis; so that merely taking
out a license even in such businesses
is not conclusive evidence of public
employment. See:
Minnesota.-State ex rel. v. W.
W. Cargill Co., 77 Minn. 223, 79
N. W. 962 (1899).
New Jersey.-Atlantic City v.
Dehn, 69 N. J. L. 233, 54 Atl. 220
Tennessee.-Dickerson v. Rogers, (1903).
[181]
§ 214]
PUBLIC SERVICE CORPORATIONS
sence of an express disclaimer at the time of acceptance.¹
It is difficult to select one quotation to this effect from
the almost innumerable decisions in which this point is
made; but in one New Jersey case it is put most suc-
cinctly: "The fact that the legislature has granted the
right to take private property clearly evinced the legis-
lative intent to lay such companies under obligations to
the public to permit the use of their lines by all persons
under reasonable regulations; and, in accepting the bene-
fits of this law, the recipient of them assumes the per-
formance of this duty to the public.
¹ An express disclaimer, when
claiming the right of eminent do-
main, of all intention to serve the
public, would, of course, show that
the company could not legally exer-
cise that right. See Cozard v.
Kanawha Hardwood Co., 139 N. C.
283, 51 S. E. 932, 1 L. R. A. 969,
111 Am. St. Rep. 779 (1905), dis-
cussed in § 206, supra.
2 Quoted from State ex rel. v.
American & E. News Co., 43 N. J.
L. 381.
The following cases in which the
language is to the same effect, are
selected almost at random:
United States.-Chicago, etc., R.
R. Co. v. Ackley, 94 U. S. 179, 24
L. ed. 99 (1876).
Georgia.-Caldwell v. Richmond,
etc., R. R. Co., 89 Ga. 550, 15 S. E.
678 (1892).
Indiana.-Cincinnati, I. & W.
Ry. Co. v. City of Connersville, 170
Ind. 316, 83 N. E. 503 (1908);
State ex rel. v. Consumers' Gas Co.,
157 Ind. 345, 61 N. E. 674 (1901).
Iowa.-Jones & Price v. The
Mahaska County Coal Co., 47
Iowa, 35 (1877).
""
17 2
Kentucky.-Owensboro Gaslight
Co. v. Hildebrand, 19 Ky. L. Rep.
983 (1897).
Maine.-New England Express
Co. v. Maine Central R. R. Co.,
57 Me. 188, 2 Am. Rep. 31 (1869).
Montana.-State v. Butte Water
Co., 18 Mont. 199, 44 Pac. 966, 56
Am. St. Rep. 574 (1896).
Nebraska.-State V. Missouri
Pac. Ry. Co., 81 Neb. 174, 115 N.
W. 757 (1908).
Nevada.-Gibson v. Mason, 5
Nev. 283 (1869).
New Jersey.-Rogers Locomotive
& M. Works v. Erie Ry. Co., 20
N. J. Eq. 379 (1869).
New York.-Armour Packing Co.
v. Edison Electric Illuminating Co.,
115 N. Y. App. Div. 51, 100 N. Y.
Supp. 605 (1906).
North Carolina.-Green v. Tele-
graph Co., 136 N. C. 489, 49 S. E.
165 (1904).
Ohio.-Cincinnati, H. & D. R.
R. Co. v. Village of Bowling Green,
57 Oh. St. 336, 49 N. E. 121 (1897).
Oregon.—Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
[182]
UNDERTAKING of Public EmPLOYMENT [§ 215
§ 215. Acceptance of municipal franchises.
The household service which constitutes the character-
istic type of modern employments which are public in
character cannot be carried on without local franchises,
as the use of the streets is almost always indispensable.
Since this is true of surface railroads and other methods
of urban transportation, of gas supply and electricity,
of water and sewerage, the argument has often been made
that the public character of these services is the result
of the municipal franchises which they have received for
the use of the public streets. But as has been seen ear-
lier, this view of the matter mistakes consequence for
cause; since, unless these services were public in char-
acter, these franchises could not be constitutionally
granted. And yet there is a certain truth in these state-
ments, for granted that the service is of public necessity,
the acceptance of such a franchise is certainly almost
conclusive evidence of public profession, and the lan-
guage referred to is usually consistent with this explana-
tion. As was well said by the Supreme Court of Indiana ¹
in one of the many cases dealing with gas supply: "These
rights which evoke an element of sovereignty and which
can only exist by grant from the public rest upon the
principle that their existence will bestow a benefit upon
that part of the public in whose behalf the grant is made
and the benefit received by the citizen is adequate con-
sideration for the right of convenience surrendered by
him; the grant thus resting upon a public and reciprocal
arrangement imposes upon the appellee a legal obliga-
tion to serve all the members of the public contributing
to its asserted right impartially." 2
Tennessee.-Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
1 State v. Consumers' Gas Co.,
157 Ind. 345, 61 N. E. 674 (1901).
2 From the almost innumerable
cases in which this point has been
made the following rather wide se-
lection has been made:
Florida.-City of Tampa v.
[183]
§ 216 ] PUBLIC SERVICE CORPORATIONS
§ 216. Entering into municipal contract.
The obligations of public service consequent upon the
acceptance of a municipal franchise are more plain of
course where the service company in obtaining its privi-
leges is obliged to enter into a formal contract with the
governmental body unequivocally undertaking general
service for all who apply upon the favorable conditions
therein promised. Nevertheless, it is somewhat difficult
to explain how the private citizen gains individual rights
under such a contract. Various theories have been ad-
vanced to give citizens individually the right to enforce
the contract. None of these, as will be seen, really explain
the situation. The truth of this matter, as is pointed
out in a late case,¹ is probably, that the entering into this
Tampa Water Works Co., 45 Fla.
600, 34 So. 631 (1903).
Georgia. Freeman v. Macon
Gaslight & Water Co., 126 Ga. 843,
56 S. E. 61 (1906).
Indiana.-State ex rel. v. Con-
sumers' Gas Trust Co., 157 Ind.
345, 61 N. E. 674 (1901).
Kentucky.-Owensboro Gaslight
Co. v. Hildebrand, 19 Ky. L. Rep.
983 (1897).
Maine.-Brunswick Gas Light
Co. v. United Gas, Fuel & Light
Co., 85 Me. 532, 27 Atl. 525, 35 Am.
St. Rep. 385 (1893).
Michigan.-Mahan v. Michigan
Telephone Co., 132 Mich. 242, 93
N. W. 629 (1903).
Missouri.-State ex rel. v. Joplin
Water Works, 52 Mo. App. 312
(1893).
Montana.-State v. Butte Water
Co., 18 Mont. 199, 44 Pac. 966, 56
Am. St. R. 574 (1896).
Nebraska.-American Water
Works v. Nebraska, 46 Neb. 194,
64 N. W. 711, 50 Am. St. Rep. 610
(1895).
New York.-Armour Packing Co.
v. Edison Electric Illuminating Co.,
115 N. Y. App. Div. 51, 100 N. Y.
Supp. 605 (1906).
Ohio.-Cincinnati, etc., R. R. Co.
v. Village of Bowling Green, 57
Ohio St. 336, 49 N. E. 121 (1897).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Tennessee.-Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
Washington.-State v. Spokane
St. Ry. Co., 19 Wash. 518, 53 Pac.
719, 67 Am. St. Rep. 739 (1898).
Wisconsin.-City of Madison v.
Madison Gas & Electric Co., 129
Wis. 249, 108 N. W. 65 (1906).
¹ The quotation which follows is
from the opinion of Evans, J., in
Freeman v. Macon Gaslight &
Water Co., 126 Ga. 843, 56 S. E.
61 (1906).
[ 184 ]
UNDERTAKING of Public EmPLOYMENT [§ 217
formal contract with the governmental authorities is a
plain commitment to public service. "The water com-
pany by entering into the contract which the General
Assembly authorized the city to make with that company,
accepted the privilege of supplying the citizens of that
city, as such, upon certain terms, and became a public
service corporation with an express statutory duty to
perform. This duty the company owed to every private
consumer of water, independently of any contract duty
it owed the municipality itself, considered as a munici-
pal corporation engaged in the discharge of governmen-
tal functions.” 1
§ 217. Aid from taxation.
Especially is this assumption of profession to serve the
public justifiable in the case of the proprietor of any
business public in character who accepts aid from the
public treasury, directly or indirectly, by grant or guar-
anty. As public funds under our constitutional law can
only be used for a public purpose, it should always be
assumed that, in taking such aid, the recipient is not par-
ticipating in any illegality. On the other hand, that pub-
lic grants may be made to private corporations which
1 The following cases also consider
a municipal contract as conclusive
evidence of public obligation:
United States.-Los Angeles v.
Los Angeles City Water Co., 177
U. S. 558, 43 L. ed. 886, 20 Sup. Ct.
736 (1900).
Alabama.-Smith v. Birmingham
Water Co., 104 Ala. 315, 16 So. 123
(1893).
Michigan.-Mahan & Michigan
Telephone Co., 132 Mich. 242, 93
N. W. 629 (1903).
Missouri.-State ex rel. City of
St. Louis v. Laclede Gaslight Co.,
102 Mo. 472, 14 S. W. 974, 15 S. W.
383 (1890).
Montana.-State v. Butte Water
Co., 18 Mont. 199, 44 Pac. 966, 56
Am. St. Rep. 574 (1896).
New Jersey.-Mayor of Boonton
v. Boonton Water Co. (N. J.), 61
Atl. 390 (1904).
Pennsylvania.-School District v.
Enterprise Nat. Gas Co., 18 Pa.
Sup. Ct. 73 (1901).
Tennessee.-Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
[185]
§ 218 ]
PUBLIC SERVICE CORPORATIONS
((
have openly undertaken public service is well established.
That a railroad is a work in which the public are inter-
ested to the extent that a tax imposed in aid of it must be
upheld, is a proposition upon which there is no diversity
of authority whatever.” ¹ And when a railway enjoys the
privilege of having its property exempt from the general
burden of taxation, there cannot be a clearer case of pri-
vate property devoted for a valuable consideration to
public use; and consequently subject to public regulation.2
§ 218. Governmental participation.
One other situation at least justifies the natural in-
ference that the business undertaken is upon a public
basis. Where the State itself participates in the enter-
prise whether in the ownership of the property merely or
in the conduct of the enterprise it must again be true that
service is to be rendered to the public indiscriminately
or else participation of the State will be unjustifiable. As
was said by the judges of the Massachusetts Supreme
Judicial Court in advising the legislature that munici-
palities might constitutionally be given the power to en-
gage in the production and sale of gas and electricity:
"In general it may be said that matters which concern
the welfare and convenience of all the inhabitants of a
city or town, and cannot be successfully dealt with with-
¹ See Gibson v. Mason, 5 Nev.
283 (1869), citing among others, the
following cases:
Connecticut.-City of Bridgeport
v. Housatonic R. R. Co., 15 Conn.
475 (1843).
Indiana.-City of Aurora V.
West, 9 Ind. 74 (1857).
Ohio.-Cincinnati, etc., R. R. Co.
v. Commissioners of Clinton County,
1 Oh. St. 77 (1852).
2 The leading case is probably
township of Pine Grove v. Talcott,
19 Wall. 666, 22 L. ed. 227 (1873),
where bonds issued to aid in the
construction of a railroad were held
Kentucky.—Talbot v. Dent, 9 valid, the court saying: "Though
B. Mon. 526 (1849).
New York.-Buffalo & New York
R. R. v. Brainard, 9 N. Y. 100
(1853).
the corporation was private its
work was public, as much so as
if it were constructed by the
State."
[186]
UNDERTAKING OF PUBLIC EMPLOYMENT [§ 218
out the aid of powers derived from the legislature, may
be subjected to municipal control when the benefits re-
ceived are such that each inhabitant needs them and may
participate in them, and it is for the interest of each in-
habitant that others as well as himself should possess and
enjoy them." 1 The justification for the devotion of
funds raised from taxation to the conduct of these busi-
nesses is that the public may demand service under lim-
itations set by law. Notwithstanding occasional attempts
by municipal authorities to escape from their public
duties it is recognized in all the cases that when a business
of this sort is carried on by governmental bodies they are
necessarily subjected to the whole law governing public
service by private corporations. The entrance of a pub-
lic body into these businesses is therefore a plain an-
nouncement that it is prepared to serve all upon proper
conditions.2
1 Opinion of the Justices, 150
Mass. 592, 24 N. E. 1084, 8 L. R. A.
487 (1890).
This represents the rule now gen-
erally accepted that governmental
bodies may be constitutionally em-
powered to participate in, or take
control of, the ownership or manage-
ment of public services.
examples of this:
See for
United States.-Thompson-Hous-
ton Electric Co. v. Newton, 42 Fed.
723 (1890), (electric supply).
Indiana.-Crawfordsville v. Bra-
den, 130 Ind. 149, 28 N. E. 849,
14 L. R. A. 268, 30 Am. St. Rep.
214 (1891).
Michigan. Mitchell v. Negaunee,
113 Mich. 359, 71 N. W. 646, 38
L. R. A. 157, 67 Am. St. Rep. 468
(1897), (electric supply).
Ohio.-State v. Toledo, 48 Oh.
St. 112, 26 N. E. 1061 (1891), (gas
supply).
Pennsylvania.—-Linn v. Cham-
bersburg Borough, 160 Pa. St.
511, 28 Atl. 842 (1894), (electric
supply).
Tennessee.-Smith v. Nashville,
88 Tenn. 464, 12 S. W. 924 (1890),
(water supply).
But see: Mauldin v. City Coun-
cil of Greenville, 33 S. C. 1, 11 S. E.
434, 8 L. R. A. 291 (1889).
2 See these prominent cases sup-
porting the text:
Alabama.-Mobile v. Bienville
Water Supply Co., 130 Ala. 379, 30
So. 445 (1900).
New York.-Silkman v. Water
Commissioners, 152 N. Y. 327, 46
N. E. 612, 37 L. R. A. 827 (1897).
[187]
CHAPTER VII
IMPLIED PROFESSION OF PUBLIC EMPLOYMENT
§ 220. Conduct evidencing public employment.
Topic A. Public Employments and Private Enterprises
§ 221. Potential use by the public.
222. Public access held indispensable.
223. Industrial railroads.
224. Lateral branches.
225. Public spur.
226. Private siding.
Topic B. Characteristics of Public Business
§ 227. Public service in regular course.
228. Public employment-carter.
229. Regular service-shipmaster.
230. Established charge expressmen.
231. Indiscriminate service-irrigation.
232. Public profession-warehousing.
Topic C. Characteristics of Private Business
§ 233. Private contract as the basis.
234. Occasional business-householders.
235. Casual employment-shipowners.
236. Intermittent employment-teamsters.
237. Limited undertaking-ferries.
238. Incidental service-merchants.
Topic D. Particular Illustrations of the Distinction
§ 239. Public and private carriers in general.
240. Public inn and private house.
241. Public and private highways of every sort.
242. Public and private waterworks.
243. Public and private gas and electricity.
244. Public and private telephone and telegraph.
§ 220. Conduct evidencing public employment.
That public profession in last analysis is always a
[188]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 221
question of fact, although governed by principles of law,
must now be obvious. When there is an express declara-
tion, or such undertaking as is equivalent to it, that
question, as has just been seen, is comparatively simple.
But the undertaking to serve the public may be evidenced
by conduct as well as declaration; and this will often be a
very puzzling problem of the preponderance of evidence,
which may establish a case of public profession, notwith-
standing certain facts usually showing private employ-
ment. Probably the best that can be done in this chap-
ter with a subject of such importance is to collect the
principal cases distinguishing public profession and pri-
vate undertaking, and point out what situations are char-
acteristic of each type. It should be said at the outset,
however, that it is always a question upon the whole
proof in the particular case whether the proprietors of the
business have done enough to give people generally the
impression that they are at the disposal of the public.
Thus an innkeeper who declared that her house was not
a public one was refuted by her own admission that she
took in almost everybody who would pay her prices.¹ So
a carrier did not escape the liability of an insurer by show-
ing that he often refused people whom he did not think
it advantageous to serve, as this would simply show that
he had sometimes failed to fulfill his obligations.2
Topic A. Public Employments and Private Enterprises
§ 221. Potential use by the public.
Public service is the fundamental thing; but wherever
there is the real possibility of use as a matter of right by
all within the sphere of the service, the mere fact that
the service will in all probability be available to a lim-
1 Jaquet v. Edwards, 1 Jamaica,
4 (1867).
2 Lloyd v. Haugh & K. Storage
& Tr. Co., 223 Pa. St. 148, 72
Atl. 516, 21 L. R. A. (N. S.) 188
(1909).
[189]
§ 222 ] PUBLIC SERVICE CORPORATIONS
1
ited number of persons should not be sufficient to pre-
vent it from being considered as sufficiently public. As
the New York court ¹ put it, in holding public a water-
works serving a few persons: "Public use may be lim-
ited to the inhabitants of a small or restricted locality,
but the use must be in common and not for a particular
individual." There is, however, a California irrigation
case which held that the mere possibility of public use to
a limited neighborhood is too illusory to justify the grant
of special privileges.2 There is also a case in Maine
which held hydro-electric power development not a pub-
lic service because after the water power was exhausted
no more of the public could be supplied. And in a recent
Minnesota case although the distribution of electrical
power was said to be sufficiently general to be public in
character it was held that the sale of water power direct
from the wheels to adjoining factories was not. "A public
use," said the court, "does not require that the property
be capable of being used by the entire public, or any por-
tion thereof; but a use which by physical conditions is
restricted to a very few persons who must use it within a
very restricted area, is not a public use."
4
3
§ 222. Public access held indispensable.
It seems to be established that public access to the
1 Pocantico Water Works Co. v.
Bird, 130 N. Y. 249, 29 N. E. 246
(1891). But most courts hold in-
discriminate water supply public in
character. See citations in $92,
supra.
2 Aliso Water Co. v. Baker, 95
Cal. 268, 30 Pac. 537 (1892). Irri-
gation on a public basis is public
in character even if there be few
takers. See § 93, supra.
3 Brown v. Gerald, 100 Me. 351,
61 Atl. 785, 70 L. R. A. 472 (1905).
By the great weight of authority
hydro-electric power development
is a public service. See § 114,
supra.
4 Minnesota Canal & Power Co.
v. Koochiching Co., 97 Minn. 429,
107 N. W. 405, 5 L. R. A. (N. S.)
638 (1906). Whether the direct
sale of water power is public in
character is doubtful as the author-
ities. Scc § 95, supra.
[190]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 222
1
service offered is indispensable. This is well illustrated
by a peculiar case in New York ¹ where both ends of a
cable tramway were upon the private land of its proprie-
tors; and in view of that fact alone, the Court of Appeals
held that it was necessarily a private enterprise. "A
contemplated possible limited use by a few, and then not
as a right, but by way of permission or favor, is not a
public use."
Another case 2 outside the beaten track is
that of a certain lumber skid-road for which, it was held,
eminent domain could not be granted, as both termini of
the proposed road were entirely surrounded by the prop-
erty of the proprietors so that the public had no access
thereto. On the other hand, if a special railway is being
built to serve particular mines it will be public in char-
acter if the owners of other properties through which it
passes are to be free to use it. As the Superior Court of
New Jersey well said of such a railway: "This enterprise
does not lose the character of a public use because of the
fact that the projected railroad is not a thoroughfare, and
that its use may be limited by circumstances to a com-
paratively small part of the public. Every one of the
public having occasion to send materials, implements or
machinery for mining purposes into, or to obtain ores
from the several mining tracts adjacent to the location
of this road may use this railroad for that purpose, and
of right may require the company to serve him in that
respect; and that is the test which determines whether
the use is public." There are other cases of indus-
trial development to the same effect-mining tunnels,
3
1 Matter of Split Rock Cable Rd.,
128 N. Y. 408, 28 N. E. 506 (1891).
See also Re Niagara Falls & W.
Ry. Co., 108 N. Y. 375, 15 N. E.
429 (1888).
2 Apex Transportation Co. V.
Garbade, 32 Oreg. 582, 52 Pac. 573,
54 Pac. 367, 882 (1898). But see
Bridal Veil Lumbering Co. v. John-
son, 30 Oreg. 205, 46 Pac. 790, 34
L. R. A. 368, 60 Am. St. Rep. 818
(1896).
³ De Camp v. Hibernia R. R. Co.,
47 N. J. L. 43 (1885).
[191]
§ 223 ] PUBLIC SERVICE CORPORATIONS
1
for example which have been held to be public in
character.
§ 223. Industrial railroads.
Of course railroad operation is, generally speaking,
common carriage as appears in countless cases. But
private railways are not unknown; and it is often diffi-
cult to determine whether a certain railway is public or
private. The difficult case is that of a railway constructed
largely in the interest of the owners of a particular in-
dustrial enterprise to give them necessary service. Even
such a railway may be a public one, as a Minnesota case
holds. "If all the people have the right to use the road
it is a public use or interest although the number who have
business requiring its use may be small." 2 On the other
1 In accord with the text are the
following cases among others:
United States.-Baillie v. Larson,
138 Fed. 177 (1905).
Colorado.-Tanner v. Tr. Tun-
nel, Mining & Reduction Co., 35
Colo. 593, 83 Pac. 464, 4 L. R. A.
(N. S.) 464 (1906).
Quoted from Kettle River R. R.
Co. v. Eastern Ry. Co., 41 Minn.
461, 43 N. W. 469, 6 L. R. L. 111
(1889).
Other important cases to the same
effect are:
Georgia.-Butler v. Tifton Ry.
Co., 121 Ga. 817, 49 S. E. 763
(1904).
Iowa.-Phillips v. Watson, 63 Ia.
28, 18 N. W. 659 (1884).
•
Kentucky Louisville, etc., R. R.
Co. v. Pittsburg & K. Coal Co., 111
Ky. 960, 23 Ky. L. Rep. 1318, 64
S. W. 969, 55 L. R. A. 601, 98 Am.
St. Rep. 447 (1901).
Maine.-Ulmer v. Lime Rock R.
R. Co., 98 Me. 579, 57 Atl. 100, 66
L. R. A. 387 (1904).
Maryland.-New Central Coal
Co. v. George's Creek C. & I. Co.,
37 Md. 537 (1872).
Missouri.-Dietrich v. Murdock,
42 Mo. 279 (1868).
Montana.-Butte, A. & P. Ry.
Co. v. Montana Union Ry. Co., 16
Mont. 504, 41 Pac. 232, 31 L. R. A.
298, 50 Am. St. Rep. 508 (1895).
Oregon.-Bridal Veil Lumbering
Co. v. Johnson, 30 Oreg. 205, 46
Pac. 790, 34 L. R. A. 368, 60 Am.
St. Rep. 818 (1896).
Wisconsin.-Maginnis v. Knick-
erbocker Ice Co., 112 Wis. 385,
88 N. W. 300, 69 L. R. A. 833
(1901).
A private lumber railway by run-
ning a motor car for passenger serv-
ice does not become a common car-
rier of freight. Edgar Lumber Co.
v. Cornie Stave Co. (Ark.), 130 S.
W. 452 (1910).
[192]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 223
hand, a railroad constructed and used merely in connec-
tion with the conduct of a private business is not a com-
mon carrier. So, where a railroad is built to haul logs
from the forests to the sawmill of the owner, it is not a
common carrier. It cannot be seriously contended, said
the Circuit Court of Appeals, that an article of the State
Constitution which dealt with corporations of public
improvement and utility,¹ "was intended to, or could be
so construed as to make out, of a logging railroad ap-
purtenant to a sawmill, constructed wholly on private
grounds, and operated for a private purpose, a common
carrier charged with all the duties and responsibilities in-
cumbent by the laws of the land upon common carriers,
and simply because it is a railroad and the owners are
incorporated as a business corporation. It seems to us,
we might as well hold that a railroad on a sugar planta-
tion appurtenant to the sugar mill and used for carrying
cane thereto, should be declared a common carrier."
1
¹ Quoted from Wade v. Lutcher &
Moore Lumber Co., 74 Fed. 517, 20
C. C. A. 515, 33 L. R. A. 255 (1896).
Other important cases to the
same effect are:
V.
United States.-Weidenfeld
Sugar Run Ry., 48 Fed. 615 (1892);
Albion Lumber Co. v. De Nobra, 72
Fed. 739, 19 C. C. A. 168 (1896).
California.-Contra, Costa R. R.
Co. v. Moss, 23 Cal. 323 (1863).
Georgia.-White v. Kennon &
Co., 83 Ga. 343, 9 S. E. 1082 (1889);
Normandale Lumber Co. v. Knight,
89 Ga. 111, 14 S. E. 882 (1892).
Illinois.-Litchfield & M. Ry.
Co. v. The People, 222 Ill. 242, 78
N. E. 589 (1906).
burg Mfg. Co., 132 N. C. 167, 43
S. E. 632 (1903); Cozard v. Kana-
wha Hardwood Co., 139 N. C. 283,
51 S. E. 932, 1 L. R. A. (N. S.) 969,
111 Am. St. Rep. 779 (1905).
It is perhaps not quite accurate
to divide the cases as they are be-
tween the two notes above. Some
few of them hold that although
never committed to full service as
passenger carriers, such industrial
railways may become by long con-
tinued action, if acquiesced in by
their proprietors, liable for not using
what care it was fair for a passenger
to expect under the circumstances.
Minnesota.-Campbell v. Duluth
& Northeastern R. R. Co., 107
Minn. 358, 120 N. W. 375 (1909).
Oregon.-Harvey v. Deep River
Logging Co., 49 Oreg. 583, 90 Pac.
Louisiana.—Williams et al. v.
Judge, 45 La. Ann. 1295, 14 So. 57
(1893).
North Carolina.-Leigh v. Garys- 501, 12 L. R. A. (N. S.) 131 (1907).
13
[ 193 ]
§ 224 ]
PUBLIC SERVICE CORPORATIONS
§ 224. Lateral branches.
When a public railroad builds a branch line from its
road, primarily to accommodate some individual busi-
ness, it is nevertheless a common carrier over the branch,
and the use of the track is open to all who have occasion
to use it as well as to the particular individual for whose
benefit it was built. The general question is perhaps
more often raised by a petition to take land for this pur-
pose by eminent domain. This is universally decided to
be permissible, for the operation of such a branch is a
public use. As the court said in one of these cases, Chi-
cago & Northwestern Railway v. Morehouse, 2 "The tak-
1 United States.-Interstate Com-
merce Commission v. Delaware, L.
& W. R. R. Co., 216 U. S. 531, 30
Sup. Ct. 415 (1910).
Alabama.-Agee & Co. v. Louis-
ville & N. R. Co., 142 Ala. 344, 37
So. 680 (1904).
Georgia.-Butler v. Tifton, T. &
G. R. R., 121 Ga. 817, 49 S. E. 763
(1904).
Illinois.-Chicago & A. R. R. Co.
v. Suffern, 129 Ill. 274, 21 N. E. 824
(1889).
Kentucky.-Louisville, etc., R. R.
Co. v. Pittsburg & K. Coal Co., 111
Ky. 960, 23 Ky. L. Rep. 1318, 64
S. W. 969, 55 L. R. A. 601 (1901);
Bedford-Bowling Green Co. V.
Oman, 115 Ky. 369, 73 S. W. 1039
(1903).
Louisiana.-Kansas City S. & G.
Ry. Co. v. Louisiana, etc., R. Co.,
116 La. 178, 40 So. 627, 5 L. R. A.
(N. S.) 512 (1905).
Minnesota.—State ex rel. R. &
W. Com. v. Willmar & S. F. R. Ry.
Co., 88 Minn. 448, 93 N. W. 112
(1903).
Nebraska.-Roby v. State ex rel.
Farmers' G. & L. S. Co., 76 Neb.
450, 107 N. W. 766 (1906).
New York.-Kellogg v. Sowerby,
87 N. Y. Supp. 412, 93 App. Div.
124 (1904).
South Carolina.-A vinger v.
South Carolina R. Co., 29 S. C. 265,
7 S. E. 493, 13 Am. St. Rep. 716
(1888).
Texas.-Railroad Comm'rs v. St.
Louis & S. W. Ry. (Tex.), 80 S. W.
102 (1904). Compare Kyle v. Texas
& N. O. R. R. (Tex. Civ. App.), 4
L. R. A. 275 (1889).
2 112 Wis. 1, 87 N. W. 849, 56
L. R. A. 240, 88 Am. St. Rep. 918
(1901).
To the same effect are:
Arkansas.-St. Louis, I. M. & S.
Ry. v. Petty, 57 Ark. 359, 21 S. W.
884, 20 L. R. A. 434 (1893).
Maine.-Ulmer v. Lime Rock
R. R., 98 Me. 579, 57 Atl. 1001
(1904).
Michigan.-Toledo S. & M. R. R.
v. East S. & S. C. R. R., 72 Mich.
206, 40 N. W. 436 (1888).
Montana.-Butte A. & P. Ry. v.
Montana U. Ry., 16 Mont. 504, 41
[194]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 225
ing of land for a spur track to connect with a single in-
dustry is a taking for public use, if the purpose of the
company is to maintain and operate such track as an in-
tegral part of its railway system, so as to serve all who
may desire it, and all can demand, as a right, to be served
without discrimination."
§ 225. Public spur.
The distinction between a public spur and a private
siding necessarily involves similar considerations. If the
track runs for any considerable distance so that by possi-
bility the road may be of use to several persons, its con-
struction is a public purpose, even though the immediate
use of the spur is to be made by one concern which is the
moving party in its construction. As the court said
in one leading case in Illinois: 1 "We have not regarded.
the circumstances that they were laid with private funds,
and that they terminated opposite or within convenient
contiguity of a private manufacturing establishment, as
materially affecting them and giving a private character
to their use. All termini of tracks and switches are more
or less beneficial to private parties, but the public char-
acter of the use of the tracks is never affected by this.
If they are open to public control to the extent that rail-
road tracks generally are, they are tracks for public
use." It may be in such cases that it is expected or even
that it is intended that such tracks will be used al-
most entirely by the manufacturing establishment, yet
if there is no exclusion of the equal rights of use by
others, and this singleness of use is simply the result of
Pac. 232, 31 L. R. A. 298, 50 Am.
St. Rep. 508 (1895).
New Jersey.-De Camp v. Hi-
bernia R. R., 47 N. J. L. 43
(1885).
Oregon.-Bridal Veil Lumbering
Co. v. Johnson, 30 Oreg. 205, 46
Pac. 790, 34 L. R. A. 368, 60 Am.
St. Rep. 818 (1896).
¹ Chicago Dock, etc., Co. v.
Garrity, 115 Ill. 155, 3 N. E. 448
(1885).
[ 195]
§ 226 ]
PUBLIC SERVICE CORPORATIONS
location and convenience of access, it cannot affect the
question.¹
§ 226. Private siding.
On the other hand, a private siding leading merely
from private property to the line of a public railroad over
which the public can have no rights is not a public util-
ity. This is plainly true where the premises of the in-
dividual benefited either directly adjoin the railroad or
are separated only by a few feet, so that the intervening
land can be accommodated from the main track. Thus
in another Illinois case 2 where it appeared that a coal
company desired to condemn by right of eminent domain
a strip of private land in order to connect its private
tramway with a railroad the court held that this could
¹ In the following cases a railroad
spur was held to be public in char-
acter although constructed prima-
rily for the benefit of particular con-
cerns:
Alabama.-Agee & Co. v. Louis-
ville & N. R. Co., 142 Ala. 344, 37
So. 680 (1904).
Georgia.-Jones & Co. v. Ven-
able, 120 Ga. 1, 47 S. E. 549 (1904).
Iowa.-Morrison v. Thistle Coal
Co., 119 Iowa, 705, 94 N. W. 507
(1903).
Kentucky.-Straight Creek Coal
Mining Co. v. Straight Creek Coal &
C. Co. (Ky.), 122 S. W. 842 (1909).
Louisiana.-Kansas City, S. & G.
Ry. Co. v. Louisiana W. Ry. Co.,
116 La. 178, 40 So. 627, 5 L. R. A.
(N. S.) 512 (1905).
v. East Saginaw, etc., R. R. Co., 72
Mich. 206, 40 N. W. 436 (1888).
Minnesota.-Chicago, B. & N.
R. R. Co. v. Porter, 43 Minn. 527,
46 N. W. 75 (1890).
Missouri.-Brown v. Chicago G.
W. Ry. Co., 137 Mo. 529, 38 S. W.
1099 (1897).
Montana.-Butte, A. & P. Ry.
Co. v. Montana Union Ry. Co., 16
Mont. 504, 41 Pac. 232, 50 Am. St.
Rep. 508, 31 L. R. A. 298 (1895).
New York.-Clarke v. Blackmar,
47 N. Y. 150 (1871).
Pennsylvania.-Hays v. Risher,
32 Pa. St. 169 (1858).
South Carolina.-Avinger v. South
Carolina Ry. Co., 29 S. C. 265, 7
S. E. 493, 13 Am. St. Rep. 716
(1888).
Virginia.-Zircle v. Southern Ry.
Co., 102 Va. 17, 45 S. E. 802, 102
Am. St. Rep. 805 (1903).
Maine.-Ulmer v. Lime Rock
Ry., 98 Me. 579, 57 Atl. 1001 (1904).
Maryland.-Dulaney v. United
Ry. & Electric Co., 104 Md. 423, 65
Atl. 45 (1906).
Michigan. Toledo, S. & M. R. R. 379 (1887).
2 Sholl v. German Coal Co., 118
Ill. 427, 10 N. E. 199, 59 Am. Rep.
[ 196 ]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 227
not be done. "It is clear that the use for which the lands
proposed to be taken in this case is not a public one.
The coal, the coal works and the present tramway are in
the strictest sense private property, and the public gen-
erally have no more interest in them or in the operation
of the works including the tramway than they have in
any other strictly private business. The same would be
equally true after the proposed extension of the tramway.
The extending of it to the railroad would not change its
character or the obligations of the company or the pub-
lic in the slightest degree. Without the consent of the
owners of it, there is not a person in the State, outside of
themselves, who would have the right to ride upon it on
any terms that might be proposed, or to have carried
upon it a single pound of freight." 1
Topic B. Characteristics of Public Business
§ 227. Public service in regular course.
The fundamental characteristic of a public calling is
¹ In the following cases the con-
struction of such sidings were held
to be a private purpose:
United States.-Chattanooga Ter-
minal Ry. v. Felton, 69 Fed. 273
(1895).
Arkansas.-Edgar Lumber Co. v.
Cornie Stave Co. (Ark.), 130 S. W.
452 (1910).
Illinois.-Koelle v. Knecht, 99
Ill. 396 (1881).
Maine.-Green v. Portland, 32
Me. 431 (1851).
Minnesota.-Gustafson v. Hamm,
56 Minn. 334, 57 N. W. 1054, 22 L.
R. A. 565 (1894).
Missouri.-Glaessner v. Anheuser
Busch Brewing Assn., 100 Mo. 508,
13 S. W. 707 (1890); Knapp, Stout
& Co. v. Transfer Co., 126 Mo. 26,
28 S. W. 627 (1894); Sherlock v. K.
C. Belt Ry. Co., 142 Mo. 172, 43
S. W. 629 (1897).
Pennsylvania.-Rochester & P. C.
& I. Co. v. Berwind-White C. M.
Co., 24 Pa. Co. Ct. 104 (1900);
Robbins v. Western Washington
R. R. Co., 31 Pitts. L. J. (N. S.) 181
(1900).
Utah.-Cereghino v. Oregon S. L.
Ry. Co., 26 Utah, 467, 73 Pac. 634,
99 Am. St. Rep. 843 (1903).
Washington.-Schwede v. Hem-
rich Bros. Brewing Co., 29 Wash.
21, 69 Pac. 362 (1902).
West Virginia.-Pittsburgh W. &
K. R. R. Co. v. Benwood Iron
Works, 31 W. Va. 710, 8 S. E. 453, 2
L. R. A. 680 (1888).
[197]
§ 228 1
PUBLIC SERVICE CORPORATIONS
indiscriminate dealing with the general public. As Baron
Alderson said in the leading case: "Everybody who un-
dertakes to carry for anyone who asks him is a common
carrier. The criterion is whether he carries for particular
persons only, or whether he carries for everyone. If a
man holds himself out to do it for everyone who asks
him, he is a common carrier; but if he does not do it for
everyone, but carries for you and me only, that is a mat-
ter of special contract." 1 This regular course of public
service without respect of persons makes out a plain case
of public profession by reason of the inevitable inference
which the general public will put upon it. "One trans-
porting goods from place to place for hire, for such as
see fit to employ him, whether usually or occasionally,
whether as a principal or an incidental occupation, is a
common carrier.'
" 2
§ 228. Public employment-carter.
It sometimes happens, especially in a new country,
that a farmer or other person who is driving a wagon to
town on his own business may agree to carry goods for his
neighbors for hire. Where he consents to carry for all per-
sons indifferently, the prevailing view is that he becomes
a common carrier, at least as to the particular trip in con-
nection with which he makes the offer, though he might
not be compelled to undertake the duty on any other
occasion. In the earliest case the plaintiff claimed ex-
¹ Quoted from Ingate v. Christie,
3 Car. & K. 61 (1850). See defini-
tions in cases cited under § 160, supra.
2 Quoted from Hahl v. Laux
(Tex. Civ. App.), 93 S. W. 1080
(1906). See definitions in cases
cited in § 238, infra.
3 Gisborn v. Hurst, 1 Salk. 249
(1710).
See also:
3
Kentucky.-Robertson v. Ken-
nedy, 2 Dana, 430, 26 Am. Dec. 466
(1834).
Mississippi.-Harrison v. Roy,
39 Miss. 396 (1860).
Pennsylvania.--Gordon v. Hutch-
inson, 1 W. & S. 285, 37 Am. Dec.
464 (1841).
Tennessee.-Moss v. Bettis, 4
Heisk. 661, 13 Am. Rep. 1 (1871).
[198]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 229
emption from distress upon his goods upon the ground
that they were in the possession of a common carrier.
The plaintiff had delivered them in London to one Rich-
ardson to carry, who was not a regular carrier, but for
some small time last past, brought cheese to London and
in his return took such goods as he could carry back in
his wagon into the country for a reasonable price and the
goods were distrained in his possession by his landlord.
The court held the goods exempt, for the reason that
"any man undertaking for hire to carry the goods of all
persons indifferently, as in this case, is, as to this privi-
lege, a common carrier." But in at least one case ¹ it has
been held that in such a case the farmer is not a common
carrier, nor, the court added, would it "make any differ-
ence how many applications of this kind had been made
by the party thus carrying, or to how many different
persons they may have been made, they would still re-
main so many special and individual transactions." The
view usually taken, however, is that the farmer under
such circumstances is a common carrier in spite of the
fact that the occupation is merely incidental, provided the
carriage is really a business with him.
§ 229. Regular service-shipmaster.
1
It has already been seen that the transportation by
water of passengers or goods, or both, is public in char-
acter. Ships, steamboats, river craft and canal boats,
even lighters and barges,-it makes no difference what
sort of vessel may be used in conducting the transpor-
Texas. Hahl v. Laux (Tex. Civ.
App.), 93 S. W. 1080 (1906).
1 Samms v. Stewart, 20 Ohio,
*69, 55 Am. Dec. 445 (1851).
See also:
Delaware.-Pennewill v. Cullen,
5 Harr. 238 (1849).
New York.-Fish v. Clark, 49 N.
Y. 122 (1872).
Texas.-Haynie v. Baylor, 18
Tex. 498 (question for jury), (1857).
England.-Brind v. Dale, 8 C. &
P. 207 (1837).
[199]
§ 229 1 PUBLIC SERVICE CORPORATIONS
2
tation, it will be a case of common carriage if there is
sufficient evidence of the general undertaking to serve
the public indifferently.¹ The clearest proof of this pub-
lic profession is regular service. A vessel plying regu-
larly between two ports is almost certainly engaged in
general service; and the proprietors conducting the busi-
ness are almost always held liable as common carriers.
This was said most positively in the latest case ² in-
volving steamship service, "It was admitted in the an-
swer of the defendant that it was a common carrier by
sea, operating a certain number of vessels between the
port of Savannah, Georgia, and the ports of Boston,
Massachusetts, and New York city, and accustomed to
carry the particular commodity offered it by the plain-
tiff, and against which it is alleged to have discriminated.
From the earliest times it has been considered that a
common carrier exercises a public employment, with pub-
lic duties to perform. He cannot, like a merchant receive
or reject a customer at pleasure. He is bound to serve
the public indifferently and this duty with respect to the
commonness of service was regarded as the distinguish-
ing trait of a common carrier."
¹ See particularly:
United States.-Liverpool & G.
W. Steam Co. v. Phoenix Ins. Co.,
129 U. S. 397, 32 L. ed. 788 (1889);
The Huntress, 2 Ware, 89 (1840).
Connecticut.-Crosby v. Fitch,
12 Conn. 410, 31 Am. Dec. 745
(1838).
South Carolina.-Swindler v. Hil-
liard, 2 Rich. L. 286, 45 Am. Dec.
732 (1846).
Tennessee. — Porterfield v.
Humphreys, 8 Humph. 497 (1847).
Vermont.-Spencer v. Daggett, 2
Vt. 92 (1829).
England.-Richardson v. Sewell,
Florida.-Bennett v. Filyaw, 1 2 Smith, 205 (1805).
Fla. 403 (1847).
Georgia.-Brown v. Clayton, 12
Ga. 564 (1853).
New Jersey.-Mersbon v. Hoben-
sack, 22 N. J. L. 372 (1850).
New York.-Elliott v. Rossell, 10
Johns. 1, 6 Am. Dec. 306 (1813).
2 Ocean S. S. Co. v. Savannah L.
W. & S. Co., 131 Ga. 831, 63 S. E.
577, 20 L. R. A. (N. S.) 867 (1909).
See also Bassett & S. v. Aberdeen
Coal & M. Co., 120 Ky. 728, 88
S. W. 318, 27 Ky. L. Rep. 1122
(1905).
[200]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 230
§ 230. Established charge-expressmen.
The establishment by a carrier of a regular tariff charge
for the carriage of a certain article is also evidence that
the carrier is a common carrier of that article. So where
an express company received a dog to be shipped to a
certain place for three dollars, which was found to be the
regular charge, the court remarked that the fact that
the company had established regular charges for such
freight, tends to show that they were in the transporta-
tion business.1 The case of the city truckmen is made
difficult by the usual absence of this circumstance. Some
cases hold that they are not common carriers, the chief
reason being that such truckmen do not carry goods with-
out special agreement as to terms of carriage.2 Other au-
thorities, however, hold that the truckman who holds
himself out as a public truckman is a common carrier,
recognizing that it is impossible for him to fix in advance
a tariff of charges for all services that may be asked of
3
¹ Southern Express Co. v. Ash-
ford, 126 Ala. 591, 28 So. 732
(1899).
This point is emphasized also in
Santa Fe P. & P. Ry. Co. v. Grant
Bros. C. Co. (Ariz.), 108 Pac. 467
(1910).
2 Missouri.-Jaminet v. American
S. & M. Co., 109 Mo. App. 257, 84
S. W. 128 (1904).
New Hampshire.-Faucher v. Wil-
son, 68 N. H. 338, 38 Atl. 1002, 39
L. R. A. 431 (1895).
South Carolina.-Piedmont Mfg.
Co. v. Columbia & G. R. R. Co., 19
S. C. 353 (1882).
England. Scarfe v. Farrant, L.
R. 10 Exch. 358 (1875).
3 Kentucky.-Cayo v. Pool, 108
Ky. 124, 21 Ky. L. Rep. 1600,
55 S. W. 887, 49 L. R. A. 251
(1900); Farley v. Lavary, 107 Ky.
523, 21 Ky. L. Rep. 1252, 54 S. W.
840, 47 L. R. A. 383 (1900).
Missouri.-Collier v. Langan T.
S. & M. Co. (Mo. App.), 127 S. W.
435 (1910).
New York.-Jackson Architec-
tural Works v. Hurlbut, 158 N. Y.
34, 52 N. E. 665, 70 Am. St. Rep.
432 (1899).
Pennsylvania.-Lloyd v. Haugh
& K. Transfer Co., 223 Pa. St. 148,
72 Atl. 516, 21 L. R. A. (N. S.) 188
(1909).
Utah.-Benson v. Oregon S. L.
Ry. Co. (Utah), 99 Pac. 1072
(1909).
Washington.-Gates v. Bekins, 44
Wash. 422, 87 Pac. 505 (1906).
Canadá.-Culver v. Lester, 37
Can. L. J. 421 (1901).
[201]
§§ 231, 232] PUBLIC SERVICE CORPORATIONS
him and that he must therefore make a separate agree-
ment as to his charges in each case.
§ 231. Indiscriminate service—irrigation.
1
2
The test, as will have been seen, is whether service is
rendered upon special contract to certain persons selected
by the owners or whether all applicants are served with-
out discrimination. The irrigation cases which at first
seem bothersome turn upon this point. In a recent case
this distinction was made plain. "Its status is that of
either a private or public agency, depending upon whether
its diversion is for the purpose of supplying owners or
possessors of arable and irrigable land with whom it has
fixed contractual relations, binding it to perform such
service, or whether its purpose or practice be to supply
owners or possessors of such land who are not its water
right holders, or with whom it has not bound itself by
contract to permanently render such service. If it con-
fines its service as the private agent of certain appropria-
tors, it cannot be compelled to render service to others.
On the other hand, if it undertakes to and does divert
and carry water for the use of consumers with whom it is
not bound by such contracts, and hence becomes a pub-
lic agency, it cannot, under the law, discriminate by
giving preference otherwise than with due regard to
priority of appropriation.'
""
§ 232. Public profession-warehousing.
In the same way, the proprietors of some warehouses
will be found to be carrying on a public business while
the owners of other warehouses will be seen to be engaged
1 Such as Wheeler v. Northern
Colorado Irr. Co., 10 Colo. 582, 17.
Pac. 487, 3 Am. St. Rep. 603 (1887).
Sce § 93, supra, as to irrigation
service in general.
2 Slosser v. Salt River Valley Co.,
7 Ariz. 376, 65 Pac. 332 (1901).
See § 242 as to public profession in
irrigation service.
[202]
PROFESSION OF PUBLIC EMPLOYMENT
[8232
in no public business whatever; which of these cases we
have is again a question of fact, whether upon the whole
proof it is shown that there has been a profession to serve
the public in general or whether the owner has been using
his warehouse simply in his private business. It is, con-
sequently, constitutional for the State to regulate the
charges of public warehousemen as was held in the leading
case of Munn v. Illinois.¹ But it is obviously unconstitu-
tional for the State to attempt to regulate the services of
a person who simply owns a warehouse that he uses for
himself, as the United States Supreme Court said in the
later case of Brass ex rel. v. Stoesser.2 Wharfs stand upon
the same basis as warehouses. Such wharfage facilities
are only public in character when proprietors have un-
dertaken to accommodate shipping in general.³ Such
wharfingers can only charge reasonable rates as the
United States Supreme Court pointed out in the early case
of Transportation Company v. Parkersburg. The more
common case probably is that of private wharves where
the owners transact their own business and where they
¹ 94 U. S. 113, 24 L. ed. 77 (1876).
See also:
United States.-Budd
V. New
York, 143 U. S. 517, 36 L. ed. 247,
12 S. Ct. 468 (1891).
Illinois.-Hannah v. The People,
198 Ill. 77, 64 N. E. 776 (1902).
2 153 U. S. 391, 38 L. ed. 757, 14
Sup. Ct. 857 (1894).
See also:
Minnesota.-State v. W. W. Car-
gill Co., 77 Minn. 223, 79 N. W.
962 (1899), affirmed in 180 U. S.
452, 45 L. ed. 619, 21 Sup. Ct. 423
(1900).
Pennsylvania.-Girard Storage
Co. v. Southwark Co., 105 Pa. St.
248 (1884).
3 United States.-Transportation
Co. v. Parkersburg, 107 U. S. 691,
27 L. ed. 584, 2 S. Ct. 732 (1882).
District of Columbia.-District v.
Johnson, 1 Mackey, 51 (1881).
Florida.-Indian River Steam-
boat Co. v. East Coast Transporta-
tion Co., 28 Fla. 387, 10 So. 480, 29
Am. St. Rep. 258 (1891).
Georgia.-Macon, D. & S. R. R.
Co. v. Graham, 117 Ga. 555, 43 S.
E. 1000 (1903).
Louisiana. Aiken & Co. v. Eager
& Co., 35 La. Ann. 567 (1883).
Washington.-Barrington v. Com-
mercial Dock Co., 15 Wash. 170, 45
Pac. 748, 33 L. R. A. 116 (1896).
[203]
§ 233 1 PUBLIC SERVICE CORPORATIONS
occasionally by special contract permit the vessels of
others to moor.1 Such wharves are private in character,
as the United States Supreme Court held in the recent
case of Weems Steamboat Company v. People's Steam-
boat Company.
Topic C. Characteristics of Private Business
§ 233. Private contract as the basis.
To make the contrast, the chief characteristic of pri-
vate dealing is the usual necessity for special agreement
with the proprietor, there being no regular course in such
special services. "The person who occasionally enter-
tains others for a reasonable compensation is no more
subject to the extraordinary responsibility of an inn-
keeper than he is liable as a common carrier who in cer-
tain special cases carries the property of others from one
place to another for hire." 2 Especially where the busi-
ness is incidental, the employment being intermittent,
it will usually be obvious that the business is being con-
ducted upon a private basis; or, as the test is put in one
of the early leading English cases: "The test is not
whether he is carrying on a public employment, or whether
he carries to a fixed place; but whether he holds out, either
expressly or by a course of conduct, that he will carry
¹ United States.-Louisville & N.
R. R. Co. v. West Coast Naval
Stores Co., 198 U. S. 483, 49 L. ed.
1135, 25 S. Ct. 745 (1905); Weems
Steamboat Co. v. People's Steam-
boat Co., 214 U. S. 345, 53 L. ed.
1024, 29 Sup. Ct. 661 (1909);
Leverich v. City of Mobile, 110
Fed. 170 (1867).
New York.-Woodruff v. Have-
meyer, 106 N. Y. 129, 12 N. E. 628
(1887); Thousand Island S. S. Co.
v. Visger, 86 N. Y. App. Div. 126,
83 N. Y. Supp. 325 (1903).
Pennsylvania.-Audenreid v. P.
& R. R. R. Co., 68 Pa. St. 370, 8
Am. Rep. 195 (1871).
Tennessee.-Memphis
Freight
Co. v. Mayor, etc., of Memphis, 4
Cold. 419 (1867).
2
Quoted from Lyon v. Smith,
Morris (Iowa), 184 (1843). See
§ 106, supra, § 239, infra.
[ 204 ]
PROFESSION OF PUBLIC EMPLOYMENT [§§ 234, 235
for hire, so long as he has room, the goods of all persons
indifferently who send him goods to be carried.” ¹
§ 234. Occasional business-householders.
One of the principal characteristics of a public service
is that it is almost always well established as a permanent
business and not regarded as an incidental employment.
Thus it ought not to be difficult to distinguish between
innkeepers 2 who openly carry on that business and house-
holders who occasionally entertain guests.
3
"To ren-
der a person liable as a common innkeeper, it is not suf-
ficient to show that he occasionally entertains travelers.
Most of the farmers in a new country do this, without
supposing themselves answerable for the horses or other
property of their guests which may be stolen, or other-
wise lost, without any fault of their own. Nor is such the
rule in older countries, where it would operate with far
less injustice, and be less opposed to good policy than with
us. To be subjected to the same responsibilities attach-
ing to innkeepers, a person must make tavern keeping,
to some extent, a regular business, a means of livelihood.
He should hold himself out to the world as an innkeeper."
" 4
§ 235. Casual employment-shipowners.
The principle that casual employment is not common
¹ Quoted from Nugent v. Smith, 1
C. P. D. 19 (1875). See § 160,
supra, § 238, infra.
2 California.-Pinkerton v. Wood-
ward, 33 Cal. 557, 91 Am. Dec. 657
(1867).
Connecticut.-Walling v. Potter,
35 Conn. 183 (1868).
Iowa.-Lyon v. Smith, Morris,
184 (1843).
Kentucky.—Kisten v.
v. Hilde-
brand, 9 B. Mon. 72, 48 Am. Dec.
416 (1848).
Tennessee.-Dickerson v. Rogers,
4 Humph. 179, 40 Am. Dec. 642
(1843).
3 Kentucky.-Southwood v. My-
ers, 3 Bush, 681 (1868).
New York. People v. Jones, 54
Barb. 311 (1863).
Texas.-Howth v. Franklin, 20
Tex. 798, 73 Am. Dec. 218 (1858).
Vermont.-Clary v. Willey, 49
Vt. 55 (1876).
4 Lyon v. Smith, supra.
[205]
§ 236]
PUBLIC SERVICE CORPORATIONS
carriage is well illustrated by the case of the charter of
vessels. If the vessel is casually employed it is not a
common carrier. The leading case on this point is Allen v.
Sackrider¹ where Mr. Justice Parker said in part: "The
only question in the case is, were the defendants common
carriers? The facts found by the referee do not, I think,
make the defendants common carriers. They owned a
sloop; but it does not appear that it was ever offered to
the public or to individuals for use, or ever put to any use,
except in the two trips which it made for the plaintiffs,
at their special request. Nor does it appear that the
defendants were engaged in the business of carrying goods,
or that they held themselves out to the world as carriers,
or had ever offered their services as such. This casual
use of their sloop in transporting plaintiffs' property falls
short of proof sufficient to show them common car-
riers." And generally where a vessel is chartered by
the owner, the charter being necessarily an isolated
transaction, the owner does not thereby become a common
carrier. 2
§ 236. Intermittent employment-teamsters.
Where the employment is intermittent and not a regular
matter of business, the carrier is not a common carrier.
It is a rule which will generally hold good, that one em-
ployed for hire pro hac vice only, who on the evidence does
not make the carriage of goods his constant occupation,
is not liable as a common carrier. There are a few cases
which seem to hold that even in such casual employment
1 37 N. Y. 341 (1867).
See also:
Delaware.-Pennewill v. Cullen,
5 Harr. (Del.) 238 (1849).
New York.-Aymar v. Astor, 6
Cow. 266 (1826).
2 Cases of this sort are:
United States.-Lamb v. Park-
man, 1 Sprague, 343 (1857); Sum-
ner v. Caswell, 20 Fed. 249 (1884);
The Dan, 40 Fed. 691 (1889).
Kentucky.-Bassett & Stone v.
Aberdeen Coal & Mining Co., 120
Ky, 728, 88 S. W. 318 (1905).
[206]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 236
3
the carrier may be held liable as an insurer.¹ But upon
examination these will be found to be cases of a tem-
porary undertaking upon a public basis.2 A wagoner is
not often a common carrier when he carries goods of an-
other along with his own. And the owner of a cart who
makes contracts for special jobs is plainly carrying on a
private business.4 Furniture movers are generally held
to be private carriers because of the intermittent nature
of their employment.5, But there are cases of teaming
which seem to be upon such a regular basis as to be com-
mon carriage.
6
¹ Pennsylvania. - Gordon
Gordon v.
Hutchinson, 1 W. & S. 285, 37 Am.
Dec. 464 (1841).
Tennessee.—Moss v. Bettis, 4
Heisk. 661, 13 Am. Rep. 1 (1871).
2 Mississippi.—Harrison v. Roy,
39 Miss. 396 (1860).
25 App. Div. 590, 49 N. Y. Supp.
917 (1898).
Pennsylvania.-Lloyd v. Haugh
& K. Transfer Co., 223 Pa. St. 148,
72 Atl. 516, 21 L. R. A. (N. S.) 188
(1909).
Utah.-Benson v. Oregon S. L.
Texas.-Chevallier v. Straham, 2 Ry. Co. (Utah), 99 Pac. 1072
Tex. 115 (1847).
³ Louisiana.—Flautt v. Lashley,
36 La. Ann. 106 (1884).
Vermont.-Beckwith v. Frisbie,
32 Vt. 559 (1860).
4 Canada.—Roussel v. Aumais,
Rap. Jud. Quebec, 18 C. S. 474
(1900).
Ceylon.-Gibson v. Silva, Rama-
Nathan, 105 (1848).
5 Illinois.-Armfield v. Humph-
rey, 12 Ill. App. 90 (1882).
Missouri.-Jamiet v. American
Storage Co., 109 Mo. App. 257, 84
S. W. 128 (1904).
New Hampshire.-Faucher v. Wil-
son, 68 N. H. 338, 38 Atl. 1002, 39
L. R. A. 431 (1895).
South Carolina.-Piedmont Mfg.
Co. v. Columbia & G. R. R. Co., 19
S. C. 353 (1882).
(1909).
Washington.-Gates v. Bekins, 44
Wash. 422, 87 Pac. 505 (1906).
Notwithstanding the language of
the earlier cases in Missouri it is
now held that a company which
holds itself out as ready to move
furniture for all comers is a com-
mon carrier pro hac vice. Collier v.
Langan, T. S. & M. Co. (Mo. App.),
127 S. W. 435 (1910).
Reference might here be made to
the Massachusetts cases under the
statute providing that liquors can-
not be delivered in a no-license
town except by regular expressmen.
Under this statute a carter who
professed a willingness to carry ex-
press matter in general but who, as
a matter of fact, is carrying only
liquors, is held not to be within the
• New York.-Snelling v. Yetter, meaning of the statute as it is held
[207]
§ 237]
PUBLIC SERVICE CORPORATIONS
§ 237. Limited undertakings-ferries.
1
The salient characteristics of a private business is that
there is no solicitation of the custom of the general public.
The many cases dealing with private ferries well illustrate
this. Where a private ferry is established to convey per-
sons to and from the premises of a private individual, who
may refuse to receive any person upon his premises, the
ferry is not operated as a public employment. A ferry es-
tablished to convey persons to a picnic ground ¹ is private.
So is a boat operated when employés engaged in other work
are at leisure.² A wherry regularly conveying the laborers
of its owner to their work is a private ferry.³ So is a
skiff which is offered as a free conveyance to persons who
will come to the store of its owner for trade.¹ A miller
who maintains a ferry to convey customers to his mill,5
is not a common carrier, even where other persons are
sometimes transported as a matter of accommodation who
give a gratuity to the servant managing the boat. And
where several parties joined to maintain a boat for the
purpose of conveying their cattle across a river to a
slaughter house the conveyance was not common car-
riage. In all of these cases the service maintained was
7
to call for "fixedness and perma-
nence" in the character of the busi-
ness and probably also for stated
times and established routes. See
Commonwealth v. People's Exp.
Co., 201 Mass. 564, 88 N. E. 420
(1909).
¹ People v. Mago, 69 Hun, 559,
23 N. Y. Supp. 938 (1893). And
see Meisner v. Detroit, B. & I. W.
Ferry Co., 154 Mich. 545, 118 N. W.
14 (1908), accord.
2 Roussel v. Aumais, Rap. Jud.
Quebec, 18 C. S. 474 (1900).
3 Tadhunter v. Buckley, 7 L. T.
(N. S.) 273 (1862).
4 Shinn v. Cotton, 52 Ark. 90, 12
S. W. 157 (1889). But see Hatten
v. Turman, 123 Ky. 844, 97 S. W.
770 (1906).
5 Self v. Dunn, 42 Ga. 528, 5 Am.
Rep. 544 (1871).
6 Littlejohn v. Jones, 2 McMull.
L. (S. C.) 366, 39 Am. Dec. 132
(1842).
7 Flautt v. Lashley, 36 La. Ann.
106 (1884).
And see Blanchard v. Abraham,
115 La. 989, 40 So. 379 (1906).
[208]
PROFESSION OF PUBLIC EMPLOYMENT [§§ 238, 239
held private because of the limitations put upon its con-
duct by its proprietors.
§ 238. Incidental service-merchants.
One who is engaged carrying on transportation primarily
for his own purposes is not engaged in common carriage.
Thus one who is delivering property which is the sub-
ject of a contract between himself and its owner, is
at most a private carrier in view of his relations with
his contracting party. So one who contracts to cut tim-
ber, and transport it to the place where it is to be de-
livered and used, was held not to incur the responsibility
of a common carrier.¹ And, similarly, a manufacturer who
purchased a machine and contracted with the seller to
cart it was held not to be a common carrier.2 In another
case of this sort 3 a warehouseman delivering goods from
storage was held not to be liable as a common carrier.
Similarly an omnibus employed by the proprietor of a
hotel in taking guests free to and from a railroad station
is not a public conveyance.*
Topic D. Particular Illustrations of the Distinction
§ 239. Public and private carriers in general.
Naturally enough there are more cases upon the dis-
tinction between public and private carriers than upon
any other calling. Many illustrations of this distinction
have already been given in this and a preceding chap-
ter. It will be sufficient, therefore, to give but a brief
1 New York.-Pike v. Nash, 3
Abb. App. Dec. 610 (1864).
Canada.-Benedict v. Arthur, 6
Up. Can. Q. B. 204 (1849).
2 Michigan.-Allis v. Voigt, 90
Mich. 125, 51 N. W. 190 (1892).
England.-Chattock v. Bellamy,
64 L. J. Q. B. 250 (1895).
3 Armfield v. Humphrey, 12 Ill.
App. 90 (1882).
But see Snelling v. Yetter, 25
N. Y. App. Div. 590, 49 N. Y. Supp.
917 (1898), apparently, contra.
4 City of Oswego v. Collins, 38
Hun, 171 (1885).
14
[209]
§ 239]
PUBLIC SERVICE CORPORATIONS
summary. If the carrier is commonly serving all who
intrust him with goods to be taken over his route, he is
in public employment.¹ It is the willingness to serve all
that makes the employment a public one. And therefore
the carrier who holds himself out as ready to carry for
all on a particular journey or voyage is at that moment
a common carrier, though this is his first journey and he
has never yet carried; and this may be equally the case
though he does not intend to continue the profession and
makes the offer for a single journey only. If on the other
hand the carrier does not deal with the public indiscrimi-
nately as a matter of routine but in effect makes an indi-
vidual bargain in each case, this course of business shows
that the service is upon a private basis.2
1 The following are regarded as
particularly good cases on public
carriage:
United States.-Propeller Niagara
v. Cordes, 21 How. 7, 16 L. ed. 41
(1858).
Alabama.-Babcock v. Herbert,
3 Ala. 392, 37 Am. Dec. 695 (1842).
Arizona.-Santa Fe P. & P. Co.
v. Grant Bros. C. Co. (Ariz.), 108
Pac. 467 (1910).
California.-Pfister V. Central
Pacific R. R. Co., 70 Cal. 169, 11
Pac. 686, 59 Am. Rep. 404 (1886).
Connecticut.-Crosby v. Fitch, 12
Conn. 410, 31 Am. Dec. 745 (1838).
Florida.-Bennett v. Filyaw, 1
Fla. 403 (1847).
Georgia.-Fish v. Chapman, 2
Ga. 349, 46 Am. Dec. 393 (1847).
Kentucky.-Robertson v. Ken-
nedy, 2 Dana, 430, 26 Am. Dec. 466
(1834).
Mississippi.—Harrison v. Roy,
39 Miss. 396 (1860).
Missouri.-Collier v. Langan T.
S. & M. Co. (Mo. App.), 127 S. W.
435 (1910).
New Hampshire.-Elkins v. Bos-
ton & Maine R. R. Co., 23 N. H.
275 (1851).
New York.-Jackson A. Iron
Works v. Hurlbut, 158 N. Y. 34,
52 N. E. 665, 70 Am. St. Rep. 432
(1899).
Texas.-Chevallier v. Straham,
2 Tex. 115, 47 Am. Dec. 639
(1849).
West Virginia.-Gillingham v.
Ohio River R. R. Co., 35 W. Va.
588, 14 S. E. 243, 14 L. R. A. 798,
29 Am. St. Rep. 827 (1891).
Wisconsin.-Doty v. Strong, 1
Pin. 313, 40 Am. Dec. 773 (1843).
2 The following are regarded as
good cases on private carriage:
United States.-Lamb v. Park-
man, 1 Sprague, 343, 40 Fed. 691
(1857); The Wildenfels, 161 Fed.
864 (1908).
Arkansas.-Shinn v. Cotton, 52
Ark. 90, 12 S. W. 157 (1889).
[210]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 240
§ 240. Public inn and private house.
The distinction between the public innkeeper and the
ordinary householder turns upon the presence of public
profession or its absence. The question whether a house
where a guest is entertained is a public inn or a private
house is a question of fact to be determined like any other
fact upon all the evidence. An innkeeper, as has been
seen, undertakes the entertainment of guests as a regular
business, taking usually all who apply; and he is held
answerable to the extent of his profession.¹ On the other
hand it often happens, particularly in new countries
where inns are not yet numerous, that householders occa-
sionally, or even frequently, accommodate travelers, unless
it is inconvenient to do so. This is not conducting a regular
business upon a public basis, and such practice is wholly
consistent with private action.2
Georgia.-Self v. Dunn, 42 Ga.
528, 5 Am. Rep. 544 (1871).
Michigan.-Allis v. Voigt, 90
Mich. 125, 51 N. W. 190 (1892).
New Hampshire.—Faucher
Wilson, 68 N. H. 338, 38 Atl. 1002,
39 L. R. A. 431 (1895).
V.
New York.-Allen v. Sackrider,
37 N. Y. 341 (1867).
9 B. Mon. 72, 48 Am. Dec. 416
(1848).
Minnesota.-Johnson v. Chad-
bourn Furnace Co., 89 Minn. 310,
94 N. W. 874, 99 Am. St. Rep. 571
(1903).
New York.-Wintermute v.
Clarke, 5 Sandf. 242 (1851).
North Carolina.-State v. Mat-
Ohio.-Weaver v. Wible, 20 Ohio, thews, 2 Dev. & B. 424 (1837).
270 (1855).
England.-Thompson v. Lacy, 3
Vermont.-Spencer v. Daggett, 2 B. & Ald. 283 (1820).
Vt. 92 (1829).
¹ California.-Pinkerton v. Wood-
ward, 33 Cal. 557, 91 Am. Dec. 657
(1867).
Connecticut.-Walling v. Potter,
35 Conn. 183 (1868).
Illinois. Bullock v. Adair, 63
Ill. App. 30 (1895).
Iowa.-Lyon v. Smith, Morris,
184 (1843).
Kentucky.-Kisten v. Hildebrand,
2 United States.-Beall v. Beck,
Fed. Cas. 1,161 (1829).
Georgia.-Bonner v. Welborn, 7
Ga. 296 (1849).
Kentucky. Southward v. Myers,
3 Bush, 681 (1868).
North Carolina.-Holstein v
Phillips, 146 N. C. 366, 59 S. E
1037, 14 L. R. A. (N. S.) 475 (1907).
Pennsylvania. Commonwealth
v. Cuncannon, 3 Brewst. 344 (1869).
[211]
§ 241]
PUBLIC SERVICE CORPORATIONS
§ 241. Public and private highways of every sort.
1
Even as to highways when constructed by private cap-
ital there are the two possibilities. Ferries and bridges 2
will be public or private according to whether the pro-
Texas.-Howth v. Franklin, 20
Tex. 798, 73 Am. Dec. 218 (1858).
Vermont.-Clary v. Willey, 49
Vt. 55 (1876).
1 As to public ferries, see:
Alabama. Frierson v. Frazier,
142 Ala. 232, 37 So. 825 (1904).
Arkansas.—Harvey v. Rose, 26
Ark. 3, 7 Am. Rep. 595 (1870).
Illinois. Claypool v. McAllister,
20 Ill. 504 (1858).
Iowa.-Whitmore v. Bowman, 4
Green, 148 (1853).
Kentucky.-Hall v. Renfro, 3
Met. 51 (1860).
Mississippi.-Powell v. Mills, 37
Miss. 691 (1859).
New York.-Wyckoff v. Queen's
County Ferry Co., 52 N. Y. 32, 11
Am. Rep. 650 (1873).
North Carolina.-Spivy v. Farm-
er, 2 Hawy. 339 (1805).
Ohio.-Wilson v. Hamilton, 4 Oh.
St. 722 (1855).
Tennessee.-Sanders v. Young, 1
Head, 219, 73 Am. Dec. 175 (1858).
As to private ferries, see:
Arkansas. Shinn v. Cotton, 52
Ark. 90, 12 S. W. 157 (1889).
Georgia.-Self v. Dunn, 42 Ga.
528, 5 Am. Rep. 544 (1871).
Louisiana. Flautt v. Lashley, 36
La. Ann. 106 (1884).
Michigan.—Meisner v. B. I. & W.
Ferry Co., 154 Mich. 545, 118 N. W.
14 (1908).
New York.-People v. Mago, 69
Hun, 559, 23 N. Y. Supp. 938 (1893).
South Carolina.-Littlejohn v.
Jones, 2 McMull. 366, 39 Am. Dec.
132 (1842).
England. Tadhunter v. Buck-
ley, 7 L. T. (N. S.) 273 (1862).
Canada.-Roussel v. Aumais,
Rap. Jud. Quebec, 18 C. S. 474
(1900).
2 As to public bridges, see:
United States.-Covington, etc.,
Turnpike Co. v. Sandford, 164 U. S.
578, 41 L. ed. 560, 17 S. Ct. 198
(1896).
California.-People v. San Fran-
cisco & A. R. R. Co., 35 Cal. 606
(1868).
Georgia.-McLeod v. Savannah,
Albany & Gulf R. R. Co., 25 Ga.
445 (1858).
Kentucky.—Arnold v.
v. Cov. &
Cin. Bridge Co., 1 Duval, 372
(1864).
Maine.-Bussey v. Gilmore, 3
Me. 191 (1824).
Bridge
Massachusetts.-Central
Corporation v. Sleeper, 8 Cush. 324
(1851).
New York. Thompson v. Mat-
thews, 2 Ed. Ch. 212 (1834).
Ohio.-Young v. Buckingham, 5
Ohio, 485 (1832).
Pennsylvania.-Pittsburg & W.
E. Passenger Ry. v. Point Bridge
Co., 165 Pa. St. 37, 30 Atl. 511, 26
L. R. A. 323 (1894).
As to private bridges the same
principles prevail:
See Manning v. City of Devils
Lake, 13 N. D. 47, 99 N. W. 51, 65
L. R. A. 187 (1904).
[212]
PROFESSION OF PUBLIC EMPLOYMENT [ § 242
prietors have manifested their intention to serve the pub-
lic or not. Such of these as have accepted some special
public franchise in aid of their construction cannot be
heard to say that they have not undertaken public serv-
ice. And those which are claiming such rights must be
certain that they have never acted so as to make mani-
fest any disclaimer of public employment. All this is true
of canals ¹ and turnpikes.2
1
§ 242. Public and private water supply and irrigation.
Waterworks and irrigation systems will be public or
private according to whether there is public profession
or private dealing in the particular case. The supply of
water to a city for domestic purposes will almost always
be found to have been undertaken upon a public basis ³
1 As to public canals, see:
Georgia.-Savannah Canal Co. v.
Shuman, 91 Ga. 400, 17 S. E. 937
(1893).
Illinois. People v. Improvement
Co., 103 Ill. 491 (1882).
New York.-Pennsylvania Coal
Co. v. Del. & H. Canal Co., 31 N.
Y. 91 (1865).
Pennsylvania.
Commonwealth
v. Delaware & H. Canal Co., 43 Pa.
St. 295 (1862).
As to private canals, see:
Louisiana.-Harvey v. Potter, 19
La. Ann. 264, 92 Am. Dec. 532(1867).
Michigan.-Potter V. Railway
Co., 95 Mich. 389, 54 N. W. 956
(1893).
2 As to public roads, see:
United States.-Covington & L.
Turnpike Co. v. Sandford, 164 U. S.
578, 41 L. ed. 560, 17 S. Ct. 198
(1896).
Kentucky.—Winchester, etc.,
Turnpike Road Co. v. Croxton, 98
Ky. 739, 34 S. W. 518 (1896).
Michigan.-Attorney General v.
Detroit & Erie Plank Road Co., 2
Mich. 138 (1851).
Ohio.-Chagrin Falls & Cleve-
land Plank Road Co. v. Cane, 2
Ohio St. 419 (1853).
As to private roads, see:
Alabama. Sadler v. Langham,
34 Ala. 311 (1859).
West Virginia.-Varner v. Mar-
tin, 21 W. Va. 534 (1883).
3 In the following cases dealing
with water supply a special point is
made of the public profession of the
company:
United States.-Long Island
Water Supply Co. v. Brooklyn, 166
U. S. 685, 41 L. ed. 1165, 17 S. Ct.
718 (1897).
Alabama.-City of Mobile V.
Bienville Water Co., 130 Ala. 379,
30 So. 445 (1900).
California.—McCrary v. Beau-
dry, 67 Cal. 120, 7 Pac. 264
(1885).
Georgia. Freeman v. Macon Gas
[213]
§ 242 ] PUBLIC SERVICE CORPORATIONS
but there are cases where it has been pointed out that
the works must be conducted for the use of the inhabit-
ants in common and not for a particular individual.¹
There are special complications with regard to irrigation;
but without going into the technical law applying to the
question of water rights in those States where irrigation
systems are usual, it may be pointed out here that these
systems are of two sorts-the one public, where the irri-
gation company is engaged in selling water to others than
its water right holders; 2 the other private, where no more
is undertaken than the supply of water to those who have
associated to construct the system.³
& Water Co., 126 Ga. 843, 56
S. E. 61, 7 L. R. A. (N. S.) 917
(1906).
Kansas.-Asher v. Water, Light,
& Power Co., 66 Kan. 496, 71 Pac.
813, 61 L. R. A. 52 (1903).
Maine.-Rockland Water Co. v.
Adams, 84 Me. 472, 24 Atl. 840, 30
Am. St. Rep. 368 (1892).
Massachusetts.-Lum bard V.
Stearns, 4 Cush. 60 (1849).
Montana.-State v. Butte Water
Co., 18 Mont. 199, 44 Pac. 966, 56
Am. St. Rep. 574 (1896).
New Jersey.-Olmstead v. Pro-
prietors of the Morris Aqueduct, 47
N. J. L. 311 (1885).
North Carolina.-Griffin v. Water
Co., 122 N. C. 206, 30 S. E. 319, 41
L. R. A. 240 (1898).
Oregon. Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Tennessee.—Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
1 See as to the possibility of
private water supply:
California.
McFadden v.
County of Los Angeles, 74 Cal. 571,
16 Pac. 397 (1888).
New York.-Pocantico Water Co.
v. Bird, 130 N. Y. 249, 29 N. E. 246
(1891).
2 In the following cases, dealing
with irrigation, the necessary con-
sequences of public profession are
discussed:
United States.-Fallbrook Irriga-
tion District v. Bradley, 164 U. S.
112, 41 L. ed. 369, 17 S. Ct. 56 (1896).
Arizona.-Slosser v. Salt River
Canal Co., 7 Ariz. 376, 65 Pac. 332
(1901).
California.-Price v. Riverside L.
& Irrigating Co., 56 Cal. 431 (1880).
Colorado.-Wheeler v. Northern
Colorado Irrigation Co., 10 Col.
582, 17 Pac. 487, 3 Am. St. Rep. 603
(1887).
Nebraska.-Paxton & H. Irrigat-
ing C. & L. Co. v. Farmers' & M.
Irrigation Co., 45 Neb. 884, 64 N.
W. 343, 29 L. R. A. 853, 50 Am. St.
Rep. 585 (1895).
3 See as to private irrigation:
[214]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 243
§ 243. Public and private gas and electricity,
That the business of supplying gas is public in char-
acter is now universally recognized, provided that the
company supplying is committed to supplying gas to the
community in general.¹ But the case can be imagined of
an institution with a generating plant for its own supply,
which might even supply one neighbor without being
obliged to sell to all others.2 In the same way the busi-
ness of supplying electrical energy has generally been
recognized as public in character. There are, however,
United States.—Bradley v. Fall-
brook Irrigation Co., 68 Fed. 948
(1895).
Arizona.-Gould v. Maricopa
Canal Co., 8 Ariz. 429, 76 Pac. 598
(1904).
California. Aliso Water Co. v.
Baker, 95 Cal. 268, 30 Pac. 537
(1892).
Colorado.-Rocky Ford Canal,
etc., Co. v. Simpson, 5 Colo. App.
30, 36 Pac. 638 (1894).
Montana.-Ellinghouse v. Tay-
lor, 19 Mont. 462, 48 Pac. 757
(1897).
Washington.-Prescott Irrigation
Co. v. Flathers, 20 Wash. 454, 55
Pac. 635 (1899).
1 The following cases among
others discuss incidentally the pub-
lic undertaking of gas companies:
United States.-Gibbs v. Con-
solidated Gas Co., 130 U. S. 396, 32
L. ed. 979, 9 S. Ct. 553 (1888).
Indiana.-Portland Gas & Oil
Co. v. State, 135 Ind. 54, 34 N. E.
818, 21 L. R. A. 639 (1893).
Massachusetts.-Opinion of Jus-
tices, 150 Mass. 592, 24 N. E. 1084,
8 L. R. A. 487 (1890).
New Jersey.-Public Service Cor-
3
poration v. American Lighting Co.,
67 N. J. Eq. 122, 57 Atl. 482 (1904).
West Virginia.-Charleston Gas
Co. v. Lowe, 52 W. Va. 662, 44 S. E.
410 (1901).
2 As to the possibility of private
gas supply, see Redkey, etc., Natu-
ral Gas v. Orr (Ind.), 60 N. E. 716
(1901).
³ In the following cases as to
electric supply a point is made of
public profession:
United States.-Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C. A.
660 (1908).
Georgia.-Jones v. North Georgia
Electric Co., 125 Ga. 618, 54 S. E.
85, 6 L. R. A. (N. S.) 122 (1906).
Illinois. Snell v. Clinton Elec-
tric Light Co., 196 Ill. 626, 63 N. E.
1082, 58 L. R. A. 284, 89 Am. St.
Rep. 341 (1902).
New Hampshire. Rockingham
Light & Power Co. v. Hobbs, 72
N. H. 531, 58 Atl. 46, 66 L. R. A.
581 (1904).
New York.-Armour Packing Co.
v. Edison Electric Co., 100 N. Y.
Supp. 605, 115 N. Y. App. Div. 51
(1906).
Ohio.-Cincinnati, H. & D. R. R.
[215]
§ 244]
PUBLIC SERVICE CORPORATIONS
several cases where the company supplying electricity
has not professed to sell to the public indiscriminately
at regular rates, but has from the beginning adopted the
policy of entering into special contracts upon its own
terms; such companies are plainly engaged in private
business.¹
§ 244. Public and private telephone and telegraph.
The public status of a telephone system which is at
the disposal of the whole community has already been
elaborately discussed; 2 but a telephone system of a pri-
vate character is not unknown, as a line run between
various farms in the country might often be so conducted
as to show no intention to receive other persons into the
association.³ So too although the public character of the
Co. v. Bowling Green, 57 Oh. St.
336, 49 N. E. 121, 41 L. R. A. 422
(1897).
Oregon. Grande Ronde Elec-
trical Co. v. Drake, 46 Oreg. 243,
78 Pac. 1031 (1905).
1 The following are cases of elec-
tric supply upon a private basis:
Vermont.-A very v. Vermont
Electric Co., 75 Vt. 235, 54 Atl. 179,
59 L. R. A. 817, 98 Am. St. Rep. 818
(1902).
Virginia. Fallsburg Co. v. Alex-
ander, 101 Va. 98, 43 S. E. 194, 61
L. R. A. 129, 99 Am. St. Rep. 855
(1903).
2 In most of the leading telephone
cases the essential quality of public
profession is emphasized; see:
United States.-Cumberland Tel.
& Tel. Co. v. Kelly, 160 Fed. 316,
87 C. C. A. 268 (1908).
Indiana.-Hockett v. State, 105
Ind. 250, 5 N. E. 178, 55 Am. Rep.
201 (1885).
Maryland.-Chesapeake
& P.
Telephone Co. v. Baltimore & O.
Telegraph Co., 66 Md. 399, 7 Atl.
809, 59 Am. Rep. 167 (1886).
Nebraska.-State ex rel. Webster
v. Nebraska Telephone Co., 17 Neb.
126, 22 N. W. 237, 52 Am. Rep. 404
(1885).
North Carolina.-People ex rel.
Telegraph Cable Co. v. Hudson
Riv. Telegraph Co., 19 Abb. N. C.
466 (1887).
Pennsylvania.—Bell Telephone
Co. v. Commonwealth, 3 Atl. 825
(1886).
South Carolina.-State v. Tele-
phone Co., 61 S. C. 83, 39 S. E. 257,
85 Am. St. Rep. 870 (1901).
Vermont.-Commercial Telegraph
Co. v. Telephone Co., 61 Vt. 241,
17 Atl. 1071, 5 L. R. A. 161
(1888).
3 As to the possibility of private
telephone lines, see Cumberland
Tel. & Tel. Co. v. Cartwright Tel.
[216]
PROFESSION OF PUBLIC EMPLOYMENT
[ § 244
1
established telegraph lines cannot be doubted ¹ there are
private wires connecting offices which are not operated
for general business.2
Co., 128 Ky. 395, 108 S. W. 875
(1908).
¹ The following citations are se-
lected from the many cases estab-
lishing the public character of
telegraph companies because the
essential characteristic of public
profession is mentioned:
United States.-Western Union
Tel. Co. v. Call Pub. Co., 181 U. S.
92, 45 L. ed. 765, 21 S. Ct. 561
(1900).
Maine.—Ayer v. Western Union
Tel. Co., 79 Me. 493, 10 Atl. 495, 1
Am. St. Rep. 353 (1887).
Mississippi.-Western Union
Telegraph Co. v. Mississippi R. R.
Commission, 74 Miss. 80, 21 So. 15
(1896).
Nebraska.-Western Union Tel.
Co. v. Call Pub. Co., 44 Neb. 326,
62 N. W. 506, 27 L. R. A. 622, 48
Am. St. Rep. 729 (1895).
North Carolina.-Green v. Tele-
graph Co., 136 N. C. 489, 49 S. E.
165, 67 L. R. A. 985 (1904).
2 As to the possibility of a private
telegraph service see Renville, Mat-
ter of, 46 N. Y. App. Div. 37, 61 N.
Y. Supp. 549 (1899).
[217]
CHAPTER VIII
EXTENT OF SERVICE PROFESSED
§ 250. Limitations upon the profession.
Topic A. Kinds of Service Undertaken
§ 251. Extent to which limitations may be imposed.
252. Businesses of limited scope.
253. Obligation in respect to the usual class.
254. No obligation to undertake different services.
255. Carriage of valuables separable.
256. Carriage of live stock.
257. Carriage of rolling stock.
258. Profession limited to car service.
259. Extraordinary service in transporting freight.
260. Extraordinary service in delivering freight.
Topic B. Separable Services for Different Purposes
§ 261. Separable services in general.
262. Carriers of passengers and goods.
263. Divisibility of the innkeeper's undertaking.
264. Purposes for which water is supplied.
265. Gas for illuminating and for fuel.
266. Distinct kinds of telephone service.
Topic C. Profession Defined by its Physical Limitations
§ 267. Profession to devote facilities.
268. Profession to render service.
269. Obligation limited to existing premises.
270. Profession limited to original plant.
271. Profession limited to natural supply.
272. Carriage confined to established route.
Topic D. Territorial Limits upon the Service Professed
§ 273. General problem of community service.
274. Territorial limits fixed by franchise.
275. Change in municipal boundaries.
276. Obligation beyond the profession.
[218]
EXTENT OF SERVICE PROFESSED
[ § 250
§ 277. Establishment of delivery limits.
278. What limits are reasonable.
279. Individual installation within the territory.
280. Rights of abutting owners.
281. Obligation to the community.
282. Reasonable limitation upon expansion.
§ 250. Limitations upon the profession.
Public profession not only establishes public obligation,
but it largely determines the extent of the public duty.
Just as people cannot be forced to serve unless they have
made public profession, so they cannot be forced to serve
beyond what their profession covers. The primary ques-
tion is, therefore, what their profession fairly covers;
and this is again a question of fact rather than of law. In
determining this fact, there is in many cases direct evi-
dence, but in most cases it is again circumstantial; so that
all that can be promised by way of general principle is
that those in public service are bound to do for any new
applicant the sort of thing in general that they have been
doing for others. For it is plain that one by entering a
public employment does not thereby undertake to per-
form any kind of service that may be asked of him. His
obligation only extends to the sort of service that he has
undertaken.¹ Considered in the large this is obvious and
¹ This is brought out, although in
too extreme a form, by the way in
which the question was introduced
to the jury by a Federal judge, in a
recent case: "The questions put,
therefore, resolve themselves into
this: Who shall have control of the
operation of the road,-the com-
pany or its customers? Who shall
determine what the railroad will
transport, the company or the
shippers? Who shall say to what
points the company will transport
goods, the company or its cus-
tomers? Who shall say what the
means and methods of transporta-
tion shall be,-the company or its
customers? In short, who shall de-
termine what the business of the
company shall be and how it shall
be carried on? Solved by the prin-
ciple of the common law and com-
mon sense, it must be the company,
as all will agree that no railroad
could be operated at all by those
who patronize it." Harp v. Choc-
taw, O. & G. Ry., 118 Fed. 169
(1902).
[219]
§ 251]
PUBLIC SERVICE CORPORATIONS
in many cases too plain for argument. In some busi-
nesses the narrow limitations upon the employment uh-
dertaken are obvious enough. One by entering a given
public calling only commits himself to render the sort of
service which is normally offered by those who follow this
particular employment.¹ What in general is the nature
of the service performed in each particular calling is a
matter which was discussed as to each employment in turn
in enumerating them in the first chapters of this treaties.
Topic A. Kind of Service Undertaken
§ 251. Extent to which limitations may be imposed.
This doctrine that the obligation may be limited by
defining the service undertaken is pressed to extremes
in the English decisions. In the leading case 2 it was held
that a railroad which had not undertaken the carriage of
coal between certain stations could not be required to do
so although it was carrying coal between other stations.
"A person may profess to carry a particular description
of goods only, in which case he could not be compelled
to carry other kind of goods," said the Exchequer Court,
"or he may limit his obligation to carrying from one place
to another, as from Manchester to London, and then he
would not be bound to carry to and from intermediate
points." And in the Canadian cases the rule is made
even more precise still, if that be possible. In them it is
¹ It follows as is brought out elab-
orately in a recent case in perform-
ing service which is not within the
usual profession the service is gen-
erally private in character.
"A
common carrier may become a pri-
vate carrier when as a matter of ac-
commodation or special agreement
it undertakes to carry something
which it is not its business to
carry." Santa Fe P. & P. R. R.
Co. v. Grant Bros. C. Co. (Ariz.),
108 Pac. 467 (1910).
2 Johnson v. Midland Ry. Co., 4
Exch. 367 (1849). See also In re
Oxlade & N. E. Ry. Co., 15 C. B.
(N. S.) 680 (1864). See further
Pitlock v. Wells, Fargo & Co., 109
Mass. 452 (1872).
[220]
EXTENT OF SERVICE PROFESSED [88252, 253
1
held that any limitation publicly announced will govern.
And according to the most extreme decision ¹ a railway
carrying timber of all kinds may announce that thence-
forth it will carry no more cedar lumber; and thereafter
it will be under no obligation to take cedar lumber, even
although still carrying other timber.
§ 252. This doctrine once pressed to extremes.
This was clearly the original logic of the law, "At
common law no person was a common carrier of any ar-
ticle unless he chose to be, and unless he held himself
out as such; and he was a common carrier of just such
articles as he chose to be, and no others. If he held him-
self out as a common carrier of silks and laces, the com-
mon law would not compel him to be a common carrier
of agricultural implements such as plows, harrows, etc.;
if he held himself out as a common carrier of confectionery
and spices, the common law would not compel him to be
a common carrier of bacon, lard, and molasses." 2 The
American cases from the first were less extreme. In one
of the earliest it was said that "a common carrier is
bound to convey the goods of any person offering to pay
his hire, unless his carriage be already full, or the risk
sought to be imposed upon him extraordinary, or unless
the goods be of a sort which he cannot convey or is not
in the habit of conveying." 3
§ 253. Obligation in respect to the usual class.
Whatever may be the rule still in England, it is clear
that in America a carrier who undertakes to carry cer-
1 Rutherford v. Grand Trunk
Ry. Co., 5 Rev. Leg. (Can.) 483
(1873).
See Leonard v. American Exp.
Co., 26 U. C. Q. B. 533 (1867).
2 Quoted from Kansas Pacific Ry.
Co. v. Nichols & Co., 9 Kans. 235,
12 Am. Rep. 494 (1872).
3 Fish v. Chapman, 2 Ga. 349, 46
Am. Dec. 343 (1847).
See Missouri Pacific Ry. Co. v.
Hams, 1 W. & W. (Tex. Ct. App.)
Dec., § 1263.
[221]
§ 254]
PUBLIC SERVICE CORPORATIONS
2
tain goods of a certain sort must carry all of the same
general nature.¹ A wagoner who had professed to carry
fruit could not refuse to carry vegetables. A steamboat
which had received boxes, could not refuse casks. Where
express matter is taken, packages of newspapers cannot
be refused, and where general freight is taken, lumber
cannot be refused. That is, everything of the same
general nature with the things carried, and readily trans-
ported in the same way and by the same means, must be
taken. "When a carrier has a regularly established busi-
ness for carrying all or certain articles, and especially
if that carrier be a corporation created for the purpose of
the carrying trade, and the carrying of the articles is em-
braced within the scope of its chartered powers, it is a
common carrier of them.” 4
3
§ 254. No obligation to undertake different services.
Even if the goods are similar in bulk to goods actu-
ally carried, if they require special treatment, a carrier
who has never professed to carry them may refuse to ac-
cept them as a common carrier. So where an express
company had never professed to carry glass as a common
carrier, and on the terms required of a common carrier a
writ of mandamus to compel the company to receive and
carry glass on such terms was refused. And so where
the goods are of a dangerous nature, it seems clear that
the carrier may refuse to receive them on the ground that
¹ A railroad company is "bound
to transport within the class of
goods it carries." McIntosh v. Or-
egon Ry. & Nav. Co., 17 Idaho, 100,
105 Pac. 66 (1909).
2 Ocean S. S. Co. v. Savannah L.
W. & S. Co. (Ga.), 63 S. E. 577,
20
L. R. A. (N. S.) 867 (1909).
3 To be common carriage the
5
undertaking must be to carry goods
of the kind which it has been pro-
fessed will be carried. Santa Fe
P. & P. Ry. Co. v. Grant Bros. C.
Co. (Ariz.), 108 Pac. 467 (1910).
Quoted from Memphis News Co.
v. Southern Ry. Co., 110 Tenn. 684,
75 S. W. 941, 63 L. R. A. 150 (1903).
5
" People v. Babcock, 16 Hun, 313
(1878).
[222]
EXTENT OF SERVICE PROFESSED
[ § 255
2
3
1
he has never professed to carry goods of that kind.¹
Again, perishable goods such as fish, might perhaps be
ruled out. And even freight like molasses which may
burst its barrels may be refused. For as will be seen
many times in the course of this discussion, there are
for various natural reasons different classes of goods, and
a practice of taking goods of one class does not establish
any profession to take goods of another class. Thus a
trucking company may make a specialty of handling heavy
iron products. Or van owners may confine their profes-
sion to moving household goods.5
4
§ 255. Carriage of valuables separable.
The distinction just drawn between what service is
within the usual profession and what is outside the pub-
lic obligation is one of much importance in the business
of carriage since in a case of common carriage the liability
for loss is greater than in a case of private carriage. As
to certain things often carried there are, therefore, a sur-
prising number of cases in which the rules relating to this
problem are worked out. Thus the cases are numerous
in which it is pointed out that an ordinary carrier of
goods is seldom a carrier of valuables, especially currency.
1 California Powder Works v. A.
& P. R. R. Co., 113 Cal. 329, 45
Pac. 691, 36 L. R. A. 648 (1896).
2 Leonard v. American Exp. Co.,
26 Up. Can. (Q. B.) 533 (1867).
3 Tunnel v. Pettijohn, 2 Harr.
(Del.) 48 (1835).
4 Jackson A. Iron Wks. v. Hurl-
but, 158 N. Y. 34, 52 N. E. 665, 70
Am. St. Rep. 432 (1899).
5 Collier v. Langan T. S. & M.
Co. (Mo. App.), 127 S. W. 453
(1910).
6 United States.-Citizens' Bank
v. Nantucket Steamboat Co., 2
Story, 16 (1841); Kuter v. Michigan
Cent. R. R., 1 Biss. 35, 14 Fed. Cas.
No. 7,955 (1853).
6
California. -Fay v. Steamer New
World, 1 Cal. 348 (1850).
District of Columbia.-White v.
Postal Tel. & Cable Co., 25 App.
Div. D. C. 364 (1905).
Illinois.-Chicago, etc., R. R. Co.
v. Thompson, 19 Ill. 578 (1858).
Kentucky.-Lee v. Burgess, 9
Bush, 652 (1873).
Louisiana.-Mechanics' & T. Bk.
v. Gordon, 5 La. Ann. 604 (1850).
Missouri.-Choteau V. Steam-
[ 223 ]
§ 255]
PUBLIC SERVICE CORPORATIONS
(6
1
But if it be shown in any case that the particular carrier is
carrying the money as part of his regular business he will
be held to be a common carrier. The charge of Mr.
Justice Story 2 to a Federal jury is always referred to in
this connection, for the distinctions which are drawn.
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 busi-
ness to the carriage of any one or more of these partic-
ular matters.” To apply this early rule to modern con-
ditions, the express company is almost always a common
carrier of money by its general practice. Thus an ex-
press company would be held a common carrier of the
money it is bringing back as the result of the sale of a
shipment sent C. O. D.¹
boat St. Anthony, 16 Mo. 216
(1852).
New York.-Sewall v. Allen, 6
Wend. 335 (1830); Kemp v. Cough-
try, 11 Johns. 107 (1814).
North Carolina.-Pender v. Rob-
bins, 6 Jones, 207 (1858).
1 United States.-Hellman v. Hol-
laday, 1 Woolw. 365 (1868).
Alabama.-Hosea v. M'Crory, 12
Ala. 349 (1847).
V.
Massachusetts. — Dwight
Brewster, 1 Pick. 50, 11 Am. Dec.
133 (1822).
New York.-Allen v. Sewell, 2
Wend. 327 (1829).
V. Mont-
Tennessee.-Kirtland
gomery, 1 Swan, 452 (1852).
Vermont.-Farmers' & M. Bank
v. Champlain Tr. Co., 23 Vt. 186,
56 Am. Dec. 68 (1851).
3
England.-Anonymous, 12 Mod.
*3 (1702).
2 Citizens' Bank v. Nantucket
Steamboat Co.,
Steamboat Co., 2 Story (U. S.), 16
(1841).
3 United States.-Kuter v. Michi-
gan Cent. R. R. Co., 1 Biss. 35, 14
Fed. Cas., No. 7,955 (1853); St.
John v. Express Co., 1 Woods, 612
(1871).
California.-Pfister V. Central
Pacific R. R. Co., 70 Cal. 169,
11 Pac. 686, 59 Am. Rep. 404
(1886).
4 Fitzgerald v. Adams Express
Co., 24 Ind. 447, 87 Am. Dec.
341 (1865).
But an express company need
not engage in C. O. D. business.
Burke v. Platt, 172 Fed. 777
(1909).
[224]
EXTENT OF SERVICE PROFESSED
[ § 256
§ 256. Carriage of live stock.
1
Another prominent matter in the topic under discus-
sion is the carriage of live stock. The carriage of live
stock was not ordinarily within the profession of the early
carriers as they had no vehicles large enough for such
carriage. Therefore when the railways came in, it was
doubted in England ¹ whether their carriage could be ob-
ligatory unless express undertaking with respect to them
could be found; and in one American jurisdiction, Michi-
gan,2 it was decided that this special profession was nec-
essary. But this is not the sort of reasoning that appeals
to American courts, and it is now almost universally
agreed that live stock constitutes one of the many classes
of goods which the modern railway undertakes to carry
for the public generally and that the railway is therefore
a common carrier of live stock in its freight trains. This
1 Blower v. Gt. Western Ry. Co.,
L. R. 7 C. P. 655, and cases cited
(1872).
2 Such carriage is, therefore, not
common carriage usually in Michi-
gan. Michigan S. R. R. v. Mc-
Donough, 21 Mich. 165, 4 Am. Rep.
466 (1870); Lake Shore & M. S. R.
R. v. Perkins, 25 Mich. 329, 12 Am.
Rep. 275 (1872); American Merch.
Union Exp. Co. v. Phillips, 29 Mich.
515, 58 N. W. 651 (1874); Smith v.
Michigan Cent. R. Co., 100 Mich.
148, 43 Am. St. Rep. 440 (1894).
3 United States.-Myrick v. Mich-
igan Cent. R. R. Co., 107 U. S. 102,
27 L. ed. 325 (1882). See Interstate
Stockyards Co. v. Indianapolis Ry.
Co., 99 Fed. 472 (1900).
Alabama.-South & N. A. R. R.
v. Henlein, 52 Ala. 606, 23 Am. Rep.
578 (1875).
Arkansas.-Fordyce v. McFlynn,
56 Ark. 424, 19 S. W. 961 (1892).
3
Florida.-Summerlin v. Seaboard
Air L. Ry. Co., 56 Fla. 687, 47 So.
557, 19 L. R. A. (N. S.) 191 (1908).
Georgia.-Central of Ga. Ry. Co.
v. Hall, 124 Ga. 322, 52 S. E. 679, 4
L. R. A. (N. S.) 898, 110 Am. St.
Rep. 170 (1905).
Illinois. Illinois Cent. R. R. v.
Hall, 58 Ill. 409 (1871).
Indiana.-Chicago, etc., R. Co.
v. Woodward, 164 Ind. 360, 72 N. E.
558 (1904).
Iowa.-McCoy v. Railroad, 44
Iowa, 424 (1876).
Kansas.-Kansas, etc., R. R. v.
Reynolds, 8 Kan. 623 (1871).
Kentucky.-Hall v. Renfro, 3
Met. 51 (1860).
Maine.-Sager v. Portsmouth,
etc., Railroad, 31 Me. 228, 50 Am.
Dec. 659 (1850).
Massachusetts.-Evans v. Fitch-
burg R. R., 111 Mass. 142, 15 Am.
Rep. 19 (1872).
15
[225]
§ 257 1
PUBLIC SERVICE CORPORATIONS
was strongly stated in an early Kansas case,¹ in which the
usual functions of the modern railway are thus described:
"It can hardly be supposed that they were created for
the mere purpose of taking the place of pack-horses, or
clumsy wagons, often drawn by oxen or such other prim-
itive means of carriage and transportation as were used
in England prior to 1607. Railroads are undoubtedly
created for the purpose of carrying all kinds of property
which the common law would have permitted to be car-
ried by common carriers in any mode, either by land or
water, which probably includes all kinds of personal
property."
§ 257. Carriage of rolling stock.
This general principle that the railways generally must
Minnesota.—Moulton v. St. Paul,
M. & N. Railroad Co., 31 Minn. 85,
16 N. W. 497,47 Am. Rep. 781 (1883).
Mississippi.-Chicago, St. L., &
N. O. R. R. Co. v. Abels, 60 Miss.
1017 (1883).
Missouri.-Ballentine v. North.
Mo. Railroad, 40 Mo. 491, 93 Am.
Dec. 315 (1867).
Nebraska.-Chicago, etc., R. R.
v. Williams, 61 Neb. 608, 85 N. W.
832 (1901); Atchison, etc., R. v.
Washburn, 5 Neb. 117 (1876).
New Hampshire.-Rixford v.
Smith, 52 N. H. 355, 13 Am. Rep.
42 (1872).
New York.-Clarke v. Rochester
& S. R. R., 14 N. Y. 570, 67 Am.
Dec. 205 (1856).
North Carolina.-Lee v. Raleigh
& G. R. R., 72 N. C. 236 (1875).
Ohio.-Welsh v. Pittsburg, Ft. W.
& C. R. R., 10 Oh. St. 65, 75 Am.
Dec. 490 (1859).
Pennsylvania.-Ritz v. Penna. R.
Co., 3 Phila. 82, 15 Leg. Int. 75
(1858).
South Carolina.-Bamberg v. So.
Carolina R., 9 S. C. 61, 30 Am. Rep.
13 (1877).
Tennessee.—Nashville & C. Rail-
road Co. v. Jackson, 6 Heisk. 271
(1871).
Texas.-Missouri Pac. Ry. Co. v.
Harris, 67 Texas, 166 (1886).
Vermont.-Kimball v. Rutland,
etc., R. Co., 26 Vt. 247, 62 Am. Dec.
567 (1854).
Wisconsin.-Betts
V. Farmers'
Loan Co., 21 Wis. 80 (1866); Ayres
v. Railroad Co., 71 Wis. 372, 5 Am.
Rep. 226 (1888).
England.-Hodgman v. West
Midland R. Co., 5 B. & S. 173, 117
E. C. L. 173, 13 W. R. 758, 35 L. J.
Q. B. 85 (1865).
¹ The quotation which follows is
from Kansas Pacific Ry. Co. v.
Nichols, 9 Kans. 235, 12 Am. Rep.
494 (1872).
[226]
EXTENT OF SERVICE PROFESSED
[ § 258
1
accept for transportation every kind of freight in every
form that is appropriate for transportation is well brought
out by the case of rolling stock offered for transportation
as freight. As is said by a Canadian court ¹ such transpor-
tation comes within the general profession of the railroads
which "hold themselves out as carriers of all descriptions
of property capable of being reasonably and conven-
iently transported over rails by a locomotive engine, to
the extent to which they have the means and accommo-
dations." These cases only decide that cars must be
received as freight, being charged for as such.2 They
do not go so far as to decide whether freight offered in
freight cars must be so received and transported without
charge for the weight of the car, a question much dis-
cussed later.
§ 258. Profession limited to car service.
3
To go to the other extreme of this problem, there is
the railway service which the terminal railway provides.
These railways not only undertake the carriage of freight
exclusively, but often will only take that when offered
in loaded cars. The profession of such a road, indeed, is
exclusively to transfer loaded cars to and from railway
systems. In recognizing this situation the Illinois court
said: "Nor do we see anything in the objection that the
business of the company is to be limited to the carrying
of freight offered in cars only. Every common carrier
has the right to determine what particular line of busi-
ness he will follow. If he elects to carry freight only, he
will be under no obligations to carry passengers, and vice
¹ Greene v. St. John & M. Ry.
Co., 22 N. B. (P. & T.) 252 (1882).
2 See further Rogers Locomotive
& M. Wks. v. Erie R. R. Co., 20
N. J. Eq. 379 (1869).
3 Wiggins Ferry Co. v. East St.
Louis Union Ry. Co., 107 Ill. 450,
458 (1883).
[227]
§ 259 ]
PUBLIC SERVICE CORPORATIONS
versa. So if he holds himself out as a carrier of a partic-
ular kind of freight, or of freight generally, prepared for
carriage in a particular way, he will only be bound to
carry to the extent and in the manner proposed. He will
nevertheless be a common carrier.” ¹
§ 259. Extraordinary service in transporting freight.
In another interesting set of modern cases the recur-
ring contention that in hauling circus trains the rail-
roads should be held liable as common carriers, has
always been denied by the courts. The usual facts, how-
ever, really negative carriage, the arrangement commonly
made leaving the real control of the contents of the cir-
cus cars with the circus men, the railroad simply furnish-
ing haulage. As the Michigan court said of such an
arrangement in the leading case: 3 "The contract before
us involves very few things ordinarily undertaken by
carriers. The trains were to be made up entirely of cars
which belonged to plaintiff and which the defendant
2
1 See further as to such exclusive
service: Interstate Stockyards Co.
v. Indianapolis Ry. Co., 99 Fed.
472, 481 (1900); United States v.
Sioux City Stockyards Co., 162
Fed. 556 (1908).
2 United States.-Chicago, M. &
St. P. R. R. v. Wallace, 66 Fed. 506,
14 C. C. A. 257, 30 L. R. A. 161
(1895); Wilson v. Atlantic C. L. Ry.
Co., 129 Fed. 774, aff'd in 133 Fed.
1022, 66 C. C. A. 486 (1904);
Clough v. Grand Trunk Ry. Co.,
155 Fed. 81, 85 C. C. A. 1, 11 L. R.
A. (N. S.) 446 (1907); Sager v.
Northern Pac. Ry. Co., 166 Fed.
526 (1908).
Indiana.-Cleveland, C., C. &
St. L. Ry. Co. v. Henry, 170 Ind.
94, 83 N. E. 710 (1908).
Massachusetts.-Robertson v.
Old Colony R. R. Co., 156 Mass.
525, 31 N. E. 650, 32 Am. St. Rep.
482 (1892).
Michigan.-Coup v. Wabash, St.
L. & P. Ry., 56 Mich. 111, 22 N. W.
215, 56 Am. Rep. 374 (1885).
Pennsylvania.-Forepaugh v.
Delaware, L. & W. R. R. Co., 128
Pa. St. 217, 18 Atl. 503, 15 Am. St.
Rep. 672, 5 L. R. A. 508 (1889).
But see Fordyce v. McFlynn, 56
Ark. 424, 19 S. W. 961 (1892), which
is really contra. And see Santa Fe
P. & P. Ry. Co. v. Grant Bros. C.
Co. (Ariz.), 108 Pac. 467 (1910),
which is plainly distinguishable.
3 Coup v. Wabash, St. L. & P.
Ry. Co., supra.
[228]
EXTENT OF SERVICE PROFESSED
[ § 260
neither loaded nor prepared, and into the arrangement of
which, and the stowing and placing of their contents de-
fendant had no power to meddle. The cars contained
horses which were entirely under control of plaintiff, and
which under any circumstances may involve special risks.
They contained an elephant, which might very easily in-
volve difficulty, especially in case of accident. 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 in-
cumbent on carriers to assume the burden and risks of
such carriage."
§ 260. Extraordinary service in delivering freight.
The decisions generally impose upon the railroad com-
panies an almost universal duty to perform as common
carriage every transportation service which may fairly be
demanded by the commercial community. Thus, in one
interesting class of cases of recent instance it was held
that a railroad to meet the needs of those constructing
telegraph lines was compelled to run with frequent stops
freight trains of flat cars carrying telegraph poles and other
equipment, delivering them along the right of way at the
regular intervals for setting the poles. In supporting an
order of a railroad commission of this tenor, the Florida
court said that it would be discrimination for the rail-
road to perform such a service for the Western Union Tele-
graph Company, and refuse the same service to the Postal
Telegraph-Cable Company: "We think it is clear that
a railroad company where it acts as a common carrier is
bound to serve all the members of the public alike, who
apply for service, under like conditions. The contention
that the general order of the Railroad Commissioners is
unauthorized by law inasmuch as it applies only to the re-
¹ State v. Atlantic Coast Line R. R. Co., 51 Fla. 543, 41 So. 529, (1906).
[ 229 ]
§ 261 ]
PUBLIC SERVICE CORPORATIONS
spondent, we think is unfounded. In the very nature of
things such an order could not be made to apply to an-
other railroad company which had not voluntarily per-
formed for some patron the service described in these
proceedings, which is in some respects peculiar, in that
it involves the delivery of poles, wires, etc., between
stations. But the respondent having voluntarily per-
formed this service for the Western Union Telegraph
Company may not deny it to another company apply-
ing for similar service under like conditions." 1
Topic B. Separable Services for Different Purposes
§ 261. Separable services in general.
Even if one is not committed in public employment to
going beyond the general class within which his usual serv-
ices fall, there is, of course, no reason why one engaged
in one class of service may not engage himself in various
other classes of service by making express or implied pro-
fession of them. It rests with the management to decide
whether to engage in two separable services, as a railroad
carrier may take passengers or freight. This is particularly
plain where the services are plainly diverse, as in one case
where a municipality was operating a waterworks and
maintaining a sewerage system. Again, it may engage in
one upon a public basis while dealing in the other upon a
private basis, as a gas company may supply generally for
illumination, while making in a few cases special bargains
for their surplus as fuel. Or it may undertake one branch
solely, as an electric company may refuse to supply cur-
rent for power. But in all cases, if two separable services
are generally offered to the public the applicant must be
free to demand either at his election.
1 Cumberland Tel. & Tel. Co. v.
Morgan's L. & T. R. Co., 51 La.
Ann. 29, 24 So. 803 (1899).
[230]
EXTENT OF SERVICE PROFESSED
[ § 262
§ 262. Carriers of passengers and goods.
1
A carrier of passengers is not necessarily also a carrier
of goods. His vehicles may not be adapted for that pur-
pose, or he may not desire to carry on both lines of busi-
ness. Even if he does occasionally carry goods for hire
on his vehicles, he is not necessarily a common carrier
of goods. This distinction was recognized many times.
with respect to stagecoaches ¹ in the earlier cases. Sim-
ilarly, one may undertake publicly as a carrier, of freight
solely.2 In this branch he is plainly engaged in a public
employment, and even if such a freight carrier does
occasionally take passengers, that does not make him a
common carrier of them. And conversely if a railway
carries passengers regularly but takes freight only for
one party it is not a common carrier of freight. So if a
street railway company has never made profession to
carry anything except passengers, it may not be held
liable for goods. Cases may be found, however, where
the practice of the railway has been to accept large pack-
ages brought by passengers for which they receive addi-
4
¹ Connecticut.-Merwin v. But-
ler, 17 Conn. 138 (1845).
3
South Carolina.-Peixotti v. Mc-
Laughlin, 1 Strob. 468, 47 Am. Dec.
Iowa.-Sales v. Western Stage 563 (1847).
Co., 4 Iowa, 547 (1857).
Ken-
Kentucky.—Robertson v.
nedy, 2 Dana, 430, 26 Am. Dec. 466
(1834).
Massachusetts. — Dwight V.
Brewster, 1 Pick. 50, 11 Am. Dec.
133 (1822).
New York.-Hollister v. Nowlen,
19 Wend. 234, 32 Am. Dec. 455
(1838); Cole v. Goodwin, 19 Wend.
251, 32 Am. Dec. 470 (1838).
10
Ohio.-Jones v. Voorhees, 10
Oh. St. 145 (1840).
V.
Pennsylvania.-Beckman
Shouse, 5 Rawle, 179, 28 Am. Dec.
653 (1835).
Tennessee.-Walker v. Skipwith,
Meigs, 502 (1838).
England.-Butler v. Basing, 2
Car. & P. 613 (1827).
2 Wiggins Ferry Co. v. East St.
Louis V. Ry. Co., 107 Ill. 450
(1883).
³ Edgar Lumber Co. v. Cornie
Stave Co. (Ark.), 130 S. W. 452
(1910).
4 California.—Davis v. Button,
78 Cal. 247, 20 Pac. 545 (1889).
Oregon.-Thompson-Houston
Electric Co. v. Simon, 20 Oreg. 60,
25 Pac. 147, 10 L. R. A. 251, 23 Am.
St. Rep. 86 (1890).
[231]
§ 263] PUBLIC SERVICE CORPORATIONS
1
tional compensation. In such cases ¹ the courts properly
hold that if it has been shown sufficiently that the defend-
ants had assumed the business of common carriers of mer-
chandise upon their cars they would be held liable as such.
Of late years the interurban railways have made the car-
riage of express matter a distinct branch of their busi-
ness a feature. This is probably the underlying reason
for treating them on a different basis from street railways
in general.
§ 263. Divisibility of the innkeeper's undertaking.
The innkeeper must, as such, supply all the entertain-
ment which the weary traveler actually needs on his
journey; which at least is food and shelter,² and the
innkeeper is bound to supply the traveler with either or
both as he may require. The consequence of this dual
requirement is curious. If the keeper of a house of
entertainment does not undertake to furnish both of these
necessities he is not a common innkeeper; and this require-
ment distinguishes inns from many similar houses of
public entertainment. Thus a house which does not
supply lodging is not an inn; and this rule excludes from
among inns a restaurant or eating house, a coffeehouse or
a drinking saloon. And for the same reason a house that
3
¹ Illinois.-Spalding v. Macomb
& W. I. Ry. Co., 225 Ill. 585, 80
N. E. 327 (1907).
Massachusetts.-Levi v. Lynn &
Boston R. R. Co., 11 Allen, 300, 87
Am. Dec. 713 (1865).
2 California.-Pinkerton v. Wood-
ward, 33 Cal. 557, 91 Am. Dec.
657 (1867).
Connecticut.-Walling v. Potter,
35 Conn. 183 (1868).
New York.-Wintermute v.
Clark, 5 Sandf. 242 (1851); Crom-
well v. Stephens, 2 Daly, 15 (1867).
Tennessee.-Dickerson v. Rogers,
4 Humph. 179, 40 Am. Dec. 642
(1843).
England. Thompson v. Lacy,
3 B. & Ald. 283 (1820).
3 Illinois. Sheffer v. Willoughby,
163 Ill. 518, 45 N. E. 253, 34 L. R.
A. 464, 54 Am. St. Rep. 483, aff'd 61
Ill. App. 263 (1896).
New York.-Block v. Sherry, 43
N. Y. Misc. 342, 87 N. Y. Supp. 160
(1904).
Ohio.-Pabe v. Myers, 5 Ohio S.
& C. P. Dec. 578 (1895).
[232]
EXTENT OF SERVICE PROFESSED
[ § 264
1
furnishes only lodging without food, like a lodging house,
or an apartment hotel, is not an inn. However, if all
elements of entertainment required by a traveler are
furnished him by the host the house may be an inn,
notwithstanding they are independently furnished and
separately offered. Thus, a hotel is no less an inn though
it is conducted on the European plan, so called; the fact
that food is separately obtained and paid for, and the
guest may procure his food elsewhere if he chooses, does
not alter the legal character of the house.²
§ 264. Purposes for which water is supplied.
A company engaged in the supplying of water through
pipes to the community is not obliged to supply water for
all purposes to which the applicant may wish to devote it.
England.-Reg. v. Rymer, 2
Q. B. D. 136, 46 L. I. M. C. (N. S.)
108 (1877).
¹ Massachusetts.-Davis v. Gay,
141 Mass. 531, 6 N. E. 549 (1886).
New York.-Kelly v. New York
Excise Comrs., 54 How. Pr. 327
(1877); Cromwell v. Stephens, 2
Daly, 15 (1867).
2 Illinois.-Bullock v. Adair, 63
Ill. App. 30 (1895).
Minnesota.—Johnson v. Chad-
bourn Furnace Co., 89 Minn. 310,
94 N. W. 874, 99 Am. St. Rep. 571
(1903).
But see Nelson v. Johnson, 104
Minn. 440, 116 N. W. 828, 17 L. R.
A. (N. S.) 1259 (1908).
New York.-Krohn v. Sweeney,
2 Daly, 200 (1867).
Pennsylvania.
McClure v.
Krumbholz, 9 Pa. Dist. R. 544, 31
Pitts. L. J. (N. S.) 3 (1900).
There may be restaurants no part
of the inn:
Kentucky.-Kisten
v. Hilde-
brand, 9 B. Mon. 72, 48 Am. Dec.
416 (1848).
Massachusetts.
Commonwealth
v. Wetherbee, 101 Mass. 214 (1869).
Minnesota.-Johnson v. Chad-
bourn Furnace Co., 89 Minn. 310,
94 N. W. 874, 99 Am. St. Rep. 571
(1903).
New York.-Kelly v. New York
Excise Comrs., 54 How. Pr. 327
(1877).
People resorting to such restau-
rants are not guests:
V.
Massachusetts. Mason
Thompson, 9 Pick. 280, 20 Am.
Dec. 471 (1830).
New York.-Krohn v. Sweeney,
2 Daly, 200 (1867).
Vermont.-State v. Stone, 6 Vt.
295 (1834).
England. Reg. V. Rymer, 2
Q. B. D. 136, 46 L. J. M. C. 108
(1877).
Australia.-Miller v. Federal
Coffee Palace, 15 Victorian Law R.
30 (1889).
[ 233 ]
§ 264 ]
PUBLIC SERVICE CORPORATIONS
This is the explanation of the Vermont case in which it
was held that a water company authorized by its charter
to take water from a stream to supply a town with water
for domestic purposes had no right to conduct water from
the stream for the use of a private corporation in polishing
granite.¹ It should be added, however, that a water
company enabled under its charter, might supply upon
a public basis for extraordinary purposes such as to
steam plants and manufacturing purposes.2 What con-
stitutes the domestic service which a community may at
least require from the waterworks is not altogether clear,
although it has been discussed in certain cases.³ Aside
¹ Re Barre Water Co., 62 Vt. 27,
20 Atl. 109, 9 L. R. A. 195 (1889);
and Smith v. Barre Water Co., 73
Vt. 310, 50 Atl. 1055 (1901). See
also Jordan v. Indianapolis Water
Co. (Ind. App.), 61 N. E. 12 (1901),
and Boonton v. United Water
Supply Co., 70 N. J. Eq. 692, 64
Atl. 1064 (1906).
2 New Jersey.-Coe v. N. J. Mid-
land Ry. Co., 30 N. J. Eq. 440
(1879).
Ohio.-M. E. Church v. Ashta-
bula Water Co., 20 Oh. C. C. 578
(1900).
Washington.-Jenkins v. Colum-
bia Land Co., 13 Wash. 502, 43 Pac.
328 (1896).
³ In the interesting case of Bar-
nard Castle Urban Dist. v. Wilson,
2 Ch. 813 (1901), the court say:
"It is a serious question whether
in every case in which an occupier
desires to have a supply of water
for his enjoyment and pleasure the
water company or authority are
bound to supply him without re-
gard to the ordinary requirements
of their district for the purposes of
drinking, washing, and sanitation.
Let me give an example of what I
mean. I agree that a householder
might allow his dog or cat to drink
the water supplied for domestic
purposes and might use the water
for washing them. So again, as has
been decided, he might use the
water for washing his horse and
carriage and for watering the horse.
There must, however, be some
limitation. Suppose a wealthy pro-
prietor chose to keep other tame
animals for instance, a tame ele-
phant-would it be reasonable for
him to call upon a water company
to supply him with water to fill a
special bath for the elephant? In
my opinion that would not be a
supply for domestic purposes. So
again, it might be reasonable to use
the water to fill a small tank for
gold-fish. But suppose an occupier
desired to keep a private aquarium,
I should not be inclined to hold that
he could require a water company to
furnish him with a supply of running
water for it. In my opinion you
must approach the consideration of
[ 234 ]
EXTENT OF SERVICE PROFESSED
[ § 265
from these duties which it owes to the inhabitants as
individuals it would seem that the local works are under
certain obligations to the community itself, such as to
supply water for the extinguishment of fires and the
sprinkling of streets.¹
§ 265. Gas for illumination and for fuel.
2
A gas company within the principles under discussion
if authorized by its charter may offer to the public a gas
supply for both illumination or fuel, or it may confine
its profession or be limited by its charter to the supply of
gas for either illumination or fuel. Where the company
offers both services it must be in the alternative, the
consumer having the right to demand either service which
he wishes without obligation to take the other.³ The
whole problem was gone over in a recent case where it
was proved that the gas company was engaged under its
charter in supplying gas both for illumination and fuel
with the arrangement that the illuminating gas and the
each case with some regard to what
is reasonable, and see in each case
whether the supply of water which
is wanted is reasonably a supply for
domestic purposes."
1 As to the duty to the com-
munity in relation to hydrant serv-
ice, see:
Iowa.—McAllan v. Hamblin, 129
Hamblin, 129
Iowa, 329, 105 N. W. 593, 5 L. R. A.
(N. S.) 434 (1906).
Texas.-House v. Houston Water
Works Co., 88 Tex. 233, 31 S. W.
179, 28 L. R. A. 532 (1895).
Moreover, there is a particular
duty to individual owners to supply
water for their extinguishing ar-
rangements at a proper rate there-
for.
Gordon & Ferguson v. Doran,
100 Minn. 343, 111 N. W. 272, 8
L. R. A. (N. S.) 1049 (1907).
As to the duty to the community
for sprinkling service, see:
United States.-Wiemer v. Louis-
ville Water Co., 130 Fed. Rep. 251
(1903).
Louisiana.-Callery v. Water
Works Co., 35 La. Ann. 798 (1883).
Similarly as to private supply to
sprinkling, see:
Alabama.-City of Birmingham
v. Birmingham Waterworks Co.,
42 So. 10 (1906).
Tennessee.-Wautauga Co. v.
Wolfe, 99 Tenn. 429, 41 S. W. 1060,
63 Am. St. Rep. 841 (1897).
2 The cases have already been
cited that relate to the supply of
gas for illumination (see § 111) and
for fuel (see § 112).
3 See Baily v. Fayette Gas Co.,
193 Pa. St. 175, 44 Atl. 251 (1899).
[235]
§ 266 1 PUBLIC SERVICE CORPORATIONS
1
fuel gas should be taken through a separate meter as
different charges were made. In this particular case the
applicant who had a single meter through which he had
formerly taken illuminating gas now wished to take fuel
gas exclusively, which the Louisiana court ¹ held he could
do. "No good reason suggests itself why mandamus
should not go to the company, when it is evident that the
one who desires to use gas is entitled to the light for which
he seeks, or to the heat he needs for cooking and other
purposes for which gas is utilized." 2
§ 266. Distinct kinds of telephone service.
As the modern telephone system is managed, two serv-
ices are generally offered, a special service to occupiers
at their buildings and a general service at pay stations.
In some few cases the telephone companies have attempted
to say that if they furnish the pay stations to the public
in general, they should not be bound to furnish a residence
service to particular persons unless they chose. In the
important case of State v. Nebraska Telephone Company
this was one excuse urged by the company when a man-
damus was sought against it to compel it to put a tele-
¹ Quoted from State v. New Or-
leans Gaslight Co., 108 La. 67, 32
So. 179 (1901-1902).
Whether such lower rates for fuel
gas are justifiable is a debated
question discussed later on. But
certainly People's Gaslight Co. v.
Hale, 94 Ill. App. 406 (1900), is
correct in holding that a gas com-
pany is not bound to continue to
furnish gas, for fuel, cheaper.
2 One point not covered by these
cases, and, indeed, not settled as
yet, is whether a company which is
limited to one service can be pre-
vented from bringing about another
3
service. One recent case holds that
an illuminating company is not
to blame if consumers use its gas
for fuel:
People v. Los Angeles Independ-
ent Gas Co., 150 Cal. 557, 89 Pac.
108 (1907).
Another holds that a fuel com-
pany can be prevented from selling
gas which its customers use for
lighting:
Nairin v. Ky. Heating Co., 27
Ky. L. Rep. 551, 86 S. W. 676
(1900).
³ 17 Neb. 126, 22 N. W. 237, 52
Am. Rep. 404 (1885).
[236]
EXTENT OF SERVICE PROFESSED
[ § 267
phone into the relator's office, but the court held that as
the special service was generally offered, this particular
applicant must be given it, Mr. Justice Reese saying:
"It is said by respondent that it has public telephone
stations in Lincoln, 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 tele-
graph, 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 under-
taken with the public to send messages from its instru-
ments, one of which it proposes to supply to each person
or interest requiring it, if conditions are reasonably favor-
able. This is the basis upon which it proposes to operate
the demand which it proposes to supply. It has so as-
sumed and undertaken to the public." 1
Topic C. Profession Defined by its Physical Limitations
§ 267. Profession to devote facilities.
The limits one may impose upon the profession he makes
in undertaking the employment are far easier to indicate
in general terms than to apply in particular cases. One
way of putting it is to say that one may set the exterior
limits, but one may make no interior limits; or in other
1 Other important cases to the
same effect should be noted:
Indiana.-Central Union Tele-
phone Co. v. State, 118 Ind. 194,
19 N. E. 604, 10 Am. St. Rep. 114
(1888); Central Union Telephone
Co. v. Fehring, 146 Ind. 189, 45
N. E. 64 (1896); Central Union
Telephone Co. v. State, 123 Ind.
113, 24 N. E. 215 (1889).
Missouri.-State ex rel. v. Kin-
loch Telephone Co., 93 Mo. App.
349, 67 S. W. 684 (1902).
[237]
§ 268]
PUBLIC SERVICE CORPORATIONS
words, one is not bound to service outside of the profes-
sion which has been made, while one is bound to serve
within the profession. This distinction may be illustrated
by pointing out that a railroad is not bound to carry
beyond the route which it has established; but it cannot
limit its service to white men by expressly advertising
that it will not take colored persons. And similarly a
water company need not supply applicants outside the city
even if its aqueducts pass their premises, but certainly it
could not within the city refuse to supply applicants in a
district through which its pipes run. This is perhaps
sufficiently plain in both illustrations given; but other
cases are more difficult to bring within these principles.
An innkeeper is not bound to serve beyond the capacity
of his house, but up to this capacity he ought to receive
all without discrimination; an irrigation company is not
liable for not supplying new applicants after the flow of
the stream is exhausted, although bound to accept appli-
cants in proper order up to its capacity. Perhaps in these
cases also it may fairly be said that the extent of the inn-
keeper's profession is the dedication of his actual house
to public service, and the whole profession of the irrigation
company is to divert the particular stream; so that neither
can be called upon to serve beyond its profession, while
within its profession its public duty is plain. This con-
ception, however, must not be pressed too far, as other
cases will show.
§ 268. Profession to render service.
It is apparently equally well established that a railroad
company which finds itself unable to handle its business
with its original equipment must provide additional equip-
ment to meet existing demands; indeed it must be pre-
pared with better equipment to meet modern needs. So
too, a gas works cannot confine its service to its orig-
[238]
EXTENT OF SERVICE PROFESSED
[ § 269
inal works; it will be obliged to increase its plant to meet
the increasing demands of its public. This difference in
obligation can only be explained by a difference in the pro-
fession, for the circumstances are otherwise much the
same. The extent of the profession depends on the inten-
tion of the proprietors or, rather, upon the impression
which they give their community. In the case of the rail-
road it is obvious that they intend to give general service,
not to simply devote certain cars to that service. They
expect to carry goods long after these particular cars have
worn out, and their right of way being capable of han-
dling far more business than the original equipment, they
expect to add to this as their business grows. The same
argument will explain the obvious obligation of the pro-
prietors of a gas plant. Their original franchise is taken
upon the basis of a general obligation to serve the com-
munity. Their present plant is for present needs; but
they really undertake to provide a larger one if the com-
munity demands it.
§ 269. Obligation limited to existing premises.
Although it is well settled that an innkeeper, a ware-
houseman, an elevator man, and a wharfinger to cite
prominent examples-are by entering upon indiscriminate
dealings bound to serve all to the extent of their capacity,
it seems to be equally well established that they have an
excuse for refusing further service after their capacity is
exhausted. "No doubt an innkeeper is bound to provide
accommodation for travellers, but he is not to do so at all
risks and all costs. He is only bound to provide accommo-
dation so long as his house is not full; when it is full he
has no duty in that respect." Nor is there any intimation
in any case that such owners are obliged to build larger
¹ Per Darling, J., in Brown v.
Brandt, 1 K. B. 696, 71 L. J. K. B.
367, 86 L. T. 625, 50 W. R. 654.
(1902).
[239]
§ 270]
PUBLIC SERVICE CORPORATIONS
structures so as to have greater capacity, even where
repeated experience has shown the existing buildings to
be entirely inadequate to existing demands upon them.
These instances constitute too large a class to be dis-
missed as exceptional. The truth of the matter seems to
be that in these cases it is the existing structure which
is devoted to public service and that is all that is under-
stood as offered to the public.
§ 270. Profession limited to original plant.
In some services the profession made is limited to the
original equipment. This, as has been seen, was cer-
tainly the old law, when modern conditions were not an-
ticipated. Thus a carter is held to put his wagon at the
disposal of the public for what it will take. In the lead-
ing case,¹ a carter who usually carried parcels of mod-
erate size, but who had taken a hogshead of molasses
after first refusing it because of its size, was held not
responsible for it as a common carrier. "There seems
to be good reason," said the court, "for distinguishing
between this and other kind of goods, on account of its
bulk and weight, and it also appears that the defendant's
cart is too small for such freight." In a modern case of
this sort it was pointed out that a steamship owner is not
liable for refusing to take freight when the vessel which
he had devoted to this service was loaded to its full
capacity.2 "At common law, a carrier's duty to receive
goods was limited to his facilities for transportation,"
said the court. In the same way a bridge company
cannot be called upon to receive loads too heavy for its
structure. And a company which held itself out as ready
3
¹ Tunnel v. Pettijohn, 2 Harr.
(Del.) 48 (1836).
2 Ocean Steamship Co. v. Sa-
vannah, L. W. & S. Co., 131 Ga.
831, 63 S. E. 577, 20 L. R. A. (N. S.)
867 (1909).
3 Thompson v. Matthews, 2 Edw.
Ch. 212 (1834).
[240]
EXTENT OF SERVICE PROFESSED [§§ 271, 272
to carry anything its barges were suited for was thought
to be a common carrier.¹
§ 271. Profession limited to natural supply.
Where the supply that is offered has a natural limita-
tion, it will usually be found that the profession is limited
to the exploitation of that supply. Thus a company which
undertakes the supply of natural gas from a given field
cannot be held liable for the failure of the supply to meet
the demands of the community; for to require such a
company to manufacture gas to meet the deficiency would
call upon it to go into a very different business. And so
apparently a hydro-electric development company which
professes no more than the transformation of a certain
water power into electric energy could not be compelled
to put in an auxiliary steam plant.3
§ 272. Carriage confined to established route.
2
The obligation of a common carrier is no wider than
his undertaking indicates to the public. Thus it has
always been recognized that a carrier's obligation was
confined to the route which he had established. This is
not only true of carters who have an established route,
but of teamsters who have an established territory.ª
There is no danger if a wagoner is held to be a common
carrier, as one early American case feared, that he
could be compelled to load for any part of the continent.5
A line of steamboats is not obliged at request to deviate
to deliver cargo elsewhere than its usual ports of call.
¹ Nicolette Lumber Co. v. People's
Coal Co., 26 Pa. Super. Ct. 575
(1904).
2 Indiana Nat. Gas & O. Co. v.
State, 162 Ind. 690, 71 N. E. 133
(1904).
³ See Brown v. Gerald, 100 Me.
351, 61 Atl. 785, 70 L. R. A. 472
(1905).
4 Farley v. Lavary, 107 Ky. 523,
54 S. W. 840, 47 L. R. A. 383 (1900).
5 Gordon v. Hutchinson, 1 W. &
S. (Pa.) 285, 37 Am. Dec. 464
(1841).
16
[241]
§ 273]
PUBLIC SERVICE CORPORATIONS
If this is true of those carriers which may roam at will,
how much more must it be true of those carriers whose
route is fixed, such as railway companies and canal boat-
men. Upon this general theory a railroad's obligation
to receive freight is for transportation over its own route
only. The fact that it has connections with other routes
makes no difference; it is not bound to provide any other
mode of transportation than its own. Therefore it need
not furnish means to carry merchandise over other routes.¹
And certainly it need not send cars to fetch freight from
other routes. Thus it need not even provide equipment
for taking freight from the sidings of other railways very
near to its route but not really upon it.2
Topic D. Territorial Limits upon the Service Professed
§ 273. General problem of community service.
In various important public services the obligation
undertaken is to serve the community in general. It is
obvious that this problem may be dealt with from two
general points of view. One side is the exterior limita-
tions beyond which the service need not be rendered;
the other regards the obligation to render service within
these limits. Thus, a gas company may not be called
upon to serve beyond the municipality for which it has
been chartered; but must it lay its pipes through every
street in that city? So a water supply cannot be demanded
by a farmer in an outlying community although the aque-
duct passes his door, but the moment the city limits are
reached must not any abutting owner be supplied? There
¹ Indiana.-Pittsburg, C. & St.
L. Ry. v. Morton, 61 Ind. 539, 28
Am. Repr. 682 (1878).
Kentucky.-Pittsburg, C., C. &
St. L. Ry. Co. v. Viers, 113 Ky. 526,
68 S. W. 469 (1902).
Hoyt v. Chicago, B. & Q. R. R.
Co., 93 Ill. 601 (1879); People v.
Chicago & A. R. R. Co., 55 Ill. 95, 8
Am. Rep. 631 (1870).
[242]
EXTENT OF SERVICE PROFESSED
[ § 273
are cases on these points as will be seen presently; and
yet as to the full extent of this obligation, the law is still
in the making. When the particular services are sepa-
rately considered the law will seem too indefinite to be
practicable; but when all the cases are taken together and
all are considered as one problem of public service, working
rules may be attained, even in the present stage of develop-
ment of the law. As the law now stands there are various
cases as to the supply of water ¹ and gas,² and the installa-
tion of electricity and telephone, but hardly enough as
3
1 The principal cases as to the
district within which water supply
must be extended are:
Connecticut.-Town of West
Hartford v. Board of Water Com-
missioners, 68 Conn. 323, 36 Atl.
786 (1896).
Idaho.-Pocatello Water Co. v.
Standley, 7 Idaho, 155, 61 Pac. 518
(1900).
Illinois.-Rogers Park Water Co.
v. Chicago, 131 Ill. App. 35 (1907).
Iowa.-Independent Sch. Dist.
v. Le Mars Water & Light Co., 131
Iowa, 14, 107 N. W. 944, 10 L. R. A.
(N. S.) 859 (1906).
Kansas.-City of Topeka v. To-
peka Water Co., 58 Kans. 349, 49
Pac. 79 (1897).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Pennsylvania.-Hyndman Water
Co. v. Borough of Hyndman, 7 Pa.
Super. Ct. 191 (1898).
2 The principal cases as to the
district to which gas supply must
be extended are:
Indiana.-Rushville v. Rushville
Natural Gas Co., 132 Ind. 575, 28
N. E. 853, 15 L. R. A. 321 (1892).
1
4
New Jersey.-Borough of Madi-
son v. Morristown Gaslight Co., 65
N. J. Eq. 356, 54 Atl. 439 (1903).
New York.-Jones v. Rochester
Gas & Electric Co., 7 N. Y. App.
Div. 465, 39 N. Y. Supp. 1105
(1896).
Pennsylvania.-Corbet v. Oil
City Fuel Supply Co., 21 Pa. Super.
Ct. 80 (1902).
West Virginia.-Charleston Nat.
Gas Co. v. Lowe & B., 52 W. Va.
662, 44 S. E. 410 (1901).
Wisconsin.-Shepard v. Mil-
waukee Gas Light Co., 6 Wis. 539,
70 Am. Dec. 479 (1858).
3 The principal cases as to the
district within which electricity
must be supplied are:
Illinois.-City of Chicago v. Mu-
tual Electric Light & Power Co., 55
Ill. App. 429 (1894).
Massachusetts.-Weld v. Gas &
Electric Light Commissioners, 197
Mass. 556, 84 N. E. 101 (1908).
New York.-Moore v. Champlain
Electric Co., 88 N. Y. App. Div.
289, 85 N. Y. Supp. 37 (1903).
4 The principal cases as to the
district within which telephone in-
stallation is obligatory are:
[243]
§ 274]
PUBLIC SERVICE CORPORATIONS
to any one as to make workable law, while there are cer-
tain similar community services such as sewerage and
irrigation as to which there are hardly any cases at all,
to say nothing of ticker service and messenger calls, steam
heat and refrigeration. In this situation the peculiar
advantages of treating the public services as one class
governed by a general law is manifest.
§ 274. Territorial limits fixed by franchise.
In the first place it is necessary to determine the exterior
limits of the territory served. Usually this will be settled
either by the extent of the powers of the company given.
in its charter or by the limits of the franchise granted.
For a public service company cannot be required to act
ultra vires by serving outside the territory described in
its charter, nor can it be asked to act illegally by going
into territory to which its franchise does not extend.
This problem almost invariably reduces itself to a question
of construction. Thus, to compare two recent New Jersey
cases,¹ a charter to supply a certain municipality and its
"vicinity" does not include an independent municipality
several miles distant; but a charter to extend the service
to any "neighboring city" authorizes a supply at a con-
siderable distance. It should be added that in the case of
a service conducted by a municipality the inclination is
to be peculiarly strict, as the taxpayer's money ought not
to be risked in the service of people outside; but this is also
in the hands of the legislature, the question being as to its
United States.-Cumberland Tele-
phone Co. v. Kelly, 160 Fed. 316,
87 C. C. A. 268 (1908).
Kansas.-Crouch v. Arnett, 71
Kans. 49, 79 Pac. 1086 (1905).
Nebraska.-State ex rel. v. Ne-
braska Telephone Co., 17 Neb. 126,
22 N. W. 237, 52 Am. Rep. 404
(1885).
Pennsylvania.—-Central D. & P.
Telegraph Co. v. Commonwealth,
114 Pa. St. 592, 7 Atl. 926 (1886).
1 Madison v. Morristown Gas-
light Co., 65 N. J. Eq. 356, 54 Atl.
439 (1903), and Millville Improve-
ment Co. v. Pitman G. & C. Gas
Co., 75 N. J. L. 410, 67 Atl. 1005
(1907).
[244]
EXTENT OF SERVICE PROFESSED
[ § 275
intention.¹ All this will be true no matter how small the
distance outside the designated limits may be; the appli-
cant cannot demand that the service company shall cross
its boundaries. And the limitation holds unless exception
is made even if the company's mains pass the applicant's
premises in outlying territory on their way to the com-
munity served.2 This will of course be otherwise if in
accepting the franchise granted the particular company
makes profession to supply along the mains in territory
outside, expressly or impliedly.³
§ 275. Change in municipal boundaries.
4
Various problems of practical importance arise when
there is a subsequent change in the boundaries of the
municipalities to which the original grants apply. It is
properly held that the franchises applying to territory an-
nexed remain in force; and the existing companies should
lose no rights by such changes. In accordance with this
principle it was held in New York that the incorpo-
ration of part of a town in which a franchise had been
granted in another village did not affect the franchises
of the company in the territory annexed; and the village
government must therefore respect them. Nor should
the company in the annexed territory be involved in
service outside the former limits. But as to the company
generally empowered to serve the annexing city the case
1 Massachusetts.-Inhabitants of
Quincy v. Boston, 148 Mass. 389,
19 N. E. 519 (1889).
England.-Pudsey Coal Gas Co.
v. Bradford, L. R. 15 Eq. 167 (1873).
2 New York.-City of Rochester
v. Rochester & L. O. Water Co., 189
N. Y. 323, 82 N. E. 154 (1907).
West Virginia.-Gas Co. v. Lowe
& Bulter, 52 W. Va. 662, 44 S. E.
410 (1901).
3 Connecticut.-Town of West
Hartford v. Board of Water Com-
missioners, 68 Conn. 323, 36 Atl.
786 (1896).
Maine.-Mayo v. Village Fire
Co., 96 Me. 539, 53 Atl. 62
(1902).
4 People ex rel. Woodhaven Gas
Co. v. Deehan, 153 N. Y. 528, 47
N. E. 787 (1897).
[245]
§ 276]
PUBLIC SERVICE CORPORATIONS
may be different by proper construction. If outlying
districts are subsequently incorporated into the munici-
pality within which the franchise runs it will generally
be held to be now included for this purpose. Thus it is
held in an Alabama case ¹ that persons who resided be-
yond the city limits when the contract was made but who
were subsequently brought in by an extension of the cor-
porate limits, are entitled to the franchise rates. But if
the incorporated territory constitutes a distinct com-
munity no obligation to serve should result.
§ 276. Obligation beyond the profession.
In most of the cases under this topic a general profes-
sion to serve the whole community will be found either
expressly or by implication. Where, however, no such
profession can be found for defining the territory served,
the company cannot upon general principles be held to
do more than serve the district which their present serv-
ice shows them to be engaged in serving upon a public
basis. A late Kansas case 2 so involves this side of the
problem with the other that it is worth full discussion.
The decision was that the telephone company was not
obliged to continue to serve a householder who was just
outside the municipal limits and but a few feet from its
pole line, although he had been given service and others
at certain points outside were still given service. The
reasons for this decision are thus stated by Mr. Justice
Smith: "If Mr. Crouch had resided in the city, his rights
would have been clear. Being outside, a question of fact
was presented whether in removing his instrument a dis-
crimination was practiced on him—a right infringed which
he enjoyed in common with others situated similarly.
1 Mayor, etc., City of Birming-
ham v. Birmingham Water Co.
(Ala.), 42 So. 10 (1906).
2 Crouch v. Arnett, 71 Kan. 49,
79 Pac. 1086 (1905).
[ 246 ]
EXTENT OF SERVICE PROFESSED
[ § 277
A telephone company operating wholly within the cor-
porate limits of a city could not be compelled to supply
instruments to residents beyond the boundaries of the
town, and make connections therewith. In this instance
it did serve patrons outside of Iola, but the disputed
question was whether Mr. Crouch, by reason of proximity
and other conditions, was entitled to equal rights with
them. This was to be determined from the testimony of
witnesses, and was peculiarly within the province of the
trial court."1
§ 277. Establishment of delivery limits.
There are certain services in which the company under-
takes delivery within a community, express matter and
telegraph messages are prominent examples of this. An
express company. 2 by its general profession makes it
part of its business to get parcels from the sender's prem-
ises and to deliver these parcels to the person addressed.
Without this wider profession, the express company
could not be called upon to perform this service any more
than any other carrier. Whatever limits they may es-
tablish within which they will call for and deliver parcels
will be the measure of their undertaking in this respect.
In the same way telegraph companies 3 undertake some-
1 Consistent with this is a recent
Massachusetts case that where an
electric company formally an-
nounces its withdrawal from an
outlying district it is not thereafter
bound to supply people within it.
Weld v. Gas & Electric Commis-
sioners, 197 Mass. 556, 84 N. E. 101
(1908).
2 The leading case on this point
is Bullard v. American Express Co.,
107 Mich. 695, 65 N. W. 551, 33
L. R. A. 66, 61 Am. St. Rep. 358.
As is intimated in the text the
common-law duty of express com-
panies to make free delivery of par-
cels committed to their care is not
such as to preclude them from fixing
charges when they do not make
such deliveries, and requiring con-
signees to pay for making a personal
delivery to them. See State ex rel.
Railroad Commission v. Adams
Exp. Co., 171 Ind. 138, 85 N. E.
337, 19 L. R. A. (N. S.) 93 (1908).
3 The leading case on this point is
[247]
§ 278]
PUBLIC SERVICE CORPORATIONS
times to go for messages upon call, and almost always to
make personal delivery of messages to the addressees.
Even this would not be so without this general profession.
Telephone companies compel casual patrons to come to
the pay stations themselves. Here again the company
may establish limits within which they will go and de-
liver, and this undertaking of the company will govern
unless they make some special limitation of an outra-
geous nature. In both services to a very considerable ex-
tent all this is a question of the practice of the company
in the localities in question which may be shown either
by their express regulations or by their usual custom.
§ 278. What limits are reasonable.
The delivery limits must be reasonably large, which
means that all the surrounding circumstances must be
taken into account. This problem, like most other ques-
tions of public service can come up in one of two ways.
If it is a question of the validity of the legislation fixing
the delivery limits, the question will be whether the re-
quirement is so beyond existing demand as to be really
outrageous. Thus, in one leading case ¹ of this sort it is
held that a statute of Indiana requiring personal delivery
of express matter to all persons to whom the same should
be addressed living within the corporation limits of cities
within the State having a population of twenty-five hun-
dred or more inhabitants does not work unconstitutional
Western Union Telegraph Co. v.
Trotter, 55 Ill. App. 659 (1894).
According to the weight of au-
thority of where a telegraph com-
pany has established free-delivery
limits, notice of which is given on
its blanks, and a message is handed
in for transmission without explana-
tion, the presumption is the re-
ceiver lives within the free-delivery
limits, and the sender takes risk of
delivery, unless he arranges for de-
livery at a greater distance. See
Western Union Tel. Co. v. Hen-
derson, 89 Ala. 510, 7 So. 419, 18
Am. St. Rep. 148 (1889).
¹ United States Express Co. v.
State, 164 Ind. 196, 73 N. E. 101
(1905).
Kentucky. See Western Union
Telegraph Co. v. Scott, 27 Ky. L.
Rep. 975, 87 S. W. 289 (1903).
[248]
EXTENT OF SERVICE PROFESSED
[ § 279
deprivation of liberty or property. But if it is a question
whether the delivery limits which the company has fixed
are too restricted, then the court will hold that this regu-
lation of the company should not be overruled unless it
is shown to be really unreasonable. Thus a rule of a
telegraph company making the delivery limit for a town
of less than five thousand inhabitants one half a mile
from the office was held reasonable.¹ Of course there
may be particular instances where the company cannot
insist upon its established limits, as where it does not
generally observe them.2 And there may be towns with
so small a population as to not support any delivery
service from the office. But these are questions to be
discussed later.
3
§ 279. Individual installation within the territory.
These are largely negative principles which have just
been stated; and although service is not required outside
the territorial limits thus defined, it does not follow that
service is owed to all applicants within those territorial
limits. Where no individual installation is requisite there
is naturally no special problem, for it is practically as
easy to deliver express packages or telegraph messages
at one house as at another within the territory served;
but where special installation is necessary, as laying gas
pipes or stringing electric wires, a very difficult problem
arises not as yet solved. If one could believe a recent
Idaho case the problem would be settled. That case held
4
1 Western Union Telegraph Co. v.
Trotter, 55 Ill. App. 659 (1894).
See also:
Georgia.-Moore v. Western
Union Telegraph Co., 87 Ga. 613,
13 S. E. 639 (1891).
V.
2 South Carolina.—Hellams
Western Union Telegraph Co., 70
S. C. 83, 49 S. E. 12 (1904).
Texas.-Western Union Tele-
graph Co. v. Swearingen, 95 Tex.
420, 67 S. W. 767 (1902).
3 North Carolina.-Gainey v. Tel-
egraph Co., 136 N. C. 261, 48 S. E.
653 (1904).
4 Bothwell v. Consumers' Co., 13
Idaho, 568, 92 Pac. 533, 24 L. R. A.
(N. S.) 485 (1907). See further
[249]
§ 280]
PUBLIC SERVICE CORPORATIONS
that such a company as a water company with a special
franchise to supply a given community is "under a public
duty to supply water to all living within the franchise limits
on payment of the established rates. It owes this duty to
every one so long as it has water to sell, whether he be
on its main or at a great distance therefrom." ¹
§ 280. Rights of abutting owners.
On the contrary all that can be stated with entire cer-
tainty is that service may be demanded at all premises
within the territorial limits that are adjacent to the lines
of supply established for that purpose.2 Almost all the
cases in the books in which this problem of individual
service is involved thus far are cases of refusal to supply
those who have premises abutting upon the street through
which the main lines of supply run; and although this
fact is adverted to in many of them the obligation to
serve the community usually appears as the basal argu-
ment without regard to that accidental fact. This rule
that all those occupying premises upon the existing mains
must be served should not be taken too literally, for it
does not follow that a great aqueduct entering the city
must be tapped for a single applicant in the outskirts of
Pocatello Water Co. v. Standley, 7
Ida. 155, 61 Pac. 518 (1900).
¹ Going too far to the opposite
extreme is the case which suggests
that a telephone company is never
bound to construct a new line
against its will. Hockett v. State,
105 Ind. 250, 599, 5 N. E. 202, 250
(1885).
2 In the following cases this point
is emphasized:
Indiana.-Portland Nat. Gas &
Oil Co. v. State, 135 Ind. 54, 34
N. E. 818, 21 L. R. A. 639 (1893).
Iowa.-Independent School Dis-
trict v. Le Mars City Water &
Light Co., 131 Iowa, 14, 107 N. W.
944, 10 L. R. A. (N. S.) 859 (1906).
North Carolina.-Griffin v. Golds-
boro Water Co., 122 N. C. 206, 30
S. E. 319, 41 L. R. A. 240 (1898).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Pennsylvania. Commonwealth
v. Wilkes-Barre Gas Co., 2 Kulp,
499 (1883).
Wisconsin.-Shepard v. Milwau-
kee Gas Light Co., 6 Wis. 539, 70
Am. Dec. 479 (1858).
[250]
EXTENT OF SERVICE PROFESSED
[ § 281
1
the community, or a high current for street lighting trans-
formed for domestic purposes. Even at those premises
abutting upon supply lines extraordinary service may not
be demanded; very probably a waterworks need not pro-
vide sufficient pressure to serve an abnormally high build-
ing, nor a gas works lay its service pipes to abutting prem-
ises through a solid ledge.
§ 281. Obligation to the community.
It is obvious that the problems raised in this topic
have not been disposed of as yet. It is plain that the
existing facilities must in many instances be further de-
veloped in readiness to give service to those beyond the
present lines, since what has really been undertaken is
the proper service of the whole community dependent
upon the established company. This at least involves
the well-settled central territory within which service is
plainly demanded, whether mains have been laid in all
the streets or not. Certainly all premises situated within
the network of the existing mains and within conven-
ient connecting distance of their lines should be served.2
All of these premises come within the sphere of influ-
ence, already established, differing slightly from premises
abutting. But the law will soon require, if it does not
already, that the existing mains must be gradually ex-
tended as the growth of population in the community
which the corporation has undertaken to serve demands
the expansion.³
¹ See Moore v. Champlain Elec-
tric Co., 88 N. Y. App. Div. 289, 85
N. Y. Supp. 37 (1903).
But see Whitehouse v. Staten
Island Water Co., 91 N. Y. Supp.
544, 101 N. Y. App. Div. 112 (1905).
2 See on this branch of the prob-
lem:
New York.-Jones v. Rochester
Gas & Electric Co., 7 N. Y. App.
Div. 465, 39 N. Y. Supp. 1105
(1896).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
3 See on this branch of the prob-
lem:
Kansas.-City of Topeka v. To-
[251]
§ 2821
PUBLIC SERVICE CORPORATIONS
§ 282. Reasonable limitations upon expansion.
1
All that has been laid down here must be qualified
as in a recent New Jersey case ¹ dealing with gas sup-
ply where it is said, "In short, is not the obligation to
supply a dwelling or tenement with gas, and for that
purpose to lay down a supply pipe and set a meter sub-
ject to the limitation, that there shall exist a reasonable
expectation that the consumption of gas shall be sufficient
to warrant the necessary preliminary expenditure?" As
this is a relative test it will be seen why comparatively
little has to be assured when it is the question of going a
few feet off the established mains; the usual consumption
of the average customer would secure that. But in-
stallation for a single person at some distance from the
established mains would not be obligatory in ordinary
conditions.2 Following out the general principle still
further, the building of a few houses would call for the
extension of a main a little further along a street.
But
a great deal of business must be shown in order to es-
tablish certainly the present obligation to construct new
lines into outlying territory. The undertaking to serve
a community does not, therefore, lay the company open
to outrageous demands in individual cases, but to such
service as the community considered as a whole may de-
mand.
peka Water Co., 58 Kans. 349, 49
Pac. 79 (1897).
Pennsylvania.-Hyndman Water
Co. v. Borough of Hyndman, 7 Pa.
Super. Ct. (1898).
¹ Public Service Corp. v. Ameri-
can Lighting Co., 67 N. J. Eq. 122,
57 Atl. 482 (1904).
2 See, further, Inhabitants of
Quincy v. Boston, 148 Mass. 389,
19 N. E. 519 (1889).
[252]
CHAPTER IX
WITHDRAWAL FROM PUBLIC EMPLOYMENT
§ 290. Elements of the problem.
Topic A. Possibility of Total Withdrawal
§ 291. Closing an inn.
292. Discontinuing a ferry.
293. Making a warehouse private.
294. Withdrawing a wharf from public use.
295. Giving up common carriage.
296. Taking up a railway.
297. Shutting off water supply.
298. Discontinuing further gas supply.
299. Duty devolved upon municipality.
300. No excuse for default in charter obligation.
301. Effect of absolute insolvency.
302. Obligation persists so long as franchise retained.
Topic B. Abandonment of a Certain District
§ 303. Right to withdraw from particular district.
304. Doctrine applies only to constructed portions.
305. Discontinuance by public permission.
306. System constructed under permissive charter.
307. Cases permitting partial withdrawal.
308. Abandoned service must be separable.
Topic C. Abandonment of a particular service
§ 309. Right to withdraw from a particular service.
310. Service demanded by charter.
311. Partial withdrawal generally permitted.
312. Temporary withdrawal not permissible.
313. Service abandoned must be separable.
Topic D. Reasonable Notice of Withdrawal
§ 314. Notice of withdrawal necessary.
315. Colorable withdrawal.
316. Situation requires reasonable notice.
[253]
§§ 290, 291] PUBLIC SERVICE CORPORATIONS
§ 317. What constitutes reasonable notice.
318. Substituting one service for another.
319. Results of consolidating services.
320. Division of territory served.
$290. Elements of the problem.
It has been seen that one comes into public service
only by voluntarily engaging in the particular business
upon a public basis; and it would seem to follow that one
could get out of public employment simply by publicly
withdrawing his original profession. It would seem to
us to be intolerable if a man who happened to possess
convenient facilities were obliged to serve the public if
he had never undertaken to do so; and it would be equally
oppressive if a man were obliged to continue in the serv-
ice of the public after he had announced his permanent
withdrawal from the employment. And yet the problem is
not altogether as simple as it seems. What has been said
may satisfactorily dispose of the ultimate right to aban-
don the whole undertaking; but may this be done with-
out reasonable notice to the trusting public? Moreover,
the solution of the problem of total abandonment does
not settle the case of partial withdrawal by one remain-
ing otherwise in public employment from a part of the
territory served or from a branch of the service offered.
It may be this can be done under proper conditions, but
certainly it is a matter which requires serious considera-
tion. As the authorities on this most important question
are few, full discussion of the cases seems necessary.
Topic A. Possibility of Total Withdrawal
§ 291. Closing an inn.
It has been agreed from ancient times that an inn-
keeper may withdraw from his business whenever. he
feels so inclined. In one early case it is said that "an
¹ Rex v. Collins, Palmer, 373 (1623).
1
[254]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [ §§ 292, 293
1
innkeeper may at his pleasure demolish his sign and leave
off innkeeping." And in a modern case ¹ it was intimated
that after a sale of his business the former innkeeper
would not be under any further duty. "True, the hotel
went by the same name; but it is common to keep the
same name even though the proprietors change.
§ 292. Discontinuing a ferry.
Similar in character are the decisions recognizing the
right of a ferryman to abandon his profession. In one
extraordinary case 2 a ferryman was at first convicted for
"wholly discontinuing the public ferry he had previously
kept for the convenience of setting over from Shirley to
City Point persons, carriages, chairs and horses." But
by the upper court the judgment was reversed upon the
ground that: "The discontinuance is the penalty which
the law attaches to the failure of the ferryman to exercise
his privilege of keeping the ferry; and there is no law
which makes the discontinuance an offence."
§ 293. Making a warehouse private.
In the leading case as to the public duties of elevator
men, Munn v. Illinois,³ it is recognized in the paragraph
most often quoted that just as one gets himself into pub-
lic business by devoting his property to public service,
so he may withdraw himself from public service by vol-
untary retraction. "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 be subject 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
¹ Conklin v. Prospect Park Hotel
Co., 1 N. Y. Supp. 406, 48 Hun, 619
(1888).
2 Carter v. The Commonwealth,
2 Va. Cas. 354 (1823).
³ Munn v. Illinois, 94 U. S. 113,
24 L. ed. 77 (1876).
[255]
§§ 294, 295] PUBLIC SERVICE CORPORATIONS
the use, but so long as he maintains the use, he must
submit to the control." 1
§ 294. Withdrawing a wharf from public use.
In a late case in the Supreme Court of the United
States this distinction in Munn v. Illinois 2 was empha-
sized further. Certain parties were endeavoring to make
perpetual the use of the wharves in question which they
had formerly enjoyed in common with the rest of the
public. They relied upon the doctrine of Munn v. Illi-
nois, to show that the public had acquired an interest
in that use. But the Court said: 3 "The right to use the
property has been withdrawn by the owner as to the pub-
lic in general, including defendant. The only question is
whether a third person has the right to use a private
wharf on tendering reasonable compensation therefor, be-
cause there is no other wharf at the place, or because it
would be more convenient to such third person to so use
it or because the former owner of the wharf had per-
mitted the public to use it, although the present owner
refused to consent to such use. There is no more reason
why such property should be held subject to the right of
others to use it against the will of its owner than there is
for any other kind of property to be so held.”
§ 295. Giving up common carriage.
It is also clear from early authorities that a person who
has once engaged in common carriage may withdraw
from that public employment and may thereafter engage
¹ See also the language in the fol-
lowing cases dealing with ware-
houses:
Kentucky.—Nash v. Page, 80 Ky.
539, 44 Am. Rep. 490 (1882).
Virginia. Glass v. Davis, 23
Gratt. 184 (1873).
294 U. S. 113, 24 L. ed. 77
(1876).
3 Weems Steamboat Co. v. Peo-
ple's Steamboat Co., 214 U. S. 345,
53 L. ed. 1024, 29 Sup. Ct. 661
(1909).
[256]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 296
1
in private carriage without being held liable as a common
carrier. In the leading case of this sort the New York
Superior Court ¹ said: "The defendant stood upon the
same footing as though he had never been engaged in the
forwarding business. He had abandoned it entirely cer-
tainly one year, and, according to the weight of evidence,
four years previous to this transaction. He makes a
special contract with Dows to bring goods for him from
Albany, and gives his teamster express instruction to
bring goods for no one else. He was acting under a
special contract and not in the capacity of a common
carrier." 2
§ 296. Taking up a railway.
It will have been noted that in the case of the busi-
nesses thus far discussed, there has been no question of
special obligations by reason of the acceptance from the
State of special privileges. In most modern cases it will
usually be found that the company in question has some
charter obligations to reckon with. It is conceded that
so long as any public franchises are exercised public
service must be rendered. But even in the case of a rail-
road company which has accepted extraordinary privi-
leges it would seem that if it is ready to give up its char-
ter it may withdraw from its entire undertaking. In all
the cases on this point mandamus to compel the company
to resume operations has been refused. It is true that in
the actual cases the railroad thus totally abandoned has
almost invariably been operated at heavy loss. But then,
as several cases point out, their owners do not as a prac-
tical matter abandon a profitable railroad; even if those
who are conducting it tire of operating it they can sell
a profitable railroad to those who will maintain it. "If
¹ Satterlee v. Groat, 1 Wend. 272,
(1828).
2 See also Johnson v. Midland
Ry. Co., 4 Exch. at p. 373 (1849).
17
[257]
§ 297 ]
PUBLIC SERVICE CORPORATIONS
we are at liberty to suggest on what the legislature very
probably relied for the continued operation of a railroad,
once constructed, we should say it was the interest of the
owners. If it can be operated profitably, the interest of
those concerned will rarely, if ever, fail to keep it in op-
eration so as to subserve the public use. If it cannot, we
know of no mode by which the State can compel those
by whom it was constructed to operate it at a loss, and
certainly there is no mode provided by which it can be
operated at the risk of the State." ¹ In some cases this is
developed into a legal explanation. As is said inciden-
tally by the United States Supreme Court: "The ques-
tion is not as to the existence of the duty, but as to its
extent and qualifications. The duty of a railroad com-
pany is not more than to meet the public wants. If
trains are run at reasonable and moderate fares, and can-
not be supported, it is because they are not needed." 2
§ 297. Shutting off water supply.
There are sufficient dicta in the books to the effect
that a chartered company even if possessing special priv-
ileges may withdraw from its enterprise altogether. The
strongest language of this sort is in a recent California
case 3 which decides, not inconsistently, that so long as
water service is maintained under the franchises held, the
whole system must be kept in operation. "We do not
mean to say that a corporation engaged in the distribu-
tion of water to public uses may not abandon its property
¹ Quoted from Coe v. Columbus,
P. & I. R. R. Co., 10 Ohio St. 372,
75 Am. Dec. 518 (1859).
See also State v. Dodge City, M.
& T. Ry. Co., 53 Kans. 329, 36
Pac. 755, 24 L. R. A. 564, note
(1894).
2
Co. v. Dustin, 142 U. S. 492, 499,
35 L. ed. 1092, 1095, 12 Sup. Ct.
283, 285 (1891).
And see Jack v. Williams, 113
Fed. 823 (1902).
3 Quoted from Fellows v. Los
Angeles, 151 Cal. 52, 90 Pac. 137
Quoted from No. Pacific Ry. (1907).
[258]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§§ 298, 299
and quit the business, without being subject to manda-
tory proceedings to compel it to continue to carry it on.
It may find it impossible to go on. Its supply may be-
come exhausted or be insufficient for paramount needs;
the rates fixed by law may be too small to enable it to
operate at á profit, or without substantial loss; or, it may
conclude, without any reason which the law would con-
sider sufficient, that it will not continue. In case of a
natural person it might become physically impossible.
We do not intend to declare that in any such case man-
datory process would be issued to compel the personal
performance of the duty." 1
$298. Discontinuing further gas supply.
In another late case 2 where the charter of the gas com-
pany in question was plainly permissive, and where
moreover the contract with the municipality in question
which constituted its franchise had expired, it was held
that this company could not be stayed from discontin-
uing the supply of gas in the municipality. "It comes
then to this," said the Ohio court, "if the refusal to com-
ply is final, the company necessarily incurs the penalty
of forfeiture of its franchise to serve the people of the
city; but, on the other hand, there being no provision to
that effect in the original contract, the city cannot di-
rectly or indirectly deprive the gas company of its prop-
erty without due process of law when the latter with-
draws from the further exercise of its franchise." 3
§ 299. Duty devolved upon municipality.
Where the duty of operating a service is devolved upon
1 See also Asher v. Hutchinson
Water, L. & P. Co., 66 Kan. 496, 71
Pac. 813, 61 L. R. A. 52 (1903).
2 East Ohio Gas Co. v. Akron, 81
Oh. St. 33, 90 N. E. 40 (1909).
3 Citing for this paragraph, Cleve-
land Electric Co. v. Cleveland, 204
U. S. 116, 27 Sup. Ct. 202, 51 L. ed.
399 (1906).
[ 259]
§ 299 ]
PUBLIC SERVICE CORPORATIONS
1
a municipality, mandamus will always be granted when
by proper construction of its charter the duty is man-
datory, for it is clear that the legislature may direct the
action of a municipality even to the extent of imposing
pecuniary burdens. Thus in a recent decision ¹ the city
of New York was ordered to continue the operation of
the Brooklyn ferries; Mr. Justice Blackmar saying: "One
reason why the broad powers conferred by section fifteen
were given to a municipal instead of a private corpora-
tion was that a municipal corporation would in estab-
lishing the ferries be moved rather by considerations of
public good than of profit. Discretion as to the location
of new ferries was therefore wisely vested in the city.
But as to ferries already established, a different condi-
tion is presented. The growth and development of the
city and of the connected territory on the opposite shores
are largely influenced by the existence of the ferries.
They are continuations of highways. Their cessation or
re-location would seriously injure that portion of the com-
munity which had established its business and located
its residences relying on these means of transportation." 2
¹ Matter of Wheeler, 62 N. Y.
Misc. 37, 115 N. Y. Supp. 605
(1908).
2 Citing among other cases:
United States.-Union Pac. R. R.
v. Hall, 91 U. S. 343, 23 L. ed. 428
(1875).
Connecticut.-State v. Hartford &
New Haven R. R., 29 Conn. 538
(1861).
Georgia.-Savannah, etc., Canal
Co. v. Shuman, 91 Ga. 400, 17 S. E.
937, 44 Am. St. Rep. 43 (1893).
Massachusetts.-Attorney Gen-
eral v. City of Boston, 123 Mass.
460 (1877).
New Jersey.-State ex rel. v.
Bridgeton & M. Traction Co., 62
N. J. L. 592, 43 Atl. 715, 45 L. R. A.
837 (1899).
New York.-People v. Rome, W.
& O. R. R., 103 N. Y. 95, 8 N. E.
369 (1886); Mayor, etc., of New
York v. Starin, 106 N. Y. 1, 12 N. E.
631 (1887); Baird v. Supervisors,
138 N. Y. 95, 33 N. E. 827 (1893);
People v. Board of Supervisors, 142
N. Y. 271, 36 N. E. 1062 (1894);
People v. Northern Central Ry.
Co., 164 N. Y. 289, 58 N. E. 138
(1900).
England.-The King v. Severn &
Wye Ry. Co., 2 B. & Ald. 646
(1819).
[260]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 300
§ 300. No excuse for default in charter obligation.
Where there is such an explicit provision in the char-
ter accepted making full operation obligatory, the char-
tered company cannot interpose in any proceedings to
compel it to act in accordance with its charter obligations
any such excuse as that the abandoned service is un-
profitable. As it is said tersely in one early case ¹ where
the railroad had received public lands in consideration for
the construction of its line: "The fact that the opera-
tion of the road is unprofitable furnishes no excuse what-
ever for the failure to comply with the conditions of the
grant, and the State may compel a compliance with the
terms of the contract by mandamus or other appropriate
remedy." Nor do the more extreme facts that whole
service is made unprofitable furnish any excuse for aban-
doning the unprofitable part; for the services required
must be performed while the franchise is retained. "It
is a continuing condition co-extensive with the grant it-
self which applies so long as the company have the right
to use and enjoy the franchise.” 2
1
¹ Quoted from State v. Sioux
City & Pacific R. R. Co., 7 Neb. 357
(1878).
The following cases are founded
on the principle that an explicit
charter provision requiring opera-
tion of a public system will be
enforced:
United States.-United States v.
Union Pacific Ry. Co., 160 U. S. 1,
40 L. ed. 319, 16 Sup. Ct. 190
(1895).
Illinois. Chicago & Alton R. R.
Co. v. Suffern, 129 Ill. 274, 21 N. E.
824 (1889).
Indiana.-Lake Erie & Western
R. R. Co. v. State, 139 Ind. 158,
38 N. E. 596 (1894).
Co., 71 Ia. 410, 32 N. W. 409, 60
Am. Rep. 806 (1887).
Massachusetts.-Brownell v. Old
Colony R.R., 164 Mass. 29, 41 N. E.
107, 29 L. R. A. 169, 49 Am. St.
Rep. 442 (1895).
Michigan.-People v. Plainfield
Ave. Gravel Road Co., 105 Mich. 9,
62 N. W. 998 (1895).
Nebraska.-State v. Sioux City &
Pacific R. R. Co., 7 Neb. 357 (1878).
New York.-People v. The Al-
bany & V. R. R. Co., 24 N. Y. 261,
82 Am. Dec. 295 (1862).
England.-Regina v. Bristol &
Exeter Ry. Co., 4 Q. B. 162 (1843).
2 Quoted from People v. Troy &
B. R. R. Co., 37 How. Pr. 427
Iowa.-State v. Central Iowa Ry. (1869).
[261]
§§ 301, 302] PUBLIC SERVICE CORPORATIONS
88
§ 301. Effect of absolute insolvency.
But if a public service corporation begins operations
under a charter in which it bargains in return for its
franchises to render regular service over its whole system
at all times, it would seem that there can be no excuse
from this obligation in whole or in part. Indeed, default
therein will be a sufficient ground for forfeiture of its
charter. No matter how good its excuses may be, the un-
profitable character of the business does not absolve the
company from full performance. It is true that where
actual insolvency plainly appears mandamus should not
issue. "The court will not make a useless or futile order—
it will not do a vain thing." But the very fact of de-
fault in the obligation is sufficient ground for forfeiture.
"Inability to perform its functions, no matter what the
reason, is one of the most potent grounds for forfeiture.” 2
§ 302. Obligation persists so long as franchise is retained.
If the franchise accepted by the particular public serv-
ice company is mandatory in terms it would seem that
this constituted an irrevocable obligation voluntarily as-
sumed at the outset from which the company could not
withdraw at its pleasure. That Georgia case is cer-
3
1 Quoted from State v. Dodge,
City, M. & T. Ry. Co., 53 Kans.
329, 36 Pac. 755 (1894).
2 Quoted from People v. Plain-
field Ave. Gravel Road Company,
105 Mich. 9, 62 N. W. 998
(1895).
See also Mobile, J. & Kansas
City R. R. Co. v. Mississippi, 210
U. S. 187, 52 L. ed. 1016, 28 Sup.
Ct. 650 (1908). And see further
Union Pacific R. R. Co. v. Hall, 91
U. S. 343, 23 L. ed. 428 (1875).
3 Where there is a mandatory
provision in the charter accepted
requiring permanent service, it
4
seems that the railroad company
must continue in full operation.
See:
United States.-People v. Colo-
rado Central Ry., 42 Fed. 638 (1890).
Minnesota.-State v. Southern
Minnesota R. R. Co., 18 Minn. 40
(1871).
Nebraska.-State v. Sioux City &
P. R. R. Co., 7 Neb. 357 (1878).
New York.-People v. Albany &
Vermont R. R. Co., 24 N. Y. 261,
82 Am. Dec. 295 (1862).
4 Savannah & O. Canal Co. v.
Shuman, 91 Ga. 400, 17 S. E. 937,
44 Am. St. Rep. 43 (1893).
[262]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 303
tainly conservative which holds that a canal company
having accepted a mandatory charter making it its duty
to keep its whole system in navigable condition should
be ordered to conform to its charter. "So long as the
corporation retains its franchise, it will not be allowed
to urge as an excuse for failing to perform any duty re-
quired of it by its charter, that the same would be un-
profitable. 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
imposed no longer desirable, the company should simply
surrender the charter." Moreover, so long as the com-
pany assumes to remain in enjoyment of a permissive
charter it is held to its public obligations.¹ But if its
franchise has expired it should be obvious that whether
the charter be mandatory or permissive the company
cannot be forced to perform services when it has no legal
right to act.2
Topic B. Abandonment of a Certain District
§ 303. Right to withdraw from particular district.
As an abstract matter the rule as to partial withdrawal
from the territory served might seem to be that the pub-
lic servant may withdraw from any severable part. This
is as before undoubted where the service has received
no aid from the State. Thus a carrier over the highways
could certainly shorten his route by cutting off some out-
¹ California.--Fellows v. Los An-
geles, 151 Cal. 52, 90 Pac. 137
(1907).
Ohio.-Gas Light Co. v. Zanes-
ville, 47 Oh. St. 35, 23 N. E. 60
(1889).
2 United States.-Laighton v.
Carthage, 175 Fed. 145 (1909).
Ohio.-East Ohio Gas Co. v.
Akron, 81 Oh. St. 33, 90 N. E. 40
(1909).
[263]
§ 304 ]
PUBLIC SERVICE CORPORATIONS
lying road; or the owner of several hotels could convert
one into a boarding house. But the problem is much
complicated when the service company has accepted a
charter granting it special privileges under which it still
wishes to act. In such a case it is plain, at least in ac-
cordance with the principles just discussed, that if the
charter is mandatory in requiring full service through-
out the whole territory no discontinuance can be made.
But, as will be seen presently there is conflict of au-
thority as to whether there may be a withdrawal from a
part of the service where the charter is permissive.
§ 304. Doctrine applies only to constructed portions.
The doctrine as usually stated is not that the accept-
ance of a charter containing permission to construct
obliges all the construction described, but that as por-
tions of the plant are constructed in accordance with the
franchises granted, their operation becomes obligatory.
It seems to have once been held in England that a railroad
company by accepting its enabling charter became bound
to build the line described. But this was early over-
1 "Now the objects and purposes
for which this company has been in-
corporated and empowered, or, in
the words of the passage cited, what
the legislature has empowered and
compelled them to do and to submit
to, are too clear to admit of any
doubt. The title of the act itself
'for making a railway from London
to Norwich and Yarmouth,' the
benefits recited in the preamble as
likely to result from opening a com-
munication, not only between the
towns there more particularly enu-
merated, but also between the me-
tropolis and the eastern districts of
the kingdom, from which it is al-
leged that 'great public advan-
1
tage,' would result, the eastern ter-
minus being a sea port of greater
consequence than any in those east-
ern districts together with a minute
description of the whole line, and a
particular enumeration of all the
places through which it is to pass,
precludes all question on this mat-
ter. We consider it to be equally
undeniable that to carry the rail-
road through a portion only of the
described line, such as a third or a
half, is a nominal, and not a real,
compliance with the meaning of the
act of Parliament." Reg. v. East-
ern Counties Ry. Co., 10 Ad. & El.
531 (1839).
[264]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 305
1
ruled and the general doctrine now is that a permissive
charter simply enables the company to build without
making construction obligatory, although it will often be
provided that the part of the franchise not used shall be
forfeited for nonuser. In establishing the present rule
the leading English case ¹ declared that to say that there
is no difference between words of requirement and words
of authority when found in such acts is simply to affirm
that the legislature does not know the meaning of the
commonest expressions, nor appreciates the various ways
in which such a situation may be treated in different
cases. The case concluded thus: "It is not for the pub-
lic interest that the work should be undertaken by an
incompetent company, nor that it should be begun, if,
when made, it would not be remunerative. By leaving
the exercise of the powers to the option of the company,
the legislature adopts the safest check upon abuse in
either of these respects, self-interest.”
§ 305. System constructed under permissive charter.
Where the charter which has been accepted is permis-
sive merely, permitting the chartered company to con-
struct the system as it has done, the cases are in irrecon-
cilable conflict as to whether after such construction the
accepting company is thereafter bound to continue the
service or whether it may withdraw from a particular
part of its present service. It is now probably the weight
of authority that a company which has accepted public
franchises cannot retain such of these rights as it pleases
it to exercise, and refuse to regard the public interests as
1 York & N. M. R. R. Co. v. Reg.,
1 El. & Bl. 858 (1853).
Forfeiture of the part not sea-
sonably utilized is the appropriate
remedy:
Montana.-State v. Helena Power
& Light Co., 22 Mont. 391, 56 Pac.
685, 44 L. R. A. 692 (1899).
New York.-People v. Albany &
V. R. R. Co., 24 N. Y. 261, 82 Am.
Dec. 295 (1862).
[265]
§ 305 ]
PUBLIC SERVICE CORPORATIONS
a whole. In the most elaborate case to this effect-State
ex rel. v. Spokane Street Railway Company ¹-the court
ordered a resumption of service upon an abandoned
branch line, Mr. Justice Reaves concluding his elaborate
argument thus: "Such corporations, then, may not, by
their own acts, disable themselves from performing the
functions which were the consideration for the public
grant. These rights, then, are held by the grantee, the
holder of the franchise, as the agent and trustee for the
sovereign power, and are in no sense private, but continue
after, as well as before, the grant to be but a portion of
the public interests. The absolute commercial and busi-
ness necessity for permanence when established forbade,
from the earliest years, the manifest impolicy of leaving
this interest to the laws of supply and demand, which
thus far have sufficiently supplied the community with
hotels, mills, etc. And it is not in degree only that these
franchises differ from mills and inns. The one is private
property, the other is a public function, which originally
resided in the government, and, when delegated to either
persons or corporations still retains the public use. Per-
manency in the service of the public in a reasonable man-
ner is an essential duty in all such avocations." 2
¹ State v. Spokane Street Ry. Co.,
19 Wash. 518, 53 Pac. 719, 67 Am.
St. Rep. 739, 41 L. R. A. 515 (1898).
2 In the following cases manda-
mus was held proper to compel oper-
ation of abandoned portion of an
established system although the
charter was hardly more than
permissive:
United States.-Farmers' Loan &
Trust Co. v. Henning, 8 Fed. Cas.
4,666 (1878); San Diego L. & T. Co.
v. Sharp, 97 Fed. 394, 38 C. C. A.
220 (1899).
California. Fellows v. Los An-
geles, 151 Cal. 52, 90 Pac. 137
(1907).
Connecticut.-State v. Hartford &
N. H. R. R., 29 Conn. 538 (1861).
Kansas.-City of Potwin Place v.
Topeka Ry. Co., 51 Kans. 609, 33
Pac. 309, 37 Am. St. Rep. 312
(1893).
94
Kentucky.-Board of Trustees v.
Chesapeake, O. & S. W. R. R.,
Ky. 377, 22 S. W. 609 (1893).
Mississippi.-See State v. Mo-
bile, J. & K. C. R. R., 86 Miss. 172,
38 So. 732 (1905).
Missouri.-Kansas City Interur-
[266]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 306
§ 306. Cases permitting partial withdrawal.
1
However, there are almost as many cases permitting
a partial withdrawal where there is no charter provision
making the continuance of every service undertaken req-
uisite. This was the prevailing view until the latter part
of the last century; the usual doctrine being simply that
when the charter was permissive the continuance of any
service was left to the discretion of the company. But
of late years the cases permitting withdrawal from a
part of the service undertaken have stated considerable
qualifications upon this right. This modern law is best
summarized in a recent opinion ¹ in Virginia by Judge
Keith, holding that a railroad might discontinue service
upon an unprofitable branch. "It may be asked, is a
corporation having constructed a road to be permitted to
abandon its use at its pleasure? We answer that it is not
to be apprehended that the corporation will abandon any
part of its line, the operation of which is found remuner-
ative in the present, or that is likely to become so in the
future. Where the line of railway, taken as a whole,
cannot be profitably maintained; where its operation,
when discreetly and economically managed, is attended
with loss, it is difficult to perceive how a court can, by
ban Ry. v. Davis, 197 Mo. 669, 95
S. W. 881 (1906).
Nebraska.-State v. Sioux City &
Pacific R. R. Co., 7 Neb. 357 (1878).
New Jersey.-State ex rel.
Bridgeton v. Bridgeton Traction
Co., 62 N. J. L. 592, 43 Atl. 715, 45
L. R. A. 837 (1899).
New York.-Brooklyn & R. B.
R. R. Co. v. Long Island R. R. Co.,
72 App. Div. 496, 76 N. Y. Supp.
777 (1902).
Ohio.-Akron v. East Ohio Gas
Co., 53 Oh. L. Bull. 441 (1908).
Pennsylvania.-Erie & N. E.
Railroad Co. v. Casey, 26 Pa. St.
287 (1856).
Virginia.-See Southern Ry. v.
Franklin Ry., 96 Va. 693, 32 S. E.
485, 44 L. R. A. 297 (1899).
Washington.-State ex rel. V.
Spokane St. Ry., 19 Wash. 518, 53
Pac. 719, 67 Am. St. Rep. 739, 41
L. R. A. 515 (1898).
Wisconsin.—See In re Attorney
General, 113 Wis. 623, 88 N. W. 912
(1902).
1 Sherwood v. Atlantic & D. Ry.
Co., 94 Va. 291, 26 S. E. 943
(1897).
[267]
§ 306 ]
PUBLIC SERVICE CORPORATIONS
mandamus or otherwise, compel its operation to be con-
tinued. If the loss is the result of improvident and un-
thrifty management, the court may, at the suit of those
interested, take charge of it for the benefit of all concerned,
and run it through the instrumentality of a receiver, but
if the traffic of the road is really insufficient to support a
wise and economical administration of its affairs there
would seem to be no escape from its ultimate abandon-
ment. Such cases are possible, though rare.
It more
frequently happens, however, that a part of the line be-
comes unprofitable, though the system as a whole may be
valuable. In such an event the court will inquire, first, as
to the positive duties imposed by the charter, and compel
their performance by appropriate remedies, while with
respect to those duties which were not imposed by the
charter, but which have been assumed by the corporation
under permissive grants of power, it will consider all the
circumstances of the case, and if upon the facts it shall
appear that the duty unfulfilled inflicts no particular
injury or hardship upon those who make the complaint,
and that the service which they receive is under all the
conditions reasonably adapted to their needs, while the
performance of the duty would entail a burden and loss
upon the company far in access of any benefit conferred,
and which might in its ultimate effect embarrass or pre-
vent the performance of other duties with respect to
larger interests, and affecting a far greater number of
citizens, the court will withhold its hands."1
1 The following cases hold that
a public service company may be
permitted to retire from any sepa-
rable part of the business:
United States.-Northern Pacific
Railroad v. Dustin, 142 U. S. 492,
35 L. ed. 1092, 12 Sup. Ct. 283
(1891).
Illinois.-Linck v. City of Litch-
field, 31 Ill. App. 118 (1888).
Indiana.-State v. Connersville
Nat. Gas. Co., 163 Ind. 563 (1904).
Kansas.—Asher v. Hutchinson
W., L. & P. Co., 66 Kan. 496, 71
Pac. 813, 61 L. R. A. 52 (1903).
Maryland.-Whalen v. Baltimore
[268]
WITHDRAWAL ་་
FROM PUBLIC EMPLOYMENT [§§ 307, 308
307. Discontinuance by public permission.
1 of
The general contention here made that the mere fact
of actual undertaking without mandatory provision should
not unvariably create an irrevocable obligation to con-
tinue forever that particular service, is borne out by the
cases which hold that where there is a franchise obligation
the company may be relieved from it by permission
granted by the public authorities. In a recent case
this sort a water company which had laid its pipes into a
district under agreement with the city, was permitted to
take up its mains by the authorities. Discussing a complaint
of an individual in the abandoned district Justice Greene
said: "An individual can acquire no vested right as against
the public in the continued service of a public utility.
Such a doctrine once admitted would destroy the conven-
ience as a public utility; it would then become hampered
and subject to the control of the individual and made to
subserve such interests, to the detriment of the public
welfare.'
""
§ 308. Abandoned service must be separable.
The contention here adopted, that where there is in-
sufficient demand for the particular service there may be
withdrawal from an existing service, should contain this
qualification, that the part abandoned must be truly
separable. A company may not abandon an intregal
& O. R. Co., 108 Md. 11, 69 Atl.
390, 17 L. R. A. (N. S.) 130 (1908).
Massachusetts. Commonwealth
v. Fitchburg Ry. Co., 12 Gray, 180
(1858).
Montana.-State v. Helena Power
& Light Co., 22 Mont. 391, 56 Pac.
685, 44 L. R. A. 692 (1899).
New York.-People v. Rome, W.
& O. R. R. Co., 103 N. Y. 95, 8 N. E.
369 (1886).
Ohio.-East Ohio Gas Co. v.
Akron, 81 Oh. St. 33, 90 N. E. 40
(1909).
Pennsylvania.—Kearney v. Bor-
ough of West Chester, 199 Pa. St.
392, 49 Atl. 227 (1901).
Texas.-San Antonio Railway v.
State, 90 Tex. 520, 39 S. W. 926, 59
Am. St. Rep. 834, 35 L. R. A. 662
(1897).
¹ Asher v. Hutchinson Water, L.
& P. Co., 66 Kan. 496, 71 Pac. 813,
61 L. R. A. 52 (1903).
[269]
§ 309]
PUBLIC SERVICE CORPORATIONS
part of its service and expect to remain unmolested. An
interurban railway, for example, could not abandon its
main line between two cities and retain its local rights in
the respective cities. This possibility is adverted to in
the leading case for the view here taken.-San Antonio
Street Railway Company v. State,¹ where Gaines, C. J.,
said: "Under the grant of a privilege to construct and
maintain, if after acceptance it is permissive only to con-
struct, it is not obligatory to maintain. But we do not
hold that the company can, against the will of the city,
operate a part of its line and not the whole. A privilege
to establish an entire line of street railway may be granted
when the privilege of constructing and operating a part
only would not be; and for failure to operate a part, it
would seem that the whole might be forfeited. It seems
to us that the remedy in that case is to forfeit the franchise
to operate the branch line in controversy."
11 2
Topic C. Abandonment of a Particular Service
§ 309. Right to withdraw from a particular service.
The problem as to the obligation to continue to render
every sort of service that has been undertaken where
various services have been offered to the public is ob-
viously much the same as the obligation to continue
service in every district in which service has been rendered.
The general contention is repeated here that unless there
is a mandatory provision in the franchise requiring the
performance of the services in question any particular
service which is truly separable may be given up under
certain limitations upon due notice. And upon this point
190 Tex. 520, 39 S. W. 926, 59
Am. St. Rep. 834, 35 L. R. A. 662
(1897). Quoted with approval in
State v. Helena Power & Light Co.,
22 Mont. 391, 56 Pac. 685, 44 L. R.
A. 692 (1899).
2 See also Chicago & A. R. R. Co.
v. Suffern, 129 Ill. 274, 21 N. E.
824 (1899).
[270]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§§ 310, 311
the few authorities are practically unanimous that partial
withdrawal may be made within the limitations just men-
tioned.
§ 310. Service demanded by charter.
1
Of course where there is a mandatory provision requir-
ing certain services these must be rendered. Thus in Re
New Brunswick and Canada Railway Company ¹ an ap-
plication on behalf of the town of St. Andrews, New
Brunswick, for a mandamus against the railway company
to compel them to run a train each way each day. The
liability of the company to perform this duty was estab-
lished by the act under which the company was incor-
porated, which required it to run at least one daily train
each way over the main line and branches. Mr. Justice
Allen would not admit any excuses to this obligation.
"If the fact that this portion of the line does not pay
running expenses will justify the company in disobeying
the direction of the acts in running daily trains, we
cannot see what there is to prevent them from abandoning
that part of it altogether, and so leaving, as a matter in
their discretion, that which the act has imperatively im-
posed on them as an absolute duty.'
19 2
§ 311. Partial withdrawal generally permitted.
Where there is no mandatory provision it would seem
that there might be withdrawal from any portion of the
service which is truly separable. The leading case for
this is Commonwealth v. Fitchburg Railroad Company.3
In this application for mandamus it was shown that the
railroad at some time after construction of the Watertown
1 In Re New Brunswick & Canada
Ry. Co., 1 Pugsley & Burbridge
(N. B.), 667 (1878).
2 See also Litchfield & M. R. R.
Co. v. People, 222 Ill. 242, 78 N. E.
589 (1906).
3 Commonwealth v. Fitchburg R.
R. Co., 12 Gray (Mass.), 180 (1858).
[271]
§ 312]
PUBLIC SERVICE CORPORATIONS
branch had discontinued passenger service over it (after
due notice) while continuing freight service. The quo
warranto was brought against the corporation to forfeit
its franchises. The railroad answered that since the con-
struction of a competing street railway the passenger
receipts had so fallen off that the passenger service had
been operated at a loss. The court dismissed the informa-
tion, Mr. Justice Thomas discussing the matter after this
fashion: "The precise question before us is, whether the
running of regular passenger trains was, under the facts
admitted by the demurrer, a legal duty? Neither the
statutes under which the respondents hold their franchises,
nor the general laws regulating railroad companies, in
terms impose upon the respondents such duty. If it had
been intended that the duty of running trains should be
absolute, it would have been made definite. If the duty
is to be held absolute, how long, for what period of time,
is it to be performed? It is during the lifetime of the
charter, and this though the expense of running the train
is daily and rapidly using up the capital stock of the
company.'
" 1
§ 312. Temporary withdrawal not permissible.
It was assumed in the case first discussed that the
company might temporarily withdraw its service and
later, when the occasion demanded it, resume service.
In the particular case where the railroad tracks were still
used for freight service, this is probably correct. But
certainly a railroad which abandons service altogether
even without intention to do so permanently, cannot but
subject itself to liability. Thus where a street railway
virtually abandoned operation until it could bring its
striking employés to terms, the New York Supreme Court
1 To the same effect is Ohio &
M. Ry. Co. v. People, 120 Ill. 200,
11 N. E. 347 (1887).
[272]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 313
1
issued mandamus, Mr. Justice Gaynor saying: "It may
not lawfully cease to perform that duty even for one hour."
The only instance that occurs to the writer at the present
moment of justifiable withdrawal for a temporary period
is where there is no real public demand for the service
during that period. Thus a mountain railroad at a sum-
mer resort might cease running at other seasons. This
seems to be borne out by a later case in the same court
involving the same parties where it was held that service
over an elevated railway might be withdrawn except at
rush hours, there being other traction facilities sufficient
to meet the local demands at other hours. Judge Kellogg
saying 2 that to order such operation would involve sheer
"economic waste.
§ 313. Service abandoned must be separable.
According to the principles already discussed the serv-
ice abandoned must be separable. It cannot be law that
a railroad carrying general freight including lumber can,
by giving notice, withdraw from the carriage of cedar
lumber, nor ought a railroad for policies of its own be
permitted to refuse to accept coal in the future except in
bulk from tipples. From the authorities in general the
doctrine is plain enough that there can only be withdrawal
from distinct classes of business. As has been seen there
are many instances where a public service company is
engaged in rendering separate services. Thus the supply
of
gas for fuel and for illumination are distinct service, so
that a gas company might after engaging in both branches
withdraw from the other. And, similarly, an electric com-
pany supplying energy both for illumination and power
may decide to devote itself exclusively to one or the other.
1 Loader v. Brooklyn Heights Ry.
Co., 35 N. Y. Supp. 996, 14 N. Y.
Misc. 208 (Matter of Loader)
(1895).
2 People v. Brooklyn Heights
Ry. Co., 75 N. Y. Supp. 202
(1902).
18
[ 273 ]
§§ 314, 315] PUBLIC SERVICE CORPORATIONS
Topic D. Reasonable Notice of Withdrawal
§ 314. Notice of withdrawal necessary.
The theory of public profession which has here been
developed is that its existence depends upon the public
impression which is the result of either an express pro-
fession to the public which at once commits one to pub-
lic employment, or by an implied profession established
by a continued course of conduct upon which the pub-
lic have been led to rely. Theoretically, therefore, with-
drawal from public employment may be similarly evi-
denced, either by express notice or by continued conduct.
Thus an innkeeper, as the early cases hold, may make
public his withdrawal from public calling by merely
taking down his sign. And it has been said that a ware-
houseman may signify his withdrawal from public em-
ployment by public advertisement that his premises are
no longer open upon a public basis.2 A wharfinger who
has once refused an applicant on the ground that he has
retired from public service need not repeat it. But it
would take a long time doubtless to convince the public
by circumstantial evidence that a common carrier who
still continued his trips had become a private carrier.4
1
§ 315. Colorable withdrawal.
3
There should perhaps be a word of warning as to color-
able withdrawal. Instances are not unknown where to
escape the troublesome obligations of public service, the
proprietors of the enterprise have given public notice that
they have ceased to conduct the business upon a public
basis while all the time dealing with the most of the pub-
¹ Rex v. Collins, Palmer, 373 ple's Steamboat Co., 214 U. S. 345,
(1623).
53 L. ed. 1024, 29 Sup. Ct. 661
2 Glass v. Davis, 23 Gratt. (Va.) (1909).
184 (1873).
3 Weems Steamboat Co. v. Peo-
4 Satterlee v. Groat, 1 Wend. 272
(1828).
[274]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 316
1
lic as before. This situation was provided against in
one of the very early cases ¹ where it was stated that the
innkeeper's giving up of his business must be bona fide;
if he merely pretends to give up the business while really
continuing to receive guests, he will remain liable. "If
an innkeeper taketh down his signe, and yet keepeth an
hostelerie, an action upon the case will lie against him, if
he do deny lodging unto a traveller for his money." A
modern instance of this sort may be seen in a New York
case 2 where it appeared that the Delaware & Hudson
Canal Company had sold part of its canal property to a
cement company which still kept the canal open, but,
claiming that it was now maintained as a private property,
attempted to exclude from its use a competing cement
company located upon its banks. The Court of Appeals
held, however, that under the circumstances there had
not been a real withdrawal from the business, which ap-
parently could only be by an abandonment of the canal
for transportation services.
§ 316. Situation requires reasonable notice.
The parallel between entering public service and quit-
ting it is not quite perfect; for although one may enter
upon public service on public notice without preparing
the public for his advent, one may not it seems abandon
public service without notice to the public. The new
element of a public duty now existing has supervened,
which must be reckoned with when one who has assumed
a public employment would lay it down. Certainly the
service in hand must be completed. An innkeeper can-
not turn the guests he has accepted out into the night,
nor the carrier abandon his passengers short of their des-
1
Anonymous, Godbolt, 345, pl.
440 (1623).
2 New York Cement Co. v. Con-
solidated Rosendale Cement Co.,
178 N. Y. 167, 70 N. E. 451, modi-
fying 84 App. Div. 635, 81 N. Y.
Supp. 1137, modifying 76 App. Div.
285, 78 N. Y. Supp. 531 (1904).
[275]
§ 317]
PUBLIC SERVICE CORPORATIONS
tination. One may go further with confidence and say
that an innkeeper could not without notice take down
his sign at nightfall, nor, a carrier abandon his schedule
without warning to his public. This means that there is
a public duty in the matter to give reasonable notice of
the intention to abandon, which they owe the public;
for they have given the public cause to rely upon the
continuance of their service, although they may by reason-
able notice leave their public to get service elsewhere.
These general principles are sufficiently established to
justify action; there are already several instances in the
books of the granting of temporary orders to prevent a
public company which had threatened cutting off sud-
denly an established service.¹ And upon similar princi-
ples mandatory processes have been issued to compel an
electric company to furnish temporarily a service from
which it is conceded, it might ultimately withdraw. Where
the company has no legal right to continue service it will
not be ordered to go on. Thus in a recent case 3 a gas
company, its contract with the municipality having ex-
pired, was permitted to withdraw on short notice. And
in another¹ a water company, its franchise rights having
run out, was held justified in stopping service without
notice.
2
§ 317. What constitutes reasonable notice.
It must be admitted, however, that little law as yet
exists as to the length of the notice that must be given.
But it may be asserted with confidence that what is
reasonable notice in a particular case depends upon the
Bienville Water Supply Co. v.
Mobile, 112 Ala. 260, 20 So. 742,
57 Am. St. Rep. 28, 33 L. R. A.
59 (1895).
2 Seattle Electric Co. v. Snoqual-
mic Falls Power Co., 40 Wash. 380,
82 Pac. 713, 1 L. R. A. (N. S.)
1032 (1905).
3 East Ohio Gas Co. v. Akron,
81 Oh. St. 33, 90 N. E. 40 (1909).
4 Laighton v. Carthage, 175 Fed.
145 (1909).
[ 276 ]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§ 318
1
character of the business. A teamster might withdraw
upon a day's notice doubtless, as his patrons may quickly
make other arrangements. A canal boatman might tie
up at the end of any trip, for the other opportunities for
shippers over the canal are numerous. But a railroad
company ¹ may not without a long notice abandon its
line. And a gas company 2 could abandon its service
only after a long enough period to provide a new supply.
It is not principally the special privileges which these
service companies have received that makes their with-
drawal difficult; it is because the duplication of these par-
ticular services takes a long time, and, therefore, the pub-
lic is so dependent upon the established service that it
would lead to intolerable hardships if the proprietors were
permitted to withdraw without long notice. A rule of
law to meet all conditions would have to go so far as to
say that one cannot withdraw from public service with-
out notice sufficiently long to enable those deprived of
the service to make the necessary arrangements for the
provision of other service.
§ 318. Substituting one service for another.
Consistent with this general principle is the recog-
nized rule that when a company withdraws a service that
has been rendered and at the same time offers another
that is a reasonable substitute, only a brief notice to ap-
prise the public of the new arrangement need be given.
There are several important cases in the books of this
sort. The most obvious is the recent Maryland case
1 The recent Georgia case is cer-
tainly correct which holds that á
railway cannot without notice re-
move a spur track upon which a
shipper is relying to complete his
shipments. Durden v. Southern
R. R. Co., 2 Ga. App. 66, 58 S. E.
299 (1907).
2 There is an Indiana case in
which it was held apparently that
a gas company could not discon-
tinue its service except upon rea-
sonable notice. Indianapolis. V.
Indianapolis Gas Co. (Ind. Cir.
Ct.), 35 Ch. Leg. News, 165 (1902).
3 Whalen v. Baltimore & O. Ry.
3
[277]
§ 319]
PUBLIC SERVICE CORPORATIONS
where it was held that such rectification of the line as the
public interests might dictate could be made notwith-
standing particular disadvantage to private business. "A
railroad company is a public service corporation, and is
obliged to use its powers and privileges for the benefit of
the public, and in aid of the public good. It must, there-
fore, from time to time, conform to the requirements of
public travel and commerce, and adjust its grades, its
route, and its curvatures to these needs. No contract on
its face can interfere with these public duties. To com-
pel a railroad company to maintain its main stem on the
old location forever is to render it impossible for the cor-
poration to ever make in conformity with its own needs
and the public's interests any change in its transporta-
tion route." 1
§ 319. Results of consolidating services.
In other cases this point of duplication is made. In a
leading case in New York 2 it was held that: "Where a
railroad company owns by consolidation two lines of
road, and can substantially accommodate the people of
the State by operating one line between the same points,
and can abandon the other line without any serious det-
riment to any considerable number of people, we do not
believe it should be compelled by mandamus to operate
both lines, at a great sacrifice of money, upon the fanci-
ful idea that the sovereignty of the State is wounded by
its omission to operate both lines." 3
Co., 108 Md. 11, 69 Atl. 390, 17
L. R. A. (N. S.) 130 (1908).
1 Mandatory provisions might
prevent relocation of this sort.
State v. Northern Pacific Ry.
Co., 89 Minn. 363, 95 N. W. 297
(1903).
2 People v. Rome, W. & O. R.
R. Co., 103 N. Y. 95, 8 N. E. 369
(1886); People v. Brooklyn Heights
R. R. Co., 75 N. Y. Supp. 202, 65
App. Div. 549 (1902), accord.
³ See People v. Colorado Central
R. R. Co., 42 Fed. 638 (1890).
[278]
WITHDRAWAL FROM PUBLIC EMPLOYMENT [§320
}
§ 320. Division of territory served.
1
The decision of the Supreme Judicial Court of Massa-
chusetts in a recent case ¹ is of considerable importance in
this connection. There were two electric lighting cor-
porations holding franchises and doing business in Bos-
ton where complainant's house was. He was formerly
served by the respondent company, but the two corpora-
tions entered into an agreement, for division of territory
by drawing a line, and the supply of the complainant
fell to the other company. It was alleged that electric
lighting companies, being quasi-public in nature, were
bound to serve all persons who were within reach of
their lines, but the court held otherwise, Chief Justice
Knowlton saying: "We think that a corporation making
such an arrangement is not subject to prosecution under
a writ of mandamus, for a failure properly to exercise its
corporate franchise. We are not called upon to deter-
mine in this case whether such an arrangement could be
availed of as a justification, if, unexpectedly, it should
turn out that the public interest was injuriously affected.
We do not suggest that a corporation can relieve itself
of the performance of its duties to the public under its
franchise, but only that details of administration, not
inconsistent with the legislative policy of the Common-
wealth, may be left to the corporation, so long as ade-
quate provision is made for the public. We go no further
than to say that, under conditions like the present, the
public has no grievance which the court will recognize." 2
¹ Weld v. Gas & Electric Light
Commissioners, 197 Mass. 556, 84
N. E. 101 (1908).
2 But because there is another
service in the territory served the
original company cannot refuse to
serve all within the territory it still
professes to serve. See, for ex-
ample, Portland Natural Gas &
Oil Co. v. State, 135 Ind. 54,
34 N. E. 818, 21 L. R. A. 639
(1893).
[ 279]
BOOK II. OBLIGATIONS OF PUBLIC DUTY
PART III. DUTY TO THE PUBLIC
CHAPTER X
A
NATURE OF PUBLIC DUTY
§ 330. Public obligation the fundamental principle.
Topic A. Essential Character of the Obligation
§ 331. Nature of the public duty.
332. Obligations of the subsequent relationship.
333. The original obligation is sui generis.
334. Nature of the obligation after acceptance.
335. Chief reliance upon tort.
336. No dependence upon contract.
337. Essential elements in contract not necessary.
338. Contract cannot be required.
339. Applicant need not have the capacity to contract.
340. Incapacity of the proprietor to contract no excuse.
341. Relationship established although another pays.
342. Statutory provisions for public service.
343. Franchise provisions for public service.
Topic B. To Whom the Obligation Is Owed
§ 344. The duty is owed to a particular public.
345 What constitutes a default to an individual.
346. Applicants must be desirous of service.
347. Application to test rights.
348. Liability to sendee of telegram.
349. Discussion of the conflicting theories.
350. Individual rights to fire protection.
351. Common law basis for individual rights.
352. Extent of public interest.
353. Personal character of the individual right.
354. Statutory requirements for service.
355. Statutory penalties for default.
§ 330. Public obligation the fundamental principle.
From the very beginning of our law, as has been seen,
[ 283 ]
§ 331]
PUBLIC SERVICE CORPORATIONS
it has been recognized that some kinds of business were
of special importance to the public, and that all persons
engaged in such business owed the public peculiar duties.
No one could be compelled to enter upon the employ-
ment; but if he chose to do so, he thereby undertook the
performance of the public duties connected with it. The
property which he devoted to the public employment
was held to be affected with a public interest, ceasing to be
juris privati only, as Lord Hale said so long ago. Plainly
this is more true to-day than ever before; for the over-
shadowing importance of the public services in our modern
life must be obvious to all. But the extent to which the
primary duty of public service may go is just beginning
to be appreciated. The duty placed upon every one
exercising a public calling is primarily a duty to serve
every man who is a member of his public. Implicit in
this primary duty, necessarily involved in its full per-
formance are various requirements. Not only must all be
served, they must have adequate service; not only must
they not be charged extortionate rates, but there must
be no discrimination practiced. In such an elaborated
statement there is no more than the plain recital of the
present recognition of different aspects of public duty.
The duty to serve the public is the fundamental principle
from which all the rules of public service may be derived.
In a true sense therefore, the law governing public service
is an entirety.
Topic. A. Essential Character of the Obligation
§ 331. Nature of the public duty.
The fundamental fact in public employment is the pub-
lic duty which results in all cases from public profession
of a public calling. It is somewhat difficult to place this
exceptional duty in our legal system. It is like the con-
[ 284 ]
PUBLIC DUTY
[ § 332
tractual obligation in that it is an affirmative duty to act
for a certain person; but it is different in that it does not
depend upon assent of the party charged. It is like the
obligation in tort in that it is imposed by law; but it is
not imposed upon anyone against his will as is the obliga-
tion in tort. In one sense the obligation to serve the
public is voluntarily assumed; and therein the public
duty to act differs from the typical duty not to commit a
tort, which each person without his ever being consulted
owes to all the world. And yet once this obligation is
established by his undertaking, his duty extends to all
within the profession, however unwilling he may be in a
particular case to render service. Public duty is in this
sense imposed by law upon those who put themselves
into public service; and therein very plainly the situation
differs from the typical contractual duty which one owes
only in particular cases to the persons with whom he has
voluntarily negotiated a previous agreement. If one may
thus employ the two traditional phrases, the duty is ab-
solute rather than relative. For it is a duty imposed
by law regardless of dissent in particular instances, not
one for which the actual assent of the person obliged is
necessary in every case. And yet it must be obvious
that in public obligation we have an intermediate case
in many respects. It is like a status which one is under
no obligation to enter except by his own free will; but,
once having committed himself to it, the duties pertaining
to that status are devolved upon him by operation of law
regardless of his own wishes. However, he is committed
to it no further than the peculiar law governing the situa-
tion requires.
§ 332. Obligations of the subsequent relationship.
This argument may be carried still further. Even after
a relationship has been established between the proprietor
[285]
§ 333 ] PUBLIC SERVICE CORPORATIONS
and the patron by application and acceptance, it still
remains generally true that the resulting obligations are
imposed by law as the necessary consequence of the under-
taking.¹ There is no actual contract involved, although
there is a consensual arrangement in the sense that the
consent of the proprietor as well as that of the patron is
needed to create it. In this view of the duty it is difficult
to place it in our law. It is not exactly absolute, because
it does not exist unless it is assumed; but certainly it is
not relative after it is once assumed. This situation is
not without analogies in our law. If a common carrier
is under special obligation because he assumes as such, so
is a private bailee governed by the law appertaining to his
position as such. If a public servant is bound to peculiar
responsibilities by reason of his status, a private agent is
similarly bound by special law. In all cases of this sort
the action against the person who has not acted toward
the person entitled to his regard in accordance with the
obligation of his status is really ex delicto rather than ex
contractu.2
§ 333. The original obligation is sui generis.
The truth of the matter is that the obligation resting
upon one who has undertaken the performance of a pub-
lic duty is sui generis. It cannot be forced into the typ-
ical forms of action without artificiality, as experience
has shown. When the wrong complained of is the refusal
1 The duties of a carrier may arise
out of usage as well as from statu-
tory enactments, and when once cs-
tablished the obligation of the car-
rier to perform them is as binding in
the one case as in the other. State
v. Atlantic Coast Line Ry. Co.
(Fla.), 52 So. 4 (1910).
2 Where a suit is brought against
a common carrier alleging that he
being a common carrier for hire
failed to furnish promptly facili-
tics for transporting freight which
had been tendered to him, the
common law duty being apparent,
it is not subject to demurrer.
Southern Ry. Co. v. Moore (Ga.),
67 S. E. 85 (1910).
[286]
PUBLIC DUTY
[ § 334
1
of the proprietor of the business to render the service
requested, the applicant may indeed frame a proper ac-
tion on the case setting forth the nature of the defend-
ant's business and his profession of it, and showing how
he himself is entitled to demand the service, having com-
plied with all conditions predecent. The character of
this action is well described by Chief Justice Biddle in the
leading American case. "This action is brought against
a railroad company that has become a common carrier,
as is alleged, by holding itself before the public as such,
and thus has undertaken the general public duty of carry-
ing goods for all persons who may apply, and necessarily
thereby has incurred the liability incident to a breach
of such general public duty, to all persons injured thereby,
without any special contract in the given case. The
case, therefore, must be governed by the general law
regulating the remedy for a breach of a public duty."
§ 334. Nature of the obligation after acceptance.
)) 2
When however, the wrong complained of is some de-
fault of the proprietor of the business in the performance
of a service which is being rendered by virtue of his accept-
ance of the application of the patron, the situation is
made difficult by the common practice of permitting the
customer in such a case to make this breach the basis of
either an action on the case for tort or an action in assump-
sit apparently like that for breach of contract. Even in
this case it is probable that the contract form dates back
to that early assumpsit against those who undertake the
performance of a public duty, which long antedates the
¹ Pittsburgh, C. & St. L. Ry. Co.
v. Morton, 61 Ind. 539, 28 Am. Rep.
682 (1878).
2 There is nothing in the nature of
a contractual obligation creating the
relationship of host and guest be-
tween an innkeeper and a traveler
whom he has refused to take in.
Bennett v. Mellor, 5 T. R. (Eng.)
273 (1793).
[287]
§ 335]
PUBLIC SERVICE CORPORATIONS
action of assumpsit for the enforcement of a private bar-
gain. In one of the leading English cases ¹ where the
action was for default in service already begun Chief
Justice Dalles said: "The action is on the case, against
a common carrier, upon whom a duty is imposed by the
custom of the realm, or in other words, by the common
law, to convey and carry their goods and passengers safely
and securely, so that by their negligence or fault no in-
jury happens. A breach of this duty is a breach of the
law, and for this breach an action lies, founded on the
common law, which action wants not the aid of a contract
to support it." 2
§ 335. Chief reliance upon tort.
There are various classes of cases which make it neces-
sary to decide whether the action by an injured party
against one who has committed some default in the per-
formance of his duty is contractual or delictual in nature.
It will be remembered that in recovering damages in
contractual actions one is limited to what was contem-
plated by the parties while in tort actions all proximate
consequences are admitted. It is in such cases that this
fundamental problem becomes so vital an issue that it
receives elaborate discussion. No one has put this better
than Chief Justice Taney in Saltonstall v. Stockton,³
before him on circuit, where an action on the case was
brought against the proprietors of a stagecoach for in-
jury to passengers who alleged that by the misconduct
¹ Bretherton v. Wood, 3 Brod. &
Bing. (Eng.) 54 (1821).
2 That the obligations of the rela-
tionship between the public servant
and his patron are created by law
and not by the will of the parties
appears from the fact that it is uni-
versally agreed that the law of the
place of reception determines the
extent of the obligations resulting
therefrom. It was so held of the
relationship between innkeeper and
guest in Holland v. Pack, Peck,
(Tenn.) 151 (1823).
³ Taney, 11 (1838).
[ 288]
PUBLIC DUTY
[ § 335
of the driver they were compelled to leap from the coach
to save themselves, which resulted in their injuries. The
Chief Justice held that the law of torts was more appli-
cable to this situation than the law of contracts: "Injuries
received in cases of this description are not violations of
a contract between the parties, but are breaches of the
duty imposed by law upon the carrier; they are torts.
The plaintiff might, without doubt, have sued in assump-
sit; but there are many cases where the law implies a
contract, where there was, in fact, no agreement between
the parties; this is done in order to give the plaintiff a
more convenient remedy for his right, by enabling him
to sue in assumpsit. And there are cases where an indi-
vidual who has sustained an injury from the breach of a
legal duty, may waive the tort and sue as upon a contract;
this is the case with innkeepers and their guests, where
property intrusted to the care of the innkeeper has been
lost by his breach of duty; yet the obligations of inn-
keepers in that respect are prescribed by law, and their
neglect is not a violation of contract, but a breach of
the duty which the law imposes; and it is always so de-
scribed in the ancient writs. And if the relation in which
the carrier and passenger stand to one another to wit,
that of bailor and bailee-can be said to be created by
contract, yet, as soon as that relation subsists, the law
interposes and prescribes the rights and duties, and lia-
bilities of both parties; it regulates the degree of skill
and care with which the passenger is to be carried, and
any negligence on the part of the carrier, is an unlawful
act, is a breach of legal duty. Indeed, even the relation
of bailor and bailee is not created by contract; for those
who undertake the business of carrying persons are re-
garded by law as if they were in the public service, and
the carrier cannot refuse to take anyone of good character
who conducts himself properly and pays the usual fare
19
[289]
§ 336 1
PUBLIC SERVICE CORPORATIONS
(provided he has room for him), and if he refuses, he is
liable to an action; so that the passenger takes his seat
upon paying the usual fare, not by force of a right ac-
quired by contract with the carrier, but in the exercise
of a right secured to him by law; a right which the carrier
cannot resist without committing a breach of a legal
duty."
99 1
§ 336. No dependence upon contract.
It is significant also that one who has entered into re-
lations with the proprietor of a public service, his request
for the service having been accepted, is not dependent
upon contract to get compensation if wrongs are done him.
This becomes a vital issue in one class of cases where
as the service is arranged it comes within the statute
forbidding Sunday work. If for instance a passenger
who has been accepted by a common carrier on Sunday
for a trip which has no excuse in necessity or charity
suffers damage by reason of any default of the carrier
in the performance of his obligations, it is well established
that the passenger is not driven to the hopeless course of
working out his rights through the illegal contract, but
he may bring an action in the nature of tort for the breach
of the duty which a carrier owes his passengers. In the
leading case 2 to this effect Mr. Justice Andrews said:—
"We deem it unnecessary to decide the question, which
was argued with great ability by counsel, touching the
liability of the defendant in the action, treating it as
founded upon the contract between the parties. The
gravamen of the action is, the breach of the duty imposed
1 By these principles a gas com-
pany which negligently allowed its
pressure to fall off has been held lia-
ble for causing the death of a sick
child due to its room being left with-
out heat. Coy v. Indianapolis Gas
Co., 146 Ind. 655, 46 N. E. 171
(1897).
2 Carroll v. Staten I. R. R. Co., 58
N. Y. 126 (1874).
[290]
PUBLIC DUTY
[ § 337
by law upon the carrier of passengers to carry safely, so
far as human skill and foresight can go, the person it
undertakes to carry. This duty exists independently of
contract, and although there is no contract in a legal
sense between the parties. Whether there is a contract
to carry, or the service undertaken is gratuitous an action
on the case lies against the carrier for a negligent injury
to a passenger. The law raises the duty out of regard
for human life, and for the purpose of securing the utmost
vigilance by carriers in protecting those who have com-
mitted themselves to their hands." 1
§ 337. Essential elements in contract not necessary.
To some extent the process by which the proprietor of
a business which is public in character undertakes for a
particular applicant the performance of a definite service
is similar to that by which a contract is formed. There
is proposal and acceptance in both cases; and the relation-
ship resulting in both cases may be described as consensual.
But there are also fundamental differences.
The request
of the applicant is one to which the proprietor is bound
to accede; and moreover, the obligations resulting from
the acceptance are far more extensive than anything that
could be worked out of the actual negotiation which takes
place. It is therefore doubtful whether there can be said
to be in the normal case mutual assent to a contractual
obligation. Moreover an arrangement in which one of
the parties does no more for the other than he is bound
by law to do would generally be held not to show the
necessary elements of valid consideration. It is difficult
therefore to find an enforceable contract in the normal
relationship between the proprietor and his patron. Never-
1 Upon the same principle a tele-
graph company is liable for any de-
fault in transmitting a business
message which it has accepted on
Sunday. Western Union Telegraph
Co. v. McLaurin, 70 Miss. 26, 13
So. 36 (1892)
[291]
§ 338 ] PUBLIC SERVICE CORPORATIONS
theless the law has no difficulty in enforcing against each
his respective duties. That consideration is unnecessary
is brought out by that striking class of cases where the
proprietor undertakes the particular service gratuitously.
It is agreed that where there is no understanding to the con-
trary the proprietor may well owe to the person receiving
the service the same duty that he owes to a paying cus-
tomer. This was explained by Mr. Justice Grier ¹ in hold-
ing a carrier liable. "This duty does not result alone from
the consideration paid for the service. It is imposed by
law even when the service is gratuitous.” 2
§ 338. Contract cannot be required.
1
It is not however impossible for special contracts to
be formed between the proprietor and his customer, pro-
vided the parties to the service voluntarily enter into an
arrangement different from what their respective rights
and duties would be at common law. But the customer
must not be coerced into giving his assent, and valid
consideration must be found in some variation from the
common law obligation. The special contract is particu-
larly common in railroad transportation, the railroads
making a much lower rate to those who will ship upon
special contract waiving the common law liability of the
carrier as an insurer of the goods carried. But if such con-
tracts are to stand, the common law basis must be avail-
able upon reasonable terms, or else there will be a failure
¹ Philadelphia & R. R. R. Co. v.
Derby, 14 How. (U. S.) 468, 14 L.
ed. 291 (1852).
See generally Chapter XXII.
2 Upon this principle an inn-
keeper is liable as an insurer of the
goods of a person lodging with him
as a guest although he is making no
charge against him. See Walling v.
Potter, 35 Conn. 183 (1868).
3
3 The quotation which follows is
by Cooley, J., in McMillan v. Mich-
igan S. & N. I. R. R. Co., 16 Mich.
79, 111 (1867).
See also Southern Exp. Co. v.
Meyer Co. (Ark.), 125 S. W. 642
(1910).
See generally Chapter XXIX.
[292]
PUBLIC DUTY
$339
to perform the public duty in evidence.
((
A common
carrier has no right to refuse goods offered for carriage
at the proper time and place, on tender of the usual and
reasonable compensation, unless the owner will consent
to his receiving them under a reduced liability; and the
owner can insist on his receiving the goods under all the
risks and responsibilities which the law annexes to his
employment." And this is generally true in public service
that the proprietor may not attempt to impose upon a
patron the condition that he must enter into a special
contract for the service required. An applicant for water
is entitled to have service upon the common law basis
without contracting away any of his rights, although as
will be seen later, he may be required to subscribe to a
formal application.¹ This was well brought out in a recent
case where an irrigation company which had formerly
been supplying a patron upon a basis very advantageous
to it, refused when the contract ran out to accept his
application for service upon the usual terms now granted
others, and insisted upon his renewing his expiring con-
tract. It was of course decided that this could not be
justified. In the best reasoned telegraph cases it is said
that if the company forces a patron to sign away his
rights by refusing to take his message in any other way
than upon their blank which contains this special contract,
the company cannot hold him to his promises.
2
3
§ 339. Applicant need not have the capacity to contract.
For these reasons it is not necessary to find in a patron
the capacity to make a contract. The relationship may
¹ See Dittman v. New Braunfels,
20 Tex. Civ. App. 293 (1899).
2 San Diego L. & T. Co. v. Sharp,
38 C. C. A. 220, 97 Fed. 394 (1899).
³ See Mathis v. Western Union
Telegraph Co., 94 Ga. 338, 47 Am.
St. Rep. 167 (1894).
See also Kevoy v. Western Union
Telegraph Co., 4 So. Dak. 105, 46
Am. St. Rep. 765 (1893).
[293]
§ 340]
PUBLIC SERVICE CORPORATIONS
be as well established with a person under incapacity,
with an infant or a married woman, as with a person
entirely sui juris. Thus in a Kentucky case,¹ where an
infant was entertained at an inn it was held that the inn-
keeper might charge him his usual rates and hold his
baggage for his bill. "Appellant being an innkeeper, was
bound legally to receive and entertain all guests appar-
ently responsible and of good conduct, who might come
to his house, and if he refused to do so, he was liable alike
to all; and the mere fact of infancy alone in the applicant
would not justify him in any such refusal," said the court;
and it added that an infant could not avoid his consequent
obligations, “it would be a legal absurdity to compel a
man to make a contract, and at the same time permit
the other party, who is the instrument of compulsion to
avoid such a contract." This is assumed to be the law
in a late Missouri case 2 where a married woman applied
for a supply of gas, although it should be said that there
were at that time such statutes in force as to make her
practically capable.
§ 340. Incapacity of the proprietor to contract no excuse.
This rule works both ways. Thus when a man has
become and remains an innkeeper, a supervening inca-
pacity on his own part will not protect him from respon-
sibility; the obligation of the status remains so long as he
keeps in the position. In an old English case 3 where an
innkeeper was sued for failure to keep safely the goods of
his guest, he pleaded that at the time the guest lodged with
him he was sick and of non sane memory. On demurrer,
this was held not to be a good plea. "For the defendant,
¹ Watson v. Cross, 2 Duv. (Ky.)
147 (1865).
2 Vanderberg v. Gas Co., 126
Mo. App. 600, 105 S. W. 17
1907).
Cross v. Andrews, Cro. Eliz. 622
(1598).
[294]
PUBLIC DUTY
[ § 341
if he will keep an inn, ought at his peril to keep safely his
guest's goods; and although he be sick, his servants then
ought carefully to look to them. And to say he is of non
sane memory it lieth not in him to disable himself." A
modern form of this problem is presented when a corpora-
tion undertakes a service which is ultra vires. It is law
for instance that although the corporation operating the
railroad is in reality a private corporation with no author-
ity to act as a common carrier, still it may be liable as a
common carrier for injury to a passenger which it has
assumed to carry."
§ 341. Relationship established although another pays.
Another proof of this theory is that the relationship
with its concomitant obligations may be established with
one person although another be bound to pay. Thus in
order that a person may be a passenger it is not necessary
that the relation of passenger and carrier be established
through an agreement and payment of fare made by
himself. The agreement may be made and the fare paid
by a third person. Such was the case where the owners
of slaves paid their passage and shipped them on steam-
boats to a certain destination-these slaves were held to
be passengers. So in the case of a young child traveling
free with its parent, under a statute or a rule of the com-
pany, which permits such a child to travel without pay-
ment of fare, the agreement in this case, if any, is made
by the person with whom the child is traveling; but the
child occupies towards the carrier the position of a pas-
senger from the time it is received with the adult passen-
ger. And so a servant is a passenger whose fare is paid
3
2
1 Albion Lumber Co. v. De
Nobra's Adm., 44 U. S. App. 347,
72 Fed. 739, 19 C. C. A. 168 (1896).
2 Boyce v. Anderson, 2 Pet. (U.
S.) 150, 7 L. ed. 379 (1829).
3 Alabama.-Ball v. Mobile Light
& R. R. Co., 146 Ala. 309, 39 So.
584, 119 Am. St. Rep. 32 (1905).
Kentucky.-Southern R. R. Co.
v. Lee (Ky.), 30 Ky. L. Rep. 1360,
[295]
§ 341 1
PUBLIC SERVICE CORPORATIONS
by his master.¹ In short, the relation of passenger and
carrier does not arise out of a contract obligation, the
relation comes into existence whenever the person ac-
cepted is rightfully carried. Similarly if a man goes with
his family to a hotel each member of the family is a guest,
though the head of the family is alone responsible for
payment of the innkeeper's charges. A most important
consequence of this general principle is that a person
must be served when the compensation is tendered by
another. But although not truly contractual the initia-
3
101 S. W. 307, 10 L. R. A. (N. S.)
837.
V.
Massachusetts.—Littlejohn
Fitchburg R. R., 148 Mass. 478, 20
N. E. 103, 2 L. R. A. 502 (1889).
Michigan.—Withey v. Pere Mar-
quette R. R., 141 Mich. 412, 104
N. W. 773, 1 L. R. A. (N. S.) 352,
113 Am. St. Rep. 533 (1905).
Missouri.-Rawlins v. Wabash
Ry. Co., 97 Mo. App. 515, 71 S. W.
534, 97 Mo. App. 511, 71 S. W. 535
(1903).
England.-Austin v. Great W.
Ry., L. R. 2 Q. B. 442 (1867).
A child traveling with an older
person who refuses to pay his fare is
not entitled to be regarded as a
passenger. Beckwith v. Cheshire
R. R. Co., 143 Mass. 68, 8 N. E. 875
(1886).
If enough is not tendered for
both, both may be expelled. Eddy
v. Elliot, 4 Tex. Ct. of App. 248, 15
S. W. 41 (1890).
¹ South Carolina.-Mims v. Sea-
board Air Line Ry., 69 S. C. 338, 48
S. E. 269 (1904).
England.-Marshall v. York N.
& B. Ry., 11 C. B. 655 (1851).
2 New York.-Kopper v. Willis,
9 Daly, 460 (1881).
Vermont.-Read v. Amidon, 41
Vt. 15, 98 Am. Dec. 560 (1868).
The dependent person may be
ejected along with the person who
has him in charge.
Minnesota.—Braun v. Northern
Pac. Ry. Co., 79 Minn. 404, 82
N. W. 675, 79 Am. St. Rep. 497
(1900).
Ohio.-Lake Shore & M. S. R. R.
Co. v. Orndorff, 55 Oh. St. 716, 45
N. E. 477, 60 Am. St. Rep. 716
(1897).
Beneficiaries designated in a con-
tract made with another to trans-
port them have full rights.
United States.-Motley v. Louis-
ville & N. R. Co., 150 Fed. 406
(1907).
Kansas.-Curry v. The K. & C.
P. R. Co., 58 Kans. 6, 48 Pac. 579
(1897).
3 United States.-Missouri R. &
T. Ry. Co. v. Smith, 152 Fed. 608
(1907).
Indiana.—Baltimore & O. R. R.
Co. v. Norris, 17 Ind. App. 189, 46
N. E. 554 (1896).
Indian Territory.-Missouri, K.
& T. Ry. Co. v. Smith, 6 Ind. Terr.
99, 89 S. W. 668 (1905).
Missouri.-Randall v. Chicago,
[296]
PUBLIC DUTY
[ § 342
tion of the relationship is at least consensual; it follows
that an intending passenger may refuse to have the offi-
cious tender of a bystander attributed to him.¹
§ 342. Statutory provisions for public service.
It will often happen that the duty to serve in a given
calling will be found to be enacted in a particular statute.
In early times such statutes may have been thought
necessary. Thus there are many statutes from an earlier
day setting forth the duty of innkeepers and millers. In
later times such statutes may be laid to the codifying
theory, the desire to have these duties settled in detail
beyond question. Thus there have been elaborate stat-
utes relating to railroad service and irrigation supply.
These statutes will stand unless they are so unduly regu-
lative or so obviously confiscatory as to deprive those
engaged in this business of their liberty or property.
But aside from these statutes defining the duties of those
engaged in these businesses which are recognized as pub-
lic callings, are other statutes imposing upon certain
businesses the obligations of public service where this has
either been doubtful at common law or denied. Such
statutes have their office in hastening the development
of the law when the courts are over cautious in taking
the responsibility or lacking in appreciation of new condi-
tions. But the legislation cannot under our American
system go much further, for if it proposes to subject to
public service any businesses which it would be beyond
reason to consider affected with a public interest, the leg-
islation would be unconstitutional. :
R. I. & P. Ry. Co., 76 S. W. 493,
102 Mo. App. 342 (1903).
New York.-O'Brien V. New
York C. & H. R. R. R. Co., 80 N. Y.
236 (1880).
Pennsylvania.-Ham v. Delaware
& H. C. Co., 142 Pa. St. 617, 21 Atl.
1012 (1891).
Tennessee.-Louisville & N. R. R.
Co. v. Garrett, 8 Lea, 438, 41 Am.
Rep. 640 (1881).
¹ Birmingham Ry., L. & P. Co. v.
Lee, 153 Ala. 386, 45 So. 164 (1907).
[297]
§§ 343, 344] PUBLIC SERVICE CORPORATIONS
§ 343. Franchise provisions for public service.
It was once common, before the time when the obliga-
tions put upon those who undertake a public service were
appreciated, to include in the charter of a public service
company a free statement of its obligations to the public.
The binding force of such stipulations upon the company
which accepts such a charter is not to be denied, and the
public nature of such duties is disclosed by the fact that
mandamus will be granted to enforce them as a matter
of course. Examples of this policy are to be found through-
out this treatise. Such charters to-day generally go no
further than to require the company to maintain its serv-
ice in general for the benefit of the whole public. More-
over in the granting of other franchises the same course has
been followed. Once it was common for the locality in
granting a franchise to a public service to stipulate anx-
iously for the right of its citizens to have service but it
has long since been recognized that these obligations may
safely be left to the common law. The only occasion for
such stipulation is where the municipality is able to bar-
gain with the company for something more than the com-
mon law might require, as for a schedule of rates lower
than it would be certain that the company could be com-
pelled to make.
Topic B. To Whom the Obligation is Owed.
§ 344. The duty is owed to a particular public.
To generalize from all cases that have been discussed
it would seem to be proper to say that one who under-
takes a public service owes a duty to serve every member
of the public within his profession. That which in the
quaint language of the early cases may seem a mere con-
ceit really is practically the truth of the matter. One who
undertakes public employment has, in effect, thereby ex-
[298]
PUBLIC DUTY
[ § 345
posed and vested an interest of himself in all the king's
subjects that will employ him in the way of his trade.
But the duty as thus defined is not to all men but to a
certain public limited in various ways according to the
usual profession. Thus a gas company owes its duty
only to those who occupy premises within the territory
covered by the service. And an innkeeper does not owe
his duty to all who apply to him, but only to travelers.
These two examples selected from the next chapter in
which this matter is fully discussed show that the duty
itself has its limitations.
§ 345. What constitutes a default to an individual.
As this duty is to a particular public, it follows that
no member of the public as such has a right of action for
the breach of it. On the contrary an individual can only
make out a breach to him of the duty owed to him by
showing that being one within the profession to whom
the general duty was owed and having conformed with
all the prerequisite conditions properly imposed, the serv-
ice he thus requested was thereupon refused him. That
makes out the prima facie case; if there is general justifi-
cation or particular excuse, it rests upon the company to
set up such affirmatively. As usually happens, the deci-
sions as to the proper pleadings against a public company
show exactly the real duty. Thus in a declaration against
one engaged in public employment it is only necessary
to set forth the facts; the public duty to act is a matter
of law and need not be averred. So a recent Connecticut
case holds of a declaration against a common carrier.
On the other hand, a declaration by the applicant stat-
ing that the defendant refused to act, although he had ap-
plied to it to act for him within the scope of the business,
is held fatally defective for not stating the essential facts,
1 ¹ Lang v. Brady, 73 Conn. 707, 49 Atl. 199 (1901).
[299]
§ 346]
PUBLIC SERVICE CORPORATIONS
1
but dealing simply with a conclusion of law. So a recent
Florida case ¹ holds of a declaration against a telegraph
company. Once the essential fact of established employ-
ment and proper application are stated, however, a prima
facie case is made out.2 It is therefore upon the defendant
to meet that by setting up his excuses whatever they
may be.3
§ 346. Applicants must be desirous of service.
The public duty that is being defined is necessarily
limited to responding to the proper applications of those
who are desirous of the sort of service which has been
professed; there is no duty to do anything different, and
no breach by refusal. That there is no breach of duty
in refusing to serve an applicant who is not desirous of
present service should be plain upon the general prin-
ciple of public necessity which underlies the law of pub-
lic service. In one case in mind a householder who was
using electricity for lighting his house sought to have
the gas company compelled to continue to maintain its
service pipe and keep connections for his benefit, so that
in case of failure of the electric supply the gas service would
be immediately available. But the court was plainly of
opinion that to such an applicant, not desirous of present
service, no attention need be paid. "A statement of the
proposition suggests its answer," it said: "there is no
equality or equity in such a proposition.” 5
¹ South Florida Telegraph Co. v.
Maloney, 34 Fla. 338, 16 So. 280
(1894).
2 Ayres v. Chicago & Northwest-
ern Ry. Co., 71 Wis. 372, 37 N. W.
432, 5 Am. St. Rep. 226 (1888).
3 Chicago, St. L. & P. R. R. v.
Wolcott, 141 Ind. 267, 39 N. E. 451,
50 Am. St. Rep. 320 (1984).
4 Fleming v. Montgomery Light
Co., 100 Ala. 657, 13 So. 618 (1892).
So it is generally held that a
man who has no goods requiring
transportation cannot complain of a
failure to furnish him with cars.
Wilder v. St. Johnsbury & L. C.
Ry., 66 Vt. 636, 30 Atl. 41 (1891).
[300]
PUBLIC DUTY
[ §§ 347, 348
§ 347. Application to test rights.
A difficult problem is presented when the person pre-
senting himself is making his application in order to test
his rights. It may be granted that if he is in truth de-
sirous of the service he asks, the traveler may demand his
rights, even if as in some cases one of the objects of the
traveler in taking the trip was to recover a penalty for a
wrongful refusal of a tender, which it was believed would
occur.¹ But if one is applying for service with no de-
sire to obtain it, but with the sole intention of qualifying
himself for bringing suit, he is not really applying for serv-
ice in the sense of the law. This was well brought out in
one case ² wherein certain parties who had got themselves
refused two or three thousand times in order to bring
suits for the penalties were enjoined. The railroad com-
pany, it was said, owes no duty to furnish a ticket to any-
one unless that person desired to put it to the use for
which it was made and issued. Such desire is absolutely
inconsistent with a desire to have it refused, in order to
lay the foundation for a cause of action by securing such
refusal. A demand made in bad faith, and with a desire
for a refusal, is wholly ineffective.¹
3
2
§ 348. Liability to sendee of telegram.
A prominent class of cases are those telegraph cases
¹ Adams v. Union Ry. Co., 21
R. I. 134, 42 Atl. 515 (1899).
2 Southern Pacific Co. v. Robin-
son, 132 Cal. 408, 64 Pac. 572
(1901).
³ Georgia.-Southern Ry. Co. v.
Barlow, 104 Ga. 213, 30 S. E. 732
(1898).
Iowa.-Jolley v. Chicago, M. &
St. P. Ry. Co., 119 Iowa, 491, 93
N. W. 555 (1903).
4 See further: Bull v. New York
City Ry. Co., 192 N. Y. 361, 85 N.
E. 385 (1908). Supporting ex-
pressly: Myers v. Brooklyn Heights
R. R. Co., 10 App. Div. 335, 41 N.
Y. Supp. 798 (1896); Nicholson v.
New York City Ry. Co., 118 App.
Div. 858, 103 N. Y. Supp. 695
(1907); and therefore necessarily
overruling: Fitzmartin v. New York
City Ry., 51 N. Y. Misc. 36, 99 N.
Y. Supp. 765 (1906); McLean v.
Interurban St. Ry., 102 N. Y.
App. Div. 18, 92 N. Y. Supp. 77
(1905).
[301]
§ 348 ] PUBLIC SERVICE CORPORATIONS
which allow the sendee, as he is called, to recover for fault
of the company in the transmission of the message. Al-
though such an action fails in England,¹ it is almost uni-
versally successful in the United States on one theory or
another. As summarized in one of the American cases 2
there are certainly four principal theories: (1) That, ás
a telegraph company is in the exercise of a public, as dis-
tinguished from a private, calling, it is the common agent
of both parties to a telegraph message, or a public agent
liable to anyone injured by its negligence; ³ (2) That
the person addressed is the beneficiary of a contract; 4
1 Playford v. United Kingdom
Electric Telegraph Co., L. R. 4 Q.
B. 706 (1869).
See further Feaver v. Montreal
Telegraph Co., 23 Upp. Can. C. P.
150 (1873).
2 Western Union Telegraph Co. v.
Allen, 66 Miss. 549, 6 So. 461 (1889).
This paragraph and the next are
largely written from this case.
See also the general language in
Western Union Telegraph Co. v.
Woodward, 84 Ark. 323, 105 S. W.
579 (1907).
See the language in these cases
particularly.
v. Western
California.-Coit
Union Telegraph Co., 130 Cal. 657,
63 Pac. 83, 53 L. R. A. 678, 80 Am.
St. Rep. 153 (1900).
Illinois.-Western
Union Tele-
graph Co. v. Dubois, 128 Ill. 248,
(1889), 21 N. E. 4, 15 Am. St. Rep.
109, 29 Ill. App. 219, (1888).
Indiana.-Western Union Tele-
graph Co. v. Fenton, 52 Ind. 1
(1875).
Louisiana.-De La Grange v.
Southwestern Telegraph Co., 25
La. Ann. 383 (1873).
3
Massachusetts.—Ellis v. American
Telegraph Co., 13 Allen, 226 (1866).
Mississippi.-Shingleur v. West-
ern Union Telegraph Co., 72 Miss.
1030, 18 So. 425, 30 L. R. A. 444, 48
Am. St. Rep. 604 (1895).
Missouri.-Lee v. Western Union
Telegraph Co., 51 Mo. App. 375
(1892).
4 See the language in these cases
particularly.-
Alabama.-Kennon v. Western
Union Telegraph Co., 92 Ala. 399,
9 So. 200 (1890).
Kansas.-Russell v. Western
Union Telegraph Co., 57 Kans. 230,
45 Pac. 598 (1896).
North Carolina.-Sherrill v. West-
ern Union Telegraph Co., 109 N. C.
527, 14 S. E. 94 (1891).
Oklahoma.-Butner v. Western
Union Telegraph Co., 2 Okla. 234,
37 Pac. 1087 (1894).
Oregon.-Frazier v. Western Tele-
graph Co., 45 Oreg. 414, 78 Pac.
330, 67 L. R. A. 319 (1904).
South Carolina.-Aiken v. Tele-
graph Co., 5 S. C. 358, 371
(1874).
Texas.-Western
Union Tele-
[302]
PUBLIC DUTY
[ § 349
2
(3) That the message is the property of the person ad-
dressed, the position of such person being analogous to
that of a consignee of goods,¹ and (4) That the sendee
is the principal of the telegraph company in those cases
where he originally employed the company. But after
considering each of them carefully this court gave up in
despair. The fundamental principle is that there is some
breach of duty, and whether this duty is logically deduced
from any well-recognized rules applicable to other rela-
tions becomes immaterial when there is consensus of
judicial opinion as to its existence."
""
§ 349. Discussion of the conflicting theories.
Objections can be made to the application of each and
every principle, in analogy to which the courts act. To
those decisions in which the telegraph company is treated
graph Co. v. Adams, 75 Tex. 531, 12
S. W. 857, 6 L. R. A. 844, 16 Am.
St. Rep. 920 (1889).
¹ See the language in these cases
particularly.-
United States.-Western Union
Telegraph Co. v. Lawson, 182 Fed.
369 (1910).
Georgia.-Western Union Tele-
graph Co. v. James, 90 Ga. 254,
16 S. E. 83 (1892).
Pennsylvania.-New York &
Washington Printing Telegraph Co.
v. Dryburg, 35 Pa. St. 298, 78 Am.
Dec. 338 (1860).
Virginia.—Western Union Tele-
graph Co. v. Reynolds, 77 Va. 173,
46 Am. Rep. 715 (1883).
2 See the language in these cases
particularly.-
V. Western
Iowa.-Harkness
Union Telegraph Co., 73 Iowa, 190,
34 N. W. 811, 5 Am. St. Rep. 672
(1887).
Kentucky. Chapman v. Western
Union Telegraph Co., 90 Ky. 265,
13 S. W. 880 (1890).
Maryland.—United States Tele-
graph Co. v. Gildersleve, 29 Md.
232, 96 Am. Dec. 519 (1868).
New York.-Milliken v. Western
Union Telegraph Co., 110 N. Y.
403, 18 N. E. 251 (1888).
Where the law assumes that the
sender is the party in interest, the
interest of the sendee must affirma-
tively appear. See Anniston Cord-
age Co. v. Western Union Tele-
graph Co., 161 Ala. 216, 49 So. 770
(1909).
Where the law assumes that the
sendee is the party in interest, the
interest of the sender must affirma-
tively appear. See Western Union
Telegraph Co. v. Bell (Tex. Civ.
App.), 90 S. W. 714 (1905)
[303]
§ 350 ]
PUBLIC SERVICE CORPORATIONS
as bailee, it may be objected that a bailee is one who
receives property and that intelligence is not property
subject to bailment. To those which deduce the liability
from the principles of agency, that the company is agent
only for him who employs it. To those which hold that
the sendee may sue upon the contract, as one made for
his benefit, that one not a party to an executory contract
has no right of action on it. To those which declare that
the telegraph company is in the exercise of a public em-
ployment, and is responsible for any breach of duty, that
it owes no duty to the public as individuals except to
contract with each on his demand, and that there is no
contract save with the sender of the message.
It yet
remains true that the courts on some one or the other of
these grounds, have steadily adhered to the rule of lia-
bility; and this must have its reason. Difficult this mat-
ter may be, but the writer feels that in almost all the
cases where the sendee has been allowed to recover, the
arrangement may be said to be made without violence
to the real facts in behalf of the sendee by the sender
acting for him. Thus the consignor very often acts for
the consignee; and on such facts there has never been
any dispute as to the right of the consignee to sue the
carrier. This explains why when the sendee has no real
interest he cannot recover. Neither can the addressee
when the consignor retains the ownership.
§ 350. Individual rights to fire protection.
A similar problem arises in relation to hydrant supply
to a city for extinguishment of fires. The usual form in
which this comes up is a suit by a householder in a mu-
nicipality against the water company supplying the dis-
trict seeking to recover damages in his own right for the
failure to supply sufficient water to extinguish the fire
which destroyed his premises. In most jurisdictions he
[304]
PUBLIC DUTY
[ § 350
fails;¹ in several jurisdictions, however, he succeeds.2 It
will be noticed in analyzing these cases that in all of them
¹ Alabama.—Lovejoy v. Besse-
mer Water Works Co., 146 Ala. 374,
41 So. 76, 6 L. R. A. (N. S.) 429
(1906).
California.-Ukiah City v. Ukiah
Water & Imp. Co., 142 Cal. 173, 75
Pac. 773, 64 L. R. A. 231, 100 Am.
St. Rep. 107 (1904).
Connecticut.-Nickerson v. Bridg-
port Hydraulic Co., 46 Conn. 24, 33
Am. Rep. 1 (1878).
Georgia. Fowler v. City Water-
works Co., 83 Ga. 219, 9 S. E. 673,
20 Am. St. Rep. 313 (1889).
Idaho.-Bush v. Artesian Hot &
Cold Water Co., 4 Idaho, 618, 43
Pac. 69, 95 Am. St. Rep. 161 (1895).
Indiana.—Fitch V. Seymour
Water Co., 139 Ind. 214, 37 N. E.
982, 47 Am. St. Rep. 258 (1894).
Iowa.-Davis v. Clinton Water-
works Co., 54 Iowa, 59, 6 N. W. 126,
37 Am. Rep. 185 (1880).
Kansas.-Mott V. Cherryvale
Water Co., 48 Kans. 12, 28 Pac.
989, 15 L. R. A. 375, 30 Am. St.
Rep. 267 (1892).
Maine.-Hone v. Presque Isle
Water Co., 104 Me. 217, 71 Atl. 769,
21 L. R. A. (N. S.) 1021 (1908).
Mississippi.-Wilkinson v. Light,
Heat & Water Co., 78 Miss. 389, 28
So. 877 (1900).
Missouri.-Metz v. Cape Girar-
deau Water Works Co., 202 Mo.
324, 100 S. W. 621 (1907).
Nevada. Ferris v. Carson Water
Co., 16 Nev. 44, 40 Am. Rep. 485
(1881).
V.
New York.-Wainwright
Queens County Water Co., 78 Hun,
146, 28 N. Y. Supp. 987 (1894).
Ohio.-Blunk v. Dennison Water
Co., 71 Ohio, 250, 73 N. E. 210
(1905).
Pennsylvania.-Beck v. Kittan-
ning Water Co. 11 Atl. 300 (1887).
Tennessee.-Foster v. Lookout
Water Co., 3 Lea, 42 (1879).
Texas.-House v. Houston Water-
works Co., 88 Tex. 233, 31 S. W. 179,
28 L. R. A. 532 (1895).
West Virginia.-Nichol v. Hunt-
ington Water Co., 53 W. Va. 348,
44 S. E. 290 (1903).
Wisconsin.—Britton v. Green Bay
& Ft. H. Waterworks Co., 81 Wis.
48, 51 N. W. 84, 29 Am. St. Rep.
856 (1892).
2 United States.-Guardian Trust
Co. v. Fisher, 200 U. S. 57, 50 L. ed.
367, 26 Sup. Ct. 186 (1906).
Florida.-Mugge V. Tampa
Water-works Co., 52 Fla. 371, 42
So. 8 (1906).
Kentucky.-Paducah Lumber Co.
v. Paducah Water Supply Co., 89
Ky. 340, 12 S. W. 554, 13 S. W. 249,
7 L. R. A. 77, 25 Am. St. Rep. 536
(1889).
V.
North Carolina.-Gorrell
Greensboro Water Supply Co., 124
N. C. 328, 32 S. E. 720, 46 L. R. A.
513, 70 Am. St. Rep. 598 (1899).
See also these cases, somewhat
doubtful:
Louisiana.-Allen, etc., Mfg. Co.
v. Shreveport Waterworks Co., 113
La. 1091, 37 So. 1980, 68 L. R. A.
650, 104 Am. St. Rep. 525 (1905).
South Carolina.-Ancrum
Camden Water, L. & I. Co., 82 S.
C. 284, 64 S. E. 151, 21 L. R. A.
(N. S.) 1029 (1909).
V.
20
[305]
§ 351]
PUBLIC SERVICE CORPORATIONS
there is a contract between the waterworks and the mu-
nicipality in which it is provided that a certain pressure
shall be maintained. If this contract is broken it would
seem to give an individual citizen no right to sue for the
breach of that promise made to the municipality. So the
cases generally hold. Some few cases seem to maintain
that the citizens should be regarded as the sole benefi-
ciaries of that contract; but the difficulty with that view
is that the performance was promised the municipality
and was not by its terms to be made to citizens individu-
ally. It would be a convenient way out of the difficulty,
as some hopeful persons now assert, if it could be said
that by so contracting the company has undertaken the
supply of water for the extinguishment of fires. But has
the individual citizen entered into any relation with the
company in this respect by making an application which
has been accepted? If the applicant, as in one case, had
been refused water for his sprinkler system, he would
make out a breach to him; but the cases discussed are
obviously different. The only way in which a default
to the citizen could be worked out, would be to show that
the obligation created really runs to the citizens indi-
vidually; but it is more obviously made to the munici-
pality as an entity.
§ 351. Common law basis for individual rights.
1
The difficulty of this problem makes necessary further
consideration of the conflicting cases. The argument for
the citizen is succinctly put in the latest North Carolina
case summarizing the others. "There can be no real con-
tention that the plaintiff, a citizen and taxpayer, and one
of the beneficiaries in the purview of this contract cannot
prosecute this action. He is the real party in interest.
He is taxed with payment of his pro rata of the annual
¹ Jones v. Durham Water Co., 135 N. C. 553, 47 S. E. 615 (1904).
[306]
PUBLIC DUTY
[ § 352
rental. The town cannot maintain this action for the loss
sustained by him by reason of the defendant's failure to
perform the provisions of the contract above recited. For
this injury the plaintiff alone can sue. The same principle
has been often affirmed; to wit, that the beneficiary of a
contract, though not a party to it, nor expressly named
therein, can maintain an action for a breach of such con-
tract, causing injury to him, if the contract was made for
his benefit." One of the most telling arguments to the
contrary is contained in the leading Texas case:¹ “It is
not true, that for every failure to perform a public duty
an action will lie in favor of any person who may suffer
injury by reason of such failure. If the duty is purely a
public duty, then the individual will have no right of
action; but it must appear that the object and purpose of
imposing the duty was to confer a benefit upon the indi-
viduals composing the public." The writer is inclined to
follow this last opinion. The only possibility by which
the inhabitants could gain individual rights under this
contract arrangement would be if the arrangement was
made for their exclusive benefit as individuals.
not seem to be the case.
§ 352. Extent of public interests.
This does
It is commonly said of public employments that the
whole public is peculiarly interested in having them car-
ried on. And it has been noticeable in the judicial opin-
ions of late that this general interest of the whole public
is often made the basis of peculiar rules which can only
be explained upon this public policy. Thus in granting
receiverships to bondholders of public service companies
it is generally stipulated that those who have kept up
the public service without being paid while it was on the
1 House v. Houston Waterworks
Co., 88 Tex. 233, 31 S. W. 179, 28
L. R. A. 532 (1895).
[307]
§ 353 ] PUBLIC SERVICE CORPORATIONS
verge of insolvency shall be paid even ahead of the mort-
gages out of the sale of mortgaged property.¹ This is
altogether abnormal in mortgage law; and it seems that
it is only to be explained by this public interest in the con-
tinued performance of the public services. To put an-
other example, courts will sometimes grant specific per-
formance, for a time at least, of arrangements necessary
for the performance of a public service, although if only
private interests were involved no such relief would ever
be given. In one case 2 the court went so far as to grant
specific performance for the time being of an agreement
to supply electric power to a street railway which was
admittedly without obligation.
§ 353. Personal character of the individual right.
The legal right which the customer of a public service
company acquires by being accepted seems to be pecul-
iarly a personal one. There is no necessary obligation by
a particular acceptance except to give service to the par-
ticular customer. If another wishes service he must
himself apply for the service he wishes. If one is traveling
with a ticket from A to C (intending to go no further
than B) he cannot assign to another the right to continue
the journey from B to C, even by the same train.³ And
a railroad may make its tickets transferable or non-
1 This doctrine has been devel-
oped by the United States Supreme
Court in many cases since the origi-
nal dictum in Fosdick v. Schall, 99
U. S. 235, 25 L. ed. 339 (1878).
And so the bankruptcy laws are
held not applicable to public service
companies lest the public service be
interrupted or the public duty dis-
charged. In re Bay City Irrigation
Co., 135 Fed. 850 (1905).
2 Seattle Electric Co. v. Snoqua-
lime Falls Power Co., 40 Wash. 380,
82 Pac. 713 (1905).
It should be noted that the em-
ployés of public service companies
are often held for a time to the per-
formance of their duties in case of
threatened strike. Toledo A. A. &
P. M. Ry. Co. v. Pennsylvania R.
R. Co., 54 Fed. 746 (1893).
3 See particularly Roberts V.
Koehler, 30 Fed. 94 (1887).
[308]
PUBLIC DUTY
[ §§ 354, 355
transferable as it wishes.¹ If one who is receiving serv-
ice at certain premises goes out of business the company
may consider itself under no further obligation in respect
to those premises by virtue of the former arrangement."
It is for this reason that one is under no obligation to pay
the charges for service accruing against his predecessor.³
§ 354. Statutory requirements for service.
It is not uncommon even at this day for the legislature
to define certain of the duties of those engaged in certain
callings where the legislature believes the common law
to be doubtful or inadequate. Thus there are statutes in
several States providing that upon due demand a railroad
must furnish cars within a certain time definitely fixed,
whereas at common law the obligation would be to furnish
cars within a reasonable time. Upon the same basis are
statutes requiring gas companies to furnish gas to all
applicants within a certain number of feet of the estab-
lished mains, while at common law the test would be a
reasonable distance.
§ 355. Statutory penalties for default.
At some times in respect to some callings, statutes
have been passed giving special remedies when there has
been a refusal to serve. There is no uniformity in this
legislation; but in certain States some services are singled
out. The moving force back of the statutes which provide
for the recovery of a penalty is the idea that where the
actual damages that the applicant refused could probably
recover are so small that they would not deter the pro-
prietor of a service from capricious refusal some addi-
1 See Hudson v. Kansas Pacific
Ry. Co., 3 McCrary (U. S.) 249
(1882).
2 See particularly Sullivan V.
Chicago Board of Trade, 111 Ill.
App. 492 (1903).
3 See particularly Gaslight Co. v.
Colliday, 25 Md. 1 (1866).
[ 309 ]
§ 355 1
PUBLIC SERVICE CORPORATIONS
tional penalty would be necessary. Doubtless this is
one explanation of the fact that from ancient times the
refusal of an innkeeper to take in a traveler has been
punished as a crime. Certainly this is the explanation
of the statutes giving those who are refused service by a
telegraph company the right to recover a penalty of a
round sum.
[310]
CHAPTER XI
OBLIGATION LIMITED TO CERTAIN CLASSES
§ 360. Inherent limitation of the public service duty.
Topic A. Duty Limited to Travelers
§ 361. Special need of travelers.
362. Carriers' obligation limited to travelers.
363. Innkeepers' duty owed only to travelers.
364. Who is a traveler?
365. How long one remains a traveler.
366. When one ceases to be a traveler.
Topic B. Obligations Incidental to the Service
§ 367. Persons properly upon the premises.
368. Persons desiring shelter merely.
369. Persons assisting or meeting passengers.
370. Convenience of the patron the test.
371. Right involved is that of the person served.
372. Extent of the duty to such persons.
Topic C. Duty Limited to Occupiers
§ 373. Special need of occupiers.
374. Obligation limited to supply at premises.
375. Necessity of telephone service at residence.
376. Duty owed to occupiers.
377. Certain consequences of this doctrine
378. Supply to incumbered premises.
379. Services to separate premises.
380. Supply to buildings divided into tenements.
Topic D. Other Limitations to Particular Classes
§ 381. When special limitations are justifiable.
382. Sleeping and parlor car service.
383. Rights in a public conduit.
384. Irrigation in accordance with water rights.
385. Basis of the public duty.
[311]
§§ 360, 361] PUBLIC SERVICE CORPORATIONS
§ 360. Inherent limitation of the public service duty.
It is ordinarily said that those who have undertaken a
public service owe a duty to the public in general, what-
ever may be their inclinations. But it will be found upon
inquiry that in the case of every public calling service is
legally due to persons belonging to a special class and
not to every member of the public, as such. This is the
inevitable consequence of the elementary principles as
to the essential nature of public employment and the
necessary scope of public profession. By these fundamen-
tal rules an employment is held public in its nature only
in so far as it is affected with a public interest and only
to the extent that it has been undertaken. Both that
public interest and that public profession must coexist
in order that there may be a public duty in particular
cases. That being so, it is natural to find that in most
public callings either the real necessity is confined to a
certain class or the undertaking assumed has been solely
toward a special class. It is to that extent and to them
that the public duty is therefore established. There have
already been examples enough of limitations of this sort
in adjudicated cases to make this matter sufficiently plain.
Topic A. Duty Limited to Travelers
§ 361. Special need of travelers.
From ancient times it has been recognized that in certain
public employments the public duty is owed only to travel-
ers. It is only as to dealings with travelers that these call-
ings are affected with a public interest. Those who offer
necessary services, protection or transportation, to way-
farers and travelers, always have the upper hand; their
monopoly is temporary, but it is effectual, while these very
same persons, in offering their services to the local popula-
tion under other circumstances, have no monopoly at all.
There is every reason, therefore, why innkeepers should be
[312]
LIMITED OBLIGATION
[ § 362
bound to entertain weary wayfarers, and why carriers of
passengers must take up travelers bound their way. And
as all within the class being similarly circumstanced have
practically the same need, it should not be open to those
who are conducting these services to discriminate within
this particular public. Thus the suggestion in one case
that an innkeeper might confine his obligation to those
who might come in their carriages,¹ or in another that trav-
elers belonging to an unpopular race might be excluded,²
are both inconsistent with the public duty which is owed
to all travelers without regard to station or condition.
§ 362. Carriers' obligation limited to travelers.
That the business which the carrier of passengers under-
takes is the transportation of travelers is so obvious that
there are but a few cases which state it.3 The necessary
thing is that those upon a journey should be speeded on
their way. The carrier of passengers does not undertake
any other service than the transportation of passengers.
Nor is he bound to furnish the use of his facilities to carry
one for any purpose save his transportation. Thus in
order to demand carriage one must be desirous of reaching
his destination. Therefore, as will be seen later, one has
no right to demand carriage for the purpose of selling
goods. "A steamboat company or a railroad company is
not bound to furnish traveling conveniences for those who
wish to engage, on their vehicles, in the business of selling
books, papers, or articles of food, or in the business of
receiving and distributing parcels or baggage, nor to per-
mit the transaction of this business in their vehicles,
when it interferes with their own interests." 4
1 Johnson v. Midland Ry. Co., 4
Exch. (Eng.) 367, 371 (1849).
2 State v. Steele, 106 N. C. 766,
11 S. E. 478, 19 Am. St. Rep. 573, 8
L. R. A. 516 (1890).
³ Jencks v. Coleman, 2 Sumn. 221
(1835).
4 Quoted from The D. R. Martin,
11 Blatch. 233 (1873).
[313]
§§ 363, 364] PUBLIC SERVICE CORPORATIONS
§ 363 Innkeepers' duty owed only to travelers.
The inn is established for travelers, and it is such per-
sons only who are the necessary objects of the public
solicitude. One who is not a traveler does not need the
inn to protect him, for he can provide a home for that
purpose. The public duty of the innkeeper is therefore´
owed to travelers only, and no one who is not a traveler
can demand to be received at an inn.¹ Thus in the lead-
ing case on the law of innkeepers 2 the court said: "Com-
mon inns are instituted for passengers and wayfaring men;
for the Latin word for an inn is diversorium, because he who
lodges there is quasi divertens se a via; and so diversoriolum.
And therefore if a neighbor, who is no traveler, as a
friend, at the request of the innholder lodges there, and
his goods be stolen, etc., he shall not have an action; for
the writ is ad hospitandos homines, etc., transeuntes in
eisdem hospitantes."
§ 364. Who is a traveler?
One who is making a very short journey may demand
transportation as a traveler; however short the distance
the passenger may be going, the carrier is liable as such.3
Certainly under the modern decisions a man need not be
at the time engaged upon a journey of any considerable
length in order to be in a position to demand admission to
an inn as a traveler. Notwithstanding some dicta 5 it is
entirely possible for a resident of the same locality to be
considered a traveler. Where, for instance, a man on his
way from his city office to his suburban home stopped at
4
¹ Rex v. Luellin, 12 Mod. 445
(1700).
2 Calye's Case, 8 Coke, 202 (1584).
3
³ Illinois.—Parmelee v. McNulty,
19 Ill. 556 (1858).
Missouri.-Lemon v. Chanslor,
68 Mo. 340, 30 Am. Rep. 799
(1878).
4 Atkinson v. Sellers, 5 C. B.
(N. S.) (Eng.) 442 (1858).
5 Carr's Case, 1 Roll. Abr. 3, pl.
4 (1583).
[314]
LIMITED OBLIGATION
[ § 365
an inn to get dinner, he was held to be a traveler.¹ Jus-
tice Kennedy said in that case: "It does not seem to me
to make any difference whether his journey be a long or a
short one." But a man who takes a walk and just before
reaching home goes into an inn to get a drink is not a
traveler, and cannot demand the accommodation he seeks;2
while if in course of a long walk for pleasure he stops on
his way for refreshment at an inn, he is entitled to be
entertained. For if he is bona fide in the course of traveling
from one place to another he is none the less a traveler
because the purpose of his journey is merely pleasure.³
In short, anyone away from home receiving accommo-
dations at an inn as a traveler is a guest.ª
§ 365. How long one remains a traveler.
5
The determination of the question whether one who is
staying at an inn is a guest or a boarder may depend upon
whether the person is a resident of the town or a stranger.
So a foreigner visiting the country and staying for a con-
siderable time at a hotel was held a guest, and a resident
of another town, visiting the town where the inn was
situated for business purposes merely, was held to be a
guest. On the other hand, an employé of a railroad,
making his regular trips, and stopping over at each end
of his route at the hotel, where he rents a room by the
month, is not a guest. He is, as the court said, "a citizen
of the community at both ends of the route."7 So where
a man breaks up his home and goes to a hotel in the same
6
¹ Orchard v. Bush, 2 Q. B. (Eng.)
284, 289 (1898).
2 Murphy v. Innes, 11 So. Aus-
tralia, 56 (1877).
3
Taylor v. Humphreys, 30 L. J.
M. C. 242 (Eng.) (1861).
4 Walling v. Potter, 35 Conn. 183
(1868); Curtis v. Murphy, 63 Wis.
4, 22 N. W. 825, 53 Am. Rep. 242
(1885).
5 Metzger v. Schnabel, 23 N. Y.
Misc. 698, 52 N. Y. Supp. 105
(1898).
"Beale v. Posey, 72 Ala. 323
(1882).
'Horner v. Harvey, 3 N. Mex.
197, 5 Pac. 329 (1885).
[315]
§ 366]
PUBLIC SERVICE CORPORATIONS
3
town, he is a boarder.¹ And where a man sent his family
to an inn in a distant city and they remained there for
several months, while he made them an occasional short
visit, his family were boarders and he was a guest.² But in
a leading New York case the family of an army officer
stationed at a near by post were held to be guests of the
hotel at which they remained for several months, on the
ground that they would follow him whenever he might be
ordered elsewhere.
§ 366. When one ceases to be a traveler.
4
One may thus remain a traveler for a long time. Thus
in one year book case the weary suitor who follows the
royal court from sitting to sitting, his hopes long deferred,
is still a traveler. But after a considerable lapse of time
one almost inevitably becomes a resident, and as he has
no longer a right to demand entertainment the innkeeper
may exclude him. In a recent English case of this sort
where a woman had remained at a hotel at a resort for
about ten months, it was held that she could be ejected.
Lord Esher said that: "The question whether a person
has ceased to be a traveler was to be a question of fact,
and mere length of residence was not decisive of the mat-
ter, because there might be circumstances which would
show that the length of stay does not prevent the guest be-
ing a traveler, as, for instance, where it arises from illness."
An American case" should be cited in qualification of the
situation supposed in this quotation. In this case it was
S.) 141, 45 W. R. 289, 61 J. P. 260
(1897).
1 Meacham V. Galloway, 102
Tenn. 415, 52 S. W. 859, 46 L. R. A.
319 (1899).
2 Lusk v. Belote, 22 Minn. 468
(1876).
Hancock v. Rand, 94 N. Y. 1,
46 Am. Rep. 112 (1883).
4 Lamond v. Richard, 1 Q. B. 541,
66 L. J. Q. B. D. 315, 76 L. T. (N.
See also Clifford v. Stafford, 145
Ill. App. 247 (1908).
5 Haff v. Adams, 6 Ariz. 395, 59
Pac. 111 (1899).
See also Gray v. Drexel Arms
Hotel, 145 Ill. App. 604 (1909).
[316]
LIMITED OBLIGATION
[ §§ 367, 368
properly said that one who will in all probability be com-
pelled by the condition of his health to remain indefi-
nitely ceases to be a traveler.
Topic B. Obligations Incidental to the Service
§ 367. Persons properly upon the premises.
Moreover, there are certain incidental duties pertaining
to such employments. While the duty of the carrier to
receive passengers for carriage extends only to travelers,
he owes an incidental duty to certain other persons whose
purpose in coming to the carrier is connected with the
transportation of passengers or goods though they are not
themselves travelers. Thus a carrier must, it would seem,
admit a person who comes to make an inquiry about
trains or to ask for a time-table.¹ So he must admit to his
premises a person coming to a train to mail a letter.²
And so one is entitled to admission to the premises of a
carrier who comes to look for freight which is expected to
arrive, or to help unload freight which has arrived."
Upon similar principles one may properly enter an inn to
inquire its terms or to ask for mail addressed to him.5
And one may even enter a palace car to ask a favor.6
3
§ 368. Persons desiring shelter merely
A person who desires shelter merely is not one whom the
carrier of passengers is bound to serve; and he may, there-
¹ Bradford v. Boston & M. R. R.,
160 Mass. 392, 35 N. E. 1131, B. &
W. 124 (1894).
2 Hale v. Grand Trunk R. R., 60
Vt. 605, 15 Atl. 300, 1 L. R. A. 187
(1888). See also Atchison, T. & S.
F. R. Co. v. Jandera, 24 Okla. 106,
104 Pac. 339, 24 L. R. A. (N. S.)
535 (1909).
3 Toledo, W. & W. Ry. v. Grush,
67 Ill. 262, 16 Am. Rep. 618 (1873).
4 Holmes v. North Eastern Ry.,
L. R. 4 Ex. 254 (1869).
5 Strauss v. County Hotel & W.
Co., 12 Q. B. D. 27, 53 L. J. Q. B.
25, 49 L. T. (N. S.) 601, 32
W. Rep. 170, 48 J. P. 69 (Eng.,
1883).
6 Williams v. Pullman Palace Car
Co., 40 La. Ann. 417, 4 So. 85, 8
Am. St. Rep. 538 (1888).
[317]
§ 369]
PUBLIC SERVICE CORPORATIONS
fore, decline to receive such a person on his premises.
Loafers have no rights upon a carrier's premises. Thus
a railroad company is not bound to keep open its station
after the last train has left in order to shelter an intend-
ing passenger who, having missed his train, is now wait-
ing for a street car.¹ As Mr. Justice Devens said: "This
room was not a place where every one might resort and
use it for his own business, and he could not expect that
it, or the way out of it, would be kept lighted until the
arrival of the horse car for which, as he stated, he waited."
Similarly one who is not a guest, or intending immedi-
ately to become a guest, has, generally speaking, no right
to enter or remain in the inn against the objection of the
innkeeper.2
§ 369. Persons assisting or meeting passengers.
It is well agreed that the carrier of passengers is under
a duty to receive persons who come to help passengers in
some way. Thus a hackman who comes to a station to
bring a passenger is entitled to the carrier's services.³
A common case of this sort is that of a person who comes
to the carrier's premises in order to be of assistance to
the departing passenger. Such a person, though not a
4
¹ Heinlein v. Boston & P. R. R.,
147 Mass. 136, 16 N. E. 698, 9 Am.
St. Rep. 676 (1888).
5
v. Crunk, 119 Ind. 542, 21 N. E. 31,
12 Am. St. Rep. 443 (1889).
Iowa.-Galloway v. Chicago, etc.,
2 Commonwealth v. Mitchel, 2 R. Co., 87 Iowa, 458, 54 N. W. 447
Parsons (Pa.), 431 (1850).
3 Tobin v. Portland, S. & P. R.
R., 59 Me. 183, 8 Am. Rep. 415
(1871).
4 Railway Co. v. Lawton, 55 Ark.
428, 18 S. W. 543, 29 Am. St. Rep.
48, 15 L. R. A. 434 (1892).
5 Georgia.-Hill v. Louisville &
N. R. R. Co., 124 Ga. 243, 52 S. E.
651, 3 L. R. A. (N. S.) 432 (1905).
Indiana.—Louisville, etc., R. Co.
(1893).
Kentucky.-Berry v. Louisville &
N. R. R. Co., 109 Ky. 727, 60 S. W.
699 (1901).
Massachusetts.-Lucas v. Taun-
ton & N. B. R. R., 6 Gray, 64
(1856).
Missouri.-Doss v. Missouri, K.
& T. Ry. Co., 59 Mo. 27, 21 Am.
Rep. 371 (1875).
New York.-Rott v. Forty-second
[318]
LIMITED OBLIGATION
[ § 370
passenger, is entitled to be admitted to the station; and
he may even, in order to assist a passenger, demand
admittance to a train. Similarly the carrier is bound to
admit to his premises one who comes to meet an arriving
passenger. Thus where a man who had come to a railway
station to meet his wife was injured by a defect in the
premises, he was held entitled to compensation.¹ As Mr.
Chief Justice Graves said: "It is admitted in argument
that had his presence at the station been in the character
of a hackman engaged in running for passengers his
stepping aside would not have been wrongful, and the duty
of the company would have extended to him. We think
it would be straining common sense to make such a dis-
tinction as is implied here. He was a customer within
the essence of the rule just mentioned. The company was
bringing his wife to him, and he went to receive and pro-
tect her. Had his errand been to receive a bale of goods or
a horse, no one would doubt that he had all the rights of a
customer, and it seems little less than preposterous to
contend that the right was not simply different or inferior,
but absolutely wanting, because it was his wife that he
went for."
§ 370. Convenience of the patron the test.
Similar in principle are those cases where a stranger
St. Ferry R. Co., 56 N.Y. Super. Ct.
151, 1 N. Y. Supp. 518 (1888);
Dunne v. N. Y., N. H. & H. R. R.
Co., 99 App. Div. 571, 91 N. Y.
Supp. 145 (1904).
North Carolina.-Morrow v. At-
lanta & A. L. Ry. Co., 134 N. C. 92,
46 S. E. 12 (1903).
South Carolina.-Izlar v. Man-
chester & A. R. R. Co., 57 S. C. 332,
35 S. E. 583 (1889).
Texas. Houston & T. C. R. R.
Co. v. Phillis, 96 Tex. 18, 69 S. W.
994, 97 Am. St. Rep. 868, 59 L. R.
A. 392 (1902).
Wisconsin.—Dowd v. Chicago,
M. & St. P. Ry. Co., 84 Wis. 105, 54
N. W. 24, 20 L. R. A. 527, and note,
36 Am. St. Rep. 917 (1893),
semble.
1 McKone v. Michigan C. R. R.,
51 Mich. 601, 17 N. W. 74, 47 Am.
Rep. 596 (1883). See also Missouri,
K. & T. Ry. v. Miller, 8 Tex. Civ.
App. 241, 27 S. W. 905 (1894).
[319]
§ 371]
PUBLIC SERVICE CORPORATIONS
may desire to enter the inn, not merely for his own pleas-
ure but because the convenience of a guest of the inn calls
him there. While no right to enter the inn can be based on
his own claim, he can under certain circumstances claim to
be exercising a right of the guest. Where such is the case
it would seem that his right to admittance is as clear as
the right of a guest. It must be borne in mind, however,
that in order to show a right of admittance he must base
his claim on a right of the guest whom he comes to see.
Although there is no direct authority in favor of such a
right, it seems that a stranger coming to make a call upon
the guest at the guest's request would have a right to be
admitted for that purpose. Any other rule would deprive
the guest of one privilege necessary for his comfort while
at the inn. If, however, the guest has not previously
requested the stranger to call, it seems clear that the
stranger cannot object if he is denied admittance to the
inn and the guest is not informed of his presence.¹ So one
who comes by appointment to do business with a guest
has a right to be admitted. "It is conceded," said Parker,
J., in Markham v. Brown,2 that he may be bound to
permit the entry of persons who have been sent for by the
guest." And even those courts which are most reluctant
to permit the entrance of a stranger, do in fact concede
the right to such persons.
§ 371. Right involved is that of the person served.
The same argument applies to the right of the person
¹ Commonwealth v. Mitchel, 2
Parsons (Pa.), 431, 1 Phila. 63
(1850).
28 N. H. 523, 31 Am. Dec. 209
(1837).
So one who comes to a railway
station by appointment with a
passenger to transact business with
him must be treated properly.
Minnesota.-Klugherz
V.
Chi-
cago, M. & St. P. Ry. Co., 90 Minn.
17, 95 N. W. 586, 101 Am. St. Rep.
384 (1903).
Oklahoma.—Cogswell v. Atchi-
son, T. & S. F. Ry. Co., 23 Okla.
181, 99 Pac. 923, 20 L. R. A. (N. S.)
837 (1909).
[ 320 ]
LIMITED OBLIGATION
[ § 372
who is not a passenger or an intending passenger, to be
received by the carrier in order to accompany or to meet
a passenger. This is a right primarily due to the passenger
only; and it is only so far as the interest of the passenger
requires it that the service can be demanded of the car-
rier. Thus when a person came to a station out of curi-
osity, in order to see the President of the United States,
who was a passenger on a passing train, it was held that
the carrier owed him no duty.¹ A similar case was one
where one boarded a train to speak with an acquaintance
and was injured under circumstances which would have
shown liability if the plaintiff had been a passenger. But
it was held that the defendant company owed such a person
no duty of that sort since he was not upon the train in con-
nection with any duty which the carrier owed the passenger.2
§ 372. Extent of the duty to such persons.
Even those persons to whom a duty is owed are not
passengers. They are, in the language of the cases, "cus-
tomers," and are entitled to safe and properly lighted
premises. But they are not entitled to the active pro-
3
¹ Gillis v. Pennsylvania R. R., 59
Pa. St. 129, 98 Am. Dec. 317 (1868).
2 Bullock v. Houston & T. C. Ry.
(Tex. Civ. App.), 55 S. W. 184
(1900). See also Arkansas & L. R.
R. Co. v. Sain, 90 Ark. 278, 119 S. W.
659, 22 L. R. A. (N. S.) 910 (1909).
The same law applies if one hav-
ing assisted a person on board re-
turns later to talk with him. St.
Louis, I. M. & S. Ry. Co. v. Tom-
linson, 69 Ark. 489, 64 S. W. 347
(1901).
If it can be shown that the person
suing for injuries was at the station
for no other purpose than to bid
the passenger good-by, there is au-
thority for holding that the carrier
is under no duty to him to keep the
premises safe. Galveston, H. & S.
A. Ry. Co. v. Matzdorf, 102 Tex.
42, 112 S. W. 1036, 20 L. R. A.
(N. S.) 833 (1908).
3 United States.-Illinois Central
R. Co. v. Griffin, 80 Fed. 278, 53
U. S. App. 22, 25 C. C. A. 413
(1897).
Georgia.-Georgia R. R. & B. Co.
v. Richmond, 98 Ga. 495, 25 S. E.
565 (1896).
Illinois.—Toledo, W. & W. Ry.
v. Grush, 67 Ill. 262, 16 Am. Rep.
618 (1873).
Maine.—Tobin v. Portland, S. &
P. R. R., 59 Me. 183, 8 Am. Rep.
415 (1871).
21
[321]
§ 373]
PUBLIC SERVICE CORPORATIONS
tection which is due to passengers. Thus, while waiting
in a station for a train, in order to meet a passenger, such
a person is not entitled to protection against the assault
of a stranger.¹ Where the person actually gets on board
the train, assisting a passenger, and the train starts with-
out giving him time to alight safely, the question whether
the carrier has been guilty of a breach of duty is a difficult
one. One or two cases are clear enough. If the con-
ductor had no notice that the assistant was on the train,
and the train stopped the usual and reasonable time, the
carrier has performed its duty.2 But if the conductor had
notice that the assistant was on the train, the carrier must
give him a reasonable time to alight. ³
3
Topic C. Duty Limited to Occupiers
§ 373. Special need of occupiers.
In several of the public services the undertaking is
Massachusetts.-Bradford v. Bos-
ton & M. R. R., 160 Mass. 392, 35
N. E. 1131 (1894).
Michigan. McKone v. Michigan
C. R. R., 51 Mich. 601, 17 N. W. 74,
47 Am. Rep. 596 (1883).
Nebraska.-Union Pac. R. Co. v.
Evans, 52 Neb. 50, 71 N. W. 1062
(1897).
New York.-Hauk v. N. Y. C. &
H. R. R. Co., 34 N. Y. App. Div.
434, 54 N. Y. Supp. 248 (1898).
Texas. Hamilton v. Texas & P.
Ry., 64 Tex. 251, 53 Am. Rep. 756
(1855); Missouri, K. & T. Ry. v.
Miller, 8 Tex. Civ. App. 241, 27
S. W. 905 (1894).
Vermont.-Hale v. Grand Trunk
R. R., 60 Vt. 605, 15 Atl. 300, B. &
W. 124, 1 L. R. A. 187 (1888).
England.-Holmes v. North East-
ern Ry., L. R. 4 Ex. 254 (1869).
¹ Houston & T. C. R. R. Co. v.
Phillio, 98 Tex. 18, 69 S. W. 994, 97
Am. St. Rep. 868, 59 L. R. A. 392
(1902).
2 One leading case is Missouri, K.
& T. Ry. v. Miller, 8 Tex. Civ. 241,
27 S. W. 905 (1894). See also Cole-
man v. Georgia R. R. Co., 84 Ga. 1,
10 S. E. 498 (1889); Hill v. Louis-
ville & N. R. R. Co., 124 Ga. 243,
52 S. W. 651 (1905); Griswold v.
Chicago & N. W. Ry., 64 Wis. 652,
26 N. W. 101 (1885); Lucas v. New
Bedford & T. R. R. Co., 6 Gray
(Mass.), 64, 66 Am. Dec. 406
(1856).
³ One leading case is Doss v.
Missouri, K. & T. Ry., 59 Mo. 27,
21 Am. Rep. 371 (1875). See also
Lousiville & N. R. R. Co. v. Crunk,
119 Ind. 542, 21 N. E. 31, 12 Am.
St. Rep. 443 (1889); Johnson
Southern Ry., 53 S. C. 203, 31 S. E.
212, 69 Am. St. Rep. 849 (1898).
V.
[ 322 ]
LIMITED OBLIGATION
[ § 374
limited to the occupiers of premises. The water com-
panies, the gas companies, the electric companies and the
telephone companies which undertake to distribute their
product or perform their services generally throughout
the city, do not undertake to serve every person as such.
Their services are peculiarly necessary in connection with
the use of buildings, and their obligation is properly held
to be limited to the occupiers of premises by the general
character of their customary undertaking.
§ 374. Obligation limited to supply at premises.
One of the most interesting of the comparatively few
cases upon the question of the classes of persons who can
demand supply from such service companies as gas com-
panies arose recently in New Jersey.¹ This was a dispute
between the Public Service Corporation which was en-
gaged in the supply of gas to Jersey City, and the American
Lighting Company, the proprietor of peculiar burners.
At the bidding for the lighting of the streets, 1903, the
American Lighting Company came in with the lowest
bid; and the lighting was accordingly let to it. Thereupon
it demanded that the Public Service Corporation should
supply to it at the end of the pipe at the top of every
lamp-post in Jersey City, enough gas to run the lamp at
the regular rate for measured gas as supplied to house-
holders generally in Jersey City. Vice-chancellor Pitney
disposed of this case upon a number of points, one of them
being this: "I am entirely of the opinion that the defend-
ant, the lighting company, has no standing whatever, in
its own right, to demand from the complainants a supply
of gas. For the simple reason, above stated, that it is
neither a householder nor a resident of Jersey City, and
the obligation which is imposed upon complainants by
1 Public Service Corporation v. also American Lighting Co. v. Pub-
American Lighting Co., 67 N. J. lic Service Corporation, 132 Fed.
Eq. 122, 57 Atl. 482 (1904). See 794 (1904).
[323]
§ 375]
PUBLIC SERVICE CORPORATIONS
reason of their enjoyment of a public franchise of laying
mains in the streets, to furnish gas, extends only to
residential citizens of the city and to the municipality.
It is quite absurd to say that any person who might
happen to be walking along the street and yet be des-
titute of any local habitation within the corporate limits
of Jersey City has the least right to demand a supply of
gas from the complainants." 1
§ 375. Necessity of telephone service at residence.
2
It has been seen that as the modern telephone system
is managed, one of the services offered is to subscribers
at their residence. This being so, a telephone company
cannot do what it attempted to do in one case, insist that
an occupier should be content with a pay station. For all
occupiers have a right to residence service. "To conduct
the business of the telephone by public telephone stations,
and sending messengers to notify persons with whom a
patron of the company desires to converse in other parts
of the city; to compel the persons desiring to converse
with others to remain at the public telephone station
until the persons with whom they desire to converse can
be notified, and so arrange their business as to leave and
go to another telephone station and hold the conversa-
tion, renders the use of the telephone almost worthless.
It is by reason of the fact that business men can have
them in their offices and residences, and, without leaving
their houses or their places of business, call up another at
a great distance, with whom they have important business,
and converse, without the loss of valuable time on the
part of either, that the telephone is particularly valuable
as an instrument of commerce." ³
1 In Provident Inst. for Savings
v. Allen, 37 N. J. Eq. 36 (1883), it
was held that water rates cannot be
assessed against vacant lots.
2 Central Union Telephone Co. v.
State, 118 Ind. 194, 19 N. E. 604
(1888).
'Accord., Central Union Tele-
[324]
LIMITED OBLIGATION
[ §§ 376, 377
§ 376. Duty owed to occupiers.
According to this analysis of the situation the occupiers
of every house within the territory served have a right to
be supplied. The exact nature of this duty is well set
forth in a leading case¹ where the relator, a tenant of a
building, was refused service by the water company upon
the ground that the company had decided that it would
deal only with the owners of premises. But the court,-
Mr. Justice Hunt writing the opinion,-held that the
tenant must be served: "The relator is an inhabitant of
Butte, occupying premises wholly without water for gen-
eral use, and there are no other means by which water for
his house may be secured, except from the appellant
corporation. Ought the appellant to be allowed to refuse
his tender for water in advance, and to refuse him water,
upon the ground that, by virtue of its rules and regula-
tions adopted, it can deal only with the owners of the
property requiring water to be turned on, or the agents
of said owners? We say not. It has no power to abridge
the obligations, assumed by it in accepting its franchise,
to supply an inhabitant of Butte with water, if he pays
them for it in advance, and is a tenant in the possession
and occupancy of a house, in need of water for general
purposes.” 2
§ 377. Certain consequences of this doctrine.
In accordance with this doctrine the owner of the
premises has no standing to complain of the refusal to
phone Co. v. State, 123 Ind. 113, 24
N. E. 215 (1889).
¹ State v. Butte City Water Co.,
18 Mont. 199, 44 Pac. 966, 32 L. R.
A. 697, 56 Am. St. Rep. 574
(1899).
2 It should be added that this
right to have service at the premises
in question belongs solely to the
legal occupant thereof, the tenant
strictly. Thus a member of a
family resident in the house has not
as such the right to demand the
continuance of gas supply. Vander-
berg v. Gas Co., 126 Mo. App. 600,
105 S. W. 17 (1907).
[ 325]
§ 378]
PUBLIC SERVICE CORPORATIONS
3
4
supply his tenant.¹ It follows that the owner of the
premises cannot be held liable for the bills of his tenant.2
And therefore his premises cannot be subjected to any
lien for such charges. Similarly a new tenant cannot be
affected by the arrears of a prior tenant, for the new
tenant has his own independent right to be served. This
is all good common-law doctrine, but it may be, and some-
times is altered by the legislature by general statute or by
provision in particular charters. By force of these pro-
visions the company is permitted to look to the owners
of the premises as such; and it is often provided that the
arrearages shall constitute a lien upon the property it-
self.5 Such legislation is held not unconstitutional, even
if it goes so far as to provide for the eventual sale of the
property in the hands of whomsoever it may be."
§ 378. Supply to incumbered premises.
A mortgagee in possession has of course the same rights
as an occupier to complain of refusal to give service; and
it has been held that even a mortgagee out of possession
¹ Brass v. Rathbone, 153 N. Y.
435, 47 N. E. 905 (1897). See also
Stein v. McArdle, 24 Ala. 344 (1854).
2 McCarthy v. Humphrey, 105
Iowa, 535, 75 N. W. 314 (1898).
3 Turner v. Revere Water Co.,
171 Mass. 329, 50 N. E. 634, 40 L.
R. A. 657, 26 Am. St. Rep. 432
(1898).
4 Illinois.-City of Chicago v.
Northwestern Mut. Life Ins. Co.,
218 Ill. 40, 75 N. E. 803, 1 L. R. A.
(N. S.) 770 (1905).
Kentucky.-Covington v. Ratter-
man, 128 Ky. 336, 108 S. W. 297, 17
L. R. A. (N. S.) 923 (1908).
Louisiana.-New Orleans G. L.
& B. Co. v. Paulding, 12 Rob.
(La.) 378 (1845).
Maryland.-Gaslight Co. v. Colli-
day, 25 Md. 1 (1866).
Mississippi.—Burke v. City of
Water Valley, 87 Miss. 732, 40 So.
820, 112 Am. St. Rep. 468 (1906).
South Carolina.-Poole v. Paris
Mt. Water Co., 81 S. C. 438, 62 S.
E. 874, 128 Am. St. Rep. 923
(1908).
Washington.-Linne v. Bredes, 43
Wash. 540, 86 Pac. 858, 6 L. R. A.
(N. S.) 707, 117 Am. St. Rep. 1068
(1906).
5 See Wagner v. City of Rock
Island, 146 Ill. 139, 34 N. E. 545, 21
L. R. A. 519 (1893).
6 See East Grand Forks v. Luck,
97 Minn. 373, 107 N. W. 393, 6 L.
R. A. (N. S.) 198 (1906).
[ 326 ]
LIMITED OBLIGATION
[ § 379
3
1
may maintain an action for depreciation of his security by
a refusal of service to his mortgagor. Of course if the
mortgagor is in possession he is the one entitled to serv-
ice.2 The decision that a tenant, as such, is entitled to
demand service, does not altogether exclude the landlord
from consideration. He has such interest in the supply
of the premises that it would seem that he could frame
an action for injury to his interests by refusal of the com-
pany to furnish a supply to them. It is on some such
ground as this that the legislation making the owner
liable for supply to his premises may better be justified
than in any other way."
4
§ 379. Services to separate premises.
The primary duty is thus to the occupier of premises as
such; and the structure therefore would seem to be the
unit. The company may insist upon this as well as the
applicant. Thus in one leading case 5 the United States
as owner of a military reservation at Fort Omaha de-
manded that all the water supplied should be sold at
wholesale rates through one meter. But the court held
that the company could insist upon supplying each build-
ing separately, saying that this supply to premises was the
nature of their obligation. There are, however, some
instances of service arranged for by a group as a unit
which, it is held, will conclude the parties to the arrange-
ment if any of them are later dissatisfied."
1 Equitable Securities Co. V.
Montrose & D. Canal Co., 79 Pac.
747 (Col., 1905).
2 Mabb v. Stewart, 133 Cal. 556,
65 Pac. 1085 (1901).
3 Dayton v. Quigley, 29 N. J. Eq.
77 (1878).
4 See Pallett v. Murphy, 131 Cal.
192, 63 Pac. 366 (1900).
6 United States V. American
Waterworks Co., 37 Fed. 747. Com-
pare Haugen v. Albina L. & Water
Co., 21 Oreg. 411, 28 Pac. 244, 14
L. R. A. 424 (1891).
• Idaho.-Helphery v. Perrault,
12 Idaho, 451, 86 Pac. 417 (1906).
Missouri.-Mulrooney v. Obear,
171 Mo. 613, 71 S. W. 1019 (1903).
[ 327 ]
§ 380 1 PUBLIC SERVICE CORPORATIONS
§ 380. Supply to buildings divided into tenements.
1
It is of interest to see how the problem is handled in
accordance with these principles when the basis of supply
to a building occupied by several groups of persons is
brought in question. If there are various persons occupy-
ing the premises, but no separation of the tenancy, the
premises may properly be considered as an entirety. A
single charge may then be made for all; one lodger cannot
demand separate rating ¹ when the premises are used in
common with a single system of piping. But where the
building is divided into separate tenements, there being
separate lessees of these apartments, a different situation
is presented. Even then it is not the duty of the supplying
company to provide rising pipes to each apartment and
a meter for the supply at each. As a theoretical matter
the profession of the supplying company, a gas company
or a water company for example, ends at the cellar wall by
its usual practice. Moreover, as a practical matter, the
existence of public pipes within the house structure would
give too great an opportunity for stealing by tapping the
pipes.2 The proper method for application by a tenant
who desires a supply at his apartment is by bringing his
own service pipes to the cellar wall and there requesting
that a supply be handed over to him. It may be added
that where the statute permits the charging of the serv-
ice against the owner the whole may be billed to him,
leaving him to deal with his tenants as he sees fit. These
1 Birmingham V. Birmingham
Waterworks Co., 42 So. 10, 152
Ala. 306, 44 So. 581, 11 L. R. A.
(N. S.) 613 (1906). See also Froth-
ingham v. Bensen, 20 N. Y. Misc.
132 (1897).
2 Ferguson v. Metropolitan Gas
Co., 37 How. Pr. 189 (1868). And
3
4
see Stein v. McArdle, 24 Ala. 344
(1854).
3 The lessee of two tenements is
not liable for supply to his sub-
lessee in one. Young v. Boston, 104
Mass. 95 (1870).
4 Kelsey v. Board of Fire &
Water Commissioners, 113 Mich.
215, 71 N. W. 589 (1897).
[328]
LIMITED OBLIGATION
[ §§ 381, 382
difficulties doubtless do not apply to electric supply or
telephone service, unless perhaps when the wires are under-
ground; for when the wires are overhead they may be
brought directly to the outer wall of the apartment.
Topic D. Other Limitations to Particular Classes
§ 381. When special limitations are justifiable.
As has just been seen, special limitations upon the
extent of the employment may be justified by the partic-
ular situation with regard to the service in question. This
is particularly true when those who may demand service
are plainly limited by external conditions. Where it is
true that only a certain class are in a position to demand
service the propriety of confining service to that class is
obvious. These external limitations may be of various
sorts, as will be seen. The service in question may be so
dependent upon another service that it may only deal with
those who have been first accepted by this other service.
Or the service in question may be available by necessary
law only to those who have first acquired a legal right
entitling them to this service. Illustrations of these two
possibilities are included in this topic.
§ 382. Sleeping and parlor car service.
The public profession and proper obligation of a sleep-
ing car or parlor car company is subject to this sort of
limitation. Its services are tendered, not to all persons
who may desire shelter or protection but only to passengers
on the train to which they are attached, and indeed only
to such passengers as the carrier permits to ride in the cars
of the company. As Mr. Justice Devens said, in Law-
rence v. Pullman Palace Car Company:¹ "The defendant
company could not certainly furnish a berth in its cars
until the person requesting it had become entitled to
¹ 144 Mass. 1, 10 N. E. 723, 59 Am. Rep. 58 (1887).
[ 329 ]
§§ 383, 384] PUBLIC SERVICE CORPORATIONS
transportation by the railroad company as a passenger,
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." 1
§383. Right in a public conduit.
Legal limitation is the true explanation of the restricted
obligation attributed to the wire conduit companies by
the few cases which deal with this modern instance.
It is held as to them that they are only bound to admit
the wires of such companies as have received proper
franchise from the public authorities to engage in their
business along the streets in which the conduit is run.2
This "lawful power" is a condition prerequisite, other-
wise various companies might foist themselves upon the
city without its consent.
§ 384. Irrigation in accordance with water rights.
The situation as to irrigation companies is altogether
peculiar. As has been seen, they are only in public serv-
ice to a limited extent, but in so far as they are professing
to serve takers in general, they are under a public obliga-
tion of a certain sort. This obligation is always in con-
¹ Accord., United States.-Lemon
v. Pullman P. C. Co., 52 Fed. 262
(1887).
Illinois.-Pullman P. C. Co. v.
Lee, 49 Ill. App. 75 (1892).
2 See generally:
Maryland.-Purnell v. McLane,
98 Md. 589, 56 Atl. 830 (1904).
Missouri.-State ex rel. v. Na-
tional Subway Co., 145 Mo. 551, 46
S. W. 981 (1898).
New York.-West Side Electric
Co. v. Consol. T. & E. Co., 110 N.
Y. App. Div. 171, 96 N. Y. Supp.
609 (1905); Re Long Acre Light &
Power Co., 102 N. Y. Supp. 242,
117 N. Y. App. Div. 80 (1907).
[ 330 ]
LIMITED OBLIGATION
[ $385
nection with landholding. Only those who are in pos-
session of irrigable land within their district can demand
service, but more than this, there are usually to be found
priorities in right between the different landowners apply-
ing for service. The peculiar rule of property within the
States where irrigation systems are common, gives a pri-
ority, in accordance with the time of appropriation, to
the owner of the irrigated land.¹
§ 385. Basis of the public duty.
1
Citations might have been multiplied upon the topics
here discussed; but it is hoped that authority enough has
been adduced to support the contention here put forward.
It is but a half truth that those who commit themselves
to a public employment are bound to serve the whole
public. It is but a half truth, that the public servant
may altogether decide as to the extent to which he will
commit himself to public service. The real truth in this
is, that by entering upon the service one comes within the
law requiring him to meet the necessities of the situa-
tion, but no more. The obligations are thus the in-
voluntary ones of a legal status,—not the defined ones of
a specific assumption.
1 A few examples of the points
under discussion selected almost at
random are:
California.-Merrill v. Southside
Irr. Co., 112 Cal. 426, 44 Pac. 720
(1896); Pallett v. Murphy, 131 Cal.
192, 63 Pac. 366 (1900); Lowe v.
Yolo Co. Consol. Water Co., 6 Cal.
App. 646, 96 Pac. 379 (1908).
Colorado.-People v. Canal Co.,
25 Colo. 202, 54 Pac. 626 (1898);
Wright v. Platte Valley Irr. Co., 27
Colo. 322, 61 Pac. 603 (1900);
Schneider v. People, 30 Colo. 493,
71 Pac. 369 (1903).
Idaho.-Wilterding v. Green, 4
Idaho, 773, 45 Pac. 134 (1896).
[331]
CHAPTER XII
CONDITIONS PRECEDENT TO SERVICE
§ 390. Nature of the conditions precedent.
Topic A. Service Must Be Asked at Proper Time
§ 391. Whether carrier must receive goods in advance.
392. How long in advance goods must be received.
393. Acceptance long in advance.
394. Goods tendered too late.
395. Passengers must come at proper time.
396. Services which may be demanded at any time.
397. Time-tables.
398. Office hours.
Topic B. Service Must Be Demanded at Proper Place
§ 399. Tender of goods to the carrier.
400. Placing goods in proper position not delivery.
401. Passengers must be upon the premises.
402. When passengers are accepted.
403. Establishment of regular stations.
404. Service at private sidings.
405. Service only obligatory within proper territory
406. Services to abutting owners.
Topic C. There Must Be Application in Proper Form
§ 407. Applicant must give notice.
408. Requisitions made in advance.
409. Effect of mere notification.
410. Signal to passenger carrier.
411. Formal application for supply.
412. Use of telegraph blanks.
Topic D. Service Must Be Demanded in Proper Manner
§ 413. Goods must be tendered properly packed.
414. Freight loaded by shipper.
[332]
CONDITIONS PRECEDENT
[ § 390
§ 415. Special freight may require special tender.
416. Service upon fungible basis.
417. Proper conditions imposed upon installation.
418. Premises must be properly prepared.
419. Conditions imposed must be reasonable.
420. Improper conditions cannot be imposed.
§ 390. Nature of the conditions precedent.
When it is said that it is the duty in public service to
serve all that apply, that is rather the statement of a gen-
eral principle than of a practicable rule. In fact there
are many conditions precedent to the obligation of a par-
ticular public service company to serve a particular ap-
plicant.¹ Those who wish service must always put them-
selves in a proper position to demand service; and until
these conditions precedent are complied with, there is
no present obligation to serve such persons.2 Moreover,
as another condition precedent there must be tender of
the regular compensation, so important a condition that
it is discussed separately in the next chapter. Clearly
no public service company is bound to undertake service
except upon reasonable conditions. Indeed in most serv-
ices there are conditions precedent to be performed by
1 For instance the duty of the
common carrier of a parcel as bag-
gage is incidental to and grows out
of the contract for the transporta-
tion of one as a passenger, and does
not arise until the person tendering
such parcel for carriage has pro-
cured the right of transportation as
a passenger. Until such right has
been procured, a common carrier is
under no duty whatsoever to re-
ceive a parcel from anyone to be
transported as baggage. Atlanta
Terminal Co. v. American Baggage
& Transfer Co., 125 Ga. 677, 54 S.
E. 711 (1906).
2 A carrier cannot be made liable
for the loss or destruction of goods,
unless they have been tendered to
and accepted by it for transporta-
tion. Thus where the proprietor of
a tent show loaded part of his outfit
in the afternoon into a car furnished
by the carrier, retaining the balance
for use the following night, it was
held that there had been no tender
to and acceptance by the carrier for
transportation so as to make it
liable as a carrier for its loss by ac-
cidental fire. Burrowes v. Chicago,
B. & Q. Ry. Co. (Neb.), 126 N. W.
1084 (1910).
[333]
§ 391]
PUBLIC SERVICE CORPORATIONS
the particular applicant before a present duty is owed to
him, even though he wishes a service in respect to which
there has been public profession.
Topic A. Service Must Be Asked at Proper Time
§ 391. Whether carrier must receive goods in advance.
It seems to have been the rule of the early cases that a
carrier, whether by land or sea, could not be compelled
to receive goods or freight until he was ready to set out,
even if it happened that he had storage facilities or his
ship was moored in the port.¹ In modern times, however,
it is usually held necessary for the railroads at least, to
provide facilities for receiving goods in advance of the
departure of their freight trains; and indeed it is now
usual for steamboats to have their special wharf prem-
ises fitted for the reception of freight; and the carrier in
either case may be compelled to receive freight in advance.
This is said directly in a leading case: "It is the duty of
a public carrier to provide reasonable facilities for the
acceptance of property for transportation and to trans-
port the same with due diligence, and this statute pre-
scribes the penalty for failure to do this. The carrier
undoubtedly has the right to prescribe reasonable rules
and regulations for the delivery to its agents of property
for transportation, but it has no right to impose unusual
conditions upon a shipper or to require him to undergo
unusual expense or trouble in delivering his goods for
transportation. It must accept goods tendered for im-
mediate transportation and provide reasonable facilities
¹ Lane v. Cotton, 1 Ld. Rey. 646,
652 (1701), quoting Morse v. Slue,
1 Ventr. 190.
No facilities provided at a railway
station for storing baggage before
the passenger (or his agent) shall
request that it shall be checked, dis-
playing proper tickets. Atlanta
Terminal Co. v. American Baggage
& T. Co., 125 Ga. 677, 54 S. E. 711
(1906).
[334]
CONDITIONS PRECEDENT
[ § 392
for taking care of the same during temporary delays while
awaiting shipment.
99 1
§ 392. How long in advance goods must be received.
This obligation to receive goods in advance is only for
a reasonable period.2 It still remains true that the car-
rier is not a warehouseman but a carrier by profession.
To go into this matter in more detail, there are conflicting
decisions as to whether an express company can enforce
a rule that money will not be received on any day after
the departure of the trains carrying express matter, the
idea being that currency should not ever be kept in the
local office overnight. In the North Carolina case,³ the
decision was against this regulation of the company, on
the general principle that carriers to-day must for the
convenience of their patrons accept goods in advance.
In the Federal case it was held without denying the gen-
eral principle, that in this peculiar situation the rule was
a reasonable one. It is difficult to choose between these
two cases, for since it is a question of reasonableness in
a particular case, it is a matter of individual judgment.
But the later case is scientific in making the inquiry solely
whether the rule established by the company for the con-
duct of its business is so unreasonable that the court will
feel that it must declare it outrageous; and judged by
this standard very probably the rule should stand.5
1
4
¹ Quoted from St. Louis, I. M. &
So. Ry. Co. v. State, 84 Ark. 150
(1907).
But this obligation is only to pro-
vide requisite facilities for perform-
ing the service of carriage. It is no
part of the business of a railroad
to provide a grain elevator where
grain may be stored in large quanti-
tics until the owners decide to ship.
People v. Illinois Cent. Ry. Co., 233
Ill. 378, 84 N. E. 368 (1908).
2 Bouker v. Long Island Ry. Co.,
89 Hun, 202, 35 N. Y. Supp. 23
(1895).
3
Alsop v. Southern Exp. Co., 104
N. C. 278, 10 S. E. 297, 6 L. R. A.
271 (1889).
4 Platt v. Lecocq, 158 Fed. 723,
85 C. C. A. 621, 15 L. R. A. (N. S.)
558 (1907).
5 See also Palmer v. London &
Southern Ry. Co., L. R. 1 C. P. 588
(1866).
[335]
§ 393]
PUBLIC SERVICE CORPORATIONS
§ 393. Acceptance long in advance.
As the carrier is not obliged to accept goods tendered
to him upon the basis that they are to be held by him
for any considerable time before their transportation is
begun, he may make his own stipulation as to the basis
upon which he will consent to receive them. His duty is
to take and carry, not to receive and store. If he is not
tendered the goods for immediate transportation he does
not receive them in his capacity as a common carrier.
He is in such cases no more than a private warehouseman
liable only for due care, not as a carrier liable as an in-
surer. When therefore goods are received by the carrier,
not for immediate transportation but to be held until
further orders of the shipper, the carrier holds the goods,
pending such orders, as a warehouseman, not as a carrier.¹
And so where the shipping directions are that the goods
shall be sent at a later time the carrier until such time
holds the goods as a mere warehouseman.2 On the other
hand, if the goods have been taken by the carrier for im-
¹ Arkansas.-Little Rock & Fort
Smith Ry. Co. v. Hunter, 42 Ark.
200 (1883).
Massachusetts.-Barron
v. El-
dredge, 100 Mass. 455, 1 Am. Rep.
126 (1868).
Michigan. Michigan Southern &
N. I. R. R. Co. v. Shurtz, 7 Mich.
515 (1859).
New Hampshire.-Moses v. Bos-
ton & M. R. R. Co., 24 N. H. 71,
55 Am. Dec. 222 (1851).
New York.-Rogers v. Wheeler,
52 N. Y. 262 (1873).
Ohio.-Pittsburg, C. & St. L. Ry.
Co. v. Barrett, 36 Ohio St. 448
(1881).
Wisconsin.-Schmidt v. Chicago
& N. W. Ry. Co., 90 Wis. 504, 63
N. W. 1057 (1895).
England.-White v. Humphery,
11 Q. B. 43 (1847).
2 Massachusetts.-Fitchburg & W.
R. R. Co. v. Hanna, 6 Gray, 539, 66
Am. Dec. 427 (1856).
Michigan. Michigan So. & N.
I. R. R. Co. v. Shurtz, 7 Mich. 515
(1859).
Mississippi.-Illinois Cent. R. R.
Co. v. Troustine, 64 Miss. 834, 2 So.
255 (1887).
Missouri.-Goodbar v. Wabash
Ry. Co., 53 Mo. App. 434 (1893).
New York.-Spade v. Hudson R.
R. R. Co., 16 Barb. 383 (1853).
North Carolina.-Basnight v. At-
lantic & N. C. R. R. Co., 111 N. C.
592, 16 S. E. 323 (1892).
Canada.-Ham v. McPherson, 6
Upp. Can. Q. B. (O. S.) 360 (1871).
[ 336]
CONDITIONS PRECEDENT
[ § 394
mediate transportation he then becomes liable as a com-
mon carrier although transportation has not begun.¹ If
the carrier delays transportation thereafter to suit his
own convenience that is no affair of the shipper. But if
there is an agreement whereby the goods placed in the
carrier's care are to be held until he chooses to begin trans-
portation the rule is otherwise.2
§ 394. Goods tendered too late.
On the other hand, the carrier by rail may require that
freight be delivered to it at a time sufficiently prior to the
departure of its trains to enable it to make preparations
for shipment. Thus, in Frazier v. Kansas City, St. Joe
& Council Bluffs Railway,' where a complaint was made
against a railroad for not forwarding freight offered, it
was proved that the cattle in question had not arrived
at the station when the train was being loaded, but that
¹ This general principle is shown
by the following cases:
United States.-St. Louis, I. M. &
S. Ry. Co. v. Knight, 122 U. S. 79,
30 L. ed. 1077, 7 S. Ct. 1132 (1887).
Connecticut.—Merriam v. Hart-
ford & N. H. R. R. Co., 20 Conn.
354, 52 Am. Dec. 344 (1850).
Illinois.-Grand Tower M: &
Transp. Co. v. Ullman, 89 Ill. 244
(1878).
Indiana.---Louisville, N. A. & C.
Ry. Co. v. Godman, 104 Ind. 490, 4
N. E. 163 (1885).
Minnesota.—Shaw v. Northern
Pac. R. R. Co., 40 Minn. 144, 41 N.
W. 548 (1889).
Missouri.-Mason
V. Missouri
Pac. Ry. Co., 25 Mo. App. 473
(1887).
New Hampshire.-Moses v. Bos-
ton & Maine R. R. Co., 24 N. H. 71,
55 Am. Dec. 222 (1851).
New York.-Ames v. Fargo, 114
App. Div. 666, 99 N. Y. Supp. 994
(1906).
Pennsylvania.—Clarke v. Needles,
25 Pa. St. 338 (1855).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Trawick, 80 Tex. 270, 15 S. W.
568, 18 S. W. 948 (1891).
2 Fitchburg & W. R. R. Co. v.
Hanna, 6 Gray (Mass.), 539, 66 Am.
Dec. 427 (1856), semble.
See also Fort Worth & D. C. Ry.
Co. v. Riley (Tex. App.), 1 S. W.
446 (1886).
3 48 Ia. 571 (1878).
Cronkite v. Wells, 32 N. Y. 247
(1865), accord.
But see St. Louis, I. M. & S. Ry.
Co. v. Ozier, 86 Ark. 179, 110 S. W.
593, 17 L. R. A. (N. S.) 327 (1908),
where the cattle were held near
by at the request of the station
agent.
22
[ 337 ]
§ 395]
PUBLIC SERVICE CORPORATIONS
the shipper had sent ahead and requested that the train
be held until he could get his cattle to the station and
load them; it was decided that the railroad was not liable,
Mr. Justice Day said: "A delay of a few minutes at one
station might occasion a corresponding delay of every
train on the line of road; and even result in accidents
destructive of property and life. No person desiring to
become a passenger upon a train could rightfully demand
a delay of one minute to enable him to reach the train
and get on board. Upon what principle, then, can these
plaintiffs demand damages because the defendant's train
did not wait until they could drive their hogs into defend-
ant's yard, load four cars, count them, have way-bill made
out, shipping contract signed, and the hogs placed in the
train?"
99 1
§ 395. Passengers must come at proper time.
A passenger also must present himself for carriage and
enter the train at the proper time, neither too early nor
too late. He cannot force himself on the railroad as a
passenger by entering the car prematurely. Thus, he
does not become a passenger by entering the car before
it has been placed in a position in which passengers are
to be received, or by entering the car, even if it is at the
2
¹ In Chicago, R. I. & P. Ry. Co.
v. Risley Bros. Co. (Tex. Civ.
App.), 119 S. W. 897 (1909), it was
held that one who had stone which
he wished to pass through his
crusher into cars was not one ten-
dering freight for shipment.
A requirement that in order to
have a car-load shipment go forward
the same day the goods must be
delivered before a certain hour will
govern unless it is waived. Central
of Ga. Ry. Co. v. Butler Marble &
G. Co. (Ga.), 68 S. E. 775 (1910).
See Wilder v. St. Johnsbury &
L. C. R. R. Co., 66 Vt. 636, 30 Atl.
41 (1891), where although prepara-
tions had been made for shipment
there had not been any tender as yet.
2 United States.-Farley v. Cin-
cinnati, H. & D. R. R. Co., 108 Fed.
14, 47 C. C. A. 156 (1901).
Georgia.—Curry v. Georgia M. &
G. R. R. Co., 92 Ga. 293, 18 S. E.
422 (1893).
Missouri.-Archer v. Union Pa-
cific Ry. Co., 110 Mo. App. 349
(1909).
[ 338 ]
CONDITIONS PRECEDENT
[ § 396
proper position at the station, if it is not yet ready for
passengers.¹ Similarly, a person who reaches a train
after it begins to move has no right to be received, and
if he attempts to board he is not a passenger.2 In passing
upon exceptions in a case of this sort the governing prin-
ciple was stated by the South Carolina court thus: "The
railroad company owes no duty to a belated passenger
to stop its train in any other manner than that required
by the statute. A contrary doctrine would tend to dis-
arrange the schedule of the railroad company, and thus
enhance the danger to the travelling public." 3
§ 396. Services which may be demanded at any time.
There are certain services which, it seems, may properly
be demanded at any time of the day or night. The inn-
keeper particularly cannot refuse to receive a traveler
because he comes late at night-that is the very time
when the weary wayfayer needs the protection of the
inn. Similarly it is generally held that ferrymen could
not refuse to take travelers over after nightfall.5 And
this would doubtless be true of turnpikes and toll bridges.
4
1 Alabama.-Brown v. Scarboro,
97 Ala. 316, 12 So. 289 (1893).
North Carolina.--Hodges v. New
Hanover Transit Co., 107 N. C. 576,
12 S. E. 597 (1890); Tillett v.
Lynchburg & D. R. R. Co., 115 N.
C. 662, 20 S. E. 480 (1894).
2 Illinois. Illinois Cent. R. R.
Co. v. O'Keefe, 168 Ill. 115, 48 N.
E. 294, 61 Am. St. Rep. 68 n., 39
L. R. A. 148 (1897).
Massachusetts.-Merrill v. East-
ern R. R. Co., 139 Mass. 238, 1 N.
E. 548, 52 Am. Rep. 705 (1885).
Mississippi.-Georgia Pac. Ry.
Co. v. Robinson, 68 Miss. 643, 10
So. 60 (1891).
V.
3 South Carolina.-Pickett
Southern Ry. Co., 69 S. C. 445, 48
S. E. 466 (1904), citing Creech v.
Char. & West Car. Ry. Co., 66 S. C.
528, 45 S. E. 86 (1903).
But in Hickinbottom v. Delaware,
L. & W. R. R. Co., 15 N. Y. St.
Rep. 11, 54 Sup. Ct. 639 (1888), it
was held that if a passenger presents
himself before the train starts, it is
the duty of the railroad to hold the
train until he gets on.
4 Rex v. Ivens, 7 Car. & P. 213
(1835).
5 Pate v. Henry, 5 Stew. & P. 101
(1833).
[ 339 ]
§ 397]
PUBLIC SERVICE CORPORATIONS
The necessities and accidents of travel are such that those
who cater to travelers must expect to serve at unusual
hours at times. To pursue this point farther, there are
various other services than those just mentioned in which
those who conduct them must be ready to give service
at all times-day and night, secular days and holidays.
Water supply and sewerage service are two examples as
to which there can be no question. But even as to mu-
nicipal services of this sort there may be communities
where the business is so small, relatively, that the public
cannot fairly demand continuous service. Thus in the
smaller towns the electric station is sometimes not oper-
ated in the daytime; and there are some communities
where telephone service is discontinued at night.
§ 397. Time-tables.
It is of course very common to find in the conduct of
a public service regulations made which will govern the
times at which service will be rendered. Thus common
carriers of passengers very generally publish their tables
setting forth the intervals at which they will perform
their service, and these regulations will be supported un-
less they are unreasonable. What is reasonable in this
respect is much discussed later. It is sufficient at this
stage to point out that such regulations, if not unreason-
able, govern the situation, and excuse the proprietors
from performance at other times. As this matter is fully
1 See particularly:
Indiana.—Ohio & M. Ry. Co. v.
Swarthout, 67 Ind. 567, 33 Am.
Rep. 104 (1879).
Massachusetts.-Sears v. Eastern
R. R. Co., 14 Allen, 433, 92 Am.
Dec. 780 (1867).
Michigan.-Van Camp v. Michi-
gan Cent. R. R. Co., 137 Mich. 467,
100 N. W. 771 (1904).
v.
New Hampshire.-Gordon
Manchester & L. R. R. Co., 52 N.
H. 596, 13 Am. Rep. 97 (1873).
Oklahoma.-Noble v. Atchison,
T. & S. F. R. R. Co., 4 Okla. 534, 46
Pac. 483 (1896).
Wisconsin.-Schiffler v. Chicago
& N. W. Ry. Co., 96 Wis. 141, 71
N. W. 97, 65 Am. St. Rep. 35
(1897).
[ 340]
CONDITIONS PRECEDENT
[ $ 398
treated in another connection a cross reference to the
discussion will be sufficient here.¹
$398. Office hours.
In many public employments office hours are estab-
lished to which the public profession is limited. Whether
these regulations are reasonable is again a question for
discussion later. It is well settled, for instance, that a
telegraph company may insist upon its office hours, pro-
vided the time within which messages will be received
is not made unduly short.2 If it appears that the hours
established are not unreasonable, the companies will be
excused from serving at other times, and the public must
confine its demands to the established hours if these have
been made known with proper publicity. The same law
prevails in common carriage, as will be seen. Thus a rail-
road may establish reasonable hours for having its wait-
ing rooms open. And it may have reasonable rules as to
when its ticket offices will be open."
4
¹ See generally § 872, infra.
2 See particularly:
Arkansas.-Western Union Tele-
graph Co. v. Love Banks Co., 73
Ark. 205, 83 S. W. 949 (1904).
Indiana.—Western Union Tele-
graph Co. v. Harding, 103 Ind. 505,
3 N. E. 172 (1885).
Kentucky.-Western Union Tele-
graph Co. v. Crider, 107 Ky. 600, 54
S. W. 963 (1900).
North Carolina.-Carter v. Tele-
graph Co., 141 N. C. 374, 54 S. E.
274 (1906).
South Carolina.-Bonner v. West-
ern Union Telegraph Co., 71 S. C.
303, 51 S. E. 117 (1904).
West Virginia.-Davis v. Western
Union Telegraph Co., 46 W. Va. 48,
32 S. E. 1026 (1899).
5
3
3 See generally § 874, infra.
4 See particularly:
United States.-Grimes v. Penn-
sylvania R. R. Co., 36 Fed. 72
(1888).
Alabama.-Alabama G. S. Ry.
Co. v. Arnold, 84 Ala. 159, 4 So.
359, 5 Am. St. Rep. 354 (1887).
Indiana.-Draper v. Evansville
& T. H. R. R. Co., 165 Ind. 117, 74
N. E. 889 (1905).
Illinois. Chicago & A. Ry. Co.
v. Walker, 118 Ill. App. 397 (1905).
North Carolina.-Phillips
Southern Ry. Co., 124 N. C. 123,
32 S. E. 388 (1899).
V.
Oregon.-Abbot v. Oregon Ry. &
Nav. Co., 46 Oreg. 549, 80 Pac. 1012
1 L. R. A. (N. S.) 851 (1905).
5 See generally § 873, infra.
[ 341]
§ 399]
PUBLIC SERVICE CORPORATIONS
Topic B. Service Must Be Demanded at Proper Place
§ 399. Tender of goods to the carrier.
3
By the general principle under discussion a carrier is
not liable for refusing to take goods unless they have
been actually tendered ¹ or at least unless they are in the
process of being tendered. But the tender or the attempt.
to tender will subject the carrier to no liability unless
the tender is made at a proper place. Usually the place
which the carrier has designated in the particular instance
must be resorted to, as where a carrier gave orders that
coal should only be received at a certain siding. It
should be added that as the carrier may make regula-
tions with regard to its performance of its obligations,
it may refuse to take goods except at the stations which
it has established. Tender at an unusual place will
not be sufficient, as where goods are deposited near to
the right of way of the railroad and demand made that
the goods should be taken up where they lie. But a
railroad may actually consent to accept the goods, thus
in one case where the shipper in accordance with an
4
1 Little Rock & F. S. Ry. Co. v.
Conatser, 61 Ark. 560, 33 S. W.
1057 (1896).
2 Houston, E. & W. T. Ry. Co. v.
Campbell, 91 Tex. 551, 45 S. W. 2,
43 L. R. A. 225 (1898).
3 Robinson v. Baltimore & O.
R. R. Co., 129 Fed. 753, 64 C. C.
A. 281 (1904). See also Harp v.
Choctaw, O. & G. R. R. Co., 125
Fed. 445, 61 C. C. A. 405 (1903).
• Weeks v. New Orleans, S. F. &
L. Ry. Co., 40 La. Ann. 800, 5 So.
72, 8 Am. St. Rep. 560 (1888).
See also Kellogg v. Suffolk & C.
Ry. Co., 100 N. C. 158, 5 S. E. 379
(1888).
5 Arkansas.-St. Louis, I. M. &
5
S. Ry. Co. v. Lee, 69 Ark. 584, 65
S. W. 99 (1901).
Georgia.-Wilson v. Atlanta &
Charlotte Ry. Co., 82 Ga. 386
(1889).
Mississippi.—Tate v. Yazoo &
M. V. R. R. Co., 78 Miss. 842, 29
So. 392, 84 Am. St. Rep. 649 (1901).
New York.-Spade v. The Hud-
son River R. R. Co., 16 Barb. 383
(1853).
South Carolina.-Brown v. At-
lanta & C. A. L. Ry. Co., 19 S. C. 39.
Texas.-Yoakum v. Dryden (Tex.
Civ. App.), 26 S. W. 312 (1894).
6 St. Louis, I. M. & So. Ry. Co. v.
Wynne H. & C. Co., 81 Ark. 373, 99
S. W. 375 (1907).
[342]
CONDITIONS PRECEDENT
[ § 400
arrangement with the railroad, had wood upon a siding
ready for transportation, some of which was already in
the custody of the railroad, it was properly held that the
shipper could recover for the damage caused by the
failure to take the remainder of the shipment.¹ And in
another case it was rightly considered that a sufficient
tender of stock to a carrier for shipment had been made
by notifying the carrier of the need of cars, and keeping
the stock within a short distance of the station in obe-
dience to instructions of the station agent.2 After a car
has been loaded at a place designated by the railroad, the
shipper having done everything which the railroad has re-
quired it cannot refuse to take it, because it would not
usually be compelled to take freight at that point unless
it had waived the condition. Moreover, the actual tender
of the freight is waived altogether where the railroad has
refused to enter an order for cars.4
3
§ 400. Placing goods in proper position not delivery.
Similarly it is not a sufficient delivery to the carrier
merely to place the goods in a place where he may con-
4 Atlantic C. L. Ry. Co. v.
Geraty, 166 Fed. 10, 91 C. C. A. 602,
20 L. R. A. (N. S.) 310 (1908).
See also Georgia S. & F. Ry. Co.
v. Marchman, 121 Ga. 235, 48 S. E.
961 (1904).
¹ Durden v. Southern Ry. Co., 58
S. E. 299 (Ga. Ct. App., 1907).
See also Arthur v. Texas & P. Ry.
Co., 204 U. S. 505, 51 L. ed. 590, 27
Sup. Ct. 338 (1907).
2 See also St. Louis, I. M. & S.
Ry. Co. v. Ozier, 86 Ark. 179, 110
S. W. 593, 17 L. R. A. (N. S.) 327
(1908). But see Louisville, N. A. &
C. Ry. Co. v. Flanagan, 113 Ind.
488, 14 N. E. 370, 3 Am. St. Rep.
674 (1887).
3 W. B. Garrison Co. v. Southern
Ry. Co., 150 N. C. 575, 64 S. E. 578
(1909).
While goods are being loaded
upon a car upon a siding by the
shipper the railroad cannot be re-
garded as having assumed the lia-
bility of a common carrier as yet.
Burrowes v. Chicago, B. & Q. R. R.
Co., 85 Neb. 497, 123 N. W. 1028
(1909).
But after a railroad has actually
taken possession of goods between
stations and transportation has be-
gun it is of course liable as a com-
mon carrier. Santa Fe, P. & P. Ry.
Co. v. Grant Bros. C. Co. (Ariz.),
108 Pac. 467 (1910).
[ 343 ]
§ 401 ]
PUBLIC SERVICE CORPORATIONS
6
4
2
veniently get them,¹ as at the wharf from which he sails,²
or the inn from which his coach starts,³ the station from
which his train starts, or a warehouse on the premises."
There must be notification to the carriers that the goods
have been so deposited, and following that something by
way of acceptance. Of course the case is correct which
held that a delivery to a railroad warehouse, about dark,
and after it was closed and locked for the night by plain-
tiff's agent, by opening the upper door and thereby
putting the goods in, there being no one in charge, did
not show such delivery as would charge the railroad."
One of the leading cases on this subject is hardly less
plain. A cutter was placed upon a platform of a freight
station and the proper agent notified, but it was care-
lessly placed so that it projected over the tracks and
was struck and injured by a passing train. The court
held that the delivery was not as perfect and complete as
it should have been, and that the carrier had never come
into possession of the cutter.³
§ 401. Passengers must be upon the premises.
A carrier of passengers owes no duty to persons, what-
ever their intentions, who have not presented themselves
at his premises. Intending passengers cannot force a
railroad to accept them except at the place which the
9
¹ O'Bannon v. Southern Exp. Co.,
51 Ala. 481 (1874).
2 Buckman v. Levi, 3 Camp. 414
(1813).
3 ³ Selway v. Holloway, 1 Ld.
Ray. 46 (1695).
4 Slim v. Great Northern Ry.
Co., 14 C. B. 647 (1854).
'Spofford v. Pennsylvania R. R.
Co., 11 Pa. Super. Ct. 97 (1899).
6 Bowie v. Balt. & Ohio R. R.
Co., 1 MacArthur, 609 (1874).
Spofford v. Pennsylvania R. R.
Co., 11 Pa. Super. Ct. 97 (1899).
8 Grosvenor v. New York Cent.
R. R. Co., 39 N. Y. 34 (1868).
• Nashville Street Ry. Co. v.
Griffin, 104 Tenn. 81, 57 S. W. 153,
49 L. R. A. 451 (1900).
See also Kroeger v. Seattle Elec-
tric Co., 37 Wash. 544, 79 Pac. 1115
(1905), people waiting at the car
barn.
[344]
CONDITIONS PRECEDENT
[ § 402
railroad has designated.¹ One walking along the public
street toward the station with the intention of taking
the train is certainly not yet a passenger. 2 He has done
nothing to notify any of the officers or agents of the
company that he was even a prospective passenger.
Nor
is one a passenger who is proceeding across the track
directly from the street to the train. In such a case the
intending passenger must at least have been received
on the premises of the company before proceeding upon
the tracks if he is to be regarded as a passenger. One
who, merely in order to reach in the quickest way the
platform from which his train starts, crosses the carrier's
tracks on his way from the sidewalk to the train, cannot
be regarded as a passenger. But an intending passenger
who has bought a ticket, or is prepared to pay fare, and
is passing over tracks of the company, under direction of
its servants, or according to custom, toward the train
which he is about to take, has been held to be a passenger.5
These are representative cases; no attempt is made to
marshal the many cases upon these points.
4
§ 402. When passengers are accepted.
The relation of carrier and passenger may arise before
actual transportation has begun. A person who has
entered a vehicle which is ready to start becomes a pas-
1
¹ Spannagle v. C. & A. R. R. Co.,
31 Ill. App. 460 (1889).
See also Smith v. Birmingham
Ry., L. & P. Co., 147 Ala. 702, 41
So. 307 (1906), boarding car be-
tween stations.
2 Southern Ry. Co. v. Smith, 86
Fed. 292, 30 C. C. A. 58, 40 L. R. A.
746 (1898):
3 June v. Boston & Albany R. R.
Co., 153 Mass. 79, 26 N. E. 238
(1891).
4 Illinois.—Chicago & E. I. R. R.
Co. v. Jennings, 190 Ill. 478, 60 N.
E. 818, 54 L. R. A. 827 (1901).
Massachusetts.-Webster v. Fitch-
burg R. R. Co., 161 Mass. 298, 37
N. E. 165, 24 L. R. A. 521 (1894).
5 Iowa.-Allender v. Chicago, R.
I. & P. R. R. Co., 37 Ia. 264
(1873).
Massachusetts.-Warren v. Fitch-
burg R. R. Co., 8 Allen, 227, 85 Am.
Dec. 700 (1864).
[345]
§ 403 ]
PUBLIC SERVICE CORPORATIONS
senger, though the vehicle has not yet started.¹ So one
who is on a steamboat moored to a wharf is a passenger,
though the boat has not yet started.2 Those who are
in the waiting room of a railroad station, waiting to take
the carrier's car, are usually said to be passengers. 3
The essential elements are summarized thus in a recent
case. "A person intending to become a passenger must
go to the station at a reasonable time before the time
fixed for the departure of the train upon which he intends
to take passage in a proper manner, and there, either by
the purchase of a ticket or in some other manner, indicate
to the carrier his intention to take it.'
4
""
§ 403. Establishment of regular stations.
In the absence of action of the company establishing
stations, and making it a condition of receiving persons
or goods that they should present themselves or be
offered at a station, it would seem clear that the carrier
could not refuse a tender made at any point on his route.
Such was undoubtedly the case with the earlier carriers,
the wagoners, the coachmen; and in fact it remains so
as to such carriers. But in the operation of modern
railroads the establishment of stations was found neces-
sary from the first. And indeed regular stopping places
& M. V. Ry. Co. (Miss.), 52 So. 355
(1910).
¹ New York.-Gyle v. Joline, 120
N. Y. Supp. 761 (1910).
England.-Massiter v. Cooper, 4
Esp. 260 (1803).
2 United States.-Hrebrik v. Carr,
29 Fed. 298 (1886).
New York.-Dougherty v. New
York Cent. & H. R. R. R. Co., 86
N. Y. Supp. 746 (1904).
3 Indiana.-Pere Marquette R. R.
Co. v. Strange, 171 Ind. 160, 84 N.
E. 819, 20 L. R. A. (N. S.) 1041
(1908).
Mississippi.-Metcalf v. Yazoo
New York.-Gordon v. Grand St.
& N. R. R. Co., 40 Barb. 546 (1863).
Virginia.-Norfolk & W. R. R.
Co. v. Galliher, 89 Va. 639, 16 S. E.
935 (1893).
4 Devens, J., in Heinlein v. Bos-
ton & P. R. R. Co., 147 Mass. 136,
16 N. E. 698, 9 Am. St. Rep. 676
(1888).
See also the language in Riley v.
Vallejo Ferry Co., 173 Fed. 330
(1909).
[346]
CONDITIONS PRECEDENT
[ § 404
after some experience have been found to be necessary
in the case of street railways. These stations should of
course be established at reasonable intervals if this
regulation is to stand; whether there has been reason-
able provision in this respect is discussed elsewhere.¹
But granted that stations have been properly established,
it is a reasonable regulation that passengers shall pre-
sent themselves and freight shall be tendered at such
stations and nowhere else.2
§ 404. Service at private sidings.
Generally speaking one who has freight to ship must
bring it to the established freight stations. No matter
how large the business of a particular shipper may be, he
cannot insist upon having cars handled from his private
switch. And certainly in any particular case the rights
of the railroad are so far paramount that a showing that
3
¹ See generally §§ 804-814, passim.
2 See particularly:
United States.-Louisville & N.
R. R. Co. v. Central S. Y. Co., 212
U. S. 132, 53 L. ed. 441, 29 Sup. Ct.
246 (1909).
Arkansas. St. Louis, I. M. & S.
Ry. Co. v. Lee, 69 Ark. 584, 65 S. W.
99 (1901).
Indiana.-Louisville Ry. Co. v.
Flanagan, 113 Ind. 488, 14 N. E.
370, 3 Am. St. Rep. 674 (1887).
Iowa. Frazier & Co. v. Kansas
City, St. J. & C. B. Ry. Co., 48 Ia.
571 (1878).
Louisiana.-Weeks v. New Or-
leans, S. F. & L. Ry. Co., 40 La.
800, 5 So. 72, 8 Am. St. Rep. 560
(1888).
Mississippi.-Kansas City, M. &
B. Ry. Co. v. Lilly (Miss.), 8 So.
644 (1891).
North Carolina.-Kellogg v. Suf-
folk, etc., Ry. Co., 100 N. C. 158,
5 S. E. 379 (1888), semble.
South Carolina.-Brown v. At-
lanta & C. A. L. Ry. Co., 19 S. C.
39 (1882).
As to the situation in regard to
street railways at the present time,
see:
V.
Massachusetts.-Lockwood
Boston Elevated Ry. Co., 200 Mass.
537, 86 N. E. 934 (1909).
Tennessee.-Nashville Street Ry.
Co. v. Griffin, 104 Tenn. 81, 57 S.
W. 153, 49 L. R. A. 451 (1900).
3 United States.-Bedford B. G. S.
Co. v. Oman, 134 Fed. 441 (1904).
Georgia.-Darden V. Southern
Ry. Co., 2 Ga. App. 66, 58 S. E. 299
(1907).
Michigan.-Mann v. Pere Mar-
quette R. R. Co., 135 Mich. 210, 97
N. W. 721 (1903).
South Carolina.-Mays v. Sea-
[347]
§ 405]
PUBLIC SERVICE CORPORATIONS
the operation of a switch connection might be dangerous
will be fatal to the application.¹ There are extreme cases,
as will be seen later, where it would be unreasonable to en-
force this usual regulation that all must bring their freight
to the stations. For peculiar shipments, such as coal and
ore, grain and oil-to give four examples 2-special accept-
ance along the tracks at private sidings is apparently neces-
sary. In recent times the attempt is being made to extend
the obligation to permit switch connections by legislation,
but as will be seen later much of this is unconstitutional.³
§ 405. Service only obligatory within proper territory.
It has already been pointed out in another connection
board Air L. Ry. Co., 75 S. C. 455
(1906).
Discussed generally in § 814.
1 United States.-Jones v. New-
port N. & M. V. R. R. Co., 65 Fed.
736, 31 U. S. App. 92, 13 C. C. A.
95 (1895); Mercantile Trust Co. v.
Columbus S. & H. R. R. Co., 90
Fed. 148 (1898).
North Carolina.-Industrial Sid-
ing Case, 140 N. C. 239, 52 S. E.
941 (1905).
2 United States.-Harp v. Choc-
taw, O. & G. R. R. Co., 125 Fed.
445, 61 C. C. A. 405 (1903), col-
lieries; Olanta Coal M. Co. v.
Beech Creek R. R. Co., 144 Fed.
150 (1906), collieries.
Illinois.-Vincent v. Chicago &
A. R. R. Co., 49 Ill. 33 (1868), grain
elevators; Chicago & N. W. Ry. Co.
v. People, 56 Ill. 365 (1870), grain
elevators.
Iowa.-Richmond v. Dubuque &
Sioux City R. R. Co., 26 Ia. 191
(1868), grain elevators.
Kentucky.-Bedford - Bowling
Green Stone Co. v. Oman, 115 Ky.
369, 73 S. W. 1038, 24 Ky. L. Rep.
2274 (1903), quarries.
Nebraska.-Roby v. State ex rel.
Farmers' G. & L. S. Co., 76 Neb.
450, 107 N. W. 766 (1906), grain
elevators.
Pennsylvania.-Continental Coal
Co. v. Pennsylvania R. R. Co., 13
Pa. Dist. Ct. 702 (1904), collieries.
Discussed generally in § 816.
3 United States.—Missouri Pac.
Ry. Co. v. Nebraska, 164 U. S. 403,
41 L. ed. 489, 17 Sup. Ct. 130 (1896).
Arkansas.-St. Louis, I. M. & So.
Ry. Co. v. Wynne H. & C. Co., 81
Ark. 373, 99 S. W. 375 (1907).
Louisiana.-Railroad Commis-
sion of La. v. Kansas City So. Ry.
Co., 111 La. 133, 35 So. 487 (1903).
North Carolina.-Industrial Sid-
ing Case, 140 N. C. 239, 52 S. E. 941
(1905).
South Carolina.-Mays v. Sea-
board Air Line Ry. Co., 75 S. C.
455 (1906).
Washington.-Northwestern W.
Co. v. Oregon Ry. & Nav. Co., 32
Wash. 218, 73 Pac. 388 (1903).
[348]
CONDITIONS PRECEDENT
[ § 406
that the obligation of a company serving a community
has its limitations. One demanding a household service,
such as water, gas, electricity or telephone, of a company
must show that his premises are located within the terri-
tory which the company has professed to serve, unless
he can show that the territorial limits fixed by the com-
pany in question are unreasonable in view of all the
circumstances. Here again the company may waive this
condition in particular cases and be subject in that serv-
ice to the liabilities resting upon those engaged in pub-
lic service without, however, becoming obliged to serve
others.2
§ 406. Services to abutting owners.
That the supplying companies are under a general
obligation to supply all householders living within the
district which the company has professed to serve is
therefore plain. But there are conditions precedent to
these services, also, which it will be reasonable for the
company to impose, under the circumstances. The serv-
ice of such householders is undertaken at the premises,
Discussed generally in §§ 818,
819.
¹ See generally §§ 373-380, pas-
sim.
2 See particularly:
United States.-Cumberland Tele-
phone Co. v. Kelly, 160 Fed. 316,
87 C. C. A. 268 (1908).
Connecticut.-Town of West Hart-
ford v. Board of Water Commis-
sioners, 68 Conn. 323, 36 Atl. 786
(1896).
Idaho.-Pocatello Water Co. v.
Standley, 7 Idaho, 155, 61 Pac. 518
(1900).
Massachusetts.-Weld v. Gas &
Electric Light Commissioners, 197
Mass. 556, 84 N. E. 101 (1908).
New York.-Jones v. Rochester
Gas & Electric Co., 7 N. Y. App.
Div. 465, 39 N. Y. Supp. 1105
(1896).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
Pennsylvania.-Central D. & P.
Telegraph Co. v. Commonwealth,
114 Pa. St. 592, 7 Atl. 926
(1886).
West Virginia.-Charleston Nat.
Kansas.-Crouch v. Arnett, 71 Gas Co. v. Lowe & B., 52 W. Va.
Kans. 49, 79 Pac. 1086 (1905).
662, 44 S. E. 410 (1901).
[349]
§ 407 ]
PUBLIC SERVICE CORPORATIONS
1
2
and the applicant must be ready with his piping or his
wiring, as the case may be, properly arranged to receive
the supply at the outer wall. As has been seen, the sup-
ply companies undertake their service generally only to
those applicants whose premises are properly equipped
so as to receive the service in question. It seems that
the supplying company should provide the service pipe
as part of the facilities for rendering service which it is
bound to supply; 3 but there are cases to the contrary.ª
It seems also that the supply company ought to provide
the meter, but there are cases to the contrary.
5
6
Topic C. There Must Be Application in Proper Form
§ 407. Applicant must give notice.
4
Those who have goods in readiness for transportation
must notify the carrier of their desire to have their
goods transported before he will be in default for not
taking them. It has indeed been asserted by the Su-
preme Court of New York,' that a delivery in accordance
with any custom must always be accompanied by notice
to some authorized agent of the company; but this, as
will be seen, undoubtedly goes too far. This elementary
principle is further elaborated in the law of innkeeping.
The burden appears to be on the traveler to give notice
Prindiville v. Jackson, 79 Ill. 337
(1875).
1 See particularly Ferguson v.
Metropolitan Gas Light Co., 37
How. Pr. 189 (1868).
See generally § 380, infra.
2 See particularly Public Service
Corp. v. American Lighting Co., 67
N. J. Eq. 122, 57 Atl. 482 (1904).
See generally § 823, infra.
³ See particularly Bothwell v.
Consumers' Co., 13 Idaho, 568, 92
Pac. 533 (1907).
See generally § 824, infra.
4 See particularly:
See generally § 824, infra.
5 See particularly Red Star Steam-
ship Co. v. Jersey City, 45 N. J. L.
246 (1883).
See generally § 825.
See particularly Cooper v. Good-
land, 80 Kans. 121, 102 Pac. 244,
23 L. R. A. (N. S.) 410 (1909).
See generally § 825.
7 Packard v. Getman, 6 Cow.
(N. Y.) *757, 16 Am. Dec. 475 (1827).
[350]
CONDITIONS PRECEDENT
[ § 408
to the innkeeper that he desires to be received as a guest.
Thus where a person was traveling at night, and came to
an inn after it was shut up for the night, and knocked,
it was held that the innkeeper must, in order to be liable
for not admitting the guest, have heard the knocking.¹
Not only must the applicant give notice that he desires
service, but he must designate what service he desires.
Thus a passenger may be refused transportation who
asked to pay his fare says he has not decided how far he
will go.
2 And so a carrier of goods may refuse to take
parcels not properly addressed.3
§ 408. Requisitions made in advance.
Notification may properly be made in advance so
that the facilities may be at hand at the time desired.
Thus a shipper intending a considerable shipment in
car lots may apply a reasonable time in advance to the
railroad particularly requesting a certain number of cars.
in readiness for certain freight at a certain day, and at a
certain station. What is reasonable by way of notifica-
4
1 Hawthorn v. Hammond, 1 C. &
K. (Eng.) 404 (1844).
2 Fulton v. Grand Trunk Ry. Co.,
17 Upp. Can. Q. B. 428 (1858).
If the shipper's misstatements as
to the contents of a box caused the
carrier to omit the performance of
some attention which the goods re-
quired, whereby they were lost, it
would not be responsible for such
loss. St. Louis Southwestern Ry.
Co. of Texas v. Ray (Tex. Civ.
App.), 127 S. W. 281 (1910).
3 Grocery Co. v. Railroad Co.,
136 N. C. 396, 48 S. E. 801 (1904).
No excuse for refusal to receive
freight that name of station is mis-
spelled. Reid & B. v. Southern
Ry. Co., 149 N. C. 423, 63 S. E. 112
(1908).
4 See on the general principle:
Illinois.-Chicago & Alton R. R.
Co. v. Erickson, 91 Ill. 613, 33 Am.
Rep. 70 (1879); Illinois Cent. R. R.
Co. v. Bundy, 97 Ill. App. 202
(1901).
Indiana.-Lake Shore & M. S.
Ry. Co. v. Anderson, 39 Ind. App.
112, 79 N. E. 381 (1906); Pitts-
burgh, C., C. & St. L. Ry. Co. v.
Wood (Ind. App.), 84 N. E. 1009
(1908).
New York.-Tierney v. New
York C. & H. R. R. R. Co., 76 N. Y.
305 (1879).
Wisconsin.-Ayres v. Chicago &
[351]
§ 409]
PUBLIC SERVICE CORPORATIONS
tion is well brought out by a recent case,¹ where it was
held that a carrier is not required to hold at a wharf
station for a whole week a large number of cars awaiting
the arrival of a steamship. Indeed it is generally held
as to car shipments that when a shipper requires a car
at a railroad station for his exclusive use, he must
necessarily give notice to the railroad company, after
which it will have a reasonable time in which to furnish
the car. A correlative duty rests upon the railroad to
serve all applicants making proper requisitions for serv-
ice in proper order without discrimination.³
2
$409. Effect of mere notification.
It would be going to an extreme to hold as some cases
do that a deposit in the regular place for receiving goods
followed by notice to the carrier is enough to make the
carrier responsible as such, even without proof of a
special custom to that effect. But generally speaking
for a proper delivery to a carrier by mere deposit of the
Northwestern Ry. Co., 71 Wis. 372,
37 N. W. 432, 5 Am. St. Rep. 226
(1888).
¹ Di Giorgio I. & S. S. Co. v.
Pennsylvania R. R. Co., 104 Md.
693, 65 Atl. 425, 8 L. R. A. (N. S.)
108 (1906).
2 Illinois Cent. R. R. Co. v.
Bundy, 97 Ill. App. 202 (1901).
3 Ocean S. S. Co. v. Savannah L.
W. & S. Co., 131 Ga. 831, 63 S. E.
577 (1909); Merchants' & M. Tr.
Co. v. Granger & L., 132 Ga. 167,
63 S. E. 700 (1909).
The cases are very exacting as
to the requisition for service es-
pecially when the suit is for a stat-
utory penalty. Not only must the
application be within the terms of
the statute. McDuffie v. Seaboard
4
A. L. Ry. Co., 145 N. C. 397, 59
S. E. 122 (1908); Griffith v. Texas
& N. O. Ry. Co. (Tex. Civ. App.),
116 S. W. 648 (1909). But it must
not be either too general or too
specific. Simmons v. Seaboard A.
L. Ry. Co., 133 Ga. 635, 66 S. E.
783 (1909); Cox v. Missouri, K. &
T. Ry. Co., 81 Kans. 186, 106 Pac.
41 (1909); Chicago, R. I. & P. Ry.
Co. v. Risley Bros. & Co. (Tex. Civ.
App.), 119 S. W. 897 (1909); Texas
& P. Ry. Co. v. Hughes, 99 Tex.
533, 91 S. W. 567 (1906).
Rogers v. Long Island R. R.
Co., 2 Lans. (N. Y.) 269 (1869).
Anderson v. Mobile & O. R. R.
Co. (Miss.), 38 So. 661 (1905),
contra.
[ 352 ]
CONDITIONS PRECEDENT
[§ 410
1
goods in a certain place, it will be necessary to show a
custom to that effect and the giving of notice following
the deposit of the goods will usually be found to be part
of that custom. It is, however, not impossible that the
custom shown may go so far as to show acceptance by
the mere deposit without any notification at all. But
at all events the contention sometimes made that by the
deposit the carrier becomes liable as a warehouseman
from the outset and as a carrier after notification would
seem to be untenable.³
§ 410. Signal to passenger carrier.
2
In the case of passenger carriers it is not uncommon
to provide for the giving of a signal by the intending
passenger. Thus the smaller stations are often designated
by the railroad as flag stations where the signal must be
set by the passenger. The law is positive that a railroad
company is bound to stop its trains in response to proper
signals at a flag station at which the train is scheduled to
stop.¹ As street railways are operated they owe a duty
1 Alabama.—Green v. Louisville &
N. R. R. Co. (Ala.), 50 So. 937
(1909).
M
V.
Connecticut. Trowbridge
Chapin, 23 Conn. 595 (1855).
Michigan.-Wright v. Caldwell,
3 Mich. 51 (1853).
Missouri.-Holland v. Chicago,
R. I. & P. Ry. Co., 139 Mo. App.
702, 123 S. W. 987 (1910).
2 Alabama.-Montgomery & E.
Ry. Co. v. Kolb, 73 Ala. 396, 49
Am. Rep. 54 (1882).
Connecticut.-Merriam v. Hart-
ford & N. H. R. R. Co., 20 Conn.
354 (1850).
Indiana.-Evansville & T. H. R.
R. Co. v. Keith, 8 Ind. App. 57, 35
N. E. 296 (1893).
Iowa.-Green v. Milwaukee & S.
P. R. R. Co., 38 Ia. 100 (1874).
3 Yoakum v. Dryden (Tex. Civ.
App.), 26 S. W. 312 (1894). But
see Basnight v. Atlantic & N. C.
R. R. Co., 111 N. C. 592, 16 S. E.
323 (1892).
4 Georgia.-Southern Ry. Co. v.
Wallis, 133 Ga. 553, 66 S. E. 370
(1909).
Michigan.-Freeman v. Detroit,
M. & M. R. R. Co., 65 Mich. 577,
32 N. W. 833 (1887).
Mississippi.-Yazoo & M. V.
Ry. Co. v. White, 82 Miss. 120, 33
So. 970 (1903).
Texas.-San Antonio & A. P. Ry.
Co. v. Safford (Tex. Civ. App.), 48
S. W. 1105 (1898).
23
[ 353 ]
§ 411]
PUBLIC SERVICE CORPORATIONS
to the public to stop at their regular crossings on a season-
able signal, given in any intelligible way, to receive those
desiring passage.¹ Consequently, a rule of a street rail-
way company, that where its cars stop beyond the cross-
ing they will not be backed even to take a person who
has properly signaled, will not protect it from suit by an in-
tending passenger who is left behind.2 On the other hand,
in accordance with all general principles of reponsibility
which prevail generally in public service law a railroad
company is not liable to one intending to become a pas-
senger for a failure to stop a passenger train at a flag
station where the engineer and fireman in charge of the
locomotive, through no fault of their own, and while in
the exercise of due care on their part, failed to see and
obey the signal on account of the manner in which it was
given, or by reason of prevailing atmospheric conditions.³
§ 411. Formal application for supply.
It is well established that before being obliged to install
its service a supplying company, be it water, irrigation,
¹ Some cases go so far as to hold
that from the moment the signal of
the intending passenger has been
recognized by the driver the carrier
becomes liable as such. See Carr v.
Milwaukee L., H. & P. Co., 132
Wis. 662, 113 N. W. 62 (1907); and
Brien v. Bennett, 8 Car. & P. (Eng.)
724 (1839).
But most cases hold that al-
though liable for not stopping
when signaled, the street car com-
panies do not accept persons as
passengers while in the street. See
Donavan v. Hartford St. Ry. Co.,
65 Conn. 201, 32 Atl. 350 (1894),
and Chicago Union Traction Co. v.
O'Brien, 219 Ill. 303, 76 N. E. 341
(1906).
2 Jackson Electric Ry., L. & P.
Co. v. Lowry, 79 Miss. 431, 30 So.
634 (1901). Accord., Christian v.
Augusta & A. Ry. Co., (S. C.) 69
S. E. 17 (1910).
·
A railroad having a flag station
with a station agent may insist that
the station agent shall set the sig-
nal. St. Louis & S. F. Ry. Co.
v. Garner (Miss.), 51 So. 273
(1910).
A person signaling a train to stop
between stations is not entitled to
protection. Georgia Pac. Ry. Co.
v. Robinson, 68 Miss. 643, 10 So.
60 (1891).
8 Southern Ry. Co. v. Lanning,
83 Miss. 161, 33 So. 970 (1903).
[354]
CONDITIONS PRECEDENT
[ § 412
2
gas or electricity, may require the applicant to make a
regular application in such form as the company may
prescribe.¹ This will be required to be in writing almost
invariably so as to have certainty as to the requirements;
and the application must be made with sufficient par-
ticularity. But like other conditions, this may be found
to have been waived in particular cases. Thus in one of
the leading cases it was held that in an action for dam-
ages for refusal to supply the plaintiff with gas, the com-
pany could not set up as a defense the fact that such
application was not in writing, when its superintendent
had, by agreeing that the plaintiff should have gas after
he had signed the rules and regulations, waived the
regulation that the application should be in writing.³
The company cannot require the applicant to subscribe
to unreasonable regulations, such as that there shall
be access to these premises at all hours, nor to illegal
stipulations such as that the company shall not be liable
for defects in the service.5 Indeed it is doubtful whether
they can require the applicant to enter into a real con-
tract at all, the applicant having the inherent right to
the service irrespective of contract.
§ 412. Use of telegraph blanks.
6
4
It is not enough to tender a message to a telegraph
¹ California.-Price v. Riverside
L. & I. Co., 56 Cal. 431 (1880).
Kansas. Shiras v. Ewing, 48
Kans. 170, 29 Pac. 320 (1892).
Louisiana.-State v. New Or-
leans Gaslight Co., 108 La. 67, 32
So. 179 (1902).
Tennessee.-Watauga Water Co.
v. Wolfe, 99 Tenn. 429, 41 S. W.
1060, 63 Am. St. Rep. 841 (1897).
2 Bennett v. East Chester Gas-
light Co., 54 N. Y. App. Div. 74, 66
N. Y. Supp. 292 (1900); Andrews v.
North River Electric Co., 53 N. Y.
Supp. 810, 24 N. Y. Misc. Rep. 671
(1898).
³ Shephard v. Milwaukee Gas-
light Co., 11 Wis. 234 (1860).
4 Shepard v. Milwaukee Gaslight
Co., 6 Wis. 539, 70 Am. Dec. 479
(1858).
5 Dittmar v. City of New Braun-
fels, 20 Tex. Civ. App. 293, 48 S. W.
1114 (1899).
6 San Diego L. & T. Co. v. Sharp,
97 Fed. 394, 38 C. C. A. 220 (1899).
[355]
§ 412]
PUBLIC SERVICE CORPORATIONS
3
company with the request for its transmission, although
of course one must show this at least.1 One will be met
by the usual requirement by telegraph companies that
all messages tendered to them for transmission shall be
in writing upon their own blanks provided for the pur-
pose.2 It is generally agreed that the companies may make
the use of this blank a condition precedent, provided,
that they make this requirement generally known.¹
On the other hand, it is plain, upon general principles,
that the company may waive the requirement.5 Thus,
if the message is received by the operator on an ordinary
piece of paper from a person not knowing of this rule,
and the charges for transmission are paid, the company
will be responsible for duly transmitting it; but it may
¹ Georgia.-Planters' Cotton Oil
Co. v. Western Union Teleg. Co.,
126 Ga. 621, 55 S. E. 495, 6 L. R. A.
(N. S.) 1180 (1906).
Mississippi.-Western Union Tel.
Co. v. Dozier, 67 Miss. 288, 7 So.
325 (1889); Western Union Tele-
graph Co. v. Liddell, 68 Miss. 1, 8
So. 510 (1890).
2 This is discussed in:-
Georgia.-Western Union Tele-
graph Co. v. Waxelbaum Co., 113
Ga. 1017, 39 S. E. 443, 56 L. R. A.
741 (1901).
Maryland.-United States Tele-
graph Co. v. Gildersleve, 29 Md.
232, 96 Am. Dec. 519 (1868).
V.
3 United States.-Primrose
Western Union Telegraph Co., 154
U. S. 1, 38 L. ed. 883, 14 S. Ct. 1098
(1893).
Alabama.-Western Union Tele-
graph Co. v. Wilson, 93 Ala. 32, 9
So. 414, 30 Am. Rep. 23 (1891).
Mississippi.-Western Union Tel-
egraph Co. v. Dozier, 67 Miss. 288,
6
7 So. 325 (1889); Cumberland Tele-
phone & Telegraph Co. v. Sanders,
83 Miss. 357, 35 So. 653 (1904).
4 Michigan.-Carland v. Western
Union Telegraph Co., 118 Mich.
369, 76 N. W. 762, 14 L. R. A. 280,
74 Am. St. Rep. 394 (1898).
Texas.-Western Union Tele-
graph Co. v. Shumate, 2 Tex. Civ.
App. 429, 21 S. W. 109 (1893).
5 The company cannot insist upon
subscription to an improper clause:-
Georgia.—Mathis V. Western
Union Telegraph Co., 94 Ga. 338,
21 S. E. 564, 47 Am. St. Rep. 167
(1894).
South Dakota.-Kirby v. Western
Union Telegraph Co., 4 So. Dak.
105, 55 N. W. 759, 30 L. R. A. 612,
46 Am. St. Rep. 765 (1893).
6 United States.-Beasley v. West-
ern Union Telegraph Co., 39 Fed.
181 (1889).
V.
Alabama.-Harris
Western
Union Telegraph Co., 121 Ala. 519,
25 So. 910, 77 Am. St. Rep. 70 (1889).
[356]
CONDITIONS PRECEDENT
[ § 412
be otherwise if the sender knows of the regulations upon
the regular blanks, some cases holding him subject to the
usual stipulations although his message is upon plain
paper.¹ Particularly difficult to deal with are questions
which arise when the message is given to the operator
orally. If the sender authorizes the agent to reduce the
message to writing and sign it, or if he understood that
the agent would do so and then transmit it, the agent is
the agent of the sender for the purpose of writing and
signing the message, but if the agent accepts the oral
message and agrees to transmit it without requiring
that it shall be reduced to writing, the agent is defend-
ant's agent. Very recently this law has been subject to
severe test by the custom of telephoning messages to tele-
graph offices. And although it is still held that the com-
pany may theoretically insist upon written messages,' still
if it is receiving telephoned messages in the regular course
of its business this condition will be held to be waived.5
2
Mississippi.-Western Union Tel-
egraph Co. v. Jones, 69 Miss. 658,
13 So. 471, 30 Am. St. Rep. 579
(1892).
New York.-Pearsall v. Western
Union Telegraph Co., 124 N. Y.
256, 26 N. E. 534, 21 Am. St. Rep.
662 (1891).
Texas.-Anderson V. Western
Union Telegraph Co., 84 Tex. 17,
19 S. W. 285 (1892); Western Union
Telegraph Co. v. Broesche, 72 Tex.
654, 10 S. W. 734 (1889); Western
Union Telegraph Co. v. Arwine, 3
Tex. Civ. App. 156, 22 S. W. 105
(1893); Western Union Telegraph
Co. v. Hinkle, 3 Tex. Civ. App. 518,
22 S. W. 1004 (1893).
¹ Alabama.-Western Union Tele-
graph Co. v. Henderson, 89 Ala. 510,
7 So. 419 (1889).
Indiana.-Western Union Tele-
graph Co. v. Buchanan, 35 Ind. 429,
9 Am. Rep. 744 (1871).
2 Compare Western Union Tele-
graph Co. v. Foster, 64 Tex. 220, 53
Am. Rep. 754 (1885), with Gulf, C.
& S. F. Ry. Co. v. Geer, 5 Tex. Civ.
App. 349, 24 S. W. 86 (1893).
3 See Western Union Telegraph
Co. v. Sanders (Ind.), 79 N. E. 406
(1906), and Western Union Tele-
graph Co. v. Dozier, 67 Miss. 288, 7
So. 325 (1889).
4 United States.—Bank of Have-
lock v. Western Union Telegraph
Co., 141 Fed. 522, 72 C. C. A. 580,
4 L. R. A. (N. S.) 181 (1905).
Illinois. People V. Western
Union Tel. Co., 166 Ill. 15, 46 N. E.
731, 36 L. R. A. 637 (1897).
5 Indiana.—Western Union Tele-
[357]
§ 413]
PUBLIC SERVICE CORPORATIONS
Topic D. Service Must Be Demanded in Proper Manner
§ 413. Goods must be tendered properly packed.
6
1
4
That a carrier may refuse to receive goods for car-
riage unless they are properly packed, is clear enough."
Indeed he must so refuse or take the risk from the im-
proper packing.2 Thus an express company need not
receive furniture not protected,³ chickens not crated,¹
jugs not boxed 5 or money not sealed. But the require-
ments of the carrier as to packing must be reasonable; he
cannot reject a package on this ground if it is in fact
reasonably safe for shipment. These principles come into
play when one carrier tenders goods in bad condition to
another carrier for further transportation. The carrier
to whom such goods are tendered may refuse them alto-
graph Co. v. Todd, 22 Ind. App.
701, 54 N. E. 446 (1899).
Michigan.-Carland v. Western
Union Telegraph Co., 118 Mich.
369, 76 N. W. 762, 14 L. R. A. 280,
74 Am. St. Rep. 394 (1898).
Union
Pennsylvania.-Western
Telegraph Co. v. Stevenson, 128 Pa.
St. 442, 18 Atl. 441, 15 Am. St. Rep.
687 (1889).
Texas.-Texas Telegraph & Tele-
phone Co. v. Seiders, 9 Tex. Civ.
App. 431, 29 S. W. 258 (1895).
1 Alabama.-Atlantic C. L. Ry.
Co. v. Rice (Ala.), 52 So. 918
(1910).
Missouri.—Knight v. Quincy, D.
& K. C. R. R. Co., 120 Mo. App.
311 (1906).
2 United States.-The David &
C., 5 Blatch. 266 (1865).
Alabama.-Atlantic C. L. Ry.
Co. v. Rice (Ala.), 52 So. 918
(1910).
7
Illinois.-Elgin, J. & E. Ry. Co.
v. Bates Machine Co., 200 Ill. 636,
66 N. E. 326, 93 Am. St. Rep. 218
(1903).
England.-Munster v. South
Eastern Ry. Co., 4 C. B. (N. S.)
676, 27 L. J. C. P. 308 (1858).
3 Union Express Co. v. Graham,
26 Ohio St. 595 (1875).
4 Cohn v. Platt, 48 N. Y. Misc.
378, 95 N. Y. Supp. 535 (1906).
Vicksburg L. & T. Co. v.
United States Exp. Co., 68 Miss.
149, 8 So. 332 (1890).
6 Fitzgerald v. Adams Express
Co., 24 Ind. 447, 87 Am. Dec. 341
(1865). See also St. John v. Ex-
press Co., 1 Woods, 612 (1871).
7 Bluthenthal v. Southern Ry.
Co., 84 Fed. 920 (1898). See gen-
erally, Duncan v. Great Northern
Ry. Co. (No. Dak.), 118 N. W.
826 (1908).
[ 358 ]
CONDITIONS PRECEDENT
[ § 414
1
gether ¹ or may demand an indemnity from the tendering
carrier before accepting them.2
§ 414. Freight loaded by shipper.
The same thing is true where freight is improperly
loaded on a car by the shipper. In general the loading
and unloading of goods are under the carrier's control
and he is responsible for any injury incident thereto.
Primarily, it should be noted, it is the carrier's business
to load his vehicles. A railroad cannot usually require
a shipper to put his goods upon the cars himself. If the
shipper assumes the responsibility of loading and unload-
ing the carrier is thereby relieved from liability for loss
in that connection. But if the improper loading was
apparent to the carrier's servant from ordinary observa-
tion the carrier will be liable.5 The carrier must decline
4
¹ Buston v. Pennsylvania Ry.
Co., 116 Fed. 235 (1902).
2 Missouri Pacific Ry. Co. v.
Weisman, 2 Tex. Civ. App. 86, 21
S. W. 426 (1893).
3 London & L. F. Ins. Co. v.
Rome, W. & O. Ry. Co., 144 N. Y.
200, 39 N. E. 79 (1894).
However to get car load rates
the shipper must usually load the
car himself; and so where a car
packed for through shipment is
condemned in transit the connect-
ing carrier may refuse to take the
shipment. Central of Ga. Ry. Co. v.
Cook & L., 4 Ga. App. 698 (1908).
♦ Alabama.—McCarthy v. Louis-
ville & N. R. R. Co., 102 Ala. 193,
14 So. 370, 48 Am. St. Rep. 29
(1893).
Illinois.-Pennsylvania Co. V.
Kenwood Bridge Co., 170 Ill. 645,
49 N. E. 215 (1897).
Massachusetts.-Loveland
V.
3
Burke, 120 Mass. 139, 21 Am. Rep.
507 (1876).
New York.-Jackson Architec-
tural Works v. Hurlbut, 158 N. Y.
34, 52 N. E. 665, 70 Am. St. Rep.
432 (1899).
Texas.-Gulf, W. T. & P. Ry.
Co. v. Wittnebert, 101 Tex. 368,
108 S. W. 150, 130 Am. St. Rep.
858 (1908).
Vermont.-Ross v. Troy & B.
R. R. Co., 49 Vt. 364, 24 Am. Rep.
144 (1877).
Wisconsin.-Miltimore v. Chi-
cago & N. W. R. R. Co., 37 Wis. 190
(1875).
England.-Richardson v. North
Eastern Ry. Co., L. R. 7 C. P. 75
(1872).
5 Illinois.-Elgin, J. & E. Ry. Co.
v. Bates Machine Co., 200 Ill. 636,
66 N. E. 326, 93 Am. St. Rep. 218
(1903).
Minnesota.-Calender v. Vander-
[359]
§ 415]
PUBLIC SERVICE CORPORATIONS
to accept it or else he will be responsible for its safety
if he takes it without properly protecting it.¹
1
§ 415. Special freight may require special tender.
Although in general, freight of all kinds may be for-
warded from the regular freight stations, still there are
special kinds of freight that require special handling. A
lucid exposition of this exception may be found in Harp
v. Choctaw, Oklahoma & Gulf Railroad,' these reasons
being given by Thayer, Circuit Judge: "It is manifest, we
think (indeed, so manifest that we might almost take
judicial notice of the fact), that no railroad constructed
through extensive coal fields and engaged in transporting
coal to market could for any considerable period follow
the practice of setting out cars on its station side tracks,
some distance from the place where coal is mined, and
permitting coal to be hauled thence by wagons and loaded
hoof Co., 99 Minn. 295, 109 N. W.
402 (1905).
New York.-Ames v. Fargo, 114
N. Y. App. Div. 666, 99 N. Y. Supp.
994 (1906).
North Dakota.-Duncan v. Gt.
Northern R. R. Co. (N. D.), 118
N. W. 826 (1908).
Ohio.-Union Express Co.
Graham, 26 Ohio St. 595 (1895).
V.
Texas. International & Gt. No.
Ry. Co. v. Dwight & Co. (Tex. Civ.
App.), 100 S. W. 1011 (1907).
¹ United States.-Hannibal R. R.
Co. v. Swift, 12 Wall. 262, 20 L. ed.
423 (1870).
Alabama.-Atlantic C. L. Ry.
Co. v. Rice (Ala.), 52 So. 918
(1910).
Oregon.-Goodman v. Oregon
Ry. & Nav. Co., 22 Oreg. 14, 28
Pac. 894 (1892).
Wisconsin.Miltimore v.
v. Chi-
cago & N. W. R. R. Co., 37 Wis.
190 (1875).
Where shipper loads a car prop-
erly upon a station track according
to directions the railroad must take
the car. Currie v. Railroad Co., 135
N. C. 535, 47 S. E. 654 (1904).
Where shipper loads goods in a
different car from the one desig-
nated he cannot require that the car
shall go forward. Weisinger v.
Southern Ry. Co., 129 Ky. 592, 112
S. W. 660, 33 Ky. L. Rep. 1038
(1908).
2 125 Fed. 445, 61 C. C. A. 405
(1903).
But note in the 318½ Tons of
Coal, 14 Blatch. 453, Fed. Cas.
No. 14,010 (1878), it was held that
a railroad might not compel ship-
pers to use its force of shovelers in
loading coal into the buckets of its
conveyor on its terminal wharf.
[360]
CONDITIONS PRECEDENT
[ § 416
into the cars by the slow process of shoveling. The use-
less consumption of time, and the additional expense
incident to the handling of the commodity in question,
in large quantities, in that primitive manner, would
occasion great public loss and inconvenience, to say
nothing of the loss sustained by the carrier, and the
serious manner in which that method of handling coal
would interfere with the movement of its trains and the
transaction of its other business." This decision prob-
ably goes too far. It is true that a railway may make a
lower rate to those shippers of coal who furnish their own
facilities for loading coal in so economical a manner as
by a tipple.' But it would seem that the railroads must
receive for transportation at reasonable rates, also, coal or
any other commodity usually carried in bulk at its stations.
from wagons.
§ 416. Service upon fungible basis.
2
A very difficult problem of public service law must
soon come up for solution now that the pipe lines have
been made common carriers. It is obvious that if the
very same oil is to be delivered to the consignee that is
accepted from the consignor, the unit of service must be
very large to fill up a long section of pipe line, many
thousands of gallons, as the pipe line companies are main-
taining in their original schedules. But is it necessary in
dealing with fungibles to insist that they shall be kept
separate from the mass? In the case of the elevation of
grain this mixture is the usual practice; and there would
1 Illinois & St. L. R. R. Co. v.
People, 19 Ill. App. 141 (1886).
And in Choctaw, O. & G. R. R.
Co. v. State, 73 Ark. 373, 84 S. W.
502 (1904), it was held that prefer-
ence could be given shippers from
private tipples when the freight
3
yards are so congested that ordinary
shippers cannot be given room.
2 See West Virginia Transporta-
tion Co. v. Volcanic O. & C. Co., 5
W. Va. 382 (1872).
3 See Hannah v. People, 198 Ill.
77, 64 N. E. 776 (1902).
[ 361 ]
§ 417 1 PUBLIC SERVICE CORPORATIONS
seem to be no reason why it should not be the same in
handling oil.
§ 417. Proper conditions imposed upon installation.
2
1
A service company may impose regulations upon the
making of connections with its system. Thus, it is ob-
vious that a water company may make the conditions
upon which its pipes shall be tapped. An applicant who
wishes water cannot unearth the main and drill a hole
in the pipe, but the company must be consulted as to the
methods by which, and as to the persons by whom these
connections shall be made. There is a case in Missouri ¹
which goes so far as to say that the company may desig-
nate a certain style of hydrant, or cut-off, as the only
one which shall be used. If there are others equally
efficient, it may seem that this requirement is unreason-
able. And there is a case in Kentucky, which goes to
the other extreme by saying that a water company can-
not dictate as to what plumbers may be employed to tap
their pipes and make connections, holding that no proper
plumbers may be excluded from this work. A Louisiana
case holds that it is proper to require the applicant to
produce a certificate from some reputable plumber that
the work has been properly done. If the company in-
sists upon doing the work it involves itself in obligations;
thus a New York case holds that where a gas company
insisted upon making all connections between house
mains and the pipes, it was bound to a proper degree
of care in performing that duty.¹
¹ State v. Goodfellow, 1 Mo. App.
495 (1876).
2 Franke v. Paducah Water Sup-
ply Co., 88 Ky. 467, 11 S. W. 432,
4 L. R. A. 265 (1889).
3 State v. New Orleans Gaslight
Co., 108 La. 67, 32 So. 179 (1902).
3
4 Bastian v. Keystone Gas Co., 50
N. Y. Supp. 537, 27 App. Div. 584
(1898).
Written permission to make con-
nections may be waived. Citizens'
Gas & O. Co. v. Whipple, 32 Ind.
App. 203, 69 N. E. 557 (1904).
[362]
CONDITIONS PRECEDENT [ §§ 418, 419
§ 418. Premises must be properly prepared.
The obligation of a supplying company is to bring the
supply to the premises of the applicant. The company
must itself provide all the facilities requisite to the per-
formance of the service it offers. But the applicant must
have his premises properly equipped to receive service.
It follows that the company cannot usually dictate as to
the installation which the customer may have for his own
utilization of the supply sold; but this is subject to the
condition that nothing installed by the customer shall
affect the service of the company. Thus, although a gas
company cannot dictate as to the style of fixtures the
occupant may install, it may insist that no governor
shall be put in so near the meter as to affect its reading.¹
So although an electric company may not dictate as to
the kind of lamps that the householder may use, it may
refuse to supply current where the wiring is found to have
defective connections, making possible fires for which
claims might be made against it.²
§ 419. Conditions imposed must be reasonable.
The general principle must be taken as established
beyond dispute by the authorities discussed in this chap-
ter that: 3 "In the absence of statutory interposition and
regulation, the carrier is entitled to establish and pro-
mulgate reasonable rules and regulations governing the
manner and form in which it will receive such articles of
commerce as it is bound to carry, as well as the manner
in which they shall be packed and prepared for shipment,
1 Blondell v. Consolidated Gas
Co., 89 Md. 732, 43 Atl. 817, 46 L.
R. A. 187 (1899).
2 Benson v. American Illuminat-
ing Co., 102 N. Y. Supp. 206
(1907).
3 What follows in this sentence is
a substantial quotation from United
States ex rel. v. Oregon Ry. & Nav.
Co., 159 Fed. 975 (1908).
See also the language in Platt v.
Lecocq, 158 Fed. 723, 730, 85 C. C.
A. 621, 15 L. R. A. (N. S.) 558
(1907).
[363]
§ 420 ]
PUBLIC SERVICE CORPORATIONS
so that they may be handled with convenience, safety
and dispatch; and it follows as a corollary to such author-
ity that the carrier has also the power to alter or modify
such rules from time to time, as it may deem proper and
expedient, upon reasonable notice to the public, so that
interested parties may be apprised of what is required
when seeking service at the hands of such carrier." 1
§ 420. Improper conditions cannot be imposed.
On the other hand improper conditions may not be
imposed even by regulation. In one of the leading cases
to this effect the Federal court 2 said: "A common car-
rier is under an obligation to accept, within reasonable
limits, ordinary goods which may be tendered to him
for carriage at reasonable times, for which he has accom-
modation. The carrier cannot generally discriminate
between persons who tender freight, and exclude a par-
ticular class of customers. The railroad company could
not establish the rule that it would receive coal only
from certain barge owners, or from a particular class of
barge captains. It carries for all people indifferently.
But, while admitting this duty, the company has declared
that for the convenience of the public, and in order to
transport coal more expeditiously, and to avoid delays,
it will receive such coal only, from barges at its wharf,
as shall be delivered through the agency of laborers
selected by the company. This rule is a restriction upon
its common law obligation. The carrier, on its part, is
bound to receive goods from all persons alike. The duty
and the labor of delivery to the carrier is imposed upon
the barge owner, who pays for the necessary labor. The
1 Robinson v. Baltimore & O.
R. R. Co., 64 C. C. A. 281, 129 Fed.
753 (1904), is relied upon.
See also the language in Harp v.
Choctaw, O. & G. R. R. Co., 61 C.
C. A. 405, 125 Fed. 445 (1903).
2318½ Tons of Coal, 14 Blatch.
453, Fed. Cas. No. 14,014 (1878).
[364]
CONDITIONS PRECEDENT
[ § 420
service, so far as the shoveling 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
tender, 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 times,
we will receive only those goods which may be handled
by persons of our selection. The law relating to car-
riers has not yet permitted them to impose such limita-
tion upon the reception or acceptance of goods." 1
¹ See also Crouch v. L. & N. W.
Ry. Co., 14 C. B. 255 (1859); and
Beadell v. Eastern Counties Ry.
Co., 2 C. B. (N. S.) 509 (1854).
[365]
CHAPTER XIII
PREPAYMENT AS A CONDITION
§ 430. Payment as a condition.
Topic A. Prepayment May Be Required
§ 431. Prepayment made a condition.
432. Compensation due upon acceptance.
433. Service partially completed before demand.
434. Deposit required when charges are undetermined.
435. Whether different treatment constitutes discrimination.
436. Security required for reply telegram.
437. Security for additional charges.
Topic B. Sufficiency of Tender
§ 438. What is proper tender.
439. Denomination of money tendered.
440. Reasonable time to produce payment.
441. Tender must be in proper currency.
442. Waiver of prepayment.
443. Conduct dispensing with tender.
Topic C. The Unit of Service
§ 444. Public service upon a unit basis.
445. Company cannot insist upon more than one unit.
446. The journey as a single unit.
447. Forfeiture of right to original journey.
448. Effect of outright repudiation.
449. Present unit distinguished from past unit.
Topic D. Payment of Arrearages Demanded
§ 450. Payment for previous carriage not required.
451. Payment of arrearages not generally required.
452. Cases requiring payment of arrearages.
453. Applicant in default at other premises.
454. Payment of collateral claims cannot be demanded.
455. Cannot urge another's default.
456. No requirement to pay arrears of predecessors.
457. Assumption of predecessor's arrears.
458. Cannot shut off service for disputed arrearages.
459. Character of the dispute.
460. Waiver of right to refuse.
[366]
PREPAYMENT AS A CONDITION [§§ 430, 431
§ 430. Payment as a condition.
Although one who engages himself in public employ-
ment is bound to serve all who apply, it is necessarily upon
the condition that he may demand in advance his reason-
able charge for the service required. This was often re-
marked in the early cases; in one, Hussey, C. J., said that
“a victualler shall be compelled to sell his victual if the
vendee has tendered him ready payment, otherwise not.
Quod Brian, C. J., affirmavit." 1 This principle is so
obvious that it hardly ever is brought in question in mod-
ern cases. But the court thought it necessary to remind
counsel in one case 2 that even the declaration of Constitu-
tion, that railways within the State are public highways,
does not authorize one to ride on a train without payment
of fare. A service is certainly public although compensa-
tion is required. "All have rights; each pays in propor-
tion to his use; and some are excluded because of their
inability to pay; nevertheless it remains a public use so
long as all persons have the same measure of right for the
same measure of money." It may be added that the fact
that a company has given a supply gratuitously in the
past does not oblige the company to continue to do so.¹
→
3
Topic A. Prepayment May Be Required
§ 431. Prepayment made a condition.
Of the right to demand payment before undertaking
the service requested, there can be no doubt. The car-
rier of goods may in all cases insist upon the payment of
his charges when the goods are tendered to him.5 Even
1 Y. B. 10 H. VII, 8, pl. 14 (1494).
See also Y. B. 39 H. VI, 18, pl. 24,
per Danby, J.
2 Farber v. Missouri Pacific Ry.
Co., 116 Mo. 81, 22 S. W. 631, 20
L. R. A. 350 (1893).
3 The quotation which follows is
from Evergreen Cemetery Associa-
tion v. Beecher, 53 Conn. 551, 5
Atl. 353 (1885).
4 Borough of Carlisle v. Carlisle G.
& Water Co. (Pa.), 4 Atl. 179 (1886).
5 Illinois.—Galena, etc., R. Co. v.
Rae, 18 Ill. 488, 68 Am. Rep. 574
[367]
§ 431 ]
PUBLIC SERVICE CORPORATIONS
if he is a connecting carrier to whom the goods are brought
by the initial carrier with the idea that the consignee shall
ultimately pay, he may insist. So the carrier of passen-
gers may make it a condition of accepting a passenger
for carriage that the fare be paid in advance,² or that a
ticket shall be purchased and presented. Similarly an
(1857); Illinois Central R. Co. v.
Frankenburg, 54 Ill. 88, 5 Am. Rep.
92 (1870).
Michigan.-Fitch v. Newberry, 1
Doug. 1, 40 Am. Dec. 33 (1843).
North Carolina.-Randall v. Rich-
mond & D. R. Co., 108 N. C. 612,
13 S. E. 137 (1891).
Pennsylvania.-Shipper v. Penn-
sylvania R. R. Co., 47 Pa. St. 338
(1864).
Vermont.-Wilder v. St. Johns-
bury & L. C. R. Co., 66 Vt. 636, 30
Atl. 41 (1894).
V.
1
3
Pac. R. R., 34 Cal. 616 (1868); Nye
v. Marysville & Y. C. S. R. R., 97
Cal. 461, 32 Pac. 530 (1893).
Illinois.-Illinois Cent. R. R. Co.
v. Whittemore, 43 Ill. 420, 92 Am.
Dec. 138 (1867).
Kansas.-South Kansas Ry. v.
Hinsdale, 38 Kans. 507, 16 Pac. 937
(1888).
New York.-Elder v. Interna-
tional Ry. Co., 122 N. Y. Supp. 880
(1910).
• Illinois. Illinois Cent. R. Co.
v. Loutham, 80 Ill. App. 579
England.—Wyld v. Pickford, 8 (1898).
M. & W. 443 (1841);
Jackson, Peake's Add. Cas., 185
(1800).
1 United States.-Little Rock &
M. R. R. Co. v. St. Louis, I. M. &
So. Ry. Co., 59 Fed. 400 (1894);
Southern Ind. Exp. Co. v. United
States Exp. Co., 92 Fed. 1022, 35
C. C. A. 172 (1899).
Missouri.-Pearce v. Wabash R.
R., 89 Mo. App. 437 (1901).
North Carolina.-Randall v.
Richmond & D. R. Co., 108 N. C.
612 (1891).
Texas.-Missouri Pac. R. Co. v.
Weisman, 2 Tex. Civ. App. 86,
21 S. W. 426 (1893).
2 United States.-Boylan v. Hot
Springs R. Co., 132 U. S. 146, 33
L. ed. 290, 10 Sup. Ct. 50 (1889).
California.-Tarbell v. Central
Indiana.-Pittsburgh, C. & St. L.
R. N. R. Co. v. Vandyne, 57 Ind.
576, 26 Am. Rep. 68 (1877).
Maryland.-Northern
Central
Ry. Co. v. O'Connor, 76 Md. 207,
24 Atl. 449, 35 Am. St. Rep. 442
(1892).
Michigan.-Van Dusan v. Grand
Trunk R. Co., 97 Mich. 439, 56 N.
W. 848, 37 Am. St. Rep. 354 (1893).
Minnesota.-Dickerman
V. St.
Paul Union Depot Co., 44 Minn.
433, 46 N. W. 907 (1890).
Nebraska.-Burlington & M. R.
R. R. v. Rose, 11 Neb. 177, 8 N. W.
433 (1881).
New York.-Corwin V. Long
Island R. R. Co., 2 N. Y. City Ct.
106 (1885).
Ohio.-Cleveland, C. & C. R. Co.
v. Bartram, 11 Ohio St. 457 (1860).
[368]
PREPAYMENT AS A CONDITION
[ § 432
innkeeper has a right, if he chooses, to demand payment
of his charges in advance before he receives the guest.¹
By the same principles, a telephone user must pay in ad-
vance the usual charge made for the regular period of
filling prevailing 2 and a patron at a pay station must pay
the charge for the connection as required. So tender of
charges must accompany a demand for water service, es-
pecially where the tap service is asked which can be com-
puted in advance. Without going into more details at
present, the general rule may be repeated that in all cases
the service company may refuse to act until payment is
forthcoming.
3
§ 432. Compensation due upon acceptance.
Should the service be undertaken without demand for
payment, the whole compensation nevertheless is due
immediately. Thus one who is accepted as a guest at
an inn then subjects himself to the presentment of a bill
from that moment. It is upon this general principle
4
Texas.-International, etc., R.
Co. v. Goldstein, 2 Tex. App. Civ.
Cas. 274 (1884).
Vermont.-Harris v. Stevens, 31
Vt. 79, 73 Am. Dec. 337 (1858).
¹ England.-Fell v. Knight, 8 M.
& W. 269, 10 L. J. Ex. 277, 5 Jur.
554 (1841); Mulliner v. Florence, 3
Q. B. D. 484, 47 L. J. Q. B. 700, 38
L. T. 167, 26 W. R. 385 (1878).
2 Louisiana.—Malochee V. Gt.
Southern Telephone & T. Co., 49
La. Ann. 1690, 22 So. 922 (1897).
Montana.-Ashley V. Rocky
Mountain Bell Telephone Co., 25
Mont. 286, 64 Pac. 765 (1901).
Nebraska.-Buffalo County Tele-
phone Co. v. Turner, 82 Neb. 841,
118 N. W. 1064, 19 L. R. A. (N. S.)
693 (1908).
3 Alabama.-Hieronymus Bros. v.
Bienville Water Supply Co., 131
Ala. 447, 31 So. 31 (1901).
Maine.-Robbins v. Bangor R.
& E. Co., 100 Me. 496, 62 Atl. 136,
1 L. R. A. (N. S.) 963 (1905).
New York.-People v. N. Y.·
Suburban Water Co., 56 N. Y.
Supp. 364, 38 App. Div. 413 (1899).
Tennessee.-Harbison v. Knox-
ville Water Co. (Tenn. Chan. App.),
53 S. W. 993 (1899).
4 New York.-Smith v. Keys, 2
Thomp. & C. 650 (1874).
England.—Medawar v. Grand
Hotel, 2 Q. B. 11, 60 L. J. Q. B. 209,
64 L. T. (N. S.) 851, 55 J. P. 614
(1891).
Canada.-Doyle v. Walker, 26
Up. Can. Q. B. 502 (1867).
24
[369]
§ 433 ]
PUBLIC SERVICE CORPORATIONS
that a conductor who at first collects too little from his
passenger may return upon discovering it, and demand
the immediate payment of the balance.¹ But it has been
held that where a conductor with full knowledge of the
facts has once accepted what is given by the passenger
as full satisfaction, he cannot later eject him for his re-
fusal to pay more. That the payment is due from the
beginning of the service is further shown by those cases
which hold it proper to charge those who do not pay
promptly an additional amount, even when bills are ren-
dered in advance of the performance of the service.3
2
§ 433. Service partially completed before demand.
It not infrequently happens that a person has received
part of his service before the price is demanded and he is
sometimes dishonest enough to attempt to get the re-
mainder of the service upon payment for the remainder.
That this attempt is illegal should be plain. A passen-
ger who refuses to pay the whole fare may thereupon be
ejected, although he is willing to pay fare from the inter-
mediate point at which it is discovered that he has not
paid. Upon this general principle here involved, a serv-
4
¹ Georgia.-Coyle v. Southern Ry.
Co., 112 Ga. 121, 37 S. E. 163 (1900).
Iowa.-Hoffman v. Denver & N.
W. R. R. Co., 52 Iowa, 342 (1879).
Minnesota.-Wardwell Chi-
V.
cago, M. & St. P. Ry. Co., 46 Minn.
514, 49 N. W. 206, 24 Am. St. Rep.
246 (1891).
New York.-Elder v. Interna-
tional Ry. Co., 122 N. Y. Supp. 880
(1910).
2 Louisville, H. & St. L. Ry. v.
Joplin, 21 Ky. Law Rep. 1380, 55
S. W. 206 (1900).
3 Alabama.-Hieronymus v. Bien-
ville Water Co., 131 Ala. 447, 31
So. 31 (1901).
Washington.-Tacoma Hotel Co.
v. Tacoma Light & Water Co., 3
Wash. 316, 28 Pac. 516, 14 L. R. A.
669, 28 Am. St. Rep. 35 (1891).
Canada.-Attorney General of
Canada v. City of Toronto, 23 Can.
Sup. 514 (1892).
4 Alabama.-Manning v. Louis-
ville & N. R. R., 95 Ala. 392, 11 So.
8, 16 L. R. A. 55, 36 Am. St. Rep.
225 (1891).
Arkansas.-Kansas City Ry. v.
Holden, 66 Ark. 602, 53 S. W. 45
(1899)..
Georgia.-Coyle v. Southern Ry.
Co., 112 Ga. 121, 37 S. E. 163
(1900).
[370]
PREPAYMENT AS A CONDITION
[ § 434
ice company which has not been paid on the first day
of the quarterly period may insist upon payment for the
whole period whenever its collector comes for it.¹ It is
different in the case of goods which have been accepted
without demand for payment. The cases hold that if
transportation is undertaken without demanding prepay-
ment, payment may not be required again until the time
comes for delivery.2 This is because the acceptance of
the goods upon the basis that charges are to be paid by
the consignee evidences a contract to that effect. This
seems to be the law in the analogous case of a telegraph
message at first received on the basis that the charges
are to be collected from the addressee. 3
§ 434. Deposit required when charges are undetermined.
In respect to many services it will be seen that the rule
in its simple form that payment for the service asked
must be made in advance is not workable, for it cannot
be known in advance how much service will be taken.
This is particularly true of measured service whether gas,
water, electricity or telephone,—to name four prominent
instances of this situation. The happy solution of this
problem has been to permit these companies to demand
a reasonable deposit in advance to cover expected supply.
S. J. & C. B. R. R., 53 Mo. 317, 14
Am. Rep. 457 (1873).
New Jersey.-Jersey City R. R.
Co. v. Morgan, 52 N. J. L. 60, 18
Atl. 904 (1889).
¹ Alabama. Hieronymus v. Bien-
ville Water Co., 131 Ala. 447, 31 So.
31 (1901).
Pennsylvania.-Tyrone Gas &
Water Co. v. Burley, 19 Pa. Super.
Ct. 348 (1902).
2 Indiana.-Grand Rapids & I. R.
R. Co. v. Diether, 10 Ind. App. 206,
37 N. E. 39, 1069, 53 Am. St. Rep.
385 (1894).
Missouri.-Davis v. Kansas City,
New York.-Leach v. New York,
N. H. & H. R. R. Co., 89 Hun, 377,
35 N. Y. Supp. 305 (1895).
England.—Barnes v. Marshall, 18
Q. B. 785 (1852).
³ Alabama.-Western Union Tele-
graph Co. v. Cunningham, 99 Ala.
314, 14 So. 579 (1892).
Texas.-Western Union
Union Tele-
graph Co. v. Snodgrass, 94 Tex. 284,
60 S. W. 308, 86 Am. St. Rep. 851
(1901).
[371]
§ 435 ]
PUBLIC SERVICE CORPORATIONS
As to what a reasonable amount is, there are but few de-
cisions.¹ A small minimum deposit is always reasonable
$5.00 is usual. But larger sums may be demanded when
the circumstances warrant it. Thus it was held in the
leading case 2 that a hotel which used about $60.00 worth
of gas a week might be required to deposit $100. The
court thought that the company might either require a
personal guaranty or an actual deposit. In either case
the condition was said to be a reasonable one. The facts
in this case give the clue to the basis upon which reason-
ableness is predicated; for it seems clear that the amount
of deposit which may be required is what would ordi-
narily be sufficient to cover the expected use in the usual
period for which bills are rendered.
§ 435. Whether different treatment constitutes discrimi-
nation.
It is apparently established beyond question as to com-
mon carriers that, as no one has a right to have service
without prepayment, there can be no complaint made
if some are given service without requiring prepayment
of them, while others are obliged to pay in advance.³ The
¹ Williams v. Mutual Gas Co., 52
Mich. 499, 18 N. W. 236, 50 Am.
Rep. 266 (1884).
2 In the following cases the pro-
priety of requiring a deposit was
recognized:
Idaho.-Bardsly v. Boise Irr. &
Land Co., 8 Idaho, 155, 67 Pac. 428
(1901).
Kentucky.-Owensboro Gaslight
Co. v. Hildebrand, 19 Ky. L. Rep.
983, 42 S. W. 351 (1897).
Massachusetts.-Turner v. Revere
Water Co., 171 Mass. 329, 50 N. E.
634, 40 L. R. A. 657, 68 Am. St.
Rep. 432 (1898).
Missouri.-Vanderberg v. Kan-
sas City Missouri Gas Co., 126 Mo.
App. 600 (1907).
New York.-Ford v. Brooklyn
Gaslight Co., 3 Hun, 621 (1875);
Bennett v. Eastchester Gaslight
Co., 54 N. Y. App. Div. 74, 66 N.
Y. Supp. 292 (1900); Pollits v.
Consolidated Gas Co., 102 N. Y.
Supp. 1017 (1907).
Wisconsin.-Shepard v. Milwau-
kee Gaslight Co., 6 Wis. 539, 70
Am. Dec. 479 (1858).
Randall v. Railroad, 108 N. C.
612, 13 S. E. 137 (1891); Brown &
B. Coal Co v. Grand Trunk Ry.
[372]
PREPAYMENT AS A CONDITION
[ § 435
cases go so far as to hold a carrier not liable for demanding
prepayment of freight for goods addressed to certain
consignees while accepting goods addressed to other con-
signees without prepayment.¹ And this law will appar-
ently hold good as to the other public services, notwith-
standing certain recent cases which are still difficult to
reconcile with it. In an Arkansas case 2 it was held lately
that requiring one subscriber to come to the central office
and prepay toll charges while customarily giving credit by
monthly bills to other subscribers, was illegal. This may
be so, because he, as a subscriber, was not furnished resi-
dence service of the same sort that other subscribers en-
joyed. Again, in a late Kentucky case the court was
indignant because certain lighting companies were requir-
(
Co., 159 Mich. 565, 124 N. W. 528
(1910).
Consequently a carrier may take
goods from one connecting carrier
with which it is closely allied, not
only not demanding its charges
in advance, but also advancing to
the preceding carrier the accrued
charges while refusing both favors
to a rival connection. Little Rock
& M. R. R. Co. v. St. Louis, I. M. &
S. Ry. Co., 59 Fed. 400 (1894);
Little Rock & M. R. R. Co. v. St.
Louis S. W. Ry. Co., 63 Fed. 775,
11 C. C. A. 417 (1894); Southern
Indiana Exp. Co. v. United States
Exp. Co., 92 Fed. 1022, 35 C. C. A.
172 (1899); Gulf, C. & S. F. Ry. Co.
v. Miami S. S. Co., 86 Fed. 407, 30
C. C. A. 142 (1898).
¹ Gamble-Robinson Commission
Co. v. Chicago & N. W. Ry. Co.,
168 Fed. 161, 94 C. C. A. 217
(1909).
There may be prepay stations at
which the carrier delivers freight to
the consignee directly, and without
the intervention of a local agent,
and to which consequently consign-
ments are accepted only upon the
condition of charges for transporta-
tion being prepaid by the shipper.
Bird v. Railroads, 99 Tenn. 719, 63
Am. St. Rep. 856 (1897).
2 Yancey v. Batesville Telephone
Co., 81 Ark. 487, 99 S. W. 679
(1907). See also State v. Kinloch
Telephone Co., 93 Mo. App. 349, 67
S. W. 684 (1902).
3 Owensboro Gaslight Co. V.
Hildebrand, 19 Ky. L. Rep. 983, 42
S. W. 351 (1897); Long v. Spring-
field Water Co., 8 Del. Co. (Pa.) 151
(1901).
But by some cases the companies
are allowed discretion in deciding
whether it is necessary to require
deposit. Turner v. Revere Water
Co., 171 Mass. 329, 50 N. E. 634,
40 L. R. A. 657, 68 Am. St. Rep.
432 (1898); Phelan v. Boone Gas
Co. (Iowa), 125 N. W. 208 (1910).
2
[373]
§ 436 ]
PUBLIC SERVICE CORPORATIONS
ing a deposit of some of their customers but not of others.
This may again be correct, because the requirement of a
deposit obliging the customer to pay for services he is to
receive in the future would be beyond the rights of the
service company, were it not brought about by a reason-
able regulation; and to be reasonable it is usually held
that a regulation must be uniform.
§ 436. Security required for reply telegram.
1
A striking illustration of this right to demand a deposit
to cover services which will probably be required is to be
seen in the matter of reply telegraph service. Of course
the telegraph company may require prepayment for a
message. But is it a reasonable regulation that persons
sending messages which ask for answers must deposit the
regular amount chargeable for a reply message? ¹ In sup-
porting this requirement the leading case 2 said: "We are
unable to perceive anything unreasonable in the by-law
under examination. A person who sends another a mes-
sage, and asks an answer, promises by fair and just impli-
cation to pay for transmitting the answer. It is fairly
inferable that the sender who asks an answer to his mes-
sage will not impose upon the person from whom he re-
quests 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 pay-
ment for services rendered, and in requiring a transient
¹ Langley v. Western Union Tele-
graph Co., 88 Ga. 777, 15 S. E. 291
(1892). See further Western Union
Telegraph Co. v. Dubois, 128 Ill.
248, 21 N. E. 4, 15 Am. St. Rep. 109
(1889).
2 Western Union Telegraph Co.
v. McGuire, 104 Ind. 130, 2 N. E.
201, 54 Am. Rep. 296 (1885). See
further Hewlett v. Western Union
Telegraph Co., 28 Fed. 181 (1886).
[374]
PREPAYMENT AS A CONDITION [§§ 437, 438
person to deposit the amount legally chargeable for an
ordinary message, it does no more than take reasonable
measures for securing compensation for transmitting the
asked and expected message."
§ 437. Security for additional charges.
This particular problem of charges comes up in another
form as to the transmission of telegrams. As the usual
charge only includes the delivery of a telegram within the
established free delivery limits at the point of destination,
it is proper for the company to make additional charges
for delivery outside these limits. If it is known to the
parties at the time of transmission that the addressee
lives outside these limits, it is reasonable to require an
additional amount.¹ But a regulation of a company re-
quiring the sender of a telegram to pay in advance charges
for the delivery of the message in case the addressee lives
beyond its free-delivery limits, irrespective of whether the
distance of the addressee's residence from the station is
known, is held to go beyond what is reasonable.2
Topic B. Sufficiency of Tender
§ 438. What is proper tender.
Much of the usual law of tender holds good in this
matter. Thus a mere willingness on the part of a pas-
senger to pay the fare, unaccompanied by a tender or
act calculated to suggest such willingness to the conductor,
is not sufficient to place the conductor in the wrong in
¹ Kentucky.-Western Union Tele-
graph Co. v. Mathews, 107 Ky. 663,
55 S. W. 427 (1900).
Texas.-Western Union Tele-
graph Co. v. Warren (Tex.), 36 S.
W. 314 (1896).
2 Alabama.-Western Union Tele-
graph Co. v. Henderson, 89 Ala.
510, 7 So. 419, 18 Am. St. Rep.
148 (1889).
Texas.-Anderson V. Western
Union Telegraph Co., 84 Tex. 17,
19 S. W. 285 (1892); Western Union
Telegraph Co. v. Ayers (Tex.), 93
S. W. 199 (1906).
[375]
§ 438]
PUBLIC SERVICE CORPORATIONS
2
4
ejecting the passenger.¹ Moreover, this tender must be
kept good in order to keep the company in default, as
was held in the case of an applicant for water service who
had once tendered the requisite charges. So also a tele-
phone subscriber must bring his payment to the office of
the company and cannot complain that the custom of
the company to send out a collector has been abandoned.³
And a withholding of the money until change shall be
given prevents it from being a proper tender. Despite
these analogies the payment in advance of compensation
to a company is not the payment of a debt, but the sat-
isfaction of a reasonable condition. A debtor must make
legal tender of the exact amount due, but a passenger
paying his fare may tender a greater amount and de-
mand change, provided it is a reasonable demand. As
payment is simply the satisfaction of a condition prec-
edent, not the performance of a contractual obligation, it
makes no difference by whom the tender is made. Thus
when strangers offer to pay fare for a person who is about
to be ejected the conductor must desist."
¹ Texas & P. Ry. Co. v. James, 82
Tex. 306, 18 S. W. 589, 15 L. R. A.
347 (1891). But a tender made
protesting is good. Atchison, T. &
S. F. R. Co. v. Roberts, 3 Tex. Civ.
App. 370, 22 S. W. 183 (1893).
2 Baker v. San Francisco Gas Co.,
141 Cal. 710, 75 Pac. 342 (1904).
Therefore a tender withdrawn goes
for nothing. Western Union Tele-
graph Co. v. Power, 93 Ga. 543, 21
S. E. 51 (1894).
³ Magruder v. Cumberland Tele-
phone & T. Co., 92 Miss. 716, 46
So. 404, 16 L. R. A. (N. S.) 560
(1908).
4 Louisville & N. R. R. Co. v.
Cottengim (Ky.), 104 S. W. 280
(1907).
5
It would seem that readiness
should be enough as payment and
acceptance should be simultaneous
acts. Tarbell v. Central Pacific R.
R. Co., 31 Cal. 616 (1868).
5 Of these cases cited in the next
section, see particularly Barrett v.
Market St. Ry. Co., 81 Cal. 296, 22
Pac. 859, 6 L. R. A. 336, 15 Am. St.
Rep. 61 (1889).
6 United States.-Missouri K. &
T. Ry. Co. v. Smith, 152 Fed. 608
(1907).
Indiana.-Baltimore & O. R. R.
Co. v. Norris, 17 Ind. App. 189, 46
N. E. 554 (1896).
Indian Territory.-Missouri, K.
& T. Ry. Co. v. Smith, 6 Ind. Terr.
99, 89 S. W. 668 (1905).
[376]
PREPAYMENT AS A CONDITION
[ § 439
§ 439. Denomination of money tendered.
What denomination of money it will be reasonable to
require a conductor to change has been considered in
several cases. In several cases it has been held reasonable
to tender five dollars for a five-cent street-car fare.¹ On
the other hand, a tender of a five-dollar bill in a street car
has been held unreasonable where a regulation of the
company required the conductors to furnish change only
for two-dollar bills, no custom to change larger bills being
shown.2 The reasons for such limitations are well set
forth in the New York case, by Mr. Justice Bartlett:
"In the case at bar the reasonableness of the rule estab-
lished by the defendant is obvious. In a large city like
New York the round trip of a car of any street line means
a very considerable number of fares paid in, and the
necessity for the conductor to carry and pay out a large
amount of small change. When the defendant enacted
the rule requiring its conductors to furnish change to a
passenger to the amount of two dollars it did all that could
reasonably be expected of it in consulting the convenience
of the general public, and it would be unreasonable and
Missouri.-Randall v. Chicago,
R. I. & P. Ry. Co., 102 Mo. App.
342, 76 S. W. 493 (1903).
New York.-O'Brien V. New
York C. & H. R. R. R. Co., 80 N. Y.
236 (1880).
Pennsylvania.-Ham v. Delaware
& H. C. Co., 142 Pa. St. 617, 21
Atl. 101 (1891).
Tennessee.—Louisville & N. R. R.
Co. v. Garrett, 8 Lea, 438, 41 Am.
Rep. 640 (1881).
¹ California.—Barrett v. Market
Street Ry. Co., 81 Cal. 296, 22 Pac.
859, 6 L. R. A. 336, 15 Am. St. Rep.
61 (1889).
Tennessee.—Knoxville Traction
Co. v. Wilkerson, 117 Tenn. 482, 99
S. W. 992, 9 L. R. A. (N. S.) 579
(1907).
2 Georgia.-Wynn v. Georgia Ry.
& El. Co., 6 Ga. App. 77, 64 S. E.
278 (1909).
New York.-Barker v. Central
Park N. & E. R. R. Co., 151 N. Y.
237, 45 N. E. 550, 35 L. R. A. 489,
56 Am. St. Rep. 626 (1896).
V.
Pennsylvania.-Muldowney
Pittsburg & B. Tr. Co., 8 Pa. Super.
Ct. 335, 43 W. N. C. 52 (1898).
South Carolina.-Funderburg v.
Augusta & A. Ry. Co., 81 S. C. 141,
61 S. E. 1075, 21 L. R. A. (N. S.)
868 (1908).
[377]
§ 440 ] PUBLIC SERVICE CORPORATIONS
burdensome to extend the amount to five dollars. It
would require conductors to carry a large amount of bills
and small change on their persons, and greatly impede
the rapid collection of fares." Fundamentally it is all a
question of the amount of change required. Thus, a
tender of a twenty-five dollar bill to pay a fare of one dollar
and twenty-five cents is obviously unreasonable ¹ while
a tender of fifteen dollars for freight charges of fourteen
dollars and eighty-five cents is plainly reasonablė.2
§ 440. Reasonable time to produce payment.
3
1
It seems, however, that before breaking off the negotia-
tion for service the applicant should be given a reasonable
time to produce payment. Thus a passenger should be
given a fair opportunity to search his pockets for a ticket
or get at his money. But of course one cannot ask the
conductor to wait a while until he gets ready to pay and
until he can decide whether he will pay or not.5 It would
4
1 Fulton v. Grand Trunk Ry.,
Up. Can. Q. B. 428 (1859).
ས་
2 Houston E. & W. T. Ry. v.
Campbell, 91 Tex. 551, 45 S. W. 2,
43 L. R. A. 225 (1898).
3 Connecticut.—Maples v. New
York & N. H. R. R. Co., 38 Conn.
557, 9 Am. Rep. 434 (1871).
Illinois.-Chicago & Alton R. R.
Co. v. Willard, 31 Ill. App. 435
(1888).
Michigan.-Ferguson v. Michi-
gan Cent. R. Co., 98 Mich. 533, 57
N. W. 801 (1894).
Mississippi.-Louisville & N. R.
Co. v. Maybin, 66 Miss. 83, 5 So.
401 (1889).
Missouri.—Bolles v. Kansas City
So. Ry. Co., 134 Mo. App. 696
(1909); Randall v. Chicago, R. I. &
...
P. Ry. Co., 102 Mo. App. 342, 76
S. W. 493 (1903).
North Carolina.-Brooks v. Sulli-
van, 129 N. C. 190, 39 S. E. 822
(1901).
Texas.-International & Gt. No.
R. R. Co. v. Wilkes, 68 Tex. 617, 5
S. W. 491 (1887).
4 Illinois.—Chicago & A. R. R.
Co. v. Willard, 31 Ill. App. 435
(1888).
New York.-Huba v. Schenectady
Ry. Co., 85 N. Y. App. Div. 199, 83
N. Y. Supp. 157 (1903).
North Carolina.-Clark v. Wil-
mington & W. R. R. Co., 91 N. C.
506, 49 Am. Rep. 647 (1884).
Texas.-International & Gt. N.
Ry. Co. v. Wilkes, 68 Tex. 617, 5
S. W. 491, 2 Am. St. Rep. 515 (1887).
5 California.-Nye v. Marysville
[ 378]
PREPAYMENT AS A CONDITION
[ § 441
seem that unusual patience ought to be used in dealing
with incapable persons.¹ By the authorities one judges
that it would not be safe for the conductor not to permit
the passenger to seek friends upon the train.2 And per-
haps the conductor ought to accept a bill as security
while the search is proceeding.³
§ 441. Tender must be in proper currency.
5
4
The company must accept legal tender or whatever
passes as current in the community. If a tender of proper
currency is made, the official refuses it at his peril. Thus,
if he rejects a bill or coin as counterfeit, or a coin as too
much worn and the money is found to be in fact good,
the carrier is liable for the wrongful ejection, if he puts a
passenger off under such circumstances." But a refusal
& Y. C. R. R. Co., 97 Cal. 461, 32
Pac. 530 (1893).
Canada.-Fulton v. Grand Trunk
Ry. Co., 17 Up. Can. Q. B. 428
(1858). See also Thomas v. Geldart,
20 New Br. (4 Pug. & B.) 95 (1880).
¹ In Louisville, N. & Gt. So. R. R.
Co. v. Fleming, 14 Lea (Tenn.), 128
(1884), it was held that a conductor
was under no obligation to himself
search for a ticket in the pockets of
an old colored man whose hands
were partly paralyzed.
But in Ferguson v. Michigan
Central R. R. Co., 98 Mich. 533, 57
N. W. 801 (1894), a person subject
to chronic drowsiness, being ejected
without sufficient efforts to arouse
him, the company was held liable.
2North Carolina.—Clark v. Wil-
mington & W. R. R. Co., 91 N. C.
506 (1884).
Texas.-Gulf, C. & S. F. Ry.
Co. v. Bunn, 41 Tex. Civ. App. 503
(1908)
3 Kentucky.-Anderson v. Louis-
ville & N. R. R. Co., 134 Ky. 344,
120 S. W. 298 (1909).
North Carolina.-Knowles v. Rail-
road Co., 102 N. C. 59 (1889).
4 Lewis v. New York Central R.
R. Co., 49 Barb. 330 (1867). But
see Tarbell v. Central Pacific R. R.
Co., 31 Cal. 616 (1868).
5 Mobile & Ohio R. R. Co. v.
Wisdom, 5 Heisk, 125 (1871). But
see Louisville & N. R. R. Co. v.
Garrett, 8 Lea (Tenn.), 438, 41 Am.
Rep. 194 (1887).
• Alabama.—Mobile St. Ry. v.
Watters, 135 Ala. 227, 33 So. 42
(1902).
Georgia.-Atlanta Consol. St. Ry.
v. Keeny, 99 Ga. 266, 25 S. E. 629,
33 L. R. A. 824, and note (1896).
Missouri.—Breen v. St. Louis Tr.
Co., 102 Mo. App. 479, 77 S. W. 78
(1903).
New Jersey.—Jersey City & B. R.
R. v. Morgan, 52 N. J. L. 60, 18
Atl. 904, 52 N. J. L. 558, 21 Atl.
783 (1889).
[379]
§ 4421
PUBLIC SERVICE CORPORATIONS
1
to carry one who presents a mutilated note is justifiable,
although it could be redeemed, for the applicant cannot
cast upon the carrier the redemption of it. And a ticket
so defaced as to be in part illegible may be refused.² Of
course the official can refuse to take the applicant's jewelry
or other valuables either in payment or as security for
payment.3
§ 442. Waiver of prepayment.
The necessity of tender may be and often is generally
waived in practice. Thus if the inn is open and the trav-
eler enters and makes his desire to become a guest known
to the innkeeper, the latter must request a tender if he
means to insist upon it as a condition of receiving a guest.¹
And generally where prepayment is commonly waived,
the company must expressly demand it. But in any case
payment for service can never be demanded on credit
as a right, no matter how common such a practice may
have been. Even in a case of a telephone company
which for years had given patrons a month's credit by
Wisconsin.-Vassau v. Madison
E. Ry., 106 Wis. 301, 82 N. W. 152
(1900).
A passenger who has innocently
purchased a ticket with counterfeit
money may be ejected. Memphis
& C. R. R. Co. v. Chastine, 54
Miss. 503 (1877).
¹ North Hudson County Ry. Co.
v. Anderson, 61 N. J. L. 248, 39 Atl.
905, 68 Am. St. Rep. 703 (1898).
A ticket is valid although torn if
the pieces fit together into a com-
plete ticket. Young v. Central of
Georgia Ry. Co., 120 Ga. 25, 47 S.
E. 556 (1904).
2 But only if it has become thus
illegible in the hands of the buyer—
not if it was thus sold him by the
ticket agent.
Northern Central
5
Ry. Co. v. O'Connor, 76 Md. 207,
24 Atl. 449, 35 Am. St. Rep. 442
(1892).
3 Texas & P. Ry. Co. v. Smith
(Tex.), 84 S. W. 852 (1905).
4 Fell v. Knight, 8 M. & W. 269,
10 L. J. Ex. 277, 5 Jur. 554 (1841);
Pinchon's Case, 9 Coke, 87 (1611);
Rex v. Ivens, 7 Car. & P. 213
(1835).
5 Delaware.-Reed & Walker v.
Phil., W. & B. R. R. Co., 3 Houst.
176 (1865).
Illinois.-Frink v. Schroyer, 18
Ill. 416 (1857).
Texas.—Galveston, H. & S. A.
Ry. Co. v. Schmidt (Tex. Civ.
App.), 25 S. W. 452 (1894).
6 Rome & Oswego Road Co. v.
Stone, 62 Barb. 601 (1863).
[ 380 ]
PREPAYMENT AS A CONDITION
[ § 443
the system upon which its bills were rendered, it was held
that it might by a mere notice require a particular cus-
tomer to pay in advance.¹ Where the waiver is plain in
a particular case the undertaking has of course begun
without the condition performed. Thus where a carrier
accepts a passenger or goods for carriage without making
demand for payment he is liable as common carrier of the
passenger or goods though the fare or freight has not been
paid. So if a telegram is taken with the understanding
that it is taken collect, the company is bound to forward
it with all dispatch.³
§ 443. Conduct dispensing with tender.
Certain situations are free from difficulty. If the com-
pany has repudiated its obligation it is unnecessary to go
further and make tender. Nor need a tender be kept
4
1 Malochee v. Gt. So. Telephone
& T. Co., 49 La. Ann. 1690, 22 So.
922 (1897).
2 United States.-Mellquist v. The
Wasco, 53 Fed. 546 (1892).
Illinois. Cleveland, C., C. & S.
L. R. R. Co. v. Scott, 111 Ill. App.
234 (1903).
Indiana.-Grand Rapids & I. R.
R. Co. v. Diether, 10 Ind. App. 206,
37 N. E. 39, 1069, 53 Am. St. Rep.
385 (1894).
Iowa.-Russ v. Steamboat Eagle,
14 Iowa, 363 (1862).
Mississippi.-Hurt v. Southern
Ry. Co., 40 Miss. 391 (1966).
Missouri.-Gratrot St. W. Co. v.
Missouri, K. & T. Ry. Co., 124 Mo.
App. 545, 102 S. W. 11 (1907).
North Carolina. - Porter v.
Raleigh & G. R. Co., 132 N. C. 71,
43 S. E. 547 (1903).
Texas. Houston & T. C. R. R.
Co. v. Washington (Tex. Civ. App.),
30 S. W. 719 (1895).
3 Alabama.-Western Union Tele-
graph Co. v. Cunningham, 99 Ala.
314, 14 So. 579 (1892).
Indiana.-Western Union Tele-
graph Co. v. Yopst, 118 Ind. 248, 3
L. R. A. 224, 20 N. E. 222 (1889).
Texas.-Western Union Tele-
graph Co. v. Snodgrass, 94 Tex. 284,
60 S. W. 308, 86 Am. St. Rep. 851
(1901).
A fortiori this is true when pre-
payment is expressly waived. West-
ern Union Telegraph Co. v. O'Keefe
(Tex. Civ. App.), 29 S. W. 1137
(1895).
Where a telegraph company re-
ceives payment for messages, but
sends them collect, and damages
proximately result therefrom, a re-
covery may be had. Hall v. West-
ern Union Telegraph Co., 51 So.
(Fla.), 819 (1910).
4 Galveston, H. & S. A. Ry. Co.
v. Schmidt (Tex. Civ. App.), 25 S.
W. 452 (1894).
[381]
§ 444]
PUBLIC SERVICE CORPORATIONS
good after such repudiation.¹ So if excessive payment is
demanded no tender need be made of what the patron
believes to be a reasonable sum.2 Even if the illegal rates
have previously been submitted to, there is no obligation
to pay such charges. Where a supply company has fixed
no rates it cannot insist upon a definite tender. And
where the charges to be made for a shipment cannot as
yet be ascertained readiness to pay is enough.5
3
Topic C. The Unit of Service
§ 444. Public service upon a unit basis.
4
One applying to a public service company for service
is not altogether free to determine what service he will
have, and for what amount of service he will pay. It is
for the public service company itself in the first instance
to decide upon what basis it will render service, and the
decision of the company as to the units in which it will
provide service is conclusive unless their action is unrea-
sonable. Thus one who wishes to go a journey cannot
demand the right to pay mile by mile, but the company
may insist that he pay for the whole journey as a unit
whenever fare is demanded. So one who wishes water
for irrigation cannot demand a day's supply, but it
may be insisted that he shall take for the whole season.
In these two instances the unit insisted upon by the
company is the natural unit of service; but there are many
instances in public service where there is no natural unit,
and where, therefore, the matter is left to the decision of
¹ Ashley v. Rocky Mountain Bell
Telephone Co., 25 Mont. 286, 64
Pac. 765 (1901).
2 Harrison Granite Co. v. Penn-
sylvania R. Co., 145 Mich. 712, 108
N. W. 1081 (1906).
3 Cleburne Water, I. & L. Co. v.
City of Cleburne, 13 Tex. Civ. App.
141, 35 S. W. 733 (1896):
4 Bothwell v. Consumers' Com-
pany, 13 Idaho, 568, 92 Pac. 533,
24 L. R. A. (N. S.) 485 (1907).
5 Pittsburg, C., C. & St. L. Ry.
Co. v. Wood (Ind. App.), 84 N. E.
1009 (1908).
[ 382 ]
PREPAYMENT AS A CONDITION
[ § 445
1
2
the company unless it acts outrageously. Thus it would
be entirely reasonable for the company to fix three months
as the unit of water service; ¹ and a telephone company
may fix a six months' period. Considered as an existing
fact the unit established is an entirety; payment of the
whole unit must be tendered in order to be in a position
to demand any service. This problem may well be dis-
cussed here. But whether the established unit is a reason-
able one depends upon principles governing the making of
rates which are more fully developed later; and discussion
of this problem is therefore postponed.
§ 445. Company cannot insist upon more than one unit.
In supplying water for irrigation, the agricultural sea-
son seems to be the natural unit of service which the com-
pany may enforce upon the applicant; but, on the other
hand, the company may not require the applicant to en-
gage to take a supply for a longer period; still less, as the
company attempted in one extreme case,³ require the
applicant to pay in advance for more than one season.
The demand made by the company in that case was for
the applicant to pay ten dollars per acre in advance for
ten years and, in addition, a dollar and a half per acre
for each of ten years. The court held this altogether un-
reasonable: "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
¹ A water company may make its
unit of service three months and re-
quire all takers to pay this rate in
advance. Harbison v. Knoxville
Water Co. (Tenn. Ch. App.), 53 S.
W. 993 (1899).
2 A telephone company may make
its unit of service six months and
require all subscribers to pay this
rental in advance. Buffalo County
Telephone Co. v. Turner, 82 Neb.
841, 118 N. W. 1064, 19 L. R. A.
(N. S.) 693 (1908).
3 Wheeler v. Northern Colorado
Irrigation Co., 10 Colo. 582, 17 Pac.
487, 3 Am. St. Rep. 603 (1887).
[383]
§ 446 ]
PUBLIC SERVICE CORPORATIONS
water because he is unable to pay in advance for its car-
riage beyond a season or two." 1
§ 446. The journey as a single unit.
3
The journey for which a passenger has a right to be
received and upon which he enters when he is received,
is the whole transit from his point of departure to his des-
tination; the entire journey which he means at that par-
ticular time to take. This journey is a single unit of serv-
ice; for it the carrier is entitled to make a single charge,²
and the passenger is entitled only to an unbroken car-
riage. Neither party has a right to break this single unit
of service into two. For the reason that the journey is
an entirety, the ticket with which a passenger pays his
fare is good only for the single journey on which the pas-
senger is then engaged. It is good for any journey which
is included within its terms; thus it is good from its start-
ing point to any station short of its destination or from
any station between its termini and the point of destina-
tion. If presented for use and accepted in payment of fare
it is at once used, and cannot be used again. That the one
payment is for the whole journey well appears from Auer-
bach v. New York Central & Hudson River Railroad.4
There a ticket from Buffalo to New York expired on the
¹ In Watauga Water Co. v. Wolfe,
99 Tenn. 429, 41 S. W. 1060, 63 Am.
St. Rep. 841 (1897), it was held that
one year was the reasonable unit for
the garden sprinkling service.
2 England.—London & N. W. Ry.
Co. v. Hinchcliffe, 2 K. B. 32
(1903).
Australia.-Davies v. William-
son, 21 New South Wales L. R.
(Law) 124 (1900).
3 Massachusetts.-Cheney v. Bos-
ton & M. R. R. Co., 11 Met. 121, 45
Am. Dec. 190 (1846).
New Jersey.-State v. Overton,
24 N. J. L. 435, 61 Am. Dec. 671
(1854).
Ohio.-Cleveland, C. & C. R. R.
Co. v. Bartram, 11 Ohio St. 457
(1860).
Pennsylvania.-Vankirk v. Penn-
sylvania R. R. Co., 76 Pa. St. 66, 18
Am. Rep. 404 (1874).
489 N. Y. 281, 42 Am. Rep. 290
(1882).
[ 384]
PREPAYMENT AS A CONDITION
[$447
26th of September, and the bearer took the train for New
York on the evening of that day and his ticket was called
for and punched. He thus paid his fare for the whole
journey in time, although the train did not reach his
destination until the next day.¹
§ 447. Forfeiture of right to original journey.
As will be seen the penalty accompanying ejection may
be the forfeiture of the right to pursue the original jour-
ney. In most cases it is held that even if the passenger
who has refused to pay properly is expelled at a regular
station and offers to pay the entire fare, he cannot demand
further carriage, since he has forfeited his right to be car-
ried on that journey.2 Where, however, the passenger
has a ticket for the station at which he was ejected, but
wrongfully claimed that his ticket entitled him to be car-
ried further, he has been held entitled to take the train
and ride on to his destination upon paying the additional
fare,³ if the train did not stop there for the purpose of
ejecting the plaintiff and he has quietly and submissively
yielded to expulsion.
¹ Morningstar v. Louisville & N.
R. R. Co., 135 Ala. 251, 33 So. 156,
(1902), accord.
2 United States.-Missouri, K. &
T. Ry. Co. v. Smith, 152 Fed. 608
(1902).
Georgia.-Georgia So. & Fla. Ry.
Co. v. Asmore, 88 Ga. 529, 15 S. E.
13, 16 L. R. A. 53 (1891).
L. & W. R. R. Co., 101 N. Y. 367, 5
N. E. 37, 54 Am. St. Rep. 699
(1886).
North Carolina.-Clark v. Wil-
mington & W. R. R. Co., 91 N. C.
506, 49 Am. Rep. 647 (1884).
Ohio.-Railroad Co. v. Skillman,
39 Ohio St. 444 (1883).
Tennessee.-Louisville & N. R. R.
Iowa.-Hoffbauer v. O. & N. W. Co. v. Garrett, 8 Lea (Tenn.), 438,
R. R. Co., 52 Ia. 342 (1879).
Maryland.-Garrison v. United
Ry. & E. Co., 97 Md. 347, 55 Atl.
371, 99 Am. St. Rep. 452 (1903).
New Jersey.-State v.
v. Camp-
bell, 32 N. J. L. 309 (1867).
New York.-Pease v. Delaware,
41 Am. Rep. 640 (1881).
3 Louisville & N. R. R. Co. v.
Breckinridge, 99 Ky. 1, 34 S. W.
702 (1896).
See also Choctaw, O. & G. R. R.
Co. v. Hill, 110 Tenn. 396, 75 S. W.
963 (1903).
25
[385]
§ 448]
PUBLIC SERVICE CORPORATIONS
§ 448. Effect of outright repudiation.
¹
When, however, the customer alleging no reasonable
grounds repudiates all intention of ever paying what the
company may demand it is obvious that such a person
may be refused further service so long at least as that
attitude is manifested. This is well brought out in the
quotation from a recent case which follows: "No past
violation of contract on the part of a consignee can justify
a carrier in failing to discharge a present duty. But in
the case at bar, according to the testimony for the appel-
lant, not directly denied by appellee, appellee not only
arbitrarily refused to pay demurrage charges which had
accrued in the past, but expressed his intention of per-
sisting in his refusal even should such charges be justly
incurred in the future. If this be true, appellant was
warranted in its refusal to further switch and place cars
at appellee's warehouse. By delivering the cars at the
warehouse appellant would have lost its lien, and could
only have collected its charges from appellee directly, and
he had already evidenced his intention of not paying. We
know of no principle of law under which anyone can an-
nounce an intention of not paying for a particular service,
and still rightfully demand that such service shall be
rendered; particularly where the charge for such service
is admitted to be just and reasonable, and is in fact paid
by all others who enjoy the benefit of it.” 2
1 Yazoo & M. V. R. R. Co. v.
Searles, 85 Miss. 520, 37 So. 939, 68
L. R. A. 715 (1904). See also
Brown v. Interborough R. T. Co.,
56 N. Y. Misc. 637, 107 N. Y. Supp.
629 (1907).
2 To much the same effect are:
California.-Fuller v. Azusa Irri-
gating Co., 138 Cal. 204, 71 Pac. 98
(1902).
Iowa.-Mystic Milling Co. v. C.,
M. & St. P. Ry. Co., 131 Iowa, 10,
107 N. W. 943 (1906).
Maine.-Robbins v. Railway Co.,
100 Me. 496, 62 Atl. 136, 1 L. R. A.
(N. S.) 963 (1905).
Pennsylvania.-Smith v. Scran-
ton Gas & Water Co., 5 Lack. L.
News, 235 (1899).
[386]
PREPAYMENT AS A CONDITION [§§ 449, 450
§ 449. Present unit distinguished from past unit.
It has been seen that as to the particular unit of service
which is being rendered the whole payment may be de-
manded at any time during the service, although part
has already been performed. It has, however, seemed to
some to follow that payment of whatever may be due
from the applicant may be demanded at any time and
further service refused if full settlement is not made. But
as the general principle is that a unit of service is indi-
visible, so different units of service should be regarded as
wholly distinct. It may be granted that to entitle him-
self to any service the applicant must pay for the whole
unit. It may also be granted that an applicant who has
forfeited his right to the present service must apply anew
for a new service. But it is submitted that the applicant
is entitled to present service upon payment for the pres-
ent unit, regardless of whether he owes for past services.2
And it would seem to follow that to refuse future service
when payment is offered until arrears shall be paid is, for
a public service company, illegal. But as to the legality
of such a policy there is a surprising conflict of authority.
And in view of the fundamental character of the problem,
the question requires the detailed discussion which it re-
ceives in the next topic.
1
Topic D. Payment of Arrearages Demanded
§ 450. Payment for previous carriage not required.
It has never been held as to common carriage that the
payment of compensation for previous carriages can be
¹ A patron of a railroad who has
forfeited his right to travel by sea-
son ticket during one period may
apply again for the next period.
Atwater v. Delaware, L. & W. R. R.
Co., 48 N. J. L. 55, 2 Atl. 803
(1886).
2 A subscriber to a telephone who
has been cut off for not observing
the regulations of the company can
apply as a new customer might.
State ex rel. v. Kinloch Telephone
Co., 93 Mo. App. 349, 67 S. W. 684
(1902).
[387]
§ 451 ] PUBLIC SERVICE CORPORATIONS
1
made a condition of accepting a passenger or taking other
goods. Where a person had on one occasion been found
riding without showing a ticket, it was held that he could
be ejected from that train rightfully, but that he could
not on that account be refused at a subsequent time the
right of purchasing another ticket. The court considered
such a refusal as inconsistent with the public duty of the
common carrier, saying: "We think that this misconduct
did not justify the company in excluding the relator there-
after from a privilege in which, as a member of the com-
munity, he was entitled to participate in common with
others of the public. Such a measure of punitive justice
has not been granted by any statute, and if inflicted by
any regulation of the company-which it is not-would
be an unreasonable exercise of the company's power to
make rules and regulations for the government of passen-
gers." Another manifestation of the same idea is in an-
other case which holds that a railroad cannot refuse a
shipment of freight because back charges for other freight
remain unpaid. It is this same policy which makes the
carrier's lien upon the goods specific, not general; for as
is well known it is not thought proper that the carrier
should retain the goods for other charges than for the
present service.
2
§ 451. Payment of arrearages not generally required.
As to the obligation to continue a supply when the
customer is already in arrears (although he tenders for
present service) there has been, and there remains, an ir-
reconcilable conflict of authority. On one hand are the
decisions which hold that in refusing to serve those who
come with ready payment, the company in question acts
¹ Atwater v. Delaware, L. & W.
R. R. Co., 48 N. J. L. 55, 2 Atl. 803
(1886).
2 East Ky. Ry. v. Holbrook, 4
Ky. Law Rep. 730 (1883).
[ 388 ]
PREPAYMENT AS A CONDITION
[ § 451
1
contrary to its public duty, which is to serve all that ap-
ply without discrimination. As was said tersely in a
California case of an irrigation company which had
adopted this policy: "It was therefore the duty of the
defendant under the law as established in this State to
furnish the plaintiff water upon tender of the established
rates; and this rule precludes the idea that any other
duties can be prescribed or imposed, except the tender of
the rate as a condition of supplying water as required by
law." To show that the policy of requiring payment of
arrearages is a helpful device to the company in making
its collections is not enough, if the method used is incon-
sistent with public duty. As to any hardship upon the com-
panies in prohibiting them from collecting back charges
in this way, it is enough to say that they need not have
given any credit at the outset. As one in public service
may always demand prepayment, having given credit,
the company must be content as other creditors must be
to collect its back bills by legal means. To attempt to
make such collections by refusing present service for ready
money would seem to be in the face of the public duty.2
1 Crow v. San Joaquin & K. R.
C. & Irrigation Co., 130 Cal. 309,
62 Pac. 562 (1900).
2 Holding this general doctrine as
to various services are:
Alabama.-Smith v. Birmingham
Waterworks, 104 Ala. 315, 16 So.
123 (1893).
Arkansas.-Danaher v. South-
western Telephone & Telegraph Co.
127 S. W. 963 (1910).
District of Columbia.-Lloyd v.
Gaslight Co., 1 Mackey, 331 (1881).
Georgia. Freeman v. Macon Gas-
light & Water Co., 126 Ga. 843, 56
S. E. 61, 7 L. R. A. (N. S.) 917
(1908).
Maine.-Wood v. Auburn, 87
Me. 287, 32 Atl. 906, 29 L. R. A. 376
(1895).
Maryland.-Gaslight Co. v. Colli-
day, 25 Md. 1 (1866).
Massachusetts.—Merrimack Bank
v. Lowell, 152 Mass. 556, 26 N. E.
97, 10 L. R. A. 122 (1891).
Nebraska.-State V. Nebraska
Telephone Co., 17 Neb. 126, 22 N.
W. 237, 52 Am. Rep. 404 (1885).
Tennessee.—Crumley v. Watauga
Water Co., 99 Tenn. 420, 41 S. W.
1058 (1897).
Texas.-Buffalo Bayou Ship
Channel Co. v. Milby & Dow, 63
Tex. 492, 51 Am. Rep. 668 (1885);
[389]
§ 452]
PUBLIC SERVICE CORPORATIONS
§ 452. Cases requiring payment of arrearages.
But there are other cases equally insistent in holding
that if the present applicant owes for a supply given him,
he is in no position to demand a further supply even if
ready money is tendered for it. Although this is ap-
parently in the face of public duty, much is made in these
cases of the argument of the convenience to the company
in making its collections. This is ingeniously elaborated
in a Washington case¹ thus: "The condition imposed,
that the company might refuse to furnish water to an
applicant refusing to pay for it a sum due for water there-
under, is in one sense a security for the payment thereof.
Instead of forming an estimate of the water that would
likely be used, and requiring a deposit in advance of a
sufficient sum of money to cover the same, or requiring
other security for the payment thereof, the water company
provides that at stated periods payments shall be made
in order that a large sum may not accumulate, it being
willing to take its chances for a stated time without other
security; surely this is more lenient than either to demand
a bond or other security, or a deposit of a sum of money
in advance large enough to be reasonably certain of cover-
ing the sum that should become due." However, it is not
enough in public employment to show that a right would
be valuable to justify it; nor even to show that it is policy
which is often employed in private business. It must be
Southwestern Telephone & Tele-
graph Co. v. Luckett (Tex. Civ.
App.), 127 S. W. 856 (1910).
A rule requiring those whose
water supply has been cut off to pay
a sum for having the water turned
on again upon payment is always
held unreasonable:
Missouri-State ex rel. v. Jones,
141 Mo. App. 299, 125 S. W. 1169
(1910).
Nebraska.-American Water-
works v. State, 46 Neb. 194, 64 N.
W. 711, 30 L. R. A. 447, 50 Am. St.
Rep. 610 (1895).
1 Tacoma Hotel Co. v. Tacoma
Light & Water Co., 3 Wash. 316, 28
Pac. 516, 14 L. R. A. 669, 28 Am.
St. Rep. 35 (1891).
[ 390 ]
PREPAYMENT AS A CONDITION
[ § 453
admitted that there are many cases which support this
right to insist upon the payment of arrearages.¹ But it
should be said, however, that in several of these cases the
right to shut off the supply for past default was established
by legislation or by ordinance, either by direct provision or
by clause in the charter.
§ 453. Applicant in default at other premises.
In the light of the usual arguments upon which the
cases divide upon the general question, it would seem that
the case where the applicant is in default at other premises
for the same service should fall within the general rule.
And it is usual to decide this case according to the general
doctrine held in the jurisdiction-some cases consistently
holding that arrears at other premises cannot bar the
applicant for present service; other cases holding that
such arrears should bar the applicant.2 What is surpris-
¹ In the following cases involving
various services, it has been held
that the payment of arrearages is
prerequisite:
California. Sheward v. Citizens'
Water Co., 90 Cal. 635, 27 Pac. 439
(1891).
Indiana.-Irvin v. Rushville Tele-
phone Co., 161 Ind. 524, 69 N. E.
258 (1903).
Kansas.-Shiras v. Ewing, 48
Kans. 170, 29 Pac. 320 (1892).
Minnesota.-State v. Board of
Water Commissioners, 105 Minn.
472, 117 N. W. 827, 127 Am. St.
Rep. 581 (1908).
Missouri.-McDaniel v. Water-
works, 48 Mo. App. 273 (1892).
New York.-People v. Manhattan
Gaslight Co., 45 Barb. 136 (1865);
Brass v. Rathbone, 153 N. Y. 435,
47 N. E. 905 (1897).
Ohio.-Bellaire Goblet Co. v.
Findlay, 5 Oh. Cir. Ct. 418 (1891).
Oregon.-Mackin v. Portland Gas
Co., 38 Oreg. 120, 61 Pac. 134, 49
L. R. A. 596 (1900).
Pennsylvania.—Brumm, Appeal
of (Pa.), 12 Atl. 855 (1888); Girard
Life Insurance Co. v. Philadelphia,
88 Pa. St. 393 (1879); Smith v.
Scranton Gas & Water Co., 5 Lack.
L. News, 235 (1899).
Washington.-Jenkins v. Colum-
bia Land Co., 13 Wash. 502, 43 Pac.
328 (1896).
2 The following cases, for exam-
ple, hold that a supply may be cut
off at one place for a bill owed by
the applicant for supply at other
premises:
New York.-People v. Manhattan
Gaslight Co., 45 Barb. 136 (1865).
Oregon.-Mackin v. Portland Gas
[391]
8 4541
PUBLIC SERVICE CORPORATIONS
ing, if not significant, is to find certain jurisdictions which
hold against the applicant in general, not sure enough of
their ground to hold against him in this particular case
apparently within the general rule.¹
3
§ 454. Payment of collateral claims cannot be demanded.
It would probably be generally conceded that the pay-
ment of wholly independent claims cannot be demanded
as a condition of supplying present service. Certainly a
gas company could not refuse to supply one who owed it
for coke sold.2 And it has been held in Tennessee that
a water company could not refuse to supply a customer
whose bill for services and material was unpaid. "The
defendant in the present case cannot justify its declination
to furnish water to the plaintiff by the fact of his failure
to pay the whole or a part of his outstanding duebill,
given for water and piping furnished a year or two before.
Upon tender of the regular rates, he was entitled to the
water like other persons, and without reference to his
past-due obligation. The company had given him credit
for the matters covered by the duebill, and could not
thereafter coerce payment by denying him a present
legal right."
Co., 38 Oreg. 120, 61 Pac. 134, 49
L. R. A. 596 (1900).
Tennessee. Jones v. Mayor of
Nashville, 109 Tenn. 550, 72 S. W.
985 (1903).
England.-Montreal Gas Co. v.
Cadieux, A. C. 589 (1899).
¹ The following cases hold that a
supply cannot be refused at one
place for arrears for supply fur-
nished the applicant at other
premises:
District of Columbia.-Lloyd v.
Gaslight Co., 1 Mackey, 331 (1881).
Maryland.-Gaslight Co. v. Colli-
day, 25 Md. 1 (1866).
Massachusetts.-Turner v. Revere
Water Co., 171 Mass. 329, 50 N. E.
634, 40 L. R. A. 657, 68 Am. St.
Rep. 432 (1898).
New Jersey.-Dayton v. Quigley,
29 N. J. Eq. 77 (1878).
2 See Re Commercial Bank and
London Gas Co., 20 Up. Can. Q. B.
233 (1860).
³ Crumley v. Watauga Water
Co., 99 Tenn. 420, 41 S. W. 1058
(1897).
[ 392 ]
PREPAYMENT AS A CONDITION [§§ 455, 456
§ 455. Cannot urge another's default.
It is plain enough upon these principles that one cannot
be required to pay claims against another. Thus the ves-
sel of one owner cannot be affected by the unpaid tolls of
another ship belonging to a stranger.¹ And it was re-
cently held in Missouri 2 that "there is no more reason for
compelling a married woman to pay her husband's debt,
for the payment of which she is not legally bound, than
there would be for compelling her to pay the debt of a
stranger."
§ 456. No requirement to pay arrears of predecessors.
It is well agreed that this disability is a personal matter.
When a householder applies to a gas or water company
for a supply of gas or water at his house, and tenders the
price, if it is required, or a deposit in advance, he cannot
be refused because an independent earlier occupant of the
premises is in arrear for his gas or water. To so hold
¹ Buffalo B. S. C. Co. v. Milby &
Dow, 63 Tex. 492, 51 Am. Rep. 668
(1885).
2 Vanderberg v. Gas Co., 126 Mo.
App. 600 (1907).
3 The common-law view is shown
by the following cases:
Illinois.-City of Chicago v.
Northwestern Mut. Life Ins. Co.,
218 Ill. 40, 75 N. E. 803, 1 L. R. A.
(N. S.) 770 (1905).
Kentucky.-Covington v. Ratter-
man, 128 Ky. 336, 108 S. W. 297, 17
L. R. A. (N. S.) 923 (1908).
Louisiana.-New Orleans G. L.
& B. Co. v. Paulding, 12 Rob.
(La.) 378 (1845).
Maryland.-Gaslight Co. v. Colli-
day, 25 Md. 1 (1866).
Massachusetts.-Turner v. Revere
Water Co., 171 Mass. 329, 50 N. E.
3
634, 40 L. R. A. 657, 68 Am. St.
Rep. 432 (1898).
Mississippi.-Burke v. City of
Water Valley, 87 Miss. 732, 40 So.
820, 112 Am. St. Rep. 468 (1905).
New Jersey.-Dayton v. Quigley,
29 N. J. Eq. 77 (1878); Johnson v.
Atlantic City Gas Co., 65 N. J. Eq.
129, 56 Atl. 550 (1903).
Pennsylvania.-Miller v. Wilkes-
Barre Gas Co., 206 Pa. St. 254, 55
Atl. 974 (1903).
South Carolina.-Poole v. Paris
Mt. Water Co., 81 S. C. 438, 62
S. E. 874, 128 Am. St. Rep. 923
(1908).
Washington.—Linne v. Bredes, 43
Wash. 540, 86 Pac. 858, 6 L. R. A.
(N. S.) 707, 117 Am. St. Rep. 1068
(1906).
England.
Sheffield Waterworks
[ 393 ]
§ 457]
PUBLIC SERVICE CORPORATIONS
would in effect decide that the supply is to the premises,
not (as it plainly is) to the occupants. However, it is possi-
ble for legislative action to alter this common law and to
provide for such a charge upon the premises either by
statute or charter provision, or by ordinance or (according
to a very few cases) by regulation of which all concerned
are apprised.1
§ 457. Assumption of predecessor's arrears.
The distinction should be noted, that where the incom-
ing occupant can fairly be said to have assumed the obliga-
tions of his predecessor he will be held to succeed to his
position and may be obliged to pay his arrears when that
rule prevails. Whether a trustee in bankruptcy or a
receiver of a corporation, as a tenant, is independent of
the bankrupt, his predecessor, has been discussed. But
the usual rule is that a trustee who elects to remain in
2
Co. v. Wilkinson, 4 C. P. D. 410
(1879).
1 The possibility of arranging this
by such methods is shown in:
V.
Georgia.-City of Atlanta
Burton, 90 Ga. 486, 16 S. E. 214
(1892).
Minnesota.-State v. Board of
Water & Light Com'rs, 105 Minn.
472, 117 N. W. 827 (1908).
New Jersey.-Vreeland v. O'Neil,
36 N. J. Eq. 399, affirmed in 37 N.
J. Eq. 574 (1883); Hudson Trust &
S. Inst. v. Carr-Curran Paper Co.,
58 N. J. Eq. 59, 43 Atl. 418 (1899);
Howe v. Orange, 70 N. J. Eq. 648,
62 Atl. 777 (1906).
New York.-Silkman v. Water
Commissioners, 71 Hun, 37, 24 N.
Y. Supp. 806 (1893).
Pennsylvania.-Altoona v. Shel-
lenberger, 6 Pa. Dist. Rep. 544
(1897); Brumm v. Pottsville Water
Co., 11 Cent. Rep. 792 (1888);
Brumm's Appeal, 22 Wk. N. Cas.
137 (1888); Girard Life Ins. Co. v.
Philadelphia, 88 Pa. St. 393 (1879);
Appeal of the City of Harrisburg,
107 Pa. St. 102 (1884); Common-
wealth v. Philadelphia, 132 Pa. St.
288, 19 Atl. 136 (1890); Miller v.
Wilkes-Barre Gas Co., 206 Pa. St.
254, 55 Atl. 974 (1903); Girard Life
Ins. Co. v. Philadelphia, 12 Phila.
293 (1878).
Tennessee.-Jones v. Mayor of
Nashville, 109 Tenn. 550, 72 S. W.
985 (1903).
England.-East London Water-
works Co. v. Kellerman, 2 Q. B. 72
(1892).
2 Tennessee.--Jones v. Nashville,
109 Tenn. 550, 72 S. W. 985 (1902).
England.-Gaslight Co. v. Can-
non Brewery Co., 1 K. B. 593
(1903).
[394]
PREPAYMENT AS A CONDITION
[ § 458
possession after the adjudication of bankruptcy is an
independent tenant, and may demand service without
first paying the bankrupt's arrears, and so may a receiver.¹
1
§ 458. Cannot shut off service for disputed arrearages.
Where the doctrine is held that the company may refuse
to continue service while arrearages are unpaid, the courts
are seldom willing to give the company the power to
compel settlement of disputed claims by refusing to deal
with a customer until he comes to their terms. Here
again it seems that as the exception is not far removed
from the general rule, the courts do not have the courage
to apply their principle in peculiarly hard cases. At all
events the cases almost universally hold that a company
cannot refuse to give present service or cut off existing
service for refusal to settle outstanding arrearages which
are in dispute.2 Mandamus will issue to compel the giving
¹ New Jersey.—Coe v. New Jersey
Midland Ry. Co., 30 N. J. Eq. 440
(1879).
Massachusetts.-Cox v. Malden
& M. Gaslight Co., 199 Mass. 324,
85 N. E. 180, 17 L. R. A. (N. S.)
1235 (1908).
2 Alabama.-Bienville Water Co.
v. Mobile, 112 Ala. 260, 20 So. 742,
33 L. R. A. 59, 57 Am. St. Rep. 28
(1895).
Indiana.-Xenia Real Estate Co.
v. Macy, 147 Ind. 568, 47 N. E. 147
(1896).
Iowa.-Graves v. Key City Gas
Co., 83 Iowa, 714, 50 N. W. 283
(1891).
Louisiana.-Ernst & Co. v. New
Orleans Waterworks Co., 39 La.
Ann. 550, 2 So. 415 (1887).
Maine.-Wood v. City of Au-
burn, 87 Me. 287, 32 Atl. 906, 29
L. R. A. 376 (1895).
Mississippi.—Cumberland Tel. &
Tel. Co. v. Baker, 85 Miss. 486, 37
So. 1012 (1905).
V. Nebraska
Nebraska.-State
Telephone Co., 17 Neb. 126, 22
N. W. 237, 52 Am. Rep. 404
(1885).
New York.-Van Nest Land Co.
v. New York Water Co., 7 N. Y.
App. Div. 295, 40 N. Y. Supp.
212 (1896); Sickles v. Manhat-
tan Gaslight Co., 64 How. Pr.
33 (1882); s. c., 66 How. Pr. 314
(1884); McEntee v. Kingston
Water Co., 165 N. Y. 27, 58
N. E. 785 (1900); Jones v. Roches-
ter Gas Co., 7 N. Y. App. Div.
474, 39 N. Y. Supp. 1110, af-
firmed 158 N. Y. 678, 52 N. E.
1124 (1896).
Oregon.-Mackin v. Portland Gas
Co., 38 Oreg. 120, 61 Pac. 134, 49
L. R. A. 596 (1900).
[395]
§§ 459, 460] PUBLIC SERVICE CORPORATIONS
of service under such circumstances or injunction to
prevent a threatened shutting off. Although there thus
can be no shutting off pendente lite, as soon as the obligation
is settled against the consumer by judgment being cast
against him, his supply can be shut off until he satisfies
the judgment.¹
§ 459. Character of the dispute.
3
2
It should be added that if his claim is obviously un-
reasonable he cannot insist upon protection of a court of
equity to litigate a frivolous claim. If, on the other hand,
the charge disputed is obviously illegal the injunction
may be made permanent. Note also that a patron who
has a counterclaim of a doubtful character cannot refuse
to make further payments for service by setting this against
his current bills. None of these problems will bother
a court which holds that there can be no shutting off for
arrearages under any circumstances.
4
§ 460. Waiver of right to refuse.
In a few cases it has been suggested that where an
old bill has been passed over and later installments ac-
Pennsylvania.-Sewickley School
Dist. v. Ohio Valley Gas Co., 154
Pa. St. 539, 25 Atl. 868 (1893).
South Carolina.-Poole v. Paris
Mt. Water Co., 81 S. C. 438, 62 S.
E. 874, 128 Am. St. Rep. 923 (1908).
Tennessee.-O'Rourke v. Citizens'
Street Ry. Co., 103 Tenn. 124, 52
S. W. 872, 46 L. R. A. 614, 76 Am.
St. Rep. 639 (1899).
¹ New York.—McEntee v. Kings-
ton Water Co., 165 N. Y. 27, 58 N.
E. 785 (1900); People v. Manhattan
Gaslight Co., 45 Barb. 136 (1865).
2 Louisiana.—Ernst & Co. V.
New Orleans Waterworks Co., 39
La. Ann. 550, 2 So. 415 (1887).
Pennsylvania.-Pennsylvania
Iron Co. v. Lancaster, 17 Lanc. L.
R. 161 (1900).
3 Minnesota.-Gordon & Fergu-
son v. Doran, 100 Minn. 343, 111 N.
W. 272, 8 L. R. A. (N. S.) 1049
(1907).
New Jersey.-Borough of Wash-
ington v. Washington Water Co., 70
N. J. Eq. 254, 62 Atl. 390 (1905).
4 Buffalo County Telephone Co.
v. Turner, 82 Neb. 841, 118 N. W.
1064, 9 L. R. A. (N. S.) 693
(1908).
See also State v. Nebraska Tele-
phone Co., 17 Neb. 126, 22 N. W.
237, 52 Am. St. Rep. 404 (1885).
[396]
PREPAYMENT AS A CONDITION
[ § 460
1
cepted the company cannot make such arrearages the
basis for a refusal to continue service. But if this has
happened by inadvertence the company may, it is held,
insist upon its rights, as in one case where the person in
arrears changed his residence so that it was not discov-
ered for a time that he was the person in arrears.²
2 And
where an agreement between a water company and a
consumer, separate and distinct from the contract for
water supply, provides that the rent shall be paid in ad-
vance, the company's recovery by suit of an installment for
a particular period will not preclude it from subsequently
setting up a right to shut off the water during such period
for nonpayment therefor. And similarly where the sub-
ject is covered by a special contract, it is still held that
the supply may be cut off for arrears.¹
3
¹ Wood v. City of Auburn, 87 Me.
287, 32 Atl. 906, 29 L. R. A. 376
(1895).
2 People v. Manhattan Gaslight
Co., 45 Barb. (N. Y.) 136 (1865).
3 Hieronymus v. Bienville Water
Co., 131 Ala. 447, 31 So. 31 (1901).
4 Gallagher v. Equitable Gaslight
Co., 141 Cal. 699, 75 Pac. 329
(1904).
[397]
CHAPTER XIV
PUBLIC DUTY AS TO DEPENDENT SERVICES
§ 470. Nature of the problem.
Topic A. Public Duty Involved
§ 471. The argument is close.
472. No direct duty to the dependent service.
473. Real duty is to patrons themselves.
474. Conservative view of the duty involved.
475. Progressive view of the duty involved.
476. Necessity for the public service law.
Topic B. Transportation Services in Particular
§ 477. Express companies: conservative view.
478. Comment thereon.
479. Express companies: radical view.
480. Discussion thereof.
481. Exclusive contracts with private car lines.
482. Arrangements for hauling sleeping cars.
483. Hack service: conservative view.
484. Objections thereto.
485. Hack service: radical view.
486. Argument therefor.
487. Access to connecting steamboats.
488. No access owed except at wharf stations.
489. Treatment of baggage transfer men.
490. Rights of competing draymen.
491. Arrangements with stock yards.
492. Contracts with grain elevators.
Topic C. Public Services in General
§ 493. Exclusive arrangements by innkeepers.
494. Equal facilities for ticker service.
495. Canal company giving monopoly of towage.
496. Arrangement for sprinkling service.
497. Telephone installation in public premises.
[398]
DEPENDENT SERVICES
[§§ 470, 471
Topic D. No Public Duty Involved
§ 498. Special concessions when no public duty involved.
499. Special concessions for private business.
500. Whether service provided is necessary.
501. Additional favors beyond obligation.
502. Exclusive contracts in private capacity.
503. Private activities often held ultra vires.
§ 470. Nature of the problem.
A special problem under the general head of the true
extent of public duty is whether in dealing with dependent
services those who conduct the principal service can
make such arrangements as they please with those who
apply for such special privileges, or whether there is a
public duty in the premises requiring that equal facilities
shall be granted. This subject has such commercial im-
portance that it is given separate treatment in this chapter;
for these subsidiary services which are dependent upon
special privileges from the principal service carry on a
great business in recent times. Although the most of
litigation upon the general issue involves the transporta-
tion services, because of their importance as a commercial
matter, still the same problem at times presents itself in
certain other public callings, so that it really constitutes
a general problem of public service.
Topic A. Public Duty Involved
§ 471. The argument is close.
There has always been-and there remains-a square
conflict of authority as to whether the law extends so far
as to cover this situation. On one side are the jurisdictions
conservative in attitude, which hold that there is no pub-
lic duty involved and that therefore the carrier may, for
example, discriminate among expressmen. On the other
hand are the progressive jurisdictions which hold that
there is a public obligation involved and that the inn-
[399]
§ 472]
PUBLIC SERVICE CORPORATIONS
keeper may not, therefore, admit certain hackmen to its
premises while excluding others. And in various other
subsidiary businesses of the same sort, where those who
offer a service to the public are dependent to a considerable
extent for opportunity to conduct their calling upon ob-
taining special privileges, there is the same conflict of
authority.
§ 472. No direct duty to the dependent service.
At the beginning of the controversy the ground may be
cleared by the admission that there is no direct duty owed
to those who conduct these dependent services. The
railroad company surely owes no duty to hackmen who
would ply their trade upon station premises; its sole duty
is to its passengers.¹ Similarly a telegraph company owes
no duty to a telephone company which wishes to install
an instrument,² its sole duty being to its patrons. It can-
not be said that the principal business has ever undertaken
the reception of the subordinate servitors upon a public
basis. Not even in the case of the expressman can it
usually be said that the railroad has undertaken to be a
common carrier of common carriers. For the plain fact
is that it does not purport to act as such but only makes
special contracts with particular forwarders for special
kinds of business conducted in an unusual way. And
certainly an innkeeper owes no duty to coachmen who
would solicit business from his guests. For those hackmen
1 Thus solicitors driving special
omnibuses for particular hotels may
be kept off railroad premises.
Arkansas.-Hot Springs v. Curry,
64 Ark. 152, 41 S. W. 55 (1897).
Missouri.-Laddonia v. Poor, 73
Mo. App. 465 (1898).
2 People v. Western Union Tele-
graph Co., 166 Ill. 15, 46 N. E. 731
(1897).
3
3 Thus a man carrying a bag of
express packages may be kept off a
line of boats as a passenger.
United States.-The R. D. Mar-
tin, 11 Blatch. 233 (1873).
New York.-Barney v. Oyster
Bay & H. Steamboat Co., 67 N. Y.
301 (1876).
[400]
DEPENDENT SERVICES
[ § 473
are not wayfarers seeking necessary entertainment, neither
do they tender the innkeeper his usual rates for entertain-
ment.¹
1
§ 473. Real duty is to patrons themselves.
On the other hand that there is some public duty in the
premises is plain. In the case of the express service the
modern railroad owes a duty of some sort in respect to the
transportation of small and valuable parcels safely and
quickly. But to whom is this duty owed? Certainly
not to the subordinate carrier, as has been seen. The duty,
if any, that it owes, seems to be rather to the general pub-
lic who ship through the expressman. "An express com-
pany engaged in the business of transporting small pack-
ages has as good a right to the benefits of the railroad as
the owners of the packages possess in person. It is im-
possible that they can all appear in person to claim their
rights, and it is sufficient that they are represented by
agents who are intrusted with their goods and have a
special property in them."2 So of the hackmen at rail-
way stations, the duty is plainly to the passenger himself.
Thus it is admitted by all that a railroad owes such duties
to its incoming and outgoing passengers that it cannot
exclude from its station driveways hackmen bringing pas-
sengers, or hackmen directed by passengers to call for
them.3 For of course no one would go so far as to deny the
¹ See State v. Steele, 106 N. C.
766, 11 S. E. 478, 8 L. R. A. 516, 19
Am. St. Rep. 573 (1890).
2 Per Lewis, C. J., in Sandford v.
Catawissa R. R. Co., 24 Pa. St. 378,
64 Am. Dec. 667 (1855).
In Rogers Locomotive & Machine
Works v. Erie Ry. Co., 20 N. J. Eq.
379 (1869), the defendant railroad
company entered into an arrange-
ment with a locomotive express
concern for the handling of all loco-
motives offered it for transporta-
tion. It was held that plaintiff, a
shipper of locomotives, could ob-
ject to this scheme to defeat him in
his individual right to have his
property transported.
V.
3 Rhode Island.-Griswold
Webb, 16 R. I. 649, 19 Atl. 143, 7
L. R. A. 302 (1889).
Tennessee.-Summit v. State, 8
Lea, 413, 41 Am. Rep. 637 (1881).
26
[401]
§ 474, 475] PUBLIC SERVICE CORPORATIONS
duty of the carrier of passengers to permit free access
and egress for those whom it is serving. Indeed in this
aspect the duty to give passengers access to hackmen
is the same as the duty to admit persons assisting pas-
sengers.
§ 474. Conservative view of the duty involved.
Even when it is once established that there is a public
duty toward their own patrons in respect to the subordi-
nate service involved, there remains the conflict of author-
ity as to the extent to which this duty goes. According
to the conservative view, the principal company fulfills
its duty by making provision for the service desired, which
may be done by an exclusive contract with one concern.
The decisions permitting this were first made upon the
elementary ground plainly avowed that as such service
was not within any real public profession, there was no
public obligation in the premises whatsoever.¹ But of
late years those who support these decisions have felt
obliged to defend them upon grounds of public policy.
They point to the public inconvenience involved in having
boisterous hackmen of all sorts at railway stations; they
insist upon the waste of duplication of express services
over the same railroad. And very recently pressed further
they suggest that it may be that in making these exclusive
arrangements public interests should not be left without
consideration.2
§ 475. Progressive view of the duty involved.
According to the progressive view the whole law of
public service applies to the situation throughout; and
the exclusive contract is held illegal as a necessary con-
1 For example, see the Express
Cases, 117 U. S. 1, 29 L. ed. 791, 6
Sup. Ct. 542, 628 (1886).
2 For example, read Hedding v.
Gallagher, 72 N. H. 377, 57 Atl. 225,
64 L. R. A. 811 (1903).
[ 402 ]
DEPENDENT SERVICES
[ § 476
sequence of that law. It is believed by these radical
persons who take the progressive view that however
much it is modified the conservative view of this matter
cannot give the public service the full protection which
this progressive view assures. For if the public duty does
not go to the extent of preventing discrimination in per-
forming it, it seems that none of the law of public service
can be applied between the railroad company and the
express company, for example. And it would seem to
follow that any express company, therefore, may be justi-
fied in charging extortionate prices. Whatever may be
the inconveniences of competition, it is usually worth
more than it costs. Moreover these services are not of
that class where enormous sums must be spent in providing
a duplicate equipment, nor where the public can only get
adequate service by the establishment of a legalized
monopoly. Even if hack rates are regulated by law it is
the maximum that is fixed and the public loses the chance
of reaching the minimum by competition.
§ 476. Necessity for the public service law.
That the monopoly system works well in particular
instances does not alter the fact that there is real danger
in leaving the situation without the full restraint of the
whole law; without the whole law the monopolist will be
able to exploit to some extent those whom it is his duty to
serve. But even if the common carrier at times exercises
his discretion by seeing to it that the dependent service
is provided under fair conditions, the danger remains in
leaving this important situation without law. For if
there is abuse of discretion and those who need the de-
pendent service are systematically exploited, there will
be no law in reserve by which redress is possible. And if
¹ See the language in McDuffee v.
Portland & R. R. R. Co., 52 N. H.
430, 13 Am. Rep. 72 (1873).
[ 403 ]
§ 477]
PUBLIC SERVICE CORPORATIONS
experience in dealing with the public service companies
is teaching anything, it is showing that only the most
comprehensive law will prove effectual; for if a way of
escape is left, it will be found. The time has long since
passed when laissez faire may be put forward as the better
method of dealing with any problem of public duty.¹
Topic B. Transportation Services in Particular
§ 477. Express companies: conservative view.
As a matter of fact this problem of the extent of the
duty of the principal service to those conducting a subor-
dinate service has arisen almost exclusively as yet in re-
spect to transportation services; and the most important
instance of this is the express service carried on over the
railroad systems. The leading authority upon this whole
subject is undoubtedly the Express Cases.2 These suits
were all begun by expressmen against railways to compel
them to give them respectively the express facilities on
the several lines of railway which they had previously
enjoyed by contract and of which they had been dis-
possessed by notice given in accordance with the terms of
exclusive contracts made with favored companies. Judg-
ments below had been rendered in favor of the express
companies from which the railroad companies appealed.³
The cases were elaborately argued; and the whole history
of the course of dealings that had gone on between the
express companies and the railroad companies was dis-
cussed. The decision of the majority of the court went
1 See the language in Montana
Union Ry. Co. v. Langois, 9 Mont.
419, 24 Pac. 209, 8 L. R. A. 753, 18
Am. St. Rep. 745 (1890).
eral courts. See Southern Express
Co. v. Memphis R. R. Co., 2 Mc-
Crary, 570 (1881); Wells, Fargo &
Co. v. O. Ry. & Navigation Co., 8
2117 U. S. 1, 29 L. ed. 791, 6 Sawyer, 600 (1883); United States
Sup. Ct. 542, 628 (1886).
3 The Express Cases, supra, over-
ruled what had just previously been
the weight of authority in the Fed-
v. M. & L. R. R. R. Co., 6 Fed. 237
(1881); Wells Fargo & Co. v. North-
ern Pac. Ry. Co., 23 Fed. 469
(1884).
[ 404 ]
DEPENDENT SERVICES
[ § 478
off upon this evidence, as may be seen in Mr. Chief Justice
Waite's conclusion in the majority opinion: "In all these
voluminous records there is not a syllable of evidence to
show a usage for the carriage of express companies on the
passenger trains of railroads unless specially contracted
for. While it has uniformly been the habit of railroad
companies to arrange, at the earliest practical moment,
to take one express company on some or all of their pas-
senger trains, or to provide some other way of doing an
express business on their lines, it has never been the prac-
tice to grant such a privilege to more than one company
at the same time, unless a statute ¹ or some special circum-
stances made it necessary or desirable." 2
§ 478. Comment thereon.
1
The arguments from policy that are urged in support
¹ This is governed by statute in
some jurisdictions; for example, to-
day in Massachusetts by statute,
such number of local expressmen
shall be permitted to operate over a
given route as the railroad commis-
sioners shall decide. (Rev. Laws,
chap. 111, sec. 241.) See Kidder v.
Fitchburg Ry. Co., 165 Mass. 398,
43 N. E. 115 (1896).
As to a general Canadian statute,
see Vickers v. Canadian Pacific Ry.
Co., 13 Ont. App. 210 (1908).
2 In accord with the Express
Cases, supra, are:
United States.-Baltimore & O.
Ry. v. Voigt, 176 U. S. 498, 20 Sup.
Ct. 385, 44 L. ed. 560 (1900).
California.-Pfister V. Central
Pac. R. R. Co., 70 Cal. 169, 11 Pac.
686, 59 Am. Rep. 404 (1886).
Illinois.-Blank v. Ill. Cent. R.
R. Co., 182 Ill. 332, 55 N. E. 332
(1899), semble.
Indiana.-Louisville, N., A. & C.
Ry. Co. v. Keefer, 146 Ind. 21, 44
N. E. 796, 58 Am. St. Rep. 348, 38
L. R. A. 93 (1896), semble.
Kentucky.-Davis v. Chesapeake
& O. Ry. Co., 29 Ky. L. Rep. 53, 92
S. W. 339, 5 L. R. A. (N. S.) 458
(1906), semble.
Maryland.-Dulaney v. United
Ry. & El. Co., 104 Md. 423, 65 Atl.
45 (1906).
Massachusetts.-Sargent v. Bos-
ton & L. R. R., 115 Mass. 416
(1874).
Ex-
North Carolina.-Atlantic
press Co. v. Wilmington & W. R. R.
Co., 111 N. C. 463, 16 S. E. 393
(1892), overruling Alsop v. South-
ern Exp. Co., 104 N. C. 278, 10 S. E.
297 (1889).
Vermont.-Robinson v. St. Johns-
bury & L. C. Ry. Co., 80 Vt. 129, 66
Atl. 814, 9 L. R. A. (N. S.) 129
(1907), semble.
[405]
§ 479]
PUBLIC SERVICE CORPORATIONS
of these conservative cases are not conclusive, although
they have a certain force. It is true that it is somewhat
more difficult for the railroads to handle three distinct
expresses than one, but not more difficult than many
problems of railroading that are part of every day traffic
handling. Subdivision of express cars upon light runs,
and more development of the special train for express
matter, would solve the difficulty; and the railroad is pro-
tected in any event by the right to charge a fair price for
its services based upon the cost of service. Again, it is
said that large express companies are better than a greater
number of smaller companies. It should be pointed out,
however, that the doctrine of the Express Cases may be
used to exclude the national express companies with their
full equipment from any railroad system, the directors
of which favor some local company.
§ 479. Express companies: radical view.
To bring out the difference of opinion upon this im-
portant matter it may be well to give at some length,
one of the leading cases upon the other side of this con-
troversy. The most radical decision upon this side is to
be found in McDuffee v. Portland and Rochester Rail-
road.¹ This was an action on the case by the plaintiff,
an expressman, against the defendant railway for not
furnishing the plaintiff terms, facilities, and accommoda-
tions for his express business on the defendants' road,
reasonably equal to those furnished by the defendants to
the Eastern Express Company. The defendants demurred
to the declaration, which demurrer the Supreme Court
finally discharged. The gist of Chief Justice Doe's opinion
may be seen from the following extract: "A railroad cor-
poration, carrying one expressman, and enabling him to
do all the express business on the line of their road, do
¹ 52 N. H. 430, 13 Am. Rep. 72 (1873).
[ 406 ]
DEPENDENT SERVICES
[ § 480
hold themselves out as common carriers of expresses;
and when they unreasonably refuse, directly, or indirectly,
to carry any more public servants of that class, they per-
form this duty with illegal partiality. The legal principle
which establishes and secures the common right, being
the perfection of reason, the right is not a mere nomi-
nal one, and is in no danger of being destroyed by a
quibble.¹
§ 480. Discussion thereof.
The strongest argument for the progressive view may
be developed from the principles laid down in the opinion
just quoted. If the public duty in this matter does not
go to the extent of preventing discrimination in perform-
ing it, none of the law of public service applies between
the railroad company and the express company; and it
follows that any express company may be charged extor-
tionate prices. Such unreasonable charges, if not for-
bidden, will inevitably react upon the general shipping
public to whom, by the hypothesis, a public duty is owed
to provide adequate service for reasonable rates. It may
be urged that the express business itself is a public calling,
and that therefore the express companies themselves are
bound to give satisfactory service at reasonable rates.
But their duty is relative; if they must pay extortionate
prices, they may charge these against the general shipping
1 In accord see:
Maine.-New England Exp. Co.
v. Maine C. R. R., 57 Me. 188, 2
Am. Rep. 31 (1869); International
Exp. Co. v. Grand Trunk Ry., 81
Me. 92, 16 Atl. 370 (1888).
New Jersey.-Rogers L. & M.
Wks. v. Erie R. R. Co., 20 N. J.
Eq. 379 (1869).
Pennsylvania.-Sanford v. Cata-
wissa R. R. Co., 24 Pa. St. 378, 64
Am. Dec. 667 (1855).
Texas.-State v. Missouri, K. &
T. Ry. Co., 99 Tex. 516, 91 S. W.
214, 5 L. R. A. (N. S.) 783 (1906).
England.-Pickford
V. Grand
Junction Ry. Co., 10 M. & W. 399
(1842); Parker v. Great Western
Ry. Co., 7 M. & G. 253 (1844);
Parker v. Great Western Ry., 11
C. B. 545, 583 (1851).
[ 407 ]
§ 481 1 PUBLIC SERVICE CORPORATIONS
public as necessary operating expenses. Therefore if the
whole law governing public duty is not applied between the
railways and the expressmen it would seem to be impossi-
ble in any entirely satisfactory way to protect by the law
the shippers of express matter from the machinations
of those who are concerned with transporting it.
§ 481. Exclusive contracts with private car lines.
The doctrine of the Express Cases is continually ham-
pering the common law in dealing with interstate trans-
portation. Within the last few years public opinion has
been much aroused against the exclusive arrangements
entered into between the railways and the various private
car lines. It is pretty generally agreed that what ought
to be done in dealing with the private car lines is to apply
to the whole situation the coercive law that regulates
public calling. Either the railways ought to be obliged
to conduct these special services themselves, furnishing
their own cars, or if they decide upon a different policy
they should be obliged to haul the cars of as many private
car lines as choose to undertake the business. But the
conservative doctrines held by the Supreme Court of the
United States stand in the way of the immediate appli-
cation to interstate commerce of any such progressive
views as these. In the meantime, in the absence of effi-
cient regulation by thorough-going law, those private
car lines, the refrigerator car lines particularly, that have
exclusive agreements with the railways are showing very
clearly what may happen when a common carrier is per-
mitted to foster a monopoly in a dependent service.
Similar issues have been raised as to private car lines for
the transportation of live stock; but the Federal courts
have applied the doctrine of the Express Cases to them
as in duty bound. The leading case on this point seems
to be United States ex rel. Morris v. Delaware, Lacka-
[ 408 ]
DEPENDENT SERVICES
[ § 482
1
wanna & Western Railroad Company ¹ in which Mr.
Justice Wallace said: "It is no part of the common-law
obligation of railway companies to furnish the same facili-
ties or instrumentalities of transportation to all alike,
and while it is unquestionably their duty to furnish suit-
able and adequate facilities for all reasonable necessities
of the business they engage in, they may nevertheless
choose their own appropriate means of carriage.” 2
§ 482. Arrangements for hauling sleeping cars.
3
Another important case since the Express Cases which
came up for decision in the Supreme Court of the United
States relating to sleeping car service really involves the
same general issue. In the leading case an exclusive con-
tract was held valid by the terms of which a railroad
company gave a palace-car company the exclusive right
for fifteen years to furnish parlor and sleeping cars on
all passenger trains of the railroad company, the railroad
company binding itself not to contract with any other
company to run the same class of cars over its lines during
that period. The court felt that there was no public
policy violated as there was no public duty involved.
An extract from the opinion of Mr. Justice Harlan shows
that this law still continues: "The defendant was under
a duty arising from the public nature of its employment
to furnish for the use of passengers upon its lines, such
accommodations as were reasonably required by the ex-
1 40 Fed. 101 (1889).
2 But the railroad in making its
special contract with a private car
line cannot stipulate against lia-
bility for personal injuries to those
concerned. See Baker v. Boston &
M. R. R. Co., 74 N. H. 100, 65 Atl.
386 (1906).
3 Chicago, St. L. & N. O. R. Co.
v. Pullman Car Co., 139 U. S.
79, 35 L. ed. 97, 11 Sup. Ct. 490
(1890).
There have recently been cases
holding the same doctrine:
Colorado.-Denver & R. G. R. R.
Co. v. Whan, 39 Colo. 230, 89 Pac.
39, 11 L. R. A. (N. S.) 432 (1908).
Texas.-Fort Worth & D. C. Ry.
Co. v. State, 99 Tex. 34, 87 S. W.
336, 70 L. R. A. 950 (1905).
[ 409 ]
§ 483 ]
PUBLIC SERVICE CORPORATIONS
isting conditions of passenger traffic. Its duty, as a car-
rier of passengers, was to make suitable provisions for
their comfort and safety. Instead of furnishing its own
drawing-room and sleeping cars, as it might have done,
it employed the plaintiff, whose special business was to
provide cars of that character, to supply as many as were
necessary to meet the requirements of travel. It thus
used the instrumentality of another corporation in order
that it might properly discharge its duty to the public.
So long as the defendants' lines were supplied with the
requisite number of drawing-room and sleeping cars, it
was a matter of indifference to the public who owned
them." 1
§ 483. Hack service: conservative view.
It is maintained by many courts that the railroad com-
pany is under no public duty to admit hackmen to its
station grounds to solicit business. One of the strongest
cases for the railway in this matter in recent years is
New York, New Haven & Hartford Railroad Company v.
Scovill.2 In that case it appeared from the complaint
that the plaintiff by its board of directors adopted a
regulation excluding from its station grounds all persons
who, without special permission in writing, should come
to solicit the carriage of passengers or their luggage. The
defendant, knowing the regulation, soon afterwards en-
tered upon its station grounds in Middletown to solicit
It has been remarked of this
situation as of other relationships
of this sort that as a railroad com-
pany is under no legal duty to re-
ceive a sleeping car from the Pull-
man Company with its employés
thereon it may make special con-
tracts limiting its liability.
Illinois. Chicago, R. I. & P. Ry.
Co. v. Hamler, 215 Ill. 525, 74 N. E.
705, 1 L. R. A. (N. S.) 674, 106 Am.
St. Rep. 187 (1905).
Indiana.-Russell v. Pittsburg,
C., C. & St. L. Ry. Co., 157 Ind.
305, 61 N. E. 678, 87 Am. St. Rep.
214 (1901).
271 Conn. 136, 41 Atl. 246, 42
L. R. A. 157, 71 Am. St. Rep. 159
(1898).
[410]
DEPENDENT SERVICES
[ § 483
business of that description. This was a bill for an in-
junction to stop this practice. The injunction was granted
in the lower court, but in the higher court this was set
aside. Mr. Justice Baldwin holding that the regulation
was reasonable: "Such a grant was within its lawful
powers, provided its terms were not inconsistent with
the reasonable accommodation of the passengers upon
its road. Nothing appears on the record to indicate any
such inconsistency. It may well be more convenient for
them to deal with a single local carrier than to be met,
on alighting from their train, by importunate solicitations
from a number of rival competitors for their custom; and,
in the absence of averments to the contrary, it is to be
presumed that the prices at this stand are fair, and the
service sufficient. If any of them prefer that of some other
person, they can secure it by an order in advance, which
would justify his entrance on the grounds; or by passing
by the stand established there, and going into the streets
outside, to engage whomsoever they think fit.” 1
1 To the same effect are:
United States.—Donovan v. Penn-
sylvania Co., 199 U. S. 279, 50 L.
ed. 192, 26 Sup. Ct. 91 (1905),
affirming 124 Fed. 1016, 60 C. C. A.
168, 120 Fed. 215, 57 C. C. A. 362,
116 Fed. 907.
Colorado.-Union Depot & Ry.
Co. v. Meeking, 42 Colo. 89, 94 Pac.
16, 126 Am. St. Rep. 145 (1908).
Georgia.-Kates v. Atlanta Bag.
& Cab Co., 107 Ga. 636, 34 S. E.
372, 46 L. R. A. 431 (1898).
Massachusetts.-Old Colony R.
R. v. Tripp, 147 Mass. 35, 17 N. E.
89, 9 Am. St. Rep. 661, B. & W. 166
(1888); Boston & A. R. R. Co. v.
Brown, 177 Mass. 65, 58 N. E. 189,
52 L. R. A. 418 (1900); Boston &
M. R. R. Co. v. Sullivan, 177 Mass.
230, 58 N. E. 689, 83 Am. St. Rep.
275 (1900).
Minnesota.-Godbout v. Union
Depot Co., 79 Minn. 188, 81 N. W.
835, 47 L. R. A. 532 (1900).
V.
New Hampshire.-Hedding
Gallagher, 72 N. H. 377, 57 Atl. 225,
64 L. R. A. 811 (1903), overruling
on rehearing 69 N. H. 650, 45 Atl.
96, 76 Am. St. Rep. 204.
New York.-Brown v. New York
C. & H. R. R. R. Co., 151 N. Y. 674,
46 N. E. 1145 (1897); New York C.
& H. R. R. R. Co. v. Flynn, 74 Hun,
124, 26 N. Y. Supp. 859 (1893);
New York C. & H. R. R. R. Co. v.
Sheeley, 27 N. Y. Supp. 185 (1893);
New York C. & H. R. R. R. Co. v.
Warren, 64 N. Y. Supp. 781, 31
Misc. Rep. 571 (1900).
411]
§ 484 1 PUBLIC SERVICE CORPORATIONS
§ 484. Objections thereto.
The practical inconvenience that the Justice feels could
be met by some reasonable regulation of the sort uni-
versally supported, confining all hackmen behind a bar
in the station and by other requirements of orderly con-
duct.¹ And if the railroad company does not take this
up, the city may pass ordinances to this end. But regu-
lations which arbitrarily admit one line of hacks to the
station and exclude another or give one a better position
than another are different matters, and whether they
Ohio. Snyder v. Depot Co., 19
Ohio Cir. Ct. 368 (1899); State v.
Union Depot Co., 71 Ohio St. 379,
73 N. E. 633, 68 L. R. A. 792 (1905).
Rhode Island.-New York, N. H.
& H. R. R. Co. v. Bork, 23 R. I. 218,
49 Atl. 965 (1901).
Utah. Oregon Short Line Ry. v.
Davidson, 33 Utah, 370, 94 Pac. 10,
16 L. R. A. (N. S.) 777 (1908).
England.-Painter v. London, B.
& S. C. Ry. Co., 2 C. B. (N. S.) 702
(1857).
Australia.-Borsum v. Hardie, 23
Vict. Sup. Ct. 479 (1898).
¹ Regulations of the company of
this sort are valid:
Indiana.-Lucas v. Herbert, 148
Ind. 64, 47 N. E. 146, 37 L. R. A.
376 (1897).
Massachusetts.
Commonwealth
v. Power, 7 Met. 596, 41 Am. Dec.
465 (1844).
Michigan.-Cole v. Rowen, 88
Mich. 219, 50 N. W. 138, 13 L. R.
A. 848 (1891).
Pennsylvania.-Smith v. N. Y.,
L. E. & W. R. R. Co., 149 Pa. St.
249, 24 Atl. 304 (1892).
Municipal ordinances of this
sort are valid:
2
Alabama.-Lindsay v. Mayor &
City Council of Anniston, 104 Ala.
257, 16 So. 545, 27 L. R. A. 436, 53
Am. St. Rep. 44 (1893).
Arkansas.-Emerson v. McNeil,
84 Ark. 552, 106 S. W. 479, 15 L. R.
A. (N. S.) 715 (1907).
Colorado.-Colorado Springs v.
Smith, 19 Colo. 554, 36 Pac. 540
(1894).
Illinois.-Danville v. Noone, 103
Ill. App. 290 (1901).
Indiana.-Veneman v. Jones, 118
Ind. 41, 20 N. E. 644, 10 Am. St.
Rep. 100 (1888).
Kansas.-Ottawa v. Bodley, 67
Kan. 178, 72 Pac. 545 (1903).
Minnesota.-St. Paul v. Smith,
27 Minn. 364, 7 N. W. 734, 38 Am.
Rep. 296 (1880).
Ohio.-Moerder v. Fremont, 19
Ohio Cir. Ct. 394 (1899).
Texas.-Vance, Ex parte, 42 Tex.
Cr. App. 619, 62 S. W. 568 (1901).
But see:
Georgia.—Cosgrove v. City Coun-
cil of Augusta, 103 Ga. 835, 31 S. E.
445, 68 Am. St. Rep. 149, 42 L. R.
A. 711 (1898).
Michigan.-Napman v. People,
19 Mich. 352 (1869).
[412]
DEPENDENT SERVICES
[ § 485
are valid or not depends upon whether it is consistent
with the general duty of the carrier or not to so arrange
matters.
$485. Hack service: radical view.
1
On the other hand, the position that a railroad may not
admit favored hackmen to solicit business upon the sta-
tion grounds and exclude other hackmen from equal
privileges is held in many cases. The argument for this
view is stated very clearly in State v. Reed ¹ by Mr. Chief
Justice Woods: "The question is one that affects the
interests of the public. The upholding of the grant of
this exclusive privilege would prevent competition between
rival carriers of passengers, create a monopoly in the
privileged hackmen, and might produce inconvenience
and loss to persons traveling over the railroad, or those
having freights transported over it, in cases of exclusion
of drays and wagons from its grounds, other than those
owned by the person having the exclusive right to enter
the railroad's depot grounds. To concede the right claimed
by the railroad in the present case would be, in effect,
to confer upon the railroad company the control of the
transportation of passengers beyond its own lines, and
to create a monopoly of such business, not granted by its
charter, and against the interests of the public." 2
1 76 Miss. 211, 24 So. 308, 71 Am.
St. Rep. 528, 43 L. R. A. 134 (1898).
2 To the same effect arc:
Florida.—Indian River S. B. Co.
v. East Coast Transp. Co., 28 Fla.
387, 10 So. 480, 29 Am. St. Rep. 258
(1891).
Illinois. Pennsylvania Co. V.
Chicago, 181 Ill. 289, 54 N. E. 825,
53 L. R. A. 223 (1899).
Indiana.-Indianapolis U. Ry. v.
Dohn, 153 Ind. 10, 53 N. E. 937, 74
Am. St. Rep. 274, 45 L. R. A. 427
(1899).
Kentucky.-McConnell v. Pedigo,
92 Ky. 465, 18 S. W. 15 (1892).
Michigan. Kalamazoo Hack &
Bus Co. v. Sootsma, 84 Mich. 194,
47 N. W. 667, 22 Am. St. Rep. 693,
10 L. R. A. 819 (1890).
Missouri.-Cravens v. Rodgers,
101 Mo. 247, 14 S. W. 106 (1890).
Montana.-Montana U. Ry. Co.
v. Langlois, 9 Mont. 419, 24 Pac.
[413]
§§ 486, 487] PUBLIC SERVICE CORPORATIONS
§ 486. Argument therefor.
There seems to be a violation of the duty owed by
the carrier to the passenger to permit free egress by these
special privileges at the station which prevent the pas-
senger from having equal access to all who wish to put
themselves at his disposal. The right of the passenger
to have ingress to the station by any carriage that he
chooses to employ nobody dares to deny; it is very hard to
see any essential difference from the obligation to give
egress without discrimination. Moreover, to allow the
grant of exclusive privilege permits the exploitation of
the passenger by this monopoly; for monopoly price is
always higher than competitive price. This may be shown
by the fact that the favored lines are always willing to
pay roundly for the exclusive privilege, even when maxi-
mum fares are fixed by local ordinance.
§ 487. Access to connecting steamboats.
An analogous question is raised when a railroad having
a terminus upon a wharf in a navigable stream, enters
into some arrangement with one steamboat line whereby
it may have exclusive access to the wharf. In the Indian
River Steamboat Co. v. East Coast Transportation Com-
pany,' a scheme to give an exclusive right was held op-
posed to public duty. Mr. Justice Mabry in the opinion
of the court said in one place: "The real question presented
here is, can complainant corporation, engaged in carrying
freight and passengers on the Indian River by means of
steamboats, rent from a railroad common carrier its dock
on said river, on which its track and terminal facilities
are located, and exclude others from landing at said ter-
minal point for the purpose of receiving freight and pas-
sengers to and from said common carrier? This question,
209, 18 Am. St. Rep. 745, 8 L. R. A.
753 (1890).
¹ 28 Fla. 387, 10 So. 480, 29 Am.
St. Rep. 258 (1891).
[414]
DEPENDENT SERVICES
[ § 488
we think, must be answered in the negative. If it be com-
petent to sustain such a contract, the common carrier can
select one connecting line of boats, and exclude all others
from doing business with it. Such a doctrine would lead
to the legalizing of a monopoly, and the sanction of an un-
fair and unjust preference between connecting and com-
peting lines of transportation. We do not understand that
a common carrier ever had such power as this." ¹
§ 488. No access owed except at wharf stations.
It should be said, however, that as no access or egress
is owed except at established stations by a railroad to
its patrons, the only legal wrong in such discrimination
against connecting steamboats at terminal wharves will
be at such wharves as are regular stations. This was the
deciding point in the final decision in Ilwaco Railway
and Navigation Company v. Oregon Short Line Railway
Company 2 where the Circuit Court of Appeals held that
a transportation company operating a railway and a line
of steamboats connecting at the company's wharf need
not permit the steamboats of a competitor to land at
such wharf. Mr. Justice McKenna pointed this out:
"We may add that the wharf does not seem to be a public
station. It is a convenience, only, in connecting its rail-
roads and boats; the general station being at Ilwaco, where
ample facilities exist." 3
¹ There is other authority to the
same effect: Macon, D. & S. R. R.
Co. v. Graham & Ward, 117 Ga.
555, 43 S. E. 1000 (1903).
2 57 Fed. 673, 15 U. S. App. 173, 6
C. C. A. 495 (1893), overruling 51
Fed. 611 (1892).
3 See Louisville & N. R. R. Co. v.
West Coast N. S. Co., 198 U. S. 483,
49 L. ed. 1135, 25 Sup. Ct. 745
(1905), overruling 121 Fed. 645
(1903), where it was held that if a
railroad provided adequate wharf-
age facilities, it might at a particu-
lar wharf exclude all but one line.
Gulf, C. & S. F. Ry. Co. v. Miami
S. S. Co., 86 Fed. 407, 52 U. S. App.
732, 30 C. C. A. 142 (1898), accord.
But see The Davidson, 122 Fed.
1006 (1903).
There are two New York cases on
this point. One holds that a rail-
[415]
§ 489 ] PUBLIC SERVICE CORPORATIONS
§ 489. Treatment of baggage transfer men.
it
This question, whether access to the station may be
granted exclusively to one baggage-transfer line and alto-
gether denied to others, is another case under the general
problem. There is upon this issue, therefore, the same
bitter controversy conducted along the same lines with the
same arguments advanced with the result that some ju-
risdictions will permit the exclusion of all but the favored
line, while others allow equal access to all. On one side
may be said, as before, that there is no direct duty owed
by the company to the baggage-transfer lines or any of
them; and that, therefore, the railroad may make any
discriminations that it pleases. For, as is pointed out in
the principal cases cited below if there is no public duty
in the matter, a public service company may bestow its
favors as it pleases; and to many courts it seems that
the railways may deal as they please with the baggage-
transfer people.¹ On the other hand, in many other juris-
dictions it would certainly be held that the general duty
owed by the railway company to its passengers to allow
them free egress from its station, involved the duty to
allow them free access within the station to those who
road which permits one steamboat
company to use a wharf upon which
its tracks terminate is not bound to
permit another line to do so.
Alexandria Bay Sb. Co. v. New
York C. & H. R. R. R. Co., 45 N. Y.
Supp. 1091, 18 N. Y. App. Div. 527
(1897). In the other it was held
that where a special franchise to
maintain a public wharf was granted
the rule was otherwise. Thousand
Island Sb. Co. v. Visgar, 86 N. Y.
App. Div. 126, 83 N. Y. Supp. 325
(1903).
1 Such is the doctrine of the fol-
lowing cases, for example:
Georgia.-Kates v. Atlanta Bag.
Co., 107 Ga. 636, 34 S. E. 372, 46
L. R. A. 431 (1899). See further
Hart v. Atlanta Terminal Co., 128
Ga. 754, 58 S. E. 452 (1908).
Massachusetts.-Old Colony R.
R. Co. v. Tripp, 147 Mass. 35, 17
N. E. 89, 9 Am. St. Rep. 661, B. &
W. 166 (1888).
V.
New Hampshire.-Hedding
Gallagher, 72 N. H. 377, 57 Atl. 225,
64 L. R. A. 811 (1903).
Virginia.-Norfolk & W. Ry. v.
Old Dominion Bag. Co., 99 Va. 111,
37 S. E. 784, 50 L. R. A. 722
(1901).
[416]
DEPENDENT SERVICES
[ § 490
might wish to put themselves at their disposal to aid them
in getting their belongings away.¹
§ 490. Rights of competing draymen.
On analogous principles to those discussed in regard to
baggage transfer it would seem that the railroad may not
permit certain draymen to have access to its freight houses
to cart goods to consignees, and refuse all access to other
carters. For example, if a consignee sends to a freight
house for his freight by a drayman of his own selection,
it should be clear that the railroad would act contrary
to its duty if it refused such a drayman access to the goods.
On the other hand, it may be granted that if the carrier
chooses to extend its route in effect by undertaking per-
sonal delivery of freight to the consignee at his address,
it may do this by its own carts and men, and need not
employ in that service all who wish to engage in it. But
whether if it offers delivery beyond its own route to its
patrons, and to that end enters into an exclusive contract
with one line of drays to perform this service, the owners
of other drays may complain if they are excluded from
offering their services to shippers in this behalf, is the
question of the duties of a common carrier in dealing
with a dependent service presented in still another form.
The Federal courts, as might be expected, see nothing
wrong in such an arrangement. The point is thus made in
St. Louis Drayage Company v. Louisville and Nashville
Railroad Company 2 where the facts involved the issue
1 Such is the doctrine of the fol-
lowing cases, for example:
Indiana.-Indianapolis U. Ry.
Co. v. Dohn, 153 Ind. 10, 53 N. E.
937, 74 Am. St. Rep. 274, 45 L. R.
A. 427 (1899).
Kentucky.-Palmer Transfer Co.
v. Anderson, 131 Ky. 217, 115 S. W.
182, 19 L. R. A. (N. S.) 756
(1909).
Michigan. Kalamazoo Hack &
Bus Co. v. Sootsuma, 84 Mich. 194,
47 N. W. 667, 22 Am. St. Rep. 693,
10 L. R. A. 819 (1890).
Missouri.—Cravens v. Rodgers,
101 Mo. 247, 14 S. W. 106 (1890).
2 65 Fed. 39 (1894).
27
[417]
§ 491 ] PUBLIC SERVICE CORPORATIONS
which has just been raised. In that case Mr. Justice
Phillips said: "It was essential that, in selecting a company
for the transfer of its freights between St. Louis and East
St. Louis, it should secure one fully equipped for doing
the business,-solvent and reliable. It could not afford
to take chances in so grave a matter. It might be unsafe
to trust to the caprice of competing transfer companies,
or to sporadic rivalries.” ¹
§ 491. Arrangements with stock yards.
The relative positions of the railroads and the stock
yards will be discussed later at greater length. It will
then be seen that although the decision at first was other-
wise it now seems to be held that there is no duty owed
to the owner of cattle to make special delivery of them at
any place along the line that he wishes. Consequently
it is held that the railroad may designate certain points of
delivery reasonably convenient, as it may of other freight
which it has undertaken to carry. Upon this basis the
courts have been willing to permit the railroad to designate
one of several stock yards as its cattle station in effect,
where it will deliver cattle consigned to that point and
have accordingly justified it in refusing to deliver at other
stock yards. This was well enough so long as the courts
held strictly as they once did that no charge could be
made under such circumstances against the shipments for
yardage if the consignee was ready to take the cattle away.
But under the latest decisions the courts have permitted
the stock yards company to make an additional charge,
¹ A drayage company employed
by one carrier to deliver goods in
transit to another carrier is its own
dependent service not an inde-
pendent connecting carrier. Hooper
v. Chicago & N. W. R. R. Co.,
27 Wis. 81, 9 Am. Rep. 439
(1870).
2
2 Covington S. Y. Co. v. Keith,
139 U. S. 128, 35 L. ed. 73, 11 Sup.
Ct. 461 (1891). See also Butchers'
& D. S. Y. Co. v. Louisville & N. R.
R. Co., 67 Fed. 35, 14 C. C. A. 290
(1895); Coe v. Louisville & N. R. R.
Co., 3 Fed. 775 (1880), is practically
overruled on this point.
[418]
DEPENDENT SERVICES
[ § 492
considering it to be a connecting service.¹ It would seem,
therefore, that there is danger in the present situation
that the railroad will not fulfill its duty. And should it
persist in handing its patrons over to the particular stock
yards, with which it has exclusive arrangements, the dan-
ger of exploitation which has been discussed earlier in
this chapter will sometime become apparent.
§ 492. Contracts with grain elevators.
As to grain elevators the rule is practically established
that the railroad must deliver at their private siding to
all of them that are along its route. Grain in bulk is a
peculiar kind of freight, which as a commercial matter
requires special delivery. And as this is a duty owed by
the railroad to its patrons, it would not be legal for it to
make a discrimination in favor of one grain elevator re-
quiring its patrons to receive grain consigned to them
through it and pay to its proprietor his fixed charge."
Against such a possibility more than one court has ur-
gently protested. "May such railroad companies, in like
manner, discriminate between grain elevators in the same
place, constitute one elevator its depot for the delivery
of grain, and force competing interests to receive from and
transfer the grain consigned to them through such selected
and favored channel? If railroad corporations possess
such right, they can destroy a refractory manufacturer,
exterminate, or very materially cripple competition, and
1 Interstate Comm. Comm. v.
Chicago, B. & Q. R. R. Co., 186
U. S. 320, 46 L. ed. 1182, 22 Sup.
Ct. 824 (1902). See also Central
S. Y. Co. v. Louisville & N. R. R.
Co., 192 U. S. 568, 48 L. ed. 565, 24
Sup. Ct. 339 (1904). See further
Louisville & N. R. R. Co. v. Central
S. Y. Co., 212 U. S. 132, 53 L. ed.
441, 29 Sup. Ct. 246 (1909).
² Illinois.—Chicago & North-
western Ry. Co. v. People of Illi-
nois, 56 Ill. 365 (1870).
Iowa.-Richmond v. Dubuque &
S. C. R. R. Co., 26 Iowa, 191 (1868).
Minnesota.-State v. Chicago, M.
& St. P. Ry. Co., 36 Minn. 402, 31
N. W. 365 (1887).
Nebraska.-Roby v. State ex rel.,
76 Neb. 450, 107 N. W. 766 (1906).
[ 419 ]
§ 493]
PUBLIC SERVICE CORPORATIONS
in large measure monopolize and control these several
branches of useful commerce, and dictate such terms as
avarice may suggest. We think they possess no such
power to kill and make alive.” 1
Topic C. Public Services in General
§ 493. Exclusive arrangements by innkeepers.
2
The same problems present themselves to a limited
extent in connection with the hotel keeper's business,
and it is submitted that they should be solved upon
the principles that have been defended. Thus as there
is a duty to incoming or outgoing guests, it would seem
that innkeepers should give the proprietors of competing
carriage services equal access to guests. An innkeeper
may not of course refuse admission to the grounds to
guests who come in any sort of vehicle by whomsoever
owned; and by the view here defended they ought to
give equal privileges to common carriers who wish to take
departing guests. In a leading case in New Hampshire
it was decided that proprietors of stagecoaches should
be given equal facilities within the inn. The court held
that the defendant had clearly a right to establish a line
of stagecoaches, and to go to the plaintiff's inn with
travelers; and he might of course lawfully enter it for the
purpose of leaving their .baggage and receiving his fare.
“And we are of opinion that, so long as others were per-
mitted to do the same, the defendant had an equal and
lawful right, notwithstanding any prohibition by the
plaintiff, to enter the plaintiff's inn for the purpose of
tendering his coach for the use of travelers, and soliciting
them to take passage with him; and for that purpose to
go into the common public rooms of the inn, where guests
¹ Coe v. Louisville & N. R. R.
Co., 3 Fed. 775 (1880).
See generally § 816, infra.
2 Markham v. Brown, 8 N. H.
523, 31 Am. Dec. 209 (1837).
[420]
DEPENDENT SERVICES
[ §§ 494, 495
were usually placed to await the departure of the stages,
although he was not requested by such guests; provided
there was a reasonable expectation that passengers might
be there, and he came at a suitable time, in a proper
manner, demeaned himself peaceably, and remained no
longer than was necessary, and was doing no injury to
the plaintiff.” ¹
§ 494. Equal facilities for ticker service.
2
It seems to be held that the stock exchanges are so
affected with a public interest as to be under a duty to
give the public access to their quotations. Having devoted
these quotations to public use they may be bound to see
that they are furnished to all concerned without dis-
crimination. And yet according to the decision 3 on this
point the stock exchanges may make an exclusive contract
with one telegraph service to handle its news.
"Even
assuming that the New York Stock Exchange is under an
obligation to make public the prices at which stocks are
sold on its floor, it has a right to control absolutely the
channel through which such quotations shall be given
out. It may, therefore, select one 'Ticker' Company,
and give to it all the privileges of connecting news upon
its floor and exclude all others."
§ 495. Canal company giving monopoly of towage.
The general issue was involved in a very recent case
1 In a recent New York case a
clause in a contract between a tele-
phone company and an innkeeper
by which it was provided that no
other telephone company should be
permitted to install stations in the
hotel was held void as against pub-
lic policy. Central New York Tel.
& Tel. Co. v. Averill, 55 N. Y
Misc. 346, 105 N. Y. Supp. 378
(1907).
4
2 See New York Stock Exchange
v. Chicago Board of Trade, 127 Ill.
153, 19 N. E. 855 (1889).
See the language in National
Telegraph N. Co. v. Western Union
Telegraph Co., 119 Fed. 294, 55
C. C. A. 198 (1902).
3 Wilson v. The Telegram Co., 18
N. Y. State Rep. 78, 3 N. Y. Supp.
633 (1888), semble.
4 Chesapeake & D. Canal Co. v.
[421]
§ 496 1
PUBLIC SERVICE CORPORATIONS
in which among other regulations of the Chesapeake and
Delaware Canal one prohibiting barges not the property
of the owner of the tug from being towed through the
canal by a tugboat hired for the purpose (virtually requir-
ing such barges to be turned over to a particular towing
company to be taken through) was held void, the United
States District Judge saying: "We concur in the opinion
of the court below that this regulation is not reasonable
or necessary, and therefore beyond the powers of the
canal company. In justification of this regulation the
canal company claims that in order to accommodate the
absolute necessities of three-fourths of the commerce
passing through the canal, it was necessary to have a
towing company whose charges shall be low, and which
will be ready at all times to take barges through without
delay, and that it found that, in order to get such service,
it was necessary to secure to such towing service a suffi-
cient amount of business at the low prices charged to pay
the expenses of the necessary equipment. We find nothing
in the charter of the company which justifies it in prevent-
ing a tug of proper dimensions from towing through the
canal any barge of suitable dimensions and equipment
upon the payment of the lawful toll. The canal is a pub-
lic highway and the public has the right to the free use
of it provided the legal tolls are paid." 1
§ 496. Arrangements for sprinkling service.
One of the most interesting cases upon the whole sub-
ject is the recent case of Louisville Water Company v.
Wiemer, in which it was held that the elaborate regula-
2
Gring, 159 Fed. 662, 86 C. C. A. 530
(1908).
¹ In Buffalo Bayou Ship Channel
v. Milby & Dow, 63 Tex. 492, 51
Am. Rep. 668 (1885), it was held
that the proprietors of a canal could
not refuse to let a vessel pass in tow
on the ground that the owners of
the towboat owed the canal com-
pany for unpaid tolls.
2 130 Fed. 257, 64 C. C. A. 503
(1904).
[422]
DEPENDENT SERVICES
[ § 497
tions of a water company requiring persons engaged in
sprinkling of streets to obtain a license from the company,
and providing that more than one license would not be
granted covering the same street or part of a street, which
should be granted to the applicant having the largest list
of petitioning owners of abutting property were entirely
reasonable. The course of reasoning followed is well
worth study. "Certainly it cannot be said that there
would be any propriety in granting licenses to any and
all comers who should demand it to do the same thing.
In this particular service it is obvious that this would
lead to chaos, would embarrass the service to the public,
and would be inconvenient and prejudicial to the company.
We see nothing, therefore, that could be injurious to any
lawful right of others in restricting the grant of the license
to one person for a definite locality, so long as that person
accomplished the duty of the company to the public in a
proper way. The concession of this place to the one who
could bring the largest approval of those of the other
party who were most interested, seems fair.
We are
therefore unable to find any satisfactory ground for hold-
ing the rule adopted by the appellant for determining
to what person the license should be granted to be void
as either beyond its powers or unreasonable." It is not
beyond the range of probability that this whole problem
might at some time long distant be worked out along the
lines of this decision, avoiding the waste of duplication
of service by granting an exclusive right to the concern
which will make the best terms with the public.
§ 497. Telephone installation in public premises.
A most interesting modern instance of this general
problem has come up in several ways in late years by
¹ Callery v. Waterworks Co., 35
La. Ann. 798 (1883), also allows a
water company to make exclusive
arrangements with one sprinkler
concern.
[423]
§ 498 ]
PUBLIC SERVICE CORPORATIONS
1
reason of the prevalent use of the telephone in all affairs.
Where there are several telephone systems in a community,
it has been desired at various times to have installed in
public premises such as railroad stations and hotel lobbies
the various telephone systems which serve the com-
munity. In a Canadian case ¹ it was held by a divided
Commission that a railroad might make an exclusive
arrangement with one telephone system, the majority
judge concluding "so far as I can discover the general
interests of the public are not prejudicially affected." But
in a recent New York case 2 it was held that an exclusive
arrangement made by a hotel keeper with one telephone
system was against public policy as the judge saw it.
"Telephonic communication has become a necessity in
commerce and business; and, while there are disadvan-
tages in two systems in one territory, a monopoly of such
a common necessity, with the lessened incentive to good
service and the best equipment which follows, is a greater
evil."
Topic D. No Public Duty Involved
§ 498. Special concessions when no public duty involved.
It is obvious that the outside limits of the public duty
which the principal service owes in respect to dependent
services have now been reached. So long as there was
a question of the right of the public in respect to their
service a public duty seems to be involved; within these
limits there should not be even opportunity for exploita-
1 The Telephone Case, 3 Can. Ry.
Cas. 205 (1904). In People v.
Western Union Telegraph Co., 166
Ill. 15, 46 N. E. 731 (1897) it was
held that a telegraph company was
not obliged to let a telephone com-
pany put an instrument in the office
although another telephone com-
pany was in.
2 Central New York Tel. & Tel.
Co. v. Averill, 55 N. Y. Misc.
346, 105 N. Y. Supp. 378 (1907).
In Idaho Independent Telephone
Co. v. Oregon Short Line R. R.
Co., 8 Idaho, 175, 67 Pac. 318
(1901), the question was left unde-
cided.
[ 424 ]
DEPENDENT SERVICES
[ § 499
tion, but once outside public duty the principal company
should be free to carry on its own business in its own way.
A carrier, like all others, may bestow favor where he
chooses. "Rights, not favors, are the subject of demand
by all parties indiscriminately. The incidental benefit
arising from the transaction of such business as may be
done on board of a boat or on a car, belongs to the carrier,
and he can allow the privilege to one and exclude from it
another, at his pleasure. A steamboat company or a
railroad company, may well allow an individual to open
a restaurant or a bar on their conveyance, or to do the
business of boot blacking, or of peddling books and papers.
This individual is under their control, subject to their
regulation, and the business interferes in no respect with
the orderly management of the vehicle." It is because
it owes no duty to passengers to see to the provision of
flowers, magazines, cigars and souvenirs, that a railroad
may grant exclusive privileges for the sale of these articles
upon its trains, and that it may grant in a station exclu-
sive rights to barbers and bootblacks and to advertisers
and solicitors.2
§ 499. Special concessions for private business.
Likewise in respect to private services of all sorts, the
innkeeper owes no duty to his guests and may therefore
enter into such exclusive arrangements as he pleases with
¹ The D. R. Martin, 11 Blatch.
233 (1873). The same parties were
involved in Barney v. Oyster Bay
& H. Steamboat Co., 67 N. Y. 301
(1876), with the same result.
2 As it owes no public duty in the
premises the common carrier in its
special contracts with train boys
may stipulate against liability for
personal injuries. See:
Connecticut.-Griswold, Adm., v.
New York & N. E. R. R. Co., 53
Conn. 371, 4 Atl. 261, 55 Am. Rep.
115 (1885).
Illinois. Chicago, R. I. & P. R.
R. Co. v. Moran, 117 Ill. App. 42
(1904).
Louisiana.-Higgins v. New Or-
leans, M. & C. R. R. Co., 28 La.
Ann. 133 (1876).
Missouri.—Padgitt v. Citizens'
Ry. Co., 159 Mo. 143, 60 S. W. 121,
52 L. R. A. 854, 81 Am. St. Rep. 347
(1900).
[425]
§ 500 ]
PUBLIC SERVICE CORPORATIONS
those who wish to carry on such businesses with guests.
In a leading case in North Carolina¹ it was held that a
proprietor of a hotel could exclude from his premises
a drummer for a livery stable, as he had entered into an
exclusive arrangement with one livery stable which had
an office there. "An innkeeper has unquestionable right
to establish a news stand or barber's shop in his hotel,
and to exclude persons who come for the purpose of vend-
ing newspapers, or books, or soliciting employment as
barbers; and in order to render his business more lucrative
he may establish a laundry or a livery stable in connection
with his hotel, or contract with a proprietor of a livery
stable in the vicinity, to secure for the latter, as far as
he legitimately can, the patronage of his guests in that
line for a per centum of the proceeds or profits derived
by such owner of vehicles and horses, from dealing with
the patrons of the public house." It should be noted in
this connection that all of the incidental services that have
been mentioned under this topic are private in character.
This is a significant fact, for it shows that none of them
are so necessary to the patrons of the principal service
as to be affected with a public interest.2
§ 500. Whether service provided is necessary.
The point has been raised a few times whether there is
a duty in respect to the provision of food for passengers.
If there is a public duty it is to the traveling passenger;
and it can hardly be denied that those who carry pas-
¹ State v. Steele, 106 N. C. 766,
11 S. E. 478, 8 L. R. A. 516, 19 Am.
St. Rep. 573 (1890). See also as to
the granting of similar concessions
in common carriage the language
used in Memphis News Publishing
Co. v. Southern Ry. Co., 110 Tenn.
684, 75 S. W. 941, 63 L. R. A. 150
(1903).
2 The cases are plain that agents
in general may be prevented from
soliciting on the premises:
United States.-Jenkes v. Cole-
man, 2 Sumner, 221, Fed. Cas. No.
7258 (1835).
Louisiana.—Ford v. East Louisi-
ana R. Co., 110 La. 414, 34 So. 585
(1903).
[426]
DEPENDENT SERVICES
[ § 501
sengers over long distances owe them the duty to make
provision for food for them. The rule is thus stated in
Peniston v. Chicago, St. Louis Railroad Company,¹ by
Mr. Justice Poche: "In conveying passengers through
long journeys, such as from Chicago to New Orleans,
at great speed and with rapidity, a common carrier is
required by humanity, as well as by law, to provide its
passengers with easy modes and to allow them reasonable
time for the purpose of sustaining life by means of food
and necessary refreshments." But it seems to be the
law that the railroad company fulfills its obligation in
this respect by making an exclusive contract with one
concern. 2 However there is clearly no duty to provide
passengers with refreshments between meals.³ 'The
business of selling lunches to passengers or of soliciting
from them orders for the same is not one which every
citizen has the right to engage in upon the tracks and
premises of a railway company, and, consequently, those
who do engage in it and carry it on must depend upon
the company for the privilege." 4
§ 501. Additional favors beyond obligation.
""
Even when there is a duty in the premises to give proper
accommodation to competing services, the obligation does
not go beyond reasonable facilities. Thus although there
is conflict of authority as to whether a railroad company
is bound to give competing baggage transfer companies
necessary privileges, there seems to be no doubt of its
134 La. Ann. 777, 44 Am. Rep.
444 (1882).
2
Kelly v. C., M. & St. P. Ry.
Co., 93 Iowa, 436, 61 N. W. 957
(1895), and Perth General Station
Committee v. Ross A. C. 479
(1897), both permit exclusive con-
tracts with eating houses.
* The quotation is from Fluker v.
Georgia R. R. & Banking Co., 81
Ga. 461, 8 S. E. 529, 2 L. R. A. 843,
12 Am. St. Rep. 328 (1888).
4 Smallman v. Whilter, 87 Ill. 545,
29 Am. Rep. 76 (1877), accord.
[427]
§ 501 1 PUBLIC SERVICE CORPORATIONS
right to permit certain transfer men to enter upon the
trains before reaching the station, while refusing this
favor to others; or to permit one man to check baggage
from the house of the traveler, while refusing this per-
mission to others.¹ Likewise certain parties may be given
office room upon public premises, this favor being refused
others. Thus in Audenried v. Philadelphia & Reading
Railroad Company, the question was as to the right of
the defendant company to so parcel or divide its wharf
among other coal dealers as to exclude the complainant
therefrom. After expressing great doubt as to whether
the defendant, under its charter, was bound to provide
wharf accommodations to any of the coal dealers in ques-
tion, or was a trustee to any extent for them, the court
adds: "Transportation by a common carrier is necessarily
open to the public upon equal and reasonable terms. An
exclusive right granted to one is inconsistent with the
rights of all others. This was not transportation, but
wharfage, the nature of which requires exclusive posses-
sion temporarily."
1
¹ Georgia.-Kates v. Atlanta Bag-
gage, etc., Co., 107 Ga. 636, 34 S. E.
372, 46 L. R. A. 431 (1899).
Texas.-Lewis v. Weatherford,
M., W. & N. W. Ry. Co., 36 Tex.
Civ. App. 48, 81 S. W. 111 (1904).
2 Audenried v. Phila. & Reading
R. R. Co., 68 Pa. St. 370, 8 Am.
Rep. 195 (1871).
See also State of Louisiana v.
Southern Pacific Ry. Co., 52 La.
Ann. 1822, 28 So. 372 (1900).
A baggage transfer company has
a right to conduct in the baggage
room as an independent private en-
terprise a special office where it re-
ceives and keeps on storage parcels
of prospective passengers until they
are called for by the passenger after
he has obtained his ticket or other
evidence of the right of transporta-
tion, and then, upon exhibition of
the same, to act as his agent to
check the parcel as baggage to be
forwarded to the point designed by
the ticket. Atlanta Terminal Co.
v. American Trans. Co., 125 Ga.
678, 54 S. E. 711 (1906).
A lease by a railroad company of
its land between its tracks and a
river held and treated by it as part
of its depot grounds is not for a
legitimate purpose but constitutes a
discrimination between shippers, its
effect being to give one company
engaged in floating ties down the
river for shipment by the railroad
an advantage over others in the
[428]
DEPENDENT SERVICES
[ §§ 502, 503
§ 502. Exclusive contracts in private capacity.
1
This is particularly plain where the business to which
the exclusive contract relates is plainly private. Thus
where a corporation manufacturing gas for use by in-
habitants of a certain city necessarily accumulated coke
in large quantities, and, not being engaged in the selling
of fuel, contracted with a coal company to deliver to it all
its accumulations of coke, and not to dispose of the same
to any other person or company, it was held that the
agreement to sell its entire output to the coal company
was not unlawful, on the ground that unless there is a
public duty in the premises the company may do as it
pleases. So an electric company may maintain a wiring
department which may make such arrangements as it
pleases with those who chose to patronize it. But it must
not discriminate between those of its customers who
patronize its wiring department and those who do not.2
§ 503. Private activities often held ultra vires.
This is of course subject to the fundamental rule of
corporation law which forbids a corporation from engaging
in an ultra vires business, and a public service company
cannot usually get far into a purely private business
without coming into conflict with this law. However,
the incidental powers of such companies may often fairly
be measured by the universal custom prevailing in the
given business, but where there is no such common prac-
same business, in getting them to
the cars.
Hobart-Lee Tie Co. v.
Stone (Mo. App.), 117 S. W. 604
(1909).
¹ State v. St. Paul Gaslight Co.,
92 Minn. 467, 100 N. W. 216 (1904).
2 Snell v. Clinton Electric Light
Co., 196 Ill. 626, 63 N. E. 1082, 89
Am. St. Rep. 341, 58 L. R. A. 284
(1902).
³ See People ex rel. v. Illinois Cen-
tral R. R. Co., 233 Ill. 378, 84 N. E.
368, 16 L. R. A. (N. S.) 604, 122
Am. St. Rep. 181 (1908), railroad
has no implied power to operate
grain elevators. And Attorney
General v. Great Northern R. R.
Co., 29 L. J. Eq. (N. S.) 794 (1860),
railroad has no implied power to
work coal mines.
[ 429 ]
§ 503 ]
PUBLIC SERVICE CORPORATIONS
tice the case is difficult. Thus it is at present undecided
what power a transportation company has to make ar-
rangements for granting advertising privileges, although
it would generally be agreed that if it has corporate power
to make such contracts there is no reason in the public
service law why it should not make exclusive arrange-
ments.¹
1 In New York v. Interborough
Rapid Tr. Co., 53 N. Y. Misc. 126,
104 N. Y. Supp. 157 (1907), and in
Burns v. St. Paul City Ry. Co., 101
Minn. 363, 112 N. W. 412, 12 L. R.
A. (N. S.) 757 (1907), it was thought
that such arrangements were within
the implied powers of the trans-
portation corporation and were at
all events not in conflict with any of
its public duties. In National Car
Advertising Co. v. Louisville & N.
R. R. Co., 110 Va. 413, 66 S. E. 88,
24 L. R. A. (N. S.) 1010 (1909),
and in Pittsburg & B. Traction Co.
v. Seidell, 6 Pa. Dist. R. 414 (1896),
it was thought that any advertis-
ing arrangements by transportation
companies were ultra vires, if not
indeed contrary to its public duty.
See also Fifth Ave. Coach Co. v.
New York, 126 N. Y. App. Div. 657,
110 N. Y. Supp. 1037 (1908), re-
ferring to Pears v. Manhattan Ry.
Co., N. Y. Law Jour., Feb. 3, 1900,
both expressing the opinion that
such arrangements were ultra vires.
[430]
CHAPTER XV
OBLIGATION AS TO CONNECTING SERVICES
§ 510. Public duty as to connecting services.
Topic A. Basis on Which Through Service Is Undertaken
§ 511. Through service may be undertaken.
512. English presumption of through carriage.
513. American presumption of successive service.
514. What constitutes connecting service.
Topic B. Mutual Obligations in Successive Service
§ 515. Obligation of initial service to take to connection.
516. Special law applicable thereto.
517. Special duty to make delivery to connection.
518. Further duties of the initial service.
519. Obligation of second service to accept.
520. Peculiar rules relating thereto.
521. Observance of patron's directions.
522. Results of any disobedience.
523. Discrimination permissible in granting favors.
524. Discrimination forbidden where public duty involved.
Topic C. Facilities for the Interchange of Business
§ 525. Construction of physical connections not obligatory.
526. Statutory requirements go further.
527. Obligation to have transfer facilities at junction points.
528. Whether freight must be taken in original cars.
529. Such transportation now usually held obligatory.
530. Qualifications of the doctrine.
531. Provision of cars for further service.
532. Statutory requirement of through facilities.
Topic D. Joint Through Routing and Rating
§ 533. Through arrangements not obligatory.
534. Initial company may select connecting line.
535. Limitations upon joint rates.
536. Statutory provision for through routes.
[431]
§§ 510, 511] PUBLIC SERVICE CORPORATIONS
§ 537. Constitutionality of such statutes.
538. Application of these statutes.
539. Statutory regulation of connecting services.
540. Policy of such legislation.
§ 510. Public duty as to connecting services.
The law relating to connecting services is quite volumi-
nous, but upon the matter with which the present chapter
is principally concerned there is as yet very little authority.
There are, for example, many cases as to the respective
liabilities of connecting carriers, but very few as to the
duty of an unwilling carrier to participate in connecting
carriage. The problem cannot be dismissed by saying
that for a carrier to make arrangements with one con-
nection while refusing to do the same with another is
illegal discrimination, for that this is true only to the ex-
tent that public duty is involved; so that the fundamental
question is, what is the extent of the duty of a railroad
in dealing with connecting railroads. It may not refuse
altogether to have dealings with them, to accept goods from
them, for example. Obviously this will not do; it is the
duty of the railroad as a common carrier to accept from
any person tendering goods. On the other hand, it can
hardly be said that the railroad must accord to all rail-
roads every special privilege that it gives one railroad in
a joint traffic agreement; for what it does for one as a
favor, another cannot demand as a right. The truth of
this matter must therefore lie between two extremes in
some practicable compromise that will meet the neces-
sities of the public while recognizing, as far as may be, the
independence of the carriers.
Topic A. Basis on Which Through Service is Undertaken
§ 511. Through service may be undertaken.
The rule is generally recognized that the obligation of
a carrier to transport goods is limited to the route over
[432]
CONNECTING SERVICES
[ § 511
which it professes service. But although a carrier there-
fore cannot be called upon to undertake the transporta-
tion of goods beyond its own route, it may voluntarily
assume through transportation, relying upon its connec-
tions as agencies to fulfil its undertaking.¹ For while a
railroad cannot be compelled to accept and to agree to
carry goods to points beyond its own line, yet it may do
SO. And if the carrier expressly or impliedly contracts
to carry from the consignor to the consignee it will be
liable as a common carrier for the whole distance. Another
example is the acceptance of a telegram by the initial
company upon the basis that it will be responsible for
its delivery at its destination, although that is a point
upon the lines of another company.2 These are but two
instances (although by far the most prominent) of the
possibility much described later, that although a public
service company may not be compelled to go outside its
1 United States.-Missouri, K. &
T. Ry. Co. v. McCann, 174 U. S.
580, 43 L. ed. 1093, 19 S. Ct. 755
(1898).
California.-Colfax Mountain
Fruit Co. v. Southern Pac. Ry. Co.,
46 Pac. 668 (1896), 118 Cal, 648,
50 Pac. 775, 40 L. R. A. 78 (1897).
Georgia.-Central R. R. Co. v.
Hasselkus, 91 Ga. 382, 17 S. E. 838,
44 Am. St. Rep. 37 (1893).
Illinois. Toledo, W. & W. Ry.
Co. v. Lockhart, 71 Ill. 627 (1874).
Indiana.—Chicago, St. L. & P.
R. R. Co. v. Wolcott, 141 Ind. 267,
39 N. E. 451, 50 Am. St. Rep. 320.
Kentucky.-Farley v. Laary,
107 Ky. 523, 54 S. W. 840, 47 L. R.
A. 383 (1900).
Maine.-Perkins v. Portland, S.
& P. R. R. Co., 47 Me. 573, 74 Am.
Dec. 507 (1859).
Massachusetts.-Hill Mfg. Co. v.
Boston & Lowell R. R. Co., 104
Mass. 122, 6 Am. Rep. 202 (1870).
Michigan.—Johnson v. Toledo, S.
& M. Ry. Co., 133 Mich. 596, 95
N. W. 724 (1903).
Minnesota.-Stewart v. Erie &
W. Transp. Co., 17 Minn. 372
(1871).
Pennsylvania.-Baltimore & P.
Steamboat Co. v. Brown, 54 Pa. St.
77 (1867).
Wisconsin.-Hansen v. Flint &
P. M. R. Co., 73 Wis. 346, 41 N. W.
529, 9 Am. St. Rep. 791 (1889).
2 Texas.-Jones v. Roach, 21
Tex. Civ. App. 301, 51 S. W. 549
(1899).
Canada.-Stevenson v. Montreal
Telegraph Co., 16 Upp. Can. Q. B.
530 (1858).
28
[433]
§ 512]
PUBLIC SERVICE CORPORATIONS
profession it may voluntarily undertake such service upon
a public basis.
§ 512. English presumption of through carriage.
In England and in some of the United States, the pre-
sumption is that when goods are taken marked for a point
beyond the route of the initial carrier, through service is
assumed.¹ In the leading English case, Muschamp v.
Lancaster and Preston Junction Railway Company 2 it
was held that such acceptance of goods so marked in it-
self made out a prima facie case from which the jury were
justified in finding the accepting carrier liable as such
even for a loss occurring beyond its own line. Lord Abin-
ger thus began his discussion of the case: "The simple
question in this case is, whether the learned judge mis-
directed the jury in telling them that if the case were
stripped of all other circumstances beyond the mere fact
of knowledge by the party that the defendants were car-
riers only from Lancaster to Preston, and if, under such
circumstances, they accepted a parcel to be carried on to
a more distant place, they are liable for the loss of it, this
being evidence whence the jury might infer that they
undertook to carry it in safety to that place. I think that
1 Alabama.-See Lotspeich V.
Central R. Co., 73 Ala. 306 (1882).
Arkansas.-Kansas City, F. S. &
M. R. R. Co. v. Washington, 74
Ark. 9, 85 S. W. 406 (1905).
Georgia.-Mosher V. Southern
Exp. Co., 38 Ga. 37 (1868).
Illinois.-Wabash R. R. Co. v.
Thomas, 222 Ill. 337, 78 N. E. 777,
7 L. R. A. (N. S.) 1041 (1906).
Iowa.-Beard v. St. Louis, A. &
T. H. Ry. Co., 79 Iowa. 527 (1890).
New Hampshire.-Nashua Lock
Co. v. Worcester & N. R. R. Co., 48
N. H. 339, 2 Am. Rep. 242 (1869).
Ohio.-Baltimore & Ohio R. R.
Co. v. Campbell, 36 Ohio St. 647,
38 Am. Rep. 617 (1881).
Tennessee.-See Merchants' Dis-
patch Trans. Co. v. Bloch, 86 Tenn.
392, 6 S. W. 881, 6 Am. St. Rep. 847
(1887).
Washington.—Allen & G. R. Co.
v. Can. Pac. Ry. Co., 42 Wash. 64,
84 Pac. 620 (1906).
Wisconsin.-See Tolman v. Ab-
bot, 78 Wis. 192, 47 N. W. 264
(1890).
28 M. & W. 421, 5 Jur. 656
(1841).
[434]
CONNECTING SERVICES
[ § 513
in this proposition there was no misdirection." Later on
in his opinion Lord Abinger defends this rule on policy
saying that otherwise the shipper will not know to whom
to look.
§ 513. American presumption of successive service.
By the weight of American authority, however, the
natural presumption prevails that each carrier is liable
only for carriage over his own route unless he has com-
mitted himself clearly to through transportation.¹ The
¹ United States.-Insurance Co.
v. Railroad Co., 104 U. S. 146, 26
L. ed. 679 (1881).
California.-Cavallaro v. Texas
& Pac. Ry. Co., 110 Cal. 348, 42
Pac. 918, 52 Am. St. Rep. 94 (1895).
Connecticut.-Naugatuck R. R.
Co. v. Waterbury Button Co., 24
Conn. 468 (1856).
Delaware.—Truax v. Philadelphia
P. W. & B. R. R. Co., 3 Houst. 233
(1865).
Florida. Savannah, F. & W.
Ry. Co. v. Harris, 26 Fla. 148, 7 So.
544, 23 Am. St. Rep. 551 (1890).
Indiana.-Pittsburg, C. & St. L.
R. R. Co. v. Morton, 61 Ind. 539,
28 Am. Rep. 682 (1878).
Kentucky.-Thomas V. Frank-
fort & C. Ry. Co., 25 Ky. L. Rep.
1051, 76 S. W. 1093 (1903).
Kansas.-Berg v. A., T. & S. F.
R. R. Co., 30 Kan. 561, 2 Pac. 639
(1883).
Maine.-Perkins v. Portland S.
& P. R. R. Co., 47 Me. 573, 74 Am.
Dec. 507 (1859).
Louisiana.-Vincent v. Yazoo &
M. V. R. Co., 114 La. 1021, 38 So.
816 (1905).
Maryland.-Hoffman v. Cumber-
land R. R. Co., 85 Md. 391 (1897).
Michigan.-Marquette, H. & O.
R. R. Co. v. Kirkwood, 45 Mich. 51,
40 Am. Rep. 453 (1880).
Minnesota.-Ortt v. Minneapolis
& St. L. Ry. Co., 36 Minn. 396, 31
N. W. 519 (1887).
Mississippi.-Illinois Cent. R. R.
Co. v. Kerr, 68 Miss. 14, 8 So. 330
(1890).
Missouri.-Crouch v. Louisville
& Nashville R. R. Co., 42 Mo. App.
248 (1890).
Nebraska.-Chicago, B. & Q. R.
Co. v. Gustin, 35 Neb. 86, 52 N. W.
844 (1892).
North Carolina.-Knott v. Ra-
leigh & G. R. R. Co., 98 N. C. 73,
3 S. E. 735, 2 Am. St. Rep. 321
(1887).
New York.-Condit v. Grand
Trunk R. R. Co., 54 N. Y. 500
(1873).
Pennsylvania.-Pennsylvania R.
R. Co. v. Berry, 68 Pa. St. 272
(1871).
Oregon.—Toffe v. Oregon R. R.
Co., 41 Oreg. 64, 67 Pac. 1015, 68
Pac. 732, 58 L. R. A. 187 (1902).
Rhode Island.-Knight v. Provi-
dence & W. R. R. Co., 13 R. I. 572,
43 Am. Rep. 46 (1882).
South Carolina.-Dunbar v. Port
[ 435]
§ 514]
PUBLIC SERVICE CORPORATIONS
mere fact that the original carrier has accepted goods
marked for a point off his own route is not sufficient to
overcome this presumption. In one of the leading Amer-
ican cases, Nutting v. Connecticut River Railroad Co.,'
Mr. Justice Metcalf said: "What, then, is the obligation
imposed on them by law, in the absence of any special
contract by them, when they receive goods at their depot
in Northampton, which are marked with the names of
the consignees in the city of New York? In our judgment
that obligation is nothing more than to transport the
goods safely to the end of their road, and there deliver
them to the proper carriers, to be forwarded towards their
ultimate destination. This the defendants did, in the
present case, and in so doing performed their full legal
duty. If they can be held liable for a loss that happens
on any railroad besides their own, we know not what is
the limit of their liability." It will be noticed that to
this court the policy seems to be for the protection of the
carrier from unreasonable liability.
§ 514. What constitutes connecting service.
It would not seem that it would be a difficult question
to determine whether a particular case really involves
connecting service with its accompanying obligations; and
yet certain decisions will show that this problem may be
very difficult. Thus a transfer company employed by
one carrier to transfer the goods to the next carrier,² or
Royal & A. Ry. Co., 36 S. C. 110,
15 S. E. 357, 31 Am. St. Rep. 860
(1891).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Baird, 75 Tex. 256, 12 S. W. 530,
(1889).
Vermont.-Hadd v. United States
Express Co., 52 Vt. 335, 36 Am.
Rep. 757 (1880).
Virginia.—Virginia C. & I. Co. v.
Louisville & N. R. R. Co., 98 Va.
776, 37 S. E. 310 (1900).
R.
11 Gray, 502 (1854).
2 Nebraska.—Missouri Pac.
Co. v. Young, 25 Neb. 651, 41 N.
W. 646 (1889).
Wisconsin.-Hooper v. Chicago
& N. W. R. R. Co., 27 Wis. 81, 9
Am. Rep. 439 (1870).
[ 436 ]
CONNECTING SERVICES
[ § 515
4
5
a cartage company employed by the last carrier to deliver
the goods to the consignee,¹ or a stock yard to which a
railroad delivers cattle,² or a telephone used to deliver a
telegram,³ or a hackman employed by a passenger at a
railroad station, or a teamster employed by the con-
signee to remove goods from the carrier's station, are
none of them connecting services. These are not all of
the same class although they come to the same result.
In the transfer, cartage, stock yards, and telegraph cases,
there is no connecting service because the patron is deal-
ing with but one service which uses the others as a sub-
ordinate instrumentality to perform its service. In the
hackman and teamster cases the patron employs the ad-
ditional service upon a separate basis altogether. But
as to both sets of cases the law is that the particular serv-
ice is free to make arrangements without regard to the
peculiar law governing connecting service.
Topic B. Mutual Obligations in Successive Service
§ 515. Obligation of initial service to take to connection.
In successive service each party involved is not really
1 United States.-St. Louis Dray-
age Co. v. Louisville & N. R. R., 65
Fed. 39 (1894).
England.-Roach v. Canadian
Pacific Ry. Co., 1 Manitoba, 158
(1884).
2 Central Stock Yards Co. v.
Louisville & N. Ry. Co., 192 U. S.
568, 24 Sup. Ct. 339, 48 L. ed. 565
(1904).
See also St. Louis S. W. Ry. Co.
v. Jackson & Co. (Tex. Civ. App.),
48 S. W. 853 (1909).
3 People v. Western Union Tele-
graph Co., 166 Ill. 15, 46 N. E. 731,
36 L. R. A. 637 (1897).
But see Western Union Tel. Co.
v. Turner, 94 Tex. 304, 60 S. W. 432
(1901).
4 New York.—Brown
V. New
York C. & H. R. R. R. Co., 151
N. Y. 674, 46 N. E. 1145 (1897).
But see:
Michigan. Kalamazoo Hack &
B. Co. v. Sootsma, 84 Mich. 194, 47
N. E. 667, 10 L. R. A. 819, 22 Am.
St. Rep. 693 (1890).
5 Illinois.-Parmelee v. Lowitz,
74 Ill. 116, 24 Am. Rep. 276 (1874).
Missouri.-Nanson v. Jacob, 93
Mo. 331, 6 S. W. 246, 3 Am. St. Rep.
531 (1887).
[ 437 ]
§ 515 ]
PUBLIC SERVICE CORPORATIONS
asked to do more than his full duty within the limits of
his own profession, except that the special circumstances
may seem to call for unusual action to some extent. Of
the duty of the initial company to undertake service to
the point of connection with the succeeding company
there can be no doubt.¹ If it be a case of carriage, the
initial carrier is certainly asked no more than to act within
his profession if he is requested to take certain goods
tendered at one point on his line to another point where
that line connects with the second carrier.2 This ele-
mentary point has been most litigated in recent times
in regard to telegraph companies, the initial company
sometimes disliking to accept a message to a connecting
point, there to be delivered to another company, very
often a competitor. But the established duty in regard
to connecting carriage was too close an analogy for the
telegraph company to escape it. As was said in a Texas
case: 3 “The law relating to the receiving and forwarding
of telegraphic messages to connecting lines is so nearly
analogous to that in regard to common carriers that the
established rules of law that determine the liability of the
common carrier apply with equal force to telegraph com-
panies. Each can restrict its liability to its own line,
but each must receive and forward with diligence to the
connecting line, and each will be held liable for its failure
or refusal to perform that duty."
¹ A contract by a carrier not to
receive goods destined beyond its
own line is void. Seasongood v.
Tennessee & O. R. Transp. Co., 21
Ky. Law Rep. 1142, 54 S. W. 193
(1899).
2 New York.-Babcock v. Lake
S. & M. S. Ry. Co., 49 N. Y. 491
(1872).
R. R. Co. v. Waters, 50 Neb. 592,
70 N. W. 225 (1897).
Texas. San Antonio & A. P.
Ry. Co. v. Stribling, 99 Tex. 319,
89 S. W. 963 (1905).
Wisconsin.-Hooper v. Chicago
& N. Ry. Co., 27 Wis. 81, 9 Am.
Rep. 439 (1870).
3 See Western Union Telegraph
Nebraska.--Fremont, E. & M. V. Co. v. Simmons (Tex. Civ. App.),
93 S. W. 686 (1906), quoted.
[438]
CONNECTING SERVICES
[ §§ 516, 517
§ 516. Special law applicable thereto.
1
There are some peculiarities in the situation because of
the differences in the conditions. In case of carriage
there are usually marks on the package designating its
course; moreover its bills accompany it. In case of the
telegraphing, however, it is a reasonable requirement by
the first company that words designating the connection
desired shall be sent with the message; and, similarly,
the second company may require that words designating
its origin shall be paid for. This duty resting upon the
initial party to act is positive. It is no excuse that the
initial carrier believes that the succeeding carrier will re-
fuse to accept the goods. And similarly a telephone
company cannot justify its failure to handle a message
promptly on the ground that it was sure that the con-
necting company would delay it so long that it was use-
less to try to put it through.4
2
3
§ 517. Special duty to make delivery to connection.
In several kinds of connecting service the duty of each
successive party to deliver over to the next in turn is the
normal one. Thus a telegraph company undertakes de-
livery in the place of address, which in this case should
be at the office of the telegraph company designated as
the connection. So, in certain kinds of carriage, as ex-
press service, the carrier is bound to deliver to the ad-
dressee. But the railroads and steamboats are not nor-
mally bound to do more than deposit the goods carried
on their own wharves or at their own terminals. As will
be seen later, there is thereupon a conflict of authority
1 United States v. Northern Pac.
Ry. Co., 120 Fed. Rep. 546 (1903).
2 Atlantic & Pacific Telegraph
Co. v. Western Union Telegraph
Co., 4 Daly, 527 (1873).
Wampum Cotton Mills v. Caro-
lina & N. W. Ry. Co., 150 N. C.
608, 64 S. E. 588 (1909).
4 Telephone Co. v. Brown, 104
Tenn. 56, 55 S. W. 155, 50 L. R. A.
277, 78 Am. St. Rep. 906 (1900).
[ 439 ]
§ 518 ]
PUBLIC SERVICE CORPORATIONS
as to how soon they cease to be liable as common carriers;
but at all events it must be very soon thereafter, without
any attempt on their part to make physical delivery.
But in the case of connecting carriage there is no conflict
of authority, the whole matter being settled by imper-
ative considerations of convenience. It is universally
established that when successive carriage is involved the
law necessarily throws upon each carrier in turn the duty
of tendering the goods for further transportation to the
succeeding carrier; and normally, until he effectuates
such delivery, the original carrier remains liable as a com-
mon carrier.¹ This liability would usually continue, as
the cases just cited hold, until the first carrier has depos-
ited the goods where the second carrier actually receives
them, and given notice, as would generally be requisite,
to the succeeding carrier that the goods are there await-
ing his transportation.2
§ 518. Further duties of the initial service.
The initial carrier must give its successor the necessary
¹ Connecticut.-Palmer v. Chicago,
B. & Q. R. R. Co., 56 Conn. 137, 13
Atl. 818 (1888).
Georgia.-Wallace v. Rosenthal,
40 Ga. 419 (1869).
Michigan. Moore v. Michigan
Central R. R. Co., 3 Mich. 23
(1853).
Pennsylvania.-Vannatta v. Cen-
tral R. R. Co., 154 Pa. St. 262,
26 Atl. 384, 35 Am. St. Rep. 823
(1893).
Co. V.
Tennessee.-Insurance
Railroad Co., 8 Baxt. 268 (1874).
West Virginia.-Lewis v. Chesa-
peake & Ohio Ry. Co., 47 W. Va.
656, 35 S. E. 908, 81 Am. St. Rep.
816 (1900).
2 United States.-Texas & P. R.
R. Co. v. Reiss, 183 U. S. 621, 46
L. ed. 358, 22 Sup. Ct. 253 (1903).
Alabama. Selma & M. R. R.
Co. v. Butts & Foster, 43 Ala. 385,
94 Am. Dec. 694 (1869).
California.-Colfax Mountain
Fruit Co. v. Southern Pac. Ry. Co.,
118 Cal. 648, 46 Pac. 668 (1896), 50
Pac. 775, 40 L. R. A. 78 (1897).
Kentucky.—Louisville, St. L. &
Texas Ry. Co. v. Bourne & Embry,
16 Ky. L. Rep. 825, 29 S. W. 975
(1895).
Michigan.-Rickerson Roller Mill
Co. v. Grand Rapids & I. R. R. Co.,
67 Mich. 110, 34 N. W. 269 (1887).
New York.-Sprague v. New
York Cent. R. R. Co., 52 N. Y. 637
(1873).
[ 440 ]
CONNECTING SERVICES
[§ 519
¹
instructions for forwarding the goods. If, however, the
second carrier finally refuses the goods, the first carrier
has performed its duty as such. But there rests upon
it still as in many other cases of unexpected interruption,
the duty to store the goods 2 refused, and notify the con-
signor of the situation. If, thereupon, the shipper wants
his goods stopped at the end of the original transit he
can have this done. As in successive service neither side
is committed beyond the immediate service which is
being rendered, he can revoke his orders to ship further.¹
3
§ 519. Obligation of second service to accept.
Of the duty in each succeeding service to receive what
is properly tendered to it by its predecessor in service
there can also be no doubt. This really relates back to
the primary duty of the original person requesting the
service. When, therefore, a succeeding carrier designated
5
¹ Illinois.-Michigan S. & N. I.
R. R. Co. v. Day, 20 Ill. 375, 71
Am. Dec. 278 (1858).
Michigan.-Hutchings v. Ladd,
16 Mich. 493 (1868).
Ohio.-Little Miami R. R. Co. v.
Washburn, 22 Ohio St. 324 (1872).
Tennessee.-Railroad Co. v.
Southern Seating & Cabinet Co.,
104 Tenn. 568, 58 S. W..303, 50 L.
R. A. 729 (1900).
2 United States.-Buston v. Penn-
sylvania Ry. Co., 119 Fed. 808, 56
C. C. A. 320 (1903).
Louisiana.-Dalzell v. Steamboat
Saxon, 10 La. Ann. 280 (1855).
Maryland.-Baltimore & Ohio R.
R. Co. v. Schumacher, 29 Md. 168,
96 Am. Dec. 510 (1868).
Minnesota.-Wehmann v. Minne-
apolis, St. P. & S. Ste. M. Ry. Co.,
58 Minn. 22, 59 N. W. 546 (1894).
Missouri.-Cramer v. American
M. U. Express Co. & Merchants'
Dispatch Co., 56 Mo. 524 (1874).
Tennessee.-Bird v. Railroad Co.,
99 Tenn. 719, 42 S. W. 451, 63 Am.
St. Rep. 856 (1897).
3 United States. In re Peterson,
21 Fed. 885 (1884).
Alabama.-Louisville & N. R. R.
Co. v. Duncan & Orr, 137 Ala. 446,
34 So. 988 (1902).
Maine.-Fisher V. Boston &
Maine R. R. Co., 99 Me. 338, 59
Atl. 532, 68 L. R. A. 390, 105 Am.
St. Rep. 283 (1904).
Indiana.—Grand Rapids & I. R.
R. Co. v. Diether, 10 Ind. App. 206,
53 Am. St. Rep. 385 (1894).
4 Wente v. Chicago, B. & Q. Ry.
Co., 79 Neb. 175, 115 N. W. 859
(1907).
5 Illinois.—Pittsburg, C., C. & St.
L. Ry. Co. v. Chicago, 242 Ill. 178,
89 N. E. 1022 (1909).
[441]
§ 520]
PUBLIC SERVICE CORPORATIONS
by the consignor refuses to accept goods tendered by a
preceeding, the default is really made to the consignor,
the preceding carrier being his agent in asking this fur-
ther transportation.¹ It is established law, made neces-
sary from the character of the business, that it is the duty
of common carriers to accept freight tendered by another
common carrier, and that a consignor of goods to be car-
ried over successive routes makes the first and each suc-
cessive carrier his forwarding agent. This is from the
necessities of the case. The consignors cannot practi-
cally travel with the goods which are shipped, and there
must be some one who is responsible for transactions in
regard to their shipment over the different routes.
§ 520. Peculiar rules relating thereto.
2
Each carrier who takes charge of the goods becomes an
agent of the consignor to tender the goods. And a tele-
graph company chosen as the connection is in default
when it refuses to accept a message tendered by the ini-
tial company. It follows that the connecting company
3
Iowa.-McMillan v. Chicago, R.
I. & P. Ry. Co., 124 N. W. 1069
(1910).
Maine.-Dunham v. Boston &
Maine R. R. Co., 70 Me. 164, 35
Am. Rep. 314 (1879).
Texas.-Gulf & Interstate Ry.
Co. v. Texas & N. O. Ry. Co., 93
Tex. 482, 56 S. W. 328 (1900);
Sterling v. St. Louis, I. M. & S. Ry.
Co. (Tex. Civ. App.), 86 S. W. 655
(1905).
¹ The initial carrier is not in cases
of successive carriage liable to the
shipper for the refusal of the suc-
ceeding carrier to accept the goods.
Dunbar v. Port Royal & A. Ry.
Co., 36 S. C. 110, 15 S. E. 357, 31
Am. St. Rep. 860 (1891). But the
refusing carrier is liable directly to
the shipper for such refusal. Crosby
v. Pere Marquette R. R. Co., 131
Mich. 288, 91 N. W. 124 (1902).
2 See particularly the case of An-
drus v. Columbia & O. Steamboat
Co., 47 Wash. 333, 92 Pac. 128, 130
(1907).
³ California.-Thurn v. Alta Tele-
graph Co., 15 Cal. 472 (1860).
Georgia.—Conyers v. Postal Tele-
graph Cable Co., 92 Ga. 619, 19 S.
E. 253, 44 Am. St. Rep. 100 (1893).
Michigan.-Western Union Tele-
graph Co. v. Carew, 15 Mich. 525
(1867).
Tennessee.-Telegraph Co. V.
[442]
CONNECTING SERVICES
[ § 521
1
can make no unreasonable requirement which would
seriously interfere with the course of through service.
A connecting railroad cannot require as to freight tendered
by a connection that the shippers must themselves ap-
pear at the point of connection, and rebill their goods.¹
Nor can a telegraph company make the vexatious re-
quirement that it will not recognize the tendering company
as the agent of the sender unless he files a written power
of attorney.2
§ 521. Observance of patron's directions.
4
3
The patron may himself decide by what successive
parties he wishes the service performed and from these
directions the parties would usually deviate at their peril.
Consequently a rule of a telegraph company that mes-
sages will be taken only by the most direct connections
notwithstanding the sender's instructions is inconsistent
with its duty. And a refusal by a railroad company to
take to the connection designated is illegal.5 But even
if such explicit directions are given the forwarding party
should notify the patron if he knows that the use of the
connection designated will probably cause unusual delay;
Munford, 87 Tenn. 190, 10 S. W.
318, 2 L. R. A. 601, 10 Am. St. Rep.
630 (1889).
Texas.-Western Union Tele-
graph Co. v. Simmons (Tex. Civ.
App.), 93 S. W. 686 (1906).
1 Dunham v. Boston & Maine R.
R. Co., 70 Me. 164, 35 Am. Rep.
314 (1879).
2 Atlantic & Pac. Tel. Co. v.
Western Union Telegraph Co., 4
Daly (N. Y.), 527 (1873).
New York.-Hinckley v. New
York Central & H. R. R. R. Co., 56
N. Y. 429 (1874).
Wisconsin.—Congar v. Galena &
Chicago U. R. R. Co., 17 Wis. 477
(1863).
4 Western Union Telegraph Co. v.
Turner, 94 Tex. 304, 60 S. W. 432
(1901).
5 San Antonio & A. P. Ry. Co. v.
Stribling, 99 Tex. 319, 89 S. W. 963
(1905); Peeds River R. R. Co. v.
³ Georgia.—Georgia R. R. Co. v. Harrington (Tex. Civ. App.), 99
Cole & Co., 68 Ga. 623 (1882).
Minnesota.-Brown & Haywood
Co. v. Pennsylvania Co., 63 Minn.
546, 65 N. W. 961 (1896).
S. W. 1050 (1908); Thompson v.
Missouri, K. & T. Ry. Co. (Tex.),
126 S. W. 257 (1910).
6 Inman & Co. v. St. L. S. W. Ry.
6
[ 443 ]
§ 522]
PUBLIC SERVICE CORPORATIONŠ
and if it later turns out that the route designated is im-
practicable another may be chosen.¹
It is needless per-
haps to add that if the patron leaves forwarding to the
discretion of the initial party, he is bound to the disposi-
tion which his agent makes, but even then the agent him-
self will be liable for proper discretion in choosing the
connection.2
§ 522. Results of any disobedience.
It should be noted also that failure of the previous
party to the transit to transmit his instructions to his
successor is a breach of duty to the patron and for the
consequential deviation that party is liable.3 And if
the succeeding party knew of the violation of the in-
structions he is also subject to all the disabilities of one
concerned in a deviation. On the question of the posi-
tion of a second party when a first party acts contrary
4
Co., 14 Tex. Civ. App. 39, 37 S. W.
37 (1896).
1
¹ Regan v. Grand Trunk Ry. Co.,
61 N. H. 579 (1881); Andrus v.
Columbia & O. Stb. Co., 47 Wash.
333, 92 Pac. 128 (1907).
2 Indiana.-Snow v. Indiana, B.
& W. Ry. Co., 109 Ind. 422 (1886).
Tennessee.-Post v. Railroad Co.,
103 Tenn. 184, 52 S. W. 301, 55 L.
R. A. 481 (1899).
3 United States.-Empire State
Cattle Co. v. Atchison, T. & S. F.
Ry. Co., 210 U. S. 1, 52 L. ed. 931,
28 Sup. Ct. 607 (1908); Harding v.
International Navigation Co., 12
Fed. 168 (1882).
Michigan. Hutchings v. Ladd,
16 Mich. 493 (1868).
New York.-Dana v. New York
Central & H. R. R. R. Co., 50 How.
Pr. 428 (1875).
Ohio.-Little Miami R. R. Co.
v. Washburn, 22 Ohio St. 324
(1872).
Pennsylvania. - Forsythe v.
Walker, 9 Pa. St. 148 (1848).
Texas.—Booth v. Missouri, K. &
T. Ry. Co. (Tex. Civ. App.) 37 S.
W. 168 (1896).
4 United States.-Patten v. Union
Pac. Ry. Co., 29 Fed. 590 (1886).
Colorado--Denver & R. G. Ry.
Co. v. Hill, 13 Colo. 35, 21 Pac. 914
(1889).
Georgia.—Georgia R. R. Co. v.
Cole & Co., 68 Ga. 623 (1882).
Massachusetts.-Briggs v. Boston
& Lowell R. R. Co., 6 Allen, 246, 83
Am. Dec. 626 (1863).
New York.-Johnson V. New
York Central R. R. Co., 33 N. Y.
610, 88 Am.. Dec. 416 (1865).
Pennsylvania.-Philadelphia, etc.
R. R. Co. v. Beck, 125 Pa. St. 620,
11 Am. St. Rep. 924 (1889).
[444]
CONNECTING SERVICES
[ § 523
1
to instructions without disclosing that he is doing so, a
few cases have thought that the shipper may repudiate
the subsequent transaction. But by the present weight
of authority it is held that in forwarding goods to their
destination by another connection than the one designated
the first carrier is held out to the second carrier as having
apparent authority; 2 so that the second carrier even has
a lien upon the goods not only for his own charges, but
for those which he had advanced against them relying
upon the authority of the first carrier.
§ 523. Discrimination permissible in granting favors.
As all obligations of the succeeding party to undertake
service may thus be related back to the rights of the orig-
inal patron whom the preceding party represents, the
succeeding party may refuse to do anything not within
its duty to patrons generally for customers using partic-
ular agencies. And thus it may always refuse to render
its service unless its charges are tendered it or secured to
it, although it does not generally insist upon prepayment;
and, of course, it may refuse in taking over from one con-
nection to advance the previous charges, although it does
this in its dealings with other connections. There have
dence & W. R. R. Co., 13 R. I. 572
(1882).
1 See Fitch v. Newberry, 1 Doug.
(Mich.) 1, 40 Am. Dec. 33 (1843).
See also Jones v. Boston & A. R.
R. Co., 63 Me. 188.
2 Colorado.-Price v. Denver & R.
G. Ry. Co., 12 Colo. 402, 21 Pac.
188 (1888).
Georgia.-Bird v. Georgia R. R.
Co., 72 Ga. 655 (1884).
Massachusetts.-Crossan v. New
York & N. E. R. R. Co., 149 Mass.
196, 21 N. E. 367, 3 L. R. A. 766
(1889).
4
3
3 Little Rock & M. Ry. Co. v.
St. Louis, I. M. & S. Ry. Co., 59
Fed. 400 (1894); Little Rock & M.
Ry. Co. v. St. Louis S. W. Ry. Co.,
63 Fed. 775, 27 U. S. App. 380, 26
L. R. A. 192, 11 C. C. A. 417, affirm-
ing 59 Fed. 400 (1894).
4 Southern Indiana Exp. Co. v.
United States Exp. Co., 92 Fed.
1022, 35 C. C. A. 172 (1899); Gulf,
C. & S. F. Ry. Co. v. Miami S. S.
Ohio.-Bowman v. Hilton, 11 Co., 86 Fed. 407, 52 U. S. App. 732,
Ohio, 303 (1842).
30 C. C. A. 142 (1898).
Rhode Island.-Knight v. Provi-
See also Baltimore & O. Ry. Co.
[ 445]
§ 524]
PUBLIC SERVICE CORPORATIONS
1
been some cases dealing with the obligations of connect-
ing express companies in recent years in which both as-
pects of the problem were discussed. To quote from one
of them: "The same rule applies whether the articles of
trade and commerce are received from the original con-
signor or from a connecting carrier. An express company,
in the absence of contract, is under no obligation to re-
ceive and transport for the original consignor, or to con-
tinue the transportation for a connecting carrier, with-
out the prepayment of its charges if demanded. The
furnishing of equal facilities, without discrimination,
does not require a common carrier to advance money to
all other carriers on the same terms, nor to give credit
for the carriage of articles of trade and commerce to all
carriers because it extends credit for such services to
others." 2
§ 524. Discrimination forbidden where public duty in-
volved.
But no policies can be adopted inconsistent with public
duty whereby business coming from one connection is
favored. Thus, in one of the early cases in public service,
Bennett v. Dutton,³ still a leading case, it was held that
a stage line running from Nashua to Amherst could not
adopt the rule of taking passengers who came from Lowell
to Nashua on French's line and refuse those who came on
Tuttle's line. In that pioneer case Chief Justice Parker,
after stating the general principles of public duty, thus
v. Adams Express Co., 22 Fed. 32
(1884); Oregon Short Line & U. N.
Ry. Co. v. Northern Pacific R. R.
Co., 61 Fed. 158, 15 U. S. App. 479,
9 C. C. A. 409 (1894).
1 Quoted from Southern Indiana
Express Co. v. United States Ex-
press Co., 88 Fed. 659, 662 (1898).
2 It is otherwise provided by
statute in Indiana now; and the
statute has been held to be con-
stitutional. American Express Co.
v. Southern Indiana Express Co.,
167 Ind. 292, 78 N. E. 1021 (1906).
3 10 N. H. 481 (1839).
See also the language in Cutting
v. Florida Ry. & Nav. Co., 30 Fed.
663 (1887), as to carriers of goods.
[ 446 ]
CONNECTING SERVICES
[ § 525
applied them to the case in hand: "The defendant
might well have desired that passengers at Lowell should
take French's line because it connected with his. But
if he had himself been the proprietor of the stages from
Lowell to Nashua, he could have had no right to refuse
to take a passenger from Nashua, merely because he did
not see fit to come to that place in his stage. It was
not for him to inquire whether the plaintiff came to
Nashua from one town or another, or by one conveyance
or another. That the plaintiff proposed to travel on-
ward from that place could not injuriously affect the
defendant's business; nor was the plaintiff to be punished
because he had come to Nashua in a particular manner.' " 1
Topic C. Facilities for the Interchange of Business
§ 525. Construction of physical connections not obliga-
tory.
One thing is as certain as anything can be at common
law in this doubtful subject, and that is that those who
have provided certain facilities in order to give a desig-
nated service, are under no obligation to go beyond
the service they have professed and substantially extend
their existing facilities so as to make physical connection
with another service. To require this would be wholly
outside the accepted theory of the proper restriction of
public obligation to the profession made. In a leading
1 Where there are two rival lines
of steamboats on a river plying be-
tween the same points, and carry-
ing freight for hire, both bearing the
same relation to a railroad company
and both seeking its services to for-
ward their freight to the same
points of destination, and the com-
pany systematically discriminates
against one by charging on goods
coming to or from it fifty cents a
hundred more for freight than in the
case of the other, a suit for such
discrimination can be brought.
Samuels v. Louisville & N. Ry. Co.,
31 Fed. 57 (1887).
Where a tariff of a railroad com-
pany fixes a rate on shipments origi-
nating on its own line, or on certain
enumerated connecting lines, it as-
[ 447 ]
§ 526]
PUBLIC SERVICE CORPORATIONS
Federal case.¹ in refusing to order a railroad company
to make connections with a switching company, the court
said: "Neither this nor any other provision of law requires
of the common carrier of interstate commerce the duty of
either forming new connections or of establishing new sta-
tions for the reception and delivery of freights. The act
to regulate commerce deals with such common carriers
as it finds them, and leaves to them full discretion as to
what extensions they will make of their lines, the connec-
tions they may form, and the yards and depots they may
choose to establish." 2
§ 526. Statutory requirements go further.
In some jurisdictions lately more explicit statutes have
been passed providing that when two services nearly
approach each other short lines for making connections
should be constructed. And if this requirement is
properly safeguarded it must be admitted that the leg-
islation is not so outrageous as to be unconstitutional.³
This indeed hardly goes beyond the definition of the
obligation to provide proper facilities for the performance
of the duty of the delivering of freight to a connection.
When two lines nearly approach, it is not outrageous to
consider this as virtually a connection.¹
sumes the obligation to carry at
that rate for shippers whose ship-
ments originate on other lines as
well; and, if such a shipper is re-
quired to pay for such services at a
higher rate than that named in the
tariff, he is entitled to recover the
amount of the overcharge. Mis-
souri, K. & T. Ry. Co. v. New Era
Milling Co. (Kans.), 100 Pac. 273
(1909).
¹ Kentucky & I. Bridge Co. v.
Louisville & N. Ry. Co., 37 Fed.
567, 2 L. R. A. 289 (1889).
2 See particularly Wisconsin, M.
& P. R. R. Co. v. Jacobson, 179
U. S. 287, 45 L. ed. 194, 21 Sup. Ct.
115 (1900), both to the same effect.
3 Alabama.-Alabama G. S. R. R.
Co. v. Thomas, 89 Ala. 294, 7 So.
762, 18 Am. St. Rep. 119 (1889).
Nebraska.-Missouri Pacific Ry.
Co. v. Young, 25 Neb. 651, 41 N. W.
646 (1889).
4 Texas.-International & G. N.
Ry. Co. v. Railroad Commission of
Texas, 99 Tex. 332, 89 S. W. 961
(1905).
[ 448 ]
CONNECTING SERVICES
[ § 527
§ 527. Obligation to have transfer facilities at junction
points.
The traditional rule at common law has been that
there is no obligation to permit connection at junction
points.¹ This certainly cannot be true if there is a public
station at that point, for at such a station, as has just
been seen, goods must be received, whether tendered by
a connection or anyone else. It may be true that there
is not invariably an obligation to accept business at a
private station from one connection, even if business is
there accepted from another, as the Federal courts have
held.¹ But can it be true that there is never an obliga-
tion to stop for the exchange of business at intersecting
points if the railroad company decides not to establish
a station, as the United States Supreme Court has held? 2
If there is a sufficient amount of business that would
usually be tendered at a junction if a station should be
Vermont.-Rutland R. R. Co. v.
Bellows Falls & S. R. St. Ry. Co.,
73 Vt. 20, 50 Atl. 636 (1900).
The telephone cases furnish a
close analogy. At common law at
all events one telephone company
was not bound to make physical
connections with the lines of its
rival so that through speech could
be had. Matter of Baldswinsville
Telephone Co., 24 N. Y. Misc. 221,
53 N. Y. Supp. 574 (1898). And
consequently an arrangement by
one company to give to another
company all its through toll line
business is not contrary to public
policy. Home Telephone Co. v.
North Manchester Telephone Co.
(Ind. App.), 92 N. E. 558 (1910).
1 Kentucky.-Shelbyville R. R.
Co. v. Louisville C. & L. R. R. Co.,
82 Ky. 541 (1885). But see Louis-
ville & N. R. R. Co. v. Central S. Y.
Co., 30 Ky. L. Rep. 18, 97 S. W. 778
(1906).
Maryland.-Pennsylvania R. R.
Co. v. Baltimore, etc., Ry. Co., 60
Md. 263 (1883).
2 Gulf, C. & S. F. Ry. Co. v.
Miami S. S. Co., 30 C. C. A. 142, 86
Fed. 407 (1898); Ilwaco Ry. & Nav.
Co. v. Oregon Short Line Ry. Co., 6
C. C. A. 495, 15 U. S. App. 173, 57
Fed. 673 (1893).
¹ Atchison, T. & S. F. Ry. Co. v.
Denver & N. O. Ry. Co., 110 U. S.
667, 28 L. ed. 291, 4 Sup. Ct. 185
(1884); Louisville & N. R. R. Co. v.
Central S. Y. Co., 212 U. S. 132,
53 L. ed. 441, 29 Sup. Ct. 246
(1909).
See further, St. Louis & S. F. Ry.
Co. v. Marrs, 60 Ark. 637, 31 S. W.
42 (1895).
29
[449]
§§ 528, 529] PUBLIC SERVICE CORPORATIONS
¹
opened, according to the more advanced views now held
there ought to be a public station established. A New
Hampshire court has gone so far as to say that a
union station ought to be built by two roads which made
connections in a city, if it be shown that public conven-
ience required it.
2
§ 528. Whether freight must be taken in original cars.
As to whether transportation must be given to the
goods offered by a first carrier to a second carrier in the
cars in which they are tendered by the first carrier, re-
gardless of the desires of the second carrier, there is still
some conflict of authority. In Oregon Short Line and
Utah Northern Railway Company v. Northern Pacific
Railroad Company, the utilization of foreign cars being
in question, the law as it then stood, was summarized thus
by Mr. Justice Field: "As the receiving company is under
no obligation to take the freight in the cars in which it is
tendered, and transport it in such cars, when it has cars
of its own, not in use, to transport it, there can be no cus-
tom that it shall pay the owner of such cars, should it
receive them in such case, car mileage for their use."
§ 529. Such transportation now usually held obligatory.
On the other hand there are cases which hold that
the railroad is obliged to accept the cars of another road
filled with goods and carry them through to their desti-
nation. In an opinion written by Mr. Justice Cooley,
in the case of Michigan Central Railroad Company v.
Smithson, is the following statement which probably
3
1 Concord & M. R. R. Co. v.
Boston & Maine R. R. Co., 67 N.
H. 464, 41 Atl. 263 (1893).
251 Fed. 465 (1892). See also
Little Rock & M. Ry. Co. v. St.
Louis, I. M. & S. Ry. Co., 59 Fed.
400 (1894). And see Green Bay
Lumber Co. v. Chicago, R. I. & P.
Ry. Co., 102 Iowa, 292, 71 N. W.
406 (1897). Note the limitation in
Central of Ga. Ry. Co. v. Cook &
L., 4 Ga. App. 698 (1908).
$45 Mich. 212, 7 N. W. 791
(1881).
[ 450]
CONNECTING SERVICES
[ § 529
represents the present law: "The primary fact that must
rule this controversy is that the Michigan Central Rail-
road Company is compelled to receive and transport over
its road all the varieties of freight cars which are offered
to it for the purpose, and which are upon wheels adapted
to its gauge. It is compelled to do so, first, because the
necessities of commerce demand it. It cannot and would
not be tolerated that cars loaded at New York for San
Francisco, or at Boston for Chicago, should have their
freight transferred from one car to another whenever
they passed upon another road. Time would be lost,
expense increased, injuries to freight made more numerous,
and no corresponding advantage accrue to anyone. It
is compelled to do so, second, by its own interest. To
attempt to stop every car offered to it at its termini, that
the freight might be transferred to its own vehicles, would
be to drive away from its line a large portion of its traffic,
and compel it to rely upon a local business." 1
¹ See, to the same effect:
United States.-Rae v. Grand
Trunk Ry. Co., 14 Fed. 401 (1882).
Alabama.-Louisville & N. R. R.
Co. v. Boland, 96 Ala. 626, 11 So.
667 (1892).
Arkansas.-St. Louis Southwest-
ern Ry. Co. v. State, 85 Ark. 311,
107 S. W. 1180 (1907).
Illinois.-Peoria & P. M. Ry. Co.
v. Chicago, R. I. & Pac. Ry. Co.,
109 Ill. 135, 50 Am. Rep. 605 (1884).
Iowa. Baldwin v. Railroad Co.,
50 Ia. 680 (1879); Burlington., C.
R. & N. Ry. Co. v. Dey, 82 Ia. 312,
48 N. W. 98, 12 L. R. A. 436, 31
Am. St. Rep. 477 (1891).
Kentucky.-Louisville & N. R. R.
Co. v. Williams, 95 Ky. 199, 15 Ky.
L. Rep. 548, 24 S. W. 1, 44 Am. St.
Rep. 214 (1893). See also Louis-
ville & N. Ry. Co. v. Central S. Y.
Co., 30 Ky. L. Rep. 18, 97 S. W.
778 (1906).
Massachusetts.-Vermont & M.
R. R. Co. v. Fitchburg R. R. Co., 14
Allen (Mass.), 462, 92 Am. Dec. 785
(1867); Mackin v. Boston & A. R.
R. Co., 135 Mass. 201, 46 Am. Rep.
456 (1883).
Michigan.—McMillan v. Chicago
R. I. & P. Ry. Co., 124 N. W. 1069
(1910).
Missouri.-Thomas v. Missouri
Pacific Ry. Co., 109 Mo. 187, 18 S.
W. 980 (1891).
Nebraska.-Chicago, B. & Q. R.
Co. v. Curtis, 51 Neb. 442, 71 N. W.
42, 66 Am. St. Rep. 456 (1897).
New York.-Hudson Valley Ry.
Co. v. Boston & Maine R. R. Co.,
45 N. Y. Misc. 520, 92 N. Y. Supp.
[451]
§§ 530, 531]
PUBLIC SERVICE CORPORATIONS
§ 530. Qualifications of the doctrine.
It may be added that there is no duty to accept cars
which are not of a character to fit in with the equipment of
the company to which they are tendered or in such a de-
fective condition as to be dangerous.¹ Where this duty
to receive the cars is established it is certainly true that
the second railroad can make no charge for hauling the
cars independently of the regular freight for their con-
tents.2 On the other hand it is probably true that the
second carrier is not under any more obligation to pay
mileage for the use of the cars than is stated in a preced-
ing paragraph. But a fair system for the interchange of
cars will be respected by the courts, as will be seen in a
succeeding paragraph.
§ 531. Provision of cars for further service.
However no case has ever gone so far at common law
as to assert that shippers could insist that the initial car-
rier should provide them with sufficient cars for the trans-
portation of their goods through to any part of the con-
928 (1904), affirmed 94 N. Y. Supp.
545, 106 App. Div. 375 (1905).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Lone Star Salt Co., 26 Tex. Civ.
App. 531, 63 S. W. 1025 (1901);
Texas & Pacific Ry. Co. v. Texas
Short Line R. R. Co., 35 Tex. Civ.
App. 387, 80 S. W. 567 (1904);
Texas & Pac. Ry. Co. v. Carlton, 60
Tex. 397 (1883).
1 United States.-Baltimore & P.
Ry. Co. v. Mackey, 157 U. S. 72, 39
L. ed. 624, 15 Sup. Ct. 491 (1895).
Georgia.-Central of Ga. Ry. Co.
v. Cook & L. 4 Ga. App. 698 (1908).
Kentucky.-Louisville & N. Ry.
Co. v. Williams, 95 Ky. 199, 24 S.
W. 1, 15 Ky. Law Rep. 548, 44 Am.
St. Rep. 214 (1893).
Nebraska. Chicago, B. & Q. R.
R. Co. v. Curtis, 51 Neb. 442, 71
N. W. 42, 66 Am. St. Rep. 456
(1897).
Ohio.-Pennsylvania Ry. Co. v.
Snyder, 55 Ohio St. 342, 45 N. E.
559, 60 Am. St. Rep. 700 (1896).
Texas.-Texas & Pac. Ry. Co. v.
Carlton, 60 Tex. 397 (1883).
Wisconsin-Miltimore v. C. &
N. W. Ry. Co., 37 Wis. 190
(1875).
2 Harrison v. Midland Ry. Co.,
62 L. J. Q. B. (N. S.) 225 (1893).
But query whether a shipper can
get his own cars hauled thus for
nothing. Green Bay Lumber Co. v.
Chicago, R. I. & P. Ry. Co., 102 Ia.
292, 71 N. W. 406 (1897).
[ 452 ]
CONNECTING SERVICES
[§ 532
tinent that can be reached by connecting lines.¹ "At
common law shippers cannot insist that the initial carrier
shall provide them with sufficient cars for the transporta-
tion of their goods, to any point beyond its own line of
road; for the carrier's obligation to provide equipments
was always held limited to service over its own route." 2
But a railroad may well profess to furnish cars for serv-
ice beyond its route. "For one railroad company to be
an Ishmaelite among its associates would operate dis-
astrously to its shippers. The shippers of Arkansas ex-
pect the public carriers to put their cotton to the spinners
in New England and their fruits to the North, and their
lumber and coal to the four quarters of the Union, with-
out change from consignor to consignee." 4
3
§ 532. Statutory requirement of through facilities.
But it is not impossible that statutes may even go to
the length of requiring such through service by reason
of commercial necessity. In a very late case, in declar-
ing unconstitutional a statute requiring a railroad to fur-
nish its cars for through transportation off its own route
the United States Supreme Court based its decision simply
Ry. Co. v. State (Tex. Civ. App.),
120 S. W. 1028 (1909).
1 Florida.-State v. Louisville &
N. R. R. Co., 51 Fla. 311, 40 So.
885 (1906).
Illinois. People ex rel. v. Chi-
cago & A. R. R. Co., 55 Ill. 95, 8
Am. Rep. 631 (1870).
Indiana.—Pittsburg, Cincinnati
& St. Louis R. R. Co. v. Morton, 61
Ind. 539, 576, 28 Am. Rep. 682
(1878).
Massachusetts.-Pitlock v. Wells
Fargo & Co., 109 Mass. 452
(1872).
New York.-Babcock v. Lake
Shore & M. S. Ry. Co., 49 N. Y. 491
(1872).
2 Quoted from Gulf, C. & S. F.
³ It is apparently the duty of a
connecting carrier on a joint through
rate to accept cars delivered to it by
the initial carrier. Pennsylvania
Refining Co. v. Western N. Y. & P.
R. R. Co., 208 U. S. 208, 52 L. ed.
456, 28 Sup. Ct. 268 (1908).
4 Quoted from St. Louis South-
western Ry. Co. v. State, 85 Ark.
311, 107 S. W. 1180, 122 Am. St.
Rep. 33 (1907).
5 Louisville & N. R. R. Co., v
Central S. Y. Co., 212 U. S. 132,
143, 53 L. ed. 441, 29 Sup. Ct. 246
(1909).
[ 453 ]
§ 5331
PUBLIC SERVICE CORPORATIONS
upon the point that the statute did not provide sufficient
safeguards, not even providing for compensation: "It
was argued that the requirement that the plaintiff in error
should deliver its own cars to another road was void under
the Fourteenth Amendment as an unlawful taking of its
property. In view of the well known and necessary prac-
tice of connecting roads, we are far from saying that a
valid law could not be passed to prevent the cost and
loss of time entailed by needless transshipment or breaking
bulk, in case of an unreasonable refusal by a carrier to
interchange cars with another for through traffic. We
do not pass upon the question. It is enough to observe
that such a law perhaps ought to be so limited as to re-
spect the paramount needs of the carrier concerned, and at
least could be sustained only with full and adequate regu-
lations for his protection from the loss or undue detention
of cars, and for securing due compensation for their use.
The constitution of Kentucky is simply a universal un-
discriminating requirement, with no adequate provisions
such as we have described. The want cannot be cured
by inserting them in judgments under it. The law itself
must save the parties' rights, and not leave them to the
discretion of the courts as such." 1
Topic D. Joint Through Routing and Rating
§ 533. Through arrangements not obligatory.
At common law one public service could not be com-
pelled to enter into arrangements with another for con-
tinuous service as a single unit for a single rate. Through
arrangements were left altogether to such private agree-
ments as the parties should negotiate.2 This is well ex-
1 Much the same language is used
in Thompson v. Missouri, K. & T.
Ry. Co. (Tex.) 128, S. W. 109 (1910).
2 Railroads can establish through
rates on certain commodities with-
out doing so on others. Central of
Ga. Ry. Co. v. Augusta Brokerage
Co., 122 Ga. 646, 50 S. E. 473 (1905).
[ 454 ]
CONNECTING SERVICES
[ § 534
2
plained in the leading case of the Atchison, Topeka &
Santa Fe Railroad Co. v. Denver & New Orleans Railroad
Co.¹ where the Supreme Court squarely held that a rail-
road might enter into through traffic agreements with
one railroad, pro-rating its through rate, and at the same
time refuse to enter into a similar agreement with another
railroad traversing the same territory as the first and
having the same terminus. To quote but one paragraph
from the elaborate opinion of Chief Justice Waite: "At
common law, a carrier is not bound to carry except on
his own line, and we think it quite clear that if he con-
tracts to go beyond he may, in the absence of statutory
regulations to the contrary, determine for himself what
agencies he will employ. His contract is equivalent to
an extension of his line for the purposes of the contract,
and if he holds himself out as a carrier beyond the line,
so that he may be required to carry in that way for all
alike, he may nevertheless confine himself in carrying
to the particular route he chooses to use. He puts him-
self in no worse position, by extending his route with the
help of others, than he would occupy if the means of trans-
portation employed were all his own. He certainly may
select his own agencies and his own associates for doing his
own work." 3
§ 534. Initial company may select connecting line.
It follows plainly enough that the initial carrier has
1 110 U. S. 667, 28 L. ed. 291, 4
Sup. Ct. 185 (1884). A carrier need
not pro rate with one connection
upon the same terms that it does
with another. Samuels v. Louis-
ville & N. Ry. Co., 31 Fed. 57
(1887).
2
Telephone companies need not
establish through toll line connec-
tions. Albany Telephone Co. v.
Terry (Tex. Civ. App.), 127 S. W.
567 (1910).
3 These doctrines have prevailed
generally in the state courts.
Georgia.-State v. Wrightsville &
T. Ry. Co., 104 Ga. 437, 30 S. E.
891 (1898).
Indiana.-Snow v. Indiana, B. &
W. Ry. Co., 109 Ind. 422, 9 N. E.
702 (1886).
[455]
§ 534 1
PUBLIC SERVICE CORPORATIONS
entire control over the situation.¹ In the recent Citrous
Fruit case in the United States Supreme Court 2 the pol-
icy of the Pacific railroads under which the right of routing
beyond its own terminal was reserved to the initial carrier
to exercise in his discretion at any stage as the condition
of guaranteeing through rates to the shipper was held
its right beyond question. As the court tersely said in
its decision: "The important facts that control the situ-
ation are that the carrier need not agree to carry beyond
its own road, and may agree upon joint through tariff
rates or not, as seems best for its own interests. Having
these rights of contract the carrier may make such terms
as it pleases, at least so long as they are reasonable and do
not otherwise violate the law."
1 Citation should be made here of
the many cases which held that the
original Interstate Commerce Act
left the railroads free as before to
make such arrangements for through
routing, billing, or rating as they
pleased without its being a refusal
of equal facilities for the interchange
of traffic to make such through ar-
rangements with one company while
refusing to do so with another.
Central S. Y. Co. v. Louisville & N.
Ry. Co., 192 U. S. 568, 48 L. ed.
565, 24 Sup. Ct. 339 (1904); Ken-
tucky & I. Bridge Co. v. Louisville
& N. R. R. Co., 2 L. R. A. 289, 2
Int. Com. Rep. 351, 37 Fed. 567,
629, 630 (1889); Little Rock & M.
R. R. Co. v. St. Louis, I. M. & S.
Ry. Co., 2 Int. Com. Rep. 763,
41 Fed. 559 (1890); Chicago & N.
W. Ry. Co. v. Osborne, 3 C. C. A.
347, 4 Int. Com. Rep. 257, 52 Fed.
912 (1892); Oregon Short Line &
U. N. Ry. Co. v. Northern Pac. Ry.
Co., 4 Int. Com. Rep. 718, 9 C. C.
A. 409, 15 U. S. App. 479, 61 Fed.
158 (1894), affirming 4 Int. Com.
Rep. 249, 51 Fed. 465 (1892); Little
Rock & M. Ry. Co. v. St. Louis &
S. W. Ry. Co., 26 L. R. A. 192, 4
Int. Com. Rep. 854, 11 C. C. A. 417,
27 U. S. App. 280, 63 Fed. 775
(1894); St. Louis Drayage Co. v.
Louisville & N. Ry. Co., 5 Int.
Com. Rep. 137, 65 Fed. 39 (1894);
Prescott & A. C. Ry. Co. v. Atchi-
son, T. & S. F. Ry. Co., 73 Fed. 438
(1896); Gulf, C. & S. F. Ry. Co. v.
Miami S. S. Co., 86 Fed. 407, 30
C. C. A. 142 (1898); Allen v. Oregon
Ry. & Nav. Co., 98 Fed. 16 (1899).
But see (practically overruled on
this point) New York & N. Ry. Co.
v. New York & N. E. Ry. Co., 50
Fed. 867 (1892); Augusta S. Ry.
Co. v. Wrightsville & T. Ry. Co.,
74 Fed. 522 (1896).
2 Southern Pacific Ry. Co. v.
Interstate Comm. Comm., 200 U. S.
536, 50 L. ed. 585, 26 Sup. Ct. 330
(1906).
[ 456 ]
CONNECTING SERVICES
[ §§ 535, 536
$535. Limitations upon joint rates.
It is entirely proper that two carriers should combine
to form a single route and name a single rate for that
haul. This will usually result in a lower rate than the
sum of the two individual rates by reason of the relative
economy of the long haul. For plainly a railroad may
charge more for transporting its local passenger between
two termini than it receives for transporting a through
passenger over the same distance in the division of the
through rate with other railroads. When such a through
rate has been established by the agreement of the carriers,
every shipper is entitled to it. If some shippers are given
an advantage over others in such shipment it will be a
case of illegal discrimination.2
1
§ 536. Statutory provision for through routes.
But the statutes are going further than to make the
common law more intensive; they are making the legal
obligation more extensive. The common law right of the
initial company to make through traffic arrangements with
some one connecting line and throw all the business which
it will take at the through rate into the hands of that one
line, notwithstanding the desires of the shipper, has, of
late, caused such fears that statutes are being passed in
recent years giving the power to the regulating body to
compel the making of a joint rate. This power was given
to the English Railway and Canal Commission in 1888,3
and to the Interstate Commerce Commission in 1906.4
Our Federal legislation was anticipated in the various
¹ Union Pacific Ry. Co. v. United
States, 117 U. S. 355, 6 Sup. Ct.
772, 29 L. ed. 920 (1886); Texas &
P. Ry. Co. v. Interstate Comm.
Comm., 162 U. S. 197, 16 Sup. Ct.
666, 40 L. ed. 940 (1896); Parsons
v. Chicago & N. W. Ry. Co., 167
U. S. 447, 17 Sup. Ct. 887, 42 L. ed.
231 (1897); Tozer v. United States,
52 Fed. 917 (1892).
2 Blair v. Sioux City & P. Ry.
Co., 109 Ia. 369, 80 N. W. 673
(1899); Bras v. McConnell, 114 Ia.
401, 87 N. W. 290 (1901).
351 & 52 Vict., Chap. 25 (1888).
4 Act of July 29, 1906.
[457]
§§ 537, 538] PUBLIC SERVICE CORPORATIONS
states, Minnesota and Texas for example. It will be no-
ticed that the commission by these statutes is to judge
as to whether public convenience requires the additional
through routes asked. The shipper, therefore, now as
before has no rights in the matter until the through rate
has been duly established, then of course he may demand it.
§ 537. Constitutionality of such statutes.
The problem has not been settled though it has been
raised as to whether such statutes are constitutional; but
in view of the later idea of the obligation of the carrier to
the whole community there seems to be little doubt of
the decision. In holding the Minnesota statute valid,
Mr. Justice Collins said: "We see no reason why, under
the amendatory act the commission cannot lawfully corn-
pel a joint arrangement in a case like this. The evidence
shows that the location of the Duluth road and the Minne-
apolis and St. Louis road, their track facilities, equipment,
etc., are such that, by operating together under joint
traffic agreements, the cost of the service can be greatly
lessened. The public has, at least, a right to share in the
benefits of this condition. If it is judicious to do so and
of public benefit to have joint traffic arrangements in any
given case, why should not the public be permitted to
compel that such arrangements be made?" 2
§ 538. Application of these statutes.
Two recent cases in the Supreme Court of the United
States bring out the limitations under which the extension
of the common law doctrines by legislation is proceeding.
In the first of these cases it was held that the general
¹ State v. Minneapolis & St. L.
R. R. Co., 80 Minn. 191, 83 N.
W. 60, 89 Am. St. Rep. 514
(1900).
2 Inman v. St. Louis S. W. Ry.
3
Co., 14 Tex. Civ. App. 39, 37 S. W.
37 (1896), should be noted.
3 Interstate Comm. Comm. v.
Delaware, L. & W. Ry. Co., 216
U. S. 531, 30 Sup. Ct. 417 (1910).
[458]
CONNECTING SERVICES
[ § 539
power given to the Interstate Commerce Commission in
the recent amendments to compel an unwilling railroad
to make connections with a branch line was not intended
"to give a roving commission to every road that might
see fit to make a descent upon a main line, but primarily,
at least, to provide for shippers seeking an outlet either
by a private road or branch.” In the second of these
cases it was held that joint through routes may not be
established by the commission except in accordance with
the powers delegated to it in the statute, and that there-
fore where one reasonable through route has been estab-
lished by the company in question it cannot be compelled
to enter into another in which it gets a far shorter haul,
simply because the public might prefer to have the ad-
vantage of an alternative route.
1
§ 539. Statutory regulation of connecting service.
This modern conception of the fuller extent of the public
duty to all concerned in relation to the making of con-
nections has manifested itself of late in many statutes
requiring proper arrangements for the interchange of busi-
ness at junction points. These now receive more respect
from the courts than they once did. And in another class
of cases altogether it has been held that legislation com-
pelling telephone companies to make switch board con-
1 Interstate Comm. Comm. v.
Northern Pac. Ry. Co., 216 U. S.
538, 30 Sup. Ct. 415 (1910).
2 The possibility of constitution-
ally compelling the interchange of
business upon equal terms is shown
in various recent cases, such as:
Kentucky.-Louivsille & N. R. R.
Co. v. Pittsburg & K. Coal Co., 111
Ky. 960, 64 S. W. 969, 55 L. R. A.
601, 98 Am. St. Rep. 447 (1901);
Louisville & N. Ry. Co. v. Central
2
S. Y. Co., 97 S. W. 778, 30 Ky. Law
Rep. 18 (1906).
Minnesota.-Jacobson
V. Wis-
consin, M. & P. R. R. Co., 71 Minn.
519, 74 N. W. 893, 40 L. R. A. 389
(1898).
Missouri.-State of Missouri v.
St. Louis & S. F. R. R. Co., 105 Mo.
App. 207, 79 S. W. 714 (1904).
New York.-Hudson Valley Ry.
Co. v. Boston & Maine R. R. Co.,
106 App. Div. 375, 94 N. Y. Supp.
545 (1905).
[459 ]
§ 540 ]
PUBLIC SERVICE CORPORATIONS
nection so that through speech may be had has been held
This is going to an extreme as will be
constitutional.¹
seen in another connection.
§ 540. Policy of such legislation.
It is well worthy of particular remark that the powers
granted commissions in this respect now go so far as to
authorize the making of orders as to running of trains by
the intersecting roads, so as to make convenient connec-
tions. It is characteristic of the new appreciation of the
extent of public duty that the United States Supreme
Court finds no difficulty with these statutes. Speaking
of the objection raised to the regulation of the conduct of
one public service in its relations with another for the
benefit of all concerned, that court said in what seems
certainly destined to be a leading case: 2 "This reduces
itself to the contention that, although the governmental
power to regulate exists in the interest of the public, yet
it does not extend to securing to the public reasonable
facilities for making connection between different carriers.
But the proposition destroys itself, since at one and the
same time it admits the plenary power to regulate and
yet virtually denies the efficiency of that authority.³
1 Telephone companies may be
compelled by statute to make
switchboard connections. Billings
Mutual Telephone Co. v. Rocky
Mt. Bell Telephone Co., 155 Fed.
207 (1907). But the common law
obligation to this effect is limited
to those cases where the company
has not provided through lines of
its own. Home Telephone Co. v.
North Manchester Telephone Co.
(Ind. App.), 92 N. E. 558 (1910).
2 Atlantic Coast Line Ry. Co. v.
North Carolina Corp. Comm., 206
U. S. 1, 22, 51 L. ed. 933, 27 Sup.
Ct. 585 (1907).
³ A statute making it the duty of
railroad corporations to stop all
trains carrying passengers at the
junction of other railroads a suffi-
cient length of time to allow the
transfer of passengers and their
baggage, enforced. State ex rel.
McPherson v. St. Louis & S. F. Ry.
Co., 105 Mo. App. 207, 79 S. W. 714
(1904).
A statute requiring common
carriers to afford all reasonable,
1
[460]
CONNECTING SERVICES
[ § 540
proper, and equal facilities for
traffic between their respective
lines, and for receiving, forwarding,
and delivering passengers and prop-
erty to and from their several lines
and connecting lines is violated by a
railroad changing its times card by
which a connection with a connect-
ing road which was of general con-
venience was discontinued. South-
ern Ry. Co. v. Commonwealth, 37
S. E. 294, 98 Va. 758 (1900).
[ 461 ]
PART IV. JUSTIFICATION FOR REFUSING
SERVICE
CHAPTER XVI
INEXCUSABLE BREACHES OF PUBLIC DUTY
§ 550. Refusal illegal without proper justification.
Topic A. Distasteful Service
§ 551. Malicious motives.
552. Malice as a factor.
553. Refusal dictated by favoritism.
554. Discrimination for its own ends.
555. Disagreeable persons.
556. Unmannerly persons.
557. Slight misbehavior.
558. Personal objections.
559. Immoral persons.
560. Undesirable persons.
561. Supposed interest of patron.
562. Wiser course for patron.
563. Unwelcome service.
564. Wrongful refusal.
Topic B. Disadvantageous Service
§ 565. Race prejudice.
566. Separation of the races.
567. Class distinctions.
568. Social differences.
569. Unpopular organizations.
570. Labor demands.
571. Assumption of peculiar risks.
572. Service involving unusual care.
573. Indirect advantage in refusing.
574. Ultimate advantage in refusing.
575. Particular service peculiarly expensive.
576. Extensions limited by profitableness.
[462]
INEXCUSABLE BREACHES
[ § 550, 551
§ 577. Service in unprofitable ways.
578. Unprofitableness seldom an excuse.
579. Particular service not indispensable.
580. Substitute for service available.
§ 550. Refusal illegal without proper justification.
According to the primary principles discussed in the
preceding chapters one is bound to serve all who come
within his public profession. To excuse himself from
such service he must show justification based upon public
policy. Once committed to public employment he can no
longer refuse his service at his whim or caprice. When
the obligation of public service is clearly established by
showing that there is a plain case within the public under-
taking, all conditions precedent being satisfied, the only
method of avoiding liability is to show that there is justifi-
cation for the suspension of service in general or some
special excuse for the particular refusal. And it is obvious
that such justification must be upon reasonable grounds
relating to the possibility of performing the service, and
such excuse must show that the particular request is truly
improper. A refusal to serve upon any other basis is a
breach of public duty, no matter what plausible grounds
may be urged in its defense. Such breaches are almost too
obvious to be discussed as excuses; they are rather illustra-
tions of the primary duty. As such the facts of the lead-
ing cases are stated rather fully in this chapter.
Topic A. Distasteful Service
§ 551. Malicious motives.
One engaged in a public employment must serve friends
and enemies alike. This is too obviously the consequence
of public duty to provoke much discussion. In one case
a traveler recovered for being refused by the manager of a
hotel who bore a grudge against him because he had
previously attempted to procure the discharge of the
[463]
§§ 552, 553] PUBLIC SERVICE CORPORATIONS
manager. The court held the proprietor liable.¹ In an-
other case a shipper recovered from a railroad for refusal
to accept goods tendered for shipment, because of per-
sonal disputes with the shipper.2 And the court charged
the jury that no circumstances justifying the refusal of
the goods appeared.
§ 552. Malice as a factor.
It should be noted in this connection that if the request
refused is one as to which there is no public duty involved
it makes no difference with what motive the refusal is
made.³ But as regulations must be enforced in good faith,
if service is cut off from spite the regulation will not be a
defense for what is done. Malice may not work a wrong.
But malice may destroy a justification.
4
§ 553. Refusal dictated by favoritism.
It may be admitted that there are sometimes good
reasons for giving one applicant for service priority over
another which justify refusing one applicant in favor of
another. But such refusal will constitute an illegal dis-
crimination unless it is in accordance with the general
rules of priority later discussed. Thus a gas company
cannot give the supply of one of its stockholders priority
and thereby excuse its refusal to serve one of the general
public. So a common carrier by sea cannot lawfully
5
1 Willis v. McMahan, 89 Cal. 156,
26 Pac. 649 (1891).
See also Avinger v. South Caro-
lina R. R. Co., 29 S. C. 265, 7 S. E.
493, 13 Am. St. Rep. 716 (1888).
2 Lanning v. Sussex R. R. Co., 1
N. J. L. Jour. 21 (1878).
See also Western Union Tele-
graph Co. v. Lilliard, 86 Ark. 208,
110 S. W. 1035 (1908), holding that
it makes no difference with what
motive the refusal is made.
3 Gamble-Robinson Commission
Co. v. Chicago & N. W. Ry. Co.,
168 Fed. 161, 94 C. C. A. 217, 21
L. R. A. (N. S.) 982 (1909).
4 Phelan V. Boone Gas Co.
(Iowa), 125 N. W. 208 (1910).
5 Crescent Steel Co. v. Equitable
Gas Co., 23 Pitts. L. Jour. 316
(1892).
Compare Lafaye v. Harris, 13 La.
Ann. 553 (1858).
[ 464 ]
INEXCUSABLE BREACHES [ §§ 554, 555
reject lumber, a commodity which it professes to carry,
and afterwards receive and transport cotton and other
goods, where, at the time of the tender, there was room
in the vessel for the rejected lumber.¹
§ 554. Discrimination for its own ends.
In an astounding Canadian case 2 a railroad openly
announced that it would not carry any more cedar lum-
ber off its line. The court held that it might thus limit
its undertaking, although apparently the railroad adopted
this policy in order to keep the cedar timber on its line
for its own uses. But in a leading American case it was
held that a railroad could not discriminate against ship-
pers who would not sell their ties to it at a fixed price.³
There can be no doubt that the latter case is the correct
one.
§ 555. Disagreeable persons.
4
The mere fact that a person is distasteful or has un-
gentlemanly habits will not justify a carrier or an inn-
keeper in refusing him. The question, or a very similar
one, arose in Prendergast v. Compton. The plaintiff, a
passenger, sued the defendant, the captain of the ship in
which he was being transported, for excluding him from
eating in the "cuddy," upon the ground that his con-
duct was vulgar and offensive. There was evidence that
he was in the habit of reaching across other passengers
and of taking potatoes and boiled bones in his fingers.
The court held, however, for the passenger: "It would be
difficult to say, if it rested here, in what degree want of
¹ Ocean Steamship Co. v. Sa-
vannah Locomotive Works & S.
Co., 131 Ga. 831, 63 S. E. 577, 20
L. R. A. (N. S.) 867 (1909).
2 Rutherford v. Grand Trunk Ry.
Co., 5 Rev. Leg. (Can.) 483 (1873).
• Louisville E. & St. L. R. R. Co.
v. Wilson, 132 Ind. 517, 32 N. E.
311 (1892).
48 C. & P. 454 (1837).
30
[ 465]
§§ 556, 557] PUBLIC SERVICE CORPORATIONS
polish would, in point of law, warrant a captain in ex-
cluding a passenger from the cuddy. Conduct unbecom-
ing a gentleman, in the strict sense of the word might
justify him: but in this case there is no imputation of the
want of gentlemanly principle.'
§ 556. Unmannerly persons.
These moderate principles prevail generally. In an
American case ¹ of a person who had made himself dis-
agreeable upon a street car, it was said: "It is not all con-
duct which may be said to be outside the pale of good
breeding that will bar a passenger from the protection of
the law against the carrier for the act of the servant in
ejecting him from the car." These quotations are given
to show that the law is rather easy-going in these matters.
Those who engage in a public service must deal with all
sorts and conditions of men; and those who are being
served along with the general public must not be too nice
or too finical.
§ 557. Slight misbehavior.
Upon these principles slight misbehavior is not a suf-
ficient excuse for a refusal to serve. As was said in one
of the telephone cases 2 where the subscriber had made
some vulgar talk: "Reasonable caution must be taken
lest injustice be done. Some allowance is to be made
for the infirmities of human nature. Local customs are
not to be ignored. Habit sometimes excuses, if it does
not justify, the use of objectionable language. Early
environment more often than an evil spirit is respons-
ible for bad manners. Undisclosed emergencies may
¹ Eads v. Metropolitan St. Ry.
Co., 43 Mo. App. 536 (1891).
2 Huffman v. Marcy Mutual Tele-
phone Co. (Iowa), 121 N. W. 1033,
23 L. R. A. (N. S.) 1010 (1909).
In People v. McKay, 46 Mich.
439 (1881), it was held that one
could not be excluded from a wait-
ing room for spitting.
[ 466 ]
INEXCUSABLE BREACHES [ §§ 558, 559
66
extenuate lapses from propriety." By these principles
the profane retort of an exasperated traveller to an inn-
keeper who was keeping him out in the night until he
would answer a lot of questions was held to be no excuse
for the subsequent refusal to take him in.¹ Suppose
he did add the words, and be damned to you,' is that a
sufficient reason for keeping a man out of an inn who
has travelled till midnight? I think that the prosecutor
was not guilty of such misconduct as would entitle the
defendant to shut him out of his house."
558. Personal objections.
However much the many antics of children may wear
upon the nerves of some people, boys who are skylarking 2
cannot be ejected from a street car. Nor is unconven-
tionality of costume an excuse unless it be indecent.
Upon this principle it was held that a woman in bloomers
could not be excluded from an inn.3 And so a railroad can-
not dictate what dress its passengers shall wear. One may
travel who wears the uniform of a rival line. These prin-
ciples go far. Even a man who has plainly been drinking
cannot be rejected.5
§ 559. Immoral persons.
An excellent illustration of this general principle that
there can be no refusal on merely personal grounds alone
if the application is proper in itself is Brown v. Memphis
1 Rex v. Ivens, 7 Car. & P. 213
(1835). Similarly a profane retort
made by a passenger to a con-
ductor under extreme provocation
was held not to be a sufficient ex-
cuse for ejecting him. El Paso
Electric Ry. Co. v. Alderete, 36
Tex. Civ. App. 142, 81 S. W. 1246
(1904).
Rosenberg v. Brooklyn Heights
St. Ry. Co., 91 N. Y. App. Div. 580,
86 N. Y. Supp. 871 (1904).
³ Regina v. Sprague, 63 J. P. 233
(1899).
4 South Florida R. R. Co. v.
Rhodes, 25 Fla. 40, 5 So. 633, 3
L. R. A. 733, 23 Am. St. Rep. 506
(1889).
'See Story v. Norfolk & S. R. R.
Co., 133 N. C. 59, 45 S. E. 349 (1903).
[467]
§ 560 ]
PUBLIC SERVICE CORPORATIONS
1
& Corinth Railroad. The plaintiff brought this suit
for being ejected by the defendant's servants from the
ladies' car, her behavior while on the car being admittedly
ladylike. The defendant pleaded that the plaintiff was
a notorious public courtesan; but notwithstanding this
plea Hammond, district judge, charged the jury “that the
same principles of law were to be applied to women as
men in determining whether the exclusion was lawful
or not; that the social penalties of exclusion of unchaste
women from hotels, theatres and other public places
could not be imported into the law of common carriers;
that they had a right to travel in the streets and on the
public highways, and other people who travel must
expect to meet them in such places; and, as long as their
conduct was unobjectionable while in such places, they
could not be excluded. The carrier is bound to carry
good, bad and indifferent, and has nothing to do with
the morals of his passengers, if their behavior be proper
while travelling." 2
§ 560. Undesirable persons.
Certain persons because of their personal notoriety
are often undesirable customers because they injure
general patronage; indeed this is true to some extent
of all in certain callings-prize fighters,³ for one example.
In this connection the important case of Pearson v.
Duane 4 should be cited. Duane had been ordered from
San Francisco by the Vigilance Committee and upon the
15 Fed. 499 (1880); S. C., 4 Fed.
37 (1880). Compare Curtis v. Mur-
phy, 63 Wis. 4, 22 N. W. 825, 53
Am. Rep. 242 (1885), where the par-
tics resorted to an inn for the pur-
poses of prostitution.
2 See also Meisner v. Detroit, B.
& I. W. Ferry Co., 154 Mich. 545,
118 N. W. 14 (1908). But see
Stevenson v. West Seattle Land &
Improvement Co., 22 Wash. 84, 60
Pac. 51 (1900).
See the dictum to this effect in
Nelson v. Boldt, 180 Fed. 779
(1910).
44 Wall. 605, 18 L. ed. 447 (1867).
[468]
INEXCUSABLE BREACHES [ §§ 561, 562
discovery of that fact Pearson expelled him from his
ship. The United States Supreme Court hardly knew
whether there were circumstances of justification in this
case or not. "Common carriers of passengers, like the
steamship Stevens, are obliged to carry all persons who
apply for passage, if the accommodations are sufficient,
unless there is a proper excuse for refusal. If there are
reasonable objections to a proposed passenger, the car-
rier is not required to take him. In this case Duane
could have well been refused a passage when he first
came on board the boat, if the circumstances of his
banishment would, in the opinion of the master, have
tended to promote further difficulty, should he be re-
turned to a city where lawless violence was supreme.
§ 561. Supposed interest of patron.
22
It has been suggested that the shipmaster in the case
just discussed ¹ might justify himself in refusing to take
the passenger to San Francisco where a violent fate prob-
ably eventually awaited him by saying that the refusal
was in his own interest. So a ferryman once attempted
to excuse his refusal to take a passenger who apparently
easily succumbed to temptation across to a city on the
ground that she usually reappeared late at night in an
intoxicated condition.2 But this ground is obviously
indefensible.
§ 562. Wiser course for patron.
Certainly it is not the business of the public servant
to decide whether the patron is wise in pursuing the
course he is setting out upon. Thus a telegraph com-
pany cannot escape liability for refusal to accept a mes-
sage for transmission because, in the opinion of the
¹ Pearson v. Duane, 4 Wall. 605,
18 L. ed. 447 (1866).
2 Stevenson v. West Seattle L. & I.
Co., 22 Wash. 84, 60 Pac. 51 (1900).
[469]
§§ 563, 5641 PUBLIC SERVICE CORPORATIONS
operator, it would not have accomplished its purpose
if sent.¹ And so where a telephone company has con-
tracted to submit and deliver a message summoning a
physician, it cannot excuse its liability for delay in de-
livery by proof that it was not the custom of the physician
to make professional calls at a distance without prepay-
ment or guaranteed payment of his charges. 2
§ 563. Unwelcome service.
An interesting point is whether compliance with the
request for a party in interest that service be discon-
tinued will excuse the proprietors of the service, or
whether they must undertake the often distasteful task
of forcing service upon one. That a buyer has notified a
railroad company not to bring any more of the seller's
property consigned to the buyer, does not absolve the
railway of its duty to the seller to furnish him transporta-
tion requested. And the fact that the sendee of a tele-
gram has notified the company to deliver no telegrams at
his house on Sunday will not apparently excuse the com-
pany from its obligation to the sender of attempting to
deliver such telegrams.4
3
§ 564. Wrongful refusal.
This means that the duty to the moving party must be
performed notwithstanding the expressed dissent of the
receiving party. So the refusal of a connecting carrier to
receive freight for a certain consignee will not relieve the
initial carrier from liability for a penalty for a failure to
receive such freight. But a carrier may demand its pay
5
¹ Cordell v. Western Union Tele-
graph Co., 149 N. C. 402, 63 S. E.
71 (1908).
2 Western Union Telegraph Co. v.
Henderson, 89 Ala. 510, 18 Am. St.
Rep. 148 (1889).
Houston, E. & W. T. Ry. Co. v.
Campbell, 91 Tex. 551, 45 S. W. 2,
43 L. R. A. 225 (1898).
4 Brashears v. Western Union Tel-
egraph Co., 45 Mo. App. 433 (1891).
5 Wampum Cotton Mills v. Caro-
lina & N. W. Ry. Co., 150 N. C. 608,
64 S. E. 588 (1909).
[470]
INEXCUSABLE BREACHES [ §§ 565, 566
in advance for goods directed to certain consignees.¹
there is no discrimination where there is no duty.
Topic B. Disadvantageous Service
§ 565. Race prejudice.
2
1 For
A carrier cannot refuse to carry persons because of
their color or race, whatever may be the prejudices
current against them in the community. It must be
admitted that this requirement may result in pecuniary
loss. This is particularly true in the case of innkeeping;
but the public duty is, nevertheless, imperative in this
calling as in all others. However, one southern court was
so impressed with this hardship that it said in a dictum
that a landlord could exclude from his inn persons so
objectionable to the patrons of the house on account of
the race to which they belong, that it would injure the
business to admit them.¹
3
§ 566. Separation of the races.
However, it would seem to be the plain right of the
carrier or indeed the innkeeper, to assign the different
races to different accommodations, since the manage-
ment of the business is left to the proprietor. Therefore
1 Gamble-Robinson Commission
Co. v. Chicago & N. W. Ry. Co., 168
Fed. 161, 94 C. C. A. 217, 21 L. R.
A. (N. S.) 982 (1909).
2 Brown v. Memphis & C. Ry.
Co., 5 Fed. 499 (1880).
3 Younger v. Judah, 111 Mo. 303,
19 S. W. 1109, 16 L. R. A. 558, 33
Am. St. Rep. 527 (1892).
4 State v. Steele, 106 N. C. 766,
11 S. E. 478, 8 L. R. A. 516, 19 Am.
St. Rep. 573 (1890).
5 United States.-Houck v. South-
ern Pac. Ry. Co., 38 Fed. Rep. 226
(1888); Chiles v. Chesapeake & O.
5
Ry. Co., 218 U. S. 71, 30 Sup. Ct.
667 (1910).
Alabama.-Bowie v. Birmingham
Ry. & El. Co., 125 Ala. 397, 27 So.
1016, 82 Am. St. Rep. 247 (1899).
Arkansas.-Bradford v. St. Louis
I. M. & So. Ry. Co. (Ark.), 124 S.
W. 516 (1910).
Kentucky.-Chiles v. Chesapeake
& O. Ry. Co., 30 Ky. L. Rep. 1332,
101 S. W. 386, 11 L. R. A. (N. S.)
268 (1907).
Michigan.-Day v. Owen, 5 Mich.
520, 72 Am. Dec. 62 (1858).
Missouri.-Chilton v. St. Louis &
[471]
§ 567]
PUBLIC SERVICE CORPORATIONS
the legislation in certain States which have provided by
statute that separate accommodations may be, or shall
be, furnished by the railroads to colored passengers
which are equal to those furnished white passengers is
constitutional, so far as its being due process of law is con-
cerned.¹ But at all events, public carriers until they
do furnish separate accommodations equal in comfort
and safety to those furnished other travellers have no
right to discriminate between passengers."
§ 567. Class distinctions.
2
One who is engaged in public service cannot make a
valid restriction of his service to certain classes of society.
It is only as to innkeepers apparently that this general
principle has ever been questioned. It is no doubt com-
petent for an innkeeper to fix the character of his enter-
tainment so high that his reasonable charges will shut
I. M. Ry. Co., 114 Mo. 88, 21 S. W.
458, 19 L. R. A. 269 (1892).
North Carolina.-Britton v. At-
lanta & C. A. L. Ry. Co., 88 N. C.
536, 43 Am. Rep. 749 (1883).
Pennsylvania.-West Chester &
Philadelphia R. R. Co. v. Miles, 55
Pa. St. 209, 93 Am. Dec. 744 (1867).
South Carolina.-Smith v. Cham-
berlain, 38 S. C. 529, 17 S. E. 371,
19 L. R. A. 710 (1892), waiting
rooms.
Tennessee.-Chesapeake, O. & S.
W. R. R. Co. v. Wells, 85 Tenn. 613,
4 S. W. 5 (1887).
1 United States.-Chesapeake &
O. Ry. Co. v. Kentucky, 179 U. S.
388, 45 L. ed. 244, 21 Sup. Ct. 101
(1900); McGuinn v. Forbes, 37 Fed.
639 (1889).
Florida.-Croons v. Shadd, 51
Fla. 168, 40 So. 497 (1906).
Kentucky.-Louisville & N. R. R.
Co. v. Catron, 102 Ky. 323, 43 S. W.
443 (1897).
Louisiana.—Ex parte Plessy, 45
La. Ann. 80, 11 So. 948, 18 L. R. A.
639 (1893).
Mississippi.-Louisville, N. O. &
T. Ry. Co. v. State, 66 Miss. 662, 6
So. 203, 14 Am. St. Rep. 599 (1889).
Tennessee.-Smith v. State, 100
Tenn. 494, 46 S. W. 566, 41 L. R. A.
432 (1888).
2 United States.-Houck v. South-
ern Pacific R. R. Co., 38 Fed. 226
(1888).
Illinois.-Chicago & N. W. R. R.
Co. v. Williams, 55 Ill. 185, 8 Am.
Rep. 641 (1870).
Iowa.-Coger v. North Western
Union Packet Co., 37 Ia. 145
(1873).
Texas.-Pullman P. Car Co. v.
Cain, 15 Tex. Civ. App. 503, 40 S.
W. 220 (1897).
[ 472 ]
INEXCUSABLE BREACHES
[ §§ 568, 569
out all but wealthy or well-to-do patrons.¹ "He does not
absolutely engage to receive every person who comes
to his house, but only such as are capable of paying a com-
pensation suitable to the accommodation provided.” 2
§ 568. Social differences.
But if a person applies for such accommodation and
is prepared to pay the price demanded, the innkeeper
could hardly refuse to receive the guest on the ground
that he was a poor man, and ought not to afford such an
entertainment. Yet Baron Parke 3 once said: "A man
may keep an inn for those only who come in their own
carriages." This doctrine is a very doubtful one; but
it is doubtless competent for an innkeeper to entertain
guests of different classes in different rooms or require
them to eat at separate tables, provided each gets reason-
able accommodations.*
§ 569. Unpopular organizations.
That there is a prejudice against the members of cer-
tain organizations in general cannot in accordance with
these principles excuse the refusal of certain members of
that organization. Thus there is in some communities
a deplorable prejudice against social association with
enlisted men in uniform; but this cannot justify their re-
fusal. In a Maine case this whole matter was threshed
out in a case against an innkeeper who wanted to
put in the defense, that others wearing the same uni-
form had earlier in the day acted in a disorderly man-
ner in his house, but Emery, J., said: "These plaintiffs,
1
5
* Regina v. Sprague, 63 J. P. 233
(Eng., 1899).
4
Jaquet v. Edwards, 1 Jamaica,
4 (1867).
2 Abbott, C. J., in Thompson v.
Lacy, 3 B. & Ald. 283, 285 (1820).
3 In Johnson v. Midland Ry. Co.,
4 Exch. (Eng.) 367, 371 (1849).
Atwater v. Sawyer, 76 Me. 539,
49 Am. Rep. 634 (1884).
[473]
§ 570 1 PUBLIC SERVICE CORPORATIONS
though members of the militia companies, were not of
this disorderly party, nor with them. It is not claimed
that the plaintiffs were otherwise than sober, orderly
and respectable. The only connection shown between
them and the disorderly ones was their membership of
the same militia companies. It is not even shown they
were of the same company. The only similarity in
appearance was in the uniform. Such membership was
honorable, and there was not in that any reasonable
cause to believe the plaintiffs intended insult. The uni-
form was honorable and the rightful wearing it by the
plaintiffs was no reasonable cause for apprehension of
insult." 1
§ 570. Labor demands.
A public servant owing a general duty to all men
requiring his service cannot be permitted, if he would,
to defer to the demands which the laboring class often
makes upon the whole community in its labor disputes.
Thus a railroad cannot refuse to take scab workmen to
do their work against the violent protests of the union
men, although the protection of such workmen as pas-
sengers may impose upon them unusual burdens. That
the carrier must put forth extraordinary efforts in such
emergencies is but part of the general duty to meet all
contingencies with adequate service. Thus a railroad
cannot refuse to take freight from a boycotted line, even
if its reception may involve a sympathetic strike on its
own line.³ As the court said in a case of this extreme sort:
¹ Rex v. Smith, 65 J. P. 521
(1901), accord.
2 Chicago & A. R. R. Co. v.
Pillsbury, 123 Ill. 9, 14 N. E. 22
(1827):
But see Pounder v. North E. Ry.
Co., 1 Q. B. 385 (1891).
3 The quotation is from Chicago,
2
B. & Q. Ry. Co. v. Burlington, C. R.
& N. Ry. Co., 34 Fed. 481 (1888).
See also Toledo, A., A. & N. M.
Ry. Co. v. Pennsylvania Co., 54
Fed. 730, 19 L. R. A. 387 (1893);
and Thomas v. Cincinnati, N. O. &
T. P. Ry. Co., 62 Fed. 803
(1894).
[474]
ÎNEXCUSABLE BREACHES [§§ 571, 572
"Now, the question is, what shall be obeyed,—the law
of the land, or the order of the chiefs of the locomotive
engineers? Shall a railway company refuse obedience
to the express provisions of the statutory law because
some of its employés threaten to quit its service, and
thus stop the running of its trains?"
§ 571. Assumption of peculiar risks.
1
It is part of the business in public service to undertake
in particular cases a service which will involve more risk
than in the ordinary case. Thus in a recent Massachusetts
case ¹ it was held that a sender of a telegram might inform
the company of the nature of the message and its impor-
tance from a financial point of view, so that the nature and
particulars of the undertaking of the company may be
understood by it. And consequently the telegraph com-
pany was held liable for refusing to take the message to
which this notice was attached.2
§ 572. Service involving unusual care.
More familiar illustrations of this principle may be
found in the law of the carriage of passengers. For ex-
ample, a railroad cannot refuse to carry a blind man who
can get about after a fashion. Thus in Lackery v. Mobile
& Ohio Railroad Company 3 it was said: "It is not every
sick or crippled or infirm person whom a railroad regula-
tion can exclude, but one so sick or so crippled or so infirm
as not to be able to travel without aid." Women and
children, cripples and invalids, the halt and the blind-all
have a right to travel. If they will put an outrageous
burden upon the carrier in particular cases, that is a mat-
ter of excuse.4
1 Vermilye v. Postal Telegraph
Cable Co., 205 Mass. 298, 91 N. E.
904 (1910).
2 See generally chapter XXIX.
3 75 Miss. 751, 23 So. 435, 41 L.
R. A. 385, 65 Am. St. Rep. 617
(1898).
4 See generally chapter XVIII.
[ 475]
§§ 573, 574] PUBLIC SERVICE CORPORATIONS
§ 573. Indirect advantage in refusing.
1
A public servant or one representing him cannot
refuse service for his own private advantage or for his
own profit in an outside business. A plain example of
this may be seen in a late case where a telegraph oper-
ator refused to take a message complaining of his con-
duct. Another aggravated case was that of a railroad
which refused to handle coal of a shipper because he
would not sell it to a coal company of which an officer
of the road was an officer. In granting a mandamus in
that case Mr. Justice Dean said: "The public duty of
defendant was to carry freight and passengers. Suppose
it had refused to sell him a ticket as a passenger, and
notified him that such refusal would be kept up unless
he sold his coal to the president's coal company; the
wrong would have been a violation of a duty which de-
fendant owed to the general public and a common car-
rier of passengers, but it would also have been a wrong
special to himself, distinct from the public of which he
was one, and from which he alone specially suffered. It
would have been a demand on him to do something
having no connection with defendant's business of trans-
portation, and, if he refused, to deprive him of a right
which it had undertaken.” 2
§ 574. Ultimate advantage in refusing.
A public servant should not set himself up as the con-
stituted arbiter of the economic advantage of the com-
munity he serves, even if it may be said that its own
interests are bound upon those of the community. A
railroad company, for example, could not, as one court
pointed out,³ refuse to handle the freights of a new dealer
¹ Western Union Telegraph Co. v.
Lillard, 86 Ark. 208, 110 S. W. 1035
(1908).
2 Loraine v. Pittsburg, J. E. & E.
R. R. Co., 205 Pa. St. 132, 54 Atl.
580, 61 L. R. A. 502 (1903).
' Coe v. Louisville & Nashville
R. R. Co., 3 Fed. 775 (1880).
[ 476 ]
INEXCUSABLE BREACHES
[§ 575
upon the ground that the particular trade already had
sufficient followers in that community, and was being
over done to the detriment of all concerned. This was
well brought out in a late case where a railroad had re-
fused to accept coal for shipment from a mine on the
ground that it was of such inferior quality to other coal
shipped from the region over its line as to injuriously
affect the sale, and subsequently the shipment of superior
qualities of other mines. Here, obviously, the railroad
assumed too much. That this sort of economic argu-
ment is out of place in legal discussion of plain breach of
established duty is plain to all lawyers when outright
refusal of service is in question; but later in this treatise
it will be seen that in the making of relative rates for
service, apparent discrimination is often justified upon
the ground of general economic advantage.¹
§ 575. Particular service peculiarly expensive.
Even in the extreme case where it is shown that in the
particular case it will be unprofitable to serve the appli-
cant in question as he desires, there is no excuse. For
clearly it should be obvious that in a public employment all
applicants must be served at established rates, even if in a
particular case it is especially bothersome or even partic-
ularly expensive. Those who profess a public employ-
ment must fulfill their public duty to all who apply, and
must realize that this will be more troublesome in some
cases than in others; and indeed so long as the business
as a whole is profitable they should not complain if some
occasional services may result in loss. Thus a railroad
cannot cancel a scheduled train because not enough busi-
ness has appeared for it on a particular day to make
it pay.2 Nor can a telegraph company refuse to take a
2 Kansas & A. V. Ry. Co. v.
Ayres, 63 Ark. 331 (1897).
1 Beech Creek R. R. Co. v.
Olanta Coal Mining Co., 158 Fed.
36, 85 C. C. A. 148 (1907).
[477]
§§ 576, 577] PUBLIC SERVICE CORPORATIONS
telegram which it is obvious it will not be profitable to
handle under the circumstances.¹
§ 576. Extensions limited by profitableness.
But although unprofitableness in a particular instance
will not justify a refusal to act in accordance with the
general obligation, general unprofitableness may excuse
the failure to make further extension of the service in
question. Particularly in those services where the gen-
eral profession calls for the expansion of the facilities
offered to meet increased demands, reasonable time is
given. Two recent telephone cases throw light on this.
In one 2 in approving the granting mandamus against
a telephone company which had pleaded that its switch
board was full, it was said that a reasonable time for the
construction and installation of an enlargement should be
allowed for. In the other 3 the court was more lenient
still, holding that new trunk cables need not be installed
so as to give one applicant a private line until other
applications made such a considerable addition obli-
gatory.
§ 577. Service in unprofitable ways.
As has been seen there may be upon proper announce-
ment partial withdrawal from any separable branch of
the service offered which is proving unprofitable unless
a mandatory charter stands in the way.¹ But so long
as public service is still professed in any branch it would
seem that it was necessary to continue to give such serv-
ice as the business in general, taken as a whole, really
demands. To a certain extent also the amount of serv-
5
1 Western Union Telegraph Co.
v. Matthews, 24 Ky. L. Rep. 3
(1902).
2 State ex rel. v. Citizens' Tele-
phone Co., 61 S. C. 83, 39 S. E. 257,
85 Am. St. Rep. 870 (1901).
3 Cumberland Tel. & Tel. Co. v.
Kelly, 160 Fed. 316 (1908).
4 See Railway Co. v. Smith, 60
Ark. 221, 29 S. W. 752 (1895).
5 See Steenerson v. Great North-
ern Ry. Co., 69 Minn. 353 (1897).
[ 478]
INEXCUSABLE BREACHES [ §§ 578, 579
ice that must be rendered depends upon the existing
demand.
§ 578. Unprofitableness seldom an excuse.
However it does not follow at all that no more need be
expended in performing a service than will be profitable.
Thus a railroad cannot excuse itself from running sep-
arate trains for passengers by urging that it would not
be sufficiently profitable. Passengers are entitled to
appropriate service so long as passenger service is main-
tained.¹ Nor can a canal company allow a lateral which
is unprofitable to fall into disrepair; if it is bound to main-
tain it, it must do so properly.2
579. Particular service not indispensable.
It is not necessary that the breach shall be upon per-
sonal grounds. When service is refused for other motives
than personal prejudice, there will be no defense unless
there are sufficient public grounds to justify the refusal,
whatever arguments might be urged otherwise. Thus
the defense that the applicant has another service avail-
able will not prevail although public necessity is appar-
ently not so strong in this case as in the typical case of
virtual monopoly. Although there have been several
cases in which this defense has been brought forward,
it has failed in all. Thus an innkeeper cannot refer a
traveler to other hotels, many of which are near by,
because he does not wish to take him. A gas company
cannot refuse service to a householder upon its mains
though another company with mains in that street is
ready to supply him.4
¹ See People ex rel. v. St. Louis, A.
& T. H. R. R. Co., 176 Ill. 512, 52
N. E. 292, 35 L. R. A. 656 (1898).
2 See Savannah & O. Canal Co. v.
Shuman, 91 Ga. 400, 17 S. E. 937,
44 Am. St. Rep. 43 (1893).
3
3 See dicta in Lamond v. Richard
1 Q. B. 541 (1897).
4 Portland Natural Gas & O. Co.
v. State ex rel., 135 Ind. 54, 34 N. E.
818, 21 L. R. A. 639 (1893). See
also Jones v. Rochester Gas & E.
[479]
§ 580 ] PUBLIC SERVICE CORPORATIONS
§ 580. Substitute for service available.
1
Upon similar principles it has been held no defense to an
express company's obligation to comply with the rail-
road commissioners' order that shippers of money could
use the United States mails, and were therefore not
prejudiced by the express company's rule, requiring
presentation of money packages for shipment at un-
reasonable hours. And of course a telephone company
cannot refuse to give service to one still using another
telephone system as the services are not fairly equivalent.²
And generally speaking once the law has satisfied itself
that a business is public in character, the invariable conse-
quence follows that a universal duty is owed to its public
notwithstanding occasional competition of a limited sort.
Unless this were so, the applicant might be refused in
turn by the few other services available, and be left un-
served without remedy.
Co., 168 N.. Y. 65, 60 N. E. 1044
(1901).
1 State ex rel. v. Citizens' Tele-
phone Co., 61 S. C. 83, 39 S. E. 257,
¹ Platt v. Le Cocq, 150 Fed. 391 55 L. R. A. 139 (1901).
(1906).
[480]
CHAPTER XVII
REFUSAL BECAUSE OF ILLEGALITY INVOLVED
§ 590. Illegality involved in performing service.
Topic A. Subservience to Governmental Authority
§ 591. Obedience to executive orders.
592. Subservience to military necessity.
593. Prohibitions in administrative regulations.
594. Obedience to legal processes.
595. Contravention of charter limitations.
596. Situation at expiration of franchise.
Topic B. Contravention of Statutory Provisions
§ 597. Statutes expressly controlling service.
598. The criminal law generally.
599. Sunday laws.
600. Liquor laws.
601. Game laws.
602. Health regulations.
603. Gaming statutes.
Topic C. Service Promoting Illegal Transaction
§ 604. Participation in the illegality.
605. Implication in illegality.
606. Service aiding immoral business.
607. Service indispensable to illegal business.
608. Reasonable rejection usually justified.
609. Cases holding that rejection is at peril.
Topic D. Proximity to the Illegality
§ 610. Service promoting the illegality.
611. Illegality prior to service.
612. Illegality subsequent to service.
613. Public policy the explanation.
§ 590. Illegality involved in performing service.
The plainest basis for a refusal to render service is il-
31
[ 481 ]
§§ 591, 592 ] PUBLIC SERVICE CORPORATIONS
legality. Where service of the sort asked, is plainly in the
face of legal inhibitions, the propriety of the refusal is
obvious. And, if in giving the service asked illegality of
any kind would be directly abetted, the case is hardly
less plain. Where, however, the matter involved is rather
contra bones mores than prohibited by explicit law a doubt-
ful problem arises. And where the illegality alleged is
remote from the service requested, a still more difficult
question is presented.
Topic A. Subservience to Governmental Authority
§ 591. Obedience to executive orders.
Subservience to executive orders constitutes the most
obvious head of justification for refusal to serve. Thus
military necessity might justify the declaration of an
embargo, in which case a steamship line would be obliged
to tie up its vessels and refuse further freight.¹ For like
reasons it was held that the railroad would have an excuse
for refusing to accept food stuffs tendered it without the
transit permit which the military authorities had required
should be obtained from them by the shipper.2 What is
true of martial authority within the belligerent's own
territory is of course still more clear of military govern-
ment over conquered territory, namely, that those en-
gaged in any service in that territory are subservient to
the order of the military arm in accepting business.
§ 592. Subservience to military necessity.
Martial law under our system of government depends
always upon showing overruling necessity, and therefore
supplants the civil authorities only so far as the neces-
sities of the case dictate. If, therefore, the military au-
¹ See Palmer v. Lorillard, 16
Johns. 348 (1819).
2 Illinois Central R. R. Co. v.
Phelps, 4 Ill. App. 238 (1879);
S. C. 94 Ill. 548 (1880).
[ 482 ]
ILLEGALITY INVOLVED
[ § 593
thorities forbid service, this constitutes an excuse for not
accepting goods.¹ But where the military authorities
are in control their interference justifies suspension of
public service only to the extent that their interruption
causes delay. And so even if a railroad is subjected to
military supervision it is liable for delays caused by fail-
ure of the company to conduct its regular service so far
as it had power to do so.2 Belligerency brings into play
unusual law. Thus the furtherance of trade between
enemies would be illegal. And as contraband shipped
by neutrals is subject to seizure, a carrier could refuse to
undertake its transportation to a belligerent.4
§ 593. Prohibitions in administrative regulations.
It must be obvious that when the refusal to serve is
made necessary by the governmental authority that there
is an excuse. An interesting case in point is Decker v.
Atchison, Topeka & Santa Fe Railroad Company.5 The
plaintiff was not given the transportation he demanded
upon the morning in question because on the 16th day of
September, 1893, the defendant railroad company had
prescribed a certain rule for the government of its trains
entering the Cherokee Outlet on the day of its opening
for settlement, providing that no train should enter said
outlet within six hours of 12 o'clock noon of said day.
Mr. Justice Scott held this refusal under these circum-
1 Illinois Central R. R. Co. v.
Hornberger, 77 Ill. 457 (1875).
2 Illinois Central R. R. Co. v.
McClennan, 54 Ill. 58, 5 Am. Rep.
83 (1870).
3 Dunn
V. Bucknall Bros., 2
K. B. 614, 71 L. J. K. B. 963
(1902).
See Gay's Gold, 13 Wall. 358
(1871).
4 See Farmers' L. & T. Co. v.
Northern Pac. Ry. Co., 112 Fed.
829 (1902).
In Northern Pacific Ry. Co. v.
American Trading Co., 195 U. S.
439, 49 L. ed. 269, 25 Sup. Ct. 84
(1904), it was held that a collector
could not legally refuse a clearance
to a vessel bound to a port of a
belligerent because it had on board
articles contraband of war.
5 3 Okla. 553, 41 Pac. 610 (1895).
[483]
§§ 594, 595] PUBLIC SERVICE CORPORATIONS
stances to be entirely justifiable; he said: "Had trains
gone into the country prior to 12 o'clock, hundreds would
have become violators of the law, no doubt, and, had the
defendant in error permitted those already aboard when
the trains arrived at the line to remain in the coaches,
those waiting on the line to enter trains according to the
order of the secretary of the interior and the rules pre-
scribed by the company would have been placed at a
disadvantage, and their rights under the law would have
been unequal and prejudiced thereby."¹
§ 594. Obedience to legal processes.
The same excuse results from obedience to the lawful
commands of another of the great departments exer-
cising governmental authority, the judiciary. Perhaps
the plainest case of this justification is where an irrigation
company 2 of which the service was asked, was under an
injunction ordering it not to render such service. Plainly
in such case it is a good defense that compliance with the
request will involve the company in contempt of court.3
But it is almost equally plain that common-law process
should be respected. Thus a carrier of goods could re-
fuse to accept them if subject to attachment.5
4
§ 595. Contravention of charter limitations.
A public service company cannot be required to fur-
nish a service which it is not authorized to perform. Thus
1 Query for the constitutionality
of empowering the Secretary to es-
tablish quarantine lines. Illinois
Central S. R. R. Co. v. McKendree,
203 U. S. 514, 51 L. ed. 298, 27 Sup.
Ct. 153 (1906).
2
Sample v. Fresno F. & Irriga-
tion Co., 129 Cal. 222, 61 Pac. 1085
(1900).
3 Nairin v. Kentucky Heating
.6
Co., 86 S. W. 676, 27 Ky. Law. Rep.
551 (1900).
4 Indiana, I. & I. Ry. Co. v.
Doremeyer, 20 Ind. App. 605, 50
N. E. 497, 67 Am. St. Rep. 264
(1898).
5 Mitchell v. Kansas City, C. &
S. Ry. Co., 116 Mo. App. 116, 90
S. W. 1164 (1906).
6 People v. St. Louis & B. Electric
Ry. Co., 122 Ill. App. 422 (1905).
[ 484 ]
ILLEGALITY INVOLVED
[ § 596
it cannot be called upon to render any sort of service which
it is not empowered to perform. In a recent case a peti-
tioner sought to have an illuminating gas company which
it had been shown in other litigation had only authority
to supply heating gas.¹ Said the court: "Obviously, un-
less the defendant be shown to be exercising a public fran-
chise in the vending of gas for lighting purposes, there
is no more ground for injunction shown here than if he
had sought one to restrain Peaslee, Gaulbert & Co. from
refusing to vend oil to him. But the petition on its face
shows that, as to the sale of gas for lighting purposes, the
defendant was not only not exercising a public franchise,
but was, by the ordinance which permitted it to do busi-
ness in Louisville at all, expressly forbidden to sell gas for
any other than heating purposes. The plaintiff is there-
fore in the position of asking an injunction requiring the
defendant to violate an ordinance of the city."
§ 596. Situation at expiration of franchise.
The situation at the expiration of the franchise has al-
ready been discussed. In a late case 2 a water company
was held justified in preparing to discontinue service, its
franchise having expired. The doctrine of the court is
thus summarized in the headnote: "On the expiration of a
water company's franchise by limitation, the company's
right to operate its plant and use the streets of the city
therefor ceased, and with it the right of the city to demand
service. But where, after the expiration of a water com-
pany's franchise, it continued to operate its plant and ren-
der service to the public, it was bound during such period
to perform the obligations growing out of such assumed
quasi-public service, to the extent that it was required to
supply water adequate to its reasonable capacity and at
¹ Nairin v. Kentucky Heating
Co., 27 Ky. Law Rep. 551, 86 S. W.
676 (1900).
2 Laighton v. Carthage, 175 Fed.
145 (1909).
[485]
§ 597].
PUBLIC SERVICE CORPORATIONS
reasonable rates, and to that extent it was subject to the
jurisdiction of the courts to enforce its implied under-
taking."
99 1
Topic B. Contravention of Statutory Provisions
§ 597. Statutes expressly controlling service.
Wherever there is a statute directly applying to the
service in question and expressly stating the conditions
under which alone service can be given, there is of course
a resulting excuse whenever a service is asked which comes
within its prohibitions. A clear example may be drawn
from the Federal statute where the number of passengers
which a vessel may carry is regulated; under the provisions
of this statute, the carrier would of course have an excuse
for not accepting additional passengers who offer them-
selves after the vessel has its complement.2 So if it is
illegal for a railroad to let its cars stand in the street it
can refuse to permit goods to be loaded upon that part
of a spur which is laid through a street without liability
for discrimination in so refusing. Where an explicit
ordinance of the Board of Health forbids the transporta-
tion of corpses except when accompanied by a person in
charge having a transit permit containing specified in-
formation a railroad may refuse transportation when all
of this information is not filled in.4 And where a revenue
law directed that a stamp should be affixed to a telegram
it was held that a telegraph company could refuse to ac-
cept a telegram without a stamp.5
1 To the same effect concerning a
gas company, see East Ohio Gas
Co. v. City of Akron, 81 Ohio St.
33 (1909).
2 See The Charles Nelson, 149
Fed. 846 (1906).
3 Louisville & N. R. R. Co. v.
Pittsburg & K. Coal Co., 111 Ky.
Rep. 960, 23 Ky. L. Rep. 1318, 64
3
S. W. 969, 55 L. R. A. 601, 98 Am.
St. Rep. 447 (1901).
4 Lake Erie & W. R. R. Co. v.
James, 10 Ind. App. 550, 38 N. E.
192 (1894).
5 Western Union Telegraph Co. v.
Waters, 139 Ala. 652, 36 So. 773
(1904).
[486]
ILLEGALITY INVOLVED
[ § 598, 599
§ 598. The criminal law generally.
Those who conduct a public service are not bound by
their general obligation to serve all to abet criminals. One
of the leading cases upon this question is Thurston v.
Union Pacific Railroad Company,' where the question
raised was whether the defendant railroad had the right to
exclude a notorious gambler from its train. Judge Dillon
said it was entirely justified. "The railway company is
bound, as a common carrier, when not over-crowded, to
take all proper persons who may apply for transporta-
tion over its line, on their complying with all reasonable
rules of the company. But it is not bound to carry all
persons at all times, or it might be utterly unable to pro-
tect itself from ruin. It would not be obliged to carry
one whose ostensible business might be to injure the line;
one fleeing from justice; one going upon the train to as-
sault a passenger, commit larceny or robbery, or for inter-
fering with the proper regulations of the company, or
for gambling in any form, or committing any crime; nor
is it bound to carry persons who travel for the purpose
of gambling. As gambling is a crime under the State
laws, it is not even necessary for the company to have a
rule against it. It is not bound to furnish facilities for
carrying out an unlawful purpose. Necessary force may
be used to prevent gamblers from entering trains, and
if found on them engaged in gambling and refusing to
desist, they may be forcibly expelled.'
§ 599. Sunday laws.
11 2
Where the service in question is forbidden on Sunday,
either by legislation applying generally, or by a specific
statute dealing with the particular business, there is of
course an excuse as a consequence. Thus a carrier may
¹ 4 Dillon (U. S.), 321, Fed. Cas.
No. 14,019 (1877).
2 So a pickpocket might be re-
fused by a carrier, Coppin v. Braith-
waite, 8 Jurist (Eng.), 875 (1844).
[487]
§ 599 1 PUBLIC SERVICE CORPORATIONS
4
2
1
refuse to carry on Sunday and need not even be pre-
pared to carry even when necessity or charity is involved,
so long as any statutory prohibition which applies to
him remains. Even if there is no statutory prohibi-
tion, the cases hold that it does not follow that the car-
rier is bound to transact business on that day unless he
chooses to do so.³ It is generally agreed that a carrier
must promptly complete transportation already begun on
Sunday; and by a similar principle he must accept goods
from a connecting carrier on Sunday. The law on this
point has been elaborately worked out in relation to tele-
graphing. A telegraph company if open for business must
receive on Sunday all messages which it may fairly be
said it is a work of necessity or charity to handle. But
unless the circumstances have been explained to the op-
erator so that the message bears on its face evidence of its
special character, it may be refused as all commercial or
¹ Walsh v. Chicago, M. & St. P.
Ry. Co., 42 Wis. 23, 24 Am. Rep.
376 (1877). As to the constitu-
tionality of forbidding service on
Sunday see Hennington v. Georgia,
163 U. S. 299, 41 L. ed. 166, 16
Sup. Ct. 1086 (1896).
2 Horton v. Norwalk Tramway
Co., 66 Conn. 272, 33 Atl. 914
(1895).
3 Merchants' Wharfboat Assoc. v.
Wood, 64 Miss. 661, 2 So. 76 (1887).
But see Carroll v. Staten I. R. R.
Co., 58 N. Y. 126 (1874), ferry
should run Sunday.
And see as to holidays other than
Sunday, Pennsylvania R. R. Co. v.
Naive, 112 Tenn. 239, 79 S. W. 124,
64 L. R. A. 443 (1903); Guinn v.
W. St. L. & Pac. Ry. Co., 20 Mo.
App. 453 (1886).
The same rule applies to tele-
graph companies. Western Union
Telegraph Co. v. McLaurin, 70
Miss. 26, 13 So. 36 (1892).
4 Philadelphia, W. & B. R. R. Co.
v. Lehman, 56 Md. 209 (1881).
5 Alabama.-Western Union Tele-
graph Co. v. Wilson, 93 Ala. 32, 9
So. 414, 30 Am. St. Rep. 23 (1890).
Indiana.-Western Union Tele-
graph Co. v. Yopst, 118 Ind. 248,
20 N. E. 222, 3 L. R. A. 224 (1888).
Mississippi.—Western Union
Telegraph Co. v. McLaurin, 70
Miss. 26, 13 So. 36 (1892).
Missouri.-Burnett v. Western
Union Telegraph Co., 39 Mo. App.
599 (1890).
South Carolina.-Smith v. West-
ern Union Telegraph Co., 72 S. C.
116, 51 S. E. 537 (1905).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Levy, 59 Tex. 542 (1883).
[488]
ILLEGALITY INVOLVED
[ § 600
3
social messages may.¹ 1 As to the other services, there
is not as yet much authority. Some services it is generally
agreed should be open to the public on all days; inns 2
and canals are examples to which a citation may be
given. And it is most obvious that in many other callings
service should be given regardless of days, such is the
imperative necessity. Gas and electric supply, water
and sewerage service, are plain examples of services where
modern necessity overbears the Sunday policy.
§ 600. Liquor laws.
4
Some difficult problems arise as to the duty of com-
mon carriers to transport liquors into prohibition terri-
tory. It is certain that if the delivery would involve
the carrier in an illegal transaction he may refuse to
undertake it. In the leading case on this topic, State
v. Goss Mr. Justice Rowell said: "Although express
companies are common carriers, and liable as such, yet
the law neither requires nor permits them to do illegal
acts; and they are not bound to transport and deliver
intoxicating liquor or other commodities, if thereby they
would commit an offence or incur a penalty. They can-
not be allowed, any more than other people, knowingly
and with impunity, to make themselves agents for others
to break the laws of the State." This is especially clear
where the local legislation goes so far as to forbid the
transportation of intoxicating liquors. The carrier may
¹ Georgia.-Western Union Tele- 3 McArthur v. Green Bay & Miss.
graph Co. v. Hutcheson, 91 Ga. 252, Canal Co., 34 Wis. 139 (1874).
18 S. E. 297 (1892).
Indiana.-Western Union Tele-
graph Co. v. Henley, 23 Ind. 14, 54
N. E. 775 (1899).
Missouri.-Burnett v. Western
Union Telegraph Co., 39 Mo. App.
599 (1890).
2 Rex v. Ivens, 7 C. & P. 213
(1835).
5
4 59 Vt. 266, 9 Atl. 829, 59 Am.
St. Rep. 706 (1886).
5 The carrier must make out the
validity of such legislation at his
peril. Adams Exp. Co. v. Common-
wealth, 29 Ky. L. Rep. 224, 29
S. W. 932 (1906); Southern Express
Co. v. Rose Co., 124 Ga. 581, 53 S.
E. 185, 5 L. R. A. (N. S.) 619 (1905).
[489]
§ 601 ] PUBLIC SERVICE CORPORATIONS
1
4
then, of course, refuse to accept them; and, more-
over, as one case 2 holds, the carrier has discretionary
power to determine whether the liquors offered are in-
toxicating in the sense of the law. But while the carrier
is not liable as a violator of such statutes if he had no
cause to know that he was transporting liquors,³ he must
act in good faith upon reasonable suspicions. If the
final selling only is illegal the carrier probably cannot
refuse to bring liquors on the ground of the possibility
that they might be resold illegally. Thus, where the
sale of liquor in original packages was lawful in South
Carolina, though it was forbidden in any other form,
the carrier could not refuse to receive liquor in the orig-
inal packages for delivery in South Carolina."
§ 601. Game laws.
5
Where it is made illegal by statute to transport game
or fish, a carrier may refuse to accept such game or fish,
if acceptance would promote the violation of the statute
or impede its administration. But it will not itself be
guilty of violating the act if it has in its possession such
game or fish which it has received in packages in regular
course without reasonable grounds of suspicion." If in
¹ State legislation of this sort may
be unconstitutional. American Exp.
Co. v. Kentucky, 206 U. S. 139, 51
L. ed. 993, 27 Sup. Ct. 609 (1907);
s. c., sub nom. American Exp. Co.
v. Commonwealth, reversing 30
Ky. L. Rep. 207, 97 S. W. 807
(1906).
2 Milwaukee M. E. Co. v. Chi-
cago, R. I. & P. Ry. Co., 73 Ia. 98,
34 N. W. 761 (1887).
3 Adams Exp. Co. v. Common-
wealth, 33 Ky. L. Rep. 967, 112 S.
W. 577 (1908).
4 Brewing Co. v. Southern Exp.
Co., 109 Va. 22, 63 S. E. 6
(1908).
↳ United States.-Crescent Liquor
Co. v. Platt, 148 Fed. 894 (1906).
Georgia.-Southern Exp. Co. v.
State, 107 Ga. 670, 33 S. E. 637,
73
Am. St. Rep. 146 (1899); Southern
Exp. Co. v. Rose Co., 124 Ga. 581,
53 S. E. 185, 5 L. R. A. (N. S.) 619
(1905).
6 Blumenthal v. Southern Ry.
Co., 84 Fed. 920 (1898).
'State v. Swett, 87 Me. 99, 32
Atl. 806, 29 L. R. A. 714, 47 Am.
St. Rep. 306 (1895).
[490]
ILLEGALITY INVOLVED
[ § 602
obedience to orders of game inspectors or fish wardens it
delivers up such game or fish for seizure, it will have a
sufficient excuse; but no protection apparently if these
officers acted without authority of law.¹
§ 602. Health regulations.
3
4
Quarantine regulations duly established by law will
excuse a carrier from accepting passengers destined be-
yond the quarantine barriers which are set up against
all passengers coming from a certain district to a certain
district,2 or any passengers, association with whom would
detain other passengers; and the same is true of freight
against which quarantine is legally declared. However,
a carrier who knows of the quarantine and accepts
business without disclosing it at the time of acceptance,
will be liable to his patrons 5 unless the quarantine is so
notorious that he may assume that it is known. But
it is usually provided that under certain conditions certif-
icates may be obtained, in which case they should be
duly notified. Similar in character are those regula-
tions providing that water shall not be turned on until
an officer of the Board of Health is satisfied as to the
plumbing arrangements. And so if a Board of Health
8
¹ Merriman v. Great Northern
Exp. Co., 63 Minn. 543, 65 N. W.
1080 (1896).
2 A patron cannot maintain an ac-
tion against a railroad company on
the ground that he was wrongfully
expelled from its train, which he
left, in obedience to the order of a
quarantine or health officer, before
reaching his destination, the con-
ductor pointing him out. Baldwin
v. Seaboard Air Line Ry. Co., 58 S.
E. 35, 128 Ga. 567 (1907).
3 St. Clair v. Kansas City M. & B.
6
R. R. Co., 77 Miss. 789, 28 So. 957
(1900).
4 Fort Worth & D. C. Ry. Co. v.
Masterson, 95 Tex. 262, 66 S. W.
833 (1902).
5 Hasseltine v. Southern Ry. Co.,
75 S. C. 141, 55 S. E. 142 (1906).
St. Clair v. Kansas City, M. &
B. R. R. Co., 76 Miss. 473, 24 So.
904, 71 Am. St. Rep. 534 (1899).
7 St. Louis & S. F. Ry. Co. v.
Roane, 93 Miss. 7, 46 So. 711
(1908)
8 But see Johnson v. Belmar, 58
N. J. Eq. 354, 44 Atl. 166 (1899).
[491]
§ 603 1
PUBLIC SERVICE CORPORATIONS
should close an inn, the proprietor would doubtless have
an excuse for not entertaining guests.¹
§ 603. Gaming statutes.
Gaming laws were involved in a notable case lately.2
The New York police department had ordered a telephone
instrument removed from certain premises, on the ground
that pools were being sold there; and the telephone com-
pany had thereupon refused to reinstate the telephone in
these premises for a new applicant without assurance
as to his intentions accompanied by references as to
his character. This attitude the court held justifiable:
"Under the circumstances, this does not seem to us to
have been an unreasonable requirement. The New
York Telephone Company had been informed by the
police department that the premises had been used as
a pool room. It was also aware that a telephone which
it had previously installed therein had been removed
therefrom by the police. The officers of the company
might not unreasonably apprehend that they would
render themselves liable for aiding and abetting a viola-
tion of the law if they furnished further telephone serv-
ice to the premises in view of this information. It
1 See Gilbert v. Hoffman, 66
Iowa, 205 (1885).
2 Matter of Cullen, 106 N. Y.
App. Div. 250, 94 N. Y. Supp. 290
(1905). In the leading case of
Thurston v. Union Pacific R. R.
Co., 4 Dillon (U. S.), 321, Fed. Cas.
No. 14,019 (1877), it was held that
one reason why the notorious
gambler could be refused passage
was that the company might make
itself liable for maintaining prem-
ises for gambling.
3 There are numerous cases ex-
cusing a telegraph company for re-
fusing to give its service to "bucket
shops" maintained in defiance of
express statutes. See:
United States.-Board of Trade v.
Christie Grain & Stock Co., 198
U. S. 236, 49 L. ed. 1031, 25 Sup.
Ct. 637 (1905); Bryant v. Western
Union Telegraph Co., 17 Fed. 825
(1883); Sullivan v. Postal Telegraph
Cable Co., 123 Fed. 411, 61 C. C. A.
1 (1903).
Illinois.-Central S. & G. Exch.
v. Board of Trade, 196 Ill. 396, 63
N. E. 740 (1902).
Indiana.-Western Union Tele-
[ 492 ]
ILLEGALITY INVOLVED [ §§ 604, 605
was quite proper, therefore, for them to request the
assurance from the appellant which the contracting
agent suggested, and for them, also, to require the ap-
pellant to furnish a reference as to his character.”
Topic C. Service Promoting Illegal Transaction
§ 604. Participation in the illegality.
Of course one engaged in public employment should
refuse to take any action which would make him liable
for abetting illegality. Thus a carrier of passengers
could refuse to take upon the train one fleeing from
justice, one going upon the train to assault a passenger,
or to commit larceny.¹ In an analogous case it was
assumed that the carrier might refuse to take a rebel
officer going to the front to join his command.' But, if
the carrier does not know of the illegal nature of the re-
quest he is not legally liable to the owner for taking goods
according to his prima facie duty. However, a railroad
company which negligently permitted slaves to be trans-
ported without the authority of their owner, was held
liable for their value by reason of being concerned in
their escape.¹
§ 605. Implication in illegality.
3
Upon similar principles a telegraph company should
graph Co. v. State, 165 Ind. 492, 76
N. E. 100, 3 L. R. A. (N. S.) 153
(1905).
Kentucky.-Smith V. Western
Union Telegraph Co., 84 Ky. 664,
2 S. W. 483 (1887). But see Louis-
ville v. Wehmhoff, 116 Ky. 812, 79
S. W. 201, 25 Ky. L. Rep. 1924
(1903).
Ohio.-Cain v. Western Union
Telegraph Co., 18 Cinn. Wk. Bul.
267 (1887).
Pennsylvania.-Sterrett v. Phila-
delphia Local Telegraph Co., 18
Wk. N. Cas. 77 (1886).
1 See the dicta in Thurston v.
Union Pac. Ry. Co., 4 Dill. (U. S.)
321 (1877).
2 Turner v. North Carolina R. R.
Co., 63 N. C. 522 (1869).
3 Jackson v. Railway Co., 87 Mo.
422, 56 Am. Rep. 460 (1885).
4 Louisville & N. R. R. Co. v.
Young, 1 Bush (Ky.), 401 (1866).
[ 493 ]
§ 606 ]
PUBLIC SERVICE CORPORATIONS
3
refuse to transmit messages which would implicate it
in illegality. While it is true there can be no discrim-
ination where the business is lawful, no one can be com-
pelled to aid unlawful undertakings in any way whatever.¹
"A telegraph company should refuse to send libelous 2
or obscene messages, or those which clearly indicate
the furtherance of an illegal act, or the perpetration of
some crime. But recently in New York the telephone
and telegraph instruments were taken out of 'pool
rooms' which were used for the purpose of selling bets
on horse races.' Thus a telegraph company will be
liable for transmitting a forged message knowing it to
be such; it is, therefore, its undoubted right to refuse
unauthorized messages ³ since it might thereby become
involved in the perpetration of frauds." 6
9 4
5
§ 606. Service aiding immoral business.
There are several cases involving prostitution which
test these principles, some of which have been mentioned."
In none of them is the general problem so well worked
out as in a recent case where a telephone company
1 ¹ Quoted from Gray v. Western
Union Telegraph Co., 87 Ga. 350,
13 S. E. 562 (1891).
2 See Dominion Telegraph Co. v.
Silver, 10 Can. Sup. Ct. 238 (1881).
3 See Archambault v. Great North
Western Telegraph Co., 14 Quebec,
8 (1886).
4 See Matter of Cullen, 106 N. Y.
App. Div. 250, 94 N. Y. Supp. 290
(1905), and other cases cited in
§ 603, supra.
5 Western Union Telegraph Co.
v. Totten, 141 Fed. 533, 72 C. C. A.
591 (1905).
6 Bank of Havelock v. Western
Union Telegraph Co., 141 Fed. 522,
72 C. C. A. 580 (1905).
7 United States.-Brown v. Mem-
phis & C. Ry. Co., 4 Fed. 37 (1880).
Texas.-Pullman Palace Car Co.
v. Bales, 80 Tex. 211, 15 S. W. 785
(1891).
Unless these women notoriously
habitually misconduct themselves.
Iowa.-Beeson v. Chicago, R. I.
& Pac. Ry. Co., 62 Ia. 173, 17 N. W.
448 (1883).
Washington.-Stevenson v. West
Seattle Land Co., 22 Wash. 84, 60
Pac. 51 (1900).
8 Godwin v. Carolina Tel. & Tel.
Co., 136 N. C. 258, 48 S. E. 636
(1904).
See, however, Western Union
Telegraph Co. v. Ferguson, 57 Ind.
[494]
ILLEGALITY INVOLVED
[ § 607
refused to give service to a bawdyhouse upon general
principles fully discussed. The opinion of Chief Justice
Clark is, therefore, well worth the quotations which fol-
low. "It is argued that a common carrier would not be
authorized to refuse to convey the plaintiff because she
keeps a bawdyhouse. Nor is the defendant refusing her
a telephone on that ground, but because she wishes to
place the telephone in a bawdyhouse. A common car-
rier could not be compelled to haul a car used for such
purpose. If the plaintiff wished to have the phone
placed in some other house used by her, or even in a
house where she resided, but not kept as a bawdyhouse,
she would not be debarred because she kept another
house for such unlawful and disreputable purpose. It
is not her character, but the character of the business
at the house where it is sought to have the telephone
placed, which required the court to refuse the mandamus.
In like manner, if a common carrier knew that passage
was sought by persons who are traveling for the execu-
tion of an indictable offense, or a telegraph company
that a message was tendered for a like purpose, both
would be justified in refusing; and certainly when the
plaintiff admits that she is carrying on a criminal busi-
ness in the house where she seeks to have the telephone
placed, the court will not, by its mandamus, require
that facilities of a public nature be furnished to a house
used for that business. For like reason a mandamus
will not lie to compel a water company to furnish water,
or a light company to supply light, to a house used for
carrying on an illegal business. The courts will enjoin
or abate, not aid, a public nuisance."
§ 607. Service indispensable to illegal business.
What surely may be refused upon general principles
495, in which it was held that a
message sending for prostitutes
might be refused but not an am-
biguous one upon mere suspicion.
[ 495]
§ 607]
PUBLIC SERVICE CORPORATIONS
is a service which is necessary to the conduct of an illegal
business. It would seem plain, for example, that a tele-
graph company is not obliged to furnish a service inti-
mately connected with illegal operations. Where the
running of a bucket shop is held an illegal business, it is
therefore held in most cases that the telegraph company
is not bound to furnish it with market reports,¹ either
by virtue of its duties as a public servant to serve all
customers without discrimination, or even by virtue of
any contract which it may have entered into with such
a subscriber as this. And so obedience to the regulation
of an exchange designed to prevent such distribution
of its quotations is held reasonable. "It is simply a
restraint on the acquisition for illegal purposes of the
fruits of the plaintiff's work," as the United States
Supreme Court recently said. Where the business is
simply against public policy, the question is more difficult.
The cases are somewhat divided as to whether a tele-
graph company can refuse to handle messages in relation
to the sale of options or futures in jurisdictions where
the law simply refuses to enforce such contracts as contra
bonos mores. There are cases which imply that the
company is assuming too much in refusing to transmit
such message, but by the weight of authority it is justi-
1 United States.-Bryant v. West-
ern Union Telegraph Co., 17 Fed.
825 (1883); Sullivan v. Postal Tele-
graph Cable Co., 123 Fed. 411, 61
C. C. A. 1 (1903).
Illinois.-Central S. & G. Exch.
v. Board of Trade, 196 Ill. 396, 63
N. E. 740 (1902).
Indiana.-Western Union Tele-
graph Co. v. State, 165 Ind. 492, 76
N. E. 100, 3 L. R. A. (N. S.) 153
(1905).
Kentucky.-Smith
V. Western
2
Union Telegraph Co., 84 Ky. 664,
2 S. W. 487 (1887).
Ohio.-Cain v. Western Union
Telegraph Co., 18 Cinn. Wk. Bull.
267 (1887).
Pennsylvania.-Sterrett v. Phila-
delphia Local Telegraph Co., 18
Wk. N. Cas. 77 (1886).
2 United States.-Board of Trade
v. Christie Grain & Stock Co., 198
U. S. 236, 49 L. ed. 1031, 25 Sup.
Ct. 637 (1905).
3 Gray v. Western Union Tele-
[ 496 ]
ILLEGALITY INVOLVED
[ § 608
fied.¹ These last cases seem to the writer fundamentally
right.
§ 608. Reasonable rejection usually justified.
If as things appear to the company there is real danger
that it will be involved in an illegal transaction if it
renders the service asked, it would seem that it should
be justified in refusing to perform the service asked,
although in fact there is no illegality on foot. The most
striking case of this sort was one against a sleeping car
company.2 Husband and wife had dealt separately with
the company, procuring different berths, and late at
night the wife went to the husband's berth clandestinely.
It was finally held that the company was justified in
refusing to permit them to occupy the berth together
that night. "It may be admitted," said the upper
court, "that there was nothing improper in the conduct.
of the plaintiff and his wife, when their relationship to
each other is considered. And yet it cannot be affirmed
that their actions were not under the circumstances
calculated to excite the suspicion and arouse the vigilance
of defendant's servants." In what is probably the lead-
ing case on this point where the exclusion of a notorious
3
graph Co., 87 Ga. 350, 13 S. E. 562,
14 L. R. A. 95, 27 Am. St. Rep. 259
(1891). And see Western Union
Telegraph Co. v. Hill (Tex. Civ.
App.), 65 S. W. 1123 (1902).
¹ Gist v. Telegraph Co., 45 S. C.
344, 23 S. E. 143 (1895). And see
Western Union Telegraph Co. v.
Harper, 15 Tex. Civ. App. 37, 39
S. W. 599 (1896).
2 Pullman Palace Car Co. v.
Bales, 80 Tex. 211, 14 S. W. 855, 15
S. W. 785 (1891).
See also Matter of Cullen, 106
N. Y. App. Div. 250, 94 N. Y. Supp.
290 (1905), holding that a telegraph
company may insist upon reason-
able assurances that its news service
is not wanted for use in an illegal
business, by the successor of a per-
son who had run a bucket shop at
these premises.
So a pickpocket may be refused
transportation as is said in a case
which holds that if he is accepted
he cannot afterwards be ejected.
Coppin v. Braithwaite, 8 Jurist, 875
(1844). Sed quære as to the actual
decision.
3 Thurston v. Union Pac. R. R.
32
[497]
§§ 609, 610] PUBLIC SERVICE CORPORATIONS
gambler from a passenger train was justified the general
principle was thus stated by the court. "Whether the
plaintiff was going upon the train for gambling purposes,
or whether, from his previous course, the defendant might
reasonably infer that such was his purpose, is a question
of fact for the jury."
§ 609. Cases holding that rejection is at peril.
1
There are, however, cases which hold that refusal is
always made at peril of mistake as to the true conditions;
for it is said unequivocally that proper applicants can
never be refused. Thus in an early telegraph case ¹
where it was admitted that the telegraph company had
ground to believe that the message refused— “Send me
four girls on first train to Francesville to tend fair,"-
was addressed by a keeper of prostitutes to a procurer
of such women, the court held that the telegraph com-
pany could not refuse the message upon mere suspicion.
And in another telegraph case 2 it was held that the com-
pany could not justify itself for its default in handling
the message in question on the ground that it believed
that the message was being sent to direct an illegal
operation in stocks. It is submitted that both of these
decisions are erroneous.
Topic D. Proximity to the Illegality
§ 610. Service promoting the illegality.
In the cases which have been discussed in the preced-
ing paragraphs the service asked might fairly be said to
promote the illegality directly. In such cases the policy
justifying refusal is sufficiently plain. But when the
Co., 4 Dillon (U. S.), 321, Fed. Cas.
No. 14,019 (1877).
1 Western Union Telegraph Co. v.
Ferguson, 57 Ind. 495 (1877).
2 Gray v. Western Union Tele-
graph Co., 87 Ga. 350, 13 S. E. 562,
14 L. R. A. 95 (1891).
[498]
ILLEGALITY INVOLVED
[ § 611
1
3
illegality is far remote from the service asked it was
assumed that the request cannot be refused. Thus,
to illustrate this distinction, innkeepers can refuse to
harbor an immoral woman who is entertaining her com-
panions in her rooms. But a railroad cannot refuse
to transport a prostitute to a new field.2 To make another
distinction, it has been held that a carrier could refuse
to take money intended for use in the contraband trade ³
while, as has been said, it might be obliged to transport
a bundle of stationery intended by the consignee for
use in his business of dealing in futures. This last point
is interesting as it shows another aspect of this principle.
When the business which will be aided is illegal in a
high degree it taints transactions much removed from it,
but where the business is simply against public policy
the taint does not even touch collateral transactions.
For example, a carrier cannot refuse to accept goods
for transportation even if it is known that the owner
intends to dispose of them on Sunday; 5 but it would
seem that a carrier might refuse to bring firearms into
a district where mob violence prevailed."
§ 611. Illegality prior to service.
4
Whatever illegality there may have been, previous to
the time when the service is requested, should not affect
the right to have present service if the illegal conduct
has ceased to operate. Thus where a man who had
brought a prostitute to an inn remained after the woman
¹ See Curtis v. Murphy, 63 Wis.
4, 22 N. W. 825, 53 Am. Rep. 242
(1885).
2 Brown v. Memphis & C. R. Co.,
4 Fed. 37 (1880).
› Cantu v. Bennett, 39 Tex. 303
(1873).
4 Gray v. Western Union Tele-
graph Co., 87 Ga. 350, 13 S. E. 562,
14 L. R. A. 95 (1891).
• Waters v. Railroad Co., 110 N.
C. 338, 14 S. E. 802, 16 L. R. A. 834
(1892).
6 See, however, Railroad Co. v.
O'Donnell, 49 Ohio St. 489, 32 N. E.
476 (1892).
[ 499 ]
§ 612 ]
PUBLIC SERVICE CORPORATIONS
had left the inn, and lost his goods, it was held that
he might recover from the innkeeper. Even assuming
that such misconduct would have barred him while the
misconduct continued, the loss here happened after his
misconduct ceased, and his previous immorality could
not affect his subsequent status as a guest.¹ On the
same principle, in a case where it appeared that the
defendant was received at the inn on Sunday, and that
to reach the inn on that day he had broken the statute
which forbade traveling on Sunday, he was held to be
a guest nevertheless, since the relationship was estab-
lished by acts not necessarily connected with traveling
on Sunday.2 That the guest had been long a prize fighter,
most of his battles being in violation of law, it would seem
should not justify refusing to entertain him. Even a
man with a jail record has a right to travel.4
§ 612. Illegality subsequent to service.
3
To go to the other extreme it makes no difference to
the right to service that illegal conduct may happen
after the service is complete, provided that such conduct
will be really independent of the service asked. Thus
a railroad cannot excuse itself for failure to transport
liquor by showing that the consignee may probably
resell it in violation of the prohibition law. It is no ex-
cuse that a passenger may get into trouble upon her
arrival at her destination, it being usual for her to get
intoxicated there. This is not so plain upon the authori-
6
¹ Lucia v. Omel, 46 N. Y. App.
Div. 200 (1899), affirmed in 53 N.
Y. App. Div. 641 (1900).
2 Cox v. Cook, 14 Allen (Mass.)
165 (1867).
³ But see Nelson v. Boldt, 180
Fed. 779 (1910), going too far against
the applicant.
* And see Prendergast v. Comp-
5
ton, 8 C. & P. 654 (1837), going too
far in favor of the applicant.
5 Southern Express Co. v. State,
107 Ga. 670, 33 S. E. 637, 46 L. R.
A. 417, 73 Am. St. Rep. 146
(1899).
6 Stevenson v. West Seattle Land
& Imp. Co., 22 Wash. 84, 60 Pac. 51
(1900).
[ 500 ]
ILLEGALITY INVOLVED
[ § 613
ties as it seems it ought to be. In one early leading case
it seems to have been held that a competitor might be
refused transportation to a point where he intended to
take return passage for the purpose of soliciting business
in violation of proper regulations.¹ In a later case ²
much cited, it was said that a passenger who had been
banished by the vigilance committee might be refused
transportation back to San Francisco where a violent
fate probably awaited him. But there are additional
elements in each of these cases.
§ 613. Public policy the explanation.
2
It will have been noted throughout this chapter, that
this excuse which one engaged in public service has by
reason of illegality, is not confined to those obvious
cases where rendering the service would subject the
proprietor to legal proceedings as a participant in the
illegality. The defense is plainly wider, it justifies the
proprietor in refusing to render a service which would
promote illegality although he might not be liable person-
ally to legal proceedings, if he should render the service
in question. Considered broadly, then, the defense is
rather the general one of public policy than a particular
one of illegality. Upon the whole it would seem to be
clear that the law relating to the various matters dis-
cussed in this chapter is being worked out very well,
if one may judge it by the closest analogy in established
law. The true extent of public duty depends in last
analysis upon public policy just as does the real extent
of contractual obligation. Whatever policy is strong
enough to excuse one from the performance of a con-
tract obligation ought surely to justify one in refusing
to perform this common-law obligation.
¹ Jencks v. Coleman, 2 Sumn. 221
(1835).
2 Pearson v. Duane, 4 Wall. (U.
S.) 605, discussed 18 L. ed. 447
(1866).
[ 501 ]
CHAPTER XVIII
REJECTION FOR PERSONAL DISQUALIFICATION
§ 620. Right of protection the basis of the defense.
§ 621. Dangerous service.
Topic A. Self-Protection
622. Risk of possible liability.
623. Fraudulent customers.
624. Abuse of privileges.
625. Interference with the service.
626. Persons bringing dangerous things.
Topic B. Protection of Others Served
§ 627. Dangerous persons.
628. Suspected criminals.
629. Violent passengers.
630. Disorderly guests.
631. Persons having contagious disease.
632. Intoxicated persons
633. Profane patrons.
634. Ejection governed by same general principles as rejection.
Topic C. Applicant Under Disability
§ 635. Disabled persons in general.
636. Persons subject to an incapacity.
637. Blind persons.
638. Sick persons.
639. Insane persons.
640. Arrested persons.
Topic D. Basis for Rejection
§ 641. Rejection for present misconduct.
642. Rejection for past misconduct.
643. Rejection upon probable cause.
644. Ejection before actual misconduct.
645. Whether refusal should be at peril.
646. Rejection for misconduct of companion.
[ 502 ]
PERSONAL DISQUALIFICATION
[ §§ 620, 621
§ 620. Right of protection the basis of the defense.
For the protection of others being served as well as
for the protection of its own interests, an applicant for
service who will endanger person or property may be re-
jected at the outset, or ejected afterwards. Thus one
who is attacking another passenger may be ejected by
the carrier,¹ principally, of course, for the protection of
the others then receiving service. But even if no guests
should happen to be present, for his own protection the
innkeeper may refuse to take in one who has attempted
to break down his door. This duty and right to pro-
tect combined calls upon the carrier or the innkeeper
to use due diligence and good faith. If, therefore, they act
reasonably and honestly it would seem that they make
out their justification in all cases.
2
Topic A. Self-Protection
§ 621. Dangerous service.
4
3
It requires no argument to establish the justification
of self-protection. A carrier of goods may refuse freight
which would injure his vehicle, or his employés. Thus
he may refuse high explosives, at least as ordinary
freight, or tainting liquids, particularly when contained
in leaking barrels,-to cite two examples. Another way
of explaining his right to refuse goods under such cir-
cumstances would be to say that if he took such freight
with knowledge, or even with reasonable suspicion, and
injuries subsequently followed, to other persons or other
1 Louisville & N. R. R. Co. v.
Logan, 88 Ky. 232, 10 S. W. 655, 21
Am. St. Rep. 332, 3 L. R. A. 80
(1889).
See generally this chapter.
2 Goodenow v. Travis, 3 Johns.
(N. Y.) 427 (1808).
3
See generally chapter XXVII.
Nitroglycerine Case, 15 Wall.
(U. S.) 524, 21 L. ed. 206 (1872).
See Boston & Albany R. R. Co.
v. Shanly, 107 Mass. 568 (1871).
The Montana, 22 Fed. 715
(1884).
[503]
§§ 622, 623] PUBLIC SERVICE CORPORATIONS
property, he might be held liable, and, therefore, he might
well refuse to put himself in a position where such liability
might be attributed to him. It may be added that a
carrier is not necessarily under liability when he does
take such goods, unless he is blameworthy, or should
have his suspicions as to what the packages contain.2
§ 622. Risk of possible liability.
4
1
Similarly an electric company could refuse to make
connections with a building improperly wired, upon the
ground of their possible liability for explosion or fire.³
Indeed, it was recently held, that a gas company could
refuse to supply a house improperly piped by reason of
the danger that if an explosion should occur they might
be charged with liability. This is perhaps the best basis
for those cases previously discussed where it was held
that a service company might make installation according
to certain rules or equipment within certain specifications,
conditions precedent. Such regulation may thus be de-
fended. To recall one example, there is the case where
a water company was allowed to refuse to supply a house
unless a certificate from a reputable plumber were pro-
duced. And to cite another instance, a gas company was
held entitled to regulate the installation of governors. 6
5
§ 623. Fraudulent customers.
For its own protection also, one engaged in public em-
¹ See Farrant v. Barnes, 11 C. B.
(N. S.) 553 (1856).
2 But see Norfolk & Western R.
R. Co. v. Irvine, 85 Va. 217, 7 S. E.
233, 1 L. R. A. 110 (1888).
3 Benson v. American Illuminat-
ing Co., 102 N. Y. Supp. 206 (1907).
• Bastain v. Keystone Gas Co., 50
N. Y. Supp. 537, 27 App. Div. 584
(1898).
5 State v. New Orleans Gas Light
Co., 108 La. 67, 32 So. Rep. 179
(1902).
But see Franke v. Paducah Water
Supply Co., 88 Ky. 467, 11 S. W.
432, 4 L. R. A. 265 (1889).
6 Foster v. Gas Works of Phila-
delphia, 12 Phila. 511 (1878).
See also Blondell v. Consolidated
Gas Co., 89 Md. 732, 43 Atl. 817
(1899).
[ 504 ]
PERSONAL DISQUALIFICATION
[ § 624
ployment may refuse to serve those who design to defraud
him, or who are actually engaged in defrauding him. Thus
a carrier of passengers may eject those attempting to
beat their way;¹ and a carrier of freight does not owe
his special duties to those who have concealed valuable
goods bearing a higher rate of freight in deceptive pack-
ages.2 An innkeeper likewise owes no duty, as such, to
those who are imposing upon him. One who is engaged
in a scheme of defrauding a supply company as by tapping
the mains, or by tampering with the meter, cannot com-
plain if his service is cut off.4
§ 624. Abuse of privileges.
3
A customer who abuses his privileges in getting service
may
be refused further service on that ground. A passen-
¹ See among the many cases to
this effect:
Illinois.-Chicago, B. & Q. R. R.
Co. v. Mehlsack, 131 Ill. 61, 22 N.
E. 812, 19 Am. St. Rep. 17 (1889).
Iowa.-Way v. Chicago, R. I. &
Pac. Ry. Co., 64 Ia. 48, 19 N. W.
828, 52 Am. Rep. 431 (1884).
Kansas.-Union Pac. Ry. Co. v.
Nichols, 8 Kan. 505, 12 Am. Rep.
475 (1871).
Maryland.-State v. Baltimore &
O. R. R. Co., 24 Md. 84, 87 Am.
Dec. 600 (1865).
Massachusetts.-Planz v. Boston
& Albany R. R. Co., 157 Mass. 377,
32 N. E. 356, 17 L. R. A. 835
(1892).
Missouri.-Muehlhausen v. St.
Louis R. R. Co., 91 Mo. 332, 2 S. W.
315 (1886).
Montana.-Higley v. Gilmer, 3
Mont. 90, 35 Am. Rep. 450 (1878).
New York.-Barry v. Union Ry.,
105 N. Y. App. Div. 520, 94 N. Y.
Supp. 449 (1905).
England.-Great Northern Ry.
Co. v. Harrison, 10 Exch. Rep. 376
(1854).
2 See among the many cases to
this effect:
Georgia. Southern Express Co.
v. Everett, 37 Ga. 688 (1868).
Illinois.—Chicago & A. R. R. Co.
v. Thompson, 19 Ill. 578 (1858);
Chicago & A. R. R. Co. v. Shea, 66
Ill. 471 (1873).
New York.-Warner v. Western
Trans. Co., 5 Robt. 490 (1868).
England.—Batson v. Donovan,
4 B. & Ald. 21 (1820); Gibbon v.
Paynton, 4 Burr. 2298 (1769);
Bradley v. Waterhouse, 3 C. & P.
318 (1828).
3 Curtis v. Murphy, 63 Wis. 4, 22
N. W. 825, 53 Am. Rep. 242 (1885).
4 Reasonable suspicion that the
consumer is taking water surrepti-
tiously is sufficient ground for tak-
ing action. Krumenaker v. Dough-
erty, 77 N. Y. Supp. 467, 74 App.
Div. 452 (1902).
[ 505 ]
§ 625]
PUBLIC SERVICE CORPORATIONS
ger in a sleeping car is responsible for decent care of his
berth.¹ Where water is supplied upon tap basis, a water
company may refuse to continue serving one who wantonly
wastes water.2 One who permits unauthorized access
to his telephone in contravention of the basis upon which
service is rendered, may be refused further service, And
one who resells his ticker quotations may be cut off in-
stantly.¹
§ 625. Interference with the service.
8
It is obvious that in general those who interfere with
the service as arranged may be refused service. Thus
as a telephone company undertakes to provide all the
apparatus necessary for its service, it may positively for-
bid any interference with the instruments. As one case
held 5 it can prevent a subscriber from attaching to his
instrument his own wires for an extension service in some
other part of the building. It is justification enough for
this regulation that the company may protect its circuit
from possible interference. Again, a telephone company
may cut out a subscriber who persists in breaking in upon
a party line when others are using it. The proper main-
tenance of the whole service demands that those who thus
interrupt others who are using the wires shall be summa-
rily dealt with.
1 Nevin v. Pullman Palace Car
Co., 106 Ill. 222, 46 Am. Rep. 688
(1883).
2 Harbison v. Knoxville Water
Co. (Tenn.), 53 S. W. 993 (1899).
Robbins v. Bangor Ry. & Elec.
Co., 100 Me. 496, 62 Atl. 136 (1905),
accord.
3 See People v. Hudson River
Telephone Co., 19 Abb. N. C. 466
(1887).
4 Shepard v. Gold & S. & Tele-
6
graph Co., 38 Hun (N. Y.), 338
(1885).
And see National Tel. News Co. v.
Western Union Telegraph Co., 119
Fed. 294, 55 C. C. A. 198 (1902).
5 Gardner v. Providence Tele-
phone Co., 23 R. I. 312, 50 Atl. 1014
(1901).
• Huffman v. Marcy Mutual
Telephone Co., 143 Ia. 590, 121 N.
W. 1033, 23 L. R. A. (N. S.) 1010
(1909).
[ 506 ]
PERSONAL DISQUALIFICATION [§§ 626, 627
§ 626. Persons bringing dangerous things.
1
3
A carrier is justified in excluding from the vehicle any
person who insists upon bringing into it articles that are
dangerous to the carrier, or obnoxious to other passengers.
Thus, those may be refused entrance to a boat who have
with them guns with bayonets. One who has valises
which will block the aisles may be ordered from a car.2
And one may be forbidden entrance who is trying to bring
cumbrous parcels into a street car. For the same reason
a rule is proper and legal which excludes from a passenger
car a person accompanied by a dog. And plainly a pas-
senger cannot insist upon entering a street car accompanied
by a goat. Upon like principles an innkeeper may re-
fuse to accept a guest bringing a large dog although he
had him on a leash. A street car conductor may order
a workman with heavy tools to go upon the platform."
But a street car company must permit a passenger to
carry in the car a cake of ice securely wrapped.8
6
4
Topic B. Protection of Others Served
§ 627. Dangerous persons.
The right of a common carrier of passengers or of a
1 Flint v. Transportation Co., 6
Blatch. 158, Fed. Cas. No. 4873, 34
Conn. 554, (1868).
2 Chicago & A. R. R. Co. v.
Buckmaster, 74 Ill. App. 575 (1897).
3 Dowd v. Albany Ry. Co., 47
N. Y. App. Div. 202, 62 N. Y.
Supp. 179 (1900). See also Ray v.
United Traction Co., 96 N. Y. App.
Div. 48, 89 N. Y. Supp. 49 (1904).
4
Gregory v. Chicago & N. W.
Ry. Co., 100 Iowa, 345, 69 N. W.
532 (1896). See further, Wescott v.
Seattle, R. & S. Ry. Co., 84 Pac.
588, 41 Wash. 618, 4 L. R. A. (N.
S.) 947 (1906.)
5 Daniel v. North Jersey St. Ry.
Co., 64 N. J. Law, 603, 46 Atl. 625
(1900).
• Regina v. Rymer, 2 Q. B. D. 136
(1877).
7 See Mittleman v. Philadelphia
R. T. Co., 70 Atl. 828, 18 L. R. A.
(N. S.) 503, 221 Pa. 485 (1908).
But the train men cannot throw
his tools off the cars. Smith v.
Atchison, T. & S. F. Ry. Co., 112
Mo. App. 85, 97 S. W. 1007
(1907).
8 McIntosh v. Augusta & A. Ry.
Co. (S. C)., 69 S. E. 159 (1910).
See also Runyan v. Central R. R.
[ 507 ]
§ 628]
PUBLIC SERVICE CORPORATIONS
public innkeeper to exclude or reject applicants who openly
threaten violence to the other patrons then being served
is perhaps too plain to require explanation. This explana-
tion is plainly to be seen in the law making the proprietors
of those services in which the patrons are taken in charge
liable for not exercising due care in protecting their pa-
trons not merely from actual assault and fear of injury,
but from insult and shock. So it is easy to understand
why the law not only justifies the proprietors of such
services in refusing to serve such persons as are openly
threatening injury to others being served, but in refusing
to accept such persons as it is reasonable to suppose may
do injury to others. If they are liable for not taking all
reasonable steps to protect their patrons, they should
certainly have the right not merely to reject those who
it is reasonable to suppose might injure their patrons,
but also to eject those already accepted who it is reason-
able to suppose may injure their patrons. As Judge
Dillon said in one of the leading cases on this branch
of the law of carriers, a railroad is not bound to receive
on its cars or to permit to remain upon its cars one going
upon a train or staying upon it to assault a passenger,
commit larceny or robbery, or perpetrating any other
crime.2
§ 628. Suspected criminals.
1
The right of an innkeeper to exclude those who are
actually dangerous to the others who are being served at
the same time may seem to be obvious. The plainest
case of this excuse is the rejection of evil-disposed persons
who might prey upon the persons whom the proprietor
Co., 65 N. J. L. 228, 47 Atl. 422
(1900).
¹ Thurston v. Union Pacific Ry.
Co., 4 Dillon (U. S.), 321, Fed. Cas.
No. 14,019 (1877).
2 So a pickpocket may be rejected
as is held in a case which (wrongly
as it seems) holds that he may not
be ejected. Coppin v. Braithwaite,
8 Jurist (Eng.), 875 (1844).
[ 508 ]
PERSONAL DISQUALIFICATION
[ § 629
1
is bound to protect. As Judge Parsons said in one of the
earliest American cases discussing the right of the inn-
keeper to exclude dangerous persons: "Where is the
distinction to be drawn? If one may enter the inn and
tarry there, all may. The pickpocket, the burglar, gam-
bler and horse thief, can come and take his seat by the
side of the most virtuous man in the community in the
gentleman's common parlor at the hotel, and the proprie-
tor cannot eject him (no matter how annoying it may
be to the guest) without being indicted for an´ assault
and battery. Nor would the line of distinction be drawn
here the filthy and unclean would claim the same right.
It is only necessary to state such a proposition to show
its absurdity.'
1 2
§ 629. Violent passengers.
That violent persons may be excluded from a common
service would seem to be obvious. This is particularly
plain when the person in question is actually threatening
an assault. In one of the leading cases of this sort,³
where the passenger ejected drew a knife the Court of Ap-
peals of Kentucky held the railroad justified in putting
him off, giving a full review of the various points
usually involved in such cases. 'The law makes it the
duty of a railroad company to use all reasonable care in
operating trains for both the safety and protection from
molestation and insult of passengers; otherwise elderly
and infirm persons and females, who, upon the faith
of such protection, frequently travel unattended, would
have no security against turbulent, bad men.
And as
1 Commonwealth v. Mitchel, 2
Parsons (Pa.), 431 (1850).
2 The same points are made in a
still earlier case as to the duties of
innkeepers. Markham v. Brown, 8
N. H. 523, 31 Am. Dec. 209 (1837).
((
3 Louisville & N. Ry. Co. v.
Logan, 88 Ky. 232, 10 S. W. 655, 21
Am. St. Rep. 332, 3 L. R. A. 80
(1889).
[ 509 ]
§§ 630, 631] PUBLIC SERVICE CORPORATIONS
it is obvious a train must be run with skill and system
in order to assure safety and comfort, the conduct of any-
one who interferes with the management, or without just
cause attempts to do bodily injury to, or put in fear, those
in charge, is reprehensible, and unlawful." 1
§ 630. Disorderly guests.
If the guest after being received misconducts himself
so as to annoy the other guests, he may for that cause
be ejected from the inn.2 "If a man comes into a public
house and conducts himself in a disorderly manner, and
the landlord requests him to go out, and he will not, the
landlord may turn him out. There is no doubt that a
landlord may turn out a person who is making a disturb-
ance in a public house, though such disturbance does not
amount to a breach of the peace. Thus one could be
kept out who came avowedly to assault a guest. And
if one who has gained admission commits violence he may
be treated as a trespasser ab initio.5
29 3
§ 631. Persons having contagious disease.
4
For the protection of all concerned the right is obvious
also to exclude those having a contagious disease, or who
are in loathsome condition. It is well established that
a carrier of passengers may refuse to carry any persons
in this condition, even if they have bought tickets. And
1 See also to the same effect:
Kansas.--Atchison, T. & S. F.
R. R. Co. v. Weber, 33 Kan. 543,
6 Pac. 877, 52 Am. Rep. 543 (1885).
Missouri.-Leonard v. St. Louis
Transit Co., 115 Mo. App. 349, 91
S. W. 452 (1905).
Ohio.-Scioto Valley Traction
Co. v. Graybill, 29 Ohio Cir. Ct.
(1906).
Texas.-Atchison, T. & S. F. Ry.
Co. v. Wood (Tex. Civ. App.), 77
S. W. 964 (1903).
6
2 The quotation which follows is
from Parke, B., in Howell v. Jack-
son, 6 Car. & P. (Eng.) 723, 725
(1834).
3 See also Goodenow v. Travis, 3
Johns. (N. Y.) 427 (1808).
4 See Markham v. Brown, 8 N. H.
523, 31 Am. Dec. 209 (1837):
5 The Six Carpenters' Case, 8
Coke, 146a (1610).
6 See dicta in Jencks v. Coleman,
2 Sumn. 221, Fed. Cas. No. 7258
(1835), and in Thurston v. Union
[510]
PERSONAL DISQUALIFICATION
[ § 632
3
so he may eject them after acceptance as passengers when
the occasion arises. Upon similar principles, an inn-
keeper may plainly refuse entertainment to a person
with contagious disease." "Where a guest is taken ill
at a hotel with a contagious disease, likely to be communi-
cated to others, the proprietor, after notifying the sick
guest to leave, has the right to remove such guest in a
careful and becoming manner, and at an appropriate
hour, to some hospital or other place of safety, provided
the life of the guest be not imperilled thereby. This is
not only a right inherent in the hotel keeper, but a duty
owing to other guests, and to the preservation of public
health." 4
This reasoning was followed in a recent case
where it was held that a sleeping car company might under
proper conditions exclude passengers apparently suffering
from contagious disease from its cars to avoid the danger
they cause to other passengers.5
§ 632. Intoxicated persons.
According to the general principles governing the proper
conduct of a public service, it would seem plain that a
carrier is justified in refusing to transport an intoxicated
Pacific R. R. Co., 4 Dill. (U. S.),
321, Fed. Cas. No. 14,019 (1877).
1 United States.-Paddock v. At-
chison, T. & S. F. R. R. Co., 37
Fed. 841 (1889).
Louisiana.-Conolly v. Crescent
City R. R. Co., 41 La. Ann. 57, 5
So. 259, 6 So. 526, 3 L. R. A. 133, 17
Am. St. Rep. 389 (1889).
Massachusetts.-Connors v. Cu-
nard S. S. Co., 204 Mass. 310, 90
N. E. 601 (1910), semble.
Minnesota.-Croom v. Chicago,
M. & St. P. Ry. Co., 52 Minn. 296,
53 N. W. 1128, 18 L. R. A. 602, 38
Am. St. Rep. 557 (1893), semble.
2 See dicta in Markham v. Brown,
8 N. H. 523, 31 Am. Dec. 209
(1837).
See also what is said in State v.
Steele, 106 N. C. 766, 11 S. E. 478,
19 Am. St. Rep. 573, 8 L. R. A. 516
(1890).
3
³ McHugh v. Schlosser, 159 Pa.
480, 28 Atl. 291, 39 Am. St. Rep.
699, 34 Wkly. Notes Cas. 33
(1894).
4 McAdam, C. J., charging jury
in Levy v. Corey, 1 City Ct. Rep.
Supp. 57 (1884).
5 Pullman Co. v. Krauss, 145
Ala. 395, 40 So. 398 (1906).
[ 511]
§ 632 ]
PUBLIC SERVICE CORPORATIONS
person. Those who are engaged in serving the public
may well justify themselves for refusing to serve persons
so intoxicated as to be dangerous or obnoxious to the
proprietors of the service or to the others who are being
served at the same time. Such persons are apt to be dan-
gerous and likely to be unruly. If they are really intoxi-
cated it would seem plain that they may be rejected.¹
And it seems equally clear that if they are really obnoxious
they may be ejected. Upon both points there is a con-
siderable body of authority, although there is now little
2
1 United States.-Jencks v. Cole-
man, 2 Sumn. 221, Fed. Cas. No.
7258 (1835).
Arkansas.-Price v. St. Louis, I.
M. & S. Ry. Co., 75 Ark. 479, 88 S.
W. 575, 112 Am. St. Rep. 79
(1905).
Indiana.-Pittsburg, C. & St. L.
Ry. Co. v. Vandyne, 57 Ind. 576,
26 Am. Rep. 68 (1877).
Kentucky.-Louisville & E. Ry.
Co. v. McNally, 31 Ky. L. Rep.
1357, 105 S. W. 124 (1907).
Minnesota.-Harrold v. Winona
& St. P. Ry. Co., 47 Minn. 17, 49
N. W. 389 (1891), semble.
New York.-Freedon v. N. Y.
Central & H. R. R. R. Co., 24 App.
Div. 306, 48 N. Y. Supp. 584 (1897).
North Carolina.-Story v. Nor-
folk & S. R. R. Co., 133 N. C. 59,
45 S. E. 349 (1903).
Pennsylvania.—Pittsburg & C.
Ry. Co. v. Pillow, 76 Pa. 510, 18
Am. Rep. 424 (1874).
Texas.-Paris & G. N. Ry. Co. v.
Robinson (Tex. Civ. App.), 114 S.
W. 658 (1909).
Washington.-Stevenson v. West
Seattle Land & Improvement Co.,
22 Wash. 84, 60 Pac. 51 (1900).
2 Alabama.-Johnson v. Louis-
ville & N. R. R. Co., 104 Ala. 241,
16 So. 75, 53 Am. St. Rep. 39 (1893).
District of Columbia.-Converse
v. Washington & G. R. R. Co., 2
MacAr. 504 (1876).
Georgia.-Peavy v. Georgia R. R.
& Banking Co., 81 Ga. 485, 8 S. E.
70, 12 Am. St. Rep. 334 (1888).
Illinois.-Chicago City Ry. Co.
v. Pelletier, 134 Ill. 120, 24 N. E.
770 (1890).
Kentucky.-Chesapeake & O. Ry.
Co. v. Saulsberry, 112 Ky. 915, 66
S. W. 1051, 112 Ky. 915, 23 Ky. L.
Rep. 2341, 56 L. R. A. 580 (1902).
Maine.-Robinson v. Rockland,
T. & C. St. Ry. Co., 87 Me. 387, 32
Atl. 994, 29 L. R. A. 530 (1895).
Massachusetts.-Hudson v. Lynn
& Boston R. R. Co., 178 Mass. 64,
59 N. E. 647 (1901).
New Hampshire.-Edgerly v. Un-
ion St. Ry. Co., 67 N. H. 312, 36
Atl. 558 (1892).
Texas.-Missouri Pac. Ry. Co. v.
Evans, 71 Tex. 361, 9 S. W. 325, 1
L. R. A. 476 (1888).
West Virginia.-Fisher v. West
Virginia Co., 42 W. Va. 183, 24 S. E.
570, 33 L. R. A. 69 (1896).
[ 512 ]
PERSONAL DISQUALIFICATION
[ § 633
or no dispute as to the extent to which the law should
go. It is not the mere intoxication that disables the person
from requiring service; it is the fact that he may be ob-
noxious to the others. Therefore the mere fact that he
has been drinking is not enough; he must be shown to be
so intoxicated as to be irresponsible.¹ The same rules
apply to innkeepers, justifying them in rejecting intoxi-
cated persons and in ejecting guests who have become
drunk.2
§ 633. Profane patrons.
In accordance with these principles it is established
that persons using indecent or profane language may be
refused service at the outset, or cut off from further serv-
ice. Both the proprietor and his other patrons have
the right to insist that they shall not be thus insulted
or offended. The most extreme case of this sort is a re-
cent Texas case 3 where the language and conduct of the
passenger ejected showed such a depth of degradation
as to horrify the court. However the facts need not go to
this extent. A person may be refused service if there is
reason to believe that if he is allowed to enter the carrier's
vehicle he will so conduct himself as to become obnoxious.
Thus it has been held ¹ where a woman was suing a carrier
4
1 New York.-Milliman v. New
York C. & H. R. R. R. Co., 66 N. Y.
642 (1876).
Texas.--Paris & G. N. Ry. Co. v.
Robinson (Tex. Civ. App.), 114 S. W.
658 (1908).
2 See the dicta in:
New Hampshire.-Markham v.
Brown, 8 N. H. 523, 31 Am. Dec.
209 (1837).
North Carolina.-State v. Steele,
106 N. C. 766, 11 S. E. 478, 19 Am.
St. Rep. 573, 8 L. R. A. 516 (1890).
Pennsylvania.McHugh
V.
Schlosser, 159 Pa. St. 480, 28 Atl.
302, 39 Am. St. Rep. 699 (1894).
England.-Rex v. Ivens, 7 Car. &
P. 213 (Eng., 1835).
Atchison, T. & S. F. Ry. Co. v.
Wood (Tex. Civ. App.), 77 S. W.
964 (1903). See also Peavy v.
Georgia R. R. & Banking Co., 81
Ga. 485, 8 S. E. 70, 12 Am. St. Rep.
334 (1888); Louisville & N. Ry. Co.
v. Logan, 88 Ky. 232, 10 S. W. 655,
3 L. R. A. 80, 21 Am. Rep. 332
(1889).
4 Stevenson v. West Seattle L. &
33
[ 513 ]
§ 634 ]
PUBLIC SERVICE CORPORATIONS
1'
for refusal to receive her as a passenger, that evidence was
admissible that prior to this the plaintiff while a passenger
upon the boat had been guilty of obscene language ¹ and
indecent conduct in the presence of other passengers in-
cluding ladies. Telegraph companies likewise need not ac-
cept obscene, blasphemous, profane or indecent messages,2
although there is a case which holds that the telegraph
company refuses an equivocal message at its peril.³ But
although telephone service may be cut off from a sub-
scriber habitually profane, it cannot later be cut off from
a subscriber who has desisted from objectionable language
upon complaint being made to him.5
4
§ 634. Ejection governed by same general principles as
rejection.
6
To strengthen the citation throughout this chapter
prominent cases of ejection for misconduct have been put
in with the cases of rejection for the same reason. This
is believed to be in every way justifiable notwithstanding
some dicta to the contrary. Even after one has been
once duly accepted he may be ejected later for proper
cause. By his admission he is perhaps in a better position
to demand the services than when he first applied for
service; but probably this advantage is merely tactical.
While the burden is on one who applies for service to prove
I. Co., 22 Wash. 84, 60 Pac. 51
(1900). See also Louisville, N., A.
& C. Ry. Co. v. Wolfe, 128 Ind. 347,
27 N. E. 606, 25 Am. Rep. 643
(1890).
1 However a profane retort pro-
voked by the act of the servant does
not excuse rejection or ejection; see
Rex v. Ivens, 7 Car. & P. 213 (1835),
and El Paso Electric Ry. Co. v.
Alderete, 36 Tex. Civ. App. 142, 81
S. W. 1246 (1904).
2 Archambault
v. Gt. North
Western Telegraph Co., 14 Quebec,
8 (1886).
3 Western Union Telegraph Co. v.
Ferguson, 57 Ind. 495 (1877).
4 Pugh v. City & Sub. Telephone
Assn., 9 Cinn. Law Bull. 104 (1883).
5 Huffman v. Marcy Mutual Tele-
phone Co., 143 Ia. 590, 121 N. W.
1033, 23 L. R. A. (N. S.) 1010
(1909).
• See Pearson v. Duane, 4 Wall.
605, 18 L. ed. 447 (1866); Coppin v.
Braithwaite, 8 Jurist, 875 (1844).
[ 514 ]
PERSONAL DISQUALIFICATION
[ § 635
な
​himself entitled to demand it, as soon as he has been re-
ceived the burden is placed on the manager to justify the
act of ejecting him. But so far as substantive right goes, it
is doubtful if the applicant gains any by his acceptance.
If after his admission circumstances occur which would
have justified refusal at the onset if they had existed when
he applied, they will equally justify ejecting him.¹
Topic C. Applicant Under Disability
§ 635. Disabled persons in general.
The aged and crippled cannot be refused service, al-
though to some degree special care must be taken. The
right of passenger carriage is not confined to persons who
are vigorous and sound, but is open to those ailing and
infirm.² If, however, the applicants be so far incapaci-
tated as not to be able to look out for themselves with
the ordinary assistance which the carrier is bound to ex-
tend, they may be refused transportation; but the carrier
must use proper discretion in deciding that question.
"It is not every sick or crippled or infirm person whom
a railroad regulation can exclude, but one so sick or so
crippled or so infirm as not to be able to travel without
aid." It should be added that even if they might be
refused if presenting themselves unaccompanied they may
insist upon being taken when they do not ask special at-
3
¹ See among the many cases to
this effect Louisville & N. R. R. Co.
v. Logan, 88 Ky. 232, 10 S. W. 655,
3 L. R. A. 80 (1889), and Hudson v.
Lynn & B. R. R. Co., 178 Mass.
64, 59 N. E. 647 (1901).
2 Wabash Ry. Co. v. Mathew,
199 U. S. 605, 50 L. ed. 329, 26 Sup.
Ct. 752 (1905).
But an aged man who is partly
paralyzed cannot expect to travel
Louisville,
without an attendant.
N. & Gt. So. R. R. Co. v. Fleming,
14 Lea (Tenn.), 128 (1884).
³ Quoted from Zachery v. Mobile
& O. R. R. Co., 75 Miss. 746, 23 So.
434, 65 Am. Rep. 617, 41 L. R. A.
385 (1898).
See also similar language in
Shendan v. Brooklyn & N. Ry. Co.,
36 N. Y. 39, 93 Am. Dec. 490
(1873).
[515]
§ 636 ]
PUBLIC SERVICE CORPORATIONS
tention if accompanied by attendants of their own,¹ unless
even with such attendants they will be an extraordinary
care to the carrier.2
§ 636. Persons subject to an incapacity.
As has been seen incapable persons non sui juris cannot
be refused as passengers simply because they are inca-
pable of contracting. As to children,³ for example, a dis-
tinction must be obviously made. Grown children al-
though within age, may travel alone with practically as
much assurance as adults; but infants of tender years
could not of course travel without danger to themselves,
or undue demands upon the carrier unless they were ac-
¹ Pullman P. Car Co. v. Barker,
4 Colo. 344, 34 Am. Rep. 89 (1878).
See also New Orleans, J. & G. N.
Ry. Co. v. Statham, 42 Miss. 607,
97 Am. Dec. 478 (1869).
2 Connors v. Cunard S. S. Co.,
204 Mass. 310, 90 N. E. 601, 26
L. R. A. (N. S.) 171 (1910).
See also Furgason v. Citizens'
Street Ry. Co., 16 Ind. App. 171, 44
N. E. 936 (1896).
Temporary assistance should be
given those who are quite capable of
traveling if given slight assistance.
See:
Georgia. Southern Ry. Co. v.
Hobbs, 118 Ga. 227, 45 S. E. 23, 63
L. R. A. 68 (1903).
Minnesota.-Croom v. Chicago,
M. & St. P. Ry. Co., 52 Minn. 296,
53 N. W. 1128, 38 Am. St. Rep. 557,
18 L. R. A. 602 (1893).
Tennessee.-Railroad Co. v.
Mitchell, 98 Tenn. 27, 40 S. W. 72
(1896).
Texas.-Central Texas & N. W.
Ry. Co. v. Holloway (Tex. Civ.
App.), 54 S. W. 419 (1899).
If the company through its
agents undertakes to assist a party
it must perform the service with due
diligence. See:
Georgia.-Western & A. Ry. Co.
v. Voils, 98 Ga. 446, 26 S. E. 483, 35
L. R. A. 655 (1896).
New Hampshire.-Foss v. Boston
& Maine R. R. Co., 66 N. H. 256, 21
Atl. 222, 49 Am. St. Rep. 607, 11
L. R. A. 367 (1890).
New York.-Hanlon v. Central
Ry. Co., 187 N. Y. 73, 79 N. E. 846
(1908).
Texas.-International & G. N.
R. R. Co. v. Gilmer, 18 Tex. Civ.
App. 680, 45 S. W. 1028 (1898).
3 See:
Minnesota.-Braun v. Northern
Pacific Ry. Co., 79 Minn. 404, 82
N. W. 675, 49 L. R. A. 319, 79 Am.
St. Rep. 497 (1900).
Tennessee.-Warfield
v. Louis-
ville & N. R. R. Co., 104 Tenn. 74,
55 S. W. 304, 78 Am. St. Rep. 911
(1900).
[516]
PERSONAL DISQUALIFICATION
[ § 637
1
companied by grown persons, such older persons being
responsible for them. In the former days the question
of slaves ¹ would have had place here; and it would have
then seemed plain that one could refuse a slave traveling
alone without proper permit, because of the danger of
being implicated in an escape. But a master, or one hav-
ing authority, could insist on having the slaves accepted
when traveling in his company.
§ 637. Blind persons.
Primarily the affliction of blindness unfits every person
for safe travel by railway, if unaccompanied. No blind
person without previous experience could possibly ac-
commodate himself to the many exigencies incident to
travel by railroad, or guard himself against peril in board-
ing and alighting from trains, changing from one train to
another, or threading his way in safety across the railway
tracks at crowded stations. Nor is such a regulation
a hardship upon the persons afflicted with blindness or
other disabling physical infirmity. It is rather a safe-
guard thrown around them for their own protection.
Therefore, as a carrier cannot be called upon to care for
helpless persons, when a blind person applies to purchase
a ticket, being himself unknown to the agent, and that
ticket is refused, the carrier is not liable in damages. But
if the agent of the carrier knows of his personal knowledge
of the competency to travel of the particular person, or
if the fact of such ability is made known to him in any
manner, and he still persists wantonly and arbitrarily
in his refusal to sell the person desiring passage a ticket,
1 See:
United States.-Boyce v. Ander-
son, 2 Pet. 150 (1829).
Kentucky.-Louisville & N. R. R.
Co. v. Young, 1 Bush. 401 (1866).
2
2 Zachery v. Mobile & O. R. R.
Co., 75 Miss. 746, 23 So. 435, 65
Am. St. Rep. 617, 41 L. R. A. 385
(1898).
[517]
§ 638 ] PUBLIC SERVICE CORPORATIONS
the carrier may be made to respond in damages for his
oppressive act."
1
§ 638. Sick persons.
2
3
It has been seen that a public servant is under no obli-
gation to accept a person infected with a contagious dis-
ease or in a disgusting condition. To go to the other
extreme, travelers who are simply ailing, but quite able
to care for themselves, cannot be refused. Nor can per-
sons who by reason of their afflictions might perhaps be
unpleasant to other passengers be excluded. And to
put intermediate cases, if a person ill or disabled, but not
really dangerous or obnoxious to others, presents himself
with proper attendance provided by himself, it seems
right to require that he shall be given proper service.5
But where the applicant is so ill as to require constant
medical attendance, he may be refused although accom-
panied by a nurse. If, however, a person who is appar-
ently ill is actually accepted or if a person is stricken
after acceptance then a special duty to take peculiar
8
6
1 This whole paragraph is largely
a paraphrase from the opinion of
Justice Truly in Illinois Central R.
R. Co. v. Smith, 85 Miss. 349, 37
So. 643, 70 L. R. A. 642 (1905), in
which this last distinction is made.
Illinois Central Ry. Co. v. Allen,
28 Ky. Law. R. 108, 89 S. W. 150
(1905), accord.
2 See § 631, supra. See also Pull-
man Co. v. Krauss, 145 Ala. 395, 40
So. 398 (1906), and other cases cited.
3 Wabash Ry. Co. v. Mathew,
199 U. S. 605, 50 L. ed. 329, 26 S.
Ct. 752 (1905). See § 635, supra.
4 Regner v. Glens Falls, S. H. &
F. E. St. Ry. Co., 26 N. Y. Supp.
625, 74 Hun, 202 (1893).
5 Indiana.—Louisville & N. R. R.
7
Co. v. Crunk, 119 Ind. 542, 21 N. E.
31, 12 Am. St. Rep. 443 (1889),
semble.
Minnesota.-Croom v. Chicago,
M. & St. P. Ry. Co., 52 Minn. 296,
53 N. W. 1128, 18 L. R. A. 602, 38
Am. St. Rep. 557 (1893).
6 Connors v. Cunard S. S. Co.,
204 Mass. 310, 90 N. E. 601 (1910).
7 See particularly:
Louisiana.-Conolley
V. Cres-
cent City R. R. Co., 41 La. Ann. 57,
5 So. 259, 17 Am. St. Rep. 389, 3 L.
R. A. 133 (1889).
8 United States.-Meyer v. St.
Louis, I. M. & S. Ry. Co., 54 Fed.
116, 4 C. C. A. 221 (1893), semble.
New Hampshire.-Foss v. Boston
& Maine R. R. Co., 66 N. H. 256,
[518]
PERSONAL DISQUALIFICATION
[ § 639
care arises when the circumstances are known, but not
until they are known. Of course diseased persons may
properly be segregated from the others; ¹ and such persons
may at convenient times be given over to proper attend-
ance. All this is as good law for innkeepers as it is for
carriers. 2
§ 639. Insane persons.
1
3
As to the case of insane persons similar distinctions
are necessary. If they present themselves unattended
they may be refused service as a general rule, because,
even if not violent at the time, they are always a poten-
tial peril to other persons being served. Perhaps one
ought to distinguish between various kinds of mental
incapacity, thus a slightly feeble-minded person who went
habitually without attendants could not, it seems, be
refused. On the other hand even violently insane per-
sons must be taken when accompanied by sufficient guards.
In one case of this sort where a lunatic with his keepers
was excluded from a passenger train, permission being
given to travel by a freight train soon to follow, the gen-
4
21 Atl. 222, 49 Am. St. Rep. 607, 11
L. R. A. 367 (1890).
New Jersey.-Newark & S. O.
Ry. Co. v. McCann, 58 N. J. L.
642, 34 Atl. 1052, 33 L. R. A. 127
(1896).
New York. Sheridan v. Brook-
lyn Cy. & N. R. R. Co., 36 N. Y. 39,
93 Am. Dec. 490 (1867).
Texas.-St. Louis, A. & T. Ry.
Co. v. Finley, 79 Tex. 85, 15 S. W.
266 (1980).
1 United States.-The Steamship
Hammonia, 10 Ben. 512, Fed. Cas.
No. 6006 (1879).
District of Columbia.—Lemont v.
Washington & G. R. R. Co., 1
Mackey, 180 (1881).
New York.-Levy v. Corey 1,
City Ct. Rep. Supp. 57 (1884).
2 Pennsylvania. McHugh v.
Schlosser, 159 Pa. 480, 28 Atl. 302,
39 Am. St. Rep. 699 (1894).
3
Meyer v. St. Louis, I. M. & S.
Ry. Co., 54 Fed. 116, 10 U. S. App.
677, 4 C. C. A. 221 (1893). See also
Pullman Co. v. Krauss, 145 Ala.
395, 40 So. 398, 4 L. R. A. (N. S.)
103 (1906), (disease), and Atchison,
T. & S. F. Ry. Co. v. Weber, 33
Kan. 543, 6 Pac. 877, 52 Am. Rep.
543 (1885), (delirium tremens).
4 Owens v. Macon & B. R. R.
Co., 119 Ga. 230, 46 S. E. 87, 63 L.
R. A. 946 (1903).
[519]
§ 640 1
PUBLIC SERVICE CORPORATIONS
eral problem of this topic was thus discussed by Mr. Jus-
tice Lamar: "In the case of unfortunates who are not
responsible for their disorderly conduct, and who, at best,
are involuntary passengers, a different question is pre-
sented, calling in each case for the exercise of a wise dis-
cretion. On the one hand, regard must be had for the
safety and comfort of other travelers, and, on the other,
to the fact that in losing his mind the lunatic has not lost
the right to be transported. It may be vitally important
that he be taken to a place where he can receive the at-
tention and confinement rendered necessary by his mental
state. The carrier cannot absolutely refuse transportation
to insane persons, but it may in all cases insist that he
be properly attended, safely guarded, and securely re-
strained. And even where such precautions have been
taken, it is not bound to afford him, if violent, transpor-
tation in the cars in which other travelers are being con-
veyed."
§ 640. Arrested persons.
The public duty to transport officers having criminals
in their charge is equally obvious. It is equally plain
that such passengers need not be taken along with other
passengers if it may reasonably be thought that they are
of a sort which might prove to be dangerous or annoying
to other passengers.¹ The right to eject the attendants
of dangerous persons is involved in the right to reject
such persons themselves. The nurse accompanying a
person with contagious disease may be dealt with as the
patient. The attendant of a dangerously insane person
may be compelled to take his charge away. Officers hav-
ing a dangerous criminal in charge may be compelled to
1 See Brunswick & W. R. R. Co. v.
Ponder, 117 Ga. 63, 43 S. E. 430,
60 L. R. A. 713, 97 Am. St. Rep. 152
(1903).
See Owens v. Macon & B. R. R.
Co., 119 Ga. 230, 46 S. E. 87, 63
L. R. A. 946 (1903).
[ 520 ]
PERSONAL DISQUALIFICATION [§§ 641, 642
take him apart from other passengers. And the adult
accompanying a too boisterous child may be ejected.¹
Topic D. Basis for Rejection
§ 641. Rejection for present misconduct.
2
The typical case for refusing service is when the appli-
cant is in flagrante delicto, when his present misconduct
is such as to justify the refusal to give the service asked
under the existing circumstances. These disqualifications
have been brought out in extreme form in the present
chapter. The rule is sometimes so stated as to cover only
such extreme cases; but this must not be taken too liter-
ally. "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 presump-
tion 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.” 3
§ 642. Rejection for past misconduct.
One would not be justified in pressing this doctrine to
the point of saying as is sometimes incautiously said that
an applicant may be rejected by reason of his evil reputa-
tion. Where the past misconduct has no relation to the
¹ Jackson v. St. Louis, I. M. & S.
Ry. Co., 87 Mo. 422, 56 Am. Rep.
460 (1885).
See Jardine v. Cornell, 50 N. J.
L. 485 (1888).
2 Quoted from Mr. Justice Story's
opinion in Jencks v. Coleman, 2
Sumn. (U. S.) 221, 225 (1835).
3 The leading case to this effect in
modern times is Thurston v. Union
Pacific R. R. Co., 4 Dillon (U. S.),
321, Fed. Cas. No. 14,019 (1877),
where Judge Dillon held that a
notorious gambler could be refused
transportation as the railroad com-
pany might reasonably anticipate
that he might cause harm to some
of their passengers.
[ 521 ]
§ 643]
PUBLIC SERVICE CORPORATIONS
present service, there certainly can be no refusal. And
indeed past misconduct as such cannot justify a refusal.
Thus a railroad cannot refuse to carry a man who once
disobeyed its ticket regulations.¹ So a man who once
previously had presented himself drunk cannot be refused
at another time when plainly sober.2 And a patron who
once profane in his speech had long since desisted upon
warning, cannot be refused further service. But if the
past misconduct has been so long continued that it makes
only too probable a repetition of it, notwithstanding pro-
tests of reformation there may perhaps be a refusal to
give the service which will present the opportunity.4
§ 643. Rejection upon probable cause.
3
5
If the danger or inconvenience to the carrier or his pa-
trons seems reasonably imminent although not absolutely
certain there would seem to be sufficient ground to justify
the carrier in refusing to perform the service asked. This
is well elaborated in a late Massachusetts case, where a
steamship company refused to take the risk of accept-
ing a woman whose condition was serious, Mr. Justice
Loring thus summarizing the authorities: "It was held
in all these cases that the justification was made out if
the carrier had reasonable cause to suppose and did sup-
pose that the safety or convenience of other passengers
would be endangered by the person in question, and that
it was not necessary to wait to see if the person believed
and with reason to be afflicted with an infectious disease,
¹ Atwater v. Del., Lack. & W.
R. R. Co., 48 N. J. L. 55, 2 Atl. 803
(1886).
2 Story v. Norfolk & S. Ry. Co.,
133 N. C. 59, 45 S. E. 349 (1903).
³ Huffman v. Marcy Mutual Tele-
phone Co., 143 Iowa, 590, 121 N. W.
1033, 23 L. R. A. (N. S.) 1010
(1909).
4 Stevenson v. West Seattle Land
& Imp. Co., 22 Wash. 84, 60 Pac. 51
(1900).
5 Connors v. Cunard S. S. Co.,
204 Mass. 310, 90 N. E. 601, 26 L.
R. A. (N. S.) 171 (1910).
[522]
PERSONAL •
[ § 644
DISQUALIFICATION
or so insane, drunk, or sick as to be likely to interfere with
the safety or convenience of other passengers, was or was
not in fact in the condition he appeared to be in.'
§ 644. Ejection before actual misconduct.
99 1
As the same principles should apply whether it be a
case of ejection after acceptance or rejection at the outset,
the leading case of Vinton v. Middlesex Street Railway
Company 2 may be cited here. In this case the defendant
railway introduced evidence tending to show that at the
time of the expulsion the plaintiff, intoxicated and using
loud and profane language, was attempting to strike at
the conductor. At the trial the judge ruled that the con-
ductor had no right to eject unless the actual conduct
of the plaintiff at the time was offensive or annoying to
the passengers. The Massachusetts court-Mr. Chief
Justice Bigelow writing the opinion-held this view too
limited: "Certainly the conductor in charge of the vehicle
was not bound to wait until some overt act of violence,
profaneness or other misconduct had been committed,
to the inconvenience or annoyance of other passengers,
before exercising his authority to exclude or expel the
offender. The right and power of the defendants and
their servants to prevent the occurrence of improper and
disorderly conduct in a public vehicle is quite as essential
and important as the authority to stop a disturbance or
repress acts of violence or breaches of decorum after they
have been committed, and the mischief of annoyance
and disturbance have been done. Indeed, if the rule laid
down at the trial be correct, then it would follow that
passengers in public vehicles must be subjected to a cer-
tain amount or degree of discomfort or insult from evil-
¹ See also, holding similarly,
Pullman Car Co. v. Krauss, 145
Ala. 395, 40 So. 398, 4 L. R. A.
(N. S.) 103 (1906).
211 Allen (Mass.), 304, 87 Am.
Dec. 714 (1865).
[523]
§§ 645, 646] PUBLIC SERVICE CORPORATIONS
disposed persons before the right to expel them would
accrue to a carrier or his servant. There would be no
authority to restrain or prevent profaneness, indecency,
or other breaches of decorum in speech or behavior, until
it had continued long enough to become manifest to the
eye or ears of other passengers. It is obvious that any
such restriction on the operation of the rule of law would
greatly diminish its value." 1
§ 645. Whether refusal should be at peril.
2
It would seem to follow from all this, if the public serv-
ant is to be allowed due power to protect himself in his
service and the public which he is serving, that the ques-
tion in such cases should be whether the applicant had
given him reasonable grounds to believe that the defense
existed. Thus a traveler may be ejected who from outward
signs, such as eruptive fever, appears to have a contagious
disease, although in fact he has not. This case (as will
have transpired throughout the paragraphs just preceding)
represents the great weight of authority. But there are
a few cases to the contrary holding in effect that as no
proper applicant can ever be refused the company acts
at its peril. And a street railway was recently held for
rejecting a passenger who was apparently in delirium
tremens, but who really was afflicted with St. Vitus Dance.³
§ 646. Rejection for misconduct of companion.
The right is sometimes claimed to reject one person by
reason of the misconduct of another accompanying him.
¹ See also the later Massachusetts
case of Hudson v. Lynn & Boston
R. R. Co., 178 Mass. 64, 59 N. E.
647 (1901).
2 Paddock v. Atchison, T. & S. F.
Ry. Co., 37 Fed. 841 (1889). See
also Pullman P. C. Co. v. Bales, 80
Tex. 211, 14 S. W. 855, 15 S. W. 785
(1890).
3 Regner v. Glens Falls, etc., R.
R. Co., 26 N. Y. Supp. 625, 74
Hun, 202 (1893). See also Seaboard
A. L. Ry. Co. v. O'Quin, 124 Ga.
357, 52 S. E. 427 (1905).
[ 524 ]
PERSONAL DISQUALIFICATION
[ § 646
1
3
This may be true where the misconduct is that of an at-
tendant in charge of a child or a patient; ¹ but this is not
true of a mere companion.2 Thus in a leading case an
innkeeper refused to serve an applicant because he be-
longed to the militia and wore the uniform, other members
of which wearing the same uniform having previously
misconducted themselves. The innkeeper alleged that
he was unable to discriminate between them, and took
them all as parties who came there to create a disturbance
in the house. This excuse was held insufficient. However
where certain persons attempted to procure passage in a
stock car, some of whom had transportation and others
had not, those holding transportation attempting to con-
ceal the others, it was held that they all became trespassers
and subjected themselves to ejection.º
5
1 See Warfield v. Railroad Co.,
104 Tenn. 74, 55 S. W. 304, 78 Am.
St. Rep. 911 (1900).
Thus a passenger may be ejected
along with his dog. Gregory v.
Chicago & N. Ry. Co., 100 Ia. 345,
69 N. W. 532 (1896).
2 Mississippi.—Louisville & N.
R. R. Co. v. Maybin, 66 Miss. 83,
5 So. 401 (1888).
West Virginia.--Gillingham v.
Ohio River R. R. Co., 35 W. Va.
588, 14 S. E. 243, 14 L. R. A. 798,
29 Am. St. Rep. 827 (1891).
3 Atwater v. Sawyer, 76 Me. 539,
49 Am. Rep. 634 (1884).
4 However, where premises have
4
been closed by the police for har-
boring a bucket shop, the telegraph
company may require assurances
from the successor to the pro-
prietor of the business. Matter of
Cullen, 106 N. Y. App. Div. 250,
94 N. Y. Supp. 290 (1905).
5 Texas & P. Ry. Co. v. Diefen-
bach, 167 Fed. 39 (1909).
6 The conductor is not required to
permit the person to continue on the
train upon the promise of another
passenger to see that he will hurt
nobody. Louisville & N. R. R. Co.
v. Setser's Admr. (Ky.), 128 S. W.
341 (1910).
[ 525 ]
:
CHAPTER XIX
JUSTIFICATION FOR SUSPENDING SERVICE
§ 650. General situations justifying suspension.
Topic A. Natural Conditions
§ 651. Failure of water supply.
652. Exhaustion of irrigation supply.
653. Division of natural gas.
654. Service dependent on water power.
Topic B. Inevitable Accidents
§ 655. Convulsions of nature.
656. Storms and floods.
657. Electrical disturbance.
658. Normal conditions.
659. Unavoidable accidents.
Topic C. Insufficient Facilities
§ 660. When accommodations offered are exhausted.
661. Limitations upon the carrier's obligation.
662. Extended obligation of the railroads.
663. Facilities unexpectedly become outgrown.
664. Normal fluctuations of business.
665. Division of facilities among applicants.
§ 666. Enemy forces.
Topic D. Human Obstacles
667. Domestic violence.
668. Refusal to receive because of strike.
669. Refusal to receive because of violent strike.
670. Situation when sympathetic strike.
671. How employés of the carriers are affected.
§ 650. General situations justifying suspension.
There are many situations in which it is justifiable to
suspend service in whole or in part. These are discussed
in much detail later in dealing with the obligation to carry
[ 526 ]
SUSPENDING SERVICE
[ § 651
through properly a particular service after it has been
undertaken. But it is obvious that the same considera-
tions will justify a refusal to accept new applications for
service during the period, if the company would be excused
for not completing in regular course business already on
hand. Without going into the matter further at present
as to the various circumstances which may make suspen-
sion permissible it is enough to point out here that when
the management has done the best that could be expected
of it under the conditions at the time, it has done all that
the law requires. "But in the absence of the existence
of an exceptional cause, such as the act of God, the public
enemy, unavoidable accident or an abnormal and un-
anticipated inrush of business which will prevent the
performance of its common-law duty to shippers, a com-
mon carrier has no right to refuse to receive and trans-
port property offered for shipment." 1 It will be seen
that these are general considerations applying to service
in general; and therein this general justification, imper-
sonal in its application, differs from the particular ex-
cuses, personal in character, which have just been under
discussion recently.2
Topic A. Natural Conditions
§ 651. Failure of water supply.
In dealing with water companies it must always be
taken into account that natural limitations to a consid-
erable extent limit the supply. For example an unusual
drought long continuing would excuse a partial suspen-
sion of service.3 But failure to be ready to meet the de-
¹ The quotation is from Knight v.
Quincy, O. & K. C. R. R. Co., 120
Mo. App. 311 (1906).
2 See also the various instances of
justification enumerated in Houston
& T. C. R. R. Co. v. Mayes, 201 U.
S. 329, 50 L. ed. 72, 26 Sup. Ct.
491 (1906).
3 State Trust Co. of N. Y. v.
City of Duluth, 70 Minn. 257, 73
[527]
§ 652 ]
PUBLIC SERVICE CORPORATIONS
mands of its public during dry periods which are to be
expected is a plain breach of its duty. So serious was
this believed to be in the case of one water company, at
least, as to warrant forfeiture of its charter.¹ In this case
the water company attempted to excuse its four failures
to supply proper water in the preceding four years by
alleging that there was a protracted drought at each time;
but the evidence tended to show that this long drought
was usual in the heated season of each year. The case
is therefore sufficiently differentiated from the first cases,
where the drought was of unprecedented duration.
§ 652. Exhaustion of irrigation supply.
2
In irrigation we have a typical case of natural limita-
tion. When the flow of a stream is diverted by irrigation
works, the profession of the managing company may
fairly be said to be confined to the water that may prop-
erly be appropriated. It is consequently under no duty
to provide other sources of supply even against recurrent
drought, as its obligation is limited to the proper diver-
sion of the appropriated water. Only while it has avail-
able water is it bound to supply applicants. Thus an
answer to a complaint for mandamus that the irrigation
company has not sufficient water to supply the plaintiff
and all others owning lands lying under the flow of the
ditch, was held plainly insufficient without an averment
that the available supply had been exhausted by prior
demands. But such prior takings exhausting the depend-
3
N. W. 249 (1897). See also State
ex rel. Olmstead v. Proprietors of
the Morris Aqueduct, 46 N. J. L.
495 (1884).
But see Gainesville Water Co. v.
City of Gainesville (Tex.), 128 S. W.
370 (1910).
¹ Capital City Water Co. v. State,
105 Ala. 406, 432, 18 So. 62, 29 L.
R. A. 743 (1894).
2 See Lowe v. Yolo County Con-
solidated Water Co., 6 Cal. App.
Div. 646, 96 Pac. 379 (1908).
Merrill v. Southside Irrigation
Co., 121 Cal. 426, 44 Pac. 720
(1896).
[ 528 ]
SUSPENDING SERVICE
[ § 653
able supply do constitute a justification for the refusal
of further applications.¹ Indeed, there are several cases
which go to the extent of granting an injunction brought
by present users upon the showing that the supply is taken
up to a proper capacity, ordering the company to cease
from taking on new customers. 2
§ 653. Division of natural gas.
Natural gas presents another plain instance of natural
limitation. After a piping system has once been con-
structed from certain fields for the supply of a certain
community, it is true in an abstract sense that all have
equal rights to the service offered. When the available
supply has been taken up by the present customers and
new applications still come in, it may be that reasonable
efforts ought to be made to get more out of these fields
by sinking more wells; but certainly it will not be com-
pelled to establish a plant for the manufacture of gas
since that would be outside its profession. When this
natural limitation is certain, the cases hold that the
available supply must be shared by the present takers
with the new applicants. In a late case ³ on that point,
the Indiana Supreme Court insisted that: "In the ren-
dering of such a service there should be no advantage
accorded to prior applicants. It cannot be doubted that
there is equality of right on the part of each of the inhab-
itants living along appellant's mains." The rule for nat-
ural gas it will be noticed is opposed to the rule for the
1 United States.-See San Diego
Flume Co. v. Souther, 112 Fed. 228
(1901).
Idaho.-Bardsly v. Boise Irr. &
Land Co., 8 Idaho, 155, 67 Pac. 428
(1901); Shelby v. Farmers' Coöp-
erative Ditch Co., 10 Idaho, 732,
80 Pac. 222 (1905).
2 California.-Mc Dermont v.
3
Anaheim Union Water Co., 124 Cal.
112, 56 Pac. 779 (1899).
Colorado.-Brown v. Farmers' H.
L. Canal & Reservoir Co., 26 Colo.
66, 56 Pac. 183 (1899).
3 Indiana Natural Gas & O. Co.
v. State ex rel., 162 Ind. 690, 71
N. E. 133 (1904).
34
[ 529 ]
§§ 654, 655] PUBLIC SERVICE CORPORATIONS
disposition of the irrigation cases discussed in the last
paragraph. Logical though it may be, it seems to the
writer to be lacking in appreciation of the situation as a
whole. A rule which may result in satisfactory service
to none, not even to the applicant in question, is hardly
consistent with public service for all. Certainly where
the supply now available is not sufficient to meet the
proper demands of present customers, it would seem that
later applicants could not demand the reduction of the
takings of older customers.¹
§ 654. Service dependent on water power.
Where a service is undertaken generally, as the supply
of electricity to a city for illumination, although the chief
reliance of the company is upon a water power, neverthe-
less where it undertakes the delivery of constant current,
it should provide itself with auxiliary power.2 But where
a company undertakes impliedly no more than the trans-
mutation of water power into electric energy in the sense
that it only undertakes the delivery of such amount of
electricity as its water power may produce, it will not be
liable for failure to supply energy consequent upon the
variations in the flow of the river.³
Topic B. Inevitable Accidents
§ 655. Convulsions of nature.
One of the characteristic defenses in the law of public
callings generally is the happening of an accident without
the intervention of human action. Of this so-called act
¹ State ex rel. v. Consumers' Gas
Trust Co., 157 Ind. 345, 61 N. E.
674, 55 L. R. A. 245 (1901); In-
diana Natural & Ill. Gas Co. v.
State ex rel., 158 Ind. 516, 63 N. E.
220, 57 L. R. A. 761 (1901), accord.
2 Compare Boal v. Citizens' Nat.
4
Gas Co., 23 Pa. Super. Ct. 339
(1903).
3 See Brown v. Gerald, 100 Me.
351, 61 Atl. 785, 70 L. R. A. 472, 109
Am. St. Rep. 526 (1905).
4 See, for examples of this, Slater
v. South Carolina Ry. Co., 29 S. C.
[530]
SUSPENDING SERVICE
[ § 656
of God, convulsions of nature such as earthquakes and
landslides are perhaps the most striking examples. This
defense of act of God comes up principally as a defense
after service has been undertaken; and it is there discussed
chiefly in this treatise.¹ But it is equally a defense for
refusing to undertake further service upon usual terms
during the time that the disturbance affects the situation.
A carrier is not only excused for loss of goods in his hands
by a convulsion of nature, but if his communications are
interrupted he is excused from not rendering proper serv-
ice to new applicants at that time.
§ 656. Storms and floods.
Similarly extraordinary weather conditions excuse not
only defaults in the service, but justify suspension of
service as well. Storms of unusual violence, unexpected
floods from unusual rains, are prominent examples of
natural forces which may excuse default in a service al-
ready undertaken, unless the carrier is negligent in the
matter. A fortiori such phenomena would justify a re-
2
96, 6 S. E. 936 (1888), and Gleeson
v. Virginia Midland R. R. Co., 140
U. S. 435, 35 L. ed. 458, 11 Sup. Ct.
859 (1889). See §§ 978 et seq., infra.
1 See, for instances of this, The
Charles Nelson, 149 Fed. 846 (1906)
and Blythe v. Denver & R. G. Ry.
Co., 15 Colo. 333, 25 Pac. 702, 11
L. R. A. 615, 22 Am. St. Rep. 403
(1891).
2 Leading cases for this general
doctrine are:
United States.—Empire State C.
Co. v. Atchison, T. & S. F. Ry. Co.,
210 U. S. 1, 52 L. ed. 931, 28 Sup.
Ct. Rep. 607 (1907).
Alabama.-Smith & Co. v. West-
ern Ry. of Ala., 91 Ala. 455, 8 So.
754, 24 Am. St. Rep. 929 (1890).
Illinois.-Wald v. Pittsburg, C.,
C. & St. L. R. R. Co., 162 Ill. 545,
44 N. E. 888, 53 Am. St. Rep. 332,
35 L. R. A. 356 (1896).
Iowa.-Green Wheeler Shoe Co.
v. Chicago, R. I. & P. Ry. Co., 130
Iowa, 123, 106 N. W. 498 (1906).
Minnesota.—Bibb Broom Corn
Co. v. Atchison, T. & S. F. Ry. Co.,
94 Minn. 269, 102 N. W. 709, 69
L. R. A. 509 (1905).
Nebraska.-Wabash Ry. Co. v.
Sharpe, 76 Neb. 424, 107 N. W.
758, 124 Am. St. Rep. 823 (1906).
Pennsylvania.-Long v. Pennsyl-
vania R. R. Co., 147 Pa. 343, 23
Atl. 459, 14 L. R. A. 741, 30 Am. St.
Rep. 732 (1892).
See further §§ 980-981 et seq.
[ 531 ]
§ 657 ] PUBLIC SERVICE CORPORATIONS
fusal to undertake further service so long as the disturb-
ance seriously affects the situation. In a recent case ¹
of this sort a connecting carrier expressly refused to re-
ceive certain cars loaded with freight placed upon its
connecting track because the Missouri River was over-
flowing the freight yards and further rise was obviously
imminent. Said the appellate court: "In this instance
defendant's tracks were threatened with inundation from
an impending and unprecedented flood of water, which
finally culminated in great disaster to railroads and ship-
ments and interruption of all kinds of transportation for
several days. Under such conditions, defendant had the
right to refuse plaintiff's property in order to avoid li-
ability for its loss or damage which was then threatened.
The flood was of such a character as to fall properly within
the legal definition of an act of God, and such was a suffi-
cient excuse for the defendant in refusing plaintiff's ship-
ment.
$ 657. Electrical disturbance.
Electrical disturbances which with our present knowl-
edge are all but unforeseen, and against which sufficient
protection in the present state of the art is very difficult,
will often excuse a telephone company or a telegraph
company for suspending service. The whole situation
is elaborately worked out in one case thus: "Under these
R. R. Co., 28 Mont. 297, 72 Pac.
642 (1903).
1 Gray v. Wabash R. R. Co., 119
Mo. App. 144, 149, 95 S. W. 983
(1906). See also Empire State
Cattle Co. v. Atchison, T. & S. F.
Ry. Co., 135 Fed. 135 (1905); s. c.
210 U. S. 1, 51 L. ed. 331, 27 Sup.
Ct. 780 (1908).
But even where the obstruction
of line is by act of God, a carrier
who with knowledge of this accepts
goods without notifying the shipper
is liable. Nelson v. Gt. Northern
2
2 Western Union Telegraph Co. v.
Birge-Forbes Co., 29 Tex. Civ. App.
526, 69 S. W. 181 (1902); White W.
& K. v. Western Union Telegraph
Co., 14 Fed, 710 (1882) accord.
3 Western Union Telegraph Co. v.
Bierhans, 12 Ind. App. 17, 39 N. E.
881, 882 (1895); Fleischner v. Pa-
cific Postal Telegraph Cable Co.
(C. C.), 55 Fed. 738 (1893), accord.
[ 532 ]
SUSPENDING SERVICE
[ § 658
issues we think, when the appellees proved the delivery
of the message for transmission, and the failure to trans-
mit and deliver the same to sendee within the time re-
quired, the appellees had made a prima facie case against
appellant. If the latter could avoid liability under the
issues it must be because of something averred by way
of defense in the answer. Had the appellant proved that
it was prevented from transmitting the message on ac-
count of the storm, this would not be a complete defense,
according to the former holding in this case. The appel-
lant would also be required to show that the appellees had
notice of the fact that the appellant was thus prevented,
and left the message for transmission with knowledge of
the disturbing atmospheric conditions. All this is by
way of defense, and is part and parcel of the same."
§ 658. Normal conditions.
The usual variations in temperature, the usual range
of velocity in winds, the expected variations in precipita-
tion, the regular progression of seasonal changes—what-
ever interruption of service is due to these is not excused.
For the person professing the service should take proper
precautions to avoid interference with the regular course
of business by such conditions. This is true of all serv-
ices of which there is general profession. Dew upon
the tracks does not excuse a railroad; ¹ winds do not ex-
cuse a boatman, 2 cold weather does not excuse a gas com-
pany; and darkness does not excuse a ferryman to
put four examples. In this last case of the ferryman who
¹ Missouri, K. & T. Ry. Co. v.
Truskett, 2 Ind. T. 633, 53 S. W.
444 (1899); s. c. 44 C. C. A. 179,
104 Fed. 728; s. c. 186 U. S. 480,
46 L. ed. 1259, 22 Sup. Ct. 943
(1902).
1
4
2 Koretke v. Irwin & Co., 100 Ala.
323, 13 So. 943 (1893).
3 Indiana Natural & Ill. Gas. Co.
v. Anthony, 26 Ind. App. 307, 58
N. E. 868 (1900).
4 Quoted from Pate v. Henry, 5
Stew. & P. (Ala.) 101 (1833).
[ 533 ]
§ 659]
PUBLIC SERVICE CORPORATIONS
refused to put out when conditions did not suit him, these
distinctions were quaintly put: "The defendant dwells
upon the great hardship of requiring persons in this situa-
tion to expose themselves to the dangers attendant upon
the transportation of persons, etc., during excessive dark-
ness, the prevalence of high winds, or in the dead hour of
the night. To require this would be hard. But it cer-
tainly would be equally so to permit a ferryman to stop
a person traveling upon urgent business just at nightfall,
when there might be a moon shining rendering it almost
as light as it would be of a cloudy day, merely because
he chose to do so."
§ 659. Unavoidable accidents.
Loss caused by inevitable accident subjects no one in
public employment to liability; even the carrier of goods
is not liable in such a case.¹ By a parity of reasoning
such accidents, if they make service temporarily imprac-
ticable, might well justify a suspension of service. This
was said with discrimination in a Kentucky case 2 where
a railroad had failed to furnish freight cars promptly upon
request. "It seems to us as a railroad company is not
nor should be generally held to more than reasonable
diligence and care in furnishing cars for transportation
of freight, the wreck of a train whereby free movement
of cars is temporarily prevented, ought to be treated as
legal excuse for delay in having them under special agree-
ment at a particular time and place."
1 Goldey v. Pennsylvania R. R.
Co., 30 Pa. St. 242, 72 Am. Dec.
703 (1858). But if the carrier might
by any possibility have avoided the
catastrophe he is liable. Central of
Ga. R. R. Co. v. Hall, 124 Ga. 322,
52 S. E. 679 (1905).
2 Newport News, etc., Co. v.
Mercer & W., 96 Ky. 475, 29 S. W.
301 (1985).
See also Knight v. Quincy, O. &
K. C. R. R. Co., 120 Mo. App. 311
(1906).
[534]
SUSPENDING SERVICE
[ §§ 660, 661
Topic C. Insufficient Facilities
§ 660. When accommodations offered are exhausted.
It has also been seen that in certain services the pro-
fession to serve the public is limited to the premises
devoted to the public service. In such instances it is a
sufficient excuse that the accommodations offered are ex-
hausted. When the innkeeper's accommodation is ex-
hausted, he may refuse to receive an applicant as a guest.
If all his sleeping rooms are occupied, he need not admit
any more guests. The same is unquestionably true of
others who go no further in their profession of public em-
ployment than to devote their premises to public use.
Thus warehousemen, and wharfingers, to cite two ex-
amples, are certainly bound to serve the public to the
extent of their capacity; but it seems to be equally clear
that they have an excuse for refusing further service after
their capacity is exhausted.²
1
§ 661. Limitations upon the carrier's obligation.
3
According to the early cases also the carrier was only
bound to accept goods if he had room in his pack. And
this remains true of carriers of the earlier type, such as
carters, that they need not accept anything beyond the
capacity of their vehicle. So no demands may be made
upon carriers of special freight beyond their peculiar equip-
ment. And as it has recently been held steamship owners
have no obligation to take freight after their vessel is
5
¹ Browne v. Brandt, 1 K. B. 696,
71 L. J. K. B. 367, 86 L. T. 625,
50 W. R. 654 (1902). See also
State v. Steele, 106 N. C. 766, 11
S. E. 478, 19 Am. St. Rep. 573, 8
L. R. A. 516 (1890).
2 See § 269, supra.
3 Jackson v. Rogers, 2 Show, 327
(1683). See also In re Oxlade v.
N. E. Ry. Co., 15 C. B. (N. S.) 680
(1864).
* Tunnel v. Pettijohn, 2 Harr.
(Del.) 48 (1835). See also Fish v.
Chapman, 2 Ga. 349, 46 Am. Dec.
393 (1847).
5 Gillingham v. Ohio River Ry.
Co., 35 W. Va. 588, 14 S. E. 243, 29
Am. St. Rep. 827, 14 L. R. A. 798
(1891).
[ 535 ]
§ 662]
PUBLIC SERVICE CORPORATIONS
loaded to its capacity.¹ The explanation of these cases
seems to be that the profession made is originally limited
to the devotion simply of the original equipment to the
public. This was certainly the original common law be-
fore modern conditions were anticipated.
§ 662. Extended obligation of the railroads.
The great carriers of modern times profess a general
service independent of particular vehicles. The modern
railroad is bound to use due diligence to provide suffi-
cient cars to carry on its business, and in the ordinary
case it cannot excuse itself for failure to carry passengers
or goods merely by showing that it did not have vehicles
enough to transport them.2 This might result in allowing
the carrier to urge its own failure in its duty to provide
adequate facilities as an excuse. It is however true that
if cars are needed in which to load car loads of goods,
notice of that fact must be given to the carrier in advance.³
It cannot be expected to provide empty cars of every
sort at each station enough to meet an unexpected de-
mand; but if it is given reasonable notice of the need of
such a car he must supply the car. Default in these ob-
ligations subjects the carriers to an inexorable liability.5
S. S. Co. v. Pennsylvania R. R. Co.,
104 Md. 693, 65 Atl. 425 (1906).
1 Ocean S. S. Co. v. Savannah L.
W. & S. Co. (Ga.), 63 S. E. 577, 20
L. R. A. (N. S.) 867 (1909).
2 Kansas. See Kansas Pac. Ry.
Co. v. Nichols & Co., 9 Kan. 235,
72 Am. Rep. 494 (1872).
Missouri.-Tucker v. Pacific R.
R. Co., 50 Mo. 385 (1872).
North Carolina.-Hansley v.
Jamesville & W. R. R. Co., 117 N.
C. 565, 23 S. E. 443, 53 Am. St.
Rep. 600 (1895).
Texas.-Missouri Pacific Ry. Co.
v. Harris, 67 Tex. 166, (1886).
And see generally § 268.
3 Maryland.-Di Giorgio Imp. &
4
Illinois.-Chicago & A. R. R. Co.
v. Erickson, 91 Ill. 613 (1879).
And see generally § 801.
4 Maryland.-Baltimore & O. R.
R. Co. v. Whitehall, 104 Md. 295.
64 Atl. 1033 (1906).
Wisconsin.-Ayres v. Chicago &
Northwestern R. R. Co., 71 Wis.
372, 37 N. W. 432 (1888).
And see generally § 799.
5 Yazoo & Mississippi Valley R.
R. Co. v. Blum Co., 88 Miss. 180,
40 So. Rep. 748 (1906).
See also Louisville, N. O. & T.
[ 536 ]
SUSPENDING SERVICE
[§ 663
§ 663. Facilities unexpectedly become outgrown.
This duty it will be seen is relative, not absolute. Where
facilities are suddenly outgrown there is an excuse for
not having sufficient facilities in readiness to meet new
demands. The railroad is bound to provide only for such
a demand for carriage as it may reasonably foresee; it
cannot be required to be able at any time to care for an
extraordinary and unexpected demand for carriage.¹ The
unexpected demand rendering it impossible after its ve-
hicles are all in use to carry more goods or passengers,
will excuse it for refusing to receive additional goods or
passengers.2 Thus a rule of a street car company that
no passengers would be taken after the car had become
overcrowded is plainly reasonable.³ And where a train
has become dangerously overcrowded the conductor is
justified in ordering that the train shall be run without
Ry. Co. v. Patterson, 69 Miss. 421,
13 So. 697 (1891).
And see generally § 800.
¹ See generally §§ 798-802.
2 See particularly:
United States.-St. Louis, I. M. &
S. Ry. Co. v. Hampton, 162 Fed.
693 (1908).
Arkansas.-St. Louis, I. M. & S.
Ry. Co. v. Wynne H. & C. Co., 81
Ark. 373, 99 S. W. 375 (1907).
Georgia. Southern Ry. Co. v.
Atlanta Land & S. Co. (Ga.), 68
S. E. 807 (1910).
Indiana.-Chicago, St. L. & P.
R. R. Co. v. Wolcott, 141 Ind. 267,
39 N. E. 451, 50 Am. St. Rep. 320
(1894).
Kansas.-Udall Milling Co. v.
Atchison, T. & S. F. R. R. Co., 82
Kan. 256, 108 Pac. 137 (1910).
Kentucky.-Louisville & N. R. R.
Co. v. Queen City Coal Co., 99 Ky.
217, 35 S. W. 626 (1896).
Missouri.-Dawson v. Chicago &
A. R. R. Co., 79 Mo. 296 (1883).
Nebraska.-State v. Chicago, B.
& Q. R. R. Co., 71 Neb. 593, 99
N. W. 309 (1904).
New York.-Wibert v. New York
& E. R. R. Co., 12 N. Y. 245
(1855).
North Carolina.-Branch v. Wil-
mington & W. R. R. Co., 77 N. C.
347 (1877).
South Carolina.-Porcher V.
Northeastern R. R. Co., 14 Rich.
Law, 181 (1867).
Texas.-Wallace v. Pecos & N. T.
Ry. Co. (Tex. Civ. App.), 110 S. W.
162 (1908).
Wisconsin.-Ayres v. Chicago &
N. W. Ry. Co., 71 Wis. 372, 37
N. W. 432, 5 Am. St. Rep. 226
(1888).
3 Hanna v. Nassau Electric R. R.
Co., 18 N. Y. App. Div. 137, 45
N. Y. Supp. 437 (1897).
[ 537 ]
§ 664 ]
PUBLIC SERVICE CORPORATIONS
stopping according to schedule at a station where more
passengers are awaiting it.¹
§ 664. Normal fluctuations of business.
3
It follows from what has just been said that if the sud-
den press of business might have been provided against
by reasonable diligence there is no such excuse. For ex-
ample, a railroad company should provide more cars upon
its passenger trains if it should have been anticipated
that more passengers than usual would offer themselves
for transportation.2 And to apply the same rule to the
transportation of freight, the carrier performs his public
duty only if he provides for the normal fluctuation in the
offering of freight. The sufficiency of such accommoda-
tions must be determined by the number of passengers
and the amount of freight ordinarily transported on the
given line of road. The duty of a company to the public
in this respect is not peculiar to any season of the year,
or to any particular emergency that may arise in the course
of its business. The amount of business ordinarily done
by the road is the proper measure of its obligation to fur-
nish transportation. This requirement it must be pre-
pared to meet, and if by reason of a sudden and unusual
demand for stock or produce in the market, or from any
other cause there should be an unexpected influx of busi-
¹ Gordon v. Manchester & L. R.
R. Co., 52 N. H. 596, 13 Am. Rep.
97 (1873).
V.
2 New Hampshire.—Gordon
Manchester & L. R. R. Co., 52 N.
H. 596, 13 Am. Rep. 97 (1873).
North Carolina.-Purcell v. Rich-
mond & D. R. R. Co., 108 N. C. 414,
12 S. E. 954, 12 L. R. A. 113, and
note (1891).
V.
3 United States. Trumbull
Erickson, 97 Fed. 891, 38 C. C. A.
536 (1899); Atlantic C. L. Ry. Co.
v. Geraty, 166 Fed. 10, 91 C. C. A.
602 (1908).
Arkansas. St. Louis, I. M. & S.
Ry. Co. v. Wynne Hoop & C. Co.,
81 Ark. 373, 99 S. W. 375 (1907).
Illinois.—Illinois Central Ry. Co.
v. Cobb, C. & Co., 64 Ill. 128
(1872).
Indiana.-Chicago, St. L. & P.
R. R. Co. v. Wolcott, 141 Ind. 267,
39 N. E. 451 (1894).
Mississippi.-Yazoo & M. V. R.
R. Co. v. Blum Co., 88 Miss. 180,
[538]
SUSPENDING SERVICE
[ § 665
ness to the road, this obligation will be fully met by ship-
ping such stock or produce in the order of time in which
it is offered.
§ 665. Division of facilities among applicants.
As will be seen when the subject of facilities is reached,
it is not a complete disposition of the problem to say that
when the facilities available prove insufficient to meet
unexpected demands, the failure to handle all the busi-
ness offered is excused. The problem still remains-and
it is a difficult one-as to the basis upon which the avail-
able facilities shall be divided among the persons apply-
ing. When such an emergency happens, the carrier must
accept and carry things of a higher class before accepting
and carrying those of a lower class. In general, it may
be said that preference must be given to passengers. Live
stock must be preferred to dead freight. And among the
classes of dead freight, perishable goods must be accepted
and carried before nonperishable goods.¹ In regard to the
40 So. 748, 10 L. R. A. (N. S.) 432
(1906).
Missouri.-Ballentine v. North
Mo. R. R. Co., 40 Mo. 491, 93 Am.
Dec. 315 (1867), paraphrased above.
Nebraska.-State v. Chicago, B.
& Q. R. R. Co., 71 Neb. 593, 99 N.
W. 309 (1904).
New York.-Tierney v. New York
C. & H. R. R. Co., 76 N. Y. 305
(1879).
North Carolina.-Hansley V.
Jamesville & W. R. R. Co., 117
N. C. 565, 23 S. E. 443, 53 Am. St.
Rep. 600 (1895).
Porcher V.
South Carolina.
Northeastern R. R. Co., 14 Rich.
Law, 181 (1867).
Wisconsin.-Ayres v. Chicago &
Northwestern R. R. Co., 71 Wis.
372, 37 N. W. 432 (1888).
See generally §§ 798-802.
Upon similar principles a tele-
phone company must expand its
facilities to meet the increasing de-
mands upon its service. State ex
rel. v. Citizens' Telephone Co., 61
S. C. 83, 39 S. E. 257, 55 L. R. A.
139, 85 Am. St. Rep. 870 (1901).
But the telephone company has a
reasonable time granted it to pro-
vide additional facilities when the
growth in its business has been
larger than it ought fairly to be re-
quired to provide against. Cum-
berland Telephone & T. Co. v.
Kelly, 160 Fed. 316, 87 C. C. A. 268
(1908).
1 This matter is fully discussed
later: see §§ 837, 842, passim, citing
among other cases:
Georgia.-Southern Ry. Co. v.
[ 539 ]
§ 666] PUBLIC SERVICE CORPORATIONS
distribution of facilities for shipments of the same class
there has been much discussion of late. The earlier view
was that applicants should be served in rotation in order
of their application. But it seems to be agreed in recent
years that there should be a proration to stations first
in proportion to their usual business and at stations to
shippers in proportion to their average business.¹
Topic D. Human Obstacles
§ 666. Enemy forces.
Another immemorial excuse for failure in performance
Atlanta Sand & S. Co. (Ga.), 68
S. E. 80 (1910).
Illinois. Michigan C. R. R. Co.
v. Curtis, 80 Ill. 324 (1875).
Iowa.-Dixon v. Chicago, R. I. &
P. Ry. Co., 64 Ia. 531, 21 N. W. 17,
52 Am. Rep. 460 (1884).
Kentucky.-Louisville & N. Ry.
Co. v. Queen City Coal Co., 13 Ky.
Law Rep. 832 (1892).
New York.-Tierney v. New York
C. & H. R. R. R. Co., 76 N. Y. 305
(1879).
West Virginia.-McGraw v. Bal-
timore & O. R. R. Co., 18 W. Va.
361, 41 Am. Rep. 696 (1881).
England.-Briddon
V. Great
Northern Ry. Co., 28 L. J. Ex. 51
(1858).
1 This matter is fully discussed
later, see §§ 850-857, passim, citing
among other cases:
United States.-United States v.
Norfolk & W. Ry. Co., 109 Fed. 831
(1901); Harp v. Choctaw, O. & G.
Ry. Co., 118 Fed. 169 (1902);
United States v. West Virginia
Northern Ry. Co., 125 Fed. 252
(1903); United States v. Norfolk &
W. Ry. Co., 138 Fed. 849 (1905);
United States v. Norfolk & W. Ry.
Co., 143 Fed. 266, 74 C. C. A. 404
(1906); Baltimore & O. R. R. Co. v.
Pitcairn Coal Co., 215 U. S. 481, 30
S. Ct. Rep. 164 (1910).
Arkansas.—Choctaw, Oklahoma
& Gulf R. R. Co. v. State, 73 Ark.
373, 84 S. W. 502, 92 S. W. 26
(1904).
Indiana.-Chicago, St. L. & P.
R. R. Co. v. Wolcott, 141 Ind. 267,
39 N. E. 451, 50 Am. St. Rep. 320
(1894).
Massachusetts.-Swetland v. B.
& A. R. R. Co., 102 Mass. 276
(1869).
Minnesota.-Martin v. Gt. North-
ern Ry. Co., 110 Minn. 118, 124 N.
W. 825 (1910).
Missouri.-Ballentine v. North
Missouri R. R. Co., 40 Mo. 491, 93
Am. Dec. 315 (1867).
Nebraska.-State v. Chicago, B.
& Q. R. R. Co., 71 Neb. 593, 99
N. W. 309 (1904).
New York. Strough v. N. Y. C.
& H. R. R. R. Co., 92 App. Div.
584, 87 N. Y. Supp. 30 (1904).
Wisconsin.-Ayres v. Chicago &
Northwestern Ry. Co., 71 Wis. 372,
37 N. W. 432, 5 Am. St. Rep. 226
(1888).
[540]
SUSPENDING SERVICE
[ § 667
by one in public employment is the interference of the
King's enemies. In so far as public service is interrupted
by enemy forces or service rendered dangerous by enemy
forces there is plain justification ¹ for suspension of serv-
ice. Not only does the interference of the public enemy
excuse default in service already begun but it justifies
a refusal to engage in a service in which the risk is immi-
nent. One may refuse to undertake a service which will
lead him into the enemy's lines or subject him to the dan-
gers of capture.2 Because he would be excused if the
worst should happen is no reason why he should be called
upon to take the risk.
§ 667. Domestic violence.
It would seem that abstractly the problem is the same
whether it is a case of collision with a foreign power or
the suppression of domestic violence. However when
it is a question of excusing a carrier from whom the goods
have been taken or in whose hands the goods have been
destroyed from his liability as an insurer, the excuse is
limited to acts of a public enemy, mere domestic violence
furnishing no excuse. According to the traditional law
3
¹ Georgia.-Wallace v. Landers,
42 Ga. 486 (1871), s. c., 50 Ga.
134 (1872).
Kentucky.-Bland v. Adams Ex-
press Co., 1 Duval, 232, 85 Am.
Dec. 623 (1864).
New Mexico.-Seligman
Armijo, 1 N. Mex. 459 (1870).
V.
V.
North Carolina.-Patterson
No. Carolina R. R. Co., 64 N. C.
147 (1870).
Rhode Island.-Hubbard & Co. v.
Harnden Express Co., 10 R. I. 244
(1872).
Tennessee.-Southern Express Co.
v. Womack, 1 Heisk. 256 (1870).
2 Illinois Central R. R. Co. v.
Hornberger, 77 Ill. 457 (1875);
Phelps v. Illinois Central R. R. Co.,
94 Ill. 548 (1880).
See generally § 980, infra.
But if the railroad continues to
accept freight with knowledge of its
situation and without notifying the
shipper it may not urge this ex-
cuse for delay. Illinois Central R.
R. Co. v. Ashmead, 58 Ill. 487
(1871); Illinois Central R. R. Co.
v. Cobb, Christy & Co., 64 Ill. 128
(1872).
3 United States. Sherman V.
Pennsylvania R. R. Co., Fed. Cas.
No. 12,769, 8 Wkly. Notes Cas.
(Pa.) 269 (1880).
[ 541 ]
§ 668]
PUBLIC SERVICE CORPORATIONS
if a carrier be robbed by a hundred men he is never the
more excused.¹ But where it is a question of a refusal
to accept goods or of a delay in performing their trans-
portation, it is as good an excuse that rioters have inter-
rupted service or made it dangerous as that enemies have
done it. But it seems according to certain authorities
at least that the carrier must judge at his peril as to the
reality of the necessity of suspending service.³
2
§ 668. Refusal to receive because of strike.
Since the carrier undertakes to carry, and to provide
vehicles and servants for that purpose, he is bound to do
so; and he is therefore remiss in the performance of his
undertaking if for any reason he fails to provide sufficient
equipment. The fact that he is prevented from doing
so by a strike of his employés is, therefore, no defense
to him. The most important case upon the question is
probably People v. New York Central & H. R. Railroad
Co., where a mandamus was granted against a railroad
4
Arkansas.-Missouri Pacific Ry.
Co. v. Nevill, 60 Ark. 375, 30 S. W.
425, 28 L. R. A. 80 (1895).
Pennsylvania.—Lang v. Pennsyl-
vania R. R. Co., 154 Pa. 342, 26
Atl. 370, 20 L. R. A. 360, 35 Am. St.
Rep. 846 (1893).
Texas.—Gulf, C. & S. F. Ry. Co.
v. Levi, 76 Tex. 337, 13 S. W. 191,
8 L. R. A. 323 (1889).
See generally § 981, infra.
¹ See Mors v. Slue, 1 Mod. 85
(1671), and Edwards v. Sherratt, 1
East. 604 (1801).
2 Kentucky.-Louisville & N. R.
R. Co. v. Bell, 13 Ky. L. Rep. 393
(1891).
Illinois.—Indianapolis & St.
Louis R. R. Co. v. Juntgen, 10 Ill.
App. 295 (1881). See also Pitts-
burg, C., C. & St. L. Ry. Co. v.
Chicago, 242 Ill. 178, 89 N. E. 1022
(1909).
Minnesota.-See Fewings v. Men-
denhall, 83 Minn. 237, 86 N. W. 96,
55 L. R. A. 713. See also s. c., 88
Minn. 336, 93 N. W. 127, 97 Am.
St. Rep. 519, 60 L. R. A. 601 (1903).
New York.-Geismer V. Lake
Shore & M. S. Ry. Co., 102 N. Y.
563, 7 N. E. 828, 55 Am. Rep. 837
(1886).
Pennsylvania.-Hall v. Pennsyl-
vania R. R. Co., 14 Phila. 414
(1880).
3 Railroad Co. v. O'Donnell, 49
Ohio St. 489, 32 N. E. 476, 34 Am.
St. Rep. 579 (1892).
428 Hun (N. Y.), 543 (1883).
See also Blackstock v. New York
[ 542]
SUSPENDING SERVICE
[ § 669
which had partially suspended its business temporarily
because of a strike for higher wages. In the course of an
elaborate opinion upon public service in general Mr. Jus-
tice Davis said: "These facts reduce the question to this:
can railroad corporations refuse or neglect to perform
their public duties upon a controversy with their em-
ployés over the cost or expense of doing them? We think
this question admits of but one answer. The excuse has
in law no validity. The duties imposed must be discharged
at whatever cost. They cannot be laid down or aban-
doned or suspended without the legally-expressed consent
of the State. The trusts are active, potential, and im-
perative and must be executed until lawfully surrendered,
otherwise a public highway of great utility is closed or
obstructed without any process recognized by law."1
§ 669. Refusal to receive because of violent strike.
When, however, the carrier has provided sufficient
vehicles and servants to carry, and is prevented from
proceeding by the violence of a mob over which he has
no control, he is excused from his duties with respect to
& E. R. R. Co., 20 N. Y. 48, 75 Am.
Dec. 372 (1859), to the same effect.
1 The general rule in all public
services seems to be that a mere
strike of its own employés fur-
nishes no excuse for discontinuance
of service "for even one hour."
Georgia.-Central R. R. & Bank-
ing Co. v. Georgia Fruit & V. Ex-
change, 91 Ga. 389, 17 S. E. 904
(1893).
Illinois. Pittsburg, Ft. Wayne
& C. R. R. Co. v. Hazen, 84 Ill. 36,
25 Am. Rep. 422 (1876).
Indiana.-Bartlett, v. Pittsburg,
C. & St. L. Ry. Co., 94 Ind. 281
(1883).
New York.-Loader v. Brooklyn
Heights R. R. Co., 35 N. Y. Supp.
996, 14 N. Y. Misc. 208 (1895).
Texas.-International & G. N.
Ry. Co. v. Tisdale, 74 Tex. 8, 11 S.
W. 900, 4 L. R. A. 545 (1889). Mis-
souri Pac. Ry. Co. v. Levi (Tex.),
14 S. W. 1062 (1889).
But see Murphey Hardware Co.
v. Southern Ry. Co., 150 N. C. 703,
64 S. E. 873, 22 L. R. A. (N. S.)
1200 (1909), holding that a ma-
chinists' strike which has got be-
yond the railroad's control may be
an excuse for not serving promptly.
Mere proof that there is a strike
upon the defendant's road is no
excuse for failing to furnish cars as
it may be a "slight affair"; but one
[ 543 ]
§ 670 ]
PUBLIC SERVICE CORPORATIONS
transportation.¹ Thus in Lake Shore and Michigan South-
ern Railway Company v. Bennett,2 the suit was brought
by the shipper against the carrier for damages to live
stock, caused by delay in transportation beyond the regu-
lar time. It was shown that a violent strike was in prog-
ress throughout the system, and that mobs held up the
traffic, delaying the movement of freights. The violence
could not be held in check by the public authorities. The
court, therefore, held the carrier excused. On petition
for rehearing, Hammon, J., said: "The appellee's loss
resulted from causes over which the appellant had no
control, and against which no care or prudence could have
provided; and the special findings show that the appellee's
property had all the care and attention that, under the
circumstances, an ordinarily careful man would have
bestowed upon his own property."
§ 670. Situation when sympathetic strike.
Even when a railroad is faced by a sympathetic strike,
of such magnitude as to tie up the
whole system would be. Southern
Ry. Co. v. Atlanta Sand & S. Co.
(Ga.), 68 S. E. 807 (1910).
1 Kentucky.-Louisville & N. R.
R. Co. v. Bell, 13 Ky. L. Rep. 393
(1891).
Illinois. Indianapolis & St.
Louis R. R. Co. v. Juntgen, 10 Ill.
App. 295 (1881).
Indiana.-Pittsburgh, C. & St.
L. R. R. Co. v. Hollowell, 65 Ind.
188, 32 Am. Rep. 63 (1879).
Minnesota.-See Fewings v. Men-
denhall, 83 Minn. 237, 86 N. W.
96, 55 L. R. A. 713 (1901). See
also s. c., 88 Minn. 336, 93 N. W.
127, 97 Am. St. Rep. 519, 60 L. R.
A. 601 (1903).
Montana.-State ex rel. v. Great
Northern Ry. Co., 14 Mont. 381, 36
Pac. 458 (1894).
V. Lake
New York.-Geismer
Shore & M. S. Ry. Co., 102 N. Y.
563, 7 N. E. 828, 55 Am. Rep. 837
(1886).
Pennsylvania.—Hall v. Pennsyl-
vania R. R. Co., 14 Phila. 414
(1880).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Levi, 76 Tex. 337, 13 S. W. 191, 8
L. R. A. 323, 18 Am. St. Rep. 45
(1890).
2 89 Ind. 457 (1883).
See also:
Mississippi.—Kansas City, M. &
B. R. R. Co. v. Spencer, 72 Miss.
491, 17 So. 168 (1894).
New York. Steiger v. Erie Ry.
Co., 5 Hun, 345 (1875).
[544]
SUSPENDING SERVICE
[ § 671
if it should call upon its employés to move the cars ten-
dered by a railroad against which a boycott has been de-
clared, it cannot refuse to accept such freight.¹ As Mr.
Justice Graham said in granting a mandatory injunction
in such a case: 2 "No temporary inconveniences to the de-
fendant company or the public which it serves are in
my judgment, for one moment to be compared with the
fatal consequences which must ensue from a precedent
by which it would be established that a railway company
may in violation of the law of the land refuse to receive
and have the cars of a connecting line at the command
of any irresponsible persons, or from its own belief and
apprehension that its employés will leave its service and
stop the operation of its lines. Such an excuse as this is
wholly inadmissible and must be set aside."
§ 671. How employés of the carriers are affected.
In the present state of the law, it may be seen that
those that conduct a public service are at a great disad-
vantage in dealing with their employés. If the law be
left that the employers are under a duty to serve every
instant even if the employés quit work without notice,
grave injustice may result. But if the law would go fur-
ther and enforce some duty upon the employés in the
premises, this impartial attitude would preserve the equi-
librium. And, indeed, it is no more difficult to declare
that employés must complete their term of service in
a reasonable way than it is to compel the employers to
continue to provide adequate service. Nor is it more
harsh to apply the coercive processes of the courts to en-
¹ Central Railroad & Banking Co.
v. Georgia F. & V. Exchange, 91 Ga.
389, 17 S. E. 904 (1893). See also
Murphey Hardware Co. v. South-
ern Ry. Co., 150 N. C. 703, 64 S. E.
873, 22 L. R. A. (N. S.) 1200 (1909).
2
Chicago, B. & Q. Ry. Co. v.
Burlington, C. R. & N. Ry. Co., 34
Fed. 481 (1888). The same doctrine
is expressed in Toledo A. A. & N.
M. Ry. Co. v. Pennsylvania Ry.
Co., 54 Fed. 746 (1893).
35
[ 545]
8 671 1
PUBLIC SERVICE CORPORATIONS
1
force those obligations in one case than in the other.¹
This view of the matter is suggested by Toledo, Ann Arbor
and North Michigan Railway v. Pennsylvania Railway.2
2 54 Fed. 746 (1893).
¹ See Thomas v. Cincinnati, N. O.
& T. P. Ry. Co., 62 Fed. 803 (1894).
f
[ 546 ]
CHAPTER XX
PROMOTION OF ITS BUSINESS INTERESTS
§ 680. Business policies inconsistent with public employment.
Topic A. Unfair Competition
§ 681. Exclusive custom cannot be demanded.
682. Partial service already rendered by rival carrier.
683. Telephone companies cannot forbid rival installation.
684. Exclusive regulations by the associated press.
685. Status of exclusive contracts.
686. Refusal to take another's customers.
Topic B. Contracts Opposed to Public Service
§ 687. Contract not to deal with other applicants.
688. Special contract for priority.
689. Contract to exclude others from simultaneous service.
690. Exclusive contracts with an intermediate service.
691. Effect of restrictive covenants in conveyances.
692. Contract limitations upon licensees.
693. Contract for division of territory.
694. Pooling agreements usually void.
Topic C. Refusal of the Demands of a Rival
§ 695. Shipments made by a rival.
696. No obligation to carry packed parcels.
697. Competitor must be taken as a passenger.
698. Railroad not compelled to give running rights.
699. Obligation to give trackage.
700. Connections with another telephone system.
701. Utilization of the waterworks of another.
702. Gas works not bound to supply rivals.
Topic D. Promotion of a Collateral BusinessE
§ 703. Right to engage in a collateral business.
704. Telephone company favoring its messenger service.
705. Municipality promoting its water service.
706. Electric company favoring its wiring department.
707. Railroad cutting its own rates for itself.
[ 547]
§§ 680, 681] PUBLIC SERVICE CORPORATIONS
§ 708. Grain elevators storing their own grain.
709. Constitutionality of statutory prohibition.
710. Argument for radical law.
§ 680. Business policies inconsistent with public em-
ployment.
New conditions seem to us often to create new laws,
however much we may be told that nothing more is hap-
pening than an orderly evolution by the application of
existing rules to present circumstances. In the case of
the public service companies, the increase in their power
has led to such development in the law as to work an
apparant revolution for which many people were not
prepared. We have been so used to the many liberties
permitted those who carry on a private business that it
has not been seen how fundamentally different are the
limitations upon public calling. Those who conduct a
private business may adopt such policies as will produce
the greatest profits; but those who profess a public em-
ployment must not do anything inconsistent with their
public duty. Accordingly, many policies for getting pa-
trons away from others or protecting an established cus-
tom from competition which are legal enough in private
business must be held illegal in public business.
Topic A. Unfair Competition
$681. Exclusive custom cannot be demanded.
From a business standpoint it may be an effective policy
at times to refuse to have any dealings with a customer
who persists in patronizing a rival also. But in the case of
public services such a policy would seem to be in the face
of the public duty to serve all that apply. For example,
a railroad must take the freight of all who tender it prop-
erly, regardless of whether the shipper at times employs
another carrier to get his goods to market. In one lead-
[ 548 ]
BUSINESS INTERESTS
[ § 682
ing case, Chicago and Alton Railroad Company v. Suf-
fern,¹ it appeared that defendants having connection with
a switch to plaintiff's mine, disconnected it and refused
to supply cars and receive coal from plaintiff, because he
allowed another road to connect with the switch. The
Illinois court held that mandamus would issue to compel
the connection, saying in effect that a railroad cannot
refuse to receive coal over its road because shippers send
over another road also. Such a company it was said must
carry all freight offered, if legal charges are paid. Since
fair competition between roads is for public interest, if
a road could do so it would establish the most odious sort
of monopoly.2
§ 682. Partial service already rendered by rival.
It will sometimes be found that a carrier is refusing
to complete a service for an applicant who has already
received a part of the service desired from a rival. Where
the applicant is demanding no more than any other mem-
ber of the public might demand, refusal of the request
cannot be justified upon any such ground as that the
enforcement of this policy may result in the getting the
whole of the business for the carrier. In one of the lead-
ing cases in the law of passenger carriers, Bennett v. Dut-
¹ 129 Ill. 274, 21 N. E. 824 (1889).
2 Now that the law against dis-
crimination has been developed it
is seen that there can be no legal
justification for a carrier who makes
lower rates to particular shippers in
order to get them away from a rival
carrier. See especially Wright v.
United States, 167 U. S. 512, 42 L.
ed. 258, 17 Sup. Ct. 822 (1897);
Menacho v. Ward, 27 Fed. 529
(1886); Brundred v. Rice, 49 Ohio
St. 640, 32 N. E. 169, 34 Am. St.
Rep. 589 (1892); Fitzgerald v.
Grand Trunk R. R. Co., 63 Vt. 169,
22 Atl. 76, 13 L. R. A. 70 (1890).
But before there was any princi-
ple against discrimination a differ-
ence in rates might be made for this
as well as for any other rational
reason. See especially Lough v.
Outerbridge, 143 N. Y. 271, 38 N.
E. 292, 25 L. R. A. 674, 42 Am. St.
Rep. 712 (1894); Ragan & B. v.
Aiken, 9 Lea, 609, 42 Am. Rep. 684
(1882).
[549]
§ 682]
PUBLIC SERVICE CORPORATIONS
ton,¹ it appeared that a through line of coaches which
ran from A to C through B, was refusing to take into its
coaches at B for transportation to C, passengers who had
come up from A to B on the same day by a rival line which
ran only from A to B. The court held this to be a plain
violation of public duty; but it conceded that seats might
be held in the second coach for through passengers. On
the other hand, in order to further its business interests
in this respect a carrier may refuse to do anything for
applicants who have received partial service from a rival
which it is not plainly its public duty to do. Thus a trans-
portation line may accept goods without requiring pre-
payment from one connection with which it is associated
and demand prepayment from a rival connection; and
more plainly still, it may as a favor to an affiliated con-
nection advance to it the charges already incurred while
refusing to do this for the rival.2
1 10 N. H. 481 (1839).
So a carrier of freight cannot
make a higher charge against goods
which do not come to the connect-
ing point by the line with which it is
associated. Samuels v. Louisville &
N. Ry. Co., 31 Fed. 57 (1887). See
also Missouri, K. & T. Ry. Co. v.
New Era Milling Co. (Kan.), 100
Pac. 273 (1909).
As the law of discrimination is
now developed it is held that a
lower rate cannot be made for tak-
ing goods from B to C which came
from A whence a competitive line
to Cran. Bigbee & W. R. P. Co. v.
Mobile & O. R. R. Co., 60 Fed. 545
(1893). See also Alabama, etc.,
Ry. Co. v. Railroad Commission, 86
Miss. 667 (1908).
2 Baltimore & O. R. R. Co. v.
Adams Exp. Co., 22 Fed. 32 (1884);
Little Rock & M. Ry. Co. v. St.
Louis, I. M. & S. Ry. Co., 59 Fed.
400 (1894); Oregon S. L. & U. N.
Ry. Co. v. Northern Pacific R. R.
Co., 61 Fed. 158, 9 C. C. A. 409
(1984); Little Rock & M. R. Co. v.
St. Louis S. W. Ry. Co., 63 Fed.
775, 11 C. C. A. 417 (1894); Gulf,
C. & S. F. Ry. Co. v. Miami S. S.
Co., 86 Fed. 407, 30 C. C. A. 142
(1898); Southern Indiana Exp. Co.
v. United States Exp. Co., 92 Fed.
1022, 35 C. C. A. 172 (1899).
It is otherwise provided by stat-
ute in some States now; and stat-
utes are held to be so in furtherance
of the highest development of the
law calling for the utmost im-
partiality in public service as to be
constitutional. American Exp. Co.
v. Southern Indiana Exp. Co., 167
Ind. 292, 78 N. E. 1021 (1906).
[ 550 ]
BUSINESS INTERESTS
[ §§ 683, 684
§ 683. Telephone companies cannot forbid rival instal-
lation.
The general principle now under examination that a
public service company must serve all who apply whether
they are dealing with a rival or not, is well illustrated in
the recent case of State ex rel. Gwynn v. Citizens' Tele-
phone Company ¹ the facts of which sufficiently appear
in this significant passage from the opinion of Chief Jus-
tice McIver. "It seems to us that the respondent, after
offering to the public its telephone system for the trans-
mission 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." 2
§ 684. Exclusive regulations by the Associated Press.
In one of the leading cases 3 in public service law in
recent times action was brought by a newspaper company
against the Associated Press for threatening to cut off
the news service which the newspaper company was re-
ceiving under a contract providing that the newspaper
company would not deal with any other association whose
news service the Associated Press should decide to be
antagonistic. The plaintiff having taken news from a
rival news bureau upon the list of those declared antag-
161 S. C. 83, 39 S. E. 257, 55 L.
R. A. 139, 85 Am. St. Rep. 870
(1901).
2 See also Gwynn v. Citizens'
Telephone Co., 69 S. C. 434, 48 S. E.
460, 67 L. R. A. 111 (1904), holding
the contract which the subscriber
was forced to enter into void as
contrary to public policy.
3 Inter-Ocean Publishing Co. v.
Associated Press, 184 Ill. 438, 56
N. E. 822, 48 L. R. A. 568, 75 Am.
St. Rep. 184 (1900).
[ 551 ]
§ 685]
PUBLIC SERVICE CORPORATIONS
onistic was refused further service by the Associated Press.
The court decided that the complaint of the newspaper
owners should not have been dismissed. Justice Phillips
having decided that the business was public in character,
not private as had been contended, proceeded to apply the
peculiar law of public service to the situation in hand,
"The character of appellee's business is not to be deter-
mined by the contract which it made respecting the li-
abilities which would attend it but by the nature of the
business, its fixed legal character growing out of the man-
ner in which that business is conducted, and the purpose
of its creation. The legal character of the corporation
and its duties cannot be disregarded because of any stipu-
lation incorporated in a contract that it should not be
liable to discharge a public duty. Its obligation to serve
the public is not one resting on contract, but grows out
of the fact that it is in the discharge of a public duty, or a
private duty which has been so conducted that a public
interest has attached thereto." 1
§ 685. Status of exclusive contracts.
Exclusive contracts cannot be imposed upon applicants
against their will, nor always enforced against them if they
have entered into them. This is certainly true when the
exclusive feature might deprive the contracting party of
necessary service which the original company cannot ade-
quately furnish him. Thus in a Minnesota case ² it was
held that a covenant by a quarryman that his freight
shall go exclusively by one railroad does not run with
the land to a purchaser of the quarry, even against one
who has notice thereof. In the South Carolina case 3 al-
¹ State v. Associated Press, 159
Mo. 410, 60 S. W. 91, 81 Am. St.
Rep. 368 (1900), is contra on the
ground that the business was not
public in character.
2
2 Kettle River R. R. Co. v. East-
ern Ry. Co. of Minn., 41 Minn. 461,
43 N. W. 469, 6 L. R. A. 111
(1889).
3 Gwynn v. Citizens' Telephone
[552]
BUSINESS INTERESTS
[ § 685
1
ready discussed in this chapter service was refused a cus-
tomer who had subscribed to a rival telephone in breach
of his exclusive contract with the original company. But
the court finally held the contract against public policy,
and the customer not liable therefore for its breach. It
is therefore idle for a public service company to attempt
to ward off approaching competition by making it ad-
vantageous for its patrons to enter into exclusive con-
tracts for terms of years. But in Indiana lately ¹ a con-
tract by a consumer of electricity to take all the current
he might use from the company with which he was con-
tracting for a reduced rate given him was assumed to be
valid. And in a Pennsylvania case a contract under which
a mine was developed with the aid of the railroad with
a provision in the contract that all its freight should go
out by that railroad, was held not to be against public
policy. Perhaps these last cases can be reconciled with
those which were first stated by saying that in these cases
the customer is offered all the service that he can possibly
need by the original company with which he has con-
tracted, while in the cases discussed previously in this
paragraph the original company did not furnish a sub-
stitute for the other service desired.
2
Co., 69 S. C. 434, 48 S. E. 460, 67
L. R. A. 111 (1904).
¹ Beck v. Indianapolis L. & P.
Co., 36 Ind. App. 600, 76 N. E. 312
(1905).
2 Bald Eagle Valley Ry. Co. v.
Nittany Valley Ry. Co., 171 Pa.
284, 33 Atl. 239, 29 L. R. A. 423, 50
Am. St. Rep. 807 (1895).
Certainly in the modern view as
to the extent of public duty it is
held to be no legal justification for
making a lower rate to a particular
customer that he has agreed to give
all his business to the company
granting the reduction. See par-
ticularly Menacho v. Ward, 27 Fed.
529 (1886); Louisville, E. & St. L.
C. R. R. Co. v. Wilson, 132 Ind.
517, 32 N. E. 311, 18 L. R. A. 105
(1892).
But formerly when there was no
principle against discrimination as
such, reductions could be made to
get exclusive contracts. See Lough
v. Outerbridge, 143 N. Y. 271, 38
N. E. 292, 25 L. R. A. 674, 42 Am.
St. Rep. 712 (1894); Fitchburg R. R.
Co. v. Gage, 12 Gray (Mass.), 393
(1859).
[ 553 ]
§ 686]
PUBLIC SERVICE CORPORATIONS
§ 686. Refusal to take another's customers.
1
Sometimes a contract will be found between two or
more public service companies operating within the same
district, that one will not take on applicants who are being
served by another. As this is in defiance of their public
duty to the community they serve, it would seem to be
altogether bad. Indeed the Supreme Court of Indiana
felt in one case that such an agreement between gas com-
panies ¹ was so outrageous as to constitute ground for
forfeiture of its charter. "By the agreement in question,
when carried into effect, the patrons of one company were
excluded from being supplied with gas from the other
company. Each company was, by the terms of the agree-
ment, bound to abide by and maintain the prices fixed,
and each was prohibited from furnishing gas to the cus-
tomers of the other. That the people of that city who
desired to become consumers of gas were, by the agree-
ment in question, deprived of the benefits that might
result to them from competition between the two com-
panies certainly cannot be successfully denied. The ex-
clusion of competition, under the agreement, redounded
solely to the benefit of appellee and the other company,
and the enforcement of the compact between them could
be nothing less than detrimental to the public. By unit-
ing in this agreement appellee disabled, or at least pro-
fessed to have disabled, itself from the performance of
its implied duties to furnish gas impartially to all, and
thereby made public accommodations subservient to its
own private interests.”2
¹ State ex rel. v. Portland Natu-
ral Gas and Oil Co., 153 Ind.
483, 489, 53 N. E. 1089, 53 L. R.
A. 413, 74 Am. St. Rep. 314
(1899).
2 Citing among other cases:
United States.-Gibbs v. Con-
solidated Gas Co., 130 U. S. 396,
9 S. Ct. 553, 32 L. ed. 979 (1888).
Illinois. People ex rel. v. Chi-
cago Gas Trust Co., 130 Ill. 268, 22
N. E. 798, 17 Am. St. Rep. 319
(1889).
Indiana.-Portland Natural Gas
[ 554 ]
BUSINESS INTERESTS
[ § 687
Topic B. Contracts Opposed to Public Service
§ 687. Contract not to deal with other applicants.
It is plain at all events that no engagement which one
committed to public service may have made can be urged
by him as an excuse for not being ready to perform the
usual obligations of his employment which are imposed
upon him by positive law. A striking instance of this
general problem is where the applicant is refused service
on the ground that the company had previously entered
into a contract with a former applicant not to serve him.
In a late case;¹ Sammons v. Kearney Power & Irrigation
Company, a contract made by a reservoir company with
one taker of water for power to run its electrical machinery
providing that it would not furnish any other applicant
with water to be used to generate electricity was held in-
valid. In the elaborate opinion covering the whole mat-
ter as to the public services in general,² Commissioner
Albert said: "In the case at bar we are dealing with
an irrigation company—a quasi-public corporation. It is
also a governmental agency, but its main purpose is the
administration of a public utility. To the extent of its
capacity it is bound to furnish water from its canal to
persons desiring to use it on equal terms and without
discrimination. In this respect it stands on the same
footing as a railroad company. Neither has the right
& O. Co. v. State, 135 Ind. 54, 34
N. E. 818, 21 L. R. A. 639 (1893).
1 77 Neb. 580, 110 N. W. 308, 312
(1906).
2 Citing particularly State V.
Hartford & N. H. R. R. Co., 29
Conn. 538 (1861); Chicago Gaslight
Co. v. People's Gaslight Co., 121
Ill. 530, 13 N. E. 169, 2 Am. St. Rep.
124 (1887); and West Virginia
Transp. Co. v. Ohio River Pipe
Line Co., 22 W. Va. 600, 46 Am.
Rep. 527 (1883).
See to the same effect Cumber-
land Telephone & Telegraph Co. v.
Morgan's L. & T. R. R. Co., 51 La.
Ann. 29, 24 So. 803, 72 Am. St.
Rep. 442 (1889), contract not to
give a rival telegraph company the
transportation service which had
been given the contracting com-
pany held void.
[555]
§§ 688, 689] PUBLIC SERVICE CORPORATIONS
or the power to place itself in a position where it cannot
serve every person on equal terms with every other person.
Neither has the right or power to bind itself by a contract
which, if enforced, would render it unable to serve the
public on those terms or to carry out its main purpose.
§ 688. Special contract for priority.
Upon the same principles a contract between a public
service company and one of its customers to give him
service in priority to others is against public policy. Thus
a clause in a contract between a telegraph company and
a railroad company in which the railroad business was
given precedence was held no excuse for a default to a
private customer. "It cannot subtract itself from obe-
dience to the rates prescribed by the authority of the
State acting through the Commission by a contract giv-
ing one customer the railroad preference in business and
pleading that such business occupies the only wire it
has." ¹ In another case of the same sort it has been held
that a natural gas company cannot make contracts with
an earlier consumer to supply him with all the gas he may
need and urge this contract as an excuse for failing to
give a sufficient supply to later customers.²
§ 689. Contract to exclude others from simultaneous
service.
Where service is being rendered upon a private basis
a special arrangement may be made; but where the serv-
ice is upon a public basis a contract not to give to others
1 Leavell v. Western Union Tele-
graph Co., 116 N. C. 211, 21 S. E.
391, 27 L. R. A. 843, 47 Am. St.
Rep. 798 (1895).
See also Western Union Tele-
graph Co. v. Rosentreter, 80 Tex.
406, 16 S. W. 25 (1891), accord.
2 Fairchance Window Glass Co.
v. Star Gas Co. (Pa. Co. Ct.), 66
Legal Intelligencer, 544 (1909).
But the surplus above all public
service requirements may be sold
to one taker exclusively. Cone-
maugh Gas Co. v. Jackson Farm
Gas Co., 186 Pa. St. 443, 40 Atl.
1000, 65 Am. St. Rep. 865 (1898).
[ 556 ]
BUSINESS INTERESTS
[ § 690
the same service at the same time is void. The Tennessee
court pointed this out plainly in a recent case where one
newspaper company got the railroad company to agree
not to take other newspapers upon the early train.¹ The
opinion of Chief Justice Beard in holding that this ex-
clusive arrangement was inconsistent with public duty
is a very striking argument. He said: "It would hardly
be contended that a railroad by making a special and
exclusive contract to transport shoes manufactured by one
party in a community, could strip itself of its common-
law character, and decline, without any reason save
the existence of said contract, to transport boxes of shoes
for another manufacturer in the same community. If
this be so, where is the controlling difference between
such a case and the one now before us?” 2
§ 690. Exclusive contracts with an intermediate service.
Arrangements may sometimes be found between a
principal service company for selling a supply to an inter-
mediate company for resale to consumers accompanied
by an agreement not to engage in direct service within
the sphere of the intermediate service in competition with
it. How far such arrangements may be made depends
upon whether they conflict with public duty. If the ter-
ritory covered by the intermediate service is included
within the district which the company is bound to serve
such an arrangement could not, it seems, excuse an ap-
plication for direct service. But if the seller has not as
¹ Memphis News Publishing Co.,
v. Southern Ry. Co., 110 Tenn. 684
75 S. W. 941, 63 L. R. A. 150 (1903).
2 See also Youghiogheny & 0.
Coal Co. v. Erie Ry Co., 24 Ohio
Cir. Ct. 289 (1902), where it was
held that the owners of a coal con-
veyor could not give exclusive right
to utilize it to one concern.
3
3 Note the arrangements made
in:
Nebraska.-American Water
Works Co. v. State, 46 Neb. 194,
64 N. W. 711, 50 Am. St. Rep. 610
(1895).
Oregon.-Hangen v. Abina Light
& W. Co., 21 Oreg. 411, 28 Pac. 244,
14 L. R. A. 424 (1891).
[ 557 ]
§ 691 ]
PUBLIC SERVICE CORPORATIONS
yet committed itself to the service of that territory it
may it seems, refuse to go into the district with direct
service.¹ As for contracts between a principal service
and a subordinate service whereby the principal service
delegates to one concern the exclusive privilege of per-
forming the service required of it, there are, as has been
seen in a previous chapter, two opinions. Thus the cases
are divided as regards the right of a railroad to agree with
an express company that it shall have the exclusive right
to do that business over the route free from any competi-
tion, even that of the railroad itself. There are cases
which hold that such an exclusive contract is not opposed
to public duty.2 But there are perhaps as many courts
which feel that such arrangements are contrary to public
duty.3
§ 691. Effect of restrictive covenants in conveyances.
It is a safe principle to go by that no arrangement will
be enforced by the courts whereby public service is ham-
pered, even if such arrangements are generally supported
where private business is involved. A striking example
of this was a case where a clause in a conveyance between
a farmer and a pipe line company providing that no simi-
lar service should be permitted within the tract covered
was held void. In the latest case 5 in the grant of a right
of way through his land to one gas company the grantor
covenanted that no other should pass through his lands.
4
¹ Note the arrangements made in:
Georgia.-Milledgeville Water Co.
v. Edwards, 121 Ga. 555, 49 S. E.
621 (1904).
Missouri.-Mulrooney v. Obear,
171 Mo. 613, 71 S. W. 1019 (1903).
2 See the Express Cases, 117 U. S.
1, 29 L. ed. 791, 6 Sup. Ct. 542, 628
(1886), and cases cited in the dis-
cussion in § 515, supra.
3 See McDuffee v. Portland &
Rochester R. R. Co., 52 N. H. 430,
13 Am. Rep. 72 (1873), and cases
cited in the discussion in § 516,
supra.
¹ West Virginia Transportation
Co. v. Ohio River Pipe Line Co., 22
W. Va. 600, 46 Am. Rep. 527 (1883).
5 Calor O. & G. Co. v. Franzell,
128 Ky. 715, 109 S. W. 328 (1908).
[ 558 ]
BUSINESS INTERESTS
[ § 692
1
This was held invalid, the Kentucky court saying: "What
would be thought, for instance, of the proposition that
a railroad corporation could lease from the owners a belt
of land surrounding a municipality, and provide in the
lease that it should have the exclusive right to operate
a railroad across the land in question?" Certainly there-
fore such restrictions will not excuse a refusal to act ac-
cording to the ordinary obligations of public service. Thus
it was held in an English case where a railroad refused
to accept coal or coke from a particular station not mined
or made on the estate, since the land for the station was
conveyed to them only on that condition, that such a
private arrangement was held contrary to the public in-
terest; and the railroad was accordingly ordered to carry
the coal of every shipper from that station. Similarly
in a recent Kentucky case,² a covenant giving to the
grantor of the right of way for a public siding the exclu-
sive right to ship coal from it, was held no excuse for
refusal to accept coal from another shipper. As the court
pointed out, the railroad must see to it that it was able
to handle all shipments; and it could always acquire the
right of way by eminent domain free of entangling con-
ditions.
§ 692. Contract limitations upon licensees.
A more extreme application of these principles was
made in a series of telephone cases, all involving practically
the same facts. It appeared that the operating companies
were usually licensees of a parent company which had
1 Rishton Local Board v. Lanca-
shire & Y. Ry. Co., 8 R. & C. T. C.
74 (1893).
2 Louisville & N. R. R. Co. v.
Pittsburg & K. Coal Co., 111 Ky.
960, 23 Ky. L. Rep. 1318, 64 S. W.
969, 98 Am. St. Rep. 447, 55 L. R.
A. 601 (1901).
See further:
United States.-Western Union
Telegraph Co. v. Baltimore & O.
Tel. Co., 19 Fed. Rep. 660 (1884).
Illinois.—St. Louis & C. R. R.
Co. v. Postal Tel. Co., 173 Ill. 508,
51 N. E. 382 (1898).
[559]
§ 692]
PUBLIC SERVICE CORPORATIONS
entered into a contract with a telegraph company prac-
tically giving it exclusive privileges in the use of the tele-
phone in handling messages. Notwithstanding these
arrangements the courts held that as the telephone com-
panies must serve all patrons alike, they could not refuse
to install a telephone in the office of another telegraph
company alleging as an excuse the disabilities which they,
as licensees, were under by the terms of their arrangements
with their licensers. There is no better statement of the
full principles of the uncompromising law of public serv-
ice than in these telephone cases. In the earliest of them ¹
Thayer, J., said: "In my judgment, this clause of the
contract is indefensible when called in question by any
person or corporation injuriously affected thereby. In
so far as the contract between the respondent and the
patentee compels the former to discriminate against one
class of its would-be customers, and to deny them the
same privileges and service which it accords to others,
the contract is invalid. It is not possible to admit the
principle that a railroad, telegraph, or telephone company
may avoid the performance of any part of the paramount
duty they owe to the entire public by contract obliga-
tions which they may enter into, even with the patentee
of an invention." 2
1 22 Alb. L. J. 363 (1880).
2 United States. State of Missouri
v. Bell Telephone Co., 23 Fed. Rep.
539 (1885); Delaware & A. Tele-
graph & Telephone Co. v. State of
Delaware, 50 Fed. 677, 2 C. C. A. 1
(1892). See 5 L. R. A. 161, note.
Maryland.—Chesapeake & P.
P.
Telephone Co. v. Baltimore & O.
Telegraph Co., 66 Md. 399, 7 Atl.
809, 59 Am. Rep. 167 (1886).
Nebraska.-State ex rel. v. Ne-
braska Telephone Co., 17 Neb. 126,
22 N. W. 237, 52 Am. Rep. 404
(1885).
Ohio.-State ex rel., etc., v. Bell
Telephone Co., 36 Ohio St. 296
(1880).
Pennsylvania.-Bell Telephone
Co. v. Commonwealth ex rel. (Pa.),
3 Atl. 825 (1886).
Vermont.-Commercial U. Tel.
Co. v. New England T. & T. Co., 61
Vt. 241, 17 Atl. 1071, 5 L. R. A. 161,
15 Am. St. Rep. 893 (1889).
But see American Rapid Tele-
[ 560 ]
BUSINESS INTERESTS
[ § 693
§ 693. Contract for division of territory.
Upon similar principles a contract between public serv-
ice companies for partition of common territory between
themselves is generally held unenforcible as peculiarly
against public policy even though the companies were
under no mandatory duty to supply the territory divided.¹
In the leading case 2 on this point the Illinois court re-
fused to enforce such a contract between gas companies,
not listening to the cases involving private businesses
where such contracts are often held valid. "The ordinary
rule that contracts in partial restraint of trade are not
invalid," said the court, "does not apply to corporations
like the appellant and appellee because they were engaged
in a public business and in furnishing that which was a
matter of public concern to
graph Co. v. Connecticut Telephone
Co., 49 Conn. 352, 44 Am. Rep. 237
(1881).
The establishment of this law in-
volved ignoring the supposed right
of a patentee to exploit the public.
As Mr. Justice Brewer said in State
of Missouri v. Bell Telephone Co.,
23 Fed. 539 (1885), the patentee
who devotes his devise to public use
can claim no greater sanctity for it
than can the owner of any other
property.
Similar reasoning was followed in
a striking case where a city ordinance
ordered a railroad company to light
its platforms with the equipment
furnished by the local electric light
company. The company urged that
the ordinance was void because it
subjected them to the unlimited ex-
tortion of the patentees, but the
court held that the electric company
must deal with them upon a reason-
able basis as the whole business was
all the inhabitants of the
affected with a public interest.
Cincinnati, H. & D. R. R. Co. v.
Bowling Green, 57 Ohio St. 336, 49
N. E. 121, 41 L. R. A. 422 (1897).
¹ See on this point:
Delaware.-Wilmington City Ry.
Co. v. Wilmington, etc., Ry. Co., 8
Del. Ch. 468 (1900).
V.
Kansas.-Keene Syndicate
Wichita Gas, E. L. & P. Co., 69
Kans. 284, 76 Pac. 834, 67 L. R. A.
61 (1904).
Illinois. South Chicago City Ry.
Co. v. Calumet Ry. Co., 171 Ill.
391, 49 N. E. 576 (1898).
Indiana.-Chicago, I. & L. Ry.
Co. v. Southern Ind. Ry. Co., 38
Ind. App. 234, 70 N. E. 843 (1904).
2 Chicago G. L. & C. Co. v.
People's G. L. & C. Co., 121 Ill. 530,
13 N. E. 169 (1887).
See also the language in South
Chicago City Ry. Co. v. Calumet
Ry. Co., 171 Ill. 391, 49 N. E. 576
(1898).
36
[561]
§ 694 ] PUBLIC SERVICE CORPORATIONS
City." However if such a contract for withdrawal from
particular territory has been executed, a person resident
in one district cannot demand service from the outside
company.¹ By the execution of such a contract the com-
panies in question have signified their withdrawal from
the territories in question. If they have thus confined
their profession to their respective territories there is no
way to compel them to serve a larger district thenceforth.
This arrangement however could not be effectively per-
fected if there were mandatory clauses in their charters.
Moreover there are authorities to the effect that reason-
able arrangements for partition of territory between pub-
lic service companies will be enforced for reasons of policy
to be set forth presently.2 For there are some courts
which are hospitably inclined toward pooling agreements.
§ 694. Pooling arrangements usually void.
3
In accordance with the doctrines shown in this chapter,
any arrangements between public service companies for
pooling their business in any way must inevitably be held
invalid as in restraint of trade. Perhaps the most lucid
statement of the actual law is that of Mr. Justice Calwell,
in one of the more recent Federal cases ³ where all relief
was refused one party to an elaborate pooling contract
against another for refusal to account according to its terms
upon these general principles thus succinctly stated. "A
railroad company is a quasi-public corporation, and owes
certain duties to the public, among which are the duties
¹ Weld v. Gas & Electric Light
Commissioners, 197 Mass. 556, 84
N. E. 101 (1908).
See also Leslie v. Lorillard, 110
N. Y. 519, 18 N. E. 363, 1 L. R. A.
456 (1888).
2 Ives v. Smith et al., 8 N. Y.
Supp. 46 (1889). See the compro-
mise view taken in Home Telephone
Co. v. North Manchester Telephone
Co. (Ind. App.), 92 N. E. 558 (1910)
that such contracts are only invalid
in so far as they interfere with a
desirable public service.
³ Chicago, M. & St. P. Ry. Co. v.
Wabash, St. L. & P. Ry. Co., 61
Fed. 993, 9 C. C. A. 659 (1894).
[562]
BUSINESS INTERESTS
[ § 694
to afford reasonable facilities for the transportation of
persons and property, and to charge only reasonable rates
for such service. Any contract by which it disables itself
from performing these duties or which makes it to its
interest not to perform them, or removes all incentive
to their performance, is contrary to public policy and
void." However there are a few cases which hold that
pooling in public services instead of being peculiarly il-
legal, should really be regarded as truly in accordance
with public interests, and therefore not against public
policy. To this view many eminent economists and sev-
eral law writers incline. Indeed this seems to be the Eng-
lish law,² which is followed in some few American juris-
dictions. In the leading English case just cited, Vice
1
¹ Citing:
3
United States.-Gibbs v. Con-
solidated Gas Co., 130 U. S. 396, 9
Sup. Ct. 553, 32 L. ed. 979 (1889).
Georgia.-Western Union Tele-
graph Co. v. American Union Tel.
Co., 65 Ga. 160, 38 Am. Rep. 781
(1880).
Indiana.—Cleveland, C., C. & I.
Ry. Co. v. Closser, 126 Ind. 348, 26
N. E. 159, 9 L. R. A. 754, 22 Am. St.
Rep. 593 (1890).
Kentucky.—Sayre v. Louisville
Union Benevolent Association, 1
Duv. 143, 85 Am. Dec. 613 (1863).
Louisiana.-Texas & P. Ry. Co.
v. Southern Pac. Ry. Co., 41 La.
Ann. 970, 6 So. 888, 17 Am. St.
Rep. 445 (1889).
New York.-Hooker v. Vande-
water, 4 Denio, 349, 47 Am. Dec.
258 (1847); Stanton v. Allen, 5
Denio, 434, 49 Am. Dec. 282 (1848).
Texas.-Gulf, C. & S. F. Ry. Co.
v. State, 72 Tex. 404, 10 S. W. 81
(1888).
Pooling agreements are against
the Interstate Commerce Act. In re
Pooling Freights, 115 Fed. 588
(1902); Southern Pacific Ry. Co.
v. Interstate Commerce Commis-
sion, 200 U. S. 536, 26 Sup. Ct. 330,
50 L. ed. 585 (1906).
Pooling agreements also fall
within the Federal Anti-trust Act.
United States v. Trans-Missouri
Freight Association, 166 U. S. 290,
17 Sup. Ct. 540, 41 L. ed. 1007
(1897); United States v.
v. Joint
Traffic Association, 171 U. S. 505,
19 Sup. Ct. 25, 43 L. ed. 259 (1898).
2 Hare v. London & Northwestern
Ry. Co., 2 Johns. & H. 80 (1861).
3 Manchester & L. R. R. Co. v.
Concord R. R. Co., 66 N. H. 100,
20 Atl. 383, 9 L. R. A. 689 (1889).
In Raritan River R. R. Co. v.
Middlesex & S. Traction Co., 70
N. J. L. 732 (1904), it was held that
an agreement made between a rail-
road company and a competitor,
that the companies would not re-
[ 563 ]
§ 695]
PUBLIC SERVICE CORPORATIONS
Chancellor Wood dismissed the argument that the pooling
agreement which was being questioned was against public
policy by saying: "It is a mistaken notion that the public
is benefitted by pitting two railway companies against
each other till one is ruined, the result being, at last, to
raise the fares to the highest possible standard." Strong
though this argument may be, it must address itself now
to the legislative branch; the weight of authority against
it at common law is overwhelming.
Topic C. Refusal of the Demands of a Rival
§ 695. Shipments made by a rival.
It sometimes happens in the course of competition
between two public service companies that one of them
may be bold enough to apply to the other for some service
it requires in the conduct of its business. It is obvious
that we have a delicate matter here. If the competitor
can put himself in such a position that he can be said to
apply as one of the public might, it is difficult to see how
his application can be refused. And yet this may aid him
in the course of his business in various ways. For exam-
ple one railroad may apply to a rival railroad to forward
some materials to an intersecting point.¹ It is submitted
that it is the clear duty of the railroad to which this ap-
plication is made to accept the shipment, although it
might benefit much this road to which the application
is made to cripple its rival by refusing to transport the
supplies. For this is true of every public service company
that it must accede to every proper application for
duce their present rates for a time
fixed unless required by law to do
so was not contrary to public policy.
In Averill v. Southern Ry., 75
Fed. 736 (1896), rate wars were de-
plored; and the suggestion was
thrown out that the courts might
sometime enjoin them.
¹ See Rogers Locomotive & Ma-
chine Works v. Erie Ry. Co., 20 N.
J. Eq. 379 (1869).
[564]
BUSINESS INTERESTS
[ §§ 696, 697
service, although it might be more profitable to promote
its own interests by imposing conditions, or even by re-
fusing altogether.¹
§ 696. No obligation to carry packed parcels.
An excellent illustration of this distinction is Johnson
v. Dominion Express Company.2 Defendant in this ac-
tion was a general express company, while plaintiff was
an association, trading under the name of the National
Package Express Company, engaged in forwarding small
parcels. This action was brought to compel the defend-
ant to accept from the plaintiff, at the regular schedule
rates for large packages, cases containing small parcels,
which the plaintiff had collected for transportation from
various shippers, to be delivered by them later to various
consignees. The court held that the refusal was justifi-
able. "That a number of persons should combine to
carry on a business in competition with the defendant,
to take from it the most profitable part of its business;
to make use of its capital and facilities for its destruction,
cannot be assumed to have been considered or provided
for by the company in fixing its present tariff.” ³
§ 697. Competitor must be taken as a passenger.
The proposition in the heading is against the apparent
doctrine of the well-known case of Jencks v. Coleman,4
1 See also American Banana Co.
v. United Fruit Co., 160 Fed. 184
(1908).
2 28 Ont. Rep. 203 (1896). The
view of the English cases seems to
be that if a railway carries packed
parcels for forwarders generally it
cannot refuse a particular applicant.
Crouch v. London & N. W. Ry. Co.,
14 C. B. 255 (1854); Baxendale v.
So. West Ry. Co., 35 L. J. Exch.
108 (N. S.) (1866).
3 So a railroad is not bound to
accept at the carload rate a ship-
ment got together from various
customers by a forwarding agent.
Lundquist v. Grand Trunk W. Ry.
Co., 121 Fed. 915 (1901).
42 Sumn. 221, Fed. Cas. No.
7258 (1835).
It is generally admitted that a
passenger can be prevented from
carrying on a business while on
board. See the D. R. Martin, 11
[565]
§ 698]
PUBLIC SERVICE CORPORATIONS
where Mr. Justice Story virtually directed the jury to
find against the plaintiff, an agent for a rival line (who
was going from Providence down to Newport intending
upon the return trip to solicit business on board for his
line) upon the general principle that proprietors of steam-
boats are not "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 lucra-
tive to them." Little exception can be taken to the gen-
eral principle thus stated; but it would now be recognized
that the presiding justice went too far in applying it to
the particular case, for the plaintiff was applying as a
traveler for this particular journey. According to the
present authorities this distinction must be taken. In
a late Louisiana case it is pointed out that although
a person who is detected in "scalping" tickets while on
the train, might be ejected, a person who "scalps" railway
tickets elsewhere than on the train cannot be denied trans-
portation over the lines of the railroads in whose tickets
he traffics. He is a part of the general public, it was said,
and railway companies, as common carriers, must, ordi-
narily, permit all who pay the regular fare to travel on
their trains.
§ 698. Railroad not compelled to give running rights.
As has been seen, common carriers by reason of their
public duty must serve their rivals who ask as members
of the public those things which members of the public
might ask; but they can demand no more. The princi-
Blatch. (U. S.) 233, Fed. Cas. No.
1030 (1873), and Runyan v. Central
R. Co., 65 N. J. L. 228, 47 Atl. 422
(1900).
1 Ford v. East Louisiana R. R.
Co., 110 La. 414, 34 So. 585
(1903).
The distinction is recognized in
other recent cases, such as South
Florida R. R. Co. v. Rhodes, 25
Fla. 40, 5 So. 633, 23 Am. St. Rep.
506 (1889), and Phillips v. Southern
Ry. Co., 114 Ga. 284, 40 S. E. 268
(1901).
[ 566]
BUSINESS INTERESTS
[ § 699
ples discussed do not go so far as to give to one common
carrier the right to demand the use of the facilities of
rival common carriers in order to compete against them.
Thus, it seems plain that one railroad cannot be required
to make physical connections with its rival so that it may
take its business away from it.¹ Nor is the railroad under
any obligation to grant running rights over its trackage
to the trains of its rivals. If it makes an arrangement
of this sort, it may dictate its own terms; it may even
go so far as to require that competitive business shall
not be taken. The case which decided this ² went on the
ground that the public retained its original right to have
adequate service by the company which owns the rails.
Whether even legislation may go so far as to require the
giving of running rights is a difficult question of consti-
tutional law. It is probable that if the legislation con-
tains proper provisions for adequate compensation that
it is valid. However a strong argument against such
meddlesome legislation may be made as the opinion of
Mr. Justice Dean in one of the cases opposed to this will
show.4
3
§ 699. Obligation to give trackage.
2
In certain public services, as has been noted, there is
an obligation to give trackage rights provided this is the
service which is professed. Thus when terminal com-
1 Jacobson v. Wisconsin M. & P.
R. R. Co., 71 Minn. 519, 74 N. W.
893, 40 L. R. A. 389, 70 Am. St.
Rep. 358 (1898), aff'd sub nom.
Wisconsin, M. & P. R. R. Co. v.
Jacobson, 179 U. S. 287, 45 L. ed.
194, 21 Sup. Ct. Rep. 115 (1900).
See also Central S. Y. Co. v.
Louisville & N. R. R. Co., 192 U. S.
568, 48 L. ed. 565, 24 Sup. Ct. 339
(1904), and Louisville & N. R. R.
Co. v. Central S. Y. Co., 212 U. S.
132, 29 Sup. Ct. 246 (1909).
2 Michigan Central R. R. Co. v.
Pere Marquette R. R. Co., 128 Mich.
333, 87 N. W. 271 (1901).
3 Toledo Electric St. Ry. Co. v.
Toledo Consolidated St. Ry. Co.,
26 Ohio Wk. L. Bul. 172 (1891).
* Philadelphia M. & S. Street Ry.
Co.'s Petition, 203 Pa. St. 354, 53
Atl. 191 (1902).
!
[ 567]
§ 699 ] PUBLIC SERVICE CORPORATIONS
3
panies are organized to receive railways in general they
must permit any railway to use their trackage.¹ But if
a railroad possesses a terminal of its own it is not obliged
to permit other railways to make use of it by demanding
rights over its trackage from a connecting point nearby.2
The general problem now under discussion has arisen as
to the obligations of bridge companies to street railways.
In the case of the Covington bridge over the Ohio River,
the evidence went so far as to show that the bridge com-
pany had maintained railway tracks for many years over
which various street car lines had run. On these facts
the court had no difficulty in holding that the particular
appellee had a right to have its cars pass. "This bridge is
a highway and dedicated by the company not only to the
uses of ordinary travel, but to its use by street railway
companies in passing cars over it from one city to the
other." This case is not inconsistent with the case of an-
other Ohio bridge in which it is held as to what was ap-
parently a railroad bridge primarily that an electric rail-
way could not insist upon running over the tracks of the
steam railroad. "While fully recognizing the well-known
doctrine that public service companies are bound to render
to the public certain services appropriate to the particular
functions of the corporation, that doctrine has not been
4
1 Florida.-State v. Jacksonville
Terminal Co., 41 Fla. 363, 27 So.
221 (1899).
Maryland.-Union Railway of
Baltimore v. Canton R. R. Co., 105
Md. 12, 65 Atl. 409 (1907).
2 Illinois.-Terre Haute & I. R.
R. Co. v. Peoria P. V. Ry. Co., 167
III. 296, 47 N. E. 513 (1897).
Virginia. Commonwealth v.
Norfolk & W. Ry. Co. (Va.), 68 S.
E. 351 (1910).
3 Covington & C. Bridge Co. v.
So. Covington & C. St. Ry. Co., 93
Ky. 136, 19 S. W. 403, 15 L. R. A.
828 (1892). See also Pittsburg &
West End Ry. Co. v. Point Bridge
Co., 165 Pa. St. 37, 30 Atl. 511, 26
L. R. A. 323 (1894).
4 Evansville & H. Traction Co. v.
Henderson Bridge Co., 134 Fed.
973 (1904), citing Elliott on Rail-
roads, §§ 922, 974, 1084. See Cam-
bridge R. R. Co. v. Charles R. St.
Ry. Co., 139 Mass. 454, 1 N. E. 925
(1888).
[568]
BUSINESS INTERESTS
[ § 700
supposed to reach far enough to make the corporation
serve the purposes or be subject to the uses of a mere
rival in business. One water company or one telephone
company or one telegraph company or one street railway
company or one railroad company, while bound appro-
priately to serve the general public, cannot, unless under
express statutory enactment and by due process of law
thereunder be compelled to give its property to the uses
and benefits of a rival except by some form of condemna-
tion. The rival is not ordinarily to be included in the term
general public.'
§ 700. Connections with another telephone system.
A modern instance of this problem is whether a tele-
phone company must give switch board connection to the
lines of a rival system so as to permit through speech. A
few years ago it seemed to be law that such connections
could not be insisted upon by a rival company any more
than a private individual could insist on having his private
apparatus connected with the switch board. As was said
in one case 1"The petitioner's rights are to be measured by
those secured to an ordinary person, seeking to employ
defendant's telephone system." But in later cases legis-
lation specifically compelling such connections for com-
peting companies has been held constitutional.2
cently, moreover, there have been common law cases
which impose the duty of permitting such through connec-
tions when the company in question has once committed
itself to such service by permitting such other companies
1 Matter of Baldwinsville Tele-
phone Co., 24 N. Y. Misc. 221, 53
N. Y. Supp. 574 (1898). And see
Rural Home Telephone Co. v.
Kentucky & I. Telephone Co., 32
Ky. Law Rep. 1068, 107 S. W. 787
(1908).
2
Re-
Billings Mutual Telephone Co. v.
Rocky Mt. Bell Telephone Co., 155
Fed. 207 (1907). Compare Camp-
bellsville Telephone Co. v. Lebaron
L. & L. Telephone Co., 118 Ky.
277, 80 S. W. 1114, 84 S. W. 518
(1904).
[569]
§ 701 ]
PUBLIC SERVICE CORPORATIONS
to connect in certain instances. In one of these cases the
court held that while such service was offered there could
be no discrimination in granting such connections.¹ An-
other goes further, it would seem, in refusing to allow the
discontinuance of a switch board connection when once
established.2 These cases are probably to be explained
by saying they really present an extension of the doctrine
of connections rather than a true case of utilization of
facilities. To draw an analogy, they seem more like the
case of demanding of a connecting railway through car-
riage in the original cars than of asking running rights for
through trains.
§ 701. Utilization of the waterworks of another.
Another instance of this same law is to be found in those
decisions which hold that an irrigation company need not
enter into arrangements with a rival company which
wishes to connect with the system in promotion of its own
service.³ And a rival system cannot even under general
¹ United States Telephone Co. v.
Central Union Telephone Co., 171
Fed. 130 (1909). And see Cumber-
land Telephone & T. Co. v. Cart-
wright C. Telephone Co., 128 Ky.
395, 108 S. W. 875 (1908).
2 State ex rel. v. Cadwallader
(Ind.), 87 N. E. 644 (1909). See
further Home Telephone Co. v.
North Manchester Telephone Co.
(Ind. App.), 92 N. E. 558 (1910).
That a telephone company was
engaged in transmitting long-
distance telephone communications,
and therefore came into competition
to some extent with a telegraph
company, did not justify a dis-
criminating charge for telephone
service furnished the telegraph com-
pany as legitimate competition.
Postal Cable Telegraph Co. v. Cum-
berland Telephone & Telegraph Co.,
177 Fed. 726 (1910).
For the A telephone company to
contract with the B telephone com-
pany for exclusive toll business in
sending messages over the lines of
the C telephone company to patrons
of the B company who could be
reached over its lines (with the re-
sult that such patrons would be
compelled to go to public stations
and pay messengers) was held to be
a wrong to the public which could
form the basis for an injunction.
Home Telephone Co. v. North
Manchester Telephone Co. (Ind.
App.), 92 N. E. 558 (1910).
3 Paxton & H. Irr. Canal & L. Co.
v. Farmers' & M. I. & L. Co., 45
[570]
BUSINESS INTERESTS
[ § 702
enabling legislation insist upon the enlargement of the
present ditches of another company.¹ In both of these
cases the rival company might seem at first sight perhaps
to be only asking what a private taker might have de-
manded. But since it appeared that what was really on
foot was a scheme by one supplying company to utilize
the works of another, it was properly decided that the
service asked could be refused. Upon similar principles
a waterworks company may refuse to supply water upon
the large consumer basis to a taker who intends to dis-
tribute it to various buildings.2 But such arrangements
may be made voluntarily.³
§ 702. Gas works not bound to supply rivals.
4
The most remarkable case in this series is Public Service
Corporation v. American Lighting Company. The plain-
tiff corporation was the owner of the established gas works
in Jersey City from which it was accustomed to light the
streets of the city under contract. The defendant cor-
poration was simply the proprietor of a gas burner which
it wished to introduce for street lighting. This being the
state of affairs, the city of Jersey City on December 1st,
1904 advertised as usual for bids for lighting the city for
the next year. The bid of the American Lighting Com-
pany being much the lowest, the contract was awarded
to it. Thereupon it demanded from the Public Service
Neb. 884, 64 N. W. 334, 29 L. R. A.
853, 50 Am. St. Rep. 585 (1895).
¹ Junction Creek & N. D. D. & I.
Ditch Co. v. Durango, 21 Colo. 194,
40 Pac. 356 (1895).
2 United States V. American
Waterworks Co., 37 Fed. 747 (1889).
But it has been held that a con-
cern which has a water contract
may sell its surplus at a profit.
Mayor, etc., of Halifax v. Local
Board, 30 L. T. (N. S.) 513 (1874).
3 Voluntary arrangements may
be entered into for the provision of
water through an intermediary.
See:
Georgia.-Milledgeville Water Co.
v. Edwards, 121 Ga. 555, 49 S. E.
621 (1904).
Missouri.—Mulrooney v. Obear,
171 Mo. 613, 71 S. W. 1019 (1903).
4 Public Service Corp. v. Ameri-
can Lighting Co., 67 N. J. Eq. 122,
57 Atl. 482 (1904).
[571]
§§ 703, 704] PUBLIC SERVICE CORPORATIONS
Corporation a supply of gas delivered at the top of every
lamp-post in Jersey City, sufficient to supply one light
one night at each. But when the case was brought before
the Vice Chancellor he held that a competitor corporation
making such demands was asking what the established
company owed to no one in its position.¹
Topic D. Promotion of a Collateral Business
§ 703. Right to engage in a collateral business.
The recognition of the limitations upon the rights of
one engaged in a public employment if he enters into com-
petition with members of the public in a business in which
his own services are necessary, constitutes one of the latest
developments in the public service law. This law might,
perhaps, have been anticipated by the strict construction
given to railroad charters. Wherever the question was
arguable the court would invariably decide that the col-
lateral business was ultra vires. Thus in Illinois 2 it was
held ultra vires for a railroad to maintain a grain elevator,
on the ground that the public duties of a railroad company
forbade this monopolization of the warehouse business.
And in an English case a railroad which was absorbing
the coal business along its route was held to be acting
ultra vires. This was squarely put upon public policy, the
fear being expressed that once started in such a career
railroads conceivably might monopolize all business.
3
§ 704. Telephone company favoring its messenger serv-
ice.
Where a public service company engages itself in an-
other collateral business the temptation always is to use
R. R. Co., 233 Ill. 378, 84 N. E.
368, 16 L. R. A. (N. S.) 604, 122
Am. St. Rep. 181 (1908).
1 The same decision between the
same parties as to the same matter
was reached in American Lighting
Co. v. Public Service Co., 132 Fed.
794 (1904).
2 People ex rel. v. Illinois Central
V.
Great
3 Attorney-General
Northern R. R. Co., 29 L. J. Eq.
(N. S.) 794 (1860).
[ 572 ]
BUSINESS INTERESTS
[ § 704
the power in its public businesses to promote its col-
lateral business. An illustration of this appears in the
case of Louisville Transfer Company v. American Dis-
trict Telegraph Company.¹ Plaintiff in that case was a
transfer company providing omnibuses and other car-
riages. Defendant was a telephone company which also
conducted a carriage and coupé service. To promote that
business it refused to give full telephone service to the
plaintiff, so that people might not call the plaintiff and
order carriages. Edwards, the Chancellor puts the objec-
tion to this very well indeed: "It is the opinion of the court
that defendant is engaged in two distinct employments-
one in operating a telephonic exchange, and the other in
operating a carriage or coupé service. Plaintiff and de-
fendant are not rivals in the former business and, as to
that part of defendant's business, it occupies the same
position toward plaintiff as it does toward the rest of the
public; the defendant is a quasi-public servant, and as
such, is bound to serve the general public, including the
plaintiff on reasonable terms with impartiality."
11 Ky. L. J. 144 (1881).
Electric Despatch Co. v. Bell
Telephone Co., 20 Can. Sup. Ct. 83
(1891), and also People ex rel.
Postal Tel. Co. v. Hudson River
Telephone Co., 19 Abb. N. C. 466
(1887), both accord.
2 That a telephone company also
furnished telegraph service did not
authorize it to charge discriminat-
ing rates for telephone service fur-
nished to a competing telegraph
company in order to enlarge the
profits derived from the telegraph
part of its business. Postal Cable
Telegraph Co. v. Cumberland Tele-
phone & Telegraph Co., 177 Fed.
726 (1910).
11 2
When the plaintiff, who was en-
gaged in a general messenger busi-
ness, had a contract with the de-
fendant telephone company for the
use of its telephone in his place of
business, the defendant had no
right to refuse to permit the tele-
phone to be used in calling up the
plaintiff to order a messenger sent
to inform a party that he was
wanted at a station of a rival tele-
phone company. This policy of the
telephone company was held to be
contrary to the duty owed to the
whole public using their system.
Owensboro Harrison Telephone Co.
v. Wisdom, 23 Ky. L. Rep. 97, 62
S. W. 529 (1901).
[ 573]
§§ 705, 706] PUBLIC SERVICE CORPORATIONS
§705. Municipality promoting its water service.
An equally extreme case of unfair action may be seen in
Mobile v. Bienville Water Supply Company.¹ In that
case it was shown that the city, the original defendant,
had constructed a sewerage system and at the same time
had constructed waterworks. The city never fixed any
rate for the use of its sewers alone, but it would not allow
any takers of complainant's water to connect with or use
its sewers, except at the same price as the city charged
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. Obviously this was unfair competi-
tion, because in defiance of the public duty of the city to
give either service at a fair rate. The language of Mr.
Justice Harelson in granting the injunction is well worth
quoting: "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 cus-
tomers with water, and they are required by the city to
pay for sewerage the same price it charges its own cus-
tomers for its water and sewerage, it follows the complain-
ant would have to furnish water practically free or aban-
don the business; for it would be unreasonable to suppose
that anyone would use the complainant's water and bear
the additional expense imposed for so doing."
2
§ 706. Electric company favoring its wiring department.
Another case of the abuse of its power by a public serv-
1 130 Ala. 379, 30 So. 445 (1900).
See also Hamilton City v. Hamilton
Gas L. & C. Co., 11 Ohio Dec. 513
(1901).
Upon similar principles it has
been held that a gas company sup-
plying gas for both illumination and
fuel cannot make a lower rate for
illuminating gas to those of its cus-
tomers who will take gas for fuel
also. Baily v. Fayette Gas Fuel Co.,
193 Pa. St. 175, 44 Atl. 251 (1899).
[ 574]
BUSINESS INTERESTS
[ § 707
ice company to promote a collateral branch of its busi-
ness was decided recently in Illinois, Snell v. Clinton Elec-
tric Light, Heat, and Power Company.¹ The defendant
company in that case charged the plaintiff who had ap-
plied for electricity an additional price for a transformer,
in pursuance of their policy openly announced to supply
transformers free to those who had the wiring of their
houses done by the company's own wiring department,
but to charge applicants like the plaintiff who had their
wiring done by other parties the full price of the trans-
former. This transformer was a necessary part of the sys-
tem of distributing electricity for the protection of the
consumer. Upon this showing the highest court held that
the treatment of the plaintiff by the defendant was un-
justifiable. Mr. Justice Carter said: "It is entirely im-
material who does the wiring of the house-the electric
light company or some other party; the transformer is
necessary in either case. If the company does the wir-
ing, that is a business distinct from that of furnishing elec-
tricity for lighting purposes, just as the putting in of gas
and water pipes into a house is a distinct business from
furnishing the gas or water to flow through them.²
§ 707. Railroad cutting its own rates for itself.
This development which is going on in the law was
brought to the attention of all not long ago by a striking
decision handed down by the United States Supreme Court
in regard to the coal roads, New York, New Haven &
Hartford Railroad v. Interstate Commerce Commission.³
¹ 196 Ill. 626, 63 N. E. 1082, 58
L. R. A. 284, 89 Am. St. Rep. 341
(1902).
2 Upon similar principles it is
held that a water company cannot
establish an official plumbing serv-
ice and require that all piping
shall be done by it; but it can for its
own protection reserve the right to
tap its own mains. Sec Pocatello
Water Co. v. Standley, 7 Idaho,
155, 61 Pac. 518 (1900), and Keen
v. Mayor & Council of Waycross,
101 Ga. 588, 29 S. E. 42 (1897).
3.200 U. S. 361, 50 L. ed. 515, 26
Sup. Ct. 272 (1906). See also In-
[575]
§ 707]
PUBLIC SERVICE CORPORATIONS
The complaint in that case was filed by the attorney-
general under the provisions of the Interstate Commerce
Act, which forbid discrimination between shippers, charg-
ing that traffic was being moved at less than the published
rates. It was shown that the Chesapeake and Ohio Rail-
road had sold to the New York, New Haven and Hartford
Railroad sixty thousand tons of coal to be delivered to
the buyer at $2.75 per ton; and it was averred that the
price of the coal at the mines where the Chesapeake and
Ohio bought it and the cost of transportation from New-
port News to Connecticut would aggregate $2.47 per ton,
thus leaving to the Chesapeake and Ohio only about
twenty-eight cents a ton for carrying the coal from the
Kanawha district to Newport News, whilst the published
tariff for such carriage was $1.45 per ton. Mr. Justice
White, who wrote the opinion of the court, puts the matter
well when he says: "If by the mere fact of purchasing and
selling merchandise to be transported, a carrier is en-
dowed with the power of disregarding the published rate,
it becomes apparent that the carrier possesses the right
to treat the owners of like commodities by entirely differ-
ent rules. The existence of such a power in its essence
would enable a carrier, if it chose to do so, to select the
favored persons from whom he would buy and the fa-
vored persons to whom he would sell, thus giving such per-
sons an advantage over every other, and leading to a
monopolization in the hands of such persons of all the
products as to which the carrier chose to deal." 1
terstate Commerce Commission v.
Baird, 194 U. S. 25, 48 L. ed. 860,
24 Sup. Ct. 563 (1904).
A fruit corporation operating a
line of steamships cannot dis-
criminate against one of its rivals
in the fruit business. American
Banana Co. v. United Fruit Co.,
160 Fed. 184 (1908).
1 When a canal is owned by a
cement company it cannot make
discriminatory rates against an-
other cement company. New York
Cement Co. v. Consolidated Rosen-
[ 576 ]
BUSINESS INTERESTS
[ §§ 708, 709
§ 708. Grain elevators storing their own grain.
1
But some courts are disposed to go one step further yet
and to say that it may be inconsistent with public service
for the public servant to engage at all in the outside busi-
ness and to make use of his own facilities in conducting it.
A square decision in point is Central Elevator Co. et al. v.
People ¹ where perpetual injunctions were granted to re-
strain defendants, as warehousemen, from storing grain
in their own warehouses. Cartwright, the justice who
wrote the opinion, said in part: "The public warehouses
established under the law are public agencies, and the
defendants, as licensees, pursue a public employment.
They are clothed with a duty towards the public. The
evidence shows that defendants, as public warehousemen
storing grain in their own warehouses, are enabled to,
and do, overbid legitimate grain dealers, by exacting from
them the established rate for storage, while they give up
a part of the storage charges when they buy or sell for
themselves. By this practice of buying and selling through
their own elevators the position of equality between them
and the public whom they are bound to serve is destroyed,
and by the advantage of their position they are enabled
to crush out, and have nearly crushed out, competition
in the largest grain market of the world." 2
§ 709. Constitutionality of statutory prohibition.
There is then this general feeling abroad, that for a
public service company to engage in serving itself in a
dale Cement Co., 178 N. Y. 167, 70
N. E. 451 (1904).
And a gas company cannot make
special rates to its own stock-
holders. Redkey C. Nat. Gas. L.,
F. & P. Co. v. Orr, 27 Ind. App. 1,
60 N. E. 716 (1901).
¹ 174 Ill. 203, 51 N. E. 254, 43
L. R. A. 658 (1898).
2 Accord, Hannah v. People, 198
Ill. 77, 64 N. E. 776 (1902). A
more extreme case, holding an act
passed to enable the warehouses to
do what was provided in this de-
cision, unconstitutional because
against the clauses declaring ware-
houses public.
37
[ 577]
§ 710]
PUBLIC SERVICE CORPORATIONS
1
collateral business is inconsistent with its full performance
of its public duties; and clear evidence of this public opin-
ion is the "Commodities Clause" added in 1906 to the
Interstate Commerce Act by which it was provided gen-
erally that a carrier should not transport after 1908 any
commodities owned by it that it had produced. It is true
that the United States Supreme Court has recently ¹ con-
strued the statute so that it does not apply to commodities
owned by a corporation controlled by the carrier. But
while deciding this, as to the particular act, the court
affirmed the power of the Legislature to regulate carriers
to the extent of forbidding them to transport goods in
which they had an interest. Such legislation is due proc-
ess of law because it does not go much beyond what are
the accepted principles of regulation embodied in the pub-
lic service law itself.2
§ 710. Argument for radical law.
This at least may be regarded as conceded, that a public
service company if engaged in private business for itself
dependent upon the service it conducts ought not to pre-
fer itself to its competitors in business among the general
public who have already made application for service.
But a position has already been taken far beyond this prop-
osition; it is now urged that those who are undertaking a
public service ought not to be allowed to engage in private
business in competition with those whom they are pro-
fessing to serve unless matters may be so arranged that
the competition shall be upon equal terms. And in gen-
eral it should be said, as this position that the same busi-
1 United States ex rel. v. Dela-
ware & Hudson Co., 213 U. S. 366,
53 L. ed. 836, 29 Sup. Ct. 527 (1909).
2 The law is not to be circum-
vented by having title to the coal
'pass to the buyer at the railroad's
mine so that it is not the property
of the railroad while being trans-
ported. Central Trust Co. v. Pitts-
burg S. & N. R. R. Co., 52 N. Y.
Misc. 195, 101 N. Y. Supp. 837
(1906).
[578]
BUSINESS INTERESTS
[ § 710
ness policies are justifiable in public employments as in
private enterprises is taken with such confidence at times,
that it is most necessary that those who are conducting
the public services should be told in so uncompromising a
manner that they may realize at length its full significance,
that, while those who conduct private enterprises may use
many schemes, those who profess a public employment
must not adopt any business policies which are in any
way truly inconsistent with their public duties. And it
may very probably turn out that it will be found neces-
sary for the maintenance of the highest type of public
service to forbid those who undertake such callings from
engaging at all in business of their own where their in-
terests might come in conflict with the interests of those
whom they are serving.
[579]
BOOK III. CONDUCT OF PUBLIC EMPLOY-
MENT
PART V. COMMENCEMENT OF SERVICE
CHAPTER XXI
BEGINNING OF THE UNDERTAKING
§ 720. Commencement of the relation.
Topic A. When Public Service is Begun
§ 721. Position of prospective customers.
722. Requisitions made for service.
723. Actual agreement must be shown.
724. Acceptance as common carrier.
725. Reception as a guest.
726. Goods withheld from transportation.
727. Goods at carrier's disposal.
728. Conditional acceptance.
Topic B. How the Relationship is Established
§ 729. Evidence of actual acceptance necessary.
730. Notice not enough in itself.
731. When acceptance takes place.
732. Where acceptance takes place.
733. Consent to delivery implied.
734. Customary acceptance of goods.
735. Acceptance of passengers at stations.
736. Boarding a moving vehicle.
737. Carriage of goods secured by fraud.
738. Stealing a ride.
Topic C. Whether Acceptance is Authorized
§ 739. Who is the real proprietor.
740. Situation after railroad leases.
741. Dealings with unauthorized persons.
742. For whom a servant acts.
743. Independent service by servant.
744. Private arrangements with employee.
745. Guests invited by servants.
[583]
§§ 720, 721] PUBLIC SERVICE CORPORATIONS
§ 746. Service obtained by connivance.
747. Bill of lading issued without goods.
748. Jurisdictions holding carrier liable.
§ 720. Commencement of the relation.
It is often of the greatest importance to determine
whether the service undertaken has actually been begun.
This problem has two aspects, as the usual extent of the
service in general and the particular action taken in the
service in question must both be considered. What is
the usual extent of the service in general has already been
considered at length under the general discussion of pub-
lic profession. The question remains whether in the
particular case the relationship has been established by
the undertaking of the service asked. As will be seen in
this chapter the question of acceptance is rather a ques-
tion of fact than of law; and for this reason little more is
attempted in this connection than to bring forward a few
authorities from the innumerable cases bearing upon this
subject. Moreover this matter is primarily a problem of
the general law of bailment more than of the peculiar law
of public service. At the same time the problem of the ex-
tent of the public undertaking assumed necessarily in-
volves an inquiry as to the very point at which that
service may properly be said to have been begun upon
a public basis.
Topic A. When Public Service is Begun
§ 721. Position of Prospective Customers.
To state the first requisite to the beginning of the rela-
tionship in simplest terms, it is necessary in order to bring
the relation about that the parties to it shall be brought
together. The individual must properly present himself;
and his application must be duly accepted. The first
part of this statement, that the applicant must conform
to all conditions precedent in order to be in a position to
[584]
BEGINNING OF THE UNDERTAKING
[ § 722
demand service, has been fully discussed already in a
former chapter. To bring that matter again to mind it
is sufficient to revert to those cases which hold that until
the shipper has tendered his goods for transportation the
relationship has not been established as yet although the
carrier is awaiting him.¹ And even when he has con-
formed to every requirement which can be made of him,
the fact remains that unless he may properly be said to
have been accepted the relationship has not come about.²
He may complain of being refused service; but he has not
the rights of one with whom the relationship has been
established.
§ 722. Requisitions made for service.
Still, whenever service is presently desired an arrange-
ment may properly be made in advance so that the facili-
ties may be at hand at the time desired. Thus a shipper
intending a considerable shipment in car lots may apply
a reasonable time in advance to the railroad, particularly
requesting a certain mumber of cars in readiness for cer-
tain freight at a certain day and at a certain station.³
This does not seem to be a premature application even
upon the general common-law principles; and there are
¹ See, for one example, Illinois &
St. L. R. R. & Coal Co. v. People,
19 Ill. App. 141 (1886).
2 See, for one example, Yoakum
v. Dryden (Tex. Civ. App.), 26 S.
W. 312 (1894).
³ See on the general principle:
Illinois.-Chicago & Alton R. R.
Co. v. Erickson, 91 Ill. 613, 33 Am.
Rep. 70 (1879); Illinois Central R.
R. Co. v. Bundy, 97 Ill. App. 202
(1901).
Indiana.-Lake Shore & M. S.
Ry. Co. v. Anderson, 39 Ind. App.
112, 79 N. E. 381 (1906); Pittsburg,
C., C. & St. L. Ry. Co. v. Wood
(Ind. App.), 84 N. E. 1009 (1908).
Maryland.-Di Giorgio Imp. &
S. S. Co. v. Pennsylvania R. R. Co.,
104 Md. 693, 65 Atl. 425, 8 L. R. A.
(N. S.) 108 (1906).
New York.-Tierney v. New York
C. & H. R. R. R. Co., 76 N. Y. 305
(1879).
Wisconsin.-Ayres v. Chicago &
Northwestern Ry. Co., 71 Wis. 372,
37 N. W. 432, 5 Am. St. Rep. 226
(1888).
[ 585]
§ 723 ]
PUBLIC SERVICE CORPORATIONS
1
many statutes upon this common law basis. Indeed it
is generally held as to car shipments that when a shipper
requires a car at a railroad station for his exclusive use,
he must necessarily give notice to the railroad company,
after which it will have a reasonable time in which to
furnish the car.2 A correlative duty rests upon the rail-
road to notify the applicant if by reason of unexpected
press of business the cars asked for cannot be furnished
in usual time.³
§ 723. Actual agreement must be shown.
6
An actual agreement must be shown in such cases.¹ A
mere promise by a carrier to furnish facilities to ship the
goods is not enough; 5 nor is a mere order by a shipper for
cars standing alone sufficient. And there is no obligation
in the case of the mere option to make shipments within
the time or in the quantity desired by the shipper. It is
necessary that the intending shipper should at least com-
mit himself to an arrangement binding himself to the
payment of the freight involved, if the carrier is content
with that; else he must pay down the freight unless the
¹ See construing such statutes:
United States.-Houston & T. C.
R. R. Co. v. Mayes, 201 U. S. 321,
50 L. ed. 772, 26 Sup. Ct. 491
(1906).
North Carolina.-McDuffie V.
Seaboard Air Line Ry. Co., 145
N. C. 397, 59 S. E. 122 (1907).
Texas.-Texas & P. Ry. Co. v.
Barrow, 33 Tex. Civ. App. 611, 77
S. W. 643 (1903); Texas & P. Ry.
Co. v. Blocker, 48 Tex. Civ. App.
100, 106 S. W. 718 (1907).
2 Illinois Central R. R. Co. v.
Bundy, 97 Ill. App. 202 (1901).
3 Pittsburg, C., C. & St. L. Ry.
Co. v. Racer, 5 Ind. App. 209, 31
N. E. 853 (1892).
7
4 Reed v. Philadelphia, W. & B.
R. R. Co., 3 Houst. 176 (1865).
5 Southern Ry. Co. v. Wilcox, 99
Va. 394, 39 S. E. 144 (1901).
• Missouri Pacific Ry. Co. v.
Texas & P. Ry. Co., 31 Fed. 864
(1887).
7 Missouri.-White v. Missouri
Pac. Ry. Co., 19 Mo. App. 400
(1885).
New York.-Chicago & G. E. Ry.
Co. v. Dane, 43 N. Y. 240 (1870).
8 Arkansas.-Little Rock & Ft.
Smith Ry. Co. v. Conatser, 61 Ark.
560, 33 S. W. 1057 (1896).
New York.-Chicago & G. E. Ry.
Co. v. Dane, 43 N. Y. 240 (1870).
[586]
BEGINNING OF THE UNDERTAKING
[ § 724
statute provides for a partial deposit. And since the in-
tending shipper must rely upon a special agreement, he
must show that his application was made to an agent of
the company having apparent authority to make the
arrangement. Thus a station agent has authority to
make a contract to furnish cars at his station on a certain
day;¹ it is not necessary to go higher up and notify a
superintendent.2 But a notice given to a train master or
a train crew would not be sufficient. A tender and re-
fusal must be shown. But this may be waived by a re-
pudiation of the contract.5
4
§ 724. Acceptance as common carrier.
A carrier of goods is a bailee of the goods for the purpose
of carriage; and his responsibility as carrier cannot begin
until he has become a bailee. And since possession of the
bailee is the gist of the bailment, the carrier's responsi-
bility does not begin until the moment when he assumes
possession. But the carrier's liability begins at once on
the receipt of goods for transportation, though the goods
have not yet been placed in the carrier's vehicle for trans-
¹ Arkansas.-St. Louis, I. M. &
So. Ry. Co. v. Taylor, 87 Ark. 331,
112 S. W. 745 (1908).
Texas.-McCarty v. Gulf, C. &
S. F. Ry. Co., 79 Tex. 33, 15 S. W.
164 (1890).
2 Hoffman H. & S. Co. v. St.
Louis, I. M. & S. Ry. Co., 119 Mo.
App. 495, 94 S. W. 597 (1906).
³ St. Louis, I. M. & S. Ry. Co. v.
Moss, 75 Ark. 64, 86 S. W. 828
(1905).
4 Arkansas.-St. Louis, I. M. & S.
Ry. Co. v. Lee, 69 Ark. 584, 65 S. W.
99 (1901).
North Carolina.-Currie v. Ra-
leigh, etc., R. R. Co., 135 N. C. 535,
47 S. E. 654 (1904).
6
5 Arkansas.-Little Rock & Ft.
Smith Ry. Co. v. Conatser, 61 Ark.
560, 33 S. W. 1057 (1896).
Indiana.-Louisville, N. A. & C.
Ry. Co. v. Flanagan, 113 Ind. 488,
14 N. E. 370, 3 Am. St. Rep. 674
(1887).
Vermont-Wilder v. St. J. & L. C.
R. R. Co., 66 Vt. 636, 30 Atl. 41
(1891).
Wisconsin.-Doty v. Strong, 1
Pin. 313, 40 Am. Dec. 773 (1843).
"See in support of this:
Massachusetts.-Nichols v. Smith,
115 Mass. 332 (1874).
New York.-Rogers v. Wheeler,
52 N. Y. 262 (1873).
[587]
§ 725]
PUBLIC SERVICE CORPORATIONS
4
portation,¹ and even though no bill of lading has been
issued for them,2 and the freight has not been prepaid.³
That is, the liability of the carrier as such depends upon
his possession, with the obligation to transport and the
right to transport immediately. Thus where goods are of-
fered to a railroad company at an unreasonably long time
before the train starts, if the carrier takes the goods he
becomes responsible at once as a carrier, although the
shipper knows that according to the time-table the goods
will not be carried until a later time.5 And where a horse
was delivered to a railway before the train was prepared,
and was put by the railway company into a horse box
and killed before it was put on board the train, the railway
was held liable.6
§ 725. Reception as a guest.
In innkeeping, the other calling in which this is of real
importance, similar law is followed. When a traveler
comes to an inn and is received by the innkeeper for the
purpose of entertaining him during his journey, the rela-
1 To this effect see:
Illinois.-Grand Tower M. &
Transp. Co. v. Ullman, 89 Ill. 244
(1878).
Massachusetts.-Fitchburg & W.
R. R. Co. v. Hanna, 6 Gray, 539, 66
Am. Dec. 427 (1856).
New Hampshire.-Moses v. Bos-
ton & Maine R. R. Co., 24 N. H.
71, 55 Am. Dec. 222 (1851).
New York.-Blossom v. Griffin,
13 N. Y. 569, 67 Am. Dec. 75
(1856).
2 These cases, among others, sup-
port the text:
United States.-Show v. Carruth,
1 Sprague, 324 (1856).
Texas.-East Line & Red River
Ry. Co. v. Hall, 64 Tex. 615 (1885).
3 Examples of cases of this sort
are:
Illinois.-Woods v. Devin, 13
Ill. 746, 56 Am. Dec. 483 (1852).
Indiana.-Evansville & T. H. R.
R. Co. v. Keith, 8 Ind. App. 57, 35
N. E. 296 (1893).
4 United States.-Louisville & N.
R. R. Co. v. United States, 39 Ct.
of Cl. 405 (1904).
Pennsylvania.-Clarke v. Nee-
dles, 25 Pa. 338 (1855).
5 Hickox v. Naugatuck R. R. Co.,
31 Comm. 281, 83 Am. Dec. 143
(1863). See also Camden & A. R.
R. Co. v. Belknap, 21 Wend. (N.
Y.) 354 (1839).
6 Moffat v. Gt. Western R. R.
Co., 15 L. T. (N. S.) 630 (1867).
[ 588]
BEGINNING OF THE UNDERTAKING
[ § 726
3
tion of host and guest is thereby established.¹ No lapse
of time is required for the establishment of this relation;
if the guest presents himself for entertainment and is ac-
cepted, the relation "is instantly established between
them." 2 A traveler may, however, enter a public room
at an inn without at once presenting himself as a guest;
and in such case the relation of host and guest is not estab-
lished between the innkeeper and himself. So a traveler
who enters a public room of an inn for a temporary purpose
without intending to lodge or be otherwise entertained at
the inn is not a guest. To be received at an inn the guest
must usually communicate with the innkeeper or with
some servant authorized to receive the guests. Not only
must the guest communicate his intention to the inn-
keeper; the latter must consent to receive him as a guest.5
If the innkeeper refuses to receive a person as a guest,
whether the refusal is legal or illegal, the relation is not
established. Therefore when an innkeeper refuses to re-
ceive a guest whether justifiably because his house is full,
or unjustifiably, such person cannot, by placing his prop-
erty in the inn, make the innkeeper liable for it."
§ 726. Goods withheld from transportation.
4
6
Even after a relationship has been entered into it may
by understanding of the parties be of a preliminary char-
acter, the regular service not to be begun as yet. This is
¹ California.—Pinkerton v. Wood-
ward, 33 Cal. 557, 91 Am. Dec. 657
(1867).
Maine.-Healey v. Gray, 68 Me.
489, 28 Am. Rep. 80 (1878).
Minnesota.-Ross v. Mellin, 36
Minn. 421, 32 N. W. 172 (1887).
2 Maine.-Norcross v. Norcross,
53 Me. 163 (1865).
Minnesota.-Ross v. Mellin, 36
Minn. 421, 32 N. W. 172 (1887).
3 Gastenhofer v. Clair, 10 Daly,
265 (N. Y., 1881).
4 Bernard v. Lalonde, 8 Leg.
News, 215 (Can., 1885).
5 Brewer v. Caswell, 132 Ga. 563,
64 S. E. 674, 23 L. R. A. (N. S.)
1107 (1909).
6 Bird v. Bird, 1 And. 29, Benl. &
D. 60 (Eng., 1558); Bennett v.
Mellor, 5 T. R. (Eng., 1793) 273.
[ 589 ]
§ 726 ] PUBLIC SERVICE CORPORATIONS
of chief importance in respect to the carriage of goods,
the law holding the common carrier while acting simply
as warehouseman of the goods until the time comes for
transportation, responsible, as those in any private busi-
nesses are, simply for due care, while after that time comes
he is held responsible as a public carrier to the liability
for an insurer, as will be seen later. When, therefore, goods
are received by the carrier, not for immediate transporta-
tion, but to be held until further orders of the shipper, the
carrier holds the goods, pending such orders, as a ware-
houseman, not as a carrier.¹ Thus where shipping direc-
tions are to be sent later, the carrier until such directions
are received, holds the goods as a warehouseman only.²
And where although the goods are in control of the carrier
something more is to be done to them by the shipper, the
carrier is still a warehouseman only; and so where the
goods are not to go until the shipper appears to accom-
R. R. Co. v. Hanna, 6 Gray, 539,
66 Am. Dec. 427 (1856).
1 Massachusetts.-Barron v. El-
dredge, 100 Mass. 455, 1 Am. Rep.
126 (1868).
Michigan. Michigan Southern &
N. I. R. R. Co. v. Shurtz, 7 Mich.
515 (1859).
New Hampshire.-Moses v. Bos-
ton & Maine R. R. Co., 24 N. H. 71,
55 Am. Dec. 222 (1851).
New York.-Rogers v. Wheeler,
52 N. Y. 262 (1873).
Ohio.-Pittsburg, C. & St. L. Ry.
Co. v. Barrett, 36 Ohio St. 448
(1881).
Wisconsin.-Schmidt v. Chicago
& N. W. Ry. Co., 90 Wis. 504, 63
N. W. 1057 (1895).
England.-White v. Humphrey,
11 Q. B. 43 (1847).
2 Illinois. St. Louis, A. & T. H.
R. R. Co. v. Montgomery, 39 Ill.
335 (1866).
Massachusetts.-Fitchburg & W.
3
Michigan. Michigan So. & N. I.
R. R. Co. v. Shurtz, 7 Mich. 515
(1859).
Missouri.-Goodbar v. Wabash
Ry. Co., 53 Mo. App. 434 (1893).
New York.-Spade v. Hudson R.
R. R. Co., 16 Barb. 383 (1853).
North Carolina.-Basnight v. At-
lantic & N. C. R. R. Co., 111 N. C.
592, 16 S. E. 323 (1892).
Canada.-Milloy v. Grand Trunk
Ry. Co., 21 Ont. App. 404
(1894).
3 United States.-St. Louis, I. M.
& S. Ry. Co. v. Knight, 122 U. S.
79, 30 L. ed. 1077, 7 S. Ct. 1132
(1887).
Alabama.-Alabama Great South-
ern R. R. Co. v. Mt. Vernon Co.,
84 Ala. 173, 4 So. 356 (1887).
Dakota. Mulligan v. Northern
[ 590 ]
BEGINNING OF THE UNDERTAKING
[ § 727
pany them, the carrier is not as yet liable as such.¹ One
of the cases that was particularly plain was where for the
shipper's convenience the carrier received goods into his
warehouse before the opening of navigation.2 Another
was where a railroad had been seized by the government
for the transportation of troops and goods were accepted
to be held until the government relinquished control of
the railroad. And in general where the goods are to be
transported at a certain time named the carrier will hold
them as a warehouseman until that time, and as carrier
as soon as the stated time arrives.¹ But if the goods are
detained before transportation, not by request of the
shipper, but from his failure to furnish legible or adequate
shipping directions, the carrier, not being able to trans-
port at once, is responsible only as a warehouseman.5
§ 727. Goods at carrier's disposal.
By the general rule if the goods have been taken into
the possession of the carrier for immediate despatch with
proper shipping directions, he then becomes liable as a
common carrier although transportation has not begun."
Pacific Ry. Co., 4 Dak. 315, 29 N.
W. 659 (1886).
Georgia.-Dixon v. Central of
Ga. Ry. Co., 110 Ga. 173, 35 S. E.
369 (1899).
Massachusetts.-Judson v. West-
ern R. R. Corp., 4 Allen, 520, 81
Am. Dec. 718 (1862).
Michigan.-Stapleton v. Grand
Trunk Ry. Co., 133 Mich. 187, 94
N. W. 739 (1903).
New York.-Wade v. Wheeler, 3
Lans. 201 (1870).
2 Ham v. McPherson, 6 Upp.
Can. Q. B. (O. S.) 360 (1871).
3 Illinois Central R. R. Co. v.
Ashmead, 58 Ill. 487; Illinois Cen-
tral R. R. Co. v. Hornberger, 77
Ill. 457 (1875).
4 Illinois Central R. R. Co. v.
Tronstine, 64 Miss. 834, 2 So. 255
(1887).
5 O'Neill v. New York Central &
H. R. R. R. Co., 60 N. Y. 138
(1875).
See also Campion v. Canadian
England.-Cairns
Cairns v. Robins, 8 Pacific Ry. Co., 43 Fed. 775 (1890).
M. & W. 258 (1841).
1 Little Rock & Ft. Smith Ry.
Co. v. Hunter, 42 Ark. 200 (1883).
6 This general principle is shown
by the following cases:
United States.-St. Louis, I. M.
[ 591 ]
§ 727]
PUBLIC SERVICE CORPORATIONS
2
If the carrier delays transportation thereafter to suit his
own convenience, that is no affair of the shipper. And
this will be true even if something remains to be done by
the carrier, as the issue of a bill of lading.¹ But if there is
an agreement whereby the goods placed in the carrier's
care are to be held until he chooses to begin transporta-
tion, the rule is otherwise. On this principle it has been
held that where cattle were by the permission of a rail-
road company placed in its pens by the shipper's servants
and remained in their charge, the carrier had not become
responsible. And the same decision was reached in a
case where the shipper retained the right to remove the
cattle from the pens to feed and water them. And it has
3
& S. Ry. Co. v. Knight, 122 U. S.
79, 30 L. ed. 1077, 7 Sup. Ct. 1132
(1887).
Connecticut.—Merriam v. Hart-
ford & N. H. R. R. Co., 20 Conn.
354, 52 Am. Dec. 344 (1850).
Illinois.—Grand Tower M. &
Transp. Co. v. Ullman, 89 Ill. 244
(1878).
Indiana.-Louisville, N., A. & C.
Ry. Co. v. Godman, 104 Ind. 490,
4 N. E. 163 (1885).
Minnesota.-Shaw v. Northern
Pac. R. R. Co., 40 Minn. 144, 41
N. W. 548 (1889).
V. Missouri
Missouri.-Mason
Pac. Ry. Co., 25 Mo. App. 473
(1887).
New Hampshire.-Moses v. Bos-
ton & Maine R. R. Co., 24 N. H.
71, 55 Am. Dec. 222 (1851).
New York.-Ames v. Fargo, 114
App. Div. 666, 99 N. Y. Supp. 994
(1906).
Pennsylvania.-Clarke v. Nee-
dles, 25 Pa. 338 (1855).
Texas.-Gulf, C. & S. F. Ry. Co.
4
v. Trawick, 80 Tex. 270, 15 S. W.
568, 19 S. W. 948 (1891).
1 See to this effect the following
recent cases:
Arkansas.—Garner v. St. Louis,
I. M. & S. Ry. Co., 79 Ark. 353, 96
S. W. 187, 116 Am. St. Rep. 83
(1906).
Michigan. Meloche v. Chicago,
M. & St. P. Ry. Co., 116 Mich. 69,
74 N. W. 301 (1898).
North Carolina.-Berry v. South-
ern Ry. Co., 122 N. C. 1002, 30 S. E.
14 (1898).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Compton (Tex. Civ. App.), 38
S. W. 220 (1896).
2 Fitchburg & W. R. R. Co. v.
Hanna, 6 Gray (Mass.), 539, 66 Am.
Dec. 427 (1856), semble.
3 Fort Worth & D. C. Ry. Co. v.
Riley (Tex. App.), 1 S. W. 446
(1886).
4 Chicago, B. & Q. R. R. Co. v.
Powers, 73 Neb. 816, 103 N. W.
678 (1905).
[ 592]
BEGINNING OF THE UNDERTAKING
[ § 728
1
even been held ¹ that when a shipment is being delivered
to the carrier he does not become liable as such until the
whole shipment is delivered, although he might, if he had
chosen, forwarded it in parcels as delivered. It should be
added that the receipt of goods by a common carrier
raises the presumption that he takes them as such.2 But
of course if the goods are taken by a warehouseman even
although such warehouseman is associated with the car-
rier in the service the presumption is otherwise.³
§ 728. Conditional acceptance.
4
Another possibility, although the case is rare, is that of
a conditional responsibility. The most significant cases
on this point deal with the receipt of baggage. If, for
example, his baggage is received at a station before the
traveler arrives the railroad is liable from the outset as a
common carrier, provided he soon presents himself as a
passenger, even if no ticket has been bought in advance;
but if the owner fails to accompany his baggage the rail-
road ceases to be a common carrier ab initio. In like
manner, where the traveler gave his luggage to the porter
of the inn at the railroad station, and the porter carried
it to the inn, but the owner never became a guest, it was
held that the innkeeper never became responsible for it
as innkeeper. In this case it will be noticed that if the
traveler had come, the special responsibility for the goods
would have dated from the moment when possession was
5
¹ Watts v. Boston & Lowell R. R.
Corp., 106 Mass. 466 (1871). But
see Shaw v. Northern Pac. R. R.
Co., 40 Minn. 144, 41 N. W. 548
(1889).
2 Berry v. Southern Ry. Co., 122
N. C. 1002, 30 S. E. 14.
³ Reed v. Wilmington Stb. Co., 1
Marv. (Del.) 193, 40 Atl. 955
(1893). But see Arthur v. Texas &
P. Ry. Co., 204 U. S. 505, 51 L. ed.
590, 27 Sup. Ct. 338 (1907).
4 Lake Shore & M. S. Ry. Co. v.
Foster, 104 Ind. 293, 4 N. E. 20, 54
Am. Rep. 319 (1885).
5 Tulane Hotel Co. v. Holohan,
112 Tenn. 214, 79 S. W. 113
(1904).
38
[593]
§ 729]
PUBLIC SERVICE CORPORATIONS
taken, but as the owner never came, the special liability
was canceled. In other words, during that period the
degree of responsibility is doubtful, and it is settled only
by the event.
Topic B. How the Relationship is Established
§ 729. Evidence of actual acceptance necessary.
To establish the creation of the relationship between
the proprietor and his customer in all cases there must be
evidence from which the fact of actual acceptance on
behalf of the proprietor may be shown. Thus the de-
posit of goods, beside a railroad track, as upon a platform
provided to receive them, though they are so deposited
for immediate shipment ready to be loaded upon the
freight train when it arrives, is not, in the absence of
special custom, enough to render the carrier liable.¹ For
as a general rule in the absence of an agreement or cus-
tom, placing goods in the place where the carrier usually
receives them does not render the carrier liable as such.2
Of course the case is correct which held that a delivery to
a railroad warehouse, about dark, and after it was closed
and locked for the night, by plaintiff's agent, by opening
the upper door and thereby putting the goods in, there
being no one in charge, did not show such delivery as
would charge the railroad. And equally obvious is the
case which decides that loading goods on a car standing
on a side track does not constitute a delivery to the rail-
4
3
¹ Georgia.-Wilson v. Atlanta &
C. Ry. Co., 82 Ga. 386, 9 S. E. 1076
(1889).
North Carolina.-Wells v. Wil-
mington & W. R. R. Co., 6 Jones L.
(N. C.) 47, 72 Am. Dec. 556 (1858).
2 New York.-Grosvenor v. New
York Central R. R. Co., 39 N. Y.
34 (1868).
Texas.-Missouri, K. & T. Ry.
Co. v. Beard, 34 Tex. Civ. App.
188, 78 S. W. 253 (1904).
3 Spofford v. Pennsylvania R.
R. Co., 11 Pa. Super. Ct. 97
(1904).
4 Yoakum v. Dryden (Tex. Civ.
App.), 26 S. W. 312 (1894).
[ 594 ]
BEGINNING OF THE UNDERTAKNIG
[ § 730
road company, where the station agent, on being notified
thereof, declines to ship the goods, and there is no custom
or regulation of the railroad company making such load-
ing a delivery.
§ 730. Notice not enough in itself.
3
In these cases there is some authority for holding that
a deposit in the regular place for receiving goods followed
by notice to the carrier is enough to make the carrier
responsible as such, even without proof of a special cus-
tom to that effect.¹ In one case it was even said that in
such a case the goods were in possession of the carrier as
warehouseman until notice, and thereafter in his posses-
sion as carrier.2 This is an untenable contention which,
another court said, no one would make. The true doc-
trine seems to be that mere notice could not in such a
case impose liability on the company; although acquies-
cence of an authorized servant of the company at the time
of receiving the notice would amount to an express ac-
ceptance of the goods. So if the carrier is in the habit of
issuing checks for trunks upon taking them, it is not good
delivery to leave a trunk at the baggage room door with-
out getting a check. On the other hand it is well agreed
that where the usual notice is given the facts may show
customary acceptance as where a baggage transfer com-
pany put the guest's baggage on the platform of the hotel
and shouted “baggage" or on the sidewalk in front of
the hotel and rang the porter's bell."
1
4
Rogers v. Long Island R. R. Co.
2 Lans. (N. Y.) 269 (1869). Contra,
Anderson v. Mobile & O. R. R. Co.,
38 So. 661 (1905).
2 Basnight v. Atlantic & N. C. R.
R. Co., 111 N. C. 592, 16 S. E. 323
(1892).
3 Yoakum v. Dryden (Tex. Civ.
App.), 26 S. W. 312 (1894).
4 Ball v. New Jersey Sb. Co., 1
Daly, 491 (1865).
5 Maloney v. Bacon, 33 Mo. App.
501 (1888).
6 Becker v. Haynes, 29 Fed. 441
(1887).
[595]
§ 731]
PUBLIC SERVICE CORPORATIONS
§ 731. When acceptance takes place.
3
It sometimes becomes important to determine at what
moment goods delivered to the carrier by tackling or other
mechanical device pass into the possession of the carrier.
Where goods are taken out of the vehicle in which they
are brought to the conveyance of the carrier, the tackling
by which the transfer is effected usually belongs to, or at
least is operated by the carrier; and in that case the
carrier's responsibility begins as soon as the goods are
attached to the tackling.¹ The determining fact in such
cases is the control of the machinery.2 Much will depend
upon the manner in which they receive goods for trans-
portation, the provision they make for raising heavy
articles into their cars, and the active participation of the
agent of the company in reference to the same. Where
grain or liquid is shipped in bulk, it is usually delivered
through a pipe or chute; and it may be important to de-
termine the moment during delivery when the liability of
the carrier begins. The cases hold (following the doctrine
laid down in the case of delivery by a crane) that when the
carrier, has control of the mouth of the pipe, he is responsi-
ble for the grain spilled. But it would seem that the
same result might be reached on a more general ground.
As soon as goods are allowed to fall freely into a receptacle
provided by the carrier, like coal passing from the mouth
of a chute or, in this case, the grain falling past the cut-off
at the top of the pipe, the shipper has completely lost con-
trol and the carrier, it would seem, has accepted posses-
sion. At that moment then the bailment and the carrier's
liability begins.
4
1 See The Cordillera, 5 Blatch.
518 (1867).
2 Thomas v. Day, 4 Esp. 262
(1803). See also Street v. Morrison,
5 Allen (New Bruns.), 296 (1862).
3 Dewey, J., in Merritt v. Old
Colony & N. Ry. Co., 11 Allen
(Mass.), 80, 83 (1865).
4 The R. G. Winslow, 4 Biss. 13,
Fed. Cas. No. 11,736 (1860).
[ 596 ]
Beginning of THE UNDERTAKING [§§ 732, 733
}
§ 732. Where acceptance takes place.
2
If the carrier consents to send for a parcel at the house
of the shipper, it would seem to be clear that he becomes
liable at the shipper's house, where his servant accepts
the parcel.¹ So if an express company by its agent re-
ceives goods as they arrive at the freight station of a rail-
road, the express company is liable from that time, though
it has not yet brought the goods to its office. Upon the
same principle, where a carrier by sea, in a harbor where
a vessel cannot reach the wharf to take its cargo, is ac-
customed to send lighters to the wharf to receive the
cargo and bring it to the vessel, the carrier's liability
begins as soon as the goods are received on board the
lighter. In one recent case a train master was held to
have authority to accept freight when deposited beside
the track far from the nearest station. And in another
case where a railroad at a certain station was accustomed
to issue bills of lading for cotton delivered at a compress,
it was held that the railroad was thereafter responsible
for the cotton.5
3
§ 733. Consent to delivery implied.
4
The consent of the carrier to receive goods when placed
in a certain place may be established by evidence of a
special custom to that effect. In such a case the extent of
the carrier's responsibility would be determined by the
nature of the custom. If a custom can be shown for the
carrier to be in charge and undertake responsibility for the
goods from the moment of deposit, then he will undergo
1
¹ Davey v. Mason, Car & M. 45
(1841). But see Boys v. Pink, 8 C.
& P. 361 (1838).
2 Southern Exp. Co. v. Newby, 36
Ga. 635 (1867).
3 Bulkley v. Naumkeag S. C. Co.,
24 How. (U. S.) 386 (1860); The
Bark Edwin, 1 Spra. 477 (1859);
The Oregon, Deady, 179 (1866);
The City of Alexandria, 28 Fed.
202 (1886); Campbell v. The Bark
Sunlight, 2 Hughes, 9 (1877).
4 Georgia S. & F. R. R. Co. v.
Marchman, 121 Ga. 235, 48 S. E.
961 (1904).
Arthur v. Texas & P. Ry. Co.,
[597]
§ 7331
PUBLIC SERVICE CORPORATIONS
4
the legal liability of carrier from the moment of deposit
in accordance with the custom,¹ even though he has no
notice of the deposit.2 But if the giving of notice is part
of the custom, notice must be shown in the particular case.3
This problem often arises in the case of a union station,
where goods arriving by one carrier are to be delivered by
it to a second carrier for further carriage. Under these
circumstances it is frequently the custom for the first
carrier to deposit the goods in a part of the station ap-
propriated to the second carrier, and for the latter then
to be in charge of the goods without notice. In such a case
the liability of the second carrier begins at the moment of
deposit, even though the deposit is made at night or some
other time when the second carrier has in fact no servants
at hand to receive and care for the goods thus deposited.
Where such a custom is proved to place goods in a freight
car on a siding, the carrier is responsible as such from the
204 U. S. 505, 51 L. ed. 590, 27 Sup.
Ct. 338 (1907).
¹ Alabama.-Montgomery & E.
Ry. Co. v. Kolb, 73 Ala. 396, 49
Am. Rep. 54 (1882).
Connecticut.-Merriam v. Hart-
ford & N. H. R. R. Co., 20 Conn.
354, 52 Am. Dec. 344 (1850).
Indiana.-Evansville & T. H. R.
R. Co. v. Keith, 8 Ind. App. 57, 35
N. E. 296 (1893).
Iowa.-Green v. Milwaukee & S.
P. R. R. Co., 38 Ia. 100 (1874).
2 It has indeed been asserted by
the Supreme Court of New York,
that a delivery in accordance with
any custom must always be ac-
companied by notice to some au-
thorized agent of the company; but
this undoubtedly goes too far.
Packard v. Getman, 6 Cow. (N. Y.)
757 (1827).
3 See particularly:
Connecticut.-Trowbridge v. Cha-
pin, 23 Conn. 595 (1855).
Michigan.-Wright v. Caldwell,
3 Mich 51 (1853).
4 The cases put in the text as to
transfer in a union station in suc-
cessive carriage are based upon the
following authorities:
Alabama.-Montgomery & E.
Ry. Co. v. Kolb, 73 Ala. 396, 49
Am. Rep. 54 (1882).
Arkansas.—Railway Co. v. Mur-
phy, 60 Ark. 333, 30 S. W. 419
(1895).
Connecticut.-Converse v. Nor-
wich & N. Y. Transp. Co., 33 Conn.
166 (1865).
Illinois. Illinois Central R. R.
Co. v. Smyser, 38 Ill. 354, 87 Am.
Dec. 301 (1865).
Indiana.-Evansville & T. H. R.
[598]
BEGINNING OF THE UNDERTAKING
[§ 734
moment the car is loaded and ready for the carrier to take
it, and if the custom is to take charge of goods deposited
beside the track ready for shipment, the carrier's re-
sponsibility begins from the moment of such deposit.
§ 734. Customary acceptance of goods.
Where the carrier consents to receive goods when they
have been placed in a certain spot, he may become re-
sponsible for goods as soon as they are placed there, with-
out further act of acceptance by any person acting for him.
Where a railroad company made an express agreement
to accept freight when placed beside its track at a point
between stations, it was held that its responsibility as
carrier began as soon as the goods were deposited in ac-
cordance with the agreement.¹ And so where a railway
company furnished an intending shipper, at his request,
with a car and left it upon a switch where it was loaded,
and thereupon the agent of the carrier was notified
thereof and he in turn had telegraphed to the train master,
it was held that the car must be deemed delivered to the
carrier for the purpose of shipment, though no bill of
lading had been issued therefor, it being the custom of
the carrier to move freight in advance of the issuing of
such bill.2 But it was held in another case that the
mere loading of cotton by a shipper on a car set out at a
siding as was customary at a point where the carrier had
no station or agent, neither it nor its agent having any
knowledge that the car was loaded for shipment, was not
3
R. Co. v. Keith, 8 Ind. App. 57, 35 Marchman, 121 Ga. 235, 48 S. E.
N. E. 296 (1893).
961 (1904).
Kentucky.-Newport News & N.
V. R. R. Co. v. Mendell, 17 Ky.
Law Rep. 1400, 34 S. W. 1081
(1896).
¹ Georgia S. & F. R. R. Co. v.
2 Railway Co. v. Murphy, 60
Ark. 333, 30 S. W. 419, 46 Am. St.
Rep. 202 (1895).
3 Tate v. Yazoo R. R. Co., 78
Miss. 842, 29 So. 392, 84 Am. St.
Rep. 649 (1901).
[599]
§ 735]
PUBLIC SERVICE CORPORATIONS
such a delivery to the carrier as to make it liable as a com-
mon carrier for its loss by fire before the arrival of the
train which in the regular course of business would have
transported it to its destination. The carrier will there-
fore not be liable under the custom, without express assent
and assumption of actual possession, unless the custom is
strictly followed out by depositing the goods in the cus-
tomary and reasonable place. Thus where a cutter ¹ was
placed upon the platform of a freight station and the
proper agent notified, but it was carelessly placed so that
it projected over the tracks and was struck and injured by
a passing train, the court held that the delivery was not
as perfect and complete as it should have been, and that
the carrier had never come into possession of the cutter.
§ 735. Acceptance of passengers at stations.
1
It must be obvious that the relation of carrier and pas-
senger may arise before actual transportation has begun.
Thus, if a person who intends to be carried is on board
a vehicle which is ready to start he has become a pas-
senger, though the vehicle has not yet started.2 So one
who is on a steamboat at a wharf, ready to start, is a pas-
senger, though the boat has not yet started.3 One who is
in the waiting room of a station, waiting to take the car-
rier's car, has been held to be a passenger. But the ques-
tion involved is merely the right of such person to safe
premises, or to proper treatment by the carrier's servants,
1 Grosvenor v. New York Central
R. R. Co., 39 N. Y. 34 (1868).
2 Massiter v. Cooper, 4 Esp. 260
(1803).
³ United States.-Hrebrik v. Carr,
29 Fed. Rep. 298 (1886).
New York.-Dougherty v. N. Y.
Cent. & H. R. R. R. Co., 86 N. Y.
Supp. 746 (1904).
4 Indiana.--Pere Marquette R. R.
4
Co. v. Strange, 171 Ind. 160, 84 N.
E. 819, 20 L. R. A. (N. S.) 1041
(1908).
New York.-Gordon v. Grand St.
& N. R. R. Co., 40 Barb. (N. Y.)
546 (1863).
Virginia.-Norfolk & W. R. R.
Co. v. Galliher, 89 Va. 639, 16 S. E.
935 (1893).
[ 600 ]
BEGINNING OF THE UNDERTAKING
[ § 736
and this right would exist independently of the relation of
carrier and passenger. It is better, therefore, to speak 1
of the obligation which the carrier owes "to one intending
to become a passenger" in one of its trains, who would
have a right to use the waiting room for a reasonable time
before the arrival of the expected train.2 The essential
elements are summarized thus in a recent case- a per-
son intending to become a passenger must go to the station
at a reasonable time before the time fixed for the departure
of the train upon which he intends to take passage, in a
proper manner, and there, either by the purchase of a
ticket or in some other manner, indicate to the carrier his
intention to take passage and thus place himself in the
carrier's charge." 3
§ 736. Boarding a moving vehicle.
66
It was early held that when a man, intending to take
passage in a vehicle which has stopped to receive him,
puts his foot upon the step or his hand upon a hand rail,
he has been accepted as a passenger, and the responsibility
of the carrier toward him as a passenger begins. The
leading case is the English case of Brien v. Bennett. An
omnibus had stopped for a passenger, and just as the
passenger put his foot on the step the omnibus started,
throwing the passenger to the ground; the carrier was
¹ Devens, J., in Heinlien v. Bos-
ton & P. R. R. Co., 147 Mass. 136,
16 N. E. 698, 9 Am. St. Rep. 676
(1888).
4
I. & P. Ry. Co., 103 Mo. App. 308,
77 S. W. 153 (1903).
New York.-Poucher V. New
York Central R. R. Co., 49 N. Y.
2 See also among many other 263, 10 Am. Rep. 364 (1872).
cases:
Georgia.-Central R. R. & B. Co.
v. Perry, 58 Ga. 461 (1877).
Kentucky.-Louisville & N. R. R.
Co. v. Reynolds, 71 S. W. 516, 24
Ky. Law Rep. 1402 (1903).
Missouri.—Albin v. Chicago, R.
Texas.-Texas & P. Ry. Co. v.
Jones (Tex. Civ. App.), 39 S. W.
124 (1897).
3 Fremont, E. & M. V. R. R. Co.
v. Hagblad, 72 Neb. 773, 101 N. W.
1033, 4 L. R. A. (N. S.) 254, and
cases cited (1904).
48 C. & P. 724 (1839).
[601]
§ 736 1 PUBLIC SERVICE CORPORATIONS
held liable. What Lord Abinger then said has been uni-
versally followed.¹ "I think that the stopping of the
omnibus implies a consent to take the plaintiff as a
passenger." In accordance with this reasoning it has
heen held in most cases 2 that the relation of carrier and
passenger is established the moment the vehicle begins
to slacken its speed in response to the passenger's signal.³
Where the invitation is express, there is no doubt of this.
So where a train which was going slowly was flagged by
an intending passenger, and the conductor told him to
jump on, he became a passenger at once. On the other
hand if a person gets on a moving train after it has started,
he is "outside of any implied invitation" on the part of
the carrier, and does not at once acquire the rights of a
¹ See among the many cases on
this point:
Maryland.-Central Ry. Co. v.
Smith, 74 Md. 212, 21 Atl. 706
(1891).
Massachusetts.-Gordon v. West
End St. Ry., 175 Mass. 181, 55 N.
E. 990 (1900); Davey v. Green-
field & T. F. St. Ry. Co., 177 Mass.
106, 58 N. E. 172 (1900).
Minnesota.-Smith v. St. Paul
City Ry. Co., 32 Minn. 1, 18 N. W.
827, 50 Am. Rep. 550 (1884).
2 California.—Finkeldey v. Om-
nibus Cable Co., 114 Cal. 28, 45
Pac. 996 (1896) "the slackening of
the speed in response to his signal
was an invitation from the driver
for him to board the car."
Georgia.-White v. Atlanta St.
Ry. Co., 92 Ga. 494, 17 S. E. 672
(1893).
Illinois.-North Chicago St. R.
R. Co. v. Williams, 140 Ill. 275, 29
N. E. 672 (1892) "it was a fair ques-
tion for the jury whether, under all
the circumstances, the plaintiff was
not invited to get on the car. If he
was so invited, he was a passenger."
New York. Butler V. Glens
Falls, S. H. & F. E. S. R. R. Co.,
121 N. Y. 112, 24 N. E. 187
(1890).
Texas.-Lewis v. Houston Elec.
Co. (Tex. Civ. App.), 88 S. W. 489
(1905).
3 In some jurisdictions, however,
it is held that though the car stops
in response to a signal, the person
for whom it stops does not become a
passenger until he reaches the
vehicle.
Connecticut.Donovan v. Hart-
ford St. Ry. Co., 65 Conn. 201, 32
Atl. 350, 29 L. R. A. 297.
V.
Massachusetts.-Duchemin
Boston E. Ry. Co., 186 Mass. 353,
71 N. E. 780, 66 L. R. A. 980
1904).
4 Kansas & G. S. L. Ry. Co. v.
Dorough, 72 Tex. 108, 10 S. W. 711
(1888).
[ 602 ]
BEGINNING OF THE UNDERTAKING
[ § 737
passenger.¹ In the case just cited, it is held that even his
reaching the platform of the car safely does not give him
those rights. "If he had reached a place of safety and
seated himself inside of the car, the bailment of his person
to the defendant would have been accomplished, so that
he would not have been prevented from asserting such
rights because of his improper way of getting upon the
train. But we think that he could not assert them until
he had passed the danger which met him in the threshold,
and had put himself in the proper place for the carriage
of passengers." There are variations among the author-
ities on this point, but this may go as a composite state-
ment of the law.²
§ 737. Carriage of goods secured by fraud.
When the carriage of goods is secured by some fraud
upon the carrier practiced by the shipper, the carrier does
not occupy the position of a common carrier with regard
to the goods. Thus, when one shipped a bag of money
concealed in a bundle of hay and the money was lost, the
carrier was held to be not responsible for the loss. And
in similar cases a carrier has been held not responsible for
money hidden in package of tea, or in boxes with house-
hold goods. Upon like principles it has often been held
that if the goods are tendered in such a shape as to inevi-
5
1 Merrill v. Eastern R. R. Co.,
139 Mass. 238, 1 N. E. 548, 52 Am.
Rep. 705 (1885).
2 See also:
United States.-Pennsylvania R.
R. Co. v. Reed, 60 Fed. 694 (1894).
Illinois. Illinois Central R. R.
Co. v. O'Keefe, 168 Ill. 115, 48 N. E.
294, 39 L. R. A. 148, 61 Am. St.
Rep. 68 (1897).
Massachusetts.-Lockwood v. Bos-
ton Elevated Ry. Co., 200 Mass.
537, 86 N. E. 934 (1908).
4
3
Mississippi.-Georgia Pac. Ry.
Co. v. Robinson, 68 Miss. 643, 10
So. 60 (1891).
Pennsylvania.-Sharrer v. Pax-
son, 171 Pa. 26, 33 Atl. 120
(1895).
3 Gibbon v. Paynton, 4 Burr.
2298 (1769).
4 Bradley v. Waterhouse, 3 C. &
P. 318 (1828).
5 Chicago & A. R. R. Co. v.
Thompson, 19 Ill. 578 (1858).
[603]
§ 7381
PUBLIC SERVICE CORPORATIONS
tably mislead the carrier in judging their character, then
there is not such acceptance as gives rise to the obliga-
tion which a common carrier owes a shipper. Thus, when
goods of great value were sent in an ordinary package
without declaring their nature, the carrier was not held
liable for their value in case of loss.¹ And the same de-
cision was reached where a box containing a diamond was
given a mean appearance by the shipper.2 So, where
valuable laces and jewels were packed in ordinary dry
goods boxes to look like merchandise the principle was
held to apply. And this was even held to extend to a
case where valuable clothing was hidden in bedding.ª
On the other hand if there is no apparent design to tender
the goods in false dress, the obligation seems to be upon
the carrier to inquire the value of the goods, or their
character. But this principle obviously has no applica-
tion to a case where a box containing jewels was marked
"glass," or where a very large sum of money was sent
under circumstances indicating very little value.
6
3
§ 738. Stealing a ride.
5
8
4
One who steals a ride upon a vehicle of the carrier, that
is, conceals himself, intending to evade fare, is not to be re-
garded as a passenger. And the same thing is true where
a person gets on board the carrier's vehicle, refuses either
9
¹ Batson v. Donovan, 4 B. &
Ald. 21 (1820).
2 Southern Exp. Co. v. Everett,
37 Ga. 688 (1868).
3 Warner V. Western Transp.
Co., 5 Robt. (N. Y. Sup. Ct.) 490
(1868).
4 Chicago & A. R. R. Co. v.
Shea, 66 Ill. 471 (1873).
5 Phillips v. Earle, 8 Pick. (Mass.)
182 (1829).
7 Relf v. Rapp, 3 W. & S. (Pa.)
21, 37 Am. Dec. 528 (1841).
8 Oppenheimer v. United States
Exp. Co., 69 Ill. 62, 18 Am. Rep.
596 (1873).
⁹ Georgia.-Wynn v. City & Sub-
urban Ry. Co. of Savannah, 91 Ga.
344, 17 S. E. 649 (1893).
Illinois.―Chicago, B. & Q. R. R.
Co. v. Mehlsack, 131 Ill. 61, 22 N.
E. 812, 19 Am. St. Rep. 17
• Merchants' Desp. Co. v. Bolles, (1889).
80 Ill. 473 (1875).
Indiana.-Chicago & E. Ry. Co.
[604]
BEGINNING OF THE UNDERTAKING
[ § 738
to pay fare or to leave the vehicle, and succeeds in staying
on the vehicle by force. In a case of this sort a person
entered a stagecoach with a revolver and compelled the
driver to allow him to ride without payment of fare. The
coach broke down, and he was injured and sued for dam-
ages; but it was held that he was not a passenger and could
not recover damages.¹ So where a person is riding on a
train, having used or intended to use a ticket which he
knows he has no right to use, and concealing or intending
to conceal that fact from the conductor, he is not to be
regarded as a passenger, even if the conductor permits him
to ride.2 The consent of the conductor to accept the
ticket is not material if the consent was obtained by fraud;
though probably if knowing the facts the conductor al-
lowed the substitution, the person so allowed to ride would
be a passenger; 3 and clearly, if the carrier habitually per-
mitted such substitution, in spite of the exact terms of
the ticket, the person using it in accordance with the cus-
tom would be a passenger. It sometimes happens that a
person enters a carrier's vehicle prepared to pay fare if it
4
v. Field, 7 Ind. App. 172, 34 N. E.
406 (1893).
Maryland.-State v. Baltimore &
O. R. R. Co., 24 Md. 84 (1865).
Massachusetts.-Planz v. Boston
& A. R. R. Co., 157 Mass. 377, 32
N. E. 356, 17 L. R. A. 835 (1892).
Missouri.-Muehlhausen v. St.
Louis R. R. Co., 91 Mo. 332, 2 S.
W. 315 (1886).
New York.-Barry v. Union Ry.
Co., 105 N. Y. App. Div. 520, 94
N. Y. Supp. 449 (1905).
¹ Higley v. Gilmer, 3 Mont. 90.
2 Illinois.-Toledo W. & W. Ry.
Co. v. Beggs, 85 Ill. 80, 28 Am.
Rep. 613 (1887), nontransferable
free pass issued to another.
Iowa.-Way v. Chicago, R. I. &
P. Ry. Co., 64 Ia. 48, 19 N. W. 828,
52 Am. Rep. 431 (1884), nontrans-
ferable mileage book issued to an-
other.
Kansas.-Union Pac. Ry. Co. v.
Nichols, 8 Kan., 505, 12 Am. Rep.
475 (1871), fraudulent impersona-
tion of express messenger.
V.
Massachusetts.-Fitzmaurice
New York, N. H. & H. R. R. Co.,
192 Mass. 159, 78 N. E. 418, 6 L. R.
A. (N. S.) 1146 (1906), students'
ticket obtained by fraud.
3 Way v. Chicago, R. I. & P. Ry.
Co., supra.
4 Great Northern Ry. Co. v.
Harrison, 10 Exch. Rep. 376 (1854).
[ 605 ]
§ 739 ]
PUBLIC SERVICE CORPORATIONS
is demanded, but hoping to escape the notice of the con-
ductor and so avoid paying fare. It is hard to see how
this form of fraud differs from any other, and the better
view would seem to be that such a person is not a passenger
until by paying his fare he is received as such by express
consent of the conductor.1 On the other hand one who
takes a train intending to pay his fare with a ticket which
he bona fide believes to be a good one is a passenger,
though in fact the ticket is not good for a passage in that
train; and he is to be regarded as a passenger 2 until he
learns his mistake and has a chance to leave the train, or
decides to stay on the train and pay his fare.
Topic C. Whether Acceptance is Authorized
§ 739. Who is the real proprietor.
Questions often arise as to by whom the undertaking is
professed. The service may actually be undertaken by
one party, and yet another be the party ultimately respon-
sible whom it is wished to reach. Thus it is often of first
importance to determine which one of several parties en-
gaged in the service in question is the real principal. That
question as we shall then see is often difficult of solution
by reason of the confusion in the facts; but the legal
problem is simply that of determining which party it is
who has undertaken the service of the public. Even the
ostensible manager is not the true proprietor of the public
1 See Gardner v. New Haven & N.
Co., 51 Conn. 143, 50 Am. Rep. 12
(1883), and note; Ramm v. Minne-
apolis & St. P. Ry. Co., 94 Ia. 296,
62 N. W. 751 (1895). But see
Doran v. East River Ferry Co., 3
Lans. (N. Y.) 105 (1870).
2 Indiana.-Cincinnati, H. & I.
R. R. Co. v. Carper, 112 Ind. 26, 14
N. E. 352 (1887), traveler on freight
train.
Missouri.-Short v. St. Louis &
S. F. Ry. Co. (Mo. App.), 130 S. W.
488 (1910).
Pennsylvania.-Arnold v. Penn-
sylvania R. R. Co., 115 Pa. 135, 8
Atl. 213, 2 Am. St. Rep. 542 (1887),
passenger on freight train.
West Virginia.-Boggess v. Ches-
apeake & O. Ry. Co., 37 W. Va. 297,
16 S. E. 525, 23 L. R. A. 777,
limited ticket had expired (1892).
[ 606 ]
BEGINNING OF THE UNDERTAKING
[ § 740
enterprise. Thus the salaried manager of a hotel belong-
ing to a corporation is not to be held responsible as an
innkeeper; the real owner of the enterprise, the person in
actual charge of it cannot escape responsibility by taking
out a license to conduct an inn in the name of another, or
by placing another's name on the sign or the advertise-
ments as the ostensible innkeeper. In spite of such de-
vices, the person who actually conducts the inn will be
held as the innkeeper.¹ However, it must be shown that
the party sought to be charged is in truth the proprietor
of the enterprise. Thus it was held in an early case that
the owners of a ferry were not liable for the defaults of
their lessee who operated it.2
§ 740. Situation after railroad leases.
Thus, generally speaking, it is the one who is conduct-
ing the service who assumes the duties with respect to its
facilities to the public. This proprietor is not necessarily
the owner of the facilities used; indeed very frequently
the plant is leased by the party that is operating it. The
chief example of this is to be found in the history of rail-
roads in this country which has been one of constant com-
bination of the existing roads into longer lines. This is
sometimes accomplished by a consolidation of two rail-
way corporations into one. But it is frequently done by
leasing one railroad to another, the latter road then oper-
ating both. Where this is the case, it must be clear that
the operating road is the carrier, and cannot escape lia-
bility as such. It is in fact carrying on the business of
carriage over the whole line. On the other hand, the
United States.-Illinois Central
R. R. Co. v. Sheegog, 215 U. S. 308,
30 L. ed. 101 (1909).
¹ Davis v. Button, 78 Cal. 247, 18
Pac. 133, 20 Pac. 545 (1889).
2 Ladd v. Cholard, Minor (Ala.),
366.
3 See among other cases illustrat-
ing the general principle:
3
Alabama.-South Western R. R.
Co. v. Webb, 48 Ala. 585 (1872).
Arkansas.-Eureka Springs Ry.
[ 607 ]
§ 741] PUBLIC SERVICE CORPORATIONS
leasing corporation has evidently gone out of the busi-
ness of carrying and can no longer be held to be a carrier,
though it may as a corporation, continue liable for the
reception and safe carriage of persons or goods because
of some provision in its charter.¹
§ 741. Dealings with unauthorized persons.
One who has dealings with an unauthorized person can-
not charge his alleged principal. Thus one who delivers
goods to a person purporting to act for a carrier must see
to it that the person is actually authorized by the carrier
to accept goods on his behalf; the shipper takes the risk
of the authority of the person with whom he chooses to
deal.2 In accordance with this test it is not, or may not
be, enough to charge the carrier by coach to show that
the goods were handed to the driver ³ to charge an express
company to show that the goods were handed to a man
in its uniform, or to charge a carrier by water, to show
that the goods were handed to a person standing on the
wharf, or to a deck hand or other member of the crew."
5
3
4
Co. v. Timmons, 51 Ark. 459, 11 S. Ry. Co. v. Thorton, 3 Tex. Civ.
W. 690 (1888).
App. 197, 22 S. W. 67 (1893).
Illinois. People ex rel. v. St.
Louis, A. & T. H. R. R. Co., 176 Ill.
512, 52 N. E. 292 (1898).
Massachusetts.-McCluer v. Man-
chester & L. R. R. Co., 13 Gray,
124, 74 Am. Dec. 624 (1859).
Michigan.-Patterson v. Wabash,
St. L. & P. Ry. Co., 54 Mich. 91, 19
N. W. 761 (1884).
New York.-Reidman v. Brook-
lyn, Q. C. & S. Ry. Co., 51 N. Y.
Supp. 196, 28 App. Div. 540 (1898).
North Carolina.-Dunn v. Ash-
ville & C. M. Ry. Co., 141 N. C. 521,
54 S. E. 416 (1906).
Texas.-International & G. N.
Virginia.-Winchester & S. R. R.
Co. v. Commonwealth, 106 Va. 264,
55 S. E. 692 (1906).
1
¹ Langley v. Boston & Maine R.
R. Co., 10 Gray (Mass.), 103 (1859).
2 Elkins v. Boston & Maine R. R.
Co., 23 N. H. 275 (1851).
* Blanchard v. Isaacs, 3 Barb.
(N. Y.) 388 (1848).
* Abrams v. Platt, 23 N. Y. Misc.
637, 52 N. Y. Supp. 153 (1898).
5 Buckman v. Levi, 3 Camp. 414
(1813).
• Gleason v. Goodrich Transp.
Co., 32 Wis. 85, 14 Am. Rep. 716
(1873).
[ 608 ]
BEGINNING OF THE UNDERTAKING
[ § 742
It is, however, sufficient to deliver the goods to a servant
of the carrier who is usually employed in receiving and
forwarding goods for the carrier; for a shipper has a right
to assume that such a person has ample authority to deal
with him in this matter.¹
$ 742. For whom a servant acts.
The possibility is to be considered that the servant of
the proprietor may be acting as the servant of the patron
in doing the act in question. This is often, as will be seen,
a close question of fact. The issue is perhaps best brought
out in certain of the telegraph cases. It would seem to be
clear that a telegraph operator in writing a message down
for the sender acts almost invariably as his amanuensis.
And so the majority of the cases hold 2 although there is
some dissent. But it is a doubtful question whether a
telegraph boy bringing a message to a telegraph office is
acting for the sender, or for the company.5 The doubt
is whether it is the company that the messenger is acting
for, or whether the sender consciously adopts the servant
3
4
¹ The City of Alexandria, 28 Fed.
202 (1886).
2 The company was held not lia-
ble in:
North Carolina.-Pegram v. W.
U. Tel. Co., 100 N. C. 28, 6 S. E.
770, 6 Am. St. Rep. 557 (1888).
Texas.-Western Union Tel. Co.
v. Edsall, 63 Tex. 668 (1885);
Western Union Tel. Co. v. Foster,
64 Tex. 220. 53 Am. Rep. 754
(1885); Gulf, Colorado & S. F. Ry.
Co. v. Geer, 5 Tex. Civ. App. 349,
24 S. W. 86 (1893).
3 The company was held liable in:
Indiana.-Western Union Tel.
Co. v. Sanders, 39 Ind. App. 146,
79 N. E. 406 (1906).
Pennsylvania. — Western Union
Tel. Co. v. Stevenson, 128 Pa. St.
442, 18 Atl. 441, 15 Am. St. Rep.
687, 5 L. R. A. 515 (1889).
• The company was held not lia-
ble in Stamey v. Western Union
Tel. Co., 92 Ga. 613, 18 S. E. 1008,
44 Am. St. Rep. 95 (1894).
5 The company was held liable in
Will v. Postal Tel. Cable Co., 3
App. Div. 22, 37 N. Y. Supp. 933
(1896).
On the other hand the agent of
another may be held out as one's
own. Thus a telegraph operator
permitted to act for the railway as a
ticket agent subjects the railroad
company to liabilities. Rohrig v.
Chicago. R. I. & P. Ry. Co., 130
Ia. 380, 106 N. W. 935 (1906).
39
[ 609 ]
§ 743 ] PUBLIC SERVICE CORPORATIONS
as his own, being apprised that the company never send
for messages except as a favor in particular cases.
§ 743. Independent service by servant.
Where the customer is dealing with an employé it is
sometimes difficult to say whether the servant is under-
taking public service on behalf of his master or whether
he is agreeing to a private service in his personal capacity.
Thus in one set of early cases the question was repeatedly
raised as to the liability of the proprietor of a conveyance
where a parcel is given to the servant of a carrier under
such circumstances that it seems doubtful whether the
servant or the master becomes the bailee and carrier. It
is quite possible for the servant of a carrier to take and
carry goods independently of his master, and when this is
alleged to be the case all the circumstances must be ex-
amined to determine the question. If the shipper is
aware that the carriage is a private matter, for the private
gain of the servant, he cannot hold the master liable;
and so if he delivers to the servant to be carried gratui-
tously, as a matter of friendship, since such an arrange-
ment is not a business arrangement and could hardly be
supposed by the shipper to be made on the master's ac-
count.¹ The mere fact that by an arrangement between
the carrier and his servant the latter was to receive the
compensation would not absolve the carrier from liability
¹ In the following cases collected
from many others this issue is well
discussed:
United States. Suarez v. The
Washington, 1 Woods, 96 (1871),
Fed. Cas. No. 13,585 (1870); Citi-
zens' Bk. v. Nantucket Sb. Co., 2
Story, 16 (1841).
Louisiana.-Mechanics' & T.
Bank v. Gordon, 5 La. Ann. 604
(1850).
Missouri.-Choteau v. The St.
Anthony, 16 Mo. 216 (1852).
Pennsylvania.-Sneider v. Geiss,
1 Yeates (Pa.), 34 (1791).
England.—Butler v. Basing, 2 C.
& P. 613 (1827).
Similarly in King v. Lenox, 19
Johns. 235 (1821), commissions in-
trusted to the captain within his
"master's privilege" were held not
chargeable to the owners.
[ 610]
BEGINNING OF THE UNDERTAKING [§§ 744, 745
if he had permitted it to be understood that he authorized
the transaction.1
§ 744. Private arrangement with employé.
To cite still other instances, baggage given over to the
porter of a hotel will either be a bailment to the innkeeper
or a private arrangement with the porter as the under-
standing may be." When the customer is aware that the
service is outside the scope of the employment or apprised
that the service is a private matter for the private gain of
the employé himself, he cannot then hold the proprietor
liable. It may be added that such dealings with the serv-
ant are obviously upon a private basis in such cases, for
it would almost never appear that the servant was under-
taking such accidental services with publicity and regu-
larity for fixed charges and without discrimination.3
§ 745. Guests invited by servants.
One who is received as a guest upon the invitation of the
servant of the proprietor certainly should understand that
he does not fall within the profession of that master. Thus
one who is riding in the carrier's vehicle, not as ordinary
passengers ride, but upon invitation of the carrier's serv-
1 Alabama.-Knox v. Rives, 14
Ala. 249, 48 Am. Dec. 97 (1848).
Massachusetts.-Dwight v. Brew-
ster, 1 Pick. 50, 11 Am. Dec. 133
(1822).
Mississippi.-Powell v. Mills, 30
Miss. 231 (1855).
New Hampshire.-Bean v. Sturte-
vant, 8 N. H. 146, 28 Am. Dec. 389
(1835).
Pennsylvania.
Beckman
Shouse, 5 Rawle, 179 (1835).
V.
Vermont.-Farmers' & Mechan-
ics' Bank v. Champlain T. Co., 23
Vt. 186, 56 Am. Dec. 68 (1851).
2 Acceptance obviously on private
basis:
Pennsylvania.-Houser v. Tully,
62. Pa. 92, 1 Am. Rep. 390 (1869).
Tennessee.-Tulane Hotel v.
Holohan, 112 Tenn. 214, 79 S. W.
113 (1903).
Acceptance apparently on public
basis:
Georgia.-Coskery v. Nagle, 83
Ga. 696, 10 S. E. 491, 20 Am. St.
Rep. 333, 6 L. E. A. 483 (1889).
Pennsylvania.-Sneider v. Geiss,
1 Yeates (Pa.), 34 (1791).
Shelden v. Robinson, 7 N. H.
157, 26 Am. Dec. 726 (1834).
[611]
§ 745]
PUBLIC SERVICE CORPORATIONS
ant, without paying fare, is not a passenger; his relation
is with the servant, not with the carrier.¹ Thus, where a
yard master out of hours took an engine and car without
permission of the defendant company, and invited persons
to ride free in the car to a meeting, over a portion of the
road not used for passenger trains, he was held not to have
even apparent authority to act for the company, and the
persons so riding were not passengers.2 And where a
party of children were invited by a servant of the carrier
to ride on a train which was being shifted through the
yard, they were not passengers.3 However far the ap-
1 United States.-Waterbury v.
New York Central & H. R. R. R.
Co., 17 Fed. Rep. 671 (1883), rid-
ing on engine by consent of en-
gineer; Clark v. Colorado & N. W.
Ry. Co., 165 Fed. 408, 91 C. C. A.
358, 19 L. R. A. (N. S.) 988 (1908),
riding in cab by invitation of en-
gineer.
Colorado.-Atchison, T. & S. F.
R. R. Co. v. Headland, 18 Colo. 477,
33 Pac. 185, 20 L. R. A. 822 (1893),
conductor induced to let plaintiff
ride free on freight train.
Illinois. Toledo, W. & W. Ry.
Co. v. Brooks, 81 Ill. 245 (1876),
conductor induced to let plaintiff
ride free on passenger train; Chi-
cago & A. R. R. Co. v. Michie, 83
Ill. 427 (1876), riding on engine by
consent of engineer.
V. St.
Minnesota.-McVeety
Paul, M. & M. Ry. Co., 45 Minn.
268, 47 N. W. 809, 11 L. R. A. 174,
22 Am. St. Rep. 728 (1891), riding
free on freight train.
Missouri.-Youmans v. Wabash
Ry. Co. (Mo. App.), 127 S. W. 959
(1910), conductor induced to let
plaintiff ride free on freight train.
Nebraska.-Woolsey v. Chicago,
B. & Q. R. R. Co., 39 Neb. 798, 58
N. W. 444, 25 L. R. A. 79 (1894),
riding on engine by consent of fire-
man, to shovel coal.
New York.-Robertson v. New
York & E. R. R. Co., 22 Barb. (N.
Y.) 91 (1856), riding on engine by
consent of engineer.
2 Chicago, St. P., M. & O. Ry. Co.
v. Bryant, 65 Fed. Rep. 969 (1895).
³ Reary v. Louisville, N. O. & T.
Ry. Co., 40 La. Ann, 32, 3 So. 390, 8
Am. St. Rep. 497 (1888).
In a few cases, however, it has
been held that children riding on a
vehicle by invitation of a servant of
the company are entitled to be re-
garded as passengers. Thus, where
the driver of a street car invited
children to ride on the front plat-
form, they were held to be pas-
sengers. Wilton v. Middlesex R. R.
Co., 107 Mass. 108, 9 Am. Rep. 11
(1871); Muehlhausen v. St. Louis
R. R. Co., 91 Mo. 332, 2 S. W. 315
(1886); Buck v. People's St. Ry. &
E. L. & P. Co., 108 Mo. 185, 18 S.
W. 1090 (1892). And where a con-
ductor invited a boy to ride in a
[ 612]
BEGINNING OF THE UNDERTAKING
[ § 746
parent authority of a conductor may be held to extend, it
cannot cover an invitation to ride free; free carriage is not
the carrier's business.¹ If one riding free by invitation of
a servant is not a passenger, a fortiori one who by mis-
representation induces the servant to let him ride free is
not a passenger, and still more clearly one who bribes
the servant by a small fee to let him ride without paying
the regular fare is not a passenger.²
§ 746. Service obtained by connivance.
One who is on the carrier's vehicle not by any arrange-
ment with the carrier, but by the connivance of the con-
ductor, for the purpose of selling newspapers or other
articles to the passengers, is not in any sense a passenger,
and is entitled to little more care than a trespasser.³ A
newsboy jumping on and off a moving street car to sell
his newspapers without being stopped by the conductor
is not a passenger. So where a person on a train induces
the conductor out of charity," or by misrepresentation, to
4
St.
freight train (on which passengers
were sometimes carried) the boy
was held to be a passenger.
Joseph & W. R. R. Co. v. Wheeler,
35 Kan. 185, 10 Pac. 461 (1886);
Sherman v. Hannibal & S. J. R. R.
Co., 72 Mo. 62, 37 Am. Rep. 423
(1880); Whitehead v. St. Louis, I.
M. & S. Ry. Co., 99 Mo. 263, 11 S.
W. 751, 6 L. R. A. 409 (1889). But
these cases can hardly be supported.
1 United States.-Condran v. Chi-
cago, M. & St. P. Ry. Co., 67 Fed.
522 (1895).
Colorado.—Atchison, T. & S. F.
R. R. Co. v. Headland, 18 Colo. 477,
33 Pac. 185, 20 L. R. A. 822 (1893).
2 Minnesota.—McNamara v. Gt.
Northern Ry. Co., 61 Minn. 296, 63
N. W. 726 (1895); Brevig v. Chi-
cago. St. P., M. & O. Ry. Co., 64
Minn. 168, 66 N. W. 401 (1896).
Texas.-Rucker v. Missouri Pac.
Ry. Co., 61 Tex. 499 (1884).
Upon similar principles a traveler
refused by an innkeeper because the
inn was full, who was taken in by a
guest was held not to be a guest him-
self. Bird v. Bird, Anderson, 29.
3 Connecticut.-Griswold v. New
York & N. E. R. R. Co., 53 Conn.
371, 55 Am. Rep. 115 (1885).
Missouri.—Padgitt v. Moll. &
Citizens' Ry. Co., 159 Mo. 143, 60
S. W. 121 (1900).
4 Barry v. Union Ry. Co., 105
App. Div. 520, 94 N. Y. Supp. 449
(1905).
5 Toledo, W. & W. Ry. Co. v.
Brooks, 81 Ill. 245 (1876).
[ 613]
§ 747 1
PUBLIC SERVICE CORPORATIONS
allow him to ride free, such a person is not a passenger.
"It is manifest that if a person were stealthily, and wholly
without the knowledge of any of the employés of the
company, to get upon a train and secrete himself, for the
purpose of passing from one place to another, he could
not recover if injured. In such a case his wrongful act
would bar him from all right to compensation. Then,
does the act of the person who knowingly induces the
conductor to violate a rule of the company, and prevails
upon him to disregard his obligations to fidelity to his
employer, to accomplish the same purpose, occupy a
different position or is he entitled to any more rights?
He thereby combines with the conductor to wrong and
defraud his employer out of the amount of his fare, and
for his own profit." 1
§ 747. Bill of lading issued without goods.
Since a bailment is required before the carrier of goods
becomes responsible as such, it must be clear that without
such bailment one cannot be a carrier of goods. It some-
times happens that a bill of lading is issued by the servant
of a carrier without a delivery to the carrier of the goods
named in the bill. According to what is clearly the
weight of authority the issue of a bill of lading by a servant
under these circumstances does not make his master liable
One obtaining permission from
the conductor to ride upon a freight
train for less than the regular fare,
who is shut into a freight car for the
trip, has not the rights of a passen-
ger. Grahn v. International & G.
N. Ry. Co., 100 Tex. 27, 93 S. W.
104, 5 L. R. A. (N. S.) 1025 (1906).
1 United States.-Condran v. Chi-
cago, M. & St. P. Ry. Co., 67 Fed.
522, 14 C. C. A. 506, 32 U. S. App.
182, 28 L. R. A. 749 (1895).
Colorado.-Atchison, T. & S. F.
R. R. Co. v. Headland, 18 Colo.
477, 33 Pac. 185, 20 L. R. A. 822
(1893).
Kansas.-Mendenhall v. Atchi-
son, T. & S. F. Ry. Co., 66 Kan.
438, 71 Pac. 846, 61 L. R. A. 120
(1903).
Pennsylvania.-Duff v. Allegheny
V. R. R. Co., 91 Pa. 458, 36 Am.
Rep. 675 (1879).
[614]
BEGINNING OF THE UNDERTAKING
[ § 748
in any way therefor, not even to a purchaser for value
without notice.¹ In the leading case of Grant v. Norway 2
this is thus explained. "It is not contended that the
captain had any real authority to sign bills of lading,
unless the goods had been shipped. Nor can we discover
any ground upon which a party taking a bill of lading by
indorsement would be justified in assuming that he had
any authority to sign such bills, whether the goods were on
board or not."
§ 748. Jurisdictions holding carrier liable.
In other jurisdictions, however, it is held that if a bill
of lading is issued by the proper agent of the carrier with-
out receiving the goods and is indorsed for value by the
taker to a bona fide purchaser, the carrier cannot as against
him dispute the receipt of the goods. There is much to
1 United States.-Schooner Free-
man v. Buckingham, 18 How. (U.
S.) 182, 15 L. ed. 341 (1855); Pol-
lard v. Vinton, 105 U. S. 7, 26 L. ed.
998 (1881); The Loon, 7 Blatch.
244, Fed. Cas. No. 8499 (1870);
Clark v. Clyde S. S. Co., 148 Fed.
243 (1905).
Louisiana.-Fellows V. The
Powell, 16 La. Ann. 316, 79 Am.
Dec. 581 (1851).
Maryland.-Baltimore & O. R. R.
Co. v. Wilkens, 44 Md. 11, 22 Am.
Rep. 26 (1875).
Massachusetts.-Sears v. Win-
gate, 3 Allen, 103 (1861).
Minnesota.-National Bank of
Commerce v. Chicago, B. & N. Ry.
Co., 44 Minn. 224, 46 N. W. 342, 9
L. R. A. 263, 20 Am. St. Rep. 566
(1890).
Missouri.-Louisiana Nat. Bank
v. Lavielle, 52 Mo. 380 (1873).
Illinois Central R. R. Co., 67 Miss.
32, 7 So. 280 (1889).
V.
North Carolina.-Williams
Wilmington & W. R. R. Co., 93 N.
C. 42 (1885).
Ohio.-Dean v. King, 22 Ohio St.
118 (1871).
Washington.-Roy
& R. V.
Northern Pacific Ry. Co., 42 Wash.
572, 85 Pac. 53, 6 L. R. A. (N. S.)
302 (1906).
2 10 C. B. 665 (1851).
³ Alabama.-Jasper Trust Co. v.
Kansas City, M. & B. R. R. Co., 99
Ala. 416, 14 So. 546, 42 Am. St.
Rep. 75 (1892).
Connecticut.-Relyea V. New
Haven R. M. Co., 42 Conn. 579
(1873).
Kansas.-Wichita Sav. Bank v.
Atchison, T. & S. F. Ry. Co., 20
Kan. 519 (1878).
Nebraska. Sioux City & P. Ry.
Mississippi.—Hazard & C. v. Co. v. First Nat. Bank of F., 10
[615]
$ 748 ]
PUBLIC SERVICE CORPORATIONS
be said for this view both on general principle and as to its
practical effect. Theoretically, to hold the carrier liable
for such acts of his agent would be going no further than
the law usually goes in holding a principal liable for acts
of his agent within his apparent authority. Practically
there is good ground for an estoppel, as the cases just
cited urge. The carrier is not responsible as such on the
real facts; but in this particular case the real facts cannot
be shown against a purchaser for value without notice.
At all events the bill should be conclusive against the car-
rier who himself signs the document; and so where a car-
rier issued two bills of lading for the same goods, and the
two bills came into the hands of two holders for value and
without notice, it was held that the carrier could not dis-
pute the receipt of two lots of goods.¹
Neb. 556, 7 N. W. 311, 35 Am. St.
Rep. 488 (1880).
New York.-Armour v. Michigan
Central Ry. Co., 65 N. Y. 111, 22
Am. Rep. 603 (1875).
Pennsylvania.—Brooke v. New
York, L. E. & W. Ry. Co., 108 Pa.
St. 529, 1 Atl. 206, 56 Am. Rep.
235 (1885).
Tennessee.-Watson v. Memphis
& T. Ry. Co., 9 Heisk. 255
(1872).
¹ Coventry v. Great Eastern Ry.
Co., 11 Q. B. D. 776 (1883). Ap-
parently there is no conflict of au-
thority as to the liability of a carrier
who himself makes the bills.
[ 616 ]
PART VI. MANAGEMENT OF THE
BUSINESS
CHAPTER XXII
BASIS OF THE UNDERTAKING
§ 750. Whether the transaction is public or private.
Topic A. Service Rendered upon a Special Basis
§ 751. Boarders at an inn.
752. Special acceptance as guest.
753. Chartered accommodations.
754. Special passenger trains.
755. Special freight trains.
756. Regular train established upon special guaranty.
757. Excursion trains.
758. Chartered train.
Topic B. Unusual Methods of Service
§ 759. Passengers traveling in an unusual place.
760. Whether there is acceptance in such cases.
761. Vehicle not intended for passengers.
762. Carriage on construction trains.
763. Passenger carriage on freight trains.
764. Such transportation often upon a private basis.
765. Special services in telephoning.
766. Unrepeated telegrams.
Topic C. Peculiar Conditions of Service
§ 767. Owner accompanying his goods.
768. Carrier in general control.
769. Luggage carried by passengers.
770. Special arrangements with innkeepers.
771. Goods taken across a ferry.
772. Owner going with his freight.
773. Switching cars.
774. Towing vessels.
[ 617 ]
§ 750]
PUBLIC SERVICE CORPORATIONS
§ 775. Responsibility for through cars.
776. Relations with dependent services.
Topic D. Special Arrangements with Particular Classes
§ 777. Mail clerks.
778. Express messengers.
779. Employés of car companies.
780. Owners accompanying their shipments.
781. Employés of contracting shippers.
782. Concessionaires in general.
783. Employés while on duty.
784. Employés receiving independent service.
785. Full liability in gratuitous service.
786. Explicit limitation to private basis.
§ 750. Whether the transaction is public or private.
It has been seen that unless there has been a public
profession to perform the service in question there is no
duty to undertake that service. But this is not all. Sup-
pose that one engaged in a public employment makes a
special arrangement with one whom he would have been
obliged to serve is this service upon a public or a private
basis? Or suppose not being obliged to serve the particu-
lar applicant he actually receives him as though he were—
is this service upon a public or a private basis? It is im-
portant to get from the cases discussed in this chapter a
clear conception of the conclusive effect of the actual re-
ception. If there has been actual acceptance in a particu-
lar case the question whether the acceptance was upon a
public or a private basis is not settled by determining
whether the service was obligatory or not; for whatever
the presumption may be in a given case, this may be
negatived by the proof as to the actual basis of the accept-
ance.¹ These distinctions are shown plainly in the two
1
¹ In the late case of Santa Fe, P. &
P. Ry. Co. v. Grant Bros. Const.
Co. (Ariz.), 108 Pac. 467 (1910),
the traditional law on this point is
thus elaborately stated: "The tests
whether a carrier is a a 'common
carrier' are: First, he must be en-
gaged in the business of carrying
goods for others as a public em-
ployé, and so hold himself out; seo-
[ 618 ]
BASIS OF THE UNDERTAKING
[ § 751
sections immediately following. In the first it is pointed
out that, although obliged to receive a traveler as a guest,
the innkeeper may, by special arrangement with him,
receive him as a boarder. In the second, it is shown that
although not obliged to receive a neighbor as a guest, an
innkeeper may voluntarily receive him as such.
Topic A. Service Rendered upon a Special Basis
§ 751. Boarders at an inn.
An innkeeper may, and commonly does, entertain not
merely transient guests, but other persons who stay at
the inn for a considerable period, making in fact their
residence there; such persons are boarders, not guests.¹
If a person is at an inn for entertainment, the question
whether he is a guest or a boarder is a question of fact,
the crucial point being whether he is taken as a traveler
or whether a special arrangement is made with him.2 The
relation of innkeeper and guest once being established
will be presumed to continue until the contrary appears,
and not to be changed to the relation of host and boarder.
The relation is not necessarily and conclusively changed
ond, he must undertake to carry
goods of the kind to which his busi-
ness is confined; third, he must un-
dertake to carry by the methods by
which his business is conducted and
over his established roads; fourth,
transportation must be for hire;
and, fifth, an action must lie
against him if he refused without
reason to carry such goods for those
willing to comply with his terms."
¹ Connecticut.—Walling v. Pot-
ter, 35 Conn. 183 (1868).
Massachusetts.-Hall v. Pike, 100
Mass. 495 (1868).
New Mexico.-Horner v. Hai vey,
3 N. Mex. 197, 5 Pac. 329 (1885).
Pennsylvania.-Jeffords v. Crump,
12 Phila. (Pa.) 500 (1878).
Utah.-Lawrence v. Howard, 1
Utah, 142 (1874).
2 Arizona.-Haff v. Adams, 6
Ariz. 395, 59 Pac. 111 (1899).
California.-Magee v. Pacific Im-
provement Co., 98 Cal. 678, 33 Pac.
772 (1893).
Iowa.-Pollock v. Landis, 36 Ia.
651 (1873).
Massachusetts.-Hall v. Pike, 100
Mass. 495 (1868).
New York.-Hancock v. Rand,
94 N. Y. 1, 46 Am. Rep. 112 (1883).
New Brunswick.-Light v. Abel,
6 Allen, 400 (1866).
:
[ 619]
§ 752 1
PUBLIC SERVICE CORPORATIONS
by an agreement as to price, or any definite length of
sojourn.¹ When one is staying at the inn under a con-
tract by which he is to remain there a certain considerable
time, and in return gets a special rate for board, he is pre-
sumably a boarder.2 But the mere fact that he has stayed
for a week or longer, and that he is paying the weekly
rather than the daily rate, does not prove that he is a
boarder. 3
§ 752. Special acceptance as guest.
On the other hand a person not entitled to demand ad-
mittance, not being a bona fide traveler, will become a
guest and entitled to all the rights of a guest if he is re-
ceived voluntarily in the inn upon the footing of a guest.
The innkeeper has a right to refuse to receive him, but
that right he may waive; and he does waive it by con-
senting to receive the guest. Thus it is usually stated
that one who lives in the same town with the innkeeper
cannot be a guest, since he is not a traveler seeking en-
tertainment during his journey. While it is true that
such a person is often received to be entertained out of
1 Ross v. Mellin, 36 Minn. 421,
32 N. W. 172 (1887).
2 Arizona.-Haff v. Adams, 6
Ariz. 395, 59 Pac. 111 (1899).
California.
Beach Development Co., 87 Cal.
483, 26 Pac. 92, 22 Am. St. Rep.
265 (1891).
Moore V. Long
Iowa.-Shoecraft v. Bailey, 25 Ia.
553 (1868).
Kansas.-Johnson v. Reynolds, 3
Kan. 257 (1865).
New York.-Smith v. Keyes, 2
Th. & C. (N. Y.) 650 (1874).
Tennessee.—Meacham v. Gallo-
way, 102 Tenn. 415, 52 S. W. 859,
46 L. R. A. 319, 73 Am. St. Rep.
886 (1899).
Australia.-Ex parte M'Manus,
6 Austral. L. T. (Vict.) 12 (1884).
3 Alabama.-Beale v. Posey, 72
Ala. 323 (1882).
California.-Fay v. Pacific Im-
provement Co., 93 Cal. 253, 26 Pac.
1099, 28 Pac. 943, 27 Am. St. Rep.
198, 16 L. R. A. 188 (1892).
Iowa.-Pollock v. Landis, 36 Ia.
651 (1873).
Massachusetts.-Berkshire Wool-
en Co. v. Proctor, 7 Cush. (Mass.)
417 (1851).
Michigan.-Polk & Co. v. Melen-
backer, 136 Mich. 611, 99 N. W.
867 (1904).
Minnesota.-Ross v. Mellin, 36
Minn. 421, 32 N. W. 172 (1887).
[ 620 ]
BASIS OF THE UNDERTAKING [§§ 753, 754
friendship merely, and therefore is not a guest,¹ yet if he
is really received on the footing of a guest the relation of
host and guest is thereby established.2
§ 753. Chartered accommodations.
When the owner of a vehicle makes a lease of it to
another party, who uses it for the carriage of goods,
plainly the lessor is not the carrier. Thus, in Bell v.
4
Pidgeon,³ the owner of some scows, which he used in his
business, leased them to others for the transportation of
their chalk. It was held that the owner was in no sense
a carrier, since he neither took possession nor furnished
the motive power. And in the Daniel Burns, it was held
that a canal boat hired at a daily rate for use in storing
grain about the harbor, subject wholly to the control of
the hirer in respect to loading, unloading, navigation, and
delivery of the cargo, was not carrying. In Campbell v.
Perkins, where the defendants owned a line of boats,
and used them as common carriers of passengers and goods,
and chartered one of them to another company for a
single trip, but retained the charge of it, and of navigating
it, it was held that they were liable to a passenger for the
loss of his baggage. There are other cases of this type.
5
§ 754. Special passenger trains.
A railroad may run a special train, not intended for
New York.-Metzger v. Schnabel,
23 N. Y. Misc. 698, 52 N. Y. Supp.
105 (1898).
North Carolina.-Holstein v. Phil-
lips, 146 N. C. 366, 59 S. E. 1037,
14 L. R. A. 475 (1907).
Wisconsin.-Jalie v. Cardinal, 35
Wis. 118 (1874).
Canada. Whiting v. Mills, 7
Upp. Can. Q. B. 450 (1849).
6
¹ Walling v. Potter, 35 Conn. 183
(1868).
2 Orchard v. Bush (1898), 2 Q. R.
284, 67 L. J. Q. B. 650, 78 L. T.
Rep. 557, 46 W. R. 527 (1898).
35 Fed. 634 (1882).
4 52 Fed. 159 (1892), aff'd 56 Fed.
605 (1893).
5 4 Selden (N. Y.), 430 (1853).
6 Phelps v. Windsor Stb. Co., 131
N. C. 12, 42 S. E. 335 (1902).
[ 621 ]
§ 754]
PUBLIC SERVICE CORPORATIONS
1
passengers in general, in which therefore no one can claim
to be carried as a passenger as of right. In a case in Geor-
gia ¹ this problem is well covered. It appeared that there
had been a wreck on a branch of the defendant's road,
several miles from the town of Washington, by reason
of which regular traffic on that branch had been suspended.
A train was run from Washington to the scene of the
wreck, and the plaintiffs and others requested permission
of the conductor in charge of the train to ride thereon,
which was granted. This train, on its return trip, did not
leave the scene of the wreck until about midnight, and,
when it did, the conductor, acting under instructions from
the superintendent of the railroad, refused to transport the
plaintiffs, who walked back to Washington and brought
suit for the refusal. The court held that the action would
not lie. Mr. Justice Candler said: "The train upon which
the plaintiffs rode from Washington to the scene of the
wreck was in no sense a regular passenger train. Indeed,
it was neither regular nor passenger.
Its sole purpose
was to meet an emergency with which the employés of
the defendant were confronted. This fact was well known
to the plaintiffs. The defendant was under no obligation
to transport them on this train at all." 2
1 Louisville & N. R. R. Co. v.
Du Bose, 120 Ga. 339, 47 S. E. 917
(1904).
Upon similar principles it was
recently held that a street railroad
had the right to refuse to carry
passengers on cars during their
passage between the barns and the
lines where they were to be put in
service. Hermann v. St. Joseph
Ry., Light, Heat & Power Co. (Mo.
App.), 129 S. W. 414 (1910).
But if one is accepted upon a
special car as a passenger he has the
rights of one. McCarter v. Green-
ville Traction Co., 72 S. C. 134, 51
S. E. 545 (1905).
2 See also:
Georgia.-Southwestern R. R. Co.
v. Singleton, 66 Ga. 252 (1880).
Missouri.-Wagner v. Mo. Pac.
Ry. Co., 97 Mo. 512, 10 S. W. 486,
3 L. R. A. 146 (1888).
Minnesota.-Ahern v. Minn. St.
Ry. Co., 102 Minn. 435 (1907).
Tennessee.-Louisville & N. R.
R. Co. v. Stacker, 86 Tenn. 343, 6
S. W. 737, 6 Am. St. Rep. 840
(1888).
[622]
BASIS OF THE UNDERTAKING [§§ 755, 756
§ 755. Special freight trains.
Where cars loaded with freight are to be hauled in a
special train at special times not on the regular schedule
and by a special arrangement, the railroad company in
so hauling the cars is not a common carrier. This ar-
rangement is commonly made between the owner of a
circus and the railroad which transmits the establishment
from one place of exhibition to another. The circus is
transported in a special train, made up exclusively of the
circus cars, on a special schedule of time, and for a price
less than the regular rates; and the owner furnishes men
to load and unload. For such transportation the railroad
is not responsible as a common carrier.¹ In the leading
case on the subject,2 Mr. Justice Campbell said: "The
business of common carrier, while it prevents any right
to refuse the carriage of property such as is generally car-
ried, 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."
§ 756. Regular train established upon special guaranty.
If a regular train is established upon the guaranty by
an individual of the expense of maintaining it, the rail-
¹ United States.-Chicago, M. &
St. P. R. R. Co. v. Wallace, 66 Fed.
506, 30 L. R. A. 161 (1895); Wilson
v. Atlantic C. L. R. R. Co., 129
Fed. 774 (1904).
Indiana.-Cleveland, C., C. &
St. L. Ry. Co. v. Henry, 170 Ind.
94, 83 N. E. 710 (1908).
Massachusetts.-Robertson v. Old
Colony R. R. Co., 156 Mass. 525,
31 N. E. 650, 32 Am. St. Rep. 482
(1892).
Michigan.-Coup v. Wabash, St.
L. & P. Ry. Co., 56 Mich. 111, 22
N. W. 215, 56 Am. Rep. 374 (1885).
New York.-Brown v. Weir, 88
N. Y. Supp. 479, 95 App. Div. 78
(1904).
Pennsylvania. Forepaugh v. Del-
aware, L. & W. R. R. Co., 128 Pa.
St. 217, 18 Atl. 503, 15 Am. St. Rep.
672, 5 L. R. A. 508 (1889).
2 Coup v. Wabash, St. L. & P.
Ry. Co., supra.
[ 623 ]
§ 756]
PUBLIC SERVICE CORPORATIONS
road is none the less a common carrier in running the
train, and it cannot give the guarantor an advantage
over his business rivals. This question was raised and
elaborately discussed in the case of Memphis News Pub-
lishing Company v. Southern Railway Company.¹ In
that case it appeared that a railroad company contracted
with a newspaper publisher, agreeing to run a special
early morning train carrying only the newspapers of the
publisher, in consideration of the publishing company
guaranteeing to it a certain revenue from the operation
of the train. This train became one of its scheduled trains,
and was advertised as such. It was controlled exclusively
by the company, and all the revenue derived from its
operation in the carrying of passengers and freight was
its property. It was held that the railroad could not,
relying on its contract, refuse to carry on such train news-
papers tendered it by a rival publishing house, which
offered to comply with all the conditions as to indemnity,
complied with by the house making the contract, and
the fact that the publishing company solicited the institu-
tion of the train was held immaterial. One of the most
enlightening opinions in the books as to the real extent
of public duty was given upon this case by Chief Jus-
tice Beard. It concludes thus: "These general principles
being established, what is there to prevent their applica-
tion in this case? We see nothing. A railroad by its very
nature, as has been seen, is a common carrier. The train
in question is a scheduled one, advertised to the world
as such. An invitation is given to the public to take pas-
sage and ship freight upon it. Its own employés, mana-
gers, and the railway company appropriate all its reve-
nues. So far as the record shows, it receives on this train
merchandise from every other member of the community,
and refuses carriage alone to that of this complainant;
¹ 110 Tenn. 684, 75 S. W. 941, 63 L. R. A. 150 (1903).
[ 624 ]
BASIS OF THE UNDERTAKING
[§ 757
and this refusal is based, not upon a lack of carrying ca-
pacity, but exclusively upon the ground that it has con-
tracted away its duty, in respect to such property as the
complainant has tendered, to another party. Such an
excuse cannot relieve the railway company from its ob-
ligations to complainant as one of the public.
757. Excursion trains.
22 1
When a railroad company hires a train to private in-
dividuals to use as an excursion train, the railroad in
running the train is not strictly a common carrier,² and
cannot be compelled to carry any person on the train who
is not invited by the lessee." "The railroad company,
having provided for meeting the reasonable demands of
the public for the carriage of passengers, is at liberty to
employ its trains in its own way, with the proviso that
these trains must, as a matter of public policy, be operated
and run by its own qualified servants, for the protection
and safety of life and property. Nevertheless the rail-
road is under the same duty toward any person invited
by the lessee, or to whom the latter sells a ticket, that it
¹ See also the following cases as to
public trains in general:
Arizona. Santa Fe, P. & P. Ry.
Co. v. Grant Bros. C. Co. (Ariz.),
108 Pac. 467 (1910).
Indiana.-Citizens' St. Ry. Co.
v. Twiname, 111 Ind. 587, 13 N. E.
55 (1887).
Iowa.-Kellow, Jr., Admr., v.
Cent. Ia. Ry. Co., 68 Ia. 470, 23
N. W. 740, 56 Am. Rep. 858 (1886).
Minnesota.—Oviatt v. Dak. Cent.
Ry. Co., 43 Minn. 300, 45 N. W.
436 (1890).
New York. Springer v. Wescott,
29 N. Y. Supp. 149, 78 Hun, 365
(1894).
4
Tennessee.-Nashville & C. R. R.
Co. v. Messino, 1 Sneed, 220
(1853).
Texas.-Galveston C. R. R. Co.
v. Hewitt, 67 Tex. 473, 3 S. W. 705,
60 Am. Rep. 32 (1887).
2 The cases on this subject are
well collected in Fitzgibbons v.
Chicago & N. W. R. R. Co., 108
Ia. 614, 79 N. W. 477 (1889).
3 Moore v. St. Louis, I. M. & S.
Ry., 67 Ark. 389, 55 S. W. 161
(1900).
4 Bunn, C. J., in his dissenting
opinion in Moore v. St. Louis, I. M.
& S. Ry. Co., supra.
40
[ 625]
§ 758]
PUBLIC SERVICE CORPORATIONS
3
is under to any passenger. It is therefore liable to one
who having been allowed by the lessee to buy a ticket
is then refused by him permission to ride,¹ or is assaulted
or insulted by other excursionists,2 or is negligently in-
jured by an accident to the train. It should be pointed
out, moreover, that if such a train is stopped at a regular
station and a traveler is permitted to board it without
being apprised of its character, he cannot be ejected from
the train after it has pulled out.¹
758. Chartered train.
5
If an entire train, including the motive power, be char-
tered to a person who undertakes the entire management
himself, the railroad is not a carrier of goods or persons
carried on the train. And so, where a railroad simply
loaned a train to an association of railroad employees,
who themselves operated and managed the train, the
railroad was held not to owe the duty of a common car-
rier to persons riding on the train. Where a single car
is chartered and loaded by a shipper, and is then taken
by the railroad for transportation, on its regular trains,
the railroad is a carrier of the goods loaded in the car."
But where an express company obtained a train of cars
6
¹ Moore v. St. Louis, I. M. & S. ing Harmon v. Columbia & G. R.
Ry. Co., supra.
R. Co., 28 S. C. 401, 5 S. E. 835, 13
Am. St. Rep. 686 (1887).
2 Texarkana & F. S. Ry. Co. v.
Anderson, 67 Ark. 123, 53 S. W.
673 (1899); White v. Norfolk & S.
R. R. Co., 115 N. C. 631, 20 S. E.
191, 44 Am. St. Rep. 489 (1894).
See also Collins v. Texas & P. Ry.
Co., 15 Tex. Civ. App. 169, 39 S. W.
643 (1897).
5 East Tenn. & Ga. R. R. Co. v.
Whittle, 27 Ga. 535, 73 Am. Dec.
741 (1859). See, however, Kirkland
v. Charleston & W. C. Ry. Co., 79
S. C. 273, 60 S. E. 668, 15 L. R. A.
(N. S.) 425 (1908).
• Davis v. Chicago, St. P., M. &
³ Skinner v. London, B. & S. C. O. R. R. Co., 45 Fed. 543 (1891).
Ry. Co., 5 Ex. 787 (1850).
4 Kirkland v. Charleston & W. C.
Ry. Co., 79 S. C. 273, 60 S. E. 668,
15 L. R. A. (N. S.) 425 (1907), cit-
7 Arkansas.-Fordyce
V. Mc-
Flynn, 56 Ark. 424, 19 S. W. 961
(1892).
[ 626 ]
BASIS OF THE UNDERTAKING
[ § 759
and an engine from a railroad for the purpose of making
a particular shipment of stock, no passengers being car-
ried except the owners of the stock and their employés,
the shipment being accompanied by the messenger of
the express company, although the train was operated
by the servants of the railroad, the railroad was held to
be the mere agent of the express company for the trans-
portation and forwarding of the stock, and the express
company was held liable for the railroad's negligence."
Topic B. Unusual Methods of Service
§ 759. Passengers traveling in an unusual place.
When a person desiring to be transported enters a car
or other part of a railroad train not intended for passen-
gers, he does not thereby accept the carrier's invitation;
and if there is no express acceptance of him as a passenger
he is not entitled to be so treated. In a Texas case 2 it
appeared that an intending passenger, having money to
pay his fare, came late to the station, and was just able
to get on board the front platform of the first car as the
train started. This proved to be the front platform of a
baggage car. The fireman, discovering him, compelled
him to jump off by turning hot water from a hose on him;
and in jumping he was injured. The Court of Civil Ap-
peals held that he could recover as a passenger. "While,"
they said, "the place one may be occupying upon the
train at the time of his injury may be important in de-
Georgia.-Central R. R. Co. v.
Anderson, 58 Ga. 393 (1877).
Illinois. Ohio & M. R. R. Co. v.
Dunbar, 20 Ill. 623, 71 Am. Dec.
291 (1858).
Vermont.-Kimball v. Rutland
& B. R. R. Co., 26 Vt. 247, 62
Am. Dec. 567 (1854), apparently
contra.
1 American Exp. Co. v. Ogles
(Tex. Civ. App.), 81 S. W. 1023
(1904).
2 Missouri, K. & T. Ry. Co. v.
Williams (Tex. Civ. App.), 40 S. W.
350 (1897); in the upper court
Missouri, K. & T. Ry. Co. v.
Williams, 91 Tex. 255, 42 S. W.
Rep. 855 (1897).
[ 627 ]
§ 760 ] PUBLIC SERVICE CORPORATIONS
termining whether or not he intended to pay his fare, it
does not conclusively fix his status, either as a passenger
or a trespasser." This decision was however reversed
on appeal to the Supreme Court. One may become a
passenger, the court said, by either an express or an im-
plied contract. There was no express contract in this
case; and "in order to raise such an implied contract, the
party desiring to be carried by the railroad company must
take passage on that part of the train provided by it for
carrying passengers."
"' 1
§ 760. Whether there is acceptance in such cases.
As between the original decision and the final decision
of the case just discussed, the latter, it seems, is prefer-
able. The case is not like that of taking a wrong train by
mistake; for there the person gets into a car intended for
passengers, while here, as the Chief Justice pointed out, he
knew that a baggage car was not prepared for the recep-
tion of passengers. The same facts came up in Illinois; 2
and it was held that the person did not become a passenger
by getting safely upon the platform. "A passenger must
put himself in the care of the railroad company, and there
must be something from which it may fairly be implied
¹ A case almost identical in its
facts was decided in South Carolina
between the first decision and the
appeal in the Texas case; and largely
on the authority of the Texas
Court of Civil Appeals the plaintiff
was held to be a passenger. Chief
Justice McIver dissented, taking
the same ground on which the Su-
preme Court placed itself in the
Texas case. Martin v. Southern
Ry. Co., 51 S. C. 150, 28 S. E. Rep.
303 (1897).
A person who takes passage on
the platform of a passenger coach
on a railroad train and there con-
tinues his journey without entering
the cars, in violation of the rules
and regulations of the company,
does not become a passenger, al-
though his fare is demanded by, and
paid to, the brakeman on the train,
who is not authorized to demand or
receive fares. Chicago & Erie R. R.
Co. v. Field, 7 Ind. App. 172, 34 N.
E. 406, 52 Am. St. Rep. 444 (1893).
2 Illinois Central R. R. Co. v.
O'Keefe, 168 Ill. 115, 48 N. E. 294,
39 L. R. A. 148, 61 Am. St. Rep. 68
(1897).
[ 628 ]
BASIS OF THE UNDERTAKING
[ § 761
"? 1
that the company had accepted him as a passenger.
The distinction is to be noted between persons who having
once become passengers then go without permission of the
company into some place not provided for passengers, and
persons who, intending to become passengers, go in the
first instance to such a place. While the latter do not
technically become passengers at all, since they never
place themselves within the terms of the carrier's offer to
receive them, 2 persons who have already become pas-
sengers do not forfeit that position by going into some car
or some part of a car in which passengers are not allowed
to ride. Such conduct may be negligent, and if the negli-
gence contributes to an injury it may therefore bar re-
covery for the injury; but the recovery cannot be denied
on the ground that the injured person was not a pas-
senger. 3
§ 761. Vehicle not intended for passengers.
In general, a carrier who by his servants receives a
person to be carried on any vehicle or portion of a vehicle
not provided by the carrier for passengers is not a common
carrier of such person; nor can such person demand to be
carried in such a vehicle or place. On this principle, a
railroad is not a common carrier of a person who by permis-
¹ Parks v. St. Louis & S. Ry. Co.,
178 Mo. 108, 77 S. W. 70 (1903).
See also Udell v. Citizens' St. Ry.
Co., 152 Ind. 507, 52 N. E. 799
(1899).
2 Bricker v. Philadelphia & R. R.
Co., 132 Pa. 1, 18 Atl. 983, 19 Am.
St. Rep. 585 (1890).
United States.-New Orleans &
N. E. R. R. Co. v. Thomas, 60 Fed.
379, 9 C. C. A. 29, 23 U. S. App. 37
(1894) top of cattle car.
3 Arkansas.-Little Rock & F. S.
Ry. Co. v. Miles, 40 Ark. 298, 48
Am. Rep. 10 (1883), top of freight
car.
Kentucky. Kentucky Central R.
R. Co. v. Thomas, 79 Ky. 160, 42
Am. Rep. 208 (1880), express car.
Massachusetts.-Merrill v. East-
ern R. R. Co., 139 Mass. 238, 1 N.
E. 548, 52 Am. Rep. 705, (1885),
step of steam car.
Pennsylvania.-Bard v. Pennsyl-
vania Traction Co., 176 Pa, 97, 34
Atl. 953, 53 Am. St. Rep. 672
(1896), bumper of street car.
[ 629 ]
§ 761]
PUBLIC SERVICE CORPORATIONS
3
sion of the carrier's servant or otherwise rides on a loco-
motive,¹ a hand car,2 a railroad velocipede, or a flat car.4
And so a passenger, who without the knowledge or consent
of the conductor of the train, rides in the baggage, mail, or
express car, cannot maintain an action against the railroad
company for injuries sustained which would not have hap-
pened to him had he been in a passenger car; 5 nor can he be
heard to contend that the conductor ought to have dis-
covered and ordered him out. But here too there are cases
which go so far as to hold that one may be accepted as a
passenger even in so unusual a vehicle by one high enough
in authority to authorize unusual procedure."
¹ Illinois.—Lake Shore & Mich.
S. R. R. Co. v. Brown, 123 Ill. 162,
14 N. E. 197, 5 Am. St. Rep. 510
(1887).
Iowa.-Ramm v. Minneapolis &
St. L. R. R. Co., 94 Ia. 296, 62 N.
W. 751 (1895).
Massachusetts.-Merrill v. East-
ern R. R. Co., 139 Mass. 238, 1 N.
E. 548, 52 Am. Rep. 705 (1885).
Nebraska.-Woolsey v. Chicago,
B. & Q. R. R. Co., 39 Neb. 798,
58 N. W. 444, 25 L. R. A. 79
(1894).
New York.-Robertson v. New
York & E. R. R. Co., 22 Barb. (N.
Y.) 91 (1856).
V. Columbia
Oregon.-Radley
Southern R. R. Co., 44 Oreg. 332,
75 Pac. 212 (1904).
South Carolina.-Darwin v. Char-
lotte, C. & A. Ry. Co., 23 S. C. 531,
55 Am. Rep. 32 (1885).
Texas.-Wilcox v. San Antonio &
A. Pass. R. R. Co., 11 Tex. Civ.
App. 487, 33 S. W. 379 (1895).
Virginia.-Virginia Midland R.
R. Co. v. Roach, 83 Va. 375, 5 S. E.
175 (1887).
2 North Carolina.-Willis v. At-
lantic R. R. Co., 120 N. C. 508, 26
S. E. 784 (1897).
Ohio.—Cincinnati, J. & M. R. R.
Co. v. Morley, 4 Ohio Cir. Ct. 559
(1890).
Oregon.-Rathbone v. Oregon R.
R. Co., 40 Oreg. 225, 66 Pac. 909
(1901).
Texas.-Prince v. International
& Great Northern Ry. Co., 64 Tex.
144 (1885).
³ Georgia.—Higgins v. Cherokee
R. R. Co., 73 Georgia, 149 (1884).
Louisiana.-Snyder v. Natchez
R. R. & T. R. R. Co., 42 La. Ann.
302, 7 So. Rep. 582 (1890).
The Frank and Willie, 45 Fed.
488 (1891).
5 Kentucky.-Kentucky Central
R. R. Co. v. Thomas, 79 Ky. 160,
42 Am. Rep. 208 (1880).
Pennsylvania.-Bricker v. Phila-
delphia & Reading R. R. Co., 132
Pa. St. 1, 18 Atl. 983, 19 Am. St.
Rep. 585 (1890).
• Lake Shore & Mich. S. R. R. v.
Brown, 123 Ill. 162, 14 N. E. 197, 5
Am. St. Rep. 510 (1887).
[ 630 ]
BASIS OF THE UNDERTAKING
[ § 762
§ 762. Carriage on construction trains.
4
3
On these principles a railroad is not usually a common
carrier of one who is received by its servants for carriage
on a construction train. Certainly one who knowingly
takes passage over an unfinished railway should not ex-
pect to be cared for as passengers are after regular service
has begun.¹ Even after the road is in operation one rid-
ing upon a construction train,2 a gravel train, a lumber
train, or a train of flat cars 5 must appreciate that he is
not being accepted as a passenger by the company. Yet
even in these cases the possibility remains that one may
be accepted even upon a construction train, if the circum-
stances are such as give him to understand that he is
being especially received as a passenger. Thus where a
person purchased a ticket and was accepted by the con-
ductor of a construction train as a passenger thereon,
against the carrier's orders, it was held that the conductor
had apparent authority to accept him as a passenger."
1 United States.-Wade v. Lutcher
Cypress Lumber Co., 74 Fed. 517,
33 L. R. A. 255, 41 U. S. App. 45, 20
C. C. A. 515 (1896).
Indiana.-Evansville & Rich-
mond R. R. Co. v. Barnes, 137 Ind.
306, 36 N. E. 1092 (1893).
Kansas.-Chicago, K. & W. Ry.
Co. v. Frazer, 55 Kan..582, 40 Pac.
923 (1895).
Tennessee.-Nashville & C. R. R.
Co. v. Messino, 1 Sneed (Tenn.),
220 (1853), semble.
Texas.-San Antonio & A. P. Ry.
Co. v. Robinson, 79 Tex. 608, 15 S.
W. 584 (1891).
Canada.-McRae v. Canadian
Pac. Ry. Co., Montreal, L. R. 4
S. C. 186 (1888).
2 Alabama.-McCauley v. Ten-
nessee, C. I. & R. R. Co., 93 Ala.
356, 9 So. 611 (1890).
Missouri.-Berry v. Missouri Pac.
Ry. Co., 124 Mo. 223, 25 S. W. 229
(1894).
3 Indiana.-Lawrenceburgh & Up-
per Miss. R. R. Co. v. Montgom-
ery, 7 Ind. 474 (1856).
4 Illinois Cent. Ry. Co. v. Mea-
cham, 91 Tenn. 428, 19 S. W. 232
(1892).
5 Georgia.-Higgins v. Cherokee
R. R. Co., 73 Ga. 149 (1884), semble.
Louisiana.-Snyder v. Natchez
R. R. & T. R. R. Co., 42 La. Ann.
302, 7 So. Rep. 582 (1890).
Little Rock, M. R. & T. Ry.
Co. v. Glidewell, 39 Ark. 487
(1882).
See also on this topic:
Tennessee.-Nashville & C. R. R.
Co. v. Messino, 1 Sneed (Tenn.),
220 (1853).
Kansas.-St. Joseph & Western
[ 631 ]
§ 763]
PUBLIC SERVICE CORPORATIONS
§ 763. Passenger carriage on freight trains.
It often happens that persons are received by the em-
ployés of the carrier upon freight trains. In accordance
with the principles now under examination, such a recep-
tion will make the person a passenger provided the re-
ception is within the authority of the servant, either
because of express permission given by the carrier, or
because the reception is within the apparent authority of
the servant. A case of the first kind occurs when a railroad
is accustomed to carry passengers in freight cars.¹ Where
such a custom exists, one received on a freight train is to
be regarded as a passenger quite as much as one who rides
on an ordinary passenger train. A case of the second
kind occurs when passengers are not uncommonly so car-
ried on freight trains in that part of the country, and one
is permitted to ride on such a train by the conductor.²
When for either reason the conductor has apparent au-
thority to receive a passenger, and does so, the relation of
carrier and passenger is established. But in any case
3
R. R. Co. v. Wheeler, 35 Kan. 185, jured any the less a passenger,
10 Pac. 461 (1886).
¹ Long continued violation of the
carriers' rules prohibiting the car-
riage of passengers upon freight
trains as such, so notorious that
this must have come to the notice
of the company has the same ef-
fect.
Missouri.-Jones v. Wabash, St.
L. & P. Ry. Co., 17 Mo. App. 158
(1885).
Texas.-Missouri, K. & T. Ry.
Co. v. Huff, 98 Texas, 110, 81 S. W.
525 (1904).
2 The fact that the train in ques-
tion was a freight train on which,
under the rules of the company,
passengers were not permitted to
ride, does not render the person in-
when at the time he bought his
ticket he had no knowledge of such
rules and took the train under the
instructions of an agent of the com-
pany.
Alabama.-Louisville & N. Ry.
Co. v. Hine, 121 Ala. 234, 25 So.
857 (1899).
Illinois. Illinois Cent. R. R. Co.
v. Davenport, 177 Ill. 110, 52 N. E.
266 (1898).
Missouri.-McGee v. Missouri
Pac. Ry. Co., 92 Mo. 208, 4 S. W.
739, 1 Am. St. Rep. 706 (1887).
Texas.--Texas & Pac. Ry. Co. v.
Black, 87 Tex. 160, 27 S. W. 118
(1894).
3 United States.-Hazard v. Chi-
cago, B. & Q. R. R. Co., 1 Biss. 503,
[ 632 ]
BASIS OF THE UNDERTAKING
[ § 763
when thus bound to such persons as to passengers, it is gen-
erally held that only such care is owed such passengers as
with the operation of freight
is practicable in connection
trains.¹
Fed. Cas. No. 6,275 (1865); Reber
v. Bond, 38 Fed. 822 (1889).
District of Columbia. - United
States v. Saul, 58 Fed. 763 (1893).
Georgia.-Crine v. East Tennes-
see V. & G. Ry. Co., 84 Ga. 651, 11
S. E. 555 (1890).
Illinois.—Chicago & Alton R. R.
Co. v. Winters, 175 Ill. 293, 51 N. E.
901 (1898).
Indiana.-Ohio & M. R. Ry. Co.
v. Dickerson, 59 Ind. 317 (1877).
Kansas.-Missouri Pacific Ry.
Co. v. Holcomb, 44 Kan, 332, 24
Pac. 467 (1890).
Maine.--Dunn v. Grand Trunk
Ry. Co., 58 Me. 187, 4 Am. Rep.
267 (1870).
Michigan.-Greenfield v. Detroit
& M. Ry. Co., 133 Mich. 557, 95 N.
W. 546 (1903).
Mississippi.-Perkins v. Chicago
S. L. & N. O. R. R. Co., 60 Miss.
726 (1883).
Missouri.-Wagner v. Missouri
Pac. Ry. Co., 97 Mo. 512, 10 S. W.
486, 3 L. R. A. 156 (1888); White-
head v. St. Louis, I. M. & S. Ry.
Co., 99 Mo. 263, 11 S. W. 751, 6 L.
R. A. 409 (1889).
Nebraska.-Chicago, B. & Q. R.
R. Co. v. Troyer, 70 Neb. 293, 103
N. W. 680 (1905).
New Hampshire.-Murch v. Con-
cord R. R. Corp., 29 N. H. 9, 61
Am. Dec. 631 (1854).
New York.-Edgerton v. New
York & H. R. R. R. Co., 39 N. Y.
227 (1868).
Ohio.-Allen v. Lake Shore &
Mich. S. Ry. Co., 57 Ohio St. 79, 47
N. E. 1037 (1897).
Texas.-I. & G. N. Ry. Co. v.
Irvine, 64 Tex. 529 (1885); Missouri,
K. & T. Ry. Co. v. Huff, 98 Tex.
110, 81 S. W. 525 (1904).
Wisconsin.-Lucas v. Milwaukee
Ry. Co., 33 Wis. 41 (1873).
West Virginia.-Boggess v.
Chesapeake & O. Ry. Co., 37 W. Va.
297, 16 S. E. 525 (1892).
1 United States.-Sprague v.
Southern Ry. Co., 92 Fed. 59, 34
C. C. A. 207 (1899).
California.-Wieland v. Southern
Pac. Co., 1 Cal. App. 343, 82 Pac.
226 (1905).
Georgia.-Central of Georgia Ry.
Co. v. Lippman, 110 Ga. 665, 36
S. E. 202, 50 L. R. A. 673 (1900).
Illinois. Chicago & A. R. Co. v.
Arnol, 144 III. 261, 33 N. E. 204, 19
L. R. A. 313 (1893).
Minnesota.-Campbell v. Duluth
& N. E. Ry. Co., 107 Minn. 358, 120
N. W. 375, 22 L. R. A. (N. S.) 190
(1909).
Missouri.-Green v. Missouri, K.
& T. Ry. Co., 121 Mo. App. 720, 97
S. W. 646 (1906).
North Carolina.-Means v. Caro-
lina Cent. R. Co., 124 N. C. 574,
32 S. E. 960, 45 L. R. A. 164
(1899).
Oklahoma.-St. Louis & S. F. Ry.
Co. v. Gosnell, 23 Okla. 588, 101
Pac. 1126, 22 L. R. A. (N. S.) 892
(1909).
[ 633]
§ 764 ]
PUBLIC SERVICE CORPORATIONS
§ 764. Such transportation often upon a private basis.
If, however, a passenger is received by the servant of
the carrier upon a freight train under circumstances which
show that he knows, or at least should know, that persons
are not carried as passengers, where, therefore, it is suffi-
ciently plain that the conductor has no authority to per-
mit him to ride as such, even if he can be induced to do so,
he does not become a passenger whether he pays fare or
not; and a fortiori where the conductor informs him that
passengers are forbidden to ride on a freight train, but he
persuades the conductor to let him ride, nevertheless he
is not a passenger. The acceptance, that is, in such cases
is upon a private basis and the special liabilities which are
imposed upon common carriers of passengers are therefore
not involved. In comparing the cases in this section with
those in the preceding one it will be obvious that whether
the service is upon a public basis or a private basis is in
last analysis more a question of fact than a question of
1
V.
1 United States.-Shoemaker
Kingsbury, 12 Wall. 369, 20 L. ed.
432 (1870); Purple v. Union Pacific
R. R. Co., 114 Fed. 123, 51 C. C. A.
564, 57 L. R. A. 700 (1902).
California.-Wieland v. Southern
Pacific Co., 1 Cal. App. 343, 82 Pac.
226 (1905).
Connecticut.-Bergan v. Central
Vt. Ry. Co., 82 Conn. 574, 74 Atl.
937 (1909).
Indiana.-Smith v. Louisville, E.
& St. L. R. R. Co., 124 Ind. 394, 24
N. E. 753 (1890).
Kentucky.—Ohio Valley Ry. Co.
v. Watson's Admr., 93 Ky. 654, 21
S. W. 244, 40 Am. St. Rep. 211, 19
L. R. A. 310 (1893).
Maine.-Dunn v. Grand Trunk
Ry. Co., 58 Me. 187, 4 Am. Rep.
267 (1870).
Massachusetts.-Powers v. Boston
& Maine R. R. Co., 153 Mass. 188,
26 N. E. 446 (1891).
New York.-Eaton v. Delaware,
L. & W. R. R. Co., 57 N. Y. 382, 15
Am. Rep. 513 (1874).
Tennessee.-Washburn v. Nash-
ville & C. R. R. Co., 3 Head (Tenn.),
638, 75 Am. Dec. 784 (1859); Rail-
road Co. v. Hailey, 94 Tenn. 383,
29 S. W. 367, 27 L. R. A. 549
(1895).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Campbell, 76 Tex. 174, 13 S. W.
19 (1890).
Utah.-Everett v. Oregon, S. L.
& U. N. Ry. Co., 9 Utah, 340, 34
Pac. 289 (1893).
Wisconsin.-Lucas v. Milwaukee
& St. Paul Ry. Co., 33 Wis. 41, 14
Am. Rep. 735 (1873).
[634]
BASIS OF THE UNDERTAKING
[§ 765
law. But the undertaking need not be explicit, the par-
ties may act upon reasonable inferences.¹
§ 765. Special services in telephoning.
This topic may be concluded with examples drawn from
other public callings of the general doctrine that public
service may be undertaken beyond usual obligation in
particular cases by special acceptance. Thus although
the usual profession of the telephone company is to put
its patrons into communication so that they may have
speech with each other, it may in particular instances be
shown to have undertaken more. The sending for a per-
son to come to a toll office may often be seen to be a spe-
cial favor that is being extended, but it is not impossible
that it may be part of the service undertaken.² Again, al-
though the telephone company does not commonly under-
take the delivery of messages, it may have done enough so
that a particular customer may understand that when
such service is undertaken for him it is upon a public
basis. And likewise a telegraph company may agree to
deliver by telephone a message addressed to a person
living beyond the free delivery limits. This follows the
usual rule that when a telegraph company deliberately
3
1 To put an extreme illustration:
In one case it appeared that the
passenger was informed by a servant
of the carrier that he could not, un-
der the carrier's rules, attach his
own freight car to a passenger train
and ride in it, as he desired to do;
but the servant afterwards per-
mitted it. He was held to be a
passenger. Lackawanna & B. R. R.
Co. v. Chenewith, 52 Pa. 382, 91
Am. Dec. 168 (1866).
But that the usual inference
would be to the contrary is plain.
Among the cases cited in the pro-
4
ceeding note, see particularly Eaton
v. Delaware, L. & W. R. R. Co., 57
N. Y. 382, 15 Am. Rep. 513
(1874).
2 See, for one example, Central
Union Telephone Co. v. Swove-
land, 14 Ind. App. 341, 42 N. E.
1035 (1895).
See, for one example, Telephone
Co. v. Brown, 104 Tenn. 56, 55
S. W. 155, 78 Am. St. Rep. 906
(1900).
* Lyles v. Western Union Tel. Co.
77 S. C. 174, 57 S. E. 725, 12 L. R.
A. (N. S.) 534 (1906).
[ 635]
§ 766 ]
PUBLIC SERVICE CORPORATIONS
undertakes to deliver messages outside its regular limits
it is bound to do so.¹
1
§ 766. Unrepeated telegrams.
Indeed it is the
Unrepeated telegrams probably belong here; for the
real issue as to them it seems, is whether the taking of
telegrams to be repeated should be considered the regular
business, so that the sending of unrepeated telegrams may
be treated as outside the usual course. Upon the usual
facts, it must be said, this is not true.
unrepeated message which is the regular course, the re-
peated one being rare indeed. Nevertheless, by what is
apparently the weight of authority 2 an agreement that
the telegraph company shall not be held liable for mis-
takes in unrepeated telegrams although caused by their
negligence is held valid, notwithstanding upon general
principles such agreements as to regular service are held
void as against public policy. Therefore those cases which
hold that as the unrepeated business is the regular busi-
ness such an agreement is inconsistent with the public
¹ North Carolina. Rosser V.
Western Union Telegraph Co., 130
N. C. 251, 41 S. E. 378 (1902).
Texas.-Western Union Tel. Co.
v. Warren (Texas), 36 S. W. 314
(1986); Western Union Tel. Co. v.
Taylor, 3 Tex. Civ. App. 310, 22
S. W. 532 (1893); Evans v. Western
Union Tel. Co. (Tex. Civ. App.),
56 S. W. 609 (1900).
V.
2 United States. Primrose
Western Union Tel. Co., 154 U. S.
1, 38 L. ed. 883, 14 Sup. Ct. 1098
(1894).
California. Coit V. Western
Union Tel. Co., 130 Cal. 657, 63 Pac.
83, 53 L. R. A. 678, 80 Am. St. Rep.
153 (1900).
Kentucky. Camp v. Western
Union Tel. Co., 1 Met. (Ky.) 164,
71 Am. Dec. 461 (1858).
Maryland.-United States Tel.
Co. v. Gildersleve, 29 Md. 232, 96
Am. Dec. 519 (1868).
Michigan.-Western Union Tel.
Co. v. Carew, 15 Mich. 525 (1867).
New York.-Breese v. United
States Tel. Co., 48 N. Y. 132, 8 Am.
Rep. 526 (1871).
Pennsylvania.—Western
Union
Tel. Co. v. Stevenson, 128 Pa. 442,
18 Atl. 441, 5 L. R. A. 515, 15 Am.
St. Rep. 687 (1889).
England.--McAndrew v. Electric
Telegraph Co., 17 C. B. 3 (1855).
Canada.-Baxter v. Dominion
Telegraph Co., 37 U. C. Q. B. 470
(1875).
[ 636 ]
BASIS OF THE UNDERTAKING
[$ 767
duty of the telegraph companies seem to be better upon
theory.¹
Topic C. Peculiar Conditions of Service
§ 767. Owner accompanying his goods.
If the owner of goods goes along with them and retains
possession of them, the person who furnishes the vehicle
is not a carrier, since he is not a bailee. This was the posi-
tion of affairs presented by the leading case of the East
India Company v. Pullen.2 The defendant in that case
was a common lighterman. "It was the usage of the com-
pany on the unshipping of their goods to clap an officer,
who is called a guardian, in the lighter, who, as soon as
the lading is taken in, puts the company's lock on the
hatches, and goes with the goods to see them safe delivered
at the warehouse." This usage having been followed, and
part of the goods lost, the company sued the defendant.
At the trial, before Lord Chief Justice Raymond, the
court "was of opinion this differed from the common case,
this not being any trust in the defendant, and the goods
were not to be considered as ever having been in his pos-
session, but in the possession of the company's servant,
who had hired the lighter to use himself. He thought,
therefore, the action was not maintainable, so the plain-
tiffs were nonsuited."³ But in a later case where a servant
¹ Alabama.—Western Union Tel.
Co. v. Chamblee, 122 Ala. 428, 25
So. 232, 82 Am. St. Rep. 89 (1898).
Illinois.―Tyler v. Western Union
Tel. Co., 60 Ill. 421, 14 Am. Rep.
38, 74 Ill. 168 (1871).
Kansas.-Western Union Tel.
Co. v. Crall, 38 Kan. 679, 17 Pac.
309, 5 Am. St. Rep. 795 (1888).
Maine.-Ayer v. Western Union
Tel. Co., 79 Me. 493, 10 Atl. 495, 1
Am. St. Rep. 353 (1887).
North Carolina.-Brown v. Postal
Tel Co., 111 N. C. 187, 16 S. E. 179,
17 L. R. A. 648, 32 Am. St. Rep.
793 (1892).
Ohio.-Telegraph Co. v. Gris-
wold, 37 Ohio St. 301, 41 Am. Rep.
500 (1881).
21 Strange, 690 (1726).
3 See White v. Winnisimmet Co.,
7 Cush. 155 (1851), and New York
v. Starin, 106 N. Y. 1, 12 N. E. 631
(1887).
[637]
§ 768]
PUBLIC SERVICE CORPORATIONS
of the shipper went along with the carrier, on account of
the carrier being a stranger to the shipper, this was held
not to negative the carrier's responsibility, the case being
distinguished from the usage of the East India Company,
'who never intrust the lighterman with their goods, but
give the whole charge of the property to one of their
officers." In this case, the court said the defendant
"must have had possession of them for the purpose of
carrying his contract into effect, which he could not have
done without such possession." 2
1
§ 768. Carrier in general control.
The difficult cases are those in which both the carrier
of these goods and the owner who accompanies them
have a certain degree of control over them. In such cases
the question of fact would seem to be as to which has the
superior right. In a leading case 3 in the Supreme Court
of the United States the carrier was engaged in transport-
ing a body of soldiers and their baggage, an armed guard
accompanying the baggage, which the soldiers themselves
packed in the car. Mr. Justice Field, speaking for the
court, said “If it were admitted that a special guard was
appointed for the car on the route the admission would
not aid the company or relieve it of liability. The control
and management of the car, or of the train, by the serv-
ants and employés of the company were not impeded
or interfered with, and where no such interference is at-
tempted it can never be a ground for limiting the responsi-
bility of the carrier that the owner of the property accom-
panies it and keeps a watchful lookout for its safety.” In
another important case a railroad company which was
4
¹ Robinson v. Dunmore, 2 B. &
P. 416 (1801).
2 See also Brind v. Dale, 8 C. &
P. 207 (1837); Cohen v. Frost, 2
Duer, 335 (1853); Hollister V.
Nowlen, 19 Wend. (N. Y.) 234, 32
Am. Dec. 455 (1838).
3 Hannibal R. R. Co. v. Swift, 12
Wall. 262, 20 L. ed. 423 (1870).
4 Terre Haute & Ind. R. R. Co. v.
[638]
BASIS OF THE UNDERTAKING
[ § 769
being paid for hauling the locomotives of another road,
put one of their employés in the cab in charge of the
train movements. It was held that as the railroad thus
took control of the situation it was liable for a collision
although the company that owned the engines furnished
an engineer and mechanics to operate it under the instruc-
tions of the pilot.
§ 769. Luggage carried by passengers.
Where a passenger takes with him in the vehicle in
which he is carried small articles of personal baggage it
may be difficult to determine how far the responsibility
of the carrier extends to them. The English law, dating
from an early case,¹ where a stage driver was held respon-
sible for the loss of the portmanteau of a passenger, goes
so far as to hold the railroad responsible as a carrier for
hand luggage brought by the passenger into the carriage
and kept by him during the journey. "It is the every-
day's practice of passengers by railways" said the court in
a leading case," "to carry cloaks and such like articles
with them in the carriages, with the consent of the com-
pany, and it cannot be said that the company have on that
account parted with their custody of them as carriers."
It is, however, clear enough on the authorities that the
carrier is not, under such circumstances, an insurer and
that the amount of care required of it is materially les-
sened by the fact that the passenger is in actual control.4
In this country (very likely because of a different usage
as to the matter), it has never been supposed that the rail-
Chicago, Peoria & St. L. Ry. Co.,
150 Ill. 502, 37 N. E. 915 (1894).
1 Chambre, J., in Robinson v.
Dunmore, 2 B. & P. 416, 419 (1801).
2 Munster v. South Eastern Ry.
Co., 4 C. B. (N. S.) 676, 27 L. J.
(C. P.) 308 (1858).
3 Lush, J., in Le Conteur v. Lon-
don & S. W. Ry. Co., 6 B. & S. 961,
L. R. 1 Q. B. 54 (1865).
Talley v. Gt. Western R. R. Co.,
L. R. 6 C. P. 44 (1870).
[639]
§ 769 ] PUBLIC SERVICE CORPORATIONS
road company assumed possession of personal luggage
taken into its train by a passenger; and it has therefore
never been held liable for such luggage as carrier.¹ And so
a steamboat company is not a carrier of the passenger's
watch and clothing, which he wears on his person, or the
luggage he takes with him into his stateroom, since the
possession of it is not given to the company. And sleep-
V.
1 United States.-Henderson
Louisville & N. R. R. Co., 123 U. S.
61, 31 L. ed. 92 (1887); Walsh v.
The Wright, Newb. Adm. (U. S.)
494, Fed. Cas. No. 17,115 (1854);
Bacon v. Pullman Co., 159 Fed. 1,
89 C. C. A. 1, 16 L. R. A. (N. S.)
578 (1908).
Illinois.-Chicago, R. I. & P. R.
R. Co. v. Fairclough, 52 Ill. 106
(1869).
Massachusetts.-Murray v. In-
ternational Steamship Co., 170
Mass. 166, 48 N. E. 1093, 64 Am.
St. Rep. 290 (1898); Kingsley v.
Lake Shore Ry. Co., 125 Mass. 54,
28 Am. Rep. 200 (1878).
Minnesota.-McKibbin v. Wis-
consin Cent. R. Co., 100 Minn. 270,
110 N. W. 964 (1907).
Mississippi.-Illinois Cent. Ry.
Co. v. Handy, 63 Miss. 609, 56 Am.
Rep. 846 (1886).
New York.-Weeks v. New York,
N. H. & H. R. R. Co., 72 N. Y. 50,
28 Am. Rep. 104 (1878); Schalscha
v. Third Ave. R. R. Co., 19 Misc.
(N. Y.) 141, 43 N. Y. Supp. 251
(1897).
Ohio.-Greenfield First National
Bank v. Marietta & C. R. R. Co.,
20 Ohio St. 259, 5 Am. Rep. 655
(1870).
Pennsylvania.-American Steam-
ship Co. v. Bryan, 83 Pa. St. 446
(1877).
2
Texas.-Bonner v. Demendoza
(Texas App., 1891), 16 S. W. 976
(1891).
2 United States.-The R. E. Lee,
2 Abb. (U. S.) 49, Fed. Cas. No.
11,690 (1870); Walsh v. The H. M.
Wright, Newb. Adm. (U. S.) 494,
Fed. Cas. No. 17,115 (1854).
Kentucky. Steamboat Crystal
Palace v. Vanderpool, 16 B. Monr.
(Ky.) 302 (1855).
Maine.-Abbott v. Bradstreet, 55
Me. 530 (1868).
Massachusetts.-Clark v. Burns,
118 Mass. 275, 19 Am. Rep. 456
(1875).
Michigan.—McKee v. Owen, 15
Mich. 115 (1866).
Pennsylvania.-American St.
Ship Co. v. Bryan, 83 Pa. St. 446
(1877).
Wisconsin.—Gleason V. Good-
rich Transp. Co., 32 Wis. 85, 14 Am.
Rep. 716 (1873).
1
Contra, New York.-Gore v. Nor-
wich Trans. Co., 2 Daly (N. Y.),
254 (1867); Mudgett v. Bay State
Steamboat Co., 1 Daly (N. Y.), 151
(1861); Van Horn v. Kermit, 4 E.
D. Smith (N. Y.), 453 (1855);
Crozier v. Boston, N. Y. & M.
Steamboat Co., 43 How. Pr. (N.
Y.) 466 (1871). These cases place
the liability of the company on the
same ground as that of an inn-
keeper.
[640]
BASIS OF THE UNDERTAKING
[ § 770
ing car companies are held liable for the hand baggage of
passengers only upon the same theory; but of course the
danger from theft from sleeping passengers being peculiar,
the company owes to them the utmost protection, and the
porter must keep continual watch.¹ But in any case the
companies ought to be held liable for luggage actually
intrusted to porters in the regular course of business.²
§ 770. Special arrangements with innkeepers.
3
In order for the innkeeper to become responsible for
the goods of his guest it is not necessary that the posses-
sion of them should be given up to the innkeeper; so where
the innkeeper gives the guest a key ³ to his room and the
guest takes the goods to his room and keeps them there,
the innkeeper is liable for the safety of the goods. But
while it is not necessary, in order to make the innkeeper
responsible for the goods, that they should be delivered
into his possession, still they must be within his general
care and control. If the guest himself undertakes the
care of them, or if he makes a special arrangement by
1 United States.-Barrott v. Pull-
man Palace Car Co., 51 Fed. 796
(1892).
Alabama.-Cooney v. Pullman
Palace Car Co., 121 Ala. 368, 25 So.
712, 53 L. R. A. 690 (1898).
Georgia.-Pullman Palace Car
Co. v. Martin, 95 Ga. 314, 22 S. E.
700, 29 L. R. A. 498 (1894).
Kentucky.-Pullman Palace Car
Co. v. Hunter, 21 Ky. L. Rep. 1248,
54 S. W. 845, 47 L. R. A. 286 (1900).
Massachusetts.--Whicher v. Bos-
ton & A. R. R. Co., 176 Mass. 275,
57 N. E. 601 (1900).
Mississippi.-Ill. Cent. Ry. Co.
v. Handy, 63 Miss. 609, 56 Am. Rep.
846 (1886).
Missouri.-Hampton v. Pullman
Car Co., 42 Mo. App. 134
(1890).
New York.-Williams v. Webb,
22 Misc. (N. Y.) 513, 49 N. Y. Supp.
1111, 27 Misc. (N. Y.) 508, 58 N. Y.
Supp. 300 (1898).
2 Richards v. London B. & S. C.
Ry. Co., 7 C. B. 839, 18 L. J. (C. P.)
251 (1849); Butcher v. London & S.
W. Ry. Co., 16 C. B. 13, 24 L. J.
(C. P.) 137 (1855); Le Conteur v.
London & S. W. Ry. Co., 6 B. & S.
961, L. R. 1 Q. B. 54 (1865).
³ Y. B., 42 Ed. 3, pl. 13 (1367);
11 H. 4, 45 pl. 18 (1410).
4
Fay v. Pacific Imp. Co., 93 Cal.
253, 26 Pac. 1099, 28 Pac. 943, 16
L. R. A. 188, 27 Am. St. Rep. 198
(1892).
41
[ 641 ]
§ 771]
PUBLIC SERVICE CORPORATIONS
which the control of them is removed from the innkeeper,
the latter is not liable.¹ Thus in an old case the innkeeper
gave the guest his keys, and went away; and the goods
were lost. It was held that the innkeeper was not liable.²
Upon similar principles, where a guest places his over-
coat or gloves in the place provided for them in the inn,
although the innkeeper is not notified of the fact, the
liability of the innkeeper attaches. But where the guest's
personal baggage is placed in a public room in the inn,
without the knowledge of the innkeeper, or even by the
special request of the guest, the innkeeper is liable.¹
3
§ 771. Goods taken across a ferry.
In the case of a ferry, the fact that the owner usually
goes along with the goods and often retains the entire
charge and management of them (as for instance where
he drives a horse on the ferryboat and manages him while
on the boat), materially modifies the relation of carrier
and shipper, so that the carrier may not be responsible
for any injury caused by defect in placing or managing
the property; but this does not necessarily prevent the
ferryman from being a carrier. In one of the early cases
the law was thus stated: "It is the duty of the ferryman
to see that teams are safely driven on board the boat; he
may drive himself, or unharness the team, or unload them,
1 Vance v. Throckmorton, 5 Bush
(Ky.), 41, 96 Am. Dec. 327 (1868).
2 Y. B., 11 Hen. 4, 45, pl. 18
(1410).
3 Maine.-Norcross v. Norcross,
53 Me. 163 (1865).
New York.-McDonald v. Ed-
gerton, 5 Barb. 560 (1849).
Vermont.-Read v. Amidon, 41
Vt. 15, 98 Am. Dec. 560 (1868).
Ireland.-Shaw v. Ray, 1 Cr. &
Dix. C. C. 84 (1839).
5
4 Kentucky.-Packard v. North-
craft's Admr., 2 Met. 439 (1859).
Maryland. Burrows v. Trieber,
21 Md. 320, 83 Am. Dec. 590 (1863).
New York.-Bradner v. Mullen,
27 N. Y. Misc. 479, 59 N. Y. Supp.
178 (1899).
England. Richmond v. Smith,
8 B. & C. 9, 2 M. & Ry. 235 (1828).
5 May v. Hanson, 5 Cal. 360, 63
Am. Dec. 135 (1855).
[ 642 ]
BASIS OF THE UNDERTAKING
[ § 772
for the purpose of getting them safely on board; but if
he permits the party to drive himself, he constitutes him,
quoad hoc, his agent, and is still responsible for all acci-
dents." And, indeed, where the ferryman takes such
charge of the passenger's goods (as was probably the or-
dinary case in the older ferries), the ferryman is a carrier of
the goods as well as of the passenger.¹ The modern ferry-
man, however, seldom concerns himself with the property
of the traveler; and while he is, of course, a carrier of the
passenger, the goods are not so bailed to him as to con-
stitute him a carrier of the goods. As Mr. Justice Dewey
said in the leading case: 2 "The only possession and cus-
tody, by the ferryman, of the horse and vehicle to which
he is attached, is that which necessarily results from the
traveler's driving his horse and wagon, or other vehicle,
on board the boat and paying the ordinary toll for pas-
sage.” 3
§ 772. Owner going with his freight.
Though the owner of cattle or his servant may accom-
pany the cattle, as a drover, while they are being carried,
and may care for them, feed
1 Accord are:
Arkansas.-Evans v. Rudy, 34
Ark. 383 (1879).
Illinois.-Fisher v. Clisbee, 12
III. 344 (1851).
New York.-New York v. Starin,
106 N. Y. 1, 12 N. E. 631 (1887).
Ohio.-Wilson v. Hamilton, 4
Ohio St. 722 (1855).
South Carolina.-Cook v. Gour-
din, 2 N. & McC. 19 (1819).
England.-East India Co. V.
Pullen, 2 Strange, 690; Walker v.
Jackson, 10 M. & W. 161 (1842).
2 In White v. Winnisimmet Co.,
7 Cush. 155 (1851).
3 Accord are:
and water them, and help
Arkansas.-Harvey v. Rose, 26
Ark. 3, 7 Am. Rep. 595 (1870).
Indiana.-Yerkes v. Sabin, 97
Ind. 141, 49 Am. Rep. 434 (1884).
New Jersey.-Dudley v. Camden
& P. Ferry Co., 42 N. J. Law, 25,
36 Am. Rep. 501 (1880).
New York.-Wyckoff v. Queens
County Ferry Co., 52 N. Y. 32, 11
Am. Rep. 650 (1873).
Goods taken across a bridge.-
As intimated in the text, bridge
proprietors are not held responsible
as carriers for goods taken across
them by their owners. Grigsby v.
Chappell, 5 Rich. L. (S. C.) 443
(1852).
[ 643 ]
§ 773]
PUBLIC SERVICE CORPORATIONS
load and unload them, the railroad company is none the
less the bailee and carrier of the cattle.¹ He must do all
this while the cattle are in the possession of the railroad
company and at such times as it chooses to select for the
purpose.2 But to go to an opposite extreme it has been
held in the many cases which have arisen that the rail-
road company is not a common carrier of circus trains
which it hauls under special agreement, the keeping of
the wild beasts obviously remaining with the servants
of the proprietors. And the same rule applies where
the keepers of a race horse in transit assume direct charge
of it.4
3
§ 773. Switching cars.
Whether switching cars constitutes common carriage
¹ Dennison, J., in Atchison, T. &
S. F. R. R. v. Ditmars, 3 Kan. App.
459, 43 Pac. 833 (1896).
2 Alabama.—Southern Ry. Co. v.
Webb, 143 Ala. 304, 39 So. 262;
Webb v. Southern Ry. Co., Id.
(1905).
Arkansas. Fordyce v. McFlynn,
56 Ark. 424, 19 S. W. 961 (1892).
Kentucky.-Illinois Cent. Ry. Co.
v. Eblen, 71 S. W. 919, 24 Ky. Law
Rep. 1609 (1903).
Louisiana.-Peters v. New Or-
leans & Gt. N. R. R. Co., 16 La.
Ann. 222, 79 Am. Dec. 578 (1861).
Missouri.-Duvenick v. Mo. Pac.
Ry. Co., 57 Mo. App. 550 (1894).
Nebraska.-Chicago, B. & Q. Ry.
Co. v. Slattery, 107 N. W. 1045
(1906).
New Jersey.-Feinberg v. Dela-
ware, L. & W. R. R. Co., 52 N. J.
L. 451, 20 Atl. 33 (1890).
New York.-Harris v. Northern
Indiana R. R. Co., 20 N. Y. 232
(1859).
3 United States.-Chicago, M. &
St. P. R. R. Co. v. Wallace, 66 Fed.
506, 14 C. C. A. 257, 30 L. R. A.
161 (1895); Wilson v. Atlantic C. L.
R. R. Co., 129 Fed. 774 (1904).
Indiana.-Cleveland, C., C. &
St. L. Ry. Co. v. Henry, 170 Ind.
94, 83 N. E. 710 (1908).
Massachusetts.-Robertson v. Old
Colony R. R. Co., 156 Mass. 525, 31
N. E. 650, 32 Am. St. Rep. 482
(1892).
Michigan.-Coup v. Wabash, St.
L. & P. Ry. Co., 56 Mich. 111, 22
N. W. 215, 56 Am. Rep. 374
(1885).
New York.-Brown v. Weir, 95
N. Y. App. 78, 88 N. Y. Supp. 479
(1904).
Pennsylvania. Forepaugh v. Del-
aware, L. & W. R. R. Co., 128 Pa.
St. 217, 18 Atl. 503, 15 Am. St. Rep.
672, 5 L. R. A. 508 (1889).
4 Bowie v. B. & O. R. R. Co., 1
MacArthur, 94 (1873).
[ 644 ]
BASIS OF THE UNDERTAKING
[ 8774
1
depends as in all these cases upon the exact conditions
upon which the service is rendered. If the full possession
is not given over to the switching company it is not a
carrier, even though it furnishes transportation. Thus
a bridge company ¹ which owns a bridge used by a rail-
road company is not a carrier of the goods hauled over
it by the railroad, even if the bridge company itself fur-
nishes the motive power for hauling cars over its tracks;
for while it hauls the cars, it has no possession of the con-
tents of the cars, which remain at all times in the posses-
sion of the railroad company as the carrier.2 But there
are switching companies which assume full control of
the cars being transported by them through their corps
of train men as fully as any connecting carrier would;
and this of course constitutes common carriage.¹
§ 774. Towing vessels.
The apparant conflict of authority as to whether towage
is carriage disappears when this principle is observed,
that the conditions of the service determine its character.
It will then be seen that sometimes the towboat does act
as a carrier, but often the facts show that the tugboat
in question did not. Thus the towing lines which accept
barges from various owners which are incorporated into
the tow, all under the direct control of the towing boat,
may properly be said to be common carriage; and when
this is indisputably shown the towboat is usually held
liable as an insurer. On the other hand the harbor tug
which tows vessels in and out could rarely be said to be
5
¹ Kentucky & I. Bridge Co. v.
Louisville & N. R. R. Co., 37 Fed.
567, 2 L. R. A. 289 (1889).
2 Swift Co. v. Ronan, 103 Ill. App.
475 (1902).
3 Norfolk & P. Belt Line R. R.
Co. v. Commonwealth, 103 Va. 289,
49 S. E. 39 (1904).
United States v. Sioux City S.
Y. Co., 162 Fed. 556 (1908).
5 United States.-Vanderslice v.
The Superior, 28 Fed. Cas. No.
16,843 (1850).
California.—White v. Mary Ann,
6 Cal. 462, 65 Am. Dec. 523 (1856).
Louisiana.-Bussey v. Mississippi
[ 645]
§ 775] PUBLIC SERVICE CORPORATIONS
undertaking common carriage, since real possession is
retained by the master of the ship, and in such case tug-
boat is held liable only for due care.¹
§ 775. Responsibility for through cars.
It is of course plain that where a railroad takes over
a car from any shipper and then incorporates it in its
own trains for further transportation, it takes the position
of carrier although there is no breaking of bulk.² Simi-
Valley Transp. Co., 24 La. Ann.
165.
North Carolina.-Walston v. My-
ers, 5 Jones (N. C.), 174 (1857).
New Jersey.-Ashmore v. Penn.
Steam Towing Trans. Co., 28 N. J.
180 (1860).
New
24
1 United States.-Steamer
Philadelphia, 1 Black, 62, 17 L. ed.
84 (1861); The Quickstep, 9 Wall.
66, 19 L. ed. 767 (1869); Steamer
Webb, 14 Wall. 406, 20 L. ed. 774
(1871); The Margaret, 94 U. S. 494,
24 L. ed. 146 (1876); Transporta-
tion Line v. Hope, 95 U. S. 297,
L. ed. 477 (1877); The Princeton, 3
Blatch. 54, Fed. Cas. No. 11,434
(1853); The Lyon, 1 Brown's Adm.
59, 15 Fed. Cas. 8,645 (1861);
Steamboat Angelina Corning, 1
Ben. 109, Fed. Cas. No. 13,525
(1867); The Oconto, 5 Biss. 460,
Fed. Cas. No. 10,421 (1873); The
Merrimac, 2 Sawyer, 586, Fed. Cas.
No. 9,478 (1874); The Neaffie, 1
App. 465 (1807).
Illinois. Knapp v. McCaffrey,
178 Ill. 107, 52 N. E. 898, 69 Am.
St. Rep. 290 (1899), aff'd 177 U. S.
638, 44 L. ed. 921, 20 Sup. Ct. 824
(1900), giving a lien for towage al-
though it is not carriage.
Kentucky. Varble v. Bigley, 14
Bush, 698, 29 Am. Rep 435
(1879).
Maryland.-Pennsylvania D. &
M. Steam Nav. Co. v. Dandridge, 8
Gill & J. 248, 29 Am. Dec. 543 (1836).
Massachusetts.-Sproul v. Hem-
mingway, 14 Pick. 1, 25 Am. Dec.
350 (1833).
New York.-Caton v. Rumney,
13 Wend. 387 (1835); Alexander v.
Greene, 3 Hill, 9 (1842), 7 ibid. 533
(1844); Wells v. Steam Nav. Co.,
2 N. Y. 204 (1849); Merrick v.
Brainard, 38 Barb. 574 (1860);
Arctic Fire Ins. Co. v. Austin, 54
Barb. 559 (1869); Abbey v. Steam-
boat Stevens, 22 How. Pr. 78
(1861); Emiliusen v. Penn. R. R.
Co., 30 N. Y. App. Div. 203, 51
N. Y. Supp. 606 (1898).
Pennsylvania.-Leonard v. Hen-
drickson, 18 Pa. St. 40, 55 Am. Dec.
587 (1851); Hays v. Paul, 51 Pa.
St. 134, 88 Am. Dec. 569 (1865);
Brown v. Clegg, 63 Pa. St. 51, 3
Am. Rep. 522 (1869); Hays v.
Millar, 77 Pa. St. 238, 18 Am. Rep.
445 (1874).
England.-The Julia, 14 Moore
P. C. 210 (1860); Symonds v. Pain,
6 Hurl. & N. 709 (1861); The Min-
nehaha, 1 Lush, 335 (1861).
2 Arkansas.-Fordyce v. Mc-
!
[ 646 ]
BASIS OF THE UNDERTAKING
[ § 776
1
larly when a railroad takes over even a train from a
connection and draws it over its own line with its own
employés in charge it is obviously now the carrier. But
when it merely furnishes haulage for the trains of another
road it seems clear that the original carrier maintains
its position as such, the hauling company being liable
only for its negligence in that service. And where one
railroad has running rights over the rails of another it
is plain that the company operating the train through
remains the carrier.³
2
§ 776. Relations with dependent services.
The effect upon the arrangements between a principal
service and a dependant service upon the situation as
regards the public is sometimes difficult to determine. In
the case of express service the proper theory is held that
the express company holds itself out as the common car-
rier, to the general public and that the railroad acts as a
4
Flynn, 56 Ark. 424, 19 S. W. 961
(1892).
Illinois.-Ohio & Miss. R. R. Co.
v. Dunbar, 20 Ill. 623, 71 Am. Dec.
291 (1858).
New York.-See Jetter v. New
York & H. R. R. Co., 2 Abb. 458
(1865).
Vermont.-Kimball v. Rutland &
B. R. R. Co., 26 Vt. 247, 62 Am.
Dec. 567 (1854).
1 United States.-Hannibal R. R.
Co. v. Swift, 12 Wall. 262, 20 L. ed.
423 (1870).
Illinois. Peoria & P. Union Ry.
Co. v. United States Rolling Stock
Co., 136 Ill. 643, 27 N. E. 59, 29
Am. St. Rep. 348 (1891).
Nebraska. See Chicago, B. & Q.
R. R. Co. v. Curtis, 51 Neb. 442, 71
N. W. 42 (1897).
New Jersey.-New Jersey R. R.
& Transp. Co. v. Pennsylvania R.
R. Co., 27 N. J. L. 100 (1858).
Georgia.-East Tennessee & Ga.
R. R. Co. v. Whittle, 27 Ga. 535, 73
Am. Dec. 741 (1859).
New York.-Mallory v. Tioga R.
R. Co., 39 Barbour, 488 (1862).
* See Vermont & M. R. R. Co.
v. Fitchburg R. R. Co., 14 Allen
(Mass), 462, 92 Am. Dec. 785
(1867).
See North British Ry. Co. v.
Caledonian Ry. Co., 3 Ry. & C. Tr.
Cas. 273 (1878).
• United States.-Bank of Ken-
tucky v. Adams Exp. Co., 93 U. S.
174, 23 L. ed. 872 (1876); Missouri,
K. & T. Ry. Co. v. Dinsmore, 108
U. S. 30 (1882), 27 L. ed. 640, 2
Sup. Ct. 9 (1884); The Express
Cases, 117 U. S. 1, 29 L. ed. 791, 6
Sup. Ct. 628 (1886); Southern Exp.
[ 647]
§ 776 1
PUBLIC SERVICE CORPORATIONS
private carrier, instead of as a common carrier, in carry-
ing goods for an express company under their special
agreement. So as the government keeps possession of
the mails throughout their transit, the transportation of
them is not carriage.¹ But there is another possibility as
Co. v. St. Louis, I. M. & S. Ry. Co.,
3 McCreary, 872, 10 Fed. 210
(1882).
Alabama.-Southern
Southern Express Co.
v. Crook, 44 Ala. 468, 4 Am. Rep.
140 (1870); Southern Express Co. v.
Hess, 53 Ala. 19 (1875).
Colorado.-Merchants' Despatch
& Transp. Co. v. Cornforth, 3 Colo.
280, 25 Am. Rep. 757 (1877).
District of Columbia.-Galt v.
Adams Express Co., MacArthur &
M. 124, 48 Am. Rep. 742 (1879).
Florida.-Southern Express Co.
v. Van Meter, 17 Fla. 783, 35 Am.
Rep. 107 (1880).
Georgia.-Southern Express Co.
v. Newby, 36 Ga. 635, 91 Am. Dec.
783 (1867).
Illinois.-Boscowitz V. Adams
Express Co., 93 Ill. 523, 34 Am.
Rep. 191 (1879).
Indiana.-American Express Co.
v. Hockett, 30 Ind. 250, 95 Am.
Dec. 691 (1868).
Kansas.-Adams Express Co. v.
McConell, 27 Kan. 238 (1882).
Massachusetts.-Buckland v. Ad-
ams Express Co., 97 Mass. 124, 93
Am. Dec. 68 (1867).
Michigan.-United States Ex-
press Co. v. Root, 47 Mich. 231, 10
N. W. 351 (1881).
Minnesota.-Christenson v.
American Express Co., 15 Minn.
270, 2 Am. Rep. 122 (1870).
Missouri.-Kirby v. Adams Ex-
press Co., 2 Mo. App. 369 (1876).
New York.-Belger v. Dinsmore,
51 N.Y.166, 10 Am. Rep. 575 (1872).
Ohio.-American Express Co. v.
Smith, 33 Ohio St. 511, 31 Am. Rep.
561 (1878).
Oregon.-Bennett v. Northern
Pac. Exp. Co., 12 Oreg. 49, 6 Pac.
160 (1885).
Pennsylvania.-Grogan v. Adams
Express Co., 114 Pa. St. 523, 7 Atl.
134, 60 Am. Rep. 360 (1886);
Union Express Co. v. Ohleman, 92
Pa. St. 323 (1879).
South Carolina.-Stadhecker v.
Combs, 9 Rich. Law, 193 (1856).
Tennessee.—Southern Express Co.
v. Wormack, 1 Heisk. 256 (1870).
Texas.-Pacific Express Co. v.
Darnell, 62 Texas, 639 (1884).
Vermont. Hadd v. United States
& Canada Express Co., 52 Vt. 335,
36 Am. Rep. 757 (1880).
Wisconsin.-Wells v. American
Express Co., 55 Wis. 23, 11 N. W.
537, 12 N. W. 441, 42 Am. Rep. 695
(1882).
1 United States.-Bankers' Mut-
ual Casualty Co. v. Minneapolis,
St. P. & S. S. M. Ry. Co., 117 Fed.
434, 65 L. R. A. 397, 54 C. C. A.
608 (1902).
Alabama.-Central Railroad &
Banking Co. v. Lampley, 76 Ala.
357, 52 Am. Rep. 334 (1884).
Iowa.-Boston Ins. Co. v. Chi-
cago, R. I. & P. Ry. Co., 118 Ia.
423, 92 N. W. 88, 59 L. R. A. 796
(1902).
[ 648 ]
BASIS OF THE UNDERTAKING
777
the case of sleeping car service shows. There not only is
the sleeping car company in direct relations with its pub-
lic and liable for any default to it, but the railroad com-
pany must also answer to the passengers it is thus carry-
ing. The result is a cumulative liability, both the railroad
company and the car company being liable to an injured
patron.¹
1
Topic D. Special Arrangements with Particular
§ 777. Mail clerks.
Classes
In the majority of cases mail clerks although traveling
in the mail cars are said to be passengers; for it is pointed
out that their transportation is included in the sum paid
the railroad by the government. It is, however, generally
recognized that as they are necessarily carried in a different
car from ordinary passengers, to extent to which it is
dangerous to travel in such a car instead of the ordinary
passenger car the mail agent takes the risk of injury; but
in all other respects it is still insisted that the agent has the
rights of an ordinary passenger. Notwithstanding this
1 United States. Pennsylvania
Co. v. Roy, 102 U. S. 451, 26 L. ed.
141 (1880).
Louisiana.-Airey V. Pullman
Palace Car Co., 50 La. Ann. 648,
23, So. 512 (1898).
New York.-Dwinelle v. New
York Central & H. R. R. R. Co.,
120 N. Y. 117, 24 N. E. 319, 8 L. R.
A. 224, 17 Am. St. Rep. 611 (1890).
Ohio.-Railroad Co. v. Walrath,
38 Ohio St. 461, 43 Am. Rep. 433
(1882).
South Carolina.-Taber v. Sea-
board Air Line Ry. Co., 84 S. C.
291, 66 S. E. 292 (1909).
2 The propositions advanced in
2
this first paragraph are supported
by the following cases among
others:
United States.-Gleeson v. Vir-
ginia Midland R. R. Co., 140 U. S.
435, 35 L. ed. 458, 11 Sup. Ct. 859
(1891); Southern Pac. Co. v. Cavin,
144 Fed. 348, 75 C. C. A. 350
(1906); Arrowsmith v. Nashville &
D. Ry. Co. (C. C.), 57 Fed. 165
(1893).
Alabama.-Southern Ry. Co. v.
Harrington (Ala.), 52 So. 57 (1910).
District of Columbia.-Chesa-
peake & O. Ry. Co. v. Patton, 23
App. D. C. 113 (1904).
Illinois.-Barker v. Chicago, P.
[649]
§ 777]
PUBLIC SERVICE CORPORATIONS
general language it should be considered that mail clerks
are to be carried in a special car, under special circum-
stances; and they are not strictly travelers, since they de-
sire merely to do business on the railroad train. The
carrier is not bound to receive them as passengers, and it
is therefore held in several cases that it may make such
arrangements as it pleases with regard to terms of car-
riage and its liability for injury.
& St. L. Ry. Co., 243 Ill. 482, 90
N. E. 1057, 26 L. R. A. (N. S.)
1058 (1909); Wabash Ry. Co. v.
Jellison, 124 Ill. App. 652 (1906).
Indiana.-Cleveland, C., C. &
St. L. Ry. Co. v. Ketcham, 133
Ind. 346, 33 N. E. 116, 19 L. R. A.
339, 36 Am. St. Rep. 550 (1893);
Malott v. Central Trust Co., 168
Ind. 428, 79 N. E. 368, 11 A. & E.
Ann. Cas. 879 (1906).
Kentucky.-Louisville & N. R. R.
Co. v. Kingman, 18 Ky. Law Rep.
82, 35 S. W. 264 (1896).
Maine.-Libby v. Maine Cent.
R. R. Co., 85 Me. 34, 26 Atl. 943,
20 L. R. A. 812 (1892).
Maryland.-Baltimore & Ohio
R. R. Co. v. State, 72 Md. 36, 18
Atl. 1107, 6 L. R. A. 706, 20 Am.
St. Rep. 454 (1890).
Massachusetts.-Stoddard v. New
York, N. H. & H. R. R. Co., 181
Mass. 422, 63 N. E. 927 (1902).
Minnesota.-Decker v. Chicago,
M. & St. P. Ry. Co., 102 Minn. 99
112 N. W. 901 (1907).
v.
Missouri.-Mellor Missouri
Pac. Ry. Co., 105 Mo. 455, 14 S. W.
758, 10 L. R. 36 (1891).
Montana.-Hoskins v. Northern
Pac. Ry. Co., 39 Mont. 394, 102
Pac. 988 (1909).
In other words the mail
York, L. E. & W. R. R. Co., 95 N.
Y. 562, 47 Am. Rep. 75 (1884).
North Carolina.-Grant v. Ra-
leigh & Gaston R. R. Co., 108 N. C.
462, 13 S. E. 209 (1891).
South Carolina.—Hammond v.
North Eastern R. R. Co., 6 S. C.
130, 24 Am. Rep. 467 (1874).
Tennessee.-Illinois Cent. Ry.
Co. v. Porter, 117 Tenn. 13, 94 S.
W. 666, 10 A. & E. Ann. Cas. 789
(1908).
Texas.-International & G. N.
Ry. Co. v. Davis, 17 Tex. Civ. App.
340, 43 S. W. 540 (1897); Houston
& T. C. Ry. Co. v. McCullough, 22
Tex. Civ. App. 208, 55 S. W. 392
(1899); Sproule v. St. Louis & S. F.
Ry. Co. (Tex. Civ. App.), 91 S. W.
657 (1906).
Virginia.-Norfolk & W. R. R.
Co. v. Shott, 92 Va. 34, 22 S. E. 811
(1895).
England.—Collett v. London &
N. W. Ry. Co., 16 Q. B. 984 (1851).
¹ The propositions advanced in
this paragraph are supported by the
following cases, among others:
United States.—Baltimore & Ohio
S. Ry. Co. v. Voigt, 176 U. S. 498,
44 L. ed. 56, 20 Sup. Ct. 385
(1899).
Indiana.-Louisville, N. A. & C.
New York.-Seybolt v. New Ry. Co. v. Keefer, 146 Ind. 21, 44
[ 650 ]
BASIS OF THE UNDERTAKING
[ § 778
clerks may be taken upon a public or a private basis, as
the facts may show.
§ 778. Express messengers.
The same things are true of an express messenger. If
he is being carried by the railroad in a special car, under
the contract with the express company, he is usually held
to be a passenger, except so far as he accepts the risk of
being carried in an express car.¹ But by the weight of
authority he also will be affected by a contract providing
that the company shall not be liable to him as a carrier of
passengers would be,2 although there are some cases to
N. E. 796, 38 L. R. A. 93, 58 Am.
St. Rep. 348 (1896).
Massachusetts. Bates v. Old
Colony R. R. Co., 147 Mass. 255,
17 N. E. 633 (1888).
Ohio. But see Pennsylvania Co.
v. Woodworth, 26 Ohio St. 585
(1875).
Pennsylvania.—Pennsylvania R.
R. Co. v. Price, 96 Pa. St. 256
(1880).
Wisconsin.-But see Chamber-
lain v. Milwaukee & Miss. R. R.
Co., 11 Wis. 238 (1860).
But see Illinois Central R. R.
Co. v. Crudup, 63 Miss. 291 (1885).
And see Schuyler v. Southern
Pacific Ry. Co. (Utah), 109 Pac.
458 (1910).
1 The foregoing statements are
supported by the following cases:
Arkansas.-Fordyce v. Jackson,
56 Ark. 594, 20 S. W. 528, 597
(1892).
California.-Yeomans v. Contra
C. S. Nav. Co., 44 Cal. 71 (1872).
Indiana.-Cleveland, C., C. &
St. L. Ry. Co. v. Ketcham, 133 Ind.
346, 33 N. E. 116, 19 L. R. A. 339,
36 Am. St. Rep. 550 (1893).
Kansas.-Union Pacific Ry. Co.
v. Nichols, 8 Kan. 505, 12 Am.
Rep. 475 (1871).
Kentucky.-Davis v. Chesapeake
& O. Ry. Co., 29 Ky. Law Rep. 53,
92 S. W. 339, 5 L. R. A. (N. S.) 458
(1906).
Missouri.-Jones v. St. Louis
Southwestern Ry. Co., 125 Mo. 666,
28 S. W. 883, 26 L. R. A. 718, 46
Am. St. Rep. 514 (1894).
New York.-Blair v. Erie Ry.
Co., 66 N. Y. 313, 23 Am. Rep. 55
(1876).
Ohio. Pennsylvania Co. v.
Woodworth, 26 Ohio St. 585 (1875).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Wilson, 79 Tex. 371, 15 S. W.
280, 11 L. R. A. 486, 23 Am. St.
Rep. 345 (1891).
Wisconsin.-Peterson v. Chicago
& Northwestern Ry. Co., 119 Wis.
197, 96 N. W. 532, 100 Am. St. Rep.
897 (1903).
2 United States.-Chicago & N.
W. Ry. Co. v. O'Brien, 132 Fed.
593, 67 C. C. A. 421 (1904).
Delaware.-Perry v. Philadelphia
B. & W. R. R. Co. (Del. Supr.), 77
Atl. 725 (1910).
[ 651 ]
§ 779 1 PUBLIC SERVICE CORPORATIONS
the contrary that deserve attention.¹ The conditions of
the transportation are as before peculiar, and the rail-
road may therefore insist upon making it a private ar-
rangement with special terms. Some of these cases insist
that the individual messenger must be brought into this
understanding by contract to that effect with his em-
ployers,2 but others say that he is affected by knowledge
of the agreement. These problems are not worked out;
and it seems to the writer that they will never be satis-
factorily worked out until the attempt to explain them
upon the basis of contracting is given up in favor of the
theory of the character of the acceptance.
§ 779. Employés of car companies.
The same law governs the liability of railroad com-
panies to the employés of car companies on duty. Such
employés are held presumptively passengers, compen-
sation for their transportation being included in the whole
Illinois.-Blank v. Illinois Cent.
R. R. Co., 182 Ill. 332, 55 N. E. 332
(1899).
Indiana.-Louisville N. A. & C.
Ry. Co. v. Keefer, 146 Ind. 21, 44
N. E. 796, 38 L. R. A. 93, 58 Am.
St. Rep. 348 (1896).
Massachusetts.-Bates v. Old Col-
ony R. R. Co., 147 Mass. 255, 17
N. E. 633 (1888).
New Jersey.-Dodd v. Central
R. R. of N. J. (N. J. L.), 76 Atl. 544
(1910).
Vermont.-Robinson v. St. Johns-
bury & L. C. Ry. Co., 80 Vt. 129,
66 Atl. 814, 9 L. R. A. (N. S.) 1249
(1907).
¹ See Davis v. Chesapeake & O.
Ry. Co., 29 Ky. Law Rep. 53, 92
S. W. 339, 5 L. R. A. (N. S.) 458
(1906).
4
2 United States.-Chamberlain v.
Pierson, 87 Fed. 420, 59 U. S. App.
55, 31 C. C. A. 157 (1898).
New York.-Brewer v. New York,
L. E. & W. R. R. Co., 124 N. Y. 59,
26 N. E. 324, 21 Am. St. Rep. 647,
47 Am. & Eng. R. Cas. 485 (1891).
³ Illinois.—Blank v. Illinois Cent.
R. R. Co., 182 Ill. 332, 55 N. E. 332
(1899).
Indiana.-Pittsburg, C., C. &
St. L. Ry. Co. v. Mahoney, 148
Ind. 196, 47 N. E. 917, 62 Am. St.
Rep. 503, 40 L. R. A. 101 (1897).
V.
4 See to this effect, among others:
United States.-McDermon
Southern Pacific Co., 122 Fed. 669.
(1903).
Illinois.-Blank v. Illinois Cent.
R. R. Co., 182 Ill. 332, 55 N. E. 332
(1899).
[652]
BASIS OF THE UNDERTAKING
[ § 780
transaction. But here again the cases allow the railroad,
in making arrangements to have sleeping car facilities
for the public, to obtain an indemnity contract from the
sleeping car company and an exemption contract from the
employés of the sleeping car company.¹
§ 780. Owners accompanying their shipments.
Where public duty is involved no special arrangement
can be insisted upon. The established basis upon which
cattle shipments are made being that representatives of
the owners may accompany them, such drovers are prop-
erly considered passengers, their fare being included in the
rate. Therefore any contract that provides for exemption
of the railroad from liability with respect to them is void.
The most that the peculiar method of traveling results in
is that they must submit to whatever special disabilities.
that there may be necessarily incident to the undertaking.2
1 See to this effect, among others:
Illinois.-Chicago, R. I. & P. Ry.
Co. v. Hamler, 215 III. 525, 74 N. E.
705, 1 L. R. A. (N. S.) 674, 106 Am.
St. Rep. 187 (1905).
Indiana.-Russell v. Pittsburg,
C., C. & St. L. Ry. Co., 157 Ind.
305, 61 N. E. 678, 87 Am. St. Rep.
214 (1901).
The right to obtain such an in-
demnity contract results from the
fact that a railroad company is un-
der no legal duty to receive a
sleeping car from a Pullman com-
pany, nor its employé thereon. Rus-
sell v. Pittsburg, C., C. & St. L. Ry.
Co., 157 Ind. 305, 61 N. E. 678, 87
Am. St. Rep. 214 (1901).
2 These general propositions may
be found in the following cases,
among others:
Lockwood, 17 Wall. (U. S.) 357, 21
L. ed. 627 (1873); Delaware, L. &
W. R. R. Co. v. Ashley, 67 Fed.
209, 28 U. S. App. 375, 14 C. C. A.
368 (1895).
Arkansas.-Little Rock & Ft. S.
Ry. Co. v. Miles, 40 Ark. 298, 48
Am. Rep. 10 (1883).
Delaware.-Flinn v. Philadelphia
W. & B. R. R. Co., 1 Houst. (Del.)
469 (1857).
Illinois. Illinois Cent. R. R. Co.
v. Anderson, 184 Ill. 294, 56 N. E.
331 (1900).
Indiana.-Louisville N. A. & C.
R. R. Co. v. Taylor, 126 Ind. 126,
25 N. E. 869 (1890).
Kentucky.-Louisville & N. R. R.
Co. v. Bell, 100 Ky. 203, 38 S. W.
3, 18 Ky. L. Rep. 735 (1896).
Minnesota. Olson v. St. Paul
United States.-Railroad Co. v. & D. R. R. Co., 45 Minn. 536, 48
[653]
§ 781 ]
PUBLIC SERVICE CORPORATIONS
And similarly where by an arrangement between a lumber
company and a railroad company it was agreed that the
lumber company's employés should be carried to and from
work, an employé riding to work on a logging train was
entitled to the rights of a passenger.¹
§ 781. Employés of contracting shippers.
There are some extreme cases where the fundamental
principle in all this is said to be that the carrier cannot
make stipulations against liability for injuries to persons
being transported in connection with matters as to which
he owes a duty, obliging him to permit persons to travel
in the way described as a matter of right.2 Thus in a late
New Hampshire case, it was held that the railroad could
not by special contract relieve itself of its liabilities to
employés of milk contractors traveling in their milk cars.
The court pointing out that in regard to such trans-
3
N. W. 445, 22 Am. St. Rep. 749
(1891).
Missouri.-Carroll v. Missouri
Pac. Ry. Co., 88 Mo. 239, 57 Am.
Rep. 382 (1885).
Nebraska. Missouri Pac. Ry.
Co. v. Tietken, 49 Neb. 130, 68 N.
W. 336, 59 Am. St. Rep. 526 (1896).
Ohio.-Cleveland P. & A. R. R.
Co. v. Curran, 19 Ohio St. 1, 2 Am.
Rep. 362 (1869).
Texas.-Gulf, C. & S. F. Ry. Co.
v. Cole, 8 Tex. Civ. App. 635, 28
S. W. 391 (1894).
Wisconsin.-Lawson v. Chicago,
St. P., M. & O. Ry. Co., 64 Wis.
447, 24 N. W. 618, 54 Am. Rep.
634 (1885).
But see:
New York.-Poucher V. New
York Cent. R. R. Co., 49 N. Y. 263,
10 Am. Rep. 364 (1872).
South Dakota.-Meuer v. Chicago
M. & St. P. Ry. Co., 5 S. D. 568, 59
N. W. 945, 25 L. R. A. 81, 45 Am.
St. Rep. 898 (1894).
1
¹ Trinity Val. Ry. Co. v. Stewart
(Tex. Civ. App.), 62 S. W. 1085
(1901).
2 See the uncompromising rea-
soning in such cases as:
United States.-Voight v. Balti-
more, O. & S. W. Ry. Co., 79 Fed.
561 (1897).
Kentucky.-Davis v. Chesapeake
& O. Ry. Co., 122 Ky. 528, 92 S. W.
339, 5 L. R. A. (N. S.) 458 (1906).
Minnesota. Starr v. Gt. North-
ern Ry. Co., 67 Minn. 18, 69 N. W.
632 (1896).
--
Ohio.-Pennsylvania Ry. Co. v.
Woodworth, 26 Ohio St. 585
(1875).
³ New Hampshire.—Baker v. Bos-
ton & M. R. R. Co., 74 N. H. 100,
65 Atl. 386 (1906).
[ 654 ]
BASIS OF THE UNDERTAKING [§§ 782, 783
portation the company owes the special duty to accom-
modate this peculiar service, which means special cars
properly equipped.
§ 782. Concessionaires in general.
On the other hand, unless such a duty can be made to
appear there is no obligation to receive the persons con-
cerned upon a passenger basis and they may therefore be
properly taken upon a special basis with limited liability.
Thus a street railway would not in any case owe a duty
similar to that which it owes to passengers, to newsboys
whom it permits to jump on and off of its cars while in
motion, since the conditions are so different from those
under which passengers are carried.¹ And generally the
contract with a train boy permitting him to do business on
board would not be upon the basis of his acceptance as
a passenger; at all events as the railroad owes no duty to
accept him, it may stipulate that it shall not be liable as
it would to a passenger.2
§ 783. Employés while on duty.
The question has been much discussed whether a serv-
ant of the company who is being carried gratuitously is
entitled to be regarded as a passenger. If the carriage is
directly in connection with his work he is really engaged
while being carried in his employment and his relation to
the carrier is that of servant and certainly not that of a
passenger; as where a workman on a construction or a
gravel train is taken from place to place on the road, as
¹ Illinois.—Chicago, R. I. & Pac.
R. R. Co., v. Moran, 117 Ill. App.
42 (1904).
Missouri.-Padgitt v. Moll. &
Citizens' Ry. Co., 149 Mo. 143, 60
S. W. 121, 52 L. R. A. 854, 81 Am.
St. Rep. 347 (1900).
2 Connecticut.-Griswold, Admr.,
v. New York, & N. E. R. R. Co. 53
Conn. 371, 4 Atl. 261, 55 Am. Rep.
115 (1885).
Louisiana.-Higgins v. New Or-
leans, M. & C. R. R. Co., 28 La.
Ann. 133 (1876).
[655]
§ 783 ] PUBLIC SERVICE CORPORATIONS
his services are needed.¹ If he is not actually working at
his employment, but is being carried to or from the place
of employment, by agreement with the company, as an
assistance to his work, he would seem equally to be en-
gaged in his employment, and not to be a passenger.²
¹ Georgia.-Travelers' Ins. Co. v.
Austin, 116 Ga. 264, 42 S. E. 522,
59 L. R. A. 107, 94 Am. St. Rep.
125 (1902).
Indiana.-Evansville & Rich-
mond R. R. Co. v. Barnes, 137 Ind.
306, 36 N. E. 1092 (1893).
Louisiana.-Dobson v. New Or-
leans & W. R. R. Co., 52 La. Ann.
1127, 27 So. 670 (1900).
Massachusetts. Gillshannon v.
Stony Brook R. R. Corp., 10 Cush.
228 (1852); Kilduff v. Boston Elev.
Ry. Co., 195 Mass. 307, 81 N. E.
191, 9 L. R. A. (N. S.) 873 (1907),
employé being brought from work
in special cars, not passengers.
New York.-Streets V. Grand
Trunk Ry. Co., 178 N. Y. 553, 76
App. Div. 480, aff'd 70 N. E. 1109
(1904).
Pennsylvania.—Benignia v. Penn-
sylvania R. R. Co., 197 Pa. 384, 47
Atl. 359 (1900).
Though not a passenger, yet being
rightfully on the train, he can have
damages for an injury caused by
actual negligence imputable to the
carrier, unless he is barred by the
fact that the negligence was that of
a fellow servant.
Indiana.-Evansville & R. R. R.
Co. v. Maddux, 134 Ind. 571, 33 N.
E. 345, 34 N. E. 511 (1893).
Louisiana.-Dobson v. New Or-
leans & W. R. R. Co., 52 La. Ann.
1127, 27 So. 670 (1900).
Texas.-Texas & P. Ry. Co. v.
Scott, 64 Tex. 549 (1885).
V.
West Virginia. Sanderson
Panther L. Co., 50 W. Va. 42, 40
S. E. 368, 55 L. R. A. 908, 88 Am.
St. Rep. 841 (1901).
2 Illinois.—Chicago T. T. R. R.
Co. v. O'Donnell, 213 Ill..545, 72
N. E. 1133 (1905).
Indiana.-Columbus & I. Cent.
Ry. Co. v. Arnold, 31 Ind. 174, 99
Am. Dec. 615 (1869).
Massachusetts.-Kilduff v. Bos-
ton Elev. Ry. Co., 195 Mass. 307,
81 N. E. 191, 9 L. R. A. (N. S.) 873
(1907).
New York.-Ross v. New York
Cent. & H. R. R. R. Co., 74 N. Y.
617 (1878).
North Carolina. Wright v.
Northampton & H. R. R. Co., 122
N. C. 852, 29 S. E. 100 (1898).
Ohio.-Manville v. Cleveland &
T. R. R. Co., 11 Ohio St. 417 (1860).
Rhode Island.-Ionnone v. New
York, N. H. & H. R. R. Co., 21 R. I.
452, 44 Atl. 592, 79 Am. St. Rep.
812 (1899).
Wisconsin.-Ewald v. Chicago &
N. W. Ry. Co., 70 Wis. 420, 36 N.
W. 12, 5 Am. St. Rep. 178 (1888).
Tennessee.-Transit Co. v. Ven-
able, 105 Tenn. 460, 58 S. W. 861,
51 L. R. A. 866 (1900).
Texas.-Johnson v. Texas Cent.
R. R. Co. (Tex. Civ. App.), 93 S. W.
433 (1906).
[ 656 ]
BASIS OF THE UNDERTAKING
IS 784
§ 784. Employés receiving independent service.
2
If, however, he receives in part compensation for his
services the right to travel as passengers do, then in so
traveling he is to be regarded as in all respects a passenger."
To cite a late example of this, in Herbert v. Portland Rail-
road Company, it appeared that one who was employed
as greaser, while being transported by his employer to his
place of work, was injured by a derailment of the car.
It was contended on the ground that he had paid his fare
by a ticket given by the company and that he was going
to his work that he was not a passenger, but the Maine
court held that although the ticket was given him by the
company for that ride he had paid for his services. It
was part of his wages and delivered to him as such. It
England. Tunney v. Midland
Ry. Co., L. R. C. P. 291 (1866).
Canada.-May v. Ontario & Q.
Ry. Co., 10 Ont. Rep. 70 (1885).
¹ See among many other cases to
this effect:
United States.-Whitney v. New
York, N. H. & H. R. R. Co., 43 C.
C. A. 19, 102 Fed. 850, 50 L. R. A.
615 (1900).
Georgia.-Carswell v. Macon, D.
& S. R. R. Co., 118 Ga. 826, 45 S. E.
695 (1903).
Indiana.—Indianapolis Traction
& Terminal Co. v. Romans, 40 Ind.
App. 184, 79 N. E. 1068 (1907).
Maryland. State v. Western
Maryland R. R. Co., 63 Md. 433
(1884).
Massachusetts. Dickinson V.
West End. St. Ry. Co., 177 Mass.
363, 59 N. E. 60, 83 Am. Rep. 284,
52 L. R. A. 326 (1901). Employé
riding free to dinner is a passenger.
Oregon.-Simmons v. Oregon R.
R. Co., 41 Oreg. 151, 69 Pac. 440
(1902).
Pennsylvania.—McNulty v. Penn-
sylvania R. R. Co., 182 Pa. 479, 38
Atl. 524, 61 Am. St. Rep. 721, 38
L. R. A. 376 (1897).
Utah.-Williams v. Oregon S. L.
R. R. Co., 18 Utah, 210, 54 Pac.
991, 72 Am. St. Rep. 777 (1898).
Washington.-Peterson v. Seattle
Traction Co., 23 Wash. 615, 63 Pac.
539, 53 L. R. A. 586 (1900).
Two cases may seem contra, but
they need not be troublesome.
Pennsylvania R. R. Co. v. Books,
57 Pa. 339, 98 Am. Dec. 229 (1868),
which seems to hold that a servant
riding on an employer's pass is not
to be regarded as a passenger under
any circumstances, must be con-
sidered overruled on that point;
Higgins v. Hannibal & S. J. R. R.
Co., 36 Mo. 418 (1865), which held
that an employé riding free in a
baggage car on his own business
was not to be regarded as a passen-
ger in the language of a statute giv-
ing damages for death.
2 103 Me. 315, 69 Atl. 266 (1907).
42
[ 657 ]
§ 785]
PUBLIC SERVICE CORPORATIONS
could make no difference in his status as a passenger
whether he paid his fare in cash or in tickets thus earned.
§ 785. Full liability in gratuitous service.
A most important point has not been brought forward
for discussion as yet. Although not obliged to perform
gratuitous service upon the usual terms, the one who is
performing the service may assume the usual obligations
pertaining to the service. Thus there is no doubt upon
the authorities that a person carried gratuitously by a
railroad is a passenger, and is entitled to the same care
as any passenger.¹ A recent case 2 brings this out clearly.
1 United States.-Philadelphia &
R. R. R. Co. v. Derby, 14 How.
(U. S.) 468, 14 L. ed. 502 (1852);
Indianapolis, T. & T. Co. v. Lawson,
74 C. C. A. 630, 143 Fed. 834 (1906).
Illinois.-Benner Livery & U.
Co. v. Busson, 58 Ill. App. 17
(1894).
Indiana.-Gillenwater v. Madi-
son & Ind. R. R. Co., 5 Ind. 339, 61
Am. Dec. 101 (1854); Ohio & Miss.
Ry. Co. v. Nickless, 71 Ind. 271
(1880); Russell v. Pittsburgh Ry.
Co., 157 Ind. 305, 61 N. E. 678, 87
Am. St. Rep. 214, 55 L. R. A. 253
(1901).
Iowa.-Rose v. Des Moines Val-
ley R. R. Co., 39 Ia. 246 (1874).
Maine.-Hoar v. Me. Cent. R. R.
Co., 70 Me. 65, 35 Am. Rep. 299
(1879).
Maryland. State v. Western
Maryland R. R. Co., 63 Md. 433
(1884).
Massachusetts.-Todd v. Old Col-
2 Indiana Traction & Terminal
Co. v. Klentschy, 167 Ind. 598, 79
N. E. Rep. 908 (1907); and see
ony R. R. Co., 3 Allen (Mass.), 18,
80 Am. Dec. 49 (1861); Wilton v.
Middlesex R. R. Co., 107 Mass.
108, 9 Am. Rep. 11 (1871); Wilton
v. Middlesex R. R. Co., 125 Mass.
130 (1878); Littlejohn v. Fitchburg
R. R. Co., 148 Mass. 478, 20 N. E.
103, 2 L. R. A. 502 (1889); Doyle
v. Fitchburg R. R. Co., 162 Mass.
66, 37 N. E. 770, 44 Am. St. Rep.
335, 25 L. R. A. 157 (1894).
Michigan.-Flint & Pere M. Ry.
Co. v. Weir, 37 Mich. 111, 26 Am.
Rep. 499 (1877).
Minnesota.-Jacobus v. St. Paul
& C. Ry. Co., 20 Minn. 125, 18 Am.
Rep. 360 (1873).
Missouri.—Lemon v. Chanslor,
68 Mo. 340, 30 Am. Rep. 799 (1878);
Buck v. People's St. Ry., E. L. & P.
Co., 46 Mo. App. 555 (1891);
Dorsey v. Atchison, T. & S. F. Ry.
Co., 83 Mo. App. 528 (1900).
New York.-Perkins v. N. Y. C.
R. R. Co., 24 N. Y. 196, 82 Am.
Indianapolis Traction & T. Co. v.
Lawson, 143 Fed. 834, 74 C. C. A.
630, 5 L. R. A. (N. S.) 721 (1906).
[ 658 ]
BASIS OF THE UNDERTAKING
[ § 786
Plaintiff, a member of a ladies' society, was attending a
convention in defendant's city. With other members of
the convention she was invited to ride on defendant's cars,
and during the progress of the ride a collision occurred
between two of the cars by which the plaintiff was injured.
It was contended that inasmuch as the members of the
convention were riding gratuitously, they did not become
passengers so as to impose liability upon defendant com-
pany. The court in holding that the company was liable
for the injuries sustained, said: "A passenger who is car-
ried gratuitously by a common carrier is as much a pas-
senger as if he were paying full fare, and the mere fact that
he is carried gratuitously will not of itself deprive him of
his right of action if injured by the negligence of the
carrier."
§ 786. Explicit limitation to private basis.
It should however be plain that a carrier who is carry-
ing a passenger gratuitously does not owe him the duty
owed by a common carrier. Although he is obliged to take
care even of a gratuitous passenger, still the obligations
of the common carrier do not bind him. The question
commonly arises where a passenger riding on a free pass
exempts the carrier from liability for injury by negligence.
Such an exemption is generally held binding, though in
the case of a common carrier it would be void.¹ The rail-
Dec. 282 (1862); Carroll v. Staten
Island R. R. Co., 58 N. Y. 126, 17
Am. Rep. 221 (1874).
Pennsylvania.—Buffalo, P. & W.
R. R. Co. v. O'Hara,* 3 Pennyp.
(Pa.) 190, 12 Wkly Note Cas. (Pa.)
473 (1882).
Texas.-Gulf, C. & S. F. Ry. Co.
v. McGown, 65 Tex. 640 (1886).
Wisconsin.—Annas v. Milwaukee
& N. R. R. Co., 67. Wis. 46, 30 N.
W. 282, 58 Am. Rep. 848 (1886);
Gabbert v. Hackett, 135 Wis. 86.
115 N. W. 345, 14 L. R. A. (N. S.)
1070 (1908).
1 United States.-Northern Pac.
Ry. Co. v. Adams, 192 U. S. 440, 48
L. ed. 513, 24 Sup. Ct. 408 (1904);
Boering v. Chesapeake Beach Ry.
Co., 193 U. S. 442, 48 L. ed. 742, 24
Sup. Ct. 515 (1903).
Connecticut.—Griswold v. New
[659]
§ 786]
PUBLIC SERVICE CORPORATIONS
way company is not truly in such a case a carrier for hire.
It only offers its guest the privilege of riding in its coaches
without charge if he would assume the risk of negligence.
He is not in the power of the company and obliged to
accept its terms; they stand on an equal footing. If he
desires to hold it to its common law obligations to him
as a passenger, he may pay his fare and compel the com-
pany to receive and carry him. He freely and voluntarily
chooses to accept the privilege offered, and having ac-
cepted that privilege cannot repudiate the conditions.
In some jurisdictions ¹ however, it is held that even in the
case of a free passenger a limitation of liability for negli-
gence is invalid; but this is more on general grounds of
public policy, for it is hardly denied that the carrier is not
as to such passenger a mere private carrier.
1
York & N. E. R. R. Co., 53 Conn.
371, 4 Atl. 261, 55 Am. Rep. 115
(1885).
Illinois.-Toledo W. & W. Ry.
Co. v. Beggs, 85 Ill. 80, 28 Am. Rep.
613 (1877).
Indiana.-Payne v. Terre Haute
& I. Ry. Co., 157 Ind. 616, 62 N. E.
472, 56 L. R. A. 472 (1902).
Maine.-Rogers v. Kennebec Stb.
Co., 86 Me. 261, 29 Atl. 1069, 25
L. R. A. 491 (1894).
Massachusetts.-Quimby v. Bos-
ton & M. R. R. Co., 150 Mass. 365,
23 N. E. 205, 5 L. R. A. 846 (1890).
Montana.—John v. Northern Pa-
cific Ry. Co. (Mont.), 111 Pac. 632
(1910).
New Jersey.-Kinney v. Central
R. R. Co., 34 N. J. L. 513, 3 Am.
Rep. 265 (1869).
New York.-Wells v. New York
Cent. R. R. Co., 24 N. Y. 181 (1862).
Tennessee.-Marshall V. Nash-
ville R. & Light Co., 118 Tenn. 254,
101 S. W. 419, 9 L. R. A. (N. S.)
1246 (1906).
Texas.-Gulf, C. & S. F. Ry. Co.
v. McGown, 65 Tex. 640 (1886).
Washington. Muldoon v. Seattle
City Ry. Co., 7 Wash. 528, 35 Pac.
422, 22 L. R. A. 794 (1893).
Wisconsin.-Annas v. Milwaukee
& N. R. R. Co., 67 Wis. 46, 30 N. W.
282, 58 Am. Rep. 848 (1886).
¹ Alabama.-Mobile & O. R. R.
Co. v. Hopkins, 41 Ala. 486, 94 Am.
Dec. 607 (1868).
Indiana.-Indiana C. Ry. Co. v.
Mundy, 21 Ind. 48, 83 Am. Dec.
339 (1863).
Minnesota.-Jacobus v. St. Paul
& C. Ry. Co., 20 Minn. 125, 18 Am.
Rep. 360 (1873).
V.
Missouri.-Bryan Missouri
Pac. Ry. Co., 32 Mo. App. 228
(1888).
Pennsylvania.-Camden & A. R.
R. Co. v. Bausch (Pa. St.), 7 Atl.
731 (1887).
[660]
CHAPTER XXIII
PROVISION OF ADEQUATE FACILITIES
§ 790. Basis of the duty to supply equipment.
Topic A. Provision of Proper Facilities
§ 791. Profession limited to original facilities.
792. Adherence to the original scope.
793. Proper equipment must be provided.
794. Ultimate responsibility for proper equipment.
795. Improvement of present facilities.
796. Provision of special equipment.
Topic B. Obligation to Increase Facilities
§ 797. Facilities which the service requires.
798. The obligation is not absolute.
799. Equipment sufficient for expected business.
800. Expected business not provided for.
801. Demand foreseen although unusual.
802. Reasonable time to increase facilities.
803. Pressure for short periods.
804. Equipment beyond its control.
Topic C. Establishment of Stational Facilities
§ 805. Establishment of stations by legislation.
806. Requirement of stations by commissions.
807. Requirement of stations by the courts, conservative view.
808. Progressive view of the question of stations.
809. Where stations are required.
810. Closing stations.
811. Exact location of stations.
812. Proper facilities at stations.
813. Establishment of freight stations.
814. Establishing offices in other services.
Topic D. Provision of Private Installation
§ 815. No right to private sidings generally.
816. Rights of the railroad paramount.
[ 661]
§ 790]
PUBLIC SERVICE CORPORATIONS
§ 817. When private switches must be granted.
818. The problem of stock yards.
819. Constitutionality of further legislation.
820. Railroad never obliged to construct siding.
821. Duty confined to permitting connection.
822. Obligation to receive upon spurs.
823. The company need only provide requisite facilities.
824. Provision of service pipes and feed wires.
825. Provision of transformers and meters.
826. Dictation as to fittings.
§ 790. Basis of the duty to supply equipment.
It must be obvious that the provision of adequate
facilities in the conduct of the business which has been
undertaken is one of the fundamental obligations resting
upon those who undertake a public service; for without
the recognition of this duty to provide proper facilities
the general requirement of service would be idle. It has
indeed always been recognized that the public servant
must keep his equipment up to the standard of his under-
taking; but it must be conceded that until recent times
the law had not advanced much beyond this. This is the
most obvious phase of this obligation, the requirement
that the facilities furnished shall be adequate to complete
properly the performance of any service actually under-
taken. It is hardly too much to say that originally it
was supposed that when the facilities put at the disposal
of the public were exhausted the proprietors of the service
were excused. But of late years it has been seen that in
certain businesses at least one is committed to more than
the utilization of the original facilities in the service of
the public. Just how far both of these classes of cases
may exist without inconsistency is one of the problems
of this chapter. But there can be no doubt of the tendency
of the times to put as many businesses into the second
class as possible. The common law is certainly becoming
more exacting as to what constitutes an adequate provi-
[ 662 ]
PROVISION OF ADEQUATE FACILITIES
[ § 791
sion of facilities. And it must be obvious to all observers
of the tendencies of legislation regulating public service
that the oversight of facilities is going to be most intimate
in the immediate future.
Topic A. Provision of Proper Facilities
1
§ 791. Profession limited to original facilities.
According to the original conception of the devotion of
property to a public use the obligation was limited to the
facilities offered. And indeed there are still several in-
stances in public service, where the original profession
still does not contemplate the expansion of the business
beyond the original facilities. A carter cannot be com-
pelled to equip himself with a wagon of larger capacity
even if business is continually offered him requiring better
equipment. It is a sufficient excuse that his cart is too
small for the freight offered. A shipowner 2 may hold
himself out to the public to carry certain goods of a certain
sort for hire. As to the goods he proposes to carry he is
a public carrier; but he is under no obligation to provide
other ships, because his vessel is inadequate to transport
all goods which may be offered to him. Again, an inn-
keeper who commits himself to public service is not obliged
to enlarge his original building. His showing that his
house is full is always a defense, no matter how often this
may have happened before. So an elevator man performs
his whole duty when he devotes his whole structure to
the service of the public, reserving none of it for his own
purposes. This has been remarked before in this treatise
4
3
¹ Tunnel v. Pettijohn, 2 Harr.
(Del.) 48 (1835).
2 Ocean Steamship Co. v. Sa-
vannah Locomotive Works & Sup-
ply Co., 131 Ga. 831, 63 S. E. 577,
20 L. R. A. (N. S.) 867, 127 Am.
St. Rep. 265 (1909).
3 Browne v. Brandt 1 K. B. 696,
71 L. J. K. B. 367, 86 L. T. 625, 50
W. R. 654 (1902).
4 Hannah v. People, 198 Ill. 77,
64 N. E. 776 (1902).
[ 663 ]
§ 792]
PUBLIC SERVICE CORPORATIONS
in connection with the discussion of the primary duty,
which in these cases is in reality limited by the original
profession to the devotion of the facilities offered to the
service of the public. In these particular instances the
obligation undertaken being simply to devote given facil-
ities, no further obligation in respect to facilities results.
But in the most important modern services the profession
made is to render a given service to the community in
general; and a proper consequence of this undertaking
is the obligation to provide adequate facilities to perform
the service promised.
§ 792. Adherence to the original scope.
These cases under discussion are not exceptional in-
stances but extreme illustrations of the rule (difficult
though it may be to apply) that within the scope of the
original commitment the public servant must provide
all the facilities which his business requires, but outside
his public profession he is not bound to go at all, no matter
how much the community may need his services. Thus
it has been common law that a railroad is not obliged to
equip itself with cars to send beyond its established route,
no matter how much the service requested is desired by
its shippers.¹ And as a carrier need never equip itself to
perform any service which is outside its public profession,
it need not, for example, carry unusual freights which
require special equipment. Thus a railroad need not
¹ Indiana.-Pittsburg, C. & St. Fargo & Co., 109 Mass. 452
L. Ry. Co. v. Morton, 61 Ind. 539, (1872).
28 Am. Rep. 682 (1878).
Illinois.—People v. Chicago & A.
R. R. Co., 55 Ill. 95, 8 Am. Rep. 631
(1870).
Kentucky.-Pittsburg, C., C. &
St. L. Ry. Co. v. Viers, 113 Ky. 526,
68 S. W. 469 (1902).
Massachusetts.-Pitlock v. Wells,
2
V.
Pennsylvania.—See Gordon
Hutchinson, 1 W. & S. 285, 37 Am.
Dec. 464 (1841).
Texas.-Houston & T. C. Ry. Co.
v. Buchanan, 42 Tex. Civ. App. 620,
94 S. W. 199 (1906).
2 A variety of cases on this point
are subjoined:
[ 664 ]
PROVISION OF ADEQUATE FACILITIES
[ § 792
even provide equipment to carry passengers unless it
undertakes that service upon a public basis.¹ The same
principles should apply throughout public service. It is
highly improbable that any fundamental change can be
forced upon a company against its will. A fuel gas com-
pany cannot be compelled to supply gas for illumination 2
any more than it could be compelled to provide electricity.
United States.-Kuter v. Michi-
gan Central R. R. Co., 1 Biss. 35
(1853).
California.-Pfister v. Central
Pacific R. R. Co., 70 Cal. 169, 11
Pac. 686, 59 Am. Rep. 404 (1886).
Delaware.-Tunnel v. Pettijohn,
2 Harr. (Del.) 48 (1835).
Georgia.-Ocean Steamship Co. v.
Savannah, L. W. & S. Co., 131 Ga.
831, 63 S. E. 577, 20 L. R. A. 867,
127 Am. St. Rep. 265 (1909).
Indiana.-Cleveland, C., C. & St.
L. Ry. Co. v. Henry, 170 Ind. 94, 83
N. E. 710 (1908).
Louisiana.-Mechanics' & T. Bk.
v. Gordon, 5 La. Ann. 604 (1850).
Massachusetts.-Robertson v. Old
Colony R. R. Co., 156 Mass. 525, 31
N. E. 650, 32 Am. St. Rep. 482
(1892).
Michigan.-Coup v. Wabash, St.
L. & P. Ry. Co., 56 Mich. 111, 22
N. W. 215, 56 Am. Rep. 374 (1885).
Missouri.-Chouteau v. Steam-
boat St. Anthony, 16 Mo. 216
(1852).
New York.-Bouker v. Long Is-
land R. R. Co., 89 Hun (N. Y.), 202,
35 N. Y. Supp. 23 (1895).
New York.-People v. Babcock,
16 Hun, 313 (1878).
North Carolina.-Pender v. Rob-
bins, 6 Jones' Law, 207 (1858).
Pennsylvania. Forepaugh v. Del-
aware, L. & W. R. R. Co., 128 Pa.
St. 217, 18 Atl. 503, 5 L. R. A. 508,
15 Am. St. Rep. 572 (1889).
England. In re Oxlade v. N. E.
Ry. Co., 15 C. B. (N. S.) 680 (1864).
Canada.-Leonard v. American
Express Co., 26 Upp. Can. (Q. B.)
533 (1867).
¹ A railroad may confine its busi-
ness to the handling of freight ex-
clusively. Wiggins Ferry Co. v.
East St. Louis Ry. Co., 107 Ill. 450
(1883).
It may even limit its business to
the carriage of freight in the origi-
nal cars.
United States v. Sioux
City Stock Yards Co., 162 Fed. 556
(1908).
A railroad doing both freight and
passenger business may give up its
passenger trains and do freight busi-
ness exclusively. Commonwealth
v. Fitchburg R. R. Co., 12 Gray,
180 (1858).
A railroad may do passenger busi-
ness upon a public basis while
doing freight business upon a pri-
vate basis. Edgar Lumber Co. v.
Cornie Stave Co. (Ark.), 130 S. W.
452 (1910).
2 Nairin v. Kentucky Heating
Co., 27 Ky. Law Rep. 551, 86 S. W.
676 (1900). And see People v. Los
Angeles Independent Gas Co., 150
Cal. 557, 89 Pac. 108 (1907).
[ 665]
§§ 793, 794] PUBLIC SERVICE CORPORATIONS
And in general it should be pointed out that the obligation
to provide facilities arises from the obligation to render
service.
§ 793. Proper equipment must be provided.
1
It is well agreed, however, that all engaged in public
service are held to a high degree of responsibility in respect
to the facilities furnished, although of course their liability
is not absolute. Sometimes this duty is underrated; more
often it is overstated. One of the fairest statements that
the writer has noted is in a recent Florida case ¹ where the
court said: "In determining whether or not the road-bed,
track, rolling stock and other equipment of a common car-
rier railroad corporation is reasonably sufficient, and is
being maintained and operated in a reasonably safe and
adequate condition, and is being managed for the proper
rendering of the public service that the corporation has
undertaken to perform, the conditions under which the
service is being rendered, the character and extent of the
service, its reasonable requirements, and the means, facil-
ities, and methods best suited to such service in common
use, will be considered by the court, together with any
other material and pertinent matters available.” 2
794. Ultimate responsibility for proper equipment.
The proprietors of the service are themselves responsible
for the proper performance of the service they have pro-
fessed. They must therefore see to it that they have
proper equipment to render the service which they have
undertaken. If they have their facilities constructed by
1 State ex rel. Ellis v. Atlantic
C. L. Ry. Co., 53 Fla. 650, 44 So.
213, 13 L. R. A. (N. S.) 330 (1907).
2 Thus a railroad which is en-
gaged in carrying passengers as well
as freight must by these general
principles run separate passenger
trains. People ex rel. v. St. Louis,
A. & T. H. R. R. Co., 176 Ill. 512,
52 N. E. 292, 35 L. R. A. 656 (1898).
[ 666 ]
PROVISION OF ADEQUATE FACILITIES
[ § 794
1
independent concerns they cannot escape this personal
liability even by making a careful choice of contractors;
for they remain liable themselves for failure in their under-
taking if there has been negligence in the construction.
Thus if a railroad bridge is built for a railroad by a repu-
table bridge works so negligently that an accident results,
the railroad is liable. Upon similar principles if they
utilize the equipment of another concern they are liable
if it proves not to be safe although they had no reason to
believe that it was not. Thus a railroad hauling the cars
of another road is liable for any accident occurring by
any defect in the cars even when its own inspection showed
none. This general duty to provide facilities is one which
cannot be delegated. A railroad cannot by having its
passengers carried in sleeping cars belonging to an inde-
pendent company escape ultimate liability for the safety
of the equipment provided. Nor can the proprietors
escape personal liability for failure to provide sufficient
facilities by contracting with another concern to provide
them. Thus a railroad which is getting all its freight cars
of a certain class from an outside source cannot excuse
its failure to supply cars demanded by its customers by
showing that the parties who had contracted to supply
them are in default."
2
¹ See, for one example, Louisville,
N. A. & C. Ry. Co. v. Snyder, 117
Ind. 435, 20 N. E. 284, 3 L. R. A.
434, 10 Am. St. Rep. 60 (1888).
2 See, for one example, New York,
P. & N. R. R. Co. v. Cromwell, 98
Va. 227, 35 S. E. 444, 81 Am. St.
Rep. 722, 49 L. R. A. 462 (1900).
'See, for one example, Pennsyl-
vania Company v. Roy, 102 U. S.
451, 26 L. ed. 141 (1880).
4 See, for one example, Missouri
& N. A. R. Co. v. Snced, 85 Ark.
293, 107 S. W. 1182 (1908).
3
Some cases go so far as to say
that the shipper is not necessarily
estopped by declining to take a new
car in place of defective one from
asserting liability for damages
caused by defects. See Texas & P.
Ry. Co. v. Townsend (Tex. Civ.
App.), 106 S. W. 760 (1907), and
Cleveland, C. & St. L. Ry. Co. v.
Louisville Tin. & S. Co. (Ky.), 111
S. W. 358 (1908).
For the railway must furnish a
safe car. Even if shipper sees it un-
safe some cases hold that he may
[ 667 ]
§ 795 1
PUBLIC SERVICE CORPORATIONS
§ 795. Improvement of present facilities.
It is not enough to maintain the original equipment at
its former standard. It may be said in general that one
who is committed to the conduct of a public business
must keep his facilities up to the demands of the times.
Thus it has been intimated that those who are chargeable
with maintaining a bridge for public use are not limited
in their duty to the previous business use of the structure.¹
Likewise it was held in a recent case that where the original
ordinance under which a telephone company was operat-
ing prohibited it from increasing to its subscribers the
telephone rates then established, the telephone company
was not thereafter entitled to limit its services at the rates
so fixed to the original appliances (which had become to
a certain extent obsolete), and to charge higher rates for
improved equipment. On the other hand, a public service
company is not obliged to make improvements in advance
of the demonstration of their practical necessity, and
certainly it is not obliged to adopt improvements which
are still in an experimental stage. Thus by the general
rule a railroad has discharged its duty to its passengers
in respect to its cars and trains when it has supplied the
best equipment that a highly prudent person would have
supplied in the same business in the then known condition
of the art and the particular business. It is an interest-
2
hold the carrier unless he agrees.
See Railroad Company v. Pratt, 22
Wall. 123, 22 L. ed. 827 (1874), and
St. Louis, I. M. & So. Ry. Co. v.
Marshall, 74 Ark. 597, 86 S. W. 802
(1905).
¹ Nebraska.-Seyfer v. Otoe
County, 66 Neb. 566, 92 N. W. 756
(1902).
Minnesota.-Anderson v. St.
Cloud, 79 Minn. 88, 81 N. W. 746
(1900).
3
4
2 Illinois. People v. Chicago Tel-
ephone Co., 220 Ill. 238, 77 N. E.
245 (1906).
Indiana.-Johnson v. The State,
113 Ind. 143, 15 N. E. 215 (1887).
³ Indiana.—Indianapolis & C.
R. R. Co. v. Rutherford, 29 Ind. 82,
92 Am. Dec. 336 (1867).
New York.-Steinweg v. Erie Ry.
Co., 43 N. Y. 123, 3 Am. Rep. 673
(1870).
4 United States.-Ozanne v. Illi-
[668]
PROVISION OF ADEQUATE FACILITIES
[ § 796
ing speculation whether the railroads may ultimately be
obliged by this principle to equip themselves with electric
motive power. And one wonders whether a traction com-
pany could be compelled to construct a subway.
§ 796. Provision of special equipment.
In a diversified business, such as common carriage, a
special equipment of various sorts must often be provided.
In the case of the railroads very different cars of course
are requisite for the transfer of passengers and of freight.
And although many kinds of freight may be transported
in open cars with safety, more kinds require box cars.
But in the conduct of a modern railroad far more facilities
than these simpler forms have been found to be necessary.
Thus for the transportation of many perishable food stuffs,
such as butter and fruit, refrigerator cars have been found
to be indispensable; and it is generally held in modern
cases that these improved cars are imperatively demanded
for the proper transportation of perishable articles.¹ The
nois Cent. R. R. Co., 151 Fed. 900
(1907).
Mississippi.-Natchez & Jack-
son R. R. Co. v. McNeil, 61 Miss.
434 (1884).
1 United States.-Atlantic C. L.
Ry. Co. v. Geraty, 166 Fed. 10, 91
C. C. A. 602, 20 L. R. A. (N. S.) 310
(1908).
Arkansas. St. Louis, I. M. & S.
Ry. Co. v. Renfroe, 82 Ark. 143, 100
S. W. 889, 10 L. R. A. (N. S.) 317
(1907).
Colorado.-Merchants' Desp. &
Transp. Co. v. Cornforth, 3 Colo.
280, 25 Am. Rep. 757 (1877).
Illinois. Chicago & Alton R. R.
Co. v. Davis, 159 Ill. 53, 42 N. E.
382 (1895).
Iowa.-Beard v. St. L., Alton &
T. H. Ry. Co., 79 Ia. 527, 44 N. W.
803 (1890).
Michigan.-See Johnson v. To-
ledo, S. & M. Ry. Co., 133 Mich.
596, 95 N. W. 724, 103 Am. St.
Rep. 464 (1903).
Minnesota. Calender - Vander-
hoof Co. v. Chicago, B. & Q. R. R.
Co., 99 Minn. 295, 109 N. W. 402
(1906).
Missouri.-See Udell v. Illinois,
C. Ry. Co., 13 Mo. App. 254 (1883).
New Hampshire.-Baker v. Bos-
ton & M. R. R. Co., 74 N. H. 100,
65 Atl. 386, 124 Am. St. Rep. 937
(1906).
New York.
Co., 43 N. Y.
(1870).
Steinweg v. Erie Ry.
123, 3 Am. Rep. 673
South Carolina.-Mathis v. South-
[ 669 ]
§ 796 ]
PUBLIC SERVICE CORPORATIONS
same law, by reason of the same necessity, applies to the
provision of ventilator cars for those commodities which
would be injured by transportation in closed cars.¹ As
soon as the railways begin the transportation of live stock
upon a large scale, as part of their regular business, the
provision of special stock cars becomes necessary. And
so where a railroad runs through a district shipping large
quantities of oil it should, it seems, equip itself with tank
cars to meet the commercial necessity of shipment in
bulk. These cases would seem to justify the generaliza-
3
ern Ry. Co., 65 S. C. 271, 43 S. É.
684, 61 L. R. A. 824 (1902).
Virginia.-New York, P. & N.
R. R. Co. v. Cromwell, 98 Va. 227,
35 S. E. 444, 81 Am. St. Rep. 722,
49 L. R. A. 462 (1900).
Wisconsin.-Lamb v. Chicago,
M. & St. P. Ry. Co., 101 Wis. 138,
76 N. W. 1123 (1898).
1 New York.-See Tucker v. Penn-
sylvania Ry. Co., 12 N. Y. Misc.
117, 33 N. Y. Supp. 93 (1895).
North Carolina.—Forrester v.
Southern Ry. Co., 147 N. C. 553,
18 L. R. A. (N. S.) 508, 61 S. E.
524 (1908).
Pennsylvania.See Davenport v.
Pennsylvania R. R. Co., 173 Pa.
St. 398, 34 Atl. 59 (1896).
Wisconsin.-Densmore Commis-
sion Co. v. Duluth, S. S. & A. Ry.
Co., 101 Wis. 563, 77 N. W. 904
(1899).
2 Arkansas.-St. Louis, I. M. &
S. Ry. Co. v. Marshall, 74 Ark. 597,
86 S. W. 802 (1905).
Kansas. Kansas Pacific R. R.
Co. v. Nichols, K. & Co., 9 Kan.
235, 12 Am. Rep. 494 (1872).
Maine.-Sager v. Portsmouth, S.
& P. & E. R. Co., 31 Me. 228, 50
Am. Dec. 659 (1850).
2
Maryland.-Di Giorgio I. & S.
S. Co. v. Pennsylvania R. R. Co.,
104 Md. 693, 65 Atl. 425, 8 L. R. A.
(N. S.) 108 (1906).
Missouri.-Emerson v. St. Louis
& H. Ry. Co., 111 Mo. 161, 19 S.
W. 1113 (1892).
Nebraska.-Chicago, B. & Q. R.
R. Co. v. Williams, 61 Neb. 608, 85
N. W. 832, 55 L. R. A. 289 (1901).
South Dakota.-Berry v. Chicago,
M. & St. P. Ry. Co. (S. D.), 124
N. W. 859 (1910).
Texas.-Texas & P. Ry. Co. v.
Barrow (Tex. Civ. App.), 77 S. W.
643 (1903).
3 United States.-Western N. Y.
& P. Ry. Co. v. Penna. Ry. Co., 137
Fed. 343, 70 C. C. A. 23 (1905).
Ohio.-State v. Cincinnati, N. O.
& T. P. Ry. Co., 47 Oh. St. 130, 23
N. E. 928 (1890).
It should be added that, as the
cases go, there is no obligation to
provide such special car for a par-
ticular shipper, if other cars which
are good enough are supplied to
him; and where a shipper insists
upon peculiar cars in his requisition
he may subject himself to longer de-
lays than would have been excus-
able if he had not thus specified.
[ 670]
PROVISION OF ADEQUATE FACILITIES
[ § 797
tion that wherever the territory served by the railroad
produces in sufficient quantities commodities which re-
quire special equipment for their proper shipment such
equipment should be provided.
Topic B. Obligation to Increase Facilities
§ 797. Facilities which the service requires.
In most of the public employments of the modern type
what is undertaken is not merely the devoting of particular
equipment to public use but rather the rendering of a
certain service to the community with which it professes
to deal. Thus a modern railroad plainly undertakes
general transportation along its route; and since it has
professed this general service it must see to it that it
has sufficient equipment to handle the business which it
has in effect invited by this general profession. The term
adequate facilities is not in its nature capable of exact
definition.¹ It is a relative expression, and has to be con-
sidered as calling for such facilities as might be fairly de-
manded, regard being had, among other things, to the
extent of the demand for transportation, and the cost of
Texas.-Texas & P. Ry. Co. v.
Barrow (Tex. Civ. App.), 77 S. W.
643 (1903).
Virginia.-Moore v. Baltimore
& O. R. R. Co., 103 Va. 189, 48 S. E.
887 (1904).
And attention should be called
to those cases which hold that if
the shipper deliberately accepts a
car of an inferior sort for his ship-
ment he thereby assumes the risk
of losses due to the fact that a car
specially adapted for such ship-
ments was not employed.
Connecticut.-Coupland v. Hou-
satonic R. R. Co., 61 Conn. 531, 23
Atl. 870, 15 L. R. A. 534 (1892).
Wisconsin.-Densmore Commis-
sion Co. v. Duluth, S. S. & A. Ry.
Co., 101 Wis. 563, 77 N. W. 904
(1899).
1 The sentence which follows is
substantially a quotation from At-
lantic Coast Line R. R. Co. v.
Wharton, 207 U. S. 328, 28 S. Ct.
121, 52 L. ed. 230 (1907), where
the obligation to provide train serv-
ice was discussed.
See also the language in People v.
St. L., A. & T. H. R. R. Co., 176
Ill. 512, 52 N. E. 292 (1898).
[ 671]
§ 797]
PUBLIC SERVICE CORPORATIONS
furnishing the additional accommodations asked for.¹ All
this is particularly true of the municipal services such
as waterworks, gas plants, electric plants, and telephone
systems. There are sufficient authorities, most of which
have been discussed elsewhere, to the effect that their
obligation to give service is not confined to the original
pipes which have been laid, or wires which have been
strung. Such companies are held to undertake the service
of their communities; and they must, to speak in general,
be prepared to extend this system throughout their dis-
trict to meet the reasonable demands of the growing com-
munity.2 If this involves the acquisition of new sources
of supply, or a laying of pipes in new streets, or extension
of wires to other streets or the construction of new ex-
changes, all these new facilities must be provided to meet
the expansion of the business within the community to
the service of which the company has committed itself.
But it is true of such supply as it is of other public service
that the duty to give adequate service to those to whom
it owes this primary duty is relative, not absolute.³ The
¹ Applying these general princi-
ples in a recent case in an action
against a carrier for failure to accept
property tendered for shipment the
court held that as the evidence
showed a failure on the carrier's
part to provide sufficient stational
facilities for taking care of such
property awaiting transportation
under ordinary conditions, it was
no defense that an unusual emer-
gency caused a shortage of cars.
St. Louis, I. M. & So. Ry. Co. v.
State, 84 Ark. 150, 104 S. W. 1106
(1907).
2 Speaking generally, such sup-
ply companies must keep expand-
ing their facilities to meet the de-
mands of those within the district
which they have undertaken to
serve.
Idaho.-Pocatello Water Co. v.
Standley, 7 Idaho, 155, 61 Pac. 518
(1900).
Oregon.-Haugen v. Albina Light
& Water Co., 21 Oreg. 411, 28 Pac.
244, 14 L. R. A. 424 (1891).
But they need not serve beyond
the borders of their defined districts
under any circumstances.
Kansas.-Crouch v. Arnett, 71
Kan. 49, 79 Pac. 1086 (1905).
Massachusetts.-Weld v. Gas &
Electric Light Commissioners, 197
Mass. 556, 84 N. E. 101 (1908).
A water company is liable for not
[ 672]
PROVISION OF ADEQUATE FACILITIES
[ § 798
service company will be held to the exercise of due fore-
sight in anticipating the progress of the demand for its
supply accompanying the growth of the community. But
it will not be liable if the unexpected happens in the shape
of an unforeseen demand for which its existing supply is
in adequate.
§ 798. The obligation is not absolute.
As appears throughout this chapter, at common law
this duty is relative not absolute. One is liable for not
providing sufficient facilities to meet expected demands,
but one is excused where the present demand was fairly
unforeseen. There have been in late years many statutes
defining this obligation to provide facilities by requiring
that cars requested by shippers shall be furnished within
a certain number of days. Sometimes these statutes
have saving clauses excusing the railroad which is not
negligent under the circumstances in failing to provide
facilities; and then all is well. But not infrequently the
legislation is absolute in its terms; and if this be so one
of two things must be done by the courts for the protec-
tion of the railroad against such oppressive legislation
which is so far from being what was due process of law
before. When the Federal courts have come upon such
absolute State legislation they have been inclined to deal
sinking more wells to meet the
plainly increasing demands of the
community. Capital City Water
Co. v. State, 105 Ala. 406, 18 So.
62, 29 L. R. A. 743 (1894). But an
unusual drought long continuing
would excuse a partial suspension
of service by a water company.
State Trust Co. v. Duluth, 70 Minn.
257, 73 N. W. 249 (1897).
Thus a telephone company is
liable for failure to be prepared to
render the sort of service the ap-
plicant wants. State ex rel. v. Citi-
zens' Telephone Co., 61 S. C. 83, 39
S. E. 257, 55 L. R. A. 139, 85 Am.
St. Rep. 870 (1901). But if there
have been unusual calls upon its
service it is excused for the time
being. Cumberland Telephone &
Telegraph Co. v. Kelly, 160 Fed.
316 (1908).
43
[673]
§ 799 ]
PUBLIC SERVICE CORPORATIONS
uncompromisingly with it, declaring it utterly void.¹ But
the State courts have fought to save their statutes, wher-
ever possible, by construing them to intend no more by
their general phraseology than the common-law require-
ments; and wherever, therefore, the company would be
excused at common law for not providing facilities, it
will be held that the statute has not been violated.2
§ 799. Equipment sufficient for expected business.
The duty resting upon one engaged in a public service
to have at hand sufficient equipment is, to repeat the
rule again, relative, not absolute. What the law requires
of him is to have sufficient equipment for expected busi-
ness. Therefore what is required of him by the common
law, or by the statutes in definition of it, is to furnish
facilities sufficient for the usual course of his business,
as far as by ordinary forethought he may anticipate it.
There is therefore an established excuse when an unex-
pected demand renders it impossible to give further serv-
ice after all his equipment is employed to best advantage.³
1 United States.-Houston & T.
C. R. R. Co. v. Mayes, 201 U. S.
321, 50 L. ed. 772, 26 Sup. Ct. 491
(1906); St. Louis, I. M. & S. Ry.
Co. v. Hampton, 162 Fed. 693
(1908).
Texas. See Texas & P. Ry. Co.
v. Allen, 42 Tex. Civ. App. 331, 98
S. W. 450 (1906).
2 Arkansas.—St. Louis S. W. Ry.
Co. v. Clay Ginn. Co. 77 Ark. 357,
92 S. W. 531 (1906); St. Louis S. W.
Ry. Co. v. Leder, 79 Ark. 59, 95
S. W. 170 (1906); St. Louis, I.
M. & S. Ry. Co. v. Wynne H. & C.
Co., 81 Ark. 373, 99 S. W. 375
(1907); Oliver v. Chicago, R. I. &
P. Ry. Co., 89 Ark. 466, 117 S. W.
238 (1909).
Georgia.-Pennington & E. v.
Douglass, A. & G. Ry. Co., 3 Ga.
App. 665, 60 S. E. 485 (1907).
Co.
North Carolina.-Hardware
v. Railroad Co., 150 N. C. 703, 64
S. E. 873, 22 L. R. A. (N. S.) 1200
(1909).
Texas.-B. F. Allen v. Texas &
P. Ry. Co., 100 Tex. 525, 101 S. W.
792 (1907).
3 Leading cases to this effect are:
Arkansas.-St. Louis, I. M. &
S. Ry. Co. v. Wynne H. & C. Co.,
81 Ark. 373, 99 S. W. 375 (1907).
Georgia.-Southern Ry. Co. v.
Atlanta Sand & S. Co. (Ga.), 68
S. E. 807 (1910).
Indiana.-Chicago, St. Louis &
P. R. R. Co. v. Wolcott, 141 Ind.
[ 674 ]
PROVISION OF ADEQUATE FACILITIES
[ § 799
In a recent application of this test ¹ in an action against a
carrier for failure to furnish freight cars, the evidence
showed that there was a shortage in cars by reason of an
extraordinary accumulation of freight; that the carrier
had seven cars per mile for each mile of its main line
and branches, which compared favorably with other car-
riers in that part of the country; and that in expecta-
tion of new business, it had ordered fifteen hundred new
freight cars, which it had reasonably thought would be
sufficient to handle the business. Upon this showing it
was held that the carrier was not liable for its delay
caused by the insufficiency of its equipment for handling
this unexpected business.
267, 39 N. E. 451, 50 Am. St. Rep.
320 (1894).
Kansas.-Udall Milling Co. v.
Atchison, T. & S. F. Ry. Co., 82
Kan. 256, 108 Pac. 137 (1910).
Kentucky.-Louisville & N. Ry.
Co. v. Queen City Coal Co., 99 Ky.
217, 35 S. W. 626 (1896).
Mississippi.-Yazoo & M. V. R.
R. Co. v. McKay, 91 Miss. 138, 44
So. 780 (1907).
Missouri.-Ballentine v. No. Mis-
souri R. R. Co., 40 Mo. 491, 93 Am.
Dec. 315 (1867).
Nebraska.-State v. Chicago &
N. W. Ry. Co., 83 Neb. 518, 120
N. W. 165 (1909).
New Hampshire.-Gordon v.
Manchester & L. R. R. Co., 52
N. H. 596, 13 Am. Rep. 97 (1873).
New York.-Strough v. New
York C. & H. R. R. R. Co., 87
N. Y. Supp. 30, 92 N. Y. App. Div.
584 (1904).
North Carolina.-Branch v. Wil-
mington & W. R. R. Co., 77 N. C.
347 (1877).
South Carolina.-Mauldin v. Sea-
board Air Line Ry. Co., 73 S. C. 9,
52 S. E. 677 (1905).
Texas.-Wallace v. Pecos & N.
T. Ry. Co., 50 Tex. Civ. App. 296,
110 S. W. 162 (1908).
Wisconsin.-Ayres v. Chicago &
N. W. R. R. Co., 71 Wis. 372, 37
N. W. 432, 5 Am. St. Rep. 226
(1888).
1 St. Louis S. W. Ry. Co. v.
Clay Ginn. Co., 77 Ark. 357, 92
S. W. 531 (1906). See also St. Louis
S. W. Ry. Co. v. Leder, 79 Ark. 59,
95 S. W. 170 (1906), and Oliver v.
Chicago, R. I. & P. Ry. Co., 89
Ark. 466, 117 S. W. 238 (1909).
But as is noted elsewhere a car-
rier who has a plain justification for
refusing a further application be-
cause he is confronted unexpectedly,
without his negligence in any re-
spect, by expected demands for his
service cannot after he has knowl-
edge of the situation apparently ac-
cede to further application, Di
Giorgio Importing & S. S. Co. v.
Pennsylvania R. R. Co., 104 Md.
693, 65 Atl. 425, 8 L. R. A. (N. S.)
[ 675 ]
§ 800 ]
PUBLIC SERVICE CORPORATIONS
§ 800. Expected business not provided for.
It would seem to be true also, if the press of business
might have been provided against by reasonable diligence
of the carrier that there is no such excuse.¹ To apply
this rule to the transportation of freight, the carrier per-
forms his public duty only by providing for the normal
fluctuations in offerings of freight. "The sufficiency of
such accommodations must be determined by the amount
of freight and the number of passengers ordinarily trans-
ported on any given line of road. The duty of a com-
pany to the public, in this respect, is not peculiar to any
season of the year, or to any particular emergency that
may possibly arise in the course of its business. The
amount of business ordinarily done by the road is the
only proper measure of its obligation to furnish transpor-
tation. If by reason of a sudden and unusual demand for
stock or produce in the market, or from any other cause,
there should be an unexpected influx of business to the
road, this obligation will be fully met by shipping such
stock or produce in the order and priority of time in
which it is offered." 2
108 (1906), or actually accept more
goods, Helliwell v. Grand Trunk
Ry. Co., 7 Fed. 68 (1881), without
subjecting himself to liability.
¹ Arkansas.—Fordyce v. Nix, 58
Ark. 136, 23 S. W. 967 (1893).
Georgia.-Southern Ry. Co. v.
Atlanta Sand & S. Co. (Ga.), 68 S.
E. 807 (1910).
Illinois.―Illinois Cent. Ry. Co.
v. Cobb, C. & Co., 64 III. 128 (1872).
Missouri.-Hoffman H. & S. Co.
v. St. Louis, I. M. & S. Ry. Co., 119
Mo. App. 495, 94 S. W. 597 (1906).
Mississippi.-Louisville, N. O. &
T. Ry. Co. v. Patterson, 69 Miss.
421, 13 So. 697, 22 L. R. A. 259
(1891).
North Carolina.-Hansley v.
Jamesville & W. R. R. Co., 117
N. C. 565, 23 S. E. 443, 53 Am. St.
Rep. 600 (1895).
South Carolina.-Porcher v.
North Eastern R. R. Co., 14 Rich.
L. 181 (1867).
Texas.—Galveston, H. & S. A.
Ry. Co. v. Morris, 94 Tex. 505, 61
S. W. 709 (1901).
Wisconsin.-Ayres v. Chicago &
N. W. Ry. Co., 71 Wis. 372, 37
N. W. 432, 5 Am. St. Rep. 226
(1888).
2 Fagg, J., in Ballentine v. North
Mo. R. R. Co., 40 Mo. 491, 93
Am. Dec. 315 (1867).
There are cases which hold that
[ 676 ]
PROVISION OF ADEQUATE FACILITIES
[ § 801
$ 801. Demand foreseen although unusual.
If, then, the abnormal demand should have been fore-
seen by a reasonable management it is in default unless
it has made every effort to meet the emergency. Thus in
the conduct of passenger business, when it is known that
some exhibition or other event will bring together a large
number of people, the transportation lines should make
seasonable allotment of facilities to meet the extraordi-
nary demand at this point.¹ But if the number of pas-
sengers applying is unprecedentedly large the railroad is
of course excused if it has provided as much additional
service as would seem to be necessary at such a time.2 A
recent case goes so far as to hold that if a railroad had not
provided sufficient equipment to move the cotton crop
each recurring season, a plea in its defense that in the
particular season the crop was above average will not
save it.³
And in a still later case it was held that a rail-
road company which had obligated itself to furnish re-
frigerator cars to transport garden truck to market cannot
escape liability for breach of that duty upon the ground
a passenger on a railroad train, who
exhibits his ticket and demands a
seat, need not surrender the ticket
till the seat is furnished. See Davis
v. The Kansas City, St. Joseph &
C. B. R. R. Co., 53 Mo. 317, 14 Am.
Rep. 457 (1873), and Hardenberg
v. St. Paul, M. & M. Ry. Co., 39
Minn. 3, 38 N. W. 625, 12 Am. St.
Rep. 610 (1888).
But without payment of fare it
would seern that he certainly is not
entitled to transportation and may
be put off. See Pittsburg, C. &
St. L. R. R. Co. v. Van Houton, 48
Ind. 90 (1874); Memphis & Charles-
ton R. R. Co. v. Benson, 85 Tenn.
627, 4 S. W. 5, 4 Am. St. Rep. 776
(1887).
¹ Chicago & A. Ry. Co. v. Dum-
ser, 161 Ill. 190, 43 N. E. 698
(1896).
See also Trumbull v. Erickson, 97
Fed. 891 (1890).
2 Gordon v. Manchester & L. R.
R. Co., 52 N. H. 596, 13 Am. Rep.
97 (1873).
See also Pursell v. Richmond &
D. R. Co., 108 N. C. 414, 12 S. E.
954, 12 L. R. A. 113, and note
(1891).
3 Yazoo & M. V. R. R. Co. v.
Blum Co., 88 Miss. 180, 40 So. 748
10 L. R. A. (N. S.) 432 (1906).
See also Cronan v. St. L. & S. F.
Ry. Co. (Mo. App.), 130 S. W. 437
(1910).
[677]
§ 802]
PUBLIC SERVICE CORPORATIONS
that the crop was unusually large, if it was no larger than
might reasonably have been expected from the acreage
planted, knowledge of which the railroad company either
had, or had the means of obtaining.¹
§ 802. Reasonable time to increase facilities.
When it is said that the company is responsible for not
meeting an increase in demand which has been foreseen,
this is subject to the qualification that the company shall
be given a reasonable time after it should have anticipated
the future demands to equip itself for them. And it must
be recognized that this is often a matter of considerable
time. It is a long time after orders for railroad equip-
ment have been placed before rolling stock, particularly
locomotives, is delivered. This point has been well
brought out recently in the case of telephone service.
When a switch board is full or all the wires in the conduit
are exhausted, it is recognized that it will necessarily take
considerable time to replace the switch board or introduce
new cables.³
¹ Atlantic C. L. R. R. Co. v. Ger-
aty, 166 Fed. 10, 91 C. C. A. 602
(1908).
See also Southern Ry. Co. v.
Atlanta Sand & S. Co. (Ga.), 68
S. E. 807 (1910).
Telegraph companies must have
enough wires to transact all busi-
ness usually offered to them. Lea-
vell v. Western Union Tel. Co., 116
N. C. 211, 21 S. E. 391, 27 L. R. A.
843, 47 Am. St. Rep. 798 (1895).
2 See particularly:
Arkansas.-St. Louis S. W. Ry.
Co. v. Clay Ginn. Co., 77 Ark. 357,
92 S. W. 531 (1906).
South Carolina.-Mauldin v. Sea-
board Air Line Ry. Co., 73 S. C. 9,
52 S. E. 677 (1905).
In one recent case it was held
that mandamus will not issue to
compel a railroad company to fur-
nish sufficient motive power and
cars to transport freight, since a
large discretion in such cases must
be left to the management of the
road. State ex rel. Ellis v. Atlantic
Coast Line Ry. Co., 53 Fla. 650,
44 So. 213 (1907).
3 See particularly:
United States.-Cumberland Tel-
ephone & Telegraph Co. v. Kelly,
160 Fed. 316, 87 C. C. A. 268
(1908).
South Carolina.-State ex rel. v.
Citizens' Telephone Co., 61 S. C.
83, 39 S. E. 257, 55 L. R. A. 139,
85 Am. St. Rep. 870 (1901).
[678]
PROVISION OF ADEQUATE FACILITIES
[ § 803
§ 803. Pressure for short periods.
It sometimes happens in certain businesses that for
short times at recurring intervals there is such extraor-
dinary demand for service that really sufficient facilities
could hardly be provided upon any commercial basis.
The most striking case of this kind is that of the traction
companies about six o'clock at night. Indeed in the case
of the street car companies it would be physically impos-
sible to give any headway to sufficient cars to provide
seats for all passengers at that hour.¹ All that can be
expected is the best that expert management can do, and
although this will leave passengers standing, it probably
cannot be helped in many cases. But sheer physical
impossibility need not be shown; commercial impracti-
cability is enough. Doubtless a granger railroad has at
every harvest time more demand for grain cars than it
can instantly supply. But to buy sufficient cars to meet
every demand the very day it is made, would leave per-
haps idle during the year ten times the number of cars
that the average business demands. This would inevi-
tably react upon the freight rate, increasing it to an un-
bearable extent. If the management of such a railway
provides sufficient cars to move the crop within reasonable
time to meet the market, it would seem that it is doing all
that should be required.2
1 But few seats need be provided
in ferryboats, not nearly enough to
give all passengers a seat at rush
hours. Burton v. West Jersey
Ferry Co., 114 U. S. 474, 29 L. ed.
215, 5 Sup. Ct. 960 (1885).
However an ordinance requir-
ing traction lines to provide cars
enough so that there will usually
be seats at other hours is not un-
reasonable. North Jersey Street
Ry. Co. v. Jersey City, 75 N. J. L.
349, 67 Atl. 1072 (1907).
2 See to this effect: State ex rel.
v. Chicago, B. & Q. R. R. Co., 71
Neb. 593, 99 N. W. 309 (1904), and
State ex rel. v. Chicago, B. & Q. R.
R. Co., 72 Neb. 542, 101 N. W.
323 (1904).
Yazoo & M. V. R. R. Co. v.
Blum, 88 Miss. 180, 40 So. 748, 10
L. R. A. (N. S.) 432 (1906), is ap-
[679]
§ 804 1 PUBLIC SERVICE CORPORATIONŠ
§ 804. Equipment beyond its control.
1
A special problem under this topic, which has come
into prominence of late years, is whether a railroad may
show as justification for not furnishing cars demanded
by its shippers that although it owns freight cars enough
to transport the goods which are being offered to it at
this time, it happens that so large a per cent of its cars
are at the moment away upon other railroads that it is
unable to render promptly the service asked. It may seem
that the weight of the argument would be against any
such justification. A railroad by the common law cer-
tainly is not bound to send its cars beyond its own rails; ¹
and no legislation has as yet been devised which can con-
stitutionally compel it to do so." It may be argued, there-
fore, if it has gotten itself into this position by sending its
cars elsewhere without being obliged to do so, it could
not set up a shortage thus caused as a defense. On the
other hand, a railroad may legally enter into a through
route, or contract for through shipments, and then in either
case it will be obliged to let all patrons who may desire
ship through in the original cars. No one doubts that
it may properly undertake this additional service to the
public if it wishes, and it follows that if it has kept as
many cars in hand as it might well feel would be enough
parently contra. But Martin v.
Gt. Northern Ry. Co., 110 Minn.
118, 124 N. W. 825 (1910), is ap-
parently accord.
It is a reasonable rule that no
more passengers will be taken into
a street car which is overcrowded.
Hanna v. Nassau Electric R. R. Co.,
18 N. Y. App. Div. 137, 45 N. Y.
Supp. 437 (1897).
It is a reasonable decision that a
train which is overcrowded shall
omit all further scheduled stops to
3
take on passengers.
Gordon v.
Manchester & L. R. R. Co., 52
N. H. 596, 13 Am. Rep. 97 (1873).
¹ See to this effect: Pittsburg, C.
& St. L. Ry. Co. v. Morton, 61 Ind.
539, 28 Am. Rep. 682 (1878).
2 See to this effect: Louisville &
N. R. R. Co. v. Central S. Y.
Co., 212 U. S. 132, 29 S. Ct. 246
(1909).
• See to this effect: Houston & T.
C. R. R. Co. v. Buchanan, 42 Tex.
Civ. App. 620, 94 S. W. 199 (1906).
[ 680 ]
PROVISION OF ADEQUATE FACILITIES
[ § 805
for its local service, it should have the usual justification.¹
But the argument may be carried further. As the rail-
road business is conducted in the United States the inter-
change of cars is the regular course of affairs. A railroad
which would hold out against this policy would be "an
Ishmaelite among its fellows." A traffic manager might
therefore well figure upon getting in the course of exchange,
under average circumstances, about as many cars as he
sends off; but if the conditions of traffic over his own road
at the season would usually make the balance of exchange
against him or in his favor he should take that into ac-
count. It may well be argued that he may take all these
facts into account in judging whether he is leaving cars
enough for his own business as it would apparently be at
this season.2 But he should also consider the probabilities
of his not being able to get back the cars he is sending off.³
Topic C. Establishment of Stational Facilities
§ 805. Establishment of stations by legislation.
It is everywhere agreed that the State may by statute
establish stations at places where the public need requires
them by special statute. Such legislation is plainly
4
¹ See to this effect: Missouri, K.
& T. Ry. Co. v. Kyser, 38 Tex. Civ.
App. 355, 87 S. W. 389 (1905).
2 See the general language in Mid-
land V. R. R. Co. v. Hoffman Coal
Co., 91 Ark. 180, 120 S. W. 380
(1909); Louisville & N. Ry. Co. v.
Central S. Y. Co., 30 Ky. L. Rep.
18, 97 S. W. 778 (1906).
3 See the actual decision in St.
Louis S. W. Ry. Co. v. Phoenix Cot-
ton Oil Co., 88 Ark. 594, 115 S. W.
393 (1909); Texas & P. Ry. Co. v.
Barrow (Tex. Civ. App.), 94 S. W.
176 (1906).
4 See for example:
United States.-Atchison, T. &
S. F. R. R. Co. v. Denver & N. O.
R. R. Co., 110 U. S. 667, 681, 23
L. ed. 291 (1884).
Arkansas.-Louisville & A. Ry.
Co. v. State, 85 Ark. 12, 106 S. W.
960 (1907).
Connecticut.-State of Conn. v.
New Haven & N. Co., 37 Conn. 153
(1870).
Massachusetts.-Mayor v. Nor-
wich & W. R. R. Co., 109 Mass. 103
(1871).
New York.-People v. New York,
[681]
§ 806 ] PUBLIC SERVICE CORPORATIONS
within the reserved power of regulation. "If the directors
of a railroad were to find it for the interest of the stock-
holders to refuse to carry any freight or passengers except
such as they might take at one end of the road and carry
entirely through to the other end, and were to refuse to
establish any way stations or do any way business for
that reason, though the road passed for a long distance
through a populous part of the State, this would be a
case manifestly requiring and authorizing legislative inter-
ference under the clause in question. And on the same
ground, if they refuse to provide reasonable accommoda-
tion for the people of any smaller locality, the legisla-
ture may reasonably alter and modify the discretionary
power which the charter confers upon the directors, so
as to make the duty to provide the accommodation abso-
lute. Whether a reasonable ground for interference is
presented in any particular case is for the legislature to
determine; and their determination on this point must be
conclusive." 1
§ 806. Requirement of stations by commissions.
The more usual method of exercising the legislative
power in this regard is by delegation of the determination
of the necessity of the establishment of new stations or
the propriety of changing existing stations to the railroad
commission. Of the constitutionality of such legislation
L. E. & W. R. R. Co., 104 N. Y. 58,
58 Am. Rep. 484, 9 N. E. 856
(1887).
Vermont.-Re Railroad Commis-
sioners, 79 Vt. 266, 65 Atl. 82 (1906).
¹ Per Chapman, C. J., in Com-
monwealth v. Eastern R. R. Co.,
103 Mass. 254, 4 Am. Rep. 555
(1869).
However it was held in Louis-
iana & A. Ry. Co. v. State, 91 Ark.
358, 121 S. W. 284 (1909), that a
special act of the legislature was
unreasonable and void, which re-
quired the construction and main-
tenance of a station at a point in
a sparsely settled community with
meager business interests, which
would result in a large expense to
the railway company without any
corresponding benefit to it or the
public.
[ 682 ]
PROVISION OF ADEQUATE FACILITIES
[ § 806
and the consequent force of such orders there can be no
doubt.¹ Indeed many courts believe, as will be seen
presently, that without legislative interposition in some
form, the railroad companies are forced to do as they
please in these respects. Thus in an Alabama case
where it was urged in argument that a common-law duty
rested on the railroad company to establish and maintain
comfortable waiting rooms at its stations, it was said:
"An examination of the cases bearing on this question
discloses that no such duty exists, unless imposed by the
¹ United States.-Minneapolis &
St. L. R. R. Co. v. Minnesota, 193
U. S. 53, 48 L. ed. 614, 24 Sup. Ct.
396 (1904).
Alabama.-Nashville, C. & St.
L. Ry. Co. v. State, 137 Ala. 439,
34 So. 401 (1902).
Kansas.-Board of R. R. Commrs.
v. Missouri Pac. Ry. Co., 71 Kan.
193, 80 Pac. 53 (1905).
Iowa.-State v. Des Moines & K.
C. Ry. Co., 87 Iowa, 644, 54 N. W.
461 (1893).
Louisiana.-Morgan's L. & T.
R. & S. S. Co. v. Railroad Commis-
sion, 109 La. 247, 33 So. 214 (1902);
Louisiana Ry. & Nav. Co. v. Rail-
road Commission, 121 La. 847, 46
So. 884 (1908).
Maine.-Railroad Commis-
sioners v. Portland & O. C. R. R.
Co., 63 Me. 269, 18 Am. Rep. 208
(1872).
Minnesota.-State ex rel. v. Min-
neapolis & St. L. R. R. Co., 87
Minn. 195, 91 N. W. 465 (1902);
State ex rel. Railroad & W. Com-
mission v. Northern P. R. Co., 90
Minn. 277, 96 N. W. 81 (1903).
Mississippi.—State v. Mobile,
J. & K. C. Ry. Co., 86 Miss. 172,
2
38 So. 732 (1905); State v. Yazoo &
M. Valley Ry. Co., 87 Miss. 679,
40 So. 263 (1905).
New Jersey.-Delaware, L. & W.
Ry. Co. v. R. R. Commrs. (N. J.),
74 Atl. 269 (1909).
New York.-People v. New York,
L. E. & W. R. R. Co., 104 N. Y. 58,
9 N. E. 856, 58 Am. Rep. 484 (1887).
South Carolina. Railroad
Commrs. v. A. C. L. R. R. Co., 71
S. C. 130, 50 S. E. 641 (1905).
South Dakota.-State ex rel. v.
Chicago, St. P. M. & O. Ry. Co.,
12 S. D. 305, 47 L. R. A. 569, 81
N. W. 503 (1900).
Vermont.-Re Railroad Commrs.,
79 Vt. 266, 65 Atl. 82 (1906).
Wisconsin.—Minneapolis, St. P.
& S. S. M. Ry. Co. v. Railroad Com-
mission, 136 Wis. 146, 116 N. W.
905, 17 L. R. A. (N. S.) 821 (1908).
The action of the commission
will not be questioned unless it is
acting outside of the jurisdiction
conferred upon it by law. People v.
H. Canal
President, etc., of D. &
Co., 165 N. Y. 362, 59 N. E. 138
(1901).
2 Page v. Louisville & N. R. R.
Co., 129 Ala. 237, 29 So. 676 (1898).
[ 683 ]
§ 8071
PUBLIC SERVICE CORPORATIONS
charter of the defendant, or by a statutory regulation,
or by some other legislative authorization conferring the
powers upon a railroad commission to impose the duty."
§ 807. Requirement of stations by the courts: conserva-
tive view.
Whether the carrier can be required to establish reason-
able stations through judicial process in the courts is a
matter of more doubt. The leading authority to the
effect that the courts have no jurisdiction to interfere is
Northern Pacific Railroad v. Washington Territory ex rel.
Dustin,¹ a United States Supreme Court case. This was a
petition for a mandamus to compel the defendant railroad
to erect and maintain a station at Yakima City, through
which the road passed. The defendant had at one time
stopped its trains at Yakima City, but moved the station
to North Yakima. In consequence, apparently, of this,
Yakima City which at the time of filing the petition for
mandamus, was the most important town in population
and business in the county, rapidly dwindled, and most
of its inhabitants removed to North Yakima, which at
the time of the verdict had become the largest and most
important town in the county. The Territorial court
granted the writ, but this judgment was reversed on appeal
by the Supreme Court of the United States. The decision
was thus made in view of the fact that Yakima City had
ceased to be a sufficiently considerable place to require
station facilities. It is therefore not actually decided in
the case that the railroad had not violated its legal duty
in failing to stop at Yakima City, or that some form of
action might not lie against it for the failure. The court,
however, discussed the general question very fully, and
concluded that "to hold that the directors of this corpora-
tion, in determining the number, place, and size of its
1 142 U. S. 492, 35 L. ed. 1092, 12 Sup. Ct. 283 (1892).
[684]
PROVISION OF ADEQUATE FACILITIES
[§ 808
܂
stations and other structures, having regard to the public
convenience as well as to its own pecuniary interests, can
be controlled by the courts by writ of mandamus, would
be inconsistent with many decisions of high authority in
analogous cases." 1
§ 808. Progressive view of the question of stations.
2
The progressive view of the question is taken in several
courts, which allow the writ of mandamus to issue to
compel the railroad to establish stations in reasonable
places. A leading case is that of the People v. Chicago
and Alton Railroad. In that case a petition for a writ
of mandamus was granted compelling the defendant to
establish and maintain a station at Upper Alton, a town
of over 1,800 inhabitants situated on the line of the
defendant's railway about midway between two other
stations, Mr. Justice Bailey saying: "It is undoubtedly
the rule that railway companies, in the absence of statu-
tory provisions limiting and restricting their powers, are
vested with a very broad discretion in the matter of locat-
ing, constructing, and operating their railways, and of
locating and maintaining their freight and passenger
stations. This discretion, however, is not absolute, but
is subject to the condition that it must be exercised in
good faith, and with a due regard to the necessities and
1 This conservative view prevails
at the following jurisdictions:
United States.-Atchison, T. &
S. F. R. R. Co. v. Denver & N. O.
R. R. Co., 110 U. S. 667, 23 L. ed.
292, 4 Sup. Ct. 185 (1884).
Alabama.-Page v. Louisville &
Nashville R. R. Co., 129 Ala. 232,
29 So. 676 (1900), semble.
Louisiana.-State ex rel. v. Kan-
sas City Ry. Co., 51 La. Ann. 200,
25 So. 126 (1899).
New Jersey.-Jacquelin v. Erie
R. R. Co., 69 N. J. Eq. 432, 61 Atl.
18 (1905), no jurisdiction to pre-
vent discontinuance of station.
Wisconsin.-Whiting v. Sheboy-
gan & F. Du Lac, 25 Wis. 167, 3
Am. Rep. 30 (1870).
England.—South Eastern Ry. v.
Ry. Commrs., 50 L. J. Q. B.
201, 6 Q. B. D. 586, 44 L. T. 203
(1881).
2 130 Ill. 175, 22 N. E. 857 (1888).
[ 685]
§ 809 ] PUBLIC SERVICE CORPORATIONS
convenience of the public. Railway companies, though
private corporations, are engaged in a business in which
the public have an interest, and in which such companies
are public servants, and amenable as such." 1
§ 809. Where stations are required.
2
The circumstances which call for the establishment of
stations are brought out in the cases which have been
cited. Public necessity is the real basis. Wherever there
is a community which has business enough to make the
establishment of the station plainly profitable, there can
be no doubt that the railroad is acting unreasonably in
not establishing a station there. On the other hand, it
would be outrageous for the regulating authorities to
require a railroad to establish an additional station in a
sparsely settled country producing no additional busi-
ness.³ Stations, of course, should be more frequent in
thickly settled districts; and for a railroad to run through
such a country without a station for several miles would
be unreasonable. Despite these rules the regulating
authorities may go so far as to order the establishing of a
¹ This progressive view prevails in
the following jurisdictions:
Florida. Florida, C. & P. R. R.
Co. v. State ex rel. Tavares, 31 Fla.
482, 13 So. 103, 20 L. R. A. 419, 34
Am. St. Rep. 30 (1893).
Illinois.—Mobile & O. R. R. Co.
v. People ex rel., 132 Ill. 559, 24
N. E. 643, 22 Am. St. Rep. 556
(1890).
Nebraska.-State ex rel. v. Re-
publican Valley R. R. Co., 17 Neb.
647, 24 N. W. 329, 52 Am. Rep. 424
(1885); Chicago & N. W. Ry. Co.
v. State, 74 Neb. 77, 103 N. W.
1087 (1905).
New Hampshire.-Concord & M.
R. R. Co. v. Boston & M. R. R. Co.,
67 N. H. 464, 41 Atl. 263 (1893).
Washington. —Northern Pacific
R. R. Co. v. Territory of Washing-
ton, 3 Wash. Territory, 303, 13 Pac.
604 (1887).
2 People v. Chicago & A. R. R.
Co., 130 Ill. 175, 22 N. E. 857
(1889).
³ Louisiana & A. Ry. Co. v. State,
91 Ark. 358, 121 S. W. 284 (1909).
Minneapolis, St. P. & S. St. M.
Ry. Co. v. Railroad Commission,
136 Wis. 146, 116 N. W. 905, 17
L. R. A. (N. S.) 821 (1908).
[ 686 ]
PROVISION OF ADEQUATE FACILITIES
[ § 810
station to meet public necessities, although its mainte-
nance may not be profitable.¹
§ 810. Closing a station.
4
Upon similar principles a station may be closed when
public necessity no longer requires it. Thus a station
may be abandoned after experience has shown that there
is not a sufficient demand for it.2 The plainest case of the
right to close a station is when another station is provided
within the same sphere of influence.³ Thus the shifting
of the location of a station from one point in the region
to another (where it might originally have been located
without objection) is plainly within the discretion of the
company. And if the company takes over another par-
allel road it may close the stations of the acquired line,
or of its own line, so long as sufficient accommodations
are provided for public convenience. On the other hand,
an order of a commission that a station which the railroad
is about to abandon shall be kept open will not be con-
sidered outrageous, although it would plainly be advan-
tageous to the railroad to close it. And there may be
outstanding obligations by legislation or charter, fran-
chise or contract, to maintain the particular station."
1 See on this crucial point:
Louisiana.—Morgan's L. & T.
R. & S. S. Co. v. Railroad Commis-
sion, 109 La. 247, 33 So. 214 (1902).
Minnesota.-State v. Northern
Pacific Ry. Co., 90 Minn. 277, 96
N. W. 81 (1903).
Mississippi.—Southern Ry. Co.
v. State (Miss.), 48 So. 236 (1909).
Nebraska.—Chicago, R. I. & P.
R. R. Co. v. Nebraska State Ry.
Commission, 85 Neb. 818, 124 N. W.
477, 26 L. R. A. (N. S.) 444 (1910).
Oklahoma.-Kansas City, M. &
O. Ry. Co. v. State (Okla.), 107
Pac. 912 (1910).
5
2 Jacquelin v. Erie R. R. Co., 69
N. J. Eq. 432, 61 Atl. 18 (1905).
3 Mobile & O. R. R. Co. v.
People, 132 Ill. 559, 24 N. E. 643,
22 Am. St. Rep. 556 (1890).
4 Chicago & E. I. Ry. Co. v.
People, 222 Ill. 396, 78 N. E. 784
(1906).
5 Chicago & A. R. R. Co. v. People,
152 Ill. 230, 38 N. E. 562 (1894).
6 Delaware, L. & W. R. Co. v.
Railroad Commission (N. J.), 74
Atl. 269 (1909).
7 State ex rel. v. Northern Pac.
Ry. Co., 89 Minn. 363, 95 N. W.
297 (1903).
[ 687]
§ 811]
PUBLIC SERVICE CORPORATIONS
§ 811. Exact location of stations.
Generally speaking the exact location of the station
buildings, is for the railroad to decide, and in ordering
the establishment of a station the location will be left to
its discretion.¹ But there may be cases where but one
location is advisable, such as the case of union stations
which should be at the railroad intersections. This was
the occasion of the most advanced case upon the subject,
Concord & Montreal Railroad v. Boston & Maine Rail-
road 2 where it was held that since "it was conceded that
¹ Florida, C. & P. R. R. Co. v.
State ex rel. Tavares, 31 Fla. 482,
13 So. 103, 20 L. R. A. 419, 34 Am.
St. Rep. 30 (1893).
However where there are sta-
tional facilities at a certain point
which the railroad has unreason-
ably ceased to make a stopping
place the regulating authorities will
have no hesitation in ordering
that particular station to be re-
opened and service resumed. See
in addition the various cases cited
in the preceding paragraph. Min-
neapolis, St. P. & S. Ste. M. Ry.
Co. v. Railroad Commission, 136
Wis. 146, 116 N. W. 905, 17 L. R.
A. (N. S.) 821 (1908).
267 N. H. 464, 41 Atl. 263, 74
N. W. 893, 70 Am. St. Rep. 358,
40 L. R. A. 389 (1893).
But there are several cases which
hold that there is no obligation to
locate stations at an intersecting
point as such.
United States.—Atchison, T. &
S. F. Ry. Co. v. Denver & N. O.
R. R. Co., 110 U. S. 667, 28 L. ed.
291 (1884); Louisville & N. R. R.
Co. v. Central S. Y. Co., 212 U. S.
132, 53 L. ed. 441 (1909).
Kentucky. Shelbyville R. R. Co.
v. Louisville, C. & L. R. R. Co., 82
Ky. 541 (1885).
Missouri.-State v. Railroad Co.,
105 Mo. App. 207 (1904).
Virginia. See Commonwealth v.
Norfolk & W. Ry. Co. (Va.), 68
S. E. 351 (1910).
It would seem that where a rail-
road terminates upon a wharf upon
navigable water, public necessity
would require that this should be a
public station. See:
Florida.-Indian R. S. Co. v.
East Coast Transp. Co., 28 Fla.
387, 10 So. 480, 29 Am. St. Rep.
258 (1891).
Georgia.-Macon, D. & S. R. R.
Co. v. Graham, 117 Ga. 555, 43
S. E. 1000 (1903).
But see to the contrary:
United States.-Louisville & N.
R. R. Co. v. West Coast N. S. Co.,
198 U. S. 483, 49 L. ed. 1135, 25
Sup. Ct.745 (1905); Ilwaco Ry. & N.
Co. v. Oregon S. L. & U. N. Ry. Co.,
57 Fed. 673, 6 C. C. A. 495 (1893).
New York.-Alexandria Bay Stb.
Co. v. New York C. & H. R. R. R.
Co., 45 N. Y. Supp. 1091, 18 N. Y.
App. 527 (1897).
[688]
PROVISION OF ADEQUATE FACILITIES
[ § 812
the public good requires that there should be a union
passenger station in the city of Manchester, to be used
by the railroads connecting at that point, for the accom-
modation of the public as well as for their own convenience
and advantage, from this concession it necessarily follows
that it is the legal duty of the parties to locate, erect, and
maintain such a depot as public necessity requires which
the court might designate if the parties were unable to
agree." A problem as to which there is much litigation
arises when a covenant by a railroad with a landowner
as to the exact location of stations is brought to court.
A mere stipulation that a certain station shall be main-
tained, the railroad being free to open others, is not neces-
sarily void.¹ But a condition, that no other station shall
be maintained than the one erected upon the land con-
veyed, is void, as public policy requires that the railroad
should be free to open stations wherever public conveni-
ence requires.2
§ 812. Proper facilities at stations.
A stopping place does not necessarily involve station
buildings; but at common law the duty of the railroad
¹ Illinois.-Lyman v. Suburban
R. R. Co., 190 Ill. 320, 60 N. E. 515,
52 L. R. A. 645 (1901).
Indiana.-Cleveland, C., C. &
I. Ry. Co. v. Coburn, 91 Ind. 557
(1883).
Iowa. First Nat'l Bk. v. Hen-
drie, 49 Iowa, 402, 31 Am. Rep.
153 (1878).
V.
Pennsylvania.—Cumberland
Ry. Co. v. Baab, 9 Watts. 458, 36
Am. Dec. 132 (1840).
Wisconsin.-Horner v. Chicago,
M. & St. P. Ry. Co., 38 Wis. 165
(1875).
2 Illinois.-St. Louis, J. & C. R.
R. Co. v. Mathers, 71 Ill. 592, 22
Am. Rep. 122 (1874).
Iowa.-Williamson v. C., R. I.
& P. R. Co., 53 Ia. 126, 4 N. W.
870, 36 Am. Rep. 206 (1880).
Kansas. St. Joseph & Denver
City R. R. Co. v. Ryan, 11 Kans.
602, 15 Am. Rep. 357 (1873).
Massachusetts. See Fuller V.
Dame, 18 Pick. 472 (1836).
³ In Minneapolis, St. P. & S. S.
M. Ry. Co. v. Railroad Commis-
sion, 136 Wis. 146, 116 N. W. 905,
17 L. R. A. (N. S.) 821 (1908), it
was held sufficient to maintain a
mere platform. Such platforms are
44
[689]
§ 813]
PUBLIC SERVICE CORPORATIONS
1
would undoubtedly go so far as to make it negligent in
not providing adequate buildings at stations where much
business is done. Certainly it must keep its station
buildings up to the requirements of the business exist-
ing. One of the matters which is coming within the juris-
diction of railroad commissions is the requirement of
proper station buildings where it deems them requisite;
and even the ordering of minor improvements in existing
stations. By these principles a regulation of a railroad
company is unreasonable and void under which the sale
of tickets to any regular station of a train is refused, or
by which, although a passenger holding a through ticket
may himself get off at any such station, he is not per-
mitted also to remove his baggage. On the other hand,
railroads need not make provisions for passengers enter-
ing or leaving cars at unexpected and unusual places.³
2
§ 813. Establishment of freight stations.
All the law discussed in this topic is as applicable to
freight stations as to passenger stations. The true issue,
not stations within the meaning of
statutes referring to stations. Kel-
logg v. Suffolk & C. Ry. Co., 100
N. C. 158, 5 S. E. 379 (1888).
On the other hand, in St. Louis,
I. M. & So. Ry. v. State, 84 Ark.
150, 104 S. W. 1106 (1907), the de-
cision based upon the existence of
the duty to provide proper freight
houses for the receiving of freight
awaiting transportation. And this
duty was recognized in another re-
cent case where the building of a
grain elevator by a railroad was
held permissible to this extent.
People ex rel. v. Illinois Central
R. R. Co., 233 Ill. 378, 84 N. E.
368, 116 L. R. A. (N. S.) 604, 122
Am. St. Rep. 181 (1908).
Louisiana.-Morgan's L. & T. R.
& S. S. Co. v. Railroad Commis-
sion, 109 La. 247, 33 So. 214
(1902).
Missouri.-Lackland v. Chicago
& A. Ry. Co., 101 Mo. App. 420
(1903).
1 Missouri.-Eichorn v. Missouri,
K. & T. Ry. Co., 130 Mo. 575, 32 S.
W. 993 (1895).
South Dakota.-State v. Chicago,
St. P., M. & O. Ry. Co. (S. D.), 81
N. W. 503 (1900).
2 Pittsburg, C. & St. L. Ry. Co.
v. Lyon, 123 Pa. St. 140, 16 Atl.
607, 10 Am. St. Rep. 517 (1888).
3 Central R. R. Co. v. Smith,
76 Ga. 209, 2 Am. St. Rep. 31
(1886).
[690]
PROVISION OF ADEQUATE FACILITIES
[ § 814
as has been said, is whether the existing freight stations
are so situated as to meet the reasonable demands of
shippers from that district, and is not whether the freight
business that probably will be offered at the place pro-
posed for a new station is enough to justify the require-
ment of the new station. Indeed in large cities the pas-
senger stations may be in one district, while the freight
terminals may properly be in another.2 Moreover freight
stations may be specialized, some for the reception of
package freight, others for bulk freight. And a railroad
may have cattle stations and mineral stations, for exam-
ple, or special sidings for the reception of special freight.
But if the business will not justify this differentiation it
may concentrate all at one point with appropriate prem-
ises properly equipped.
3
§ 814. Establishing offices in other services.
4
This law is applicable to other services besides carriage.
¹ People v. Delaware & H. Canal bulk need not be taken except from
Co., 52 N. Y. Supp. 850, 32 App. the shipper's tipple.
Div. 120 (1898).
2 Maintaining a special freight
station at a terminal city while
merely side tracking cars at a way
station is justifiable. Michie v.
New York, N. H. & H. R. Co., 151
Fed. 694 (1907).
3 This matter of the establish-
ment of separate stations for spe-
cial freight should obviously be left
almost entirely to the discretion of
the company. The cases thus far
hold simply that the company may
do so. Robinson v. Baltimore & O.
Ry. Co., 129 Fed. 753, 64 C. C. A.
281 (1904).
See further Harp. v. Choctaw, O.
& G. R. R. Co., 125 Fed. 445, 61
C. C. A. 405 (1903), going to the
extreme of holding that coal in
4 Thus the cases permit the rail-
road to compel cattle to be handled
through a stock yard station-but it
may not make a special charge for
terminal facilities. Covington S.
Y. Co. v. Keith, 139 U. S. 128, 35
L. ed. 73, 11 Sup. Ct. 461 (1891);
but see Central S. Y. Co. v. Louis-
ville & N. Ry. Co., 192 M. S. 568,
48 L. ed. 565, 24 Sup. Ct. 339
(1904).
But the cases as to providing
facilities for handling cattle only
require that proper equipment
must be provided at regular sta-
tions. See Missouri, K. & T. Ry.
Co. v. Byrne, 100 Fed. 359, 40 C. C.
A. 402 (1900), and Flint v. Boston
& M. R. R. Co., 73 N. H. 141, 59
Atl. 938 (1905).
[691]
§ 815]
PUBLIC SERVICE CORPORATIONS
The location of telegraph offices for example, is plainly
subject to similar principles. While these must be estab-
lished at reasonable intervals, their establishment is within
the discretion of the company. These offices may be closed
if experience shows that they are not required, and their
location may be shifted later, unless the change is distinctly
contrary to the interests of the public served.¹ Courts
would always hesitate to give orders in regard to these
matters on their own initiative, and some would refuse
altogether. But the orders of proper authorities must be
respected unless obedience would mean practical confisca-
tion. All this is doubtless true of the pay stations of a
telephone company, although, there is not much by way
of judicial opinion as yet.
2
Topic D. Provision of Private Installation
§ 815. No right to private sidings generally.
The general rule as has just been seen is that those
having freight to ship must bring it to the regularly estab-
lished freight stations, just as travelers wishing to be trans-
ported must present themselves at the regularly established
passenger stations. At common law no shipper or con-
signee of ordinary freight, no matter how large the busi-
ness which he does with the railroad may be in the aggre-
gate, has any right to have freight trains stopped at his
premises or freight cars spotted at his siding, even if his
premises abut upon the right of way or he has constructed
a siding to the railroad grade ready for connection with
the through tracks. Even if a patron is enjoying the
¹ Kansas.-State v. Western Un-
ion Telegraph Co., 75 Kan. 609,
90 Pac. 299 (1907).
North Carolina.-Railroad Com-
missioners v. Western Union Tele-
graph Co., 113 N. C. 213, 18 S. E.
389 (1893).
2 Mississippi.
Western Union
Telegraph Co. v. Mississippi R. R.
Commission, 74 Miss. 80, 21 So. 15
(1896).
Ohio.-Railroad Co. v. Telegraph
Co., 38 Ohio St. 24 (1882).
3 United States.-Bedford B. G.
S. Co. v. Oman, 134 Fed. 441
(1904).
[692]
PROVISION OF ADEQUATE FACILITIES
[ § 816
privilege of having cars left upon a siding for him and
taken away when loaded, the railroad may discontinue
this service on short notice.¹ Indeed since there is no
duty in the matter it is not discrimination to permit one
shipper to have a private switch while others similarly
situated are not allowed the same privilege. What has
been said in this paragraph does not apply to the peculiar
case of the terminal railroad as the peculiar business of
such railroads is to switch loaded cars to and from sidings.³
§ 816. Rights of the railroad paramount.
2
It is certainly true that under no circumstances can
anyone insist that there shall be a switch connection,
when it would interfere with the business of the railroad
if there should be such an intermediate switch at that
point. So the railroad is excused in all cases where it
appears that there would be danger in maintaining the
4
¹ Durden v. Southern Ry. Co., 2
Ga. App. 66, 58 S. E. 299 (1907).
2 Cedar Rapids & I. C. Ry. & L.
Co. v. Chicago, R. I. & P. R.
R. Co. (Iowa), 124 N. W. 323
(1910).
3 Interstate Stock Yards Co. v.
Indianapolis U. Ry. Co., 99 Fed.
472 (1900).
It does not subject a railroad
company to indictment under the
Interstate Commerce Act for it to
refuse to furnish a switch connec-
tion to a shipper tendering in-
terstate traffic for transportation,
although such connections are fur-
nished to other shippers, especially
where the indictment does not
charge that the connections de-
manded are reasonably practicable
and could be put in with safety
and would furnish sufficient busi-
ness to justify the expense of their
construction and maintenance, nor
that the person or company ask-
ing for the same offered to pay such
portion of the cost as is usual and
reasonable. United States v. Bal-
timore & O. R. Co., 153 Fed. 997
(1907).
An order of the Interstate Com-
merce Commission which forbids
a carrier to allow or pay to the
owner of an elevator any compen-
sation for elevation in transit of
grain which he ships, unless he re-
fuses to clean, clip, mix, inspect
or grade the grain while it is passing
through the elevator, is beyond its
powers. Peavey & Co. v. Union
Pac. Ry. Co. 176 Fed. 409 (1910).
4 Jones v. Newport, N. & M. V.
Co., 65 Fed. 736, 31 U. S. App. 92,
13 C. C. A. 95 (1895), switch con-
nection at dangerous point from
the operating point of view.
[ 693 ]
§ 817]
PUBLIC SERVICE CORPORATIONS
switch service desired.¹ However, evidence on behalf of
the applicant for a switch, that a few years before the
defendant railroad had maintained a side track at this
point for two years without any inconvenience or accident
resulting is competent to show the practicability of a
side track being continued at this point.2 Upon similar
principles it has been held that wherever a railroad has
been delivering freight of a certain class for certain ship-
pers at certain places beside its track that have been
designated, it may be considered as professing to do so
and it cannot then refuse in a particular case on the ground
that it is impracticable.³
§ 817. When private switches must be granted.
On the other hand there are exceptional businesses
where the commercial necessity for private switches is
recognized by the common law to be overruling. This is
1 Mercantile Trust Co. v. Co-
lumbus, S. & H. R. R. Co., 90 Fed.
148 (1898), siding itself in danger-
ous condition.
2 Industrial Siding Case, 140 N.
C. 239, 52 S. E. 941 (1905).
See also St. Louis, I. M. & S. Ry.
Co. v. Wynne, H. & C. Co., 81 Ark.
373, 99 S. W. 375 (1907).
3 State ex rel. Ellis v. Atlantic,
C. L. R. Co., 52 Fla. 646, 41 S.
O. 705 (1906); Cumberland Tel. &
Tel. Co. v. Morgan's L. & T. Ry.
Co., 51 La. Ann. 29, 24 So. 803, 72
Am. St. Rep. 442 (1899), accord.
4 United States.-Harp v. Choc-
taw, O. & G. R. R. Co., 125 Fed. 445,
61 C. C. A. 405 (1903), collieries;
Olanta Coal M. Co. v. Beech Creek
R. R. Co., 144 Fed. 150 (1906),
collieries.
Illinois.-Vincent v. Chicago &
A. R. R. Co., 49 Ill. 33 (1868),
4
grain elevators; Chicago & N. W.
Ry. Co. v. People, 56 Ill. 365, 8
Am. Rep. 690 (1870), grain eleva-
tors.
Kentucky.-Bedford-Bowling
Green Stone Co. v. Oman, 115 Ky.
369, 73 S. W. 1038 (1903), quarries.
Iowa.-Richmond v.
v. Dubuque
& Sioux City R. R. Co., 26 Iowa,
191 (1868), grain elevators.
Louisiana.-Cumberland Tel. &
Tel. Co. v. Morgan's L. & T. R. R.
Co., 51 La. Ann. 29, 24 So. 803, 72
Am. St. Rep. 442 (1889), semble,
timbers.
Nebraska.-Roby v. State ex rel.
Farmers' G. & L. S. Co., 76 Neb.
450, 107 N. W. 766 (1906), grain
elevators.
Pennsylvania.-Continental Coal
Co. v. Pennsylvania R. R. Co., 13
Pa. Dist. Ct. 702 (1904), collier-
ies.
[ 694 ]
PROVISION OF ADEQUATE FACILITIES
[ § 818
peculiarly true of those who ship or receive freight in
bulk. Thus private switches should be permitted at
grain elevators, coal tipples, ore smelters, and oil tanks,
provided the shipments from them are of reasonable size.
And the same is true of those who are shippers and re-
ceivers in considerable quantities of such freight as it
would be actually impracticable or peculiarly disadvan-
tageous to transport by teams over the roads. Examples
of this would be iron castings and heavy machinery,
blocks of marble and great timbers. As Mr. Justice Baxter
said, in discussing this whole question in Coe v. Louisville
& Nashville Railroad Company: 1 "This rule is just and
convenient, and necessary to an expeditious and econom-
ical delivery of freights. It has regard to their proper
classification, and to the circumstances of the particular
case.
Under it articles susceptible of easy transfer may
be delivered at a general delivery depot provided for the
purpose. But live stock, coal, ore, grain in bulk, marble,
etc., do not belong to this class. For these some other
and more appropriate mode of delivery must be provided."
§ 818. The problem of stock yards.
In the quotation just given live stock was included
among the bulky articles which a carrier must receive and
deliver beside its track. This is apparently not law now.
The cost of transporting live stock through a town to a
single station is not prohibitive, since the animals go on
their own legs. It is therefore permissible for the carrier
to establish a single station for the reception of live stock,
provided such a station is properly equipped for the pur-
pose and furnishes sufficient facilities for the neighborhood.
Consequently it is now held that there is no duty owed
to the owner of cattle to make special delivery of them
at any place along the line that he designates. On the
13 Fed. 775 (1880).
[695]
§ 819]
PUBLIC SERVICE CORPORATIONS
contrary it is held that the railroad may designate certain
points of delivery if reasonably convenient, as it may for
other freight which it has undertaken to carry. Upon this
basis the courts have permitted the railroad to designate
one of several private stock yards as its cattle station
where it will deliver cattle consigned to that point and
have accordingly justified it in refusing to deliver at other
stock yards.¹ This was well enough so long as the courts
held strictly that no charge could be made under such
circumstances for yardage if the consignee was ready to
take the cattle away.2 Under a late decision the United
States Supreme Court has permitted a stock yards com-
pany to make an additional charge as a connecting carrier.³
But in the latest Supreme Court case it is held that the
railway may make connections with the trackage of one
stock yard while refusing to make such connection with
another.¹
§ 819. Constitutionality of further legislation.
Legislation along these lines has become somewhat
common, as indeed it has become generally in relation
to the provision of facilities. Legislation is not so un-
reasonable as to be unconstitutional if it ignores the com-
mon law distinction between movable and immovable
freights which has just been discussed. Thus a railroad
1 Butchers & D. S. Y. Co. v.
Louisville & N. R. R. Co., 67 Fed.
35, 14 C. C. A. 290 (1895); Walker
v. Keenan, 73 Fed. 758, 19 C. C. A.
668 (1896).
2 Covington S. Y. Co. v. Keith,
139 U. S. 128, 35 L. ed. 73, 11 Sup.
Ct. 461 (1891).
3 Interstate Commerce Comm. v.
Chicago, B. & Q. R. R. Co., 186
U. S. 320, 46 L. ed. 1182, 22 Sup.
Ct. 824 (1902).
5
4 Louisville & N. R. R. Co. v.
Central S. Y. Co., 212 U. S. 132,
53 L. ed. 441, 29 S. Ct. 246 (1909).
See also Central S. Y. Co. v. Louis-
ville & N. Ry. Co., 192 U. S. 568,
48 L. ed. 565, 24 Sup. Ct. 339
(1904).
• This is assumed in Mays v. Sea-
board Air Line Ry. Co., 75 S. C.
455, 56 S. E. 30 (1906).
[696]
PROVISION OF ADEQUATE FACILITIES
[ § 820
commission may be given power to give orders for the
installation of switches or to prohibit the removal of
private switches where the commercial necessity for them
sufficiently appears.¹ There is the possibility that an
order of the commission for the establishment of a switch
connection may be held outrageous if it would interfere
too much with the business of the railroad.2 But cer-
tainly legislation can confirm the right of shippers of
bulky freights to have switch connections.³
§ 820. Railroad never obliged to construct siding.
4
The extent to which such legislation in regard to sidings
may go has been under examination in several recent
cases both State and Federal. These cases establish be-
yond question that the utmost extent to which the duty
may be pressed is to permit the making of the switch con-
nection. Neither the legislature nor its commission can
compel the railroad to construct the sidings at its own ex-
pense, as was pointed out in one of the recent State cases.
And therefore a statute was recently held unconstitutional
by a State court which although requiring the individual
to build provided that he should be repaid that cost by
a reduction of twenty per cent from his freight bills for
each year. Two cases finally reaching the United States
Supreme Court settled this side of the general problem
for the Federal courts. In the earlier case
In the earlier case a Nebraska
statute requiring every railroad to permit all those who
5
1 For example, see Railroad Com-
mission of La. v. Kansas City So.
Ry. Co., 111 La. 133, 35 So. 487
(1903).
2 This is assumed in the Indus-
trial Siding Case, 140 N. C. 239
(1905).
3 For example, see Olanta Coal
6
M. Co. v. Beech Creek R. R. Co.,
144 Fed. 150 (1906).
4 Northwestern Warehouse Co.
v. Oregon Ry. & Nav. Co., 32 Wash.
218, 73 Pac. 388 (1903).
5 Mays v. Seaboard Air Line Ry.
Co., 75 S. C. 455, 56 S. E. 30 (1906).
• Missouri Pacific Ry. Co. v. Ne-
braska, 164 U. S. 403 (1896).
[697]
§ 821 ]
PUBLIC SERVICE CORPORATIONS
1
desired to build a grain elevator upon the right of way of
a railroad was held to deprive the company of its prop-
erty without due process of law. In the later case ¹ the
Nebraska statute as amended permitting the railroad to
refuse to grant a location if it would construct a siding to
any elevator established on land adjoining its right of
way was held unconstitutional as compelling the railroad
to pay for a private facility.
§ 821. Duty confined to permitting connection.
At common law the duty of the railroad as a carrier of
freight is confined to taking up or setting down freight
along its route, or more exactly beside its tracks as con-
structed. The most that the common law requires of a
railroad in any case is to receive or leave cars at the point
where the spur constructed by the shipper comes upon
the right of way of the railroad. Doubtless the railroad
must put in the switch itself, and certainly it can decide
upon the details of its location. As to the matter of opera-
tion, the railroad must plainly move the car on and off the
switch, since it would not permit the shipper to break in
upon its own operation over its public tracks. But cer-
tainly as a common law matter the railroad cannot be
1 Missouri Pacific Ry. Co. v.
Nebraska, 217 U. S. 196 (1910).
A contract between two railroad
companies providing for the con-
struction of a spur track to a cus-
tomer and the switching of cars
over the same for a specified charge
has been held not to violate the
Interstate Commerce Act, it not
appearing that any discrimination
was made against other customers
seeking to have like privileges. Ce-
dar Rapids & I. C. Ry. & Light
Co. v. Chicago, R. I. & P. Ry. Co.
(Iowa), 124 N. W. 323 (1910).
But in Chesapeake & O. Ry. Co.
v. Standard Lumber Co., 174 Fed.
107, 98 C. C. A. 81 (1909), it was
held that refunding to a certain
shipper ten per cent of his freight
bills until his expenditures in con-
structing his siding and its equip-
ment were paid for constituted a
violation of the Interstate Com-
merce Act, although the siding and
its equipment were thus to become
the property of the railroad.
[ 698]
PROVISION OF ADEQUATE FACILITIES
[ § 822
1
2
compelled to perform the shunting service over the private
spur of the shipper, as it cannot be compelled to haul be-
yond its own rails. On the other hand if it undertakes
such service generally it must apparently perform the
service for all shippers indifferently at reasonable rates. ²
As this is so close a question it is probable that a legisla-
tive requirement or a commission ruling requiring such
service would not be outrageous. And there are cases
enough that show that when the service is undertaken the
charges for switching can be regulated and discrimination
in them forbidden.
§ 822. Obligation to receive upon spurs.
Another distinction remains, which may explain much.
Public spurs which are really part of the railroad's trackage
and operated as such should be distinguished from special
sidings which are the private property of individual ship-
pers. A railroad in operating a public lateral must deal
with all shipments offered or consigned to it without
discrimination. It may not treat one patron located upon
it differently from another. On the other hand the owners
3
¹ Brooks Mfg. Co. v. Southern
Ry. Co. (N. C.), 68 S. E. 243 (1910).
2 Missouri Pac. Ry. Co. v. Lar-
abee Flour Mills Co., 211 U. S. 612,
29 Sup. Ct. 214 (1909).
3 Alabama.-Agee & Co. v. Louis-
ville & N. Ry. Co., 142 Ala. 344, 37
So. 680 (1904).
Georgia.-Butler v. Tifton, T. &
G. R. R. Co., 121 Ga. 817, 49 S. E.
763 (1904).
Illinois.-Chicago & A. R. R.
Co. v. Suffern, 129 Ill. 274, 21 N.
E. 824 (1889).
Kentucky.-Louisville, etc., R. R.
Co. v. Pittsburg & K. Coal Co., 111
Ky. 960, 23 Ky. L. Rep. 1318, 64 S.
W. 969, 55 L. R. A. 601 (1901).
Louisiana.-Kansas City, S. &
G. Ry. Co. v. Louisiana, etc., Ry.
Co., 116 La. 178, 40 So. 627, 5 L.
R. A. (N. S.) 512 (1905).
Minnesota.-State ex rel. R. &
W. Com. v. Willmar & S. F. R. Ry.
Co., 88 Minn. 448, 93 N. W. 112
(1903).
Nebraska.-Roby v. State ex rel.
Farmers' G. & L. S. Co., 76 Neb.
450, 107 N. W. 766 (1906).
New York. Kellogg v. Sowerby,
87 N. Y. Supp. 412, 93 App. Div.
124 (1904).
South Carolina.-Avinger v. South
Carolina Ry. Co., 29 S. C. 265, 7
S. E. 493, 13 Am. St. Rep. 716
(1888).
[ 699 ]
§ 823 ]
PUBLIC SERVICE CORPORATIONS
of a private siding may refuse to let any other shipper
utilize it.¹ This distinction is well brought out by two
cases both involving one Oman and the Bedford-Bowling
Green Stone Company. In the earlier case in the Ken-
tucky court 2 it appeared that the siding had been con-
structed by the railroad which still owned some of the
abutting lands and it was held that freight must be ac-
cepted from the complainant if tendered on these lands.
In the later case 3 in the Federal courts it transpired that
the railroad in the interval had sold the trackage and all
the adjoining lands to the favored concern; and the court
thereupon felt constrained to hold that this was a private
switch upon which no one else but the owner had any
right to be offering freight.
§ 823. The company need only provide requisite facil-
ities.
It may seem an obvious proposition that the company
need only provide the facilities requisite for giving the
service it is under obligation to provide. And yet in its
application this is not a matter free from difficulty when
the limits of the doctrine are approached. In the case of
the carrier of passengers for example, it is plain that the
railroad must provide a safe and comfortable car. It
Texas.-Railroad Commissioners
v. St. Louis & S. W. Ry., 80 S. W.
102 (1904).
¹ See particularly:
Arkansas.-Edgar Lumber Co. v.
Cornie Stave Co., 130 S. W. 452
(1910).
Michigan.-Mann v. Pere Mar-
quette R. R. Co., 135 Mich. 210,
97 N. W. 721 (1903).
2 Bedford-Bowling Green Stone
Co. v. Oman, 115 Ky. 369, 73 S. W.
1038 (1903).
³ Bedford-Bowling Green Stone
Co. v. Oman, 134 Fed. 441 (1904).
This of course means that a sid-
ing may always be abandoned.
United States.-Mercantile Trust
Co. v. Columbus, S. & H. R. R. Co.,
90 Fed. 148 (1898); Jones v. New-
port News & M. V. R. R. Co., 13
C. C. A. 95, 65 Fed. 736, 31 U. S.
App. 92 (1895).
Georgia.-Durden
v. Southern
Ry. Co., 2 Ga. App. 66, 58 S. E.
299 (1907).
[ 700 ]
PROVISION OF ADEQUATE FACILITIES
[ § 824
must even see to the provision, upon a long journey, of
facilities for eating and sleeping,¹ but it does not have to
provide overcoats and toothbrushes. In the case of the
municipal services the supplying company must, of course,
construct the necessary plant; the electric company must
supply its station, and the gas company must construct
its retorts. The supply wires of the electric company and
the street mains of the gas company, it is plain, are in the
same category. On the other hand the electroliers and
chandeliers as well as the bulbs and burners are provided
by the consumer.2 Of course it is all a question of degree,
the test being in any particular case what is the usual
undertaking of the company engaged in that business as
it is conducted. A telephone company for example, need
provide at the regular rate only the necessary facilities
for speaking and hearing; it need not provide additional
equipment. A turnpike company, at the other extreme,
provides nothing but an open road, the customer furnish-
ing his own vehicles.¹
3
§ 824. Provision of service pipes and feed wires.
In regard to the supply services, there is, however, a
debatable ground between these extremes. For example
it is not settled whether a water company is obliged to
lay and pay for the service pipes from the street mains
to the premises of the consumer, or whether the consumer
¹ See for example: Peniston v.
Chicago, St. L. & N. O. R. R. Co.,
34 La. Ann. 777, 44 Am. St. Rep.
444 (1882), responsibility for ap-
proaches to eating houses.
2 See for example: Snell v. Clin-
ton Electric L. H. & P. Co., 196
Ill. 626, 63 N. E. 1082, 89 Am. St.
Rep. 341, 58 L. R. A. 284 (1902),
no concern with the interior elec-
tric fittings.
³ See Chesapeake & P. Telephone
Co. v. Manning, 186 U. S. 238, 22
S. Ct. 881, 46 L. ed. 1144 (1902),
such as telephone cabinets and ex-
tension sets.
4 See Downing v. Mt. Washing-
ton Road Co., 40 N. H. 230 (1860),
ultra vires for turnpike company
to run stage line over it.
[ 701 ]
§ 824]
PUBLIC SERVICE CORPORATIONS
himself must pay for the service pipes. There are some
cases which are positive that the company should lay the
service pipe and make the necessary connections at its
own expense.¹ It is well argued in these cases that the
main and all laterals, fixtures and connections to the fran-
chise limit of the lot line belong to the company, and alto-
gether constitute the water system. It does not seem to be
the business of the consumer to construct any part of
the company's system, any more than it is the company's
business to place the pipes and fixtures in the consumer's
premises. On the other hand there is as much authority,
if not more, to the effect that the requirement by legis-
lation or even by the regulation of the company that the
consumer shall pay for his service pipe is not outrageous,
as this installation is peculiarly for his benefit and no part
of the general facilities of the system in the use of which
all share to some degree. This argument will also apply
to gas supply; and obviously that case is correct which
holds in effect that the gas company has no obligation
with regard to rising pipes within the building. Upon
similar principles an electric company has nothing to do
with the interior wiring.*
2
¹ Idaho.—Hatch v. Consumers'
Co., 17 Idaho, 204, 104 Pac. 670
(1909); Pocatello Water Co. v.
Standley, 7 Idaho, 155, 61 Pac. 518
(1900); Bothwell v. Consumers' Co.,
13 Idaho, 568, 24 L. R. A. (N. S.)
485, 92 Pac. 533 (1907).
New York.-Alvord v. Syracuse,
163 N. Y. 158, 57 N. E. 310 (1900).
Texas.-International Water Co.
v. El Paso (Tex. Civ. App.), 112
S. W. 816 (1908).
2 Illinois.-Prindiville v. Jack-
son, 79 Ill. 337 (1875); Warren v.
Chicago, 118 III. 329, 9 N. E. 883,
11 N. E. 218 (1887); Palmer v.
3
Danville, 154 Ill. 156, 38 N. E. 1067
(1894).
North Dakota.-Jackson v. Ellen-
dale, 4 N. D. 478, 61 N. W. 1030
(1894).
Wisconsin.-Gleason v. Waukesha
County, 103 Wis. 225, 79 N. W. 249
(1899).
3 Ferguson v. Metropolitan Gas
Light Co., 37 How. Pr. 189 (1868).
4 Snell v. Clinton Electric L. H.
& P. Co., 196 Ill. 626, 63 N. E. 1082,
89 Am. St. Rep. 341, 58 L. R. A.
284 (1902).
Where a city, operating a system
of waterworks furnishing water to
[702]
PROVISION OF ADEQUATE FACILITIES
[ § 825
§ 825. Provision of transformers and meters.
2
Must the electric company provide a transformer, or
the gas company supply a meter? There are conflicting
decisions as to this matter. In the case of the transformer
it was apparently held in a recent case¹ that the provi-
sion of a transformer was involved in the service proposed;
and this is believed to be sound because it would seem
that the electric company must provide all facilities neces-
sary for delivering current to the consumer. However,
there are various cases as to meters which hold that the
supplying company can compel the consumer to provide
his own meter, or pay rental, as such, for the meter pro-
vided by the company. But by other, and it is believed
better, authorities it is held improper for the supplying
company to compel the consumer to provide a meter, or
to charge meter rent as such. Many of the former cases,
3
its citizens, controlled the cock at
the junction of service pipes and
the main pipe, by which water was
let on and off, it must remove an
obstruction therein within a reason-
able time. City of Jackson v. An-
derson (Miss.), 51 So. 896 (1910).
¹ Snell v. Clinton Electric Co.,
196 Ill. 626, 63 N. E. 1082, 58 L. R.
A. 284, 89 Am. St. Rep. 341 (1902).
2 The cost of the transformer may
be taken into account in determin-
ing the minimum charge against
the particular consumer. Gould v.
Edison Electric Co., 29 N. Y. Misc.
241, 60 N. Y. Supp. 559 (1899).
3
³ California.-Smith v. Capital
Gas Co., 132 Cal. 209, 64 Pac. 258,
54 L. R. A. 769 (1901), regulation.
Kansas.-Cooper v. Goodland,
80 Kan. 121, 102 Pac. 244, 23 L.
R. A. (N. S.) 410 (1909), ordi-
nance.
Illinois.—Anderson v. Village of
4
Berwyn, 135 Ill. App. 8 (1907), or-
dinance.
Massachusetts.-Shaw Stocking
Co. v. Lowell, 199 Mass. 118, 85
N. E. 90, 18 L. R. A. (N. S.) 746
(1908).
Missouri.—Mallon v. Board of
Water Commrs., 144 Mo. App.
104, 128 S. W. 764 (1910), munic-
ipal charter.
New York.-Hill v. Thompson,
18 Jones & S. 165 (1884), statute;
Swanberg v. New York, 123 App.
Div. 774, 108 N. Y. Supp. 364
(1908), municipal supply.
Wisconsin.-State ex rel. v. Gos-
nell, 116 Wis. 606, 93 N. W. 542,
61 L. R. A. 33 (1903), ordinance;
State ex rel. v. Manitowoc Water-
works Co., 114 Wis. 487, 90 N. W.
442 (1902), regulation.
4 Alabama.-Smith v. Birming-
ham Waterworks Co., 104 Ala. 315,
16 So. 123 (1893).
[703]
§ 825]
PUBLIC SERVICE CORPORATIONS
however, really go no further than to hold that when this
requirement is imposed upon customers by legislation or
regulation, this policy is not so unreasonable as to be
invalid. Others of them hold that if the consumer wishes
the privilege of getting by measure instead of by estimate
he must furnish the meter. Few cases of these cited
would go so far as to permit the company to force a meas-
ured taking upon a consumer against his will and make
him pay for the meter. As to these typical municipal
services, the writer is rather inclined to go to some length
in favor of the consumer, insisting that the supply com-
pany should deliver to him what is sold, usable elec-
tricity at the house, measured gas at the cellar. These
companies are engaged in a public service, and all the equip-
ment necessary to perform that service, it would seem,
should be provided by the supply company, within rea-
sonable limits. This may involve a larger capitalization;
but that is not sufficient reason in itself why the public
company should not provide all equipment necessary to
give the service offered. On the other hand, it may be
argued fairly enough, that if the company provides all
the facilities which are for the service of the whole public,
such as the street mains, the separate takers may not un-
reasonably be obliged to provide their individual installa-
tion.
Arkansas.-Wilson
Water &
Elec. Co. v. Arkadelphia, 129 S. W.
1091 (1910).
Kentucky.-Capital Gas & Elec.
L. Co. v. Gaines, 20 Ky. L. R. 1464,
49 S. W. 462 (1899). See also Louis-
ville Gas Co. v. Dulaney & Alex-
ander, 100 Ky. 405 (1897).
Missouri.-State ex rel. v. Se-
dalia Gaslight Co., 34 Mo. App.
501 (1889).
Nebraska.-Albert v. Davis, 49
Neb. 579, 68 N. W. 945 (1896).
New Jersey.-Red Star Steam-
ship Co. v. Jersey City, 45 N. J. L.
246 (1883).
v.
Buffalo
New York.-Buffalo
Gas Co., 81 App. Div. 505, 80
N. Y. Supp. 1093 (1903).
Texas.—Walker v. McDonald,
49 Tex. 458 (1878).
[704]
PROVISION OF ADEQUATE FACILITIES
[ § 826
§ 826. Dictation as to fittings.
It would seem to follow that where the obligation of the
company to provide facilities ceases, its right to dictate to
its patron as the character of his own facilities would also
cease. And this, indeed, is the general principle. This
will often be found to be modified by the right of the com-
pany to protect its own interests, when these are involved.
Thus a gas company may regulate the placing of governors
upon his pipes by the owner himself if there is danger that
their operation may affect the operation of the meter;
but its right to interfere cannot go further than this.¹
Surely an electric company cannot give orders to its cus-
tomers as to the fittings they shall use, unless they might
be of such a construction as to interfere with its circuits.2
It should be noted in connection with all of these cases
that where the service company makes a regulation as
to the fittings to be used, it will be supported unless plainly
outrageous. Thus the cases as to water companies hold
that they may by regulation determine what style of shut-
off hydrant shall be used. This is particularly true as has
been seen in telephone service where a regulation forbid-
3
¹ It may regulate the placing of
governors and mixers. Blondell v.
Consolidated Gas Co., 89 Md. 732,
43 Atl. 817 (1899). But not pro-
hibit them altogether. Indiana
Natural & Illuminating Gas Co. v.
Anthony, 26 Ind. App. 307, 58 N.
E. 868 (1900).
2 Thus it may not insist that the
wiring shall be done by its own de-
partment. Snell v. Clinton Elec-
tric L. H. & P. Co., 196 Ill. 626,
63 N. E. 1082, 58 L. R. A.
284, 89 Am. St. Rep. 341 (1902).
But it can refuse to supply elec-
tricity to premises dangerously
wired. Benson v. American Illum-
inating Co., 102 N. Y. Supp. 206
(1907).
3 State ex rel. v. Goodfellow, 1
Mo. App. 495 (1876).
Thus an applicant for service
may be required to present a cer-
tificate from a reputable plumber
that his interior installation has
been properly made. State ex rel.
v. New Orleans Gaslight Co., 108
La. 67, 32 So. 179 (1902). But it
would be unreasonable for a com-
pany to insist that certain plumb-
ers should be employed. Franke
v. Paducah Water Supply Co., 88
Ky. 467, 11 S. W. 432, 4 L. R. A.
265 (1889).
45
[705]
§ 826 ]
PUBLIC SERVICE CORPORATIONS
ding the attachment of devices to the instruments sup-
plied is held reasonable.¹
1 Gardner v. Providence Tele-
phone Co., 23 R. I. 312, 50 Atl.
1014, 23 R. I. 262, 49 Atl. 1004, 55
L. R. A. 113 (1901).
Where in the franchise of a tele-
phone company it was provided
that it should furnish service at a
certain rate, provided the subscrib-
ers furnished their own instruments,
the company was held nevertheless
entitled, if it so desired, to furnish
its instruments making no extra
charge therefor. Wright v. Glen
Telephone Co., 112 App. Div. 745,
99 N. Y. S. 85 (1906).
UNIV. OF MICHIGAN,
APR 16 1912
[706]
UNIVERSITY OF MICHIGAN
3 9015 07377 6596