aiornf U IGaui irljonl Eibtary Cornell University Library KF 2093. W98 1909 Cases on public service companies, pubil 3 1924 019 354 913 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019354913 Copyright, 190S Bt Joseph Henky Bealg, Jb. Copyright, 1909 Bt Bbuce Wtman THE UNIVEESITT PEES8, OAMBBIDOE, XT. S.*. OCT 1938 -^. PREFACE This collection of cases is designed to show the development of the law of public service in its most modern forms : the public carriers, the public works, and the other public utilities. The distinction between the private callings — the rule — and the ^ public callings — the exception — is a striking feature of the law governing business relations as it is to-day. The causes of the division are economic rather than strictly legal. Free competition, the very basis of the modern social organization, superseded almost completely medieval restrictions, but it has just come to be recognized that the process of free competition fails in some cases to secure the public good, and it has been reluctantly admitted that some control is necessary bver such lines of indus- try as are affected with a public interest. At this point the problem of public callings becomes a legal one. No one can carefully study the authorities on this subject without feeling that we are just entering upon a great and impor- tant development of the common law. What branches of industry will eventually be of such public importance as to be included in the category of public callings, and to what extent the control of the coui-ts wiU be carried in the effort to solve by law the modem economic problems, it would be rash to predict. Enormous business combinations, virtual monopolization of the necessaries of life, the strife of labor and capital, now the concern of the economist and the statesman, may prove susceptible of legal con- trol through the doctrines of the law of public callings. These doctrines are not yet clearly defined. General rules, to be sure, IV PREFACE. have been established, but details have not been worked out by the courts ; and upon the successful working out of these details depends to a large extent the future economic organization of the country. Only if the courts can adequately control the public service companies in all contingencies may the business of these companies be left in private hands. As a result of the present state of the law it has seemed essen- tial to bring together examples of every sort of public calling. Here will be found decisions concerning coaches and ships, the turnpike and the toll-bridge, the railway and the tram, the inn and the warehouse, the telegraph and the telephone, the purvey- ors of light and water. Materials are thus provided for analogy and comparison, and for a careful study of the rights and duties of persons engaged in every sort of public employment. When this preface was first written in 1902 this unity of the public service law had not been generally perceived ; now it is a recognized branch of the law, recognized by all as of overshadow- ing importance. An impressive instance of this growth in the law is the number of fundamental cases which the last few years have produced that have been added to this new edition. This collection is intended primarily for use as a basis for class discussion in a law school, and the choice and arrangement of cases have been directed to that end. Cases have been abridged with freedom, but the fact has always been indicated. The anno- tation is not exhaustive, but is intended to draw the attention of students to a variety of cases, valuable for purposes of study, which bear upon the subjects discussed in the text. The subdi- visions are kept few and general so as to leave the student to formulate the law for himself without the interference of the editor. B.W. TABLE OF CONTENTS CHAPTER I Pase Nattjke of Public Calling ^.... 1 CHAPTER n Extent of Public Profession 75 CHAPTER III Obligations of Public Duty 128 CHAPTER IV Excuses foe Refusing Service 220 CHAPTER V Provision of Adequate Facilities 279 CHAPTER VI Regulation of the Service 344 CHAPTER VII Determination of Reasonable Rates 411 CHAPTER Vni Prohibition of Unjust Discrimination 483 TABLE OF CASES. Allen V. Sackrider Allnutt V. Inglis Anonymous Page 78 2 02 127 Atchisdn T. & S. F. R. R. v. Denver & New Orleans R. R. 201 Atlantic City v. Fonsler 81 Atlantic C. L. R. R. Co. v. North Caro- lina C. C. 297 Atlantic C. L. R. R. Co. v. Florida 432 Atwater v. Sawyer 233 Ayres v. Chicago & Northwestern Ry. 299 B Bailey v. Fayette Gas-Fuel Co. 545 Ballentine v. North Missouri R. R. Co. 298 Barrett v. Market St. Ry. 413 Bennett v. Button 197 Billings M. & T. Co. v. Rocky Moun- tams B. T. Co. 272 Blumenthal ». Southern Ry. Co. 241 Bradshaw v. South Boston R. R. Co. Brass v. North Dakota Breddon v. Great Northern Bridal Veil Lumbering Co. v. 371 61 Co. 285 Johnson 91 Ry. Browne v. Brandt 281 Brown v. Memphis & C. R. R. 230 Brown v. Western Union Tel. Co. 393 Biymer v. Butler Water Co. 449 Bush Electric, etc. Co. v. Consolidated, etc.. Subway Co. 17 Bussey v. Mississippi V. T. Co. Ill Butchers' & D. Stock-Yard Co. v. Louisville & N. R. R. 338 Canada Southern Ry. Co. v. Inter- national Bridge Co. 434 Central E. Co. et al. v. People 275 Chesapeake & D. C. Co. v. Gring 194 Page Chesapeake & Potomac Tel. Co. v. Baltunore & O. Tel. Co. 261 Chicago, B. & Q. R. Co. v. Gustin 405 Chicago & Northwestern Ry. v. Wil- liams 227 Chicago & Northwestern R. R. v. People 319 Chicago, M. & St. P. R. R. v. Wabash, St. L. & P. R. R. 267 Cincinnati, H. etc. R. R. v. BowUng Green 27 Cincinnati, New Orl. & Tex. Pac. R. R. V. Interstate Commerce Com. 557 City of Mobile v. BienviUe Water Sup- ply Co. 550 Coe V. Louisville & Nashville R. R. 327 Commonwealth v. Delaware & H. C. C. & P. C. Co. 638 Concord & M. R. R. ». Boston & M. R. R. 315 Cotting V. Goddard 435 Coup V. Wabash St. L. & Pa. Ry. Co. 107 Covington Stock- Yards Co. v. Keith 333 Cross V. Andrews 128 Crouch V. Amett 119 Cumberland Tel. & Tel. Co. v. Kelley 289 D Daniel v. New Jersey St. Ry. Co. 357 Dickerman v. St. Paul D. Co. 359 Dittmar v. New Braunfels 521 Doyle V. Walker 280 Dunn V. Western Union Telegraph Co. 34 E East O. St. Ry. Co. v. Godola 11 Evergreen C. Assn. v. Beecher 12 Express Cases 160 F Farley v. Lavary 117 Famsworth v. Groot 285 Faucher v. Wilson 85 Fay V. Pacific I. Co. 86 VIll TABLE OF CASES. Page Fell V. Knight 279 Ferguson v. Metropolitan G. L. Co. 140 Fitchburg R. R. v. Gage 483 Fleming v. Montgomery L. Co 134 Forsee v. Alabama Great Southern R. R. 366 Frazier & Cooper v. Kansas C. &c. Ry. Co. 145 Fuller V. Coats 351 Fimderburg v. Augusta & Aiken Ry. Co. 411 G Gardner v. Providence Tel. Co. 282 Gibson v. Silva 82 Gisbron v. Hurst 75 Gloucester Water Supply v. Gloucester 447 Godwin v. Carolina Tel. & Telegraph Co. 234 Goodridge v. Union Pac. Ry. Co. 494 Gordon v. Hutchinson 76 Gould V. Edison Electric Co. 424 Griffin v. Goldsboro Water Co. 536 Griswold V. Webb 174 Harrison v. Knoxville Water Co. 388 Hart V. Southern Ry. Co. 360 Haugen v. Albina L. & W. Co. 95 Hays V. The Pennsylvania Co. 499 Hoover v. Pennsylvania R. R. Co. 543 Houston & T. C. Ry. Co. ». Storey 457 Howth V. Franklin 89 Hurley, Administrator v. Eddingfield 74 Illinois Cent. R. R. v. Interstate Com- merce Comm. 455 Ilwaco R. & N. Co. v. Oregon Short L. & U. N. Ry. 211 Ingate v. Chnstie 80 Inter-Ocean Pub. Co. ». Associated Press 41 Interstate Commerce Comm. v. Ala- bama Midland Ry. 595 Interstate Commerce Commission v. Bait. & O. R. R. 525 Interstate Commerce Comm. v. Del- aware, Lack. & W. Ry. Co. 432 Interstate Commerce Com. v. Detroit, Grand Haven etc. R. R. 593 Jackson v. Rogers Jencks v. Coleman 2 220 Page Johnson v. Dominion Express Co. 274 V. Midland Ry. Co. 103 Jones V. Newport N. & M. V. Co. 317 V. North G. E. Co. 30 K Kansas Pac. R. R. Co. v. Nichols, K. & Co. 105 Kates V. Atlanta Baggage & Cab Co. 184 Kennebec Water Co. v. Waterville 479 King V. Luelin 128 Knoxville v. Knoxville W. Co. 481 Ladd V. Boston 547 Lamond v. Gordon Hotels 131 Lawrence v. Pullman Palace Car Co. 143 Levi V. Lynn & Boston R. R. Co. 106 Little Rock & M. R. R. v. St. Louis S. W. Ry. 213 Long Branch Commission v. Tintem M. W. Co. 456 Lough V. Outerbridge 511 LouisviUe, C. & C. R. R. Co. i;. Chap- pell, etc. 9 Louisville Gas Co. v. Dulaney & Alex- ander '- 422 Louisville- & N. R. R. Co. v. Central Stock Yards Co. 342 Louisville Water Co. v. Wiemer 195 Lumbard v. Steamy 4 M Majestic C. & C. Co. v. lUmois C. R. R. Co. 295 Mays V. Seaboard Air Line Ry. 343 McDuffee v. Portland & Rochester R. R. 153 Meancho v. Ward 503 Messenger v. Pennsylvania R. R. Co. 486 Metropolitan Trust Co. «. Houston, etc. R. R. 467 Michigan Cent. R. R. Co. v. Pere Mar- quette R. R. Co. 271 Michigan Cent. R. R. Co. v. Smithson 296 Milwaukee El. Ry. etc. Co. v. Mil- waukee 459 Minneapolis v. St. Louis R. R. Co. 477 Mobile & O. R. R. v. People 306 Montana Union Ry. v. Langlois 178 Montgomery v. Buffalo Ry. Co. 356 Munn V. Illinois 44 N Narin v. Kentucky H. Co. 240 News Publishing Co. v. Southern Rv Co. et al. TABLE OF CASES. IX Page Nicholson v. N. Y. City Ry. Co. 137 Northern Pac. R. R. v. Washington 307 O Old Colony R. R. o. Tripp 169 Ome V. Barstow 409 Owensboro Gaslight Co. v. Hilder- brand 382 Owens V. Macon & B. R. R. Co 239 Ozark BeU Tel. Co. v. Springfield 478 Pate V. Henry 242 Paterson Gas Light Co. v. Brady 6 Pearson v. Duane 226 Pennington v. Philadelphia, etc. R. R. 379 Pennsylvania C. Co. v. Delaware, etc. Canal Co. 344 Pennsylvania R. R. Co. v. Philadelphia County 480 People V. Budd SI V. Chicago & A. R. R. 302 ex rel v. Hudson R. Tel. Co. 257 V. Manhattan Gas Light Co. 373 V. New York C. R. R. 248 Philadelphia W. & B. R. R. v. Rice 369 Phipps t). London & North Western 553 407 348 350 254 .Ry- Page Shepard v. Gold Stock & Tel. Co. 40 Silkman v. Water Commissioners 492 Slosser v. Salt River V. C. Co. 98 Smith V. Capital Gas Co, 430 470 H. & Power Co. 427 Board of R. R. 441 Interstate Com. 218 Phillips V. Southern Railway Piatt V. Lecocq Pope V. Hall Portland N. Gas & O. Co. v. State Public S. Corp. v. American L. Co. 135 Pullman Co. v. Krauss 236 R Ratcliff V. Wichita Union Stockyards Co. 67 R«ese V. Pennsylvania R. R. 362 Regins v. Sprague 232 Rex V. Ivens 129 Robertson & Co. v. Kennedy 84 Robinson v. Baltimore & O. R. R. Co. 147 Root V. Long Island R. R. 508 S St. Louis, I. M. & Southern Ry. Co. v. Renfroe 292 Savannah & O. C. Co. v. Shuman 121 Sammons v. Kearney P. & I. Co. 25 Seasongood». Tennessee & Ohio Transp. Co. 196 Sears v. Eastern R. R. 401 Searles v. Mann B. C. Co. 283 Self V. Dun & Brown 83 Smyth V. Ames Snell V. Clinton El. L Southern Pac. Co. v, Comm. Southern Pac. Co. v. Comm. State ex rel. v. Butte City W. Co. 136 State V. Campbell 377 V. Cincmnati, New Orleans, etc. Ry. 533 State ex rel v. Citizens' Telephone Co. 36 ex rel. v. Dodge City Ry. 123 V. Edwards 21 ex rel. v. Consumers G. T. Co. 244 State ex rel. Crandall v. Chicago B. & Q. R. R. Co. 293 State V. Jacksonville Terminal Co. 69 V. Nebraska Tel. Co. 374 V. Steele 189 ex rel. v. Portland N. Gas & O. Co. 264 State ex rel. v. Texas, etc. R. R. 549 State ex rel. v. The Sedalia G. L. Co. 383 Steenerson v. Great Northern Ry. 453 Texas & Pac. Ry. v. Interstate Comm. Comm. 564 Thompson v. Matthews 243 Tiemey v. N. Y. Central & H. R. R. R. 287 Toledo, A. A. & N. M. Ry. Co. v. Penn- sylvania Co. 251 318J^ Tons of Coal 495 Transportation Co. v. Standard Oil Co. 71 Tunnel & S. v. Pettijohn 104 Turner v. North Carolina R. R. Co. 225 U United States v. American W. W. Co. 270 V. Chicago & A. Ry. Co. 518 ex rel. v. Delaware & H. R. R. Co. 277 W Watauga W. Co. v. Wolfe 386 Weld V. Gas & E. L. Comm. 125 Western Union Tel. Co. v. Call Pub- lishing Co. 493 TABLE OF CASES. Page Western Union Tel. Co. ». Dozier 144 V. Frotler 116 V. McGuire 381 Western Union Telegraph Co. v. Neel 397 Wight V. United States 591 WiUcQX et al. v. Consolidated Gas Co. 457 Williams v. Mutual Gas Co. 415 Page Weymouth v. Penobscot Log Driving Co. . 13 Wheeler v. Northern Colorado Inigar tion Co. 417 Zacheiy i. MobUe & 0. R. R. Co. 238 CASES ON PUBLIC SEEYICE COMPANIES. CHAPTER I. NATURE OF PUBLIC CALLING. ANONYMOUS. Common Pleas, 1441. [Y. £^ \9 H. VI. 49, pi. 5.] Wkit of Trespass on the case against one R., a horse doctor, to the effect that the defendant assumed to him at London to cure his horse of a certain trouble, and that he then so negligently and carelessly gave the medicines, etc., that the horse, etc. . . . Paston, J. You have not shown that he is common surgeon to cure such horses, and, therefore, although he has killed your horse by bis medicines you shall have no action against him without an assumpsit. ANONYMOUS. King's Bench, 1450. [Keilway, 50, pi. i.] Note, That it was agreed by the court, that where a smith declines to shoe my horse, or an innkeeper refuses to give me entertainment at his inn, I shall have an action on the case, notwithstanding no act is done ; for it does not sound in covenant. . . . Note, That in this case a man shall have no action against innkeeper, but shall make complaint to the ruler, by 5 Ed. IV. 2 ; contra, 14 Hen. VII. 22. ALLNUTT V. INGLIS. JACKSON V. ROGERS. King's Bench, 1683. [2 Shower, 327.] Action on the ease, for that whereas the defendant is a common car- rier from London to Lymmington et abinde retrorsum, and setting it forth as the custom of England, that he is bound to carry goods, and that the plaintiff brought him such a pack, he refused to carry them, though offered his hire. And held by Jefferies, C. J., that the action is maintainable, as well as it is against an innkeeper^ for refusing a guest, or a smith on the road who refuses to shoe my horse, being tendered satisfaction for the same. Note, That it was alleged and proved that he had convenience to carry the same ; and the plaintiff had a verdict. ALLNUTT V. INGLIS. King's Bench, 1810. [12 East, 527.] Lord Ellenborough, C. J.'' The question on this record is whether the London Dock Company have a right to insist upon receiving wines into their" warehouses for a hire and reward arbitrary and at their will and pleasure, or whether they were bound to receive them there for a reasonable reward onlj'. There is no doubt that the general principle is favored both in law and justice, that everj' man may fix what price he pleases upon his own property or the use of it : but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will 1 " Because he has made profession of a trade which is for the puhlic good, and has thereby exposed and vested an interest of himself in all the king's subjects that will em- ploy him in the way of his trade." Holt, C. J., in Lane v. Cotton, 12 Mod. 484. Eix ^ This opinion only is given ; it sufficiently states the case. — Ed. ALLNITTT V. INGLIS. 3 take the benefit of that nionopol}', he must as an equivalent perform the dutj' attached to it on reasonable terms. The question then is, whether circumstanced as this company is by the combination of the warehous- ing act with the act by wliit'h they were originally constituted, and with the actually existing state of things in the port of London, whereby' they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing? And according to him, wherever the accident of time easts upon a party the benefit of having a legal monopoly of landing goods in a public port, 'as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable com- pensation onlj' for the use of the wharf. Lord Hale puts the case either way ; where the king or a subject have a public wharf to which all persons must come who come to that port to unlade their goods, either " because they are the wharfs only licensed by the queen, or because there is no other wharf in that port, as it may fall out : in that case (he says) there cannot be taken arbitrary and excessive duties for cranage, wharfage, &c. : neither can they be enhanced to an immoderate rate ; but the duties must be reasonable and moderate, though settled bj- the king's license or charter." And then he assigns this reason, " for now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only." Then were the company's warehouses juris privati only at this time? The legislature had said that these goods should onlj- be warehoused there ; and the act was passed not merel}- for the benefit of the company, but for the good of trade. The first clause (43 G. 3, c. 132, the general warehousing act) says that it would greatly' tend to the encouragement of the trade and commerce of G. B., and to the accommodation of merchants and others, if certain goods were permitted to be entered and landed and secured in the port of London without pa3-ment of duties at the time of the first entrj' : and then it says that it shall be lawful for the im- porter of certain goods enumerated in table A. to secure the same in the West India dock warehouses : and then by s. 2 other goods enumer- ated in table B. may in like manner be secured in the London dock warehouses. And there are no other places at present lawfully author- ized for the warehousing of wines (such as were imported in this case) except these warehouses within the London dock premises, or such others as are in the hands of this company. But if those other ware- houses were licensed in other hands, it would not cease to be a monopoly of the privilege of bonding there, if the right of the public were still narrowed and restricted to bond their goods in those particular ware- ' houses, though they might be in the hands of one or two others besides the company's. Here then the company's warehouses were invested with the monopoly of a public privilege, and therefore thej' must by law confine themselves to take reasonable rates for the use of them for that purpose. If the crown should hereafter think it advisable to extend the privilege more generally to other persons and places, so far as that 4 LUMBAKD V. STEARNS. the public will not be restrained from exercising a choice of ware- houses for the purpose, the company may be enfranchised from the re- striction which attaches upon a monopoly : but at present, while the public are so restricted to warehouse their goods with them for^ the purpose of bonding, they must submit to that restriction ; and it is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid down by Lord' Hale in the passage referred to, which includes the good sense as well as the law of the subject. Whether the company be bound to continue to apply their warehouses to this purpose may be a nice question, and I will not say to what extent it may go ; but as long as their warehouses are the only places which can be resorted to for this purpose, they are bound to let the trade have the use of them for a reasonable hire and reward.^ LUMBARD V. STEARNS. Supreme Court of Massachusetts, 1849. [4 Cush. 60.] Shaw, C. J. This bill was originally brought by the plaintiff as an owner of mills on the lower part of Town brook, in Springfield, against the defendant Stearns, alleging that by means of an aqueduct, on his own land, he had diverted some portion of the water of two springs, being some of the sources of said brook, and thereby diminished the plaintiff's water power. Whilst this bill was pending and before answer filed, an act was passed by the legislature on the 10th of Ma}-, 1848, {St. 1848, c. 303,) entitled "An act to incorporate the Springfield Aqueduct Company." This act authorized the taking of the springs before mentioned of Stearns, by purchase, and with certain other springs, the laying of an aqueduct for the purpose, expressed in the act, of supplying the village of Springfield with pure water. The act contains the provisions usual in such acts, for forming a company and raising a capital ; for taking springs and lands, paying all damages ; for digging up roads and ways ; providing hydrants ; for a gratuitous supply of water, in case of fire ; a penalty for corrupting the water; and vesting certain superintending j powers in the board of health of Springfield, and the county commis- sioners of Hampden, respectively. After the passage of this act a 1 Grose, Le Blanc, and Baylet, JJ., delivered concurring opinions Ed. LUMBAKD V. STEARNS. 5 supplemental bill was filed, making the aqueduct company a partj', and insisting on the same grounds against them, as stated in the original bill. It is contended that this act is unconstitutional and void, because it in effect authorizes the corporation to take private rights of property for a use which is not a public one, and, therefore, not within the au- thority of the legislature, even thougli provision is therein inade for a compensation for any such damage. It may be very questionable, whether the plaintiff, taking the use of the brook for a mill power, does not take it subject to the reasonable use of all proprietors above, in or near whose premises it passes, for domestic purposes, for such ordi- nary trades as require the use of water, such as tanning, bleaching, dyeing, and the like, and, also for the extinguishment of fires. If such be the right of the inhabitants to the use of the water, it may be a question, whether it is a greater encroachment on the plaintiff's rights, to take water by conduits and hydrants, than by buckets and engines- But as this right may involve a question of fact, which this case has not reached, in its present stage, we lay no stress on this consideration, but merely, suggest it in passing. But we can perceive no ground, on which to sustain the argument, that this act does not declare a public use. It is so expressed in its title, and in the first enacting clause, and the entire act is conformable to this view. The supply of a large number of inhabitants with pure water is a public purpose. But it is urged, as an objection to the con- stitutionality of the act, that there is ho express provision therein re- quiring the corporation to supply all families and persons who should apply for water, on reasonable terms; that they may act capriciously and oppressively ; and that by furnishing some -houses and lots, and refusing a supply to 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 pub- lic duties required bj' it. When an individual or a corporation is guilty of a breach of public duty, by misfeasance or nonfeasance, and the law has provided no other specific punishment for the breach, an indictment will lie. Perhaps also, in a suitable case, a process to revoke and annul the franchise might be maintained. But it is the less important to de- termine this question, because this charter is subject to the provision in the Eev. Sts. c. 44, § 23 ; b}' which it is competent for the legislature to make such alterations and amendments, as more eflFectually to carry into efiiect all the purposes of the act. The court are of opinion that this act is not open to the objections made to it, and that it is not unconstitutional. Bill dismissed. PATEKSON GAS LIGHT CO. V. BKADY. PATERSON GAS LIGHT CO. v. BRADY. Supreme Court of New Jersey, 1858. [27 N. J. L. 245.] Elmer, J. The question arises in this case, whether the Patersop Gas Light Company was bound, upon general principles, or as a duty imposed upon them by their charter, to furnish gas to all buildings on the lines of their main pipes, upon the applicants therefor agreeing to pay the fixed price, and to comply with such reasonable regulations as the company had established, as the court held in their charge, and as is assumed in the plaintiff's state of demand, and was insisted on in the argument before the court. That no such duty arises out of the mere facts that the company made gas, laid pipes in the streets, and actually furnished it to many persons, may be safely assumed. Inn-keepers and common carriers are bound to receive all who properly apply to them, but this is a duty peculiar to them. I fully concur with what is said by Judge Bronson, delivering the opinion of the court in Wells v. Steam Nav. Co., 2 Comst. 209. "Other bailees and persons engaged in other emploj-- ments are not, like common carriers and inn-keepers, bound to accept employment when offered ; nor, like them, tied down to a reasonable reward for their services. They are at liberty to demand an unreason- able price before thej' will undertake anj- work or trust, or to reject employment altogether." And see Redfield on Railways, 293-94, and note. But the court, in the charge, rested this duty on the terms of the act of incorporation. The language is, "they were incorporated with the special powers of their charter for the purpose of lighting the streets, buildings, manufactories, and other places in this city, not such par- ticular streets, buildings, and mills as the caprice of their stockholders or officers may elect." Upon looking into the charter, (Acts of 1825, p. 102,) it appears to be simply an act of incorporation, giving the company "power and authority to manufacture, make, and sell gas, for the purpose of light- ing the streets, buildings, manufactories, and other places situate in the said town of Paterson," and for that purpose to purchase, take, and hold real estate, and to make contracts ; provided, that the said real estate shall not exceed what may be absolutely necessary to effect the purposes of said company, and that no public or private land shall be dug into, or in any way injured or defaced, without permission beinf first obtained in writing from the owner or owners thereof. No mouop- PATEESON GAS LIGHT CO. V. BEADY. 7 oly or special privileges are granted, except that the company is enti- tled to recover double damages for any wilful injury done to the pipes or other works. The state of demand docs not assume, nor was it insisted on in the argument, that the charter imposes upon the company the duty of sup- plying gas to all the town, but onl3' to persons having buildings on the line of their pipes. In my opinion it imposes no dutj' of either descrip- tion, but simply empowers the incorporation to do what private indi- viduals might have done without any charter. There is nothing in the act indicating anj' intention to impose any duty that would not have devolved on an individual erecting gas works ; nor is there anj'thing to prevent another company, or any individual who can obtain the per- mission of the citj' and owners of the land, from setting up a rival manufacture, and placing pipes alongside of those beionging to the company. Most of the acts incorporating gas companies do, what this does not, authorize the company, in express terms, to place their pipes in the public streets ; but I am not aware that any of them impose the express duty of furnishing gas to all the persons demanding it, or to any of them. The Paterson company- is authorized to make and sell gas, which, in the absence of anj- indication to the contrarj-, implies that they ma}- fix their own price, and choose their own customers, like any other manufacturer. If the duty of furnishing gas to those requir- ing it was meant to be imposed, it would doubtless be expressed, and not be left to mere inference. If it is to be inferred, what is to be the limit ? Wky have not all the inhabitants of the town the same right to demand it as those having buildings on the streets along which the pipes are placed ? The charter sets forth the general purpose of light- ing all the streets and buildings, and the court below seems to have held that the company has no choice in the matter. But what company in the state, or elsewhere, could have ventured to assume such a respon- sibility as that? The language of the charter is throughout permissive, and not com- pulsory. The company may organize, may make and sell gas or not, at their pleasure ; and I see no more reason to hold that the duty of doing so is meant to be imperative, than to hold that other companies incorporated to carr}- on manufactures, or to do any other business, are bound to serve the public any further than they find it to be their interest to do so. It was earnestly insisted, on the argument, that the commun- ity have a great interest in the use of gas, and that companies set up to furnish it ought to be treated like inn-keepers and common carriers, and that, if no precedent can be found for such a decision, this court ought to make one. But that there is no authority for so holding in England or America, where companies have been so long incorporated for supplying water and gas to the inhabitants of numerous towns and cities, affords a strong presumption that there is no principle of law upon which it can be supported. 8 PATEKSON GAS LIGHT CO. V. BRADY. Had the plaintiff averred that the company had held out to the per- sons occupying buildings on the streets along which the pipes are laid, that it was ready to furnish gas to those providing the requisite fixtures and accepting the prescribed terms, and that he had done triis, and that in consequence of a breach of a contract, thus or otherwise entered into, he had suffered damages, the case would have been very different. But this is not the nature of his claim. He claimed and has recovered damages and it would seem exemplary damages, simply on the ground that it was the duty of the company to furnish gas on the streets where the pipes are laid, to all persons demanding it, and offering to pay a reasonable price. Assuming this principle, it was left to the jury to say whether one of the rules of the company was reason- able. Being of opinion that the state of demand discloses no good cause of action, and that the court erred in the charge, I think the judg- ment must be reversed. There is also another error in the proceedings. It appears that, before the hearing of the appeal, the court discharged the jurors in atten- dance from two townships, without drawing them, as required by the 28th section of the act relative to juries. "Nix. Dig. 385. When the appeal was called, a jury was demanded, and the sheriff having returned a panel, the defendant below objected, and the objection being over- ruled, the jury was sworn. The correctness of this ruling can onlj- be maintained bj' holding that when the sheriff returns a panel in the Court of Common Pleas for the trial of an appeal, as required b}' the 48th section of the small cause act, he is not required to draw them from the box, but may return a special panel. The act relative to juries, whether considered as contemporaneous with the small cause act, or as subsequent, according to its actual date, applies to all jury cases not specially" excepted, and includes appeals. The language is unqualified, and any other construction would be inconvenient, if not impracticable. The uniform practice has been to draw jurors in such cases. To depart from this practice will be to introduce a needless exception from the general policy of the law, designed to secure an impartial jurj'. Potts, J., concurred. LOUISVILLE, CINCINNATI f V. ILLINOIS. they deemed necessary for the common good and the security of life and Ijioperty. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, ex- cept such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibi- tions of the constitutions. When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he miglit retain. "A body politic," as aptly de- fined in the preamble of the Constitution of Massachusetts, " is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed liy certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143 ; but it does author- ize tlie establishment of laws requiring each citizen to so conduct him- self and so use his own property, as not nnnecessarilj' to injure another. Tliis is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non Imdas. From this source come the police powers, which, as was said b^* Mr. Chief Justice Taney in the License Cases, 5 How. 583, "are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things." Under these powers the government regulates the conduct of its citizens one towards another, and tlie manner in which each shall use his own propertj-, when such regulation becomes necessary for the public good. In their exercise it has been customarj'in England from time immemorial, and in this coun- try from its first colonization, to regulate ferries, common carriers, hackraen, bakers, millers, wharfingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accom- modations furnished, and articles sold. To this da^-, statutes are to be found in many of the States upon some or all these subjects ; and we think it has never yet been successfully contended that such legisla- tion came within any of the constitutional prohibitions against inter- ference with private property. With the Fifth Amendment in force, Congress, in 1820, conferred power upon the city of Washington " to regulate ... the rates of wharfage at private wharves, ... the sweep- ing of chimneys, and to fix the rates of fees therefor, . . . and the weight and quality of bread," 3 Stat. 587, sect. 7; and, in 1848, "to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoB- MUNN V. ILLINOIS. 47 ers, carmen, and draj'men, and the rates of commission of auctioneers," 9 Stat. 224, sect. 2. ' From this it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulat- ing the use, or even the price of the use, of private propertj- neces- sarily deprived an owner of his propertj- without due process of law. Under some circumstances the}- may, but not under all. Tlie amend- ment does not change the law in tliis particular : it simply prevents the States from doing that which will operate as such a deprivation. This brings us to inquire as to the principles upon which this power of regulation rests. In order that we maj' 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 propertj' 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 j^ears ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled bj- the public for the common good, to the extent of the interest he has thus created. He maj' withdraw his grant by discontinuing the use ; but, so long as he maintains the use, he must submit to the control.' Enough has alreadj- been said to show that, when private property is devoted to a public use, it is subject to public regulation. It remains only to ascertain whether the warehouses of these plaintiffs in error, and the business which is carried on there, come within the operation of this principle. For this purpose we accept as true the statements of fact contained in the elaborate brief of one of the counsel of the plaintiffs in error. From these it appears that "the great producing region of the West and North-west sends its grain by water and rail to Chicago, where the greater part of it is shipped by vessel for transportation to the sea- board by the Great Lakes, and some of it is forwarded by railwaj- to the Eastern ports. . . . Vessels, to some extent, are loaded in the Chicago harbor, and sailed through the St. Lawrence directly to Europe. . . . The quantity [of grain] received in Chicago has made it the greatest grain market in the world. This business has created a demand for means by which the immense quantity of grain can be handled or stored, and these have been found in grain warehouses, which are commonly called elevators, because the grain is elevated from the boat or car, by machinerj' operated by steam, into the bins prepared for its reception, and elevated from the bins, by a like process, into the vessel or car which is to carrj- it on. . . . In this way the 48 MUNN V. ILLINOIS. largest traffic between the citizens of the country north and west of Chicago and the citizens of the countr^v lying on the Atlantic coast north of Washington is in grain which passes through the elevators of Chicago. In this way the trade in grain is carried on by the inhabi- tants of seven or eight of the great States of the West with four or five of the States lying on the sea-shore, and forms the largest part of inter-state commerce in these States. The grain warehouses or ele- vators in Chicago are immense structures, holding from 300,000 to 1,000,000 bushels at one time, according to size. They are divided into bins of large capacity and great strength. . . . They are located with the river harbor on one side and the railway tracks on the other ; and the grain is run through them fi-om car to vessel, or boat to ear, as may be demanded in the course of business. It has been found im- possible to preserve each owner's grain separate, and this has given rise to a S3'stem of inspection and grading, by which the grain of dif- ferent owners is mixed, and receipts issued for the number of bushels which are negotiable, and redeemable in like kind, upon demand. This mode of conducting the business was inaugurated more than twenty j'ears ago, and has grown to immense proportions. The railways have found it impracticable to own such elevators, and public policy forbids the transaction of such business bj' the carrier ; the ownership has, therefore, been by private individuals, who have embarked their capi- tal and devoted their industry to such business as a private pursuit." In this connection it must also be borne in mind that, although in 1874 there were in Chicago fourteen warehouses adapted to this par- ticular business, and owned by about thirty persons, nine business firms controlled them, and that the prices charged and received for storage were such " as have been from year to year agreed upon and established by the different elevators or warehouses in the city of Chicago, and which rates have been annually published in one or more newspapers printed in said city, in the month of January in each year, as the established rates for the j-ear then next ensuing such publication." Thus it is apparent that all the elevating facilities through which these vast productions "of seven or eight great States of the West" must pass on the way "to four or five of the States on the ^eashore" may be a " virtual " monopoly. Under such circumstances it is difficult to see why, if the common carrier,* or the miller, or the ferryman, or the innkeeper, or the wharf- inger, or the baker, or the cartraan, or the hackney-coachman, pursues a public employment and exercises " a sort of public office," these plaintiffs in error do not. They stand, to use again the language of tlieir counsel, in the very "gateway of commerce," and take toll from all who pass. Their business most certainly " tends to a common charge, and is become a thing of public interest and use." Every bushel of grain for its passage " pays a toll, which is a common charge," and, therefore, according to Lord Hale, every such warehouseman "ought to be under public regulatipn, viz., that he . . . tak'i bnt reasonable toll." MUNN V. ILLINOIS. 49 Certainly, if any business can be clothed "with a public interest, and cease to be juris privati onlj-," this has been. It may not be made so by the operation of the Constitution of Illinois or this statute, but it is by the facts. ^ We also are not permitted to overlook the fact that, for some reason, the people of Illinois, when they revised their Constitution in 1870, saw fit to make it the duty of the general assembly to pass laws " for the protection of producers, shippers, and receivers of grain and prod- uce," art. 13, sect. 7 ; and by sect. 5 of the same article, to require all railroad companies receiving and transporting grain in bulk or other- wise to deliver the same at any elevator to which it might be consigned, that could be reached by any track that was or could be used by such compan3-, and that all railroad companies should permit connections to be made with their tracks, so that any public warehouse, &c., might be reached bj- the cars on their railroads. This indicates verj- clearlj- that during the twenty years in which this peculiar business had been assuming its present "immense proportions," something had occurred which led the whole body of the people to suppose that remedies such as are usually emploj-ed to prevent abuses by virtual monopolies might not be inappropriate here. For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actu- ally did exist when the statute now under consideration was passed. For us the question is one of power, not of expediencj'. If no state of circumstances could exist to justify such a statute, then we maj- declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the legis- lature is the exclusive judge. Neither is it a matter of any moment that no precedent can be found for a statute preciselj' like this. It is conceded that the busi- ness is one of recent origin, that its growth has been rapid, and that it is already of great importance. And it must also be conceded that it is a business in which the whole public has a direct and positive interest. It presents, therefore, a case for the application of a long-known and well-established principle in social science, and this statute simply ex- tends the law so as to meet this new development of commercial prog- ress. There is no attempt to compel these owners to grant the public an interest in their property, but to declare their obligations, if they use it in this particular manner. It matters not in this case that these plaintiffs in error had built their warehouses and e^ablished their business before the regulations complained of were adopted. What they did was from the beginning subject to the power of the body politic to require them to conform to such regulations as might be established by the proper authorities for the common good. They entered upon their business and provided themselves with the means to carry it on subject to this condition. If they did not' wish to submit themselves to such interference, thej- should 4 50 MUXN V. ILLINOIS. not have clothed the public with an interest in their concerns. The same principle applies to them that does to the proprietor of a hacknej-- carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinances because he had purchased his horses and carriage and established his business before the statute or the ordinance was adopted. It is insisted, however, that the owner of propert}' is entitled to a reasonable compensation for its use, even though it be clothed with a public interest, and that what is reasonable is a judicial and not a legislative question. As has already been shown, the practice has been otherwise. In countries where the common law prevails, it has been customary' from time immemorial for the legislature to declare what shall be a reason- able compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum bej'ond which anj' charge made would be unreasonable. Undoubtedlj', in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But tins is because the legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. But a mere common-law I'egulation of trade or business maj' be changed by statute. A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of munic- ipal law, and is no more sacred than any other. Rights of property which have been created hy the common law cannot be taken away without due process ; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great oflBce of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances. To limit the rate of charge for services rendered in a public employment, or for the nse of the property in which the public has an interest, is only changing a regulation which existed before. It establishes no new principle in the law, but only gives a new effect to an old one. We know that tliis is a i)ower which may be abused ; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts. After what has already been said, it is unnecessary to refer at length to the effect of the other provision of the Fourteenth Amendment which is relied upon, viz., that no State shall " deny to any person within its PEOPLE V. BUDD. 51 jurisdiction the equal protection of the laws." Certainlj', it cannot be claimed that this prevents the State from regulating the fares of hack- men or the charges of draymen in Chicago, unless it does the same thing in every other place within its jurisdiction. But, as has been seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what cannot be done in the one case in this partijcular cannot be done in the other. Judgment affirmed} Mr. Justice Field and Mr. Justice Strong dissented. PEOPLE V. BUDD. Court of Appeals, New Yoke, 1889, [117 N. Y. 1.2] Appeal from judgment of the general term of the Superior Court of the city of Buffalo entered upon an order made December 31, 1888, which affirmed a judgment of a criminal term of said court entered upon a verdict, convicting defendant of a misdemeanor in violating the provisions of the act (chap. 581, Laws of 1888) known as the Elevator Act. The material facts are stated in the opinion. Decided October 15, 1889. Andrews, J. The main question upon this record is whether the legislation fixing the maximum charge for elevating grain, contained in the act (chapter 581, Laws 1888), is valid and constitutional. The act, in its first section, fixes the maximum charge for receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this State at five-eighths of one cent a bushel, and for trimming and shovelling to the leg of the elevator, in the process of handling grain by means of elevators, " lake ves- sels, or propellers, the ocean vessels or steamships, and canal boats," shall, the section declares, only be required to pay the actual cost. The second section makes a violation of the' act a misdemeanor, punishable by fine of not less than $250. The third section gives a civil remedj' to a party injured by a violation of the act. The fourth section excludes from the operation of the act anj' village, town, or city having less than 130,000 population. The defendant, the 1 Compare : Davis v. State, 68 Ala. 58^ Breechbill v. Kandall, 102 Ind. 528 ; Nash V. Paige, 80 Ky. 539 ; Dock Co. v. Garrity, 115 111. 155 ; State v. Edwards, 86 Me. 105 ; U. E. V. Stock Yard Co., 45 N. J. Eq. 50; Eyan v. Terminal Co., 102 Tenn. 119 ; Bai^ rington v. Dock Co., 15 Wash. 175. — Ed. 2 This case is abridged. — Ed. 52 PEOPLE V. BUDD. manager of a stationary elevator in the city of Buffalo, on the 19th day of September, 1888, exacted from the Lehigh Valley Transpor- tation Company, for elevating, raising, and discharging a cargo of corn from a lake propeller at his elevator, the sum of one cent a bushel, and for shoveling to the leg of the elevator the carrier was charged and compelled to pay $4 for each thousand bushels. The shoveling of grain tq the leg of an elevator at the port of Buffalo is now performed, pursuant to an arrangement made since the passage of the act of 1888, by a body of men known as the Shovelers' Union, who pay the elevator $1.75 a thousand bushels for the use of the steaui-suovel, a part of the machinery connected with the elevator, operated by steam, and who for their services, and the expense of the steam-shovel, charge the carrier for each thousand bushels of grain shoveled the sum of $4. The defendant was indicted for a violation of the act of 1888. The indictment contains a single count, charging a violation of the first section in two particulars, viz., in exacting more than the statute rate for elevating the cargo, and exacting more than the actual cost for shoveling the grain to the leg of the elevator. . . . The question is whether the power of the legislature to regulate charges for the use of property, and the rendition of services con- nected with it, depend in every case upon the circumstance that the owner of the property has a legal monopoly or privilege to use the property for the particular purpose, or has some special protection from the government, or some peculiar benefit in the prosecution of his business. Lord Hale, in the treatises De Portibus Maris and De Jure Maris, so largely quoted from in the opinions in the Munn Case, used the language that when private property is " affected with a public interest it ceases to be ju7'is privati only," in assign- ing the reason why ferries and public wharves should be under public regulation, and only reasonable tolls charged. The right to establish a ferry was a franchise, and no man could set up a ferry, although he owned the soil and landing places on both sides of the stream, without a charter from the king, or a prescription time out of mind. The franchise to establish ferries was a royal prerogative, and the grant of the king was necessary to authorize a subject to establish a public ferry, even on his own premises. "When we recur to the origin and purpose of this prerogative, it will be seen that it was vested in the king as a means by which a business in which the whole community were interested could be regulated. In other words, it was simply one mode of exercising a prerogative of government — that is to say, through the sovereign instead of through Parliament — in a matter of public concern. This and similar prerogatives were vested in the king for public purposes, and not for his private ad- vantage or emolument. Lord Kenton in Eorke v. Dayrell, 4 Term R. 410, said: " The prerogatives [of the crown] are not given for the PEOPLE V. BUDD. 53 personal advantage of the king, but they are allowed to exist because they are beneficial to the subject; " and it is said in Chitty on Prerog- atives (page 4) : " The splendor, rights, and power of the crown were attached to it for the benefit of the people, and not for the pri- vate gratification of the subject." And Lord Hale, in one of the passages referred to, in stating the reason why a man may not set up a ferry without a charter from the king, says: " Because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll which is a common charge, and every ferry ought to be under a public regulation." The right to take tolls for wharfage in a public port was also a franchise, and tolls, as Lord Hale says, could not be taken without lawful title by charter or prescription. De Port. Mar. 77. But the king, if be maintained a public wharf, was under the same obligation as a subject to exact only reasonable tolls, nor could the king authorize unreasonable tolls to be taken by a subject. The language of Lord Hale is explicit upon both these points: " If the king or subject have a public wharf into which all persons that come to that port must come to unload their goods, as for the pur- pose, because they are the wharves only licensed by the queen, according to the statute of 1 Eliz. c. 11, or because there is no other wharf in that port, as it may fall out when a port is newly erected, iu that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, passage, etc. Neither can they be enhanced to an immoderate degree, but the duties must be reasonable and moder- ate, though settled by the king's license or charter." The contention that the right to regulate the charges of ferrymen or wharfingers was founded on the fact that tolls could not be taken without the king's license does not seem to us to be sound. It rested on the broader basis of public interest, and the license was the method by which persons exercising these functions were subjected to governmental supervision. The king, in whom the franchise of wharfage was vested as a royal prerogative, was himself, as has been shown, subject to the same rule as the subject, and could only exact reasonable wharfage, nor could he by express license authorize the taking of more. The language of Lord Hale, that private property may be affected by a public interest, cannot justly, we think, be restricted as meaning only property clothed with a public character by special grant or charter of the sovereign. The control which by common law and by statute is exercised over common carriers is conclusive upon the point that the right of the legislature to regu- late the charges for services in connection with' the use of property does not in every case depend upon the question of legal monopoly. From the earliest period of the common law it has been held that common carriers were bound to carry for a reasonable compensation. They were not at liberty to charge whatever sum they pleased, and, even where the price of carriage was fixed by the contract or conven- tion of the parties, the contract was not enforceable beyond the point 134 PEOPLE V. BUDD. of reasonable compensation. From time to time statutes have been enacted in England and in this country fixing the sum which should be charged by carriers for the transportation of passengers and prop- erty, and the validity of such legislation has not been questioned. But the business of common carriers until recent times was conducted almost exclusively by individuals for private emolument, and was open to every one who chose to engage in it. The state conferred no fran- chise, and extended to common carriers no benefit or protection, except that general protection which the law affords to all persons and property within its jurisdiction. The extraordinary obligations imposed upon carriers, and the subjection of the business to public regulation, were based on the character of the business; or, in the language of Sir William Jones, upon the consideration " that the calling is a public employment." Jones, Bailm. App. It is only a public employment in the sense of the language of Lord Hale, that it was " affected with a public interest," and the imposition of the character of a public business upon the business of a common carrier was made because public policy was deemed to require that it should be under public regulation. The principle of the common law, that common carriers must serve the public for a reasonable compensation, became a part of the law of this state, and from the adoption of the constitution has been part of our municipal law. It is competent for the legislature to change the rule of reasonable com- pensation, as the matter was left by the common law, and prescribe a fixed and definite compensation for the services of common carriers. This principle was declared in the Munn Case, which was cited with approval on this point in Sawyer v. Davis, 136 Mass. 239. It accords with the language of Chief Justice Shaw in Com. v. Alger, 7 Cush. 53: " Wherever there is a general right on the part of the public, and a general duty on the part of a land-owner or any other person to respect such right, we think it is competent for the legislature, by a specific enactment, to prescribe a precise, practical rule for declaring, establishing, and securing such right, and enforcing respect for it." The practice of the legislature in this and other states to prescribe a maximum rate for the transportation of persons or property on railroads is justified upon this principle. Where the right of the legislature to regulate the fares or charges on railroads is received by the charter of incorporation, or the charter was granted subject to the general right of alteration or repeal by the legislature, the power of the legislature in such cases to prescribe the rate of compensation is a part of the contract, and the exercise of the power does not depend upon any general legislative authority to regulate the charges of common carriers. But the cases are uniform that where there is no reservation in the charter the legislature may nevertheless interfere, and prescribe or limit the charges of railroad corporations. The Granger Cases, 94 U. S. 113; Dow v. Beidelman, 125 U. S. 680; Earl, J., in People v. Eailroad Co., 70 N. Y. 569; Roger, C. J., in Railroad Co. v. Railroad Co., Ill N. Y. 132. ' PEOPLE V. BUDD. ' 55 The power of regulation in these cases does not turn upon the fact that the entities affected by the legislation are corporations deriving their existence from the state, but upon the fact that the corporations are common carriers, and therefore subject to legislative control. The state, in constituting a corporation, may prescribe or limit its powers, and reserve such control as it sees fit, and the body accepting the charter takes it subject to such limitations and reservations, and is bound by them. The considerations upon which a corporation holds its franchise are the duties and obligations imposed by the act of incorporation. But when a corporation is created it has the same rights and the same duties, within the scope marked out for its action, that a natural person has. Its property is secured to it by the same constitutional guaranties, and in the management of its prop- erty and business is subject to regulation by the legislature to the same extent only as natural persons, except as the power may be extended by its charter. The mere fact of a corporate character does not extend the power of legislative regulation. For illustration, it could not justly be contended that the 9,ct of 1888 would be a valid exercise of legislative power as to corporations organized for the pur- pose of elevating grain, although invalid as to private persons con- ducting the same business. The conceded power of legislation over common carriers is adverse to the claim that the police power does not in any case include the power to fix the price of the use of private property, and of services connected with such use, unless there is a legal monopoly, or special governmental privileges or protection have been bestowed. It is said that the control which the legislature is permitted to exercise over the business of common carriers is a sur- vival of that class of legislation which in former times extended to the details of personal conduct, and assumed to regulate the private affairs and business of men in the minutest particulars. This is true. But it has survived because it was entitled to survive. By reason of the changed conditions of society, and a truer appreciation of the proper functions of government, many things have fallen out of the range of the police power as formerly recognized, the regulation of which by legislation would now be regarded as invading personal liberty. But society could not safely surrender the power to regulate by law the business of common carriers. Its value has been infinitely increased by the conditions of modern commerce, under which the carrying trade of the country is, to a great extent, absorbed by cor- porations, and, as a check upon the greed of these consolidated in- terests, the legislative power of regulation is demanded by the most imperative public interests. The same principle upon which the con- trol of common carriers rests has enabled the state to regulate in the public interest the charges of telephone and telegraph companies, and to make the telephone and telegraph, those important agencies of commerce, subservient to the wants and necessities of society. These regulations in no way interfere with a rational liberty, — ' liberty regulated by law. ' 56 PEOPLE V. BUDD. There are elements of publicity in the business of elevating grain which peculiarly affect it with a public interest. They are found in the nature and extent of the business, its relation to the commerce of the state and country, and the practical monopoly enjoyed by those engaged in it. The extent of the business is shown by the facts to which we have referred. A. large proportion of the surplus cereals of the country passes through the elevators at Buffalo, and finds its way through the Erie Canal and Hudson River to the seaboard at New York, from whence they are distributed to the markets of the world. The business of elevating grain is an incident to the busi- ness of transportation. The elevators are indispensable instrumen- talities in the business of the common carrier. It is scarcely too much to say that, in a broad sense, the elevators perform the work of carriers. They are located upon or adjacent to the waters of the state, and transfer from the lake vessels to the canal-boats, or from the canal-boats to the ocean vessels, the cargo of grain, and thereby perform an essential service in transportation. It is by means of the elevators that transportation of grain by water from the upper lakes to the seaboard is rendered possible. It needs no argument to show that the business of elevating grain has a vital relation to com- merce in one of its most important aspects. Every excessive charge made in the course of the transportation of grain is a tax on com- merce, and the public have a deep interest that no exorbitant charges shall be exacted at any point upon the business of transportation. The state of New York, in the construction of the Erie Canal, ex- hibited its profound appreciation of the public interest involved in the encouragement of commerce. The legislature of the state, in entering upon the work of constructing a water-way between Lake Erie and the Atlantic Ocean, sets forth in the preamble of the orig- inating act of 1817 its reasons for that great undertaking. " It will," the preamble says, "promote agriculture, manufactures, and commerce, mitigate the calamities of war, and enhance the bless- ings of peace, consolidate the Union, and advance the prosperity and elevate the character of the United States." In the construction and enlargement of the canal the state has expended vast sums of money, raised by taxation; and finally, to still further promote the interests of commerce, it has made the canal a free highway, and maintains it by a direct tax upon the people of the state. The wise forecast and statesmanship of the projectors of this work have been amply demonstrated by experience. It has largely contributed to the power and influence of the state, promoted the prosperity of the people, and to it, more perhaps than to any other single cause, is it owing that the city of New York has become the commercial centre of the Union. "Whatever impairs the usefulness of the canal as a highway of com- merce involves the public interest. The people of New York- are greatly interested to prevent any undue exactions in the business of transportation which shall enhance the cost of the necessaries of life PEOPIiE V. BUDD. 57 or force the trade in grain into channels outside of our state. In Hooker v. Vandewater, 4 Denio, 349, the court was called upon to consider the validity of an agreement between certain transporta- tion lines on the canal to keep up the price of freights. The court held the agreement to be illegal, and Jewett, J. , in pronouncing the judgment of the court, said : " That the raising of the price of freights for the transportation of merchandise or passengers upon our canals is a matter of public concern, and in which the public have a deep interest, does not admit of doubt. It is a familiar maxim that com- petition is the life of trade. It follows that whatever destroys, or even relaxes, competition in trade is injurious, if not fatal, to it." The same question came up a second time in Stanton v. Allen, 5 Denio, 4.34, and was decided the same way. In the course of its opinion the court said: "As these canals are the property of the state, constructed at great expense, as facilities to trade and com- merce, and to foster and encourage agriculture, and are, at the same time, a munificent source of revenue, whatever concerns their employ- ment and usefulness deeply involves the interests of the whole state." The fostering and protection of commerce was, even in ancient times, a favorite object of English law (Chit. Prerog. 162); and this author states that the " superintendence and care of commerce, on the success of which so materially depends the wealth and pros- perity of the nation, are in various cases allotted to the king by the constitution," and many governmental powers vested in the sovereign in England have since our Revolution devolved on the legislatures of the states. The statutes of England in earlier time were ^uU of oppressive commercial regulations, now, happily, to a great extent abrogated; but that the interests of commerce are matters of public concern all states and governments have fully recognized. The third element of publicity which tends to distinguish the business of elevating grain from genei-al commercial pursuits is the practical monopoly which is or may be connected with its prosecu- tion. In the city of Buffalo the elevators are located at the junction of the canal with Lake Erie. The owners of grain are compelled to use them in transferring cargoes. The area upon which it is practi- cable to erect them is limited. The structures are expensive, and the circumstances afford great facility for combination among the owners of elevators to fix and maintain an exorbitant tariff of charges, and to bring into the combination any new elevator which may be erected, and employ it or leave it unemployed, but in either case permit it to share in the aggregate earnings. It is evident that if such a combi- nation in fact exists the principle of free competition in trade is excluded. The precise object of the combination would be to prevent competition. The result of such a combination would necessarily be to subject the lake vessels and canal-boats to any exaction which the elevator owners might see fit to impose for the service of the elevator, and the elevator owners would be able to levy a tribute on the com- munity, the extent of which would be limited only by their discretion. pc^ PEOPLE V. BUDD. It is upon these various circumstaiaces that the court is called upon to determine whether the legislature may interfere and regulate the charges of elevators. It is purely a question of legislative power. If the power to legislate exists the court has nothing to do with the policy or wisdom of the interference in the particular case, or with the question of the adequacy or inadequacy of the compensation authorized. "This court," said Chase, C. J., in the License Tax Cases, 5 Wall. 469, " can know nothing of public policy, except from the constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expe- dient or inexpedient, as politic or impolitic. Considei-ations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here." Can it be said, in view of the exceptional circumstances, that the business of elevating grain is not " affected with a public interest," within the language of Lord Hale, or that the case does not fall within the principle which permits the legislature to regulate the business of common carriers, ferrymen, innkeepers, hackmen, and the interest on the use of money? It seems to us that speculative, if not fanciful, reasons "have been assigned to account for the right of legislative regulation in these and other cases. It is said that the right to regulate the charges of hackmen springs from the fact that they are assigned stands in the public streets; that the legislature may regulate the toll on ferries because the right to establish a ferry is a franchise, and therefore the business is subject to regulation; that the right to regulate wharf- age rested upon the permission of the sovereign to extend wharves into the beds of navigable streams, the title to which was in the sovereign; that the right to regulate the interest on the use of money sprung from the fact that taking interest was originally illegal at common law, and that where the right was granted by statute it was taken subject to regulation by law. . The plain reason, we think, why the charges of hackmen and ferrymen were made subject to public regulation is that they were common carriers. The reason assigned for the right to regulate wharfage in England overlooks the fact that the title to the beds of navigable streams was frequently vested in a subject, and was his private property, subject to certain public rights, as the right of navigation, and no distinction as to the power of public regulation is suggested in the ancient books between ■wharves built upon the beds of navigable waters, the title to which was in the sovereign, and wharves erected upon navigable streams, the beds of which belonged to a subject. The obligation of the owner of the only wharf in a newly erected port to charge only reas- onable wharfage is placed by Lord Hale on the ground of a virtual, as distinguished from a legal, monopoly. The reason assigned for the right to regulate interest takes no account of the fact that the prohibition by the ancient common law to take interest at all was a regulation, and this manifestly did not rest upon any benefit con- PEOPLE V. BUDD. 69 ferred on the lenders of money. It was a regulation springing from a supposed public interest, and was peculiarly oppressive on a certain class. A law prohibiting the taking of interest on the use of money would now be deemed a violation of a right of property. But the material point is that the prohibition, as well as the regulation, of interest, was based upon public policy, and the present conceded right of regulation does not have its foundation in any grant or privilege conferred by the sovereign. The attempts made to place the right of public regulation in these cases upon the ground of special priv- ilege conferred by the public on those affected cannot, we think, be supported. The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation. We rest the power of the legislature to control and regulate elevator charges on the nature and extent of the business, the existence of a virtual- monopoly, the benefit derived from the canal, creating the business and making it possible, the interest to trade and commerce, the rela- tion of the business to the prosperity and welfare of the state, and the practice of legislation in analogous cases. These circumstances collectively create an exceptional case, and justify legislative regulation. The case of Munn v. Illinois has been frequently cited with ap- proval by courts in other states. Nash v. Page, 80 Ky. 539 ; Hockett V. State, 105 In'd. 250; Telephone Co. v. Telegraph Co., 66 Md. 399; Davis V. State, 68 Ala. 58. In Nash v. Page it was held, upon the doctrine of the Munn Case, that warehousemen, for the public sale and purchase of tobacco in Louisville, exercised a public business, and assumed obligations to serve the entire public, and could not exclude persons from buying or selling tobacco in their warehouses who were not members of the board of trade. In Hockett v. State it was held that the relations which telephone companies have assumed towards the public imposed public obligations, and that all the in- struments and appliances used by telephone companies in the prose- cution of the business were, in legal contemplation, devoted to public use. In Telegraph Co. v. Telephone Co. legislation prohibiting discrimination in the business of telegraphing was upheld on the doctrine of the Munn Case. The criticism to which the Munn Case has been subjected has proceeded mainly on a limited and strict construction and definition of the police power. The ordinary sub- jects upon which it operates are well understood. It is most fre- quently exerted in the maintenance of public order, the protection of the public health and public morals, and in regulating mutual rights of property, and the use of property, so as to prevent uses by one of his property to the injury of the property of another. These are instances of its exercise, but they do not bound the sphere of its operation. In the King Case, 110 N. Y. 418, it was given a mnch broader scope, and was held to be efficient to prevent discrimination on the ground of race and color in places opened for public enter* 60 PEOPLE V. BUDD. tainment. In that case the owner of the skating-rink derived no special privilege or protection from the state. The public held no right, in any legal sense, to resort to his premises. His permission, except for the public interest involved, was revocable as to the whole community or any individual citizen. But it was held that so long as he devoted his place to purposes of public entertainment he sub- jected it to public regulations. There is little reason, under our system of government, for placing a close and narrow interpretation on the police power, or in restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society, and the new circumstances as they arise, calling for legislative, -inter- vention in the public interest. Life, liberty, and property have a substantial protection against serious invasion by the legislature in the traditions of the English-speaking race, and a pervading public sentiment which is quick to resent any substantial encroachment upon personal freedom or the rights of property. In no country is the force of public opinion so direct and imperative as in this. The legislature may transgress the principles of the Constitution. It has done so in the past, and it may be expected that it will some- times do so in the future. But unconstitutional enactments have generally been the result of haste or inadvertence, or of transient and unusual conditions in times of public excitement which have been felt and responded to in the halls of legislation. The framers of the government wisely interposed the judicial power, and invested it with the prerogative of bringing every legislative act to the test of the Constitution. But no serious invasion of constitutional guaran- ties by the legislature can for a long time withstand the searching influence of public opinion, which sooner or later is sure to come to the side of law and order and justice, however much for a time it may have been swayed by passion or prejudice, or whatever aberration may have marked its course. So, also, in that wide range of legis- lative powers over persons and property which lie outside of the pro- hibitions of the Constitution, and which inhere of necessity in the very idea of government, by which persons and property may be affected without transgressing constitutional guaranties, there is a restraining and corrective power in public opinion which is a safe- guard of tremendous force against unwise and impolitic legislation, hampering individual enterprise, and checking the healthful stimulus of self-interest, which are the life-blood of commercial progress. The police power may be used for illegitimate ends, although no court can say that the fundamental law has been violated. There is a remedy at the polls, and it is an efficient remedy if, at the bottom, the legislation under it is oppressive and unjust. The remedy by taking away the power of the legislature to act at will would, indeed, be radical and complete. But the moment the police power is de- stroyed or curbed by fixed and rigid rules a danger is introduced into our system which would, we think, be far greater than results from an occasional departure by the legislature from correct principles of BRASS V. NORTH DAKOTA. 61 government. We here conclude our examination of the important question presented b^- this case. The division of opinion in this and otiier courts is evidence of the difficulty- which surrounds it. But it is ever to be remembered that a statute must stand so long as an}- reason- able doubt can be indulged in favor of its constitutionality. We are of opinion that the statute of 188S is constitutional, as a whole, and that although it maj- comprehend cases which, standing alone, might not justify legislative interference, yet thej- must be governed by the general rule enacted by the legislature. The judgment should be affirmed.^ BRASS V. NORTH DAKOTA ex eel. STOESER. Supreme Couet of the United States, 1894. [153 U. S. 391.2] NoEMAN Brass, the plaintiff in error, owns and operates a grain ele- vator in the village of Grand Harbor, in the State of North Dakota. The defendant in error, Louis W. Stoeser, owns a farm adjoining the village, on which in the year 1891 he raised about four thousand bushels of wheat. On September 30, 1891, Stoeser applied to store a part of his wheat-crop for the compensation fixed by section eleven of chapter 126 of the Laws of North Dakota for the year 1891, which Brass re- fused to do unless paid therefor at a rate in excess of that fixed by the statute. On this refusal Stoeser filed in the District Court of Ramsey Countj', North Dakota, a petition for an alternative writ of mandamus. The District Court granted an alternative writ of mandamus (as follows). . . . Mr. Justice Shieas . . . The legislature of the State of North Da- kota, by an act approved March 7, 1891, c. 126, Laws of 1891, p. 321, and entitled "An Act to regulate grain warehouses and tlie weighing and handling of grain, and defining the duties of the railroad commissioners in relation thereto," enacted, in the fourth section thereof, that "all buildings, elevators, or warehouses in this State, erected and operated, or which may hereafter be erected and operated b}- any person or per- sons, association, copartnership, corporation, or trust, for the purpose of buying, selling, storing, shipping, or handling grain for profit, are liereby declared public warehouses, and the person or persons, associa- tion, copartnership, or trust owning or operating said building or build- ings, elevator or elevators, warehouse or warehouses, which are now or may hereafter be located or doing business within this State, as above 1 Compare: Railioad Co. v. Stockyard Co., 45 N. J. Eq. 50; Belcher v. Grain Ele- vator, 101 Mo. 192; McCulIough v. Brown, 41 S. C. 247; Steamship Co. v. Elevator Co., 75 Minn. 312. — Ed. 2 This case is abridged. — Ed. (52 BRASS V. NORTH DAKOTA. described, whether said owners or operators reside within this State or not, are public warehousemen within the meaning of this act, and none of the provisions of this act shall be construed so as to permit discrim- ination with reference to the buying, receiving, and handling of grain of standard gi-ades, or in regard to parties offering such grain for sale, storage, or handling at such public warehouses, while the same are in operation;" and in the fifth section, "that the proprietor, lessee, or manager of any public warehouse or elevator in this State shall file with tlie railroad commissioners of the State a bond to the State of North Dakota, with good and sufficient sureties, to be approved b^' said com- missioners of railroads, in the penal sum of not less than $5,000 nor more than $75,000, in the discretion of said commissioners, conditioned for the faithful performance of dutj' as public warehousemen, and a compliance with all the laws of the State in relation thereto ; " and in the eleventh section thereof, " the charges for storing and handling of grain shall not be greater than the following schedule : For receiving, elevating, insuring, delivering, and twent}- days' storage, two cents per bushel. Storage rates, after the first twenty daj-s, one-half cent for each fifteen days or fraction thereof, and shall not exceed five cents for six months. The grain shall be kept insured at the expense of the warehousemen for the benefit of the owner ; " and b}' the twelfth sec- tion it is provided that " any person, firm, or association, or an}- repre- sentative thereof, who shall fail to do and keep the requirements as herein provided, sliall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than two hundred dollars nor more than one thousand dollars, and be liable in addiliou thereto to imprisonment for not more than one year in the state peni- tentiar}-, at the discretion of the court." In October, 1891, in the District Court of the Second Judicial Dis- trict of the State of North Dakota, in proceedings the nature of which sufficiently appears in the previous statement of facts, the validity of this statute was sustained, and the judgment of that court was, on error, duly affirmed by the Supreme Court of the State. Brass v. North Dakota, 52 N. W. Rep. 408. In the cases thus brought to this court from the States of Illinois and New York, we were asked to declare void statutes regulating the affairs of grain warehouses and elevators within those States, and held valid by their highest courts, because It was claimed that such legislation was repugnant to that clause of the eighth section of article 1 of the Con- stitution of the United States, which confers upon Congress power to regulate commerce with foreign nations and among the several States, and to the Fourteenth Amendment, which ordains that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. In the case now before us the same contentions are made, but we are not asked to review our decisions made in the previous cases. Indeed, BKASS V. NORTH DAKOTA. 63 their soundness is tacitly admitted in the briefs and argument of tlie counsel of the plaintiff in error. But it is said that those cases arose out of facts so peculiar and exceptional, and so different from those of the present case, as to render the reasoning there used, and the conclu- sions reached, now inapplicable. The concession, then, is that, upon the facts found to exist by the legislatures of Illinois and New York, their enactments were by the courts properlj- declared valid, and the contention is that the facts upon which the legislature of North Dakota proceeded, and of which we can take notice in the present case, are so different as to call for the application of other principles, and to render an opposite conclusion neciessary. Tlie differences in the facts of the respective cases, to which we are pointed, are mainly as follows : In the first place, what may be called a geographical difference is suggested, in that the operation of the Illi- nois and New York statutes is said to be restricted to the citv of Chi- cago in the one case, and to the cities of Buffalo, New York, and Brooklyn in the other, while the North Dakota statute is applicable to the territory of the entire State. It is, indeed, true that while the terms of the Illinois and New York statutes embrace in both cases the entire State, yet their behests are restricted to cities having not less than a prescribed number of inhabi- tants, and that there is no such restriction in the North Dakota law. Upon this it is argued that tlie statutes of Illinois and New York are inten'ded to operate in great trade centres, where, on account of the business being localized in the hands of a few persons in close prox- imity to each other, great opportunities for combinations to raise and control elevating and storage charges are afforded, while the wide ex- tent of the State of North Dakota and the small population of its country towns and villages are said to present no such opportunities. The considerations mentioned are obviously addressed to the legisla- tive discretion. It can scarcely be meant to contend that the statutes of Illinois and New York, valid in their present form, would become illegal if the law makers thought fit to repeal the clauses limiting their operation to cities of a certain size, or that the statute of North Dakota wonld at once be validated if one or more of her towns were to reach a popu- lation of one hundred thousand, and her legislature were to restrict the operation of the statute to such cities. Again, it is said that the modes of carrying on the business of ele- vating and storing grain" in North Dakota are not similar to those pur- sued in the Eastern cities; that the great elevators nsed in trans-shipping grain from the Lakes to the railroads are essential ; and tliat those who own them, if uncontrolled by law, could extort such charges as they pleiased ; and great stress is laid upon expressions used in our previous opinions, in which this business, as carried on at Chicago and Buffalo, is spoken of as a practical monopoly-, to which shippers and owners of grain are compelled to resort. The surroundings in an agricultural 64 BRASS V. NORTH DAKOTA. State, where land is cheap in price and limitless in qnantit\-, are thought to be widely different, and to demand different regulations. These arguments are disposed of, as we think, b}- the simple observa- tion, already made, that the facts rehearsed are matters for those who make, not for those who interpret, the laws. When it is once admitted, as It is admitted here, that it is competent for the legislative power to control the business of elevating and storing grain, whether carried on by individuals or associations, in cities of one size and in some circum- stances, it follows that such power may be legally exerted over the same business when carried on in smaller cities and in other circumstances. It may be conceded that that would not be wise legislation which provided the same regulations in every case, and overlooked differ- ences in the facts that called for regulations. But, as we have no right to revise the wisdom or expediency of the law in question, so we would not be justified in imputing an improper exercise of discretion to the legislature of North Dakota. It maj- be true that, in tlie cases cited, the judges who expressed the conclusions of the court entered, at some length, into a defence of the propriet}- of the laws which they were considering, and that some of the reasons given for sustaining them went rather to their expediency than to tlieir validitj-. Such efforts, on the part of judges, to justifj- to citizens the waj-s of legisla- tures are not without value, tiiough thej- are liable to be met by the assertion of opposite views as to the practical wisdom of the law, and thus the real question at issue, namely, the power of the legislature to act at all, is obscured. Still, in tlie present instance, the obvious aim of the reasoning that prevailed was to show that the subject-matter of these enactments fell within the legitimate sphere of legislative power, and that, so fat as the laws and Constitution of the United States were concerned, the legislation in question deprived no person of his prop- erty without due process of law, and did not interfere with Federal jurisdiction over interstate commerce. Another argument advanced is based on the admitted allegation tiiat the principal business of the plaintiff in error, in connection with his warehouse, is in storing his own grain, and that the storage of the grain of other persons is and always has been a mere incident, and it is said that the effect of this law will be to compel him to renounce his princi- pal business and become a mere warehouseman for others. We do not understand this law to require the owner of a warehouse, built and used by him only to store his own grain, to receive and store the grain of others. Such a duty only arises when he chooses to enter upon the business of elevating and storing the grain of other persons for profit. Then he becomes subject to the statutory regulations, and he cannot escape them by asserting that he also elevates and stores his own grain in the same warehouse. As well might a person accused of selling liquor without a license urge that the larger part of his liquors were designed for his own consumption, and that he only sold the surplus as a mere incident OPINIONS OF THE JUSTICES. 65 Another objection to the law is found in its provision that the ware- houseman shall insure the grain of others at his own expense. This ma}- be burdensome, but it affects alike all engaged in the business, and, if it be regarded as contrary- to sound public policy, those affected must instruct their representatives in general assembly met to provide a remedy. The plaintiff in error, in his answer to the writ of mandamus, based his defence whoU}' i)pon grounds arising under the Constitution of the State and of the United States. We are limited by this record to the questions whether the legislature of North Dakota, in regulating by a general law the business and charges of public warehousemen engaged in elevating and storing grain for proflt, denies to the plaintiff in error the equal protection of the laws or deprives him of his property with- out due process of ilaw, and whether such' statutory regulations amount to a regulation of commerce between the States. The allegations and arguments of the plaintiff in error have failed to satisfy us that any solid distinction can be found between the cases in which those ques- tions have been heretofore determined bj' this court and the present one. The judgment of the court below is accordingly Affirmed. Mr. Justice Brewek, with whom concurred Mr. Justice Field, Mr. Justice Jackson, and Mr. Justice White, dissenting. OPINIONS OF THE JUSTICES. Massachusetts Supreme Court, 1904. [182 Mass. 605,] [At the time of the scarcity of coal in the early part of 1903 by rea- son of the strike of Pennsylvania miners," the Legislature of Massa- chusetts asked the judges of the Massachusetts Supreme Court a series of questions as to its power to authorize cities or towns to purchase and sell coal and wood. Extract from the .replies signed by the majority of the judges is subjoined.] We do not deem it necessary to restate the reasons and arguments" which have led legislatures and courts to nearly, if not quite, uniform conclusions in regard to the attitude which the government should maintain, under existing constitutions, towards the transaction of com- mon kinds of business which can be conducted successfully by indi- viduals, without the use of any governmental function. These can be found in numerous published opinions of the courts, spme of which are cited in the opinion first above mentioned. It is established that under our Constitution private property cannot be taken from its owner except for a public use. This is equally true whether the property is a dwelling house taken by right of eminent 5 66 OPINIONS OF THE JUSTICES. domain, or money demanded by the tax collector. The establishment of a business like the buying and selling of fuel requires the expendi- ture of money. If this is done by an agency of the government there is no way to obtain the money except by taxation. Money cannot be raised by taxation except for a public use. Until within a few years it generally has been conceded, not only that it would not be a public use of money for the government to expend it in the establishment of stores and shops for the purpose of carrying on a business of manufacturing or selling goods in competition with individuals, but also that it would be a perversion of the function of government for the State to enter as a competitor into the field of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the business, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition. There may be some now who believe it would be well if business was conducted by the people collectively, liv- ing as a community, and represented by the government in the man- agement of ordinary industrial affairs. But nobody contends that such a system is possible under our Constitution. It is plain, however, that taxation of the people to establish a city or town in the proprietorship of an ordinary mercantile or manufacturing business would be a long step towards it. If men of property, owning coal and wood j'ards, should be compelled to paj' taxes for the estal)lishment of a rival coal j'ard by a city or town, to furnish fuel at cost, thej' would thus be forced to make contributions of money for their own impoverishment ; for if the coal yard of the citj- or town was conducted economically, they would be driven out of business. A similar result would follow if the business of furnishing provisions and clothing, and other neces- saries of life, were taken up by the government ; and men who now earn a livelihood as proprietors would be forced to work as emploj'ees in stores and shops conducted bj' the public authorities. Except for the severely onerous conditions from which we are now suffering, the causes of which arose outside of this State beyond the reach of our legislative enactments, there is nothing materially different between the proposed establishment of a governmental agency for the sale of fuel, and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmenfual function, as does the distribution of water, gas, and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise with supplies ema- nating from a single source, as is required for the economical manage- ment of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary means. KATCLIFF V. WICHITA. UNION STOCKYAKDS COMPANY. 67 EATCLIFP V. WICHITA UNION STOCKYARDS COMPANY. Supreme Court of Kansas, 1906. [86 Pae. 150.1] Action by J. W. Eatcliff to recover charges on live stock beyond the statutory rate on cattle placed in and marketed at the Wichita Union Stockyards. Johnston, C. J. The operation of stockyards has more of the characteristics of a public business than the carrying on of an elevator or a warehouse. It possesses the market features, including considera- tions of sanitation and health, and it also has more of the monopolistic feature. The stockyards in question are situated in a commercial center and constitute the public live stock market for a great region, largely devoted to live stock business. The principal railroads of the Southwest countrj' enter Wichita, and their tracks all unite in the stockj-ards, and the business is therefore intimately related to the busi- ness of transportation. Here the stock raisers and shippers meet and deal with the packers and purchasers, and here live stock in transit from Oklahoma, Texas, and Colorado to more distant markets are unloaded for rest, feeding, and care. No other market exists nearer than Kansas City on the east, which is about 260 miles awaj', and the nearest ones on the west are Denver and Peublo, about 500 miles away. Because of the nature of the business and the railroad facilities the establishment of other markets at or near Wichita is impracticable, and hence these stock^-ards are, and of necessity will be, the only available place where the breeders, feeders, and dealers of a great scope of countrj' can conveniently market their live stock. The com- pany has, therefore, a practical monopoly of a vast business affecting thousands of people who are almost obliged to deal at that market and at the rates which the company may choose to charge. To the com- pany is committed the feeding, watering, and weighing of cattle sent from great distances, whether accompanied by the owner or not, and this is an additional reason for regulation and control. In Cotting v. Kansas City Stockyards Company (C. C), 82 Fed. 850, it was held that " a stockyard business located in a large city at the junction of many railroad lines, which furnishes the only proper facilities for the unload- ing, resting, and feeding of live stock in transit and for the sale of cattle in said city, is affected with a public use so as to be subject to legislative control, and the proper legislative body may prescribe a maximum rate of compensation for the care and handling of stock thereat." This case was taken to the Supreme Court of the United States, where it was reversed because of a discriminatory provision of the statute under consideration. In determining that question, how- ever, Justice Brewer, who rendered the decision, in commenting on the nature of the business of stockyards and the interest of the public in it, 1 Only one extract it printed. — Ed. 68 EATCLIFF V. WICHITA. UNION STOCKYARDS COMPANY. took GccasioTi to sa}-: "Tested bj- the rule laid down in Miinn v. Illinois, it may be conceded that the state has the power to make reasonable regulation of the charges for services rendered by the stock- yards company. Its stockyards are situated in one of the gatewaj-s of the west, and so located that they furnish important facilities to all seeking transportation of cattle. Wliile not a common carrier, nor engaged in anj' distinctively public emploj'ment, it is doing a work in which the public has an interest, and therefore must be considered as subject to governmental regulation." Cotting v. Kansas City Stock- yards, 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92. In Delaware, etc.. Railroad Company v. Central Stockyards Companj', 45 N. J. Eq. 60, 17 Atl. 146, 6 L. R. A. 855, the court discussed the nature of the business, and held that the business of maintaining stock^'ards corresponds with that of warehousemen, and therefore is subject to the same general principles of law. It was held, however, that in the absence of a statute a court of chancer3' could not impose reg- ulations upon those engaged in the business without usurping leg- islative power. In Stock Exchange v. Board of Trade, 127 III. 153, 19 N. E. 855; 2 L. R. A. 411, 11 Am. St. Rep. 107, it was held that the market quotations and reports of the board of trade of Chicago had become affected with a public interest, and so long as it continued in business it must furnish reports and quotations to all who may desire them for lawful purposes, and upon the same terms. In a later case before the same court it was held that the Chicago Live Stock Exchange could not be treated as a public market in the ordinary sense, but in the course of the decision it was said that the character and magnitude of its business was such as " to warrant the Legislature in the exercise of its legislative discretion in declaring a public use, and placing said business under local control and supervision, but such power, in our opinion, does not rest with the courts." American Live Stock Commission Company v. Chicago Live Stock Exchange, 143 111. 210, 32 N. E. 274, 18 L. R. A. 190, 36 Am. St. Rep. 385. See, also, Head v. Amoskeag Manufacturing Company, 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889 ; State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528, Nash v. Page, 80 Ky. 539, 44 Am. Rep. 490 ; Davis v. State, 68 Ala. 58, 44 Am. Rep. 128 ; Baker v. State, 54 Wis. 368, 12 N. W. 12 ; Breechbill v. Randall, 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695 ; State ex rel. v. Gas Co., 34 Ohio St. 572, 32 Am. Rep. 390 ; Freund on Police Power, § 373 ; Cooley's Constitutional Limitations, 870 ; 1 Tiedeman on State and Federal Control, § 95. We conclude that the stockyards business as conducted in Wichita is clothed with a public interest, and that the state in the exercise of its police power may, within constitutional limitations, subject it to regu- lation and control.^ 1 See also Cotting «. Kansas City Stockyards Co., 183 U. S. 79. But see Delaware & W. Ky. Co. u. Central Stockyards Co., 46 N. J. L. 280. — Ed. STATE V. JACKSONVILLE TERMINAL CO. 69 STATE V. JACKSONVILLE TERMINAL CO. Supreme Court op Florida, 1900. [41 Fla. 377.1] XI. Ninth and eleventh grounds of the motion to quash : The reg- ulation made by the commissioners, under the power conferred upon them, in this case is in no sense an " appropriation " of any private property or right of way within the meaning of section 29, Art. XVI of the constitution, so as to require the compensation therefor to be ascertained by a jury of twelve men. The defendant in error, as we have seen, had devoted its property to a use essentially public, is per- forming services of a public nature, and is subject to be controlled by the public for public welfare. That use to which it has voluntarily devoted its property is to furnish passenger terminal facilities to rail- road common carriers. It is discriminating among the railroads that it will serve, and the commissioners under power granted them by the legislature have determined that such discrimination as against a par- ticular railroad is unjust and contrary to the best interest and conven- ience of the public. It has, therefore, made a regulation that this railroad be admitted to the facilities which the defendant in error is furnishing other railroad common carriers upon payment of reasonable compensation. It is no more an appropriation of the property of the terminal company than is the law which requires common carriers to transport all persons at a reasonable rate of compensation, or the law which requires an inn-keeper to furnish accommodations to all who apply, and at reasonable rates if fixed by the legislature. While it would seem that one was as much an appropriation of property as another, it surely will not be contended that a passenger or a traveller must condemn his way into a railroad passenger car or hotel in order to secure the transportation of the lodging to which he is by the law entitled. There is a very clear distinction between a taking or an appropriation of property for a public use and regulating the use of property devoted to a use in which the public has an interest. The latter is an exercise of the police power, as it is called ; the former of the power of eminent domain. The State in the former case compels the dedication of the property or some interest therein to a public use, or, if already dedicated to one public use, then to another. In the lat- ter, the owner has voluntarily or in pursuance of the provisions of its charter, dedicated the property to a use in which the public has an interest, and the use of that property so dedicated is merely regulated and controlled for thepublic welfare. In this case the regulation com- plained of does not compel the defendant in error to dedicate its prop- 1 Only one point is printed. — Ed. 70 TEANSPOETATION CO. V. STANDARD OIL CO. erty to the public use, or to a different public use. It has already voluntarily and presumably in pursuance of its charter powers devoted its property to a public use by undertaking to furnish for railroad common carriers and the public served by them terminal facilities to aid and enable these public agencies to perform their obligations to the public and to assist them in such performance. The State regu- lates this use of the property by requiring that the charges for such uses and privileges shall be rfeasonable, and by requiring the terminal com- pany in performing the services and conducting the business which it has so voluntarily assumed, to perform such services and conduct such business impartially and without discrimination wherever the pub- lic interests require them to be so performed and conducted. The regulation complained of does not appropriate property ; it merely prevents abuses, prohibits unjust discrimination and excessive charges, and ik, therefore, valid. Of course if the regulation sought to be enforced is valid, its enforcement by mandamus cannot be construed as a taking or appropriation of property under the power of eminent domain, or as a deprivation of property without due process of law. TRANSPORTATION CO. v. STANDARD OIL CO. CouKT OF Appeals, West Virginia, 1901. [40 S. E. Rep. 591.2] Brannon, J. The West Virginia Transportation Company brought trespass on the case in Wood County against the Standard Oil Company and the Eureka Pipe Line Company, all corporations, and upon demurrer to the declaration judgment was rendered for the defendants. The first count of the declaration charges that the plaintiff was engaged in the business of transporting petroleum oils by means of pipe lines and tank ears from Volcano and vicinity to Parkersburg, and in storing oil, and had expended $300,000 in acquiring land, rights of way, lines of tubing, and other things necessary in its business, and had built up a large an°d lucrative business, and that the defendants maliciously and wickedly contriving and intending to injure the plaintiff and ruin its business, and render its plant and property worthless, and deprive it of all its TEANSPOETATION CO. V. STANDARD OIL CO. 71 business, did confederate and conspire together and with the "West Vir- ginia Oil Companj-, another corporation, and witli C. H. Shattucli and other persons unknown to the plaintiff, to prevent all persons produc- ing, refining, selling, or transporting oils, and particularly to prevent the plaintiff from transporting oils through its pipe lines and bj- means of its tank cars, and from storing oil in its storage tanks, and from executing anj' lawful trade in connection therewith. And it charged also that the Standard Oil Companj- of New Jersej' organized about 1891, and was the successor of all corporations and firms prior to that date associated together under a contract known as the Standard Oil Trust; that the Camden Consolidated Oil Company was a member of the said trust, and under its control ; that in 1892 the business and property of said trust were reorganized under, and are now controlled by, the Standard Oil Company, and controlled by the same men for- merly owning and controlling said Standard Oil Trust ; that the Eureka Pipe Line Company is owned, controlled, and operated by the same men, and doing business in the interest of the Standard Oil Company, and is a transportation branch of that companj'; that the West Virginia Oil Company was organized about 1885 to purchase and operate what was known as the property of the West Virginia Oil and Land Com- panj-, a territory on which the plaintiff had laid pipe lines, and from which it had for several years transported oil for compensation ; that the Standard Oil Trust, through individuals interested in it, had be- come a large stockholder in the West Virginia Oil Companj-, and dictated its management ; and by means thereof, and of its monopolj- of the production, refining, and transportation of oil throughout the world, practicallj- controlled the business of said West Virginia Oil Companj-, and since the reorganization of the Standard Oil Trust by the organization of the Standard Oil Company had continued to do so, and had induced the construction of the Eureka Pipe Line Companj', and thus ruined the business of the plaintiff; that this was the object and accomplishment of the said. combination and malicious conspiracy. What wrongful acts does this first count state ? The formation of trade combination — call it " monopoly " — is not actionable alone. How far the grant of exclusive privilege by the State (and this is the only monopoly, legally speaking) is valid when its right is contested, is one thing. We are not dealing with that. This monopoly is not that. It is the act of persons and corporations, by union of means and effort, drawing to themselves, in the field of competition, the lion's share of trade. This is not monopoly condemned by law. The lion has stretched out its paws and grabbed in prey more than others, but that is the natural right of the lion in the field of pursuit and capture. Pity that the lion exists, his competing animals may say ; but natural law accords the right, it is given him by the Maker for existence. The State made the Standard Oil Company, and gave it this right of being and working. Better for its competitors were it not so. What other acts besides the formation of this engrossing association does the 72 TRANSPORTATION CO. V. STANDARD OIL CO. first count charge? That it caused the West Virginia Oil Company to build a pipe line from its property to the Baltimore & Ohio Railroad to ship its oil to the refinery of the Standard Oil Company. Stockholders in the one were also in the other. Had they not the right to build this line to further their own interests, to convey product of the one for refinement by another? A man owning a farm, and also interested in a mill, may not the mill owners induce the farmer to build some means of transporting his wheat to that mill, without being liable to suit by a man owning a railroad which had been accustomed to carry wheat from that farm? And suppose there were no common interest in the farm and mill, cannot the mill owners induce this farmer to build a means of transport from his farm to their mill? Is this soliciting trade by any usual means, a legal wrong to competitors? The gravest item under this head is the charge that the Standard Company required oil pro- ducers (without specifying any but the West Virginia Oil Compan3-), as a condition precedent to purchasing their oil, to ship through said pipe line, and required those producers in the land of the West Vir- ginia Oil Company to do so as a condition precedent to holding their leases, notwithstanding that the more usual and satisfactorj- route of transport was the pipe line of the plaintiff ; and that later the defend- ants, through the Eureka Pipe Line Compan}', to further accomplish their purpose of ruining the plaintiff, built a branch pipe line through territory which had for years patronized the plaintiff's line, in ordei- to prevent and forestall the plaintiff from transacting, acquiring, or main- taining any business, and from extending its line to anj' other territory; and that the defendants and confederates, by their monopoly- and con- trol over the oil business, refused to ship, or permit others to ship, oils, or buy oils shipped through the plaintiff's line, and, being the only refiners of oil at Parkersburg and elsewhere, refused to bu}* oil shipped through the pipe line of the plaintiff. At first blush this conduct might appear wrong ; but a second thought again presents the question whether the defendants in this did anything unlawful. The defendant companies were all in common interest. Could thej- not unite to fur- ther their interests ? Could not the Standard Oil Companj' buy from whom it chose? And within the pale of this right could it not impose such conditions as it chose ? Cannot the village merchant say to the farmer, " I will not buy your eggs unless j'ou buy my calico? " Cannot the big mill owner refuse to buy wheat frcta those who do not ship it over a railroad or steamboat line owned by him? Cannot the mill owner refuse to lease his farm to those who do not sell products to his mill? He may be exacting and oppressive, but can other mill owners sue him for this? Is tliis right not a part and parcel of his business right? It is the right, even when there is no common ownership, as there is in this case, of one man to buy of whom he chooses ; and he can impose arbitrary, hard conditions, if the other party chooses to accede to them. So it is the clear right of the other party to sell to whom he chooses, and he having this right, how does the other party TRANSPORTATION CO. V. STANDARD OIL CO. 73 do a wrong in purchasing from him? The right of the one carries with it the right of the other. These producers of oil had the right to sell to whom they chose, to ship their oil by what pipe line they chose, and they had the right to submit to the terms of the Standard Oil Company, and in view of this right the companj- could buy from v/hom it chose, and on such terms as it chose ; for the right of the former would bear no fruitage, would be futile, without the corresponding right of contract in the compan3-. Observe the question here is not their own interests in lawful competition with others. If they possessed the lawful right above stated, what matters it that they did have the intent to cut down the business of others, or that thej- did cut it down and injure others, though thej' did this that they might themselves fatten ? So far this first count charges only the exercise by the defendants of a right of constitutional libert}-, accorded alike to all, — simply the right of self-advancement in legitimate business, self-preservation, we may sa)-. That in these days of sharp, ruinous competition some perish is inevitable. The dead are found strewn all along the highways of business and commerce. Has it not always been so ? Will it always be so ? The evolution of the future must answer. What its evolution will be in this regard we do not yet know, but we do know that thus far the law of the survival of the fittest has been inexorable. Human intellect — human laws — cannot prevent these disasters. The dead and wounded have no right of action from the working of this im- perious law. We reverse and remand. 74 HURLEY, ADMINISTEATOE V. EDDINGFIELD. HUELEY, ADMINISTRATOR v. EDDINGFIELD. SUPEEME COUKT OF INDIANA, 1901. [156 Ind. 415.] Baker, J. Appellant sued appellee for $10,000 damages for wrong- fully causing the death of his intestate. The court sustained appellee's deraurrrer to the complaint ; and this ruling is assigned as errror. The material facts alleged may be summarized thus : At and for years before decedent's death app.ellee was a practicing physician at Mace in Montgomery county, duly licensed under the laws of the State. He held himself out to the public as a general practitioner of medicine. He had been decedent's family physician. Decedent became danger- ously ill and sent for appellee. The messenger informed appellee of decedent's violent sickness, tendered him his fees for his services, and stated to him that no other physician was procurable in time and that decedent relied on him for attention. No other physician was procur- able in time to be of any use, and decedent did rely on appellee for medical assistance. Without anj' reason whatever, appellee refused to render aid to decedent. No other patients were requiring appellee's immediate service, and he could have gone to the relief of decedent, if he had been wilhng to do so. Death ensued, without decedent's fault, and whollj' from appellee's wrongful act. The alleged wrongful act was appellee's refusal to enter into a con- tract of employment. Counsel do not contend that, before the enact- ment of the law regulating the practice of medicine, physicians were bound to render professional service to every one who applied. Whar- ton on Neg., §731. The act regulating the practice of medicine pro- vides for a board of examiners, standards of qualification, examina- tions, licenses to those found qualified, and penalties for practicing without license. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a compulsive, measure. In obtaining the State's '' license (permission) to practice medicine, the State does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept. Counsel's analogies, drawn fi'om the obligations to the public on the part of inn-keepers, common carriers, and the like, are beside the mark. • Judgment affirmed. GISBOURN V. HURST. 75 CHAPTER II. EXTENT OP PUBLIC PROFESSION. GISBOURN V. HURST. Common Bench, 1710. [1 Salk. 249.] In trover upon a special verdict the case was, the goods in the decla- ration were the plaintiff's, and by him delivered in London to one Rich- ardson, to carry down to Birmingham. This Richardson was not a common carrier, but for some small time last past brought cheese to London, and in his return took such goods as he could carry back in his wagon into the country for a reasonable price. When he returned home, he put his wagon with the cheese into the barn, where it con- tinued two nights and a day, and then the landlord came and distrained the cheese for rent due for the bouse, which was not an inn, but a pri- vate house; and it was agreed joer Cur., that goods delivered to any person exercising a public trade or employment to be carried, wrought or managed in the way of his trade or employ, are for that time under , a legal protection, and privileged from distress for rent; but this>/ being a private undertaking required a farther consideration, and it was resolved, that any man undertaking for hire to carry the goods of all persons indifferently, as in this case, is, as to this privilege, a com- mon carrier ; for the law has given the privilege in respect of the trader, and not in respect of the carrier, and the case in Cro. El. 596 is stronger. Two tradesmen brought their wool to a neighbor's beam, which he kept for his privatp use, and it was held that could not be distrained.* 1 Vide Francis v. Wyatt, 3 Bur. 1489, 1 Bl. 483, in which it was determined, that a carriage standing at livery is not exempt from distress. In the former report the general doctrine upon the subject is very fully discussed. 76 GORDON V. HUTCHINSON. GORDON V. HUTCHINSON. Supreme Court op Pennsylvania, 1841. [1 W. #• S. 285.] Error to the Common Pleas of Centre Countj-. This was an action on the case by James B. Hutchinson against James Gordon. The defendant pleaded twn assumpsit. The facts were that the defendant, being a farmer, applied at the store of the plaintiff' for the hauling of goods from Lewistown to Belle- fonte, upon his return from the former place, where he was going with a load of iron. He received an order and loaded the goods. On the waj' the head came out of a hogshead of molasses, and it was wholly lost. In this action tlie plaintiff claimed to recover the price of it. y* There was much proof on the subject of the occasion of the loss : whether it was in consequence of expansion of the molasses from heat, or of negligence on the part of the wagoner, of which there was strong evidence. The defendant took the ground that he was not subject to the re- sponsibilities of a common carrier, but only answerable for negligence, inasmuch as he was onl^- emplo3'ed occasionall3- to carry for hire. But the court below (Woodward, President) instructed the jurj-, that the defendant was answerable upon the principles which govern the liabili- ties of a common carrier. Blanchard, for plaintiff in error, argued the same point here, and cited in support of it 2 Kent's Com. 597 ; Story on Bail. 298; 2 Lord Raym. 909; 2 Marsh, 293 ; Jones on Bail. 306 ; 5 Rawle, 188 ; 1 Wend. 272; Leigh N. P. 507; 2 Salk. 249; 2 Bos. & Pul. 417; 4 Taunt. 787. HaU, for defendant in error, cited 4 N. H. 306; Bui. N. P. 7; 1 Salk. 282 ; 1 Wils. 281; Story on Bail. 325 ; 2 Watts, 443. Tlie opinion of the court was delivered by Gibson, C. J. The best definition of a common carrier in its appli- cation to the business of this countrj-, is that which Mr. Jeremy (Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249, which was the case of one who was at first not thought to be a common car- rier only because he had, for some small time before, brouglit cheese to London, and taken such goods as he could get to carry back into the country at a reasonable price; but the goods having been dis- trained for the rent of a barn into which he had put his wagon for safe keeping, it was finally resolved that any man undertaking to carry the goods of all persons indifferently, is, as to exemption fiom distress, a ^ common carrier. Mr. Justice Story has cited this case (Commentaries on Bailm. 322) to prove that a common carrier is one who holds him- self out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation ^ro hac vice. My conclusion GORDON V. HUTCHINSON. 77 from it is different. I take it a wagoner who carries goods for hire is a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. It is true the coart went no further than to saj- the wagoner was a common carrier as to the privilege of exemption from distress ; but his contract was held not to be a private undertaking as the court was at first inclined to consider it, but a pubhc engagement, by reason of his readiness to carry for any one who would employ him, without regard to his other avocations, and he would consequently not only be entitled to the privi- leges, but be subject to the responsibilities of a common carrier : in- deed they are correlative, and there is no reason why he should enjoy the one without being burdened with the other. Chancellor Kent (2 Commentaries, 597) states the law on the authority of Eobinson v. Danmore, 2 Bos. & Pul. 416, to be that a carrier for hire in a particu- lar case, not exercising the business of a common carrier, is answerable only for ordinary neglect, unless heassnme the risk of a common car- rier by express contract ; and Mr. Justice Storj' (Com. on Bail. 298) as well as the learned annotator on Sir William Jones's Essay (Law of Bailm. 103 d, note 3) does the same on the authority of the same case. There, however, the defendant was held liable on a special contract of warrant}', that the goods should go safe ; and it was therefore not ma- terial whether he was a general carrier or not. The judges, indeed, said that he was not a common carrier, but one who had put himself in the case of a common carrier by his agreement ; yet even a common carrier ma}- restrict his responsibilitj- hy a special acceptance of the goods, and may also make himself answerable by a special agreement as well as on the custom. The question of carrier or not, therefore, did not necessarily enter into the inquiry, and we cannot suppose the judges gave it their principal attention. But rules which have received their form from the business of a peo- ple whose occupations are definite, regular, and fixed, must be applied with much caution and no little qualification to the business of a peo- ple whose occupations are vague, desultory, and irregular. In Eng- land, one who holds himself out as a general carrier is bound to take emploj'mcait at the current price ; but it w'ill not be thought that he is bound to do so here. Nothing was more common formerly, than for the wagoners to lie by in Philadelphia for a rise of wages. In Eng- land the obligation to carry at request upon the carrier's particular route, is the criterion of the profession, bnt it is certainly not so with us. In Pennsylvania, we had no carriers exclusively between particu- lar places, before the establishment of our public lines of transporta- tion; and according to the English principle we could have had no common carriers, for it was not pretended that a wagoner could be compelled to load for any part of the continent. But the policy of holding him answerable as an insurer was more obviously dictated by the solitarj' and mountainous regions through which his course for the most part lay, than it is by the frequented thoroughfares of England. But the 73 ALLEN V. SACKEIDEK. Pennsj-lvania wagoner was not always such even by profession. No inconsiderable part of the transportation was done by the farmers of the interior, who took their produce to Philadelphia, and procured re- turn loads for the retail merchants of the neighboring towns ; and many of them passed by their homes with loads to Pittsburg or Wheel- ing, the principal points of embarkation on the Ohio. But no one sup- posed they were not responsible as common carriers ; and they always compensated losses as such. They presented themselves as applicants for employment to those who could give it ; and were not distinguish- able in their appearance, or in the equipment of their teams from carriers bj' profession. I can readily understand why a carpenter, en- couraged by an employer to undertake the job of a cabinetmaker, shall not be bound to bring the skill of a workman to the execution of it ; or why a farmer, taking his horses from the plough to turn teamster at the solicitation of his neighbor, shall be answerable for nothing less than good faith ; but I am unable to understand why a wagoner soliciting the emploj'ment of a common carrier, shall be prevented bj' the nature of any other employment he may sometimes follow, from contracting the responsibility of one. What has a merchant to do with the private business of those who publiclj' solicit employment from him ? They offer themselves to him as competent to perform the service required, and in the absence of express reservation, thej' contract to perform it on the usual terms, and under the usual responsibility. Now, what is the case here ? The defendant is a farmer, but has occasionallj' done jobs as a carrier. That, however, is immaterial. He applied for the transportation of these goods as a matter of business, and consequently J on the usual conditions. His agency was not sought in consequence of a special confidence reposed in him — there was nothing special in the case — on the contrarj', the employment was sought bj' himself, and there is nothing to show that it was given on terms of diminished responsibility. There was evidence of negligence before the jury; but independent of that, we are of opinion that he is liable as an insurer. Judgment affirmed} ALLEN V. SACKRIDER. Court of Appeals, New York, 1867. [37 N. Y. 341.] Parker, J. The action was brought against the defendant's to charge them, as common carriers, with damage to a quantity of grain shipped by the plaintiffs in the sloop of the defendants, to be trans- 1 Compare: Fish v. Chapman, 2 Ga. 349 ; Parmalee v. Lourtz, 74 111. 116; Robert son V. Kennedy, 2 Dana, 430; Haniaon v. Roy, 39 Misa.396 ; Banners v. Stewart 20 Oh. St. 69 ; Chevallier v. Straham, 2 Tex. 115. — Ed. ALLEN V. SAOKEIDER. 79 ported from Trenton, in the province of Canada, to Ogdensburgh, in this State, which accrued from the wetting of the grain in a storm. The case was referred to a referee, wlio found as follows: "The plaintiffs, in the fall of 1859, were partners, doing business at Ogdens- buigh. The defendants were the owners of the sloop " Creole," of which Farnham was master. In the fall of 1859 the plaintiffs applied to the defendants to bring a load of grain from the baj- of Quinte to Ogdens- burgh. The master stated that he was a stranger to the bay, and did not know whether his sloop had capacity to go there. Being assured by the plaintiffs that she had, he engaged for the trip at three cents per bushel, and performed it with safetj-. In November, 1859, plaintiffs again applied to defendants to make another similar trip for grain, and it was agreed at one hundred dollars for the trip. The vessel pro- ceeded to the bay, took in a load of grain, and on her return was driven on shore, and the cargo injured to the amount of $1,346.34; that the injury did not result from the want of ordinary care, skill, or foresight, nor was it the result of inevitable accident, or what, in law, is termed the act of God. From these facts, m}' conclusions of law /' are, that the defendants were special carriers, and only liable as such, and not as common carriers, and that the proof does not establish such facts as would make the defendants liable as special carriers; and, therefore, the plaintiffs have no cause of action against them." The only question in the case is, were the defendants common car- riers ? The facts found by the referee do not, I think, make the defend- ants common carriers. The^- owned a sloop; but it does not appear that it was ever offered to the public 0r 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 sufHcient to show them common carriers. A common carrier was defined, in Gisbourn v. Hurst, 1 Salk. 249, to / be, " any man undertaking, for hire, to carry the goods of ^11 persons ^ indifferently;" and in Dwight v. Brewster, 1 Pick. 50, to be, " one who undertakes, for hire, to transport the goods of such as choose to employ him, from place to place." In Orange Bank v. Brown, 3 Wend. 161, Chief Justice Savage said: "Every person who undertakes to carry, for a compensation, the goods of all persons indifferentl}', is, as to the liability imposed, to be considered a common carrier. The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose j to employ him, as ready to carry for hire ; while the latter agrees, in some special case, with some private individual, to carry for hire." (Story on Contracts, § 752, a.) The employment of a common carrier is a public one, and he assumes a public duty, and is bound to receive and carry the goods of any one who offers. "On the whole," says 80 INGATE V. CHRISTIE. Prof. Parsons, "it seems to be clear that no one can be considered as a common carrier, unless he has, in some waj-, held himself out to the public as a carrier, in such manner as to render hira liable to an action if he should refuse to carry for any one who wished to employ him." (2 Pars, on Cont. [5th ed.] 166, note.) The learned counsel for the appellant in effect recognizes the necessity of the carrier holding himself out to the world as such, in order to in- vest him with the character and responsibilities of a common carrier ; and, to meet that necessitj-, says : "The 'Creole' was a freight vessel, rigged and manned suitably for carrying freight from port to port ; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the ^findings of the referee, and, therefore, cannot, if they existed, help the appellants upon this appeal. It is not claimed that the defendants are liable, unless as common carriers. Very clearly, they were not common cai-riers ; and the judg- ment should, therefore, be affirmed. All the judges concurring. Judgment affirmed.^ INGATE V. CHRISTIE. Queen's Bench, 1850. [3 Car. ^ K. 61.] Assumpsit. The declaration stated, that the defendant agreed to carry 100 cases of figs from a wharf to a ship, and that by tlie negli- gence of the defendant's servants tiie figs were lost. Plea: non assumpsit. It was proved that, on the 14th of February, 1850, the defendant was employed by the plaintiffs, who are merchants, to take 100 cases of figs in his lighter from Mills' Wharf, in Thames Street,. to the " Mag- net " steamer, which lay in the River Thames, and that as the figs were on board the lighter, which was proceeding with them to the " Mag- net," the lighter was run down bj- the ' ' Menai " steamer and the figs all lost. It was proved that the defendant had a counting-house with his name and the word "lighterman" on the doorposts of it, and that he can'ied goods in his lighters from the wharves to the ships for any- body who employed him, and that the defendant was a lighterman and not a wharfinger. Aldekson, B. Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a 1 Compare : Bell v. Pidgeon, 5 Fed. 634 ; Crosby v. Fitch, 12 Conn. 410 ; Fish v. Clark, 49 N. Y. 122; Pennewell ». CuUen, 5 Harr. 238; Moss v. Bettes, 4 Heisk. 661; Spencer v. Daggett, 2 Vt. 92. — Ed. ATLANTIC CITY V. FONSLEK. 81 man holds himself out to do it for every one wlio asks him, he is a coui- mon carrier ; but if he does not do it for every one, but carries for you J and me only, that is matter of special contract. Here we have a per- son with a counting-house, "lighterman "painted at his door, and he offers to carry for every one. ATLANTIC CITY v. FONSLEE. Supreme Court of New Jersey, 1903. l56Atl. 119.1] Garretson, J., The power of Atlantic City to pass ordinances reg- ulating the business of driving omnibuses, automobiles, or locomobiles, and fixing the fares to be charged, seems to be abundantly conferred by various statutes, viz. : By a supplement to the charter of Atlantic City, approved March 13, 1896; by another supplement approved March 22, 1871 ; and a general act applicable to all cities approved May 16, 1894, Gen. St. p. 2236, § 532; and we are unable to see that any of the regulations imposed by this ordinance are unreasonable. There is nothing unreasonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public street, to carry all persons applying to him for passage and legally tendering the fare, as common carriers are required to do ; and a further regula- tion, such as is made in this ordinance, which provides for a convenient notification to intending passengers that the vehicle is already in actual use, which provision seems to be as well for the convenience of the driver, has nothing unreasonable in it. The judgment should be affirmed.'' 1 The statement of the ordinance in question requiring all licensed hackmen to accept passengers unless the sign " Engaged " was displayed is omitted from the opin- ion. — Ed. 2 Compare : Atlantic City v. Jehn, 69 N. J. L. 233. — Ed. 82 GIBSON V. SILVA. GIBSON V. SILVA. Supreme Court of Cetlon, 1848. [Rama Nathan, 105.] Oliphant, C. J. The judgment and sentence of the police court are set aside. The question in this case is, did the defendant use a carriage for the conveyance for hire as a public business of any goods, or did he use a carriage for the conveyance for hire, pro hac vice, of any goods. If " as a public business " the defendant ought to have had a license ; if pro hac vice none was required. A certain obscurity may have crept into the ordinance by reason of the words " as a public bus- iness " being only understood and not expressed after the words " con- veyance for hire " in the 3rd line of the 6th section. If these words are not to be supplied in the 6th section, then the intention of the ordi- nance, as declared in the 2nd section, is completely altered, and every one hiring out his cart for a job, as to bring a load of bricks or remove earth from the foundation of a house, would be obliged to have a license, whereas the words used in the 2nd section are those consti- tuting the definition of a common carrier in the English law. The defendant was a contractor with the superintendent of police to do a particular job, and he was not at the service of every individual who pleased to call upon him to carry for them, which is the case under certain restrictions with those who convey for hire as a public business, they being in fact carriers, and incurring tiie liabilities and responsi- bilities of that calling. Upon this ground the case is decided, but surelj- it is very questionable whether goods were carried. Can rubbish removed, to be shut out of the way or burnt, be called goods ? Can a person carrj'ing away a nuisance for which he receives a remuneration for his trouble be called a carrier? The court inclines to think these questions must be answered in the negative, but it serves no purpose to consider this point. The court is clear upon the other question. SELF V. DUNN < It was alleged by plaintiffs that defendants had neglected to deliver the barge and her valuable cargo according to their contract. The de- fendants answered by a general denial, and by a recital of what they claimed to be the circumstances of the loss of the barge and cargo, in which they contended the}- were without blame ; and that loss did not result from gross carelessness on their part, and thej' were not liable under the bill of lading. Other defences were raised b^' the answer which have been abandoned. The court a qua gave judgment for plaintiffs for the amount claimed as the value of the barge and cargo, $15,272.60, with interest from judicial demand, and defendants appealed. The appellants contend, as stated in their printed argument, "First — That they are not common carriers, or rather that their undertaking in this, or like eases, is not that of a common carrier. " Second— Th&t they are Uable, if liable at all, only in case of gross carelessness. " Third— That the restriction of liability contained in the agree- ment to tow the barge in question exonerates them, except in case of gross carelessness — as the appellants were bound to use but ordinary prudence, even if they were common carriers. " Fourth — Th&t the judgment rendered is for a larger amount than the testimonj' will authorize." The question whether a towboat under the circumstances of this par- ticular case is a common carrier has been long settled in the affirmative 112 BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. in Louisiana ; and the reasoning by which Judge Matthews supported this conclusion in the leading case of Smith v. Pierce, 1 La. 354, is worthy of the sagacity for wliicli that jurist was pre-eminent. The same opinion was clearly intimated by the Supreme Court of Massachusetts in the case of Sproiil v. Hemmingway, U Pick. 1, in which Chief Justice Shaw was the organ of the court. In the case also of Alexander v. Greene, 7 Hill, 533, the Court of Errors of New York seem to have been of the same opinion. Four of the senators in giving tlieir reasons distinctly state their belief that the towboat in that case was a common carrier, and, Judge Matthews' decision is referred to in terms of commendation as a precedent. It is true that Mr. Justice Bronson, whose opinion was thus reversed, in a subsequ€nt case declares (2 Coms. 208) that nobody could tell what the Court of Errors did decide in Alexander u. Greene, but the facts remain as above stated, and the effect of the case cannot but be to fortify the authoritj' of the decision in 1 La. In addition to these authorities we have the weighty opinion of Mr. Kent who includes " steam towboats" in his list of common carriers, 2 Kent, 599, and of Judge Kane in 13 L. K. 399. On the other hand, Judge Story seems to be of a different opinion (Bailments, § 496), and Mr. Justice Grier differed from Judge Kane. So, too, the Supreme Court of New York, in Caton v. Eumney, 18 Wend. 387, and Alexander v. Greene, 3 Hill, 9 ; the Court of Appeals of the same State in AVell v. Steam Nav. Co., 2 Coms. 207; the Supreme Court of Pennsylvania in Leonard v. Hendrickson, 18 State, 40, and Brown v. Clegg, 63 State, 51 ; and the Supreme Court of Mar^-land in Penn. Co. v. Sandridge, 8 Gill & J. 248, decided that tugboats in these particular cases were not common carriers. We are informed that tlie same decision was made in the case of the " Neaffie," latelj- decided in the United States Circuit Court in New Orleans. Such conflict of authority might be very distressing to the student, but for the fact that when these writers and cases cited by them are examined the discrepancy, except in the decision in 63 Penn., is more imaginary than real. There are two very different waj's in which a steam towboat may be employed, and it is likely that Mr. Story was contemplating one method and Mr. Kent the other. In the first place it may be employed as a mere means of locomotion under the entire control of the towed vessel ; or the owper of the towed vessel and goods therein may remain in possession and control of the property thus transported to the exclusion of the bailee; or the towing may be casual merely, and not as a regular business between fixed termini. Such were the facts in some form as stated or assumed in Caton v. Rumney, 13 Wend., and Alexander v. Greene, 3 Hill, cited by Judge Story in the case of the " Neaffie," and in the cases above quoted from 2 Corns., 18 Penn. St., and 8 Gill & J.; and it might well be said that under such circumstances the towboat or tug is not a common carrier. But a second and quite difi'erent method of employing a towboat is BUSSEY V. MISSISSIPPI VALLEY TRANSPORTATION CO. 113 where sbe plies regularly between fixed termini, towing for hire and for all persons, barges laden with goods, and taking into her full possession and control, and out of the control of the bailor the property thus trans- ported. Such is the case at bar. It seems to satisfy every requirement in tlie definition of a common carrier. Story on Bail. § 495. And it was probably to a towboat employed in this way that Mr. Kent referred in the passage quoted above ; and that the Supreme Court of Massa- chusetts had in mind in the 14 Pick. ; and see also Davis v. Housen, 6 Rob. 259, and Clapp v. Stanton, 20 An. 495. We must think that in all reason the liability of the defendants under such circnmstances should be precisely the same as if, the barge being much smaller, it had been carried, cargo and all, on the deck of their tug. But conceding that this case as a contract of affreightment must be determined by the law of Missouri (4 Martin, 584), and that by that law the defendants are not common carriers as to tlie plaintiffs, we think it clear from the evidence of the defendants' own witnesses that they were guilty of "gross carelessness" in their attempt to deliver the plaintiffs' barge with its cargo at the port of New Orleans, and that by this gross carelessness sbe was sunk, and, with her cargo, destroyed. What is " gross carelessness " ? In an employment requiring skill, it is the failure to exercise skill! New World v. King, 16 How. 475. The employment of the defendants certainly required skill. A lack of that dexterity which comes from long experience only, might be swiftly fatal, for but a single plank intervenes between the costly cargo and instant destruction. We have but to read the testimon3' of defendants' own witnesses, and especiallj' Conley, Turner, Burdeau, and Sylvester, to see that the attempt to land the barge was made without skill, and that it might easily have been effected with entire safety. We are of opinion that the judgment was correctly rendered in favor of plaintiffs, but that the amount is somewhat excessive. We find the value of the property lost at this port, less the freight and charges, and a small amount realized from the wreck, to be $13,268.50. It is therefore ordered that the judgment appealed from be amended by reducing the amount thereof to the sum of thirteen thousand two hundred and sixty-eight dollars and fifty cents, with legal interest from judicial demand and costs of the lower court, and that as thus amended it be afSrmed, appellees to pay costs of appeal.* 1 Compare: The Neaffle, I Abb. C. C. 465 ; White v. Winnisimmet Co., 7 Cush 155 ; White v. Mary Ann, 6 Cal. 462. — Ed. 114 NEWS PUBLISHING CO. V. SOUTHERN EAILWAY CO. ET AL. NEWS PUBLISHING COMPANY v. SOUTHERN RAILWAY COMPANY ET AL. Supreme Court of Tennessee, 1903. [no Tenn. 684.1] Defendant railway company contracted with defendant Commercial Publishing Company, agreeing to run a special early morning train, carrying only the newspapers of said publisher, in consideration of said publishing company guaranteeing to it certain revenue from the oper- ation of the train. This train became one of its schedule trains and was advertised as such, and was controlled exclusively by the railway company, which received all the revenues derived from the operation of said train, both in the carrj-ing of passengers and freight. Complainant, publishing the Memphis Morning News, demanded of defendant railway company the right to ship as freight its packages of newspapers to its several agents at various stations along the line of railway where the train was scheduled to stop, and tendered the usual charges on the same ; but said defendant refused to transport said newspapers, alleging as grounds of its I'efusal, the obligations of its contract with defendant Commercial Publishing Company. Mr. Chief Justice Beard. One of the duties imposed upon a rail- road as a common carrier is that it shall deal fairly and impartially with all who seek, as passengers or shippers of freight, to avail them- selves of its service. Impressed, as it is, by its grant of franchises, with a trust to the public, this trust can only be discharged by extending equal facilities to each member constituting the public. It fails of its duty, therefore, when discriminating between individuals in like condi- tion, it gives one an advantage in the carriage of his person or property which it refuses to another, and it follows that any contract made by it, by which one or more members of a class are fostered at the expense of or to the detriment of others of the same class, who demand like ser- vice, is unenforceable. Granting that goods not dangerous in their nature and not unfit for shipment are offered at a proper place and time, and that the cost of carriage is tendered, and the railroad has facilities for shipment, then it must accept and transport them. In doing this it "can show no favor, nor make distinctions which will give one employer an advantage over another, either in the time or order of shipment, or in the distance of the carriage, or in the conveniences or accommodations which may be afforded." Hutchinson on Carr., sec. 297; New Eng. Ex. Co. v. 1 The statement is taken from the head note. Only an extract from the opinion is punted. — Ed. NEWS PUBLISHING CO. V. SOUTHERN RAILWAY CO. ET AL. 115 Maine Cent. R. R., 57 Me. 188, 2 Am. Rep. 31 ; Messenger v. Penn. R. R., 36 N. J. Law, 407, 13 Am. Rep. 457 ; Union Pac. Ry. Co, v. Goodridge, 149 U. S. 680, 13 Sup. Ct. 970, 37 L. Ed. 986. These general principles are conceded by the defendants to be sound, but it is insisted they do not control the present case. It is admitted — or it is true, whether admitted or not — that the railway company, as to the train in question, was a common carrier of pas- sengers and their baggage, and of mail and express ; but it is contended that it was, by reason of its contract with the Commercial Publishing Company, a private carrier of newspapers, and therefore was under no obligations to admit the newspapers of the complainant on its train. It is true " a common carrier may become a private carrier or bailee for hire, when as a matter of accommodation or special agreement he undertakes to carry something which it is not his business to carry." Hutchinson on Carr., sec. 44. For example, " if a carrier of produce, running a truck boat, should be requested to carry a keg of silver or a load of furniture, ... he might justly refuse to receive such freight, except by such an agreement as he might choose to make. . . . But when a carrier has a regularly established business for carrying all or certain articles, and especiall}" if that carrier be a corporation created for the purpose of the carrying trade, and the carriage of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of the character." N. Y. C. R. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. Affirmed. 116 "WESTERN UNION TELEGEAPH CO. V. FEOTLEE, WESTERN UNION TELEGRAPH COMPANY v. FROTLER. Court of Appeals of Illinois, 1894. [55 III. App. 659}] Wall, J. Appellee recovered a judgment against appellant for $134.09 for failing to deliver a telegram addressed to him by a com- mission firm in Chicago. Appellee was a farmer, residing a mile and a quarter from the village of Kansas. Having some marketable cattle which he wished to sell, he wrote to the commission firm for informa- tion and they sent him the telegram in question. They did not know whether he lived in the village or what arrangements he might have made for having a telegram delivered to him and paid merely for its transmission to Kansas. The operator did not know the appellee but made effort to find him within the village and failed to do so. He learned, however, where he lived, and it being beyond the free delivery limits, did nothing further. The appellant having heard in some indi- rect way that there was a telegram for him, called at the oflSce and re- ceived it. In the meantime, not having heard from this commission firm, he had sent his cattle to another firm. The claim is that if he had received the telegram promptly he would have sent the cattle, in response thereto by the first train and would have realized a higher price than that received. The verdict repre- sents the alleged difference. The telegram was received at Kansas at 1 : 10 P.M., July 5, 1892. It did not reach the hands of appellee until the 9th. It appears that by a rule of the company the free delivery limit for a town of less than f 5,000 inhabitants was one-half mile from office. It is urged on the other side that this is a reasonable rule and that it should be enforced, and on the other that whether reasonable or not it does not appear that the sender or the appellee knew of it, and so it is not binding on either. The rule is reasonable, and not only so, but it is a matter of common knowledge among business men that there is always a limit for the free delivery of messages. The trouble here was that the appellee did not expect a reply by wire. He went to the post office daily, but as he had not instructed the commission men to telegraph him it did not occur to him that they would, and they not knowing that he lived beyond the limit, made no arrangement with the company for delivery of the message. Hence it was bound to do no more than it was paid for, that is, transmit the message to the designated office and there make reasonable effort to deliver it within the free limit. 1 Only one point is printed. — Ed. FARLEY V. LAVAEY. 117 It is argued that the agent should have known from its terms, that it was a message of importance, but this did not require him to go beyond the limits of free delivery. If he inferred that the message was of unusual importance, he must also have inferred -that the ap- pellee was expecting it, and not living within the limits, would call for it. At any rate, such a conclusion on his part would have been reasonable. We are of the opinion that the case shown by the proof did not justify the judgment, which will therefore be reversed and the cause remanded. FARLEY V. LAVAEY. Court of Appeals of Kentdckt, 1908. [107 Ky. 523.] Judge White delivered the opinion of the court. This action was brought by appellee for damages for the destruction of certain household goods. The allegations of the petition are that appellant, doing business as the Farley Transfer Company, contracted, for hire, to carry these household goods from Lexington to Nicholas- ville, and that while the goods were in the possession of appellant they were destroyed by reason of the negligence of the servants and employes of appellant in charge of the wagons. It is alleged that appellant is engaged in the business of, and is, a common carrier. The damage claimed is $500. The answer denied that appellant was a common carrier at all ; ad- mitted a contract with appellee to haul by wagon her household goods from Lexington to Nicholasville, and admitted that while in transit certain of the goods were destroj-ed by fire, and other articles damaged, but denied that by reason thereof appellee was damaged to the extent of 8500, or in anj- snm exceeding $250. The answer further pleaded that the destruction and damage to the goods by fire were without fault on his part, and denied that the fire was caused by the negligence of any of his servants. The issue was tried before a jury, who returned a verdict for $400 for appellee. Judgment was entered accordingly, and from that judg- ment this appeal is prosecuted. The facts proven on the trial without material controversy are that appellant, doing business as the Farley .Transfer Companj', had a number of vehicles running in the city of Lexington all duly and regu- larly licensed to haul for hire ; that in such business he hauled for any and all persons, and goods and merchandise of all kinds ; that he hauled in the city and about the city, to the fair grounds, and other 118 FAKLEY V. LAVAEY. places. There was no dispute as to the contract with appellee to haul the household goods, nor of the fact of damage. As the cause of the fire, there was some proof that the driver was smoking ; and, unless the fire caught from his pipe or cigar, it is unexplained how it origi- nated. The proof as to tlie amount of the loss is conflicting. The court gave to the jury an instruction as follows: "If the jury believe from the evidence that the Are which damaged or destroyed the goods of the plaintiff was caused by the negligence or carelessness of the defendant's agents or employes in charge of the wagon upon which said goods were being carried, or if the jurj- believe from the evidence that the defendant at the time of said fire was a common carrier, and was conveying said goods as a common carrier, the jury should find for the plaintiff. " The court then defined a " common carrier," and also gave the counterpart of No. 1 and as to the measure of damages. Appellant seriously objects to instruction No. 1 , quoted, and to its counterpart. Counsel insists that there was not sufficient proof of negligence of the employe in charge of the wagon to sustain a recovery on that ground, and also that there was no evidence that appellant was, as to these goods, and this contract with appellee, a common carrier. Counsel therefore insists that instruction No. 1, supra, was error, for which a reversal must be had. The instruction is based upon two ideas; i. e., appellant is liable if the loss occurred by reason of negligence of his employe ; appellant is liable if he was a common carrier. If from the evidence the court was authorized to submit to the jury the question of appellant being a com- mon carrier, the question of negligence becomes unimportant. If appel- lant was a common carrier in carrying these goods, his liability stands admitted ; for he nowhere pleads that the damage was caused by the act of God, the public enemy, or the inherent quality of the goods. 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 so to do. Being a common carrier, appellant could have been compelled to haul for appellee within the territory in which he was engaged, but she could not have compelled him to go outside his territorial limit. In this case, however, he contracted to go beyond his territory. Applying the facts to a railroad, we should say he agreed to go beyond the end of his line. It has repeatedly been 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 contracted to convey beyond its line, it would be liable as a common carrier for the whole distance. In the case of Ireland v. Mobile & Ohio Railroad Co., 105 Ky. 400 [20 Ky. L. R. 1586 ; 49 S. W. 188, 453], this doctrine is well settled. In the dissenting opinion by Mr. Justice Bdenam (Justice DuRelle CEOUCH V. ARNETT. 119 concurring) this principle is admitted and emphasized; the dissent contending that beyond its line a carrier may, by special contract, make its liability less than at common law. It being clear by the proof that appellant was a common carrier, and agreed to carry these goods from some point in Lexington to Nicholas- ville, without any further contract, the liability of a common carrier attached the whole distance. The instruction given was, therefore, not error. There appears to us no error in the record. The judgment is therefore affirmed, with damages.* CROUCH V. ARNETT. ScPBEME Court of Kansas, 1905. [71 Kans. 49.»] "William R. Smith, J. This was an action in mandamus, brought by plaintiff in error iu the district court to compel the firm of Arnett & Hobart, doing business as the lola Telephone Company, to replace in his residence a telephone instrument which, it is alleged, was arbitrarily removed therefrom by the company. Evidence was offered by the plaintiff showing that defendants, when this controversy arose, had been operating a local telephone system in Tola and vicinity for about seven years, and that the residence in which Crouch lived had been supplied with an instrument during that time. Three other persons, however, had lived in the premises during the time previous to the occupancj' of plaintiff. There were 460 patrons of the telephone company in Tola and vicinitj', 26 of whom were outside the city limits. The company also maintained telephones in connection with the lola exchange at Gas City, three and one-half miles east, and at La Harpe, three miles further distant. The residence of plaintiff was situated on grounds adjoining the city but not within the corporate limits. The pole from which the wire ex- tended into Mr. Crouch's home was thirty feet from the house and situ- ated within the corporate limits of Tola. A dispute arose between the company and Mr. Crouch respecting the payment of telephone charges, resulting in threats by the former to remove the instrument, but before it was taken out a payment was made, so that the question of the de- linquency of the plaintiff is not a factor in the case. Testimony introciuced on behalf of the telephone company tended to show that telephones were installed in manufactories outside of the city — cement plants and brick- works — but that none of them was in the vicinity of Mr. Crouch's residence, the nearest being about half 1 See also BuUard v. American Express Co., 107 Mich. 695. — Ed. '■' The dissenting opinion is omitted. — Ed. 120 CEOUOH V. AENETT. a mile. The zinc smelter adjoining the city to the northwest, the ice plant, a laundry, the water-works company and the pest-house west of the city limits were also supplied with telephones. Instruments were also furnished at the residences of four persons outside of the corporate limits of lola, but these persons either furnished or paid for their own lines and poles. Defendants in error were granted by ordinance the right to construct a telephone line in the city of lola, and to use the streets and alleys for the erection of poles. A trial before the court, without a jury, resulted in a judgment in favor of the telephone company, and plaintiff complains. It may be conceded that defendants below, by devoting their prop- erty to public employment, and by putting it in the service of the public, thereby subjected it to the regulation of the legislature and control of courts to the same extent as other common carriers are controlled. (State of Missouri v. Bell Telephone Co., 23 Fed. 539 ; Delaware & A. Telegraph & Telep. Co. v. State of Delaware, 50 Fed. 677, 2 C. C. A. 1.) We also agree with counsel that such companies cannot law- fully discriminate between subscribers of the same class, and that a company or partnership doing a general telephone business in a city must treat impartially all persons whom they undertake to serve. Also, when doing a general business outside a city, all patrons in the vicinity must be dealt with impartially. The question of fact tried and consid- ered by the court below was whether the telephone company was doing a general business outside of lola and in the vicinity thereof. The gen- eral finding of the trial court determined^the question in the negative, and that the limits of the company's general business outside the city did not embrace the plaintiff's residence. While the company was serving several manufactories bej-ond the citj' limits, thej' were not in the class with the plaintiff, and the owners of residences outside the city who liad telephones were supplied at their own expense or paid for the poles and wires used to connect them with the exchange. If Mr. Crouch had resided in the city his rights would have been clear. Be- ing outside, a question of fact was presented whether in removing his instrument a discrimination was practiced on him — a right inftinged which he enjoyed in common with others situated similarly. A tele- phone company operating wholly within the corporate 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 in- stance it did serve patrons outside of lola, 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. That there was some evidence to sustain the judg- ment of the court below cannot be denied. SAVANNAH AND OGEECHF.E CANAL 00. V. SHUMAN. 121 The judgment is afSrmed. SAVANNAH AND OGEECHEE CANAL CO. v. SHUMAN. Supreme Court of Georgia, 1893. [91 Ga. 400.] Lumpkin, J. 1. The 16th section of the charter of the Savannah, Ogeechee and Altamaha Canal Compan}', Dawson's Compilation, p. 97, declares, " that the said corporation stiall be obliged to keep the said canals and locks in good and sufBcient order, condition, and repair, j and at all times free and open to the navigation of boats, rafts, and other water crafts ; and for the transportation of goods, merchandise, and produce," etc. Counsel on both sides referred us to the above charter as that of the plaintiff in error, which is designated in the record as the " Savannah and Ogeechee Canal Co.," and is also thus desig- nated in the case of Habersham et al. against this corporation in 26 Ga. 665. We therefore presume, without investigation, that the corporate name of this company was at some time properly amended by striking out " Altamaha" and placing "and" before " Ogeechee." It is appar- ent, without argument, that under this charter it is the imperative duty of this company to keep its canal in a navigable condition, and accord- ing to the principle of the ruling of this court in the case above cited, the performance of this duty may be enforced by mandamus. 2. It appears from the record that the defendant in error is engaged in the lumber business, and for several years had used the canal in question for transporting timber and other things, and that because of its unnavigable condition he was compelled to ship his timber by a more circuitous and expensive route. It is clear, therefore, that he is specially interested in the navigation for which this canal was char- ^ tered, and that by the failure of the company to keep the canal nav- ' igable he sustains a special damage in which the general public does not share. Under these circumstances he was, in our opinion, entitled to the writ of mandamus to compel a performance by the company of the duty above mentioned. There may be authorities to the contrary, 122 SAVANNAH AND OGEECHEE CANAL CO. V. SHUMAN. but the true law of this question seems to be in favor of the doctrine that a private person may, by mandamus, enforce the performance by a corporation of a public duty as to matters in which he has a special interest. See 2 Morawetz on Priv. Corp. § 1132 ; 4 Am. & Eng. Enc. of Law, 289, 291, and eases cited. In the case reported in 26th Ga., supra, the relief sought was granted at the instance of private per- sons, but it does not appear tliat the point was specially made as to their right, as such, to apply for the writ of mandamus, the position then taken by the canal company being that this writ would not lie at all. 3. In Moody v. Fleming, 4 Ga. 115, this court held that, except in a case of clear legal right, the writ of mandamus was a discretionary remedy. This view was followed in Harwell & Wife v. Armstrong et al, 11 Ga. 328, and in Loyless v. Howell, 15 Ga. 554, injunction cases, in which this court, by citing the case first above mentioned, evidently intended to put cases of mandamus and of injunction upon the same footing as to the question of discretion. The granting, or refusing, of injunctions has always been regarded as discretionary, and it seems quite clear that in cases of mandamus, it lies very largely ■within the discretion of the presiding judge as to whether or not tiie writ will, in a given case, be made absolute ; and in order to reverse a judgment in a case of this kind, it would be necessary to show that the discretion of the court was abused. In the present case, the corporation answered that it had no funds, nor any means of obtaining such ; and also, that it would not be prof- itable to operate the canal if it were put in navigable condition. For the purposes of the decision below this answer was taken as true, the question of its suflBciency being raised by demurrer. So long as the corporation retains its franchise, it will not be allowed / to urge as an excuse for failing to perform any duty required of it by its charter, that the same would be unprofitable. It cannot consistently keep the franchise and refuse to perform the duties incident thereto for the mere reason that such performance would be unremunerative. If the rights, privileges, and franchises granted by the charter are, in connection with the corresponding duties thereby imposed, no longer desirable, the companj' should simply surrender the charter. As to the validity of the other reason alleged for failing to put the canal in a navigable condition, viz. : that the company is without funds, and without means of obtaining funds, the question is by no means so clear. The writer was inclined to hold that, under section 3200 of tlie code (providing that mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless), the answer of the company presented a good reason for refusing in this case to make the writ absolute. After some reflection, however, I have yielded to the better judgment of my brethren, and concluded to agree with them in holding that the entire matter may be safely left to the discre- tion of the circuit judge. While it is quite certain that if the company STATE EX EEL. V. DODGE CITY, ETC. EAILWAT. 123 has no funds now, nor any means of obtaining them, and remains per- manently in this condition, compliance with the judge's final order will be impossible, so far as the corporation itself is concerned, there may- be a change in the present condition of things, and the officers of the company may be able to find some way to raise money in order to obey the mandate of the court. At any rate, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the court in any proceeding for contempt which may be instituted against them, we apprehend the presiding judge would take great care / to see that no injustice or hardship was imposed upon them, and cer- ' tainly would not inflict punishment for a failure to do a thing impossible of accomplishment. This matter is not now directly before us, and we leave the question thus raised to be dealt with by the judge of the court below when it arises, if it ever does. Judgment affirmed}' STATE EX REL. LITTLE v. DODGE CITY, MONTEZUMA AND TRINIDAD RAILWAY CO. Supreme Codrt or Kansas, 1894. [53 Kan. 329.] HoRTON, C. J. This proceeding has been commenced in this court, not for the purpose of compelling the Dodge City, Montezuma and Trinidad Railway Company or any of the defendants to operate the line of that railway in Ford and Gray Counties, or any part thereof, J but merely to require the defendants to repair and relay certain por-. tions of the track and roadbed of the railway company. A railway company may be compelled by mandamits to perform the public duties specifically and plainly imposed upon the corporation ; and, therefore, we have no doubt of the power of this court, in a proper case, to com- pel a company to operate its road, and for that purpose to compel the ' replacement of its track torn up in violation of its charter. The State V. Railway Co., 33 Kans. 176 ; City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609 ; U. P. Ry. Co. v. Hall, 91 U. S. 343 ; Rex v. S. & W. Ry. Co., 2 Barn. & Aid. 646. But the granting of a writ of man- damus rests somewhat in the discretion of the court. City of Potwin Place V. Topeka Ry. Co., supra. The Montezuma railway company is insolvent. It has no cars or 1 Compare: In re R. R., 17 N. B. 667 j R. v. S. W. R. R., 2 B. & A. 646; Paoifio R. R. V. Hall, 91 U. S. 343.— Ed. 124 STATE EX REL. V. DODGE CITY, ETC. KAILWAT. engines. Its line of road has not been operated for many months. The road cannot be operated except at a great loss. The railway company is not able to operate it, and has no funds or property which can be applied to the payment of operating expenses. A. T. Soule, the promoter of tlie railway company, has expended over $200,000 in the construction and operation of the road witliont any returns. All of its property was sold, or attempted to be sold, to the Block-Pollak company for $2.5,000 only. The venture of the promoter has been very unsuccessful to him. His experience, and the other parties invest- ing, in constructing and operating this railway has been most unfortu- nate. No one connected with the railway corporation has realized any / personal benefit from any bond, mortgage, or subsidy of the road. The Rock Island road, which, by an arrangement with the Montezuma company, ran its trains over the road from the time of its completion until May, 1893, and which has better facilities for operating the road than any other company or person, will not take the road as a gift and operate it. It seems to be conclusively shown that all the receipts to ; be derived from operating the road will not pay the operating expenses, ^ not taking into account the repairs of the road and the taxes. The contention on the part of the plaintiflF is, that as the railway ■was sold to E. F. Kellogg for Wilson Soule by a receiver, and not by the sheriff of Ford Countj', the sale is absolutely void. If this be true, then there is no legal duty upon the part of Wilson Soule to repair or operate the road. If, however, the sale is not absolutely void, we do not think, upon the showing made, that Wilson Soule, as a private per- son, ought to be compelled to operate the road. The Block-Pollak Iron Company cannot, under its conditional purchase of the super- structure, be compelled to repair or operate the road. There is no legal duty upon any of the other defendants to repair the road. There- fore, the question is, whether the court will compel, or attempt to com- pel, the railway company, a bankrupt corporation, to relay the track and repair the roadbed. The court will not make a useless or futile order. It will not do a vain thing. The order prayed for should only be issued in the interest of the public. If the track is replaced, there is no reasonable probability that the road will be or can be operated. If a railway will not pay its mere operating expenses, the public has little interest in the operation of the road or in its being kept in repair. Mor. Priv. Cor. 1119 ; Commonwealth v. Fitchburg Ry. Co., 12 Gray, 180 ; 0. & M. Ry. Co. v. People, 30 Am. & Eng. Ry. Gases [111.], 509 ; People V. A. & Vt. Ry. Co., 24 N. Y. 261. The average life of Cedar ties — the kind used on this road — is from three to five years. All the ties laid in 1888 will soon be so much de- cayed as to be worthless. A large part were worthless when the track •was taken up. If the track were relaid. the road would be in no reasonable condition to be used, unless new ties were furnished, and these in a few years would again become decayed and useless. The use of the road was abandoned before any part of the track was torn WELD V. GAS & ELECTRIC LIGHT COMMISSIONERS. 125 up. If the track were replaced, it would be of no immediate public benefit — possibly of no future benefit — because, if the railway is not operated, the mere existence of a road, not in use, is not beneficial to any one. The peremptory writ prayed for will be denied, with costs. All the justices concurring. WELD V. GAS & ELECTRIC LIGHT COMMISSIONERS. Supreme Court of Massachusetts] 1908. [197 Mass. 556.] Petitions by Charles G. Weld for certiorari against the board of gas and electric light commissioners, to review a decision of the board, and for mandamus against the Edison Electric Illuminating Company of Boston. Cases reported to the full court. Petitions dismissed. It appeared that the petitioner, the owner of a house on Bay State Koad in Boston had formerly been supplied with electricity by the respondent, Edison Illuminating Company of Boston, but in the year / 1902 an arrangement was made between the respondent and a Brook-'' line company by which the conduits .and business of the Boston Coln- pany on the westerly side of a line fixed were taken oyer by the Brookline companj-, and thereafter the petitioner was furnished current b}- the Brookline company as his house lay to the west of the line. Knowlton, C. J. The petitioner is seeking the enforcement of an alleged public right. His private interest is not independent of the rights of the public, but he claims only through the public, and as one of the citizens who are to be served by the respondent. See Brewster V. Sherman (Mass.), 80 N. E. 821. The facts show that he has suffered nothing in the sufficiency or quality of the service, or the price charged for it. So far as appears he is not likely to suffer in the future. In- deed, the statutes above referred to are intended to give him perfect protection. We come, therefore, to the question whether, under our laws, an electric light or gas company, having a franchise covering a cit3' or town in which another company has ^ like franchise, cannot, in con- ducting its business, if the public interest is not thereby affected, ar- range with the other company to extend its lines into one part of the y territory that is being newly developed, and leave the other company ' to extend its lines into another part of the territory, so that neither company will duplicate lines in streets where the other is serving the public. It seems to us that, under such conditions, this is a detail of administration which is not in violation of law. In other words, we 126 WELD V. GAS & ELEOTKIO LIGHT COMMISSIONERS, think that a corporation making such an arrangement is not subject to prosecution under a writ of mandamus, for a failure properlj- to exercise its corporate franchise. We are not called upon to determine in this case whether such an arrangement could be availed of as a justification, if, unexpectedlj' it should turn out that the public interest was injuri- ously affected. We do not suggest that a ' corporation can relieve it- self of the performance of its duties to the public under its franchise ; but onl}' that details of administration, not inconsistent with the legis- lative policy of the commonwealth, may be left to the corporation, so V long as adequate provision is made for the public. We go no further than to asLy that, under conditions like the present, the public has no grievance which the court will recognize. We do not think it fatal to the defence that the arrangement before us includes, with the undeveloped territory into which electric lighting is expected to be extended, a street or streets in which both companies had run wires previously. The same principle applies in both cases. In neither are the consumers left at the mercy of a monopoly. V The principal reasons which moved the courts to their decisions in Portland Natural Gas Co. v. State, 135 Ind. 54, 34 N. E. 818, 21 L. R. A. 639, in Brunswick Gaslight Co-.v. United Gas, Fuel & Light Co., 85 Me. 532, 27 Atl. 525, 35 Am. St. Rep. 385, and in some of the other cases above cited, are entirely wanting in the present case. In Com. V. Fitchburg Railroad Co., 12 Gray, 180, and in People v. Rome, etc.. Railroad Co., 103 N. Y. 95, 8 N. E. 369, a railroad corpo- ration was allowed to discontinue a part of the public service that pre- viously had been rendered under its franchise. It was justified on the ground that the public interest did not longer require the service. The principle which lies at the foundation of those decisions is equally ap- plicable to the present case. See, also, Crane v. Northwestern Railroad Co., 74 Iowa, 330, 37 N. W. 397, 7 Am. St. Rep. 479 ; San Antonio Street Railway Co. v. State, 90 Tex. 520, 39 S. W. 926, 35 L. R. A, 662, 59 Am. St. Rep. 834; BuUard v. American Express Co., 107 Mich. 695, 65 N. W. 551, 33 L. R. A. 66, 61 Am. St. Rep. 358. In each case the entry must be : Petition dismissed. ANONYMOUS. 127 ANONYMOUS. King's Bench, 1623. [Godbolt, 335, pi. 440.] Four several men were joj-ntly indicted for erecting and keeping of four several inns in Batlie ; It was moved that the indictment was in- sufllcient, because the offence of the one is not the offence of the other, like unto the case in Dyer 19. Where two joyn in an Action upon the Case for words, 'tis not good, but they ought for to sever in their ac- tions, because the wrong to the one, is no wrong to the other. Doder- IDGE, Justice. One Indictment may comprehend several offences, if they be particularly laid, and then it is in law several indictments : it may be intended that the inns were lawful inns ; for it is not laid to be ad nocumenium, and therefore not punishable ; hut if they be an annoy- ance and inconvenient for the inhabitants, then the fame ought particu- larlj' to appear ; otherwise it is a thing lawful to erect an inn. An action upon the case Ij'eth against an innkeeper who denies lodging to a trav- ailer for his money, if he hath spare lodging ; because he hath sub- jected himself to keep a common inn. And in an action upon the case against an innkeeper he needeth not to shew that he bath a license to keep the inn. If an innkeeper taketh down his signe, and j-et keepeth an hosterie, and action upon the case will lie against him, if he do deny lodging unto a travailer for his money ; but if he taketh down his signe, and giveth over the keeping of an inn, then he is discharged from giving lodging. The indictment in the principal case is not good, for want of the words (ad Nocumentum) Haughton and Ley, Justices agreed. Ley, If an indictement be for an offence which the court ex officio, ought to take notice to be ad Nocumentum^ there the indictement being general, ad nocumentum ut any power to give notice to her to leave. This is a startling proposition, and, as it is moreover unsupported by authority, I cannot assent to it. It is hardly necessary to say anything about the sug- gested implied contract. The action was not founded on it, and the proposition itself will not bear examination. For these reasons I con- cur in the judgments already delivered. Appeal dismissed} 1 Compare: Moore v. Beech Co., 87 Cal. 483 ; Davis v. Gay, 141 Mass. 531 ; Horner V. Harvey, 3 N. M. 197 ; Howth v. Franklin, 20 Tex. 798:; Clary v. Willey, 49 Vt. 55. — Ed. 134 FLEMING V. MONTGOMERY LIGHT CO. FLEMING V. MONTGOMERY LIGHT CO. Supreme Cockt of Alabama, 1892. [100 Ala. 657.] Coleman, J. Appellant as complainant filed the present bill for the purpose of enjoining the respondent, the Montgomery Light Compan}-, from removing its gas meter from the premises of complainant, and to enjoin the respondent " from refusing to furnish j'our orator gas." Complainant's rights are very clearly set forth in the bill and grow out of an agreement entered into in the j-ear 1852 between the City of Montgomery and the John Jeffrey Company, by the terms of which the exclusive right and privilege of manufacturing and supplying gas for a period of fifty years for the city of Montgomery and its inhabi- tants was granted to the John Jeffrey Company, the said company agreeing on its part, "at all times to supply the inhabitants of the City of Montgomery, for private use, with a sufficient quantitj- of gas of the most approved quality." The Montgomery Light Company has succeeded to all the privileges and assumed all the obligations of the John Jeffrey Company. Stripped of the statement of facts necessary to present the complainant's case in an intelligible form, the one question raised is, whether the assumption to supply the inhabitants of the city of Montgomery with gas, imposes the legal duty on the company to furnish gas meters and keep on hand a sufficient quantity of gas, for inhabitants who do not use or consume gas, but who de- sire to be supplied " with meters and connections with the defend- ant's gas pipes so that in case an accident, which is apt to occur, should happen, they could use the gas." A statement of the proposition suggests its answer. There can be no difference in principle between the case stated and the one in the bill, in which it is shown that at one time complainant used gas for lights, but at the time of filing the bill, and previous thereto, com- plainant used in his building electric lights furnished by a different company, or corporation, and was not a patron of defendant company, and the injunction was to make provision "to use gas" "in case an accident should happen to the electric lights in use by orator." Plaintiff's contention is, that although he has made other arrange- ments with a different company for light, yet it is the duty of respond- ent to keep on hand gas and electricity with proper meters and con- nections and electric burners " in case of an accident " to the company which has contracted to supply him, and that too without any cor- responding obligation on his part to use the gas of the defendant. We can find no such provision in the contract between the city and respondent, expressed or implied. There is no equality or equity in such a proposition. It is hardly necessary to cite authorities, but we refer to the following : Williams v. Mutual Gas Co., 50 Amer. Kep. 266 ; 52 Mich. 499. There is no eiTor in the record. Affirmed. V PUBLIC SERVICE CORP. ET AL. V. AMERICAN LIGHTING CO. 135 PUBLIC SERVICE CORPORATION et al. v. AMERICAN LIGHTING COMPANY. Court of Chancery op New Jersey, 1904. [67 N. J. Eq. 122.1] Pitney, V. C. The complaiuant, the Public Service Corporation, is the lessee for a long term of years, and in the possession as such, of the property of the other complainants, the Hudson County Gas Com- pany and the Jersey City Gas Light Company. The complainants own and control and have been in the undisputed possession, for many years, of a gas manufacturing and distributing plant in the city of Jersey City, which distributing plant covers the entire citj', and the companies are enjoying the franchise of laying and maintaining their gas mains under the surface of the streets of that citj'. They have for many years supplied the householding inhabitants with gas for domestic use, and have also, for a like period of time, supplied the municipality with gas for street lighting purposes. . . . The defendant, the American Lighting Companj', is a corporation of the State of Marj-- land, and has no franchise whatever in the State of New Jersej- or in '' the city of Jersey City; nor does it pretend to have any. It is simply the proprietor of what it claims to be a peculiarly meritorious light pro- ducing lamp, or burner, which it claims will produce a much greater amount of light from the same amount of gas than the burner heretofore in use by the complainants and known as the " Welsbach burner." By its affidavits it states that it has recently introduced its burners into several cities, including Baltimore, with great success. . . . This being its sole business, and, it not being either a citizen or householder of Jersey City, it has, in my judgment, no standing whatever, in its own right, to demand and receive from the complainants a supply of gas for any purpose whatever. . . . lam 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 reason of their enjoyment of a public franchise of laying mains in the streets to furnish gas, extending 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 w'alking along the street, and yet be destitute 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 This abstract of this case is taken from the opinion of Bbadfokd, D. J., in Amer- ican Co. V. Public Service Co., 132 Fed. 794. — Ed. 136 STATE EX EEL. MILSTEAD V. BUTTE CITY WATEK CO. STATE EX EEL. MILSTEAD v. BUTTE CITY WATER COMPANY. Supreme Court of Montana, 1896. [\S Mont. 199.1] The appellant is a water company, engaged in supplying the inhabi- tants of the city of Butte with water, under its franchise. Tlie city gave the corporation the right to lay its mains in its streets and alleys. The company, on the other hand, is required to supply the inhabitants of the cit}- of Butte with water for general use, at prices specified in the franchise granted. The relator is an inhabitant of Butte, occupy- ing premises whoU}' without water for general 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, " hy virtue of its rules and regulations adopted, it can deal only with the owners of the property requiring water to be turned on, or the agents of said owners ? " ,We saj- not. The performance of the duty the companj- undertook when it ac- cepted the franchise granted was to supply the inhabitants of the city with water. " A waterworks company is a qicasi public corporation. It must supply water to all who apply therefor and offer to pay rents." J (Cook on Stock, Stockh. & Corp. Law, § 932.) The account of which the grant was given was a public purpose. (Lumbard v. Stearns, 4 Cush. 61.) Therefore, " the grant is subject to an implied condition that the company shall assume an obligation to fulfill the public pur- pose on account of which the grant was made." (Morawetz on Priv. Corp. § 1129.) The view that supplying a city and its inhabitants with water for general purposes is a business of a public nature, and meets a general necessity, is sustained by the great weight of authority reviewed in a learned opinion of Lord, C. J., in Haugen v. Water Co. (Or.), 28 Pac. 244. It was there said : " The defendant, by incorporating under the statute, for the purpose of supplying water to the city and its inhabi- tants, undertook a business which it could not have carried on without the grant of eminent domain over the streets in which to lay its pipes. It was by incorporating for this purpose, and in accepting the grant, it \J became invested with a franchise belonging to the public, and not en- joyed of common right, for the accomplishment of public objects, and the promotion of public convenience and comfort. Its business was not of a private, but of public, nature, and designed, under the condi- tions of the grant as well for the benefit of the public as the company." * The principal point is printed Ed. NICHOLSON V. NEW YORK CITY EAILWAY COMPANY. 137 Certainlj-, the company may make reasonable rules and regulations. Doubtless it may require payments in advance for a reasonable lengtli of time. It may, wittiin reasonable limitations, cut off the supply of , those who refuse to pay water rents due. It may make regulations au- thorizing an examination of meters in houses at reasonable times, or adopt other reasonable rules for the regulation of its affairs. But 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. Whether the owner has made a contract with the corporation to hold himself personally liable or not, or whether he has signed anj- paper agreeing to subject his property to a lien for water rents, we will not discuss in this case. The water company in no case, however, can go beyond the powers granted to it, and such powers must be exercised in a reasonable manner ; and, if it has adopted a by-law that is in conflict with its franchise, which may be termed its constitution, or is unreason- able or oppressive, the subordinate rule or by-law will be set aside. (Thompson on Corp. § 1010 ef seq.) This relator was entitled to water, and to a receipt for his payment, issued directly to him, and to liave the amount of his payment credited to him alone, and the b^'-law pleaded by the company is, as to him, clearly unreasonable ; and it is immaterial to his rights whether the\ owner had any agreement with the company or not, or whetlier, as tenant, he knew of the existence of any such agreement. The duty of the companj-, under its franchise, and undertaken to be fulfilled, must be performed. The order appealed from is affirmed. Affirmed. NICHOLSON V. NEW YORK CITY EAILWAY COMPANY. Supreme Couet of New York, Appellate Division, 1907. [118 i\r. Y. App. Div. 858.] McLaughlin, J. This action was brought in the Municipal Court of the city of New York to recover a penalty of fifty dollars for the defendant's refusal to furnish the plaintiff a transfer between different lines of its street surface railroads in the city of New York in alleged violation of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered amd. by Laws of 1892, chap. 676). Upon the trial, at the close of plaintiff's case, the defendant moved that the complaint be dismissed upon the ground, among others, that the plaintiff, at the time the transfer was refused, was not a pas- senger in good faith seeking to be transferred to a connecting line of 138 NICHOLSON V. NEW YORK CITY BAILWAY COMPANY. defendant's road ; that, on the contrary, the fact was uncontradicted that her sole purpose in asking for a transfer was to bring an action to recover the penalty in case of its refusal. The motion was denied and the defendant, after offering in evidence the record in another case tried immediately preceding this one, rested and renewed the motion to dismiss. The motion was denied and judgment rendered in favor of the plaintiff for the penalty, together with the costs, from which the defendant appealed to tlie Appellate Term. There the judgment was affirmed, and, by permission, the defendant appeals to this court. I am of the opinion that the determination of the Appellate Term and the judgment of the Municipal Court should be reversed and a new trial ordered. The section of the statute above referred to and which is relied upon as a justification for the maintenance of this action, reads as follows : " Every such corporation entering into such contract, shall carry or permit any other party thereto to carry, between any two points on the railroads or portions thereof embraced in such contract, any passenger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corpo- ration shall, upon demand and without extra charge, give to each pas- senger paying one single fare, a transfer entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substan- tially as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section, the corporation so re- fusing shall forfeit fifty dollars to the aggrieved party. The provisions of this section shall only applj' to railroads wholly within the limits of any one incorporated city or village." The purpose of this statute is set forth in it. It is to promote the public convenience, and that this may be accomplished it directs that the railroads embraced in any contract referred to therein shall be operated substantially as a single road with a single rate of fare. The ' ' public convenience " has refer- ence manifestly to passengers travelling in good faith. This is appar- ent from the statute itself, because it commands that the railroad shall carry for a single fare between any two points on its roads "any passenger desiring to make one continuous trip between such points." The plaintiff, therefore, in order to maintain the action, had to prove that she became a passenger in the first instance in good faith and for the purpose of going to some point on the line to which she wished to be transferred. She not only failed to prove this fact, but her counsel frankly conceded at the trial, as he did upon the oral argument of the appeal in this court, that her sole purpose in becoming a passenger was to bring an action for the penalty provided in the statute. Obviously, under such circumstances, the action cannot be maintained. It will be noticed that only a passenger who has been ' ' aggrieved " can maintain an action to recover the penalty. The plaintiff was not NICHOLSON V. NEW YORK CITY RAILWAY COMPANY. 139 " aggrieved." Indeed, she would have been disappointed had she re- ceived the transfer demanded, because in that event the purpose of her talcing the car would have been frustrated. The object of the statute, as already indicated, is to promote tlie public convenience. It is not to put money in an individual's pocket, unless such individual comes fairly within the provisions of the statute, viz., a passenger in good faith who has been aggrieved by the railroad company's refusal to give a transfer to some point on a connecting line to which be desires to go. (Myers v. Brooklyn Heights R. R. Co., 10 App. Div. 335 ; Southern Pacific Co. V. Robinson, 132 Cal. 408 ; Jolley v. Chicago, M. & St. P. R. Co., 119 Iowa, 491.) In Myers v. Brooklyn Heights R. R. Co. (supra) the precise ques- tion here presented was considered and a similar conclusion reached. The construction there placed upon the statute was binding upon the Appellate Term and might well have been followed, but it was not — presumably because the court was of the opinion that it was controlled by Fisher v. N. Y. C. & H. R. R. R. Co. (46. N. Y. 644), but in the Myers case the reason why the Fisher case did not apply to an action brought to recover a penalty under section 104 of the Railroad Law was pointed out. The statute upon which the Fisher case rested (Laws of 1587, chap. 185) is materially different. That act provides that " any railroad company which shall ask and receive a greater rate of fare than that allowed bj' law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same." Not a word is said in that statute about a passenger, but it is the party paying the excess of fare who may maintain the action. Here, the present statute is not only limited to a passenger, but to one who desires to go to some point on the connecting line. The statute, therefore, as it seems to me, b^' express provision precludes one from suing for a penalty who has no intent to go to a point on the connect- ing line, but who takes the car merely for the purpose of putting him- self in a position to bring an action. The determination of the Appellate Term and the judgment of the Municipal Court must, therefore, be reversed and a new trial ordered, with costs to appellant to abide event. Patterson, P. J., Houghton, Scott and Lambert, JJ., concurred. Determination and judgment reversed, new trial ordered, costs to appellant to abide event. 140 FERGUSON V. METBOPOLITAN GAS LIGHT CO. FERGUSON V. THE METROPOLITAN GAS LIGHT COMPANY. New York Common Pleas, 1868. [37 Sow. Pr. 189.] By the court, Brady, J. The plaintiff occupied one floor of a dwell- ing or tenement house in this citj'. The owner had put in it the service pipes for gas, according to the regulations of the defendants. He applied for gas which was supplied through one meter, placed in the cellar of the house. He also applied for separate meters for each floor, which were not furnished by the defendants, and it would seem because he had not put into the house separate or independent service pipes for each floor to which the meter might be connected. It does not appear that this application being refused, he took any steps to enforce his demand. It is conceded that the pipes in the house were sufficient to serve it with gas, and that, gas could be carried to all parts of it through them. The plaintiff when he became an occupant also applied for gas, and the defendants answered by saying that thej' had already furnished it to the building, and refused to place a meter on the plaintiff's floor unless separate and independent service pipes were provided. The plaintifl's application was not in fact alone for gas, but for a separate meter as well. He wanted the meter, as he stated on the trial, and the question really involved in this controversy is, whether the defendants were bound to furnish it. The plaintiff sues for a penalty under the sixth section of the act of 1859 (Laws, p. 698), which provides that all gas companies shall supply gas to the owner or occupant of any building or premises, which may be required for lighting it or them, upon a written application therefor to be signed by him. It also provides, that if for the space of ten days after such application, and the deposit of a reasonable sum, as in the act provided (if required), the company shall refuse or neglect to supply gas, they shall pay to the applicant the sum of ten dollars and five dollars for every day thereafter during which such neglect or re- fusal shall continue. It will be observed that there is no qualification on the obligation FEEGUSON V. METROPOLITAN GAS LIGHT CO. 141 imposed by the statute. The gas must be furnished or a penalty is incurred, which continues from day to day, as long as the refusal or neglect to supply it is continued. It will also be observed that the section referred to does not either directly or indirectly require the compan}' to furnish a meter, either to the owner or occupant, for the whole or any part of the premises, and the act is equally silent as to the mode bj* which the gas shall be conveyed through the houses. The plaintiff seeks the enforcement of a penaltj', and whether the statute be regarded as penal or remedial, and one either to be strictly or liberally construed, his claim is not within its purview. Assuming that he is the occupant of premises within the meaning of the statute, which \tisiy well be questioned, and that he had the right to apply for gas, the answer to his demand is, that gas was supplied through the pipes provided b3' his landlord, which he could use if he chose to do so, and the response disposes of his claim. The owner of the building had exhausted the power to compel the defendants to furnish gas, under section six of the act referi-ed to. They had granted his application for it, although they had declined to furnish separate meters, a neglect or refusal of which to him he alone could take advantage of. The gas having been thus furnished, no penalty was incurred by them, unless the omission to supplj' a meter to the plaintiff is fairly within the appli- cation for gas and included in it. This cannot be. The meter is employed for the benefit not of the consumer but the company, and cannot be used without tests which the former maj' insist shall be applied (§ 5). If the company prefer, they may supply the gas without it, for aught that appears in this case. The statute does not require them to furnish it, and that in itself may be sufficient to dispose of this case. If the statute be strictly con- I strued, the defendants are not liable, because they have furnished gas to the building which includes the premises occupied bj' the plaintiff, and which only they were bound to furnish, and if it be liberally* en- forced, then the defendants should not be obliged to provide an article which is not required by the letter of the law, nor necessary to the plaintiff for the enjoyment of the light which he desires, nor should such a construction create a duty which under its provisions is not declared. It must be said in addition, that if it were otherwise considered, that the defendants should not be prohibited from adopting reasonable rules with reference to the introduction of gas, protective of their own interests. They proved on the trial, that it was not customary to put in sepa- rate meters such as demanded b}'' the plaintiff, without separate service pipes, and that they were necessary to prevent " tapping," which would result in a fraud upon their rights. The legislature has by various provisions in the act of 1859 sought to guard them against fraud and theft, and has taken the lead in anticipating violations of fair dealing, against which corporations as well as natural persons are guaranteed 142 liAWEENCE V. PULLMAN PALACE CAR CO. under our laws, the right to protect themselves, even in the discharge of duties imposed upon them. For these reasons the judgment should be reversed. LAWRENCE v. PULLMAN PALACE CAR CO. Supreme Court of Massachusetts, 1887. [144 Ma$$. i.»] Devens, J. The gist of the plaintiff's claim is that he was wrong- fully refused accommodation in the sleeping car of the defendant, in coming from Baltimore to New York, by the defendant's servants; and that, on declining to leave the car, he was ejected therefrom. His argument assumes that it was for the defendant to determine under what circumstances a passenger should be allowed to purchase a berth, and, incidentally, tlie other accommodations afforded by the sleeping car. An examination of the contract with the Pennsylvania Raih'oad Companj-, bj' virtue of which the cars owned \>y tlie defendant were conveyed over its railroad, shows that, while these cars were to be fur- nished b^- the defendant corporation, thej' were so furnished to be used bj- the railroad companj- " for the transportation of passengers ; " tliat its employees were to be governed by the rules and regulations of the railroad companj', such as it might adopt, from time to time, for tbe government of its own emploj-ees. While, therefore, the defendant companj' was to collect the fares for the accommodations furnished by its cars, keep them in proper order, and attend upon the passengers, it was for the railroad company to determine who should be entitled to enjoy the accommodations of these cars, and bj' what regulation this use of the cars should be governed. The defendant companj- could not certainly furnish a berth in its cars until the person requesting it had become entitled to transportation by the railroad company as a passen- ger, and he must also be entitled to the transportation for such routes, distances, or under such circumstances, as the railroad company should determine to be those under which the defendant companj' would be authorized to furnish him with its accommodations. The defendant company could only contract with a passenger when he was of such a class that the railroad company permitted the contract to be made. The railroad company had classified its trains, fixing the terms upon which persons should become entitled to transportation in the sleeping cars, and the cars in which such transportation would be afforded. It was its regulation that, between Baltimore and New York, this accom- modation should only be furnished to those holding a ticket over the whole route. It does not appear that this was an unreasonable rule, * This case is abridged. — Ed. LAWEENCE V. PULLMAN PALACE CAR CO. 143 but, whether it was so or not, it was the regulation of the railroad com- pany, and not of the defendant. The evidence was, " that the ordinarj- train conductors of the Pennsylvania Eailroad Company have full and entire authority over the porters and conductors of the Pullman cars, in regard to the matter of determining who shall ride in the cars, and under what circumstances, and in regard to every other thing, except" the details of care, &c. The defendant's servant, the plaintiff having en- tered the sleeping car, informed hira that his " split tickets," as they are termed, were not such as would entitle hira to purchase a berth, and tliat he could sell only to those holding " through passage tickets, intact, to the point to which sleeping accommodations were desired." The plaintiff was in no way disturbed until the train conductor (who was not the defendant's servant) came into the car, informed the plain- tiff that his tickets were not such as to entitle him to purchase the sleeping-car ticket, and several times urged the plaintiff to leave the sleeping car, which the plai-ntiff refused to do. Whether accommoda- tion was rightly refused to the plaintiff or not in the sleeping car, the refusal was the act of the railroad compan3-'s servant, and not of the defendant's, whose duty it was to be guided by the train conductor. The ejection of the plaintiff was also the act of the railroad companj', and not of the defendant. It is the contention of the plaintiff, that, even if he might be ejected from the car, it was done in an improper manner. The plaintiff testified that he was waiting for a " show of force," after his repeated refusals to leave the car. This exhibition of force was made b^' the train conductor, who put his hand upon him, when the plaintiff rose and yielded thereto. The defendant's conductor took hold of the plaintiff's arm when he rose, and aided the plaintiff in crossing the platform of the cars, but the evidence does not show that he used or exercised any force whatever. Even if he had used force upon the plaintiff, he was not doing^ the business of the defendant com- pany ; he was assisting the train conductor in the duty he was perform- ing as servant of the railroad compan}'. To conduct him across from one car to another in the manner described bj' the plaintiff himself, after he had repeatedly refused to leave the car, affords no evidence of any removal in an improper manner. The act of the defendant's servant was in every way calculated to assist the plaintiff in his transit from one car to another. Nor is the fact important that the car into which the plaintiff was passed subsequently became cold, even if it were possible to hold the defendant responsible for the act of its servant. So far as appears b^-^ the evidenpe, there is no reason to believe that, when the plaintiff en- tered the car, it was not in fit condition to receive passengers ; and, by the contract, the management of it and the duty of furnishing fuel were entirely with the railroad company, and not with the defendant. Judgment on the verdict.^ 1 Lemon v. Palace Car Co., 52 Fed. 262; Nevin v. Palace Car Co,, 106 111. 226; Williams v. Palace Cat Co., 40 La. Ann. 417. — Ed. 144 WESTEKN UNION TELEGKAPH CO. V. DOZIER. WESTEEN UNION TELEGRAPH CO. v. DOZIER. Sdpkeme Court of Mississippi, 1889. [67 Miss. 288.] Campbell, J., delivered the opinion of the court. The verdict is contrary to the law and evidence, and should have been set aside. There is no warrant in the evidence, in anj' view of the law, for a recoverj' of any actual damage, for none is shown, it not appearing that Dr. Dozier sustained any by reason of the non-receipt of a message requesting his services. The truth appears to be that no message was sent to Dr. Dozier, but that, an ineffectual effort having been made to get Dr. Walker at Nicholson, and Dr. Watkins at Hat- tiesburg, the operator at Poplarville inquired of the operator at Hat- tiesburg if Dr. Dozier was in the town and was informed in reply that he had removed to Gulf-Port, and this being supposed to be true, nO message was sent to Dr. Dozier. It is certain that no message to him was charged for or paid for, and therefore nothing was received by the company on this account. It appears that the operator, Mr. Atkins, was in full sympathy with those trying to procure a physician, and at his own instance, and free of cost to them, wired to Ellisville for the purpose of getting a physician known to him, who lived there, and this suggests the improbability that he should have failed to transmit any message delivered to him to be sent to Dr. Dozier. The only messages actually written for transmission were to Dr. Walker at Nicholson, and to Dr. Watkins at Hattiesburg and they were transmitted. If it be true that Stewart and Flanagan or either told the operator to wire Dr. Dozier, the question is, whether that was the delivery of a message, within the meaning of the law, for the non- transmission and delivery of which liabilitj' would be incurred by the company. In the absence of satisfactor}' evidence of a known course of business by the telegraph company to receive verbal messages orally delivered to operators for transmission, we are not willing to sanction the proposition that failure to transmit such a message is a ground for recovery against the companj', either bj' statute or common law. It is common knowledge that messages are required to be written, and upon the blanks of the company, and it would be hazardous to pursue any other course. The very expression as to a message deliyered to be sent, carries with it the idea of a written or printed message, and it would seem, that for one to talk to the operator as to the message he desired to send could not, in view of the course of business of tele- graph companies, impose any liability on such company. Heversed and remanded. FRAZIEE & COOPER V. KANSAS CITY, AC. RAILWAY COMPANY. 145 FRAZIER & COOPER v. KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILWAY COMPANY. Supreme Court op Iowa, 1878. [48 Iowa, 571.] Day, J. (after reciting the special findings of the jury). From these special findings it appears that the plaintiffs came to Watson on the same train on which they expected to ship their hogs. The hogs to be shipped were not in the yards or on the depot grounds of the defendant when the train arrived at Watson, but were in a private yard in no way controlled or used by defendant. They had not been given into the control of any authorized agent of de- fendant. Defendant had not been notified to what particular station the hogs were to be shipped. Cars were placed at the yards of defend- ant, the night previous, in a suitable condition to be loaded, and they could have been loaded without the aid of a locomotive. Under such circumstances the plaintiflFs had no right to demand or expect that the defendant's train should delay at the station until the hogs should be driven into the defendant's stock yards, loaded, way-bills made out, contract of shipment signed, and the cars placed in tlie train. If such delay could be demanded at one station, it could be demanded at every station on defendant's road. Both humanity and interest require that stock trains shall go forward with all reasonable dispatch. The plain- tiffs should have left some one at Watson in charge of their hogs, and had them loaded and ready for shipment when the train arrived. Each train must be moved with reference to all the other trains on the road. A delay of a few minutes at one station might occasion a correspond- ing delay of every train on the line of road, and even result in acci- dents, 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 prin- ciple, then, can these plaintiffs demand damages because the defend- ant's train did not wait until thqy could drive their hogs into defend- ant's yard, load four cars, count them, have way-bill made out, shipping contract signect, and the cars placed in the train ? But plaintiffs say the yards of defendant were not in suitable condition, and hence they were not required to have their hogs in defendant's j-ards. The special findings show the yards of defendant were not in suitable con- dition for keeping plaintiffs' stock, not being supplied with water. The special findings further show that the yards of defendant were in a suitable condition from which to load hogs. There is nothing shown to excuse plaintiffs from driving their hogs to defendant's yards, and having them loaded in time for the train. It is further said that the agents of defendant a few days previously told Cooper he need not load two cars he then had there until after the train arrived. This particular transaction would not estop defendant 10 146 KOBINSON V. BALTIMOKE rma /awe have the right to enter the depot of a railroad company, as others besides guests may go into hotels, without making themselves trespassers, because in both instances there is an implied license given 190 STATE V. STEELE, to the public to enter. But such licenses in their nature are revocable, except in the one case as to passengers, and in the other as to guests, who have the right to enter the train, ticket-office, or hotel, as the case may be, if they are sober, orderly, and able to pay for transpor- tation or fare. The court went further in that ease, and held that, in enforcing the reasonable regulation against "drummers" for hotels at the depot, the servants of the railway company were not guilty of an assault for expelling by force, not excessive, a person who had repeatedly violated the regulation by going upon the platform and soliciting for a hotel, though on the particular occasion when he was ejected from it he had a ticket, and intended to take the train des- tined for another town, but failed to disclose to such servants the fact that he entered for "another purpose, when it was in his power to do so." Were we to follow the analogy to which the principle laid down in that ease would lead, an innkeeper could not only make and enforce a regulation forbidding persons to come on his premises for the purpose of soliciting his guests to patronize the livery stables that they might represent, but he might, in enforcing the rule against one who had previously violated it after notice that he should not do so, put such person off his premises, without excessive force, though at the partic- ular time the person had entered with the bona fide intent to become a guest at the hotel, but failed to announce his purpose ; or, under the same principle, he might expel by force one who becomes a guest, and takes advantage of his situation to subject other inmates of the house to the annoyance of "drumming" for such establishments. The same distinction is drawn between guests and others who enter an hotel intent on business or pleasure by the courts of Pennsylvania. In Com. V. Mitchell, 1 Phila. 63, and Com. v. Mitchel, 2 Pars. Eq. Cas. 431, it was held that an innkeeper is bound to receive and furnish food and lodging for all who enter his hotel as guests, and tender him a reasonable price for such accommodation; but "if an individual [other than a guest] has entered a public inn, and his pres- ence is disagreeable to the proprietor or his guests, he has a right to request the person to depart, and, if he refuses, the innkeeper has the right to lay his hands gently upon him, and lead him out, and, if resistance is made, to employ sufficient force to put him out," with- out incurring liability to indictment "for assault and battery." . . . [The learned judge here stated and commented upon the cases of Jencks v. Coleman, 2 Sum. 224 ; Barney v. Steam-Boat Co. , 67 N. Y. 302; Harris v. Stevens, 31 Vt. 79; Old Colony R. R. v. Tripp, 147 Mass. 35. J Upon a review of all the authorities accessible to ns, and upon the application of well-established principles of law to the admitted facts of this particular case, we are constrained to conclude that there was error in the charge given by the court to the jury, because: 1. Guests of an hotel, and travellers or other persons entering it STATE V. STEELE. 191 with the bona fide intent of becoming guests, cannot be lawfully prevented from going in or put out by force, after entrance, provided they are able to pay the charges and tender the money necessary for that purpose, if requested by the landlord, unless they be persons of bad or suspicious character, or of vulgar habits, or so objectionable to the patrons of the house, on account of the race to which they be- long, that it would injure the business to admit them to all portions of the house, or unless they attempt to take advantage of the freedom of the hotel to injure the landlord's chances of profit derived either from his inn or any other business incidental to or connected with its management, and constituting a part of the provision for the wants or pleasure of his patrons. Jencks v. Coleman, supra; Com. v. Mitchell, supra; Com. v. Power, supra; Pinkerton i;. Woodward, 91 Amer. Dec. 660; Barney v. Steam-Boat Co., supra; 1 Whart. Crim. Law, § 621; Ang. Carr. §§ 525, 529, 530; Britton v. Eailroad Co., 88 N. C. 536. 2. When persons unobjectionable on account of character or race enter an hotel, not as guests, but intent on pleasure or profit, to be derived from intercourse with its inmates, they are there, not of right, but under an implied license that the landlord may revoke at any time; because, barring the limitation imposed by holding out inducements to the public to seek accommodation at his inn, the proprietor occupies it as his dwelling-house, from which he may expel all who have not acquired rights, growing out of the relation of guest, and must drive out all who, by their bad conduct, create a nuisance and prove an annoyance to his patrons. Harris v, Stevens, 31 Vt. 79 ; 1 Whart. Crim. Law, § 625. 3. The regulation, if made by^ any innkeeper, that the proprietors of livery stables, and their agents or servants, shall not be allowed to enter his hotel for the purpose of soliciting patronage for their business from his guests, is a reasonable one, and, after notice to desist, a person violating it may be lawfully expelled from his house, if excessive force be not used in ejecting him. Com. v. Power, supra; Harris v. Stevens, supra. See, also, Griswold v. Webb, 16 R. L 649 ; Railroad Co. v. Tripp, supra. i. An innkeeper has unquestionably the right to establish a news- stand or a barber-shop in his hotel, and to exclude persons who come for the purpose of vending newspapers or books, or of soliciting employment as barbers; and, in order to render his business more lucrative, he may establish a laundry or a livery stable in connection with his hotel, or contract with the proprietor of a livery stable in the vicinity to secure for the latter, as far as he legitimately can, the patronage of his guests in that line for a per centum of the proceeds or profits derived by such owner of vehicles and horses from dealing with the patrons of the public house. After concluding such a con- tract, the innkeeper may make, and after personal notice to violators, enforce, a rule excluding from his hotel the agents and representa- 192 STATE V. STEELE. tives of other livery stables who enter to solicit the patronage of hia guests; and where one has persisted in visiting the hotel for that purpose, after notice to desist, the proprietor may use sufficient force to expel him if he refuse to leave when requested, and may eject him, even though on a particular occasion he may have entered for a lawful purpose, if he does not disclose his true intent when requested to leave, or whatever may have been his purpose in entering, if he in fact has engaged in soliciting the patronage of the guests. Barney V. Steam-Boat Co., supra; Jencks o. Coleman, and Harris ?;. Stevens, supra ; Ang. & A. Corp. § 530. 5. The broad rule laid down by Wharton (1 Crim. Law, § 625) is that "the proprietor of a public inn has a right to request a person who visits it, not as a guest or on business with a guest, to depart, and if he refuse the innkeeper has a right to lay his hands gently upon him, and lead him out, and, if resistance be made, to employ sufficient force to put him out; and for so doing he can justify his conduct on a prosecution for assault and battery." It will be observed that the author adopts in part the language already quoted from the courts of Pennsylvania. 6. If it be conceded that the prosecutor went into the hotel at the request of a guest, and for the purpose of conferring with the latter on business, still, in any view of the case, if, after entering, he engaged in "drumming " for his employer when he had been previously notified to desist in obedience to a regulation of the house, the defendant had a right to expel him if he did not use more force than was necessary; and if the prosecutor, having entered to see a guest, did not then solicit business from the patrons of the hotel, but had done so pre- viously, the defendant, seeing him there, had a right to use sufficient force to eject him, unless he explained, when requested to leave, wtiat his real intent was. Harris v. Stevens, and Com. v. Power, supra. The guest, by sending for a hackman, could not delegate to him the right to do an act for which even the guest himself might lawfully be put out of the hotel. 7. If we go further, and admit, for the sake of argument, that the principle declared in Markham v. Brown, 8 N. H. 530, and relied on to sustain the view of the court below, is not inconsistent with the law on the same subject, as we find it laid down by Wharton and other recognized authorities, still our case will be found to fall under the exception to the general rule stated in express terms in that case. The court said: "If one comes to injure his [the innkeeper's] house, or if his business operates directly as an injury, that may alter the case ; but that has not been alleged here ; and perhaps there may be cases in which he may have a right to exclude all but travellers and those who have been sent for by them. It is not necessary to settle that at this time." There was no evidence in Markham v. Brown that the proprietor of the hotel had any contract with another stage line, or would suffer pecuniary loss or injury, if the agent who was STATE V. STEELE. 193 expelled was successful in his solicitations; and it seems that Angell and others, who cite as authority that case, as well as Jencks v. Cole- man and Barney v. Steam-Boat Co., reconcile them by drawing the distinction that in the latter cases, and in the hypothetical case of an innkeeper, put by Justice Story, the person whose expulsion was justified was doing an injury to the proprietor, who had him removed, by diminishing his profits derived legitimately from a business used as an adjunct to that of common carrier or innkeeper. In using the language quoted above, Justice Parker seems to have had in bis mind, without referring to it, the opinion of Justice Story, delivered in the circuit court but two years before (Jencks v. Coleman, siqjra). 8. The defendant, as manager of the hotel, could make a valid contract, for a valuable consideration, with Sevier, to give him the exclusive privilege of remaining in the house and soliciting patronage from the guests in any business that grew out of providing for the comfort or pleasure of the patrons of the house. The proprietors of the public house might legitimately share in the profits of any such incidental business, as furnishing carriages, buggies, or horses to the patrons, and for that purpose had as full right to close their house against one who attempted to injure the business in which they had such interest as the owner of a private house would have had, and this view of the case is consistent with the doctrine enunciated in Markham v. Brown. There was no evidence tending to show that Chambers had actual permission from the proprietors to approach the inmates of the hotel on the subject of patronizing him., nor that they had actual knowledge of the fact that he had continued his solicita- tions after receiving a similar notice to that sent to the prosecutor. The fact that he was overlooked or passively allowed to remain in the hotel (it may be under the impression on the part of the defendant that he had desisted from his objectionable practices) cannot, in any view of the law, work a forfeiture of the right to enforce a reasonable regulation, made to protect their legitimate business from injury. If, therefore, a permit on the part of the defendant to Chambers to "drum'' gratuitously in the house would at once have opened his doors to all of the competitors of the latter (a proposition that we are not prepared to admit), the defendant did not, so far as the testimony dis- closes the facts, speak to him on the subject; and the soundness of the doctrine that, without interfering with the legal rights of the guests, the proprietor of a hotel is prohibited by the organic law from granting such exclusive privileges to any individual, as to the use or occupancy of his premises, as any other owner of land may extend, is not drawn in question. We therefore sustain the second and third assignments of error.. His honor erred, for the reasons given, in in- structing the jury that the guilt of the defendant depended upon the question whether he permitted Chambers or Sevier to solicit custom in the house. He had a lawful right to discriminate, for a consider- ation, in favor of Sevier, while it does not appear from the evidence 13 194 CHESAPEAKE & DELAWARE CANAL CO. V. GRING. that he granted any exclusive privileges to Chambers. We hold that the regulation was such a one as an innkeeper had the power to make, and must not be understood as approving the idea that the sanction of the municipal authorities could impart validity to it, if it were not reasonable in itself, and within the powers which the law gives to proprietors of public houses in order that they may guard their own rights and protect their patrons from annoyance. For the reasons given the defendant is entitled to a new trial. CHESAPEAKE & DELAWARE CANAL CO. v. GRING. Circuit Court of Appeals op the United States, 1908. [159 Fed. 662.1] Brawlet, D. J. As it cannot be questioned that a tug is a vessel, the toll charged is within the charter rights of the company. The third ground of complaint is that the complainant was not allowed to tow other barges than his own through the canal, but was compelled to deliver up all barges other than his own to the Canal & Back Creek Towing Company, with which the canal company had a contract by which all such barges were turned over to its charge for towage thereof. We concur in the opinion of the court below that this regulation is reasonable or necessarj', and therefore beyond the powers of the canal company. In justification of this regulation the canal com- pany claims that, in order to accommodate the absolute necessities of three-fourths of the commerce passing through the canal, it was neces- sary to have a towing company whose charges shall be low, and which will be ready at all times to take barges through without delaj', and that it found that, in order to get such service, it was necessary to secure to such towing service a sufficient 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 public highwaj', and the public has the right to the free use of it provided the legal tolls are paid. As said by the Chief Justice in the Perrine Case: " It is clear that every vessel suited to the navigation of the canal is authorized to pass through upon pay* ment of the toll imposed by the law." 1 Only one point is printed. — Ed. LOUISVILLE WATER CO. V. WIEMER. 195 LOUISVILLE WATER CO. v. "WIEMER. Circuit Court of Appeals of the United States, 1904. [130 Fed. 257.] Severens, C. J. We think the court below erred in holding that the appellant owed to the appellee the duty of which the latter demands performance. Passing bj' another question, namely, whether the appellee has such an interest in the sprinkling of the streets in Louis- ville as would entitle him to maintain a legal action of any sort, we are of opinion that the appellant owing, as it did under its charter, a duty to the city, and perhaps to its inhabitants, of supplying water to be used in sprinkling the streets, had the power, nevertheless, to make reasonable regulations in regard to the agency by which its duty should be discharged. It could not lawfully so exercise its authority in that regard as to unnecessarily embarrass or impair its service to the public ; and, if it did, it would expose itself to a liability to any person injured thereby for which there would be some legal remedy. But, subject to this condition, it might make such ■ regulations as its own convenience and the proper conduct of its business might require. The granting of a license to any person to take water from its hydrants would seem to involve the right on the part of the company to have a voice in deter- mining the person by whom it should be done. 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 par- ticular 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 the 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 un- reasonable. The appellee did not entitle himself under it to demand the license, and, assuming that the appellee was one who had legal standing to compel the observance of it — which we greatly doubt — he failed to avail himself of it. 196 SEASONGOOD V. TENNESSEE A OHIO TRANSPOKTATION CO. SEASONGOOD v. TENNESSEE & OHIO TRANSPORTATION COMPANY. CoxJET OF Appeals op Kentuckt, 1899. [54 S. W. 1931.] Gttfpt, J. The principal grounds relied on by appellants for a reversal are as to the instructions given and refused. It will be seen from the pleadings (and the testimony conduces to prove the same) that one McGrew was the owner of a warehouse at the mouth of Hurricane creek, which was the only point at which the goods were delivered to and from steamboats in that immediate vicinitj", and that it was the custom of appellee, as well as other boats, to receive freight from said warehouse, and that McGrew was furnished blank bills of lading, and collected freight bills. The collection, however, was done at the cost of the debtors. He was also employed by appellee to carry the United States mail from the steamboat landing to the post office at Tolou. It appears from the testimony that on a certain evening appellee's boat _ landed at the landing aforesaid, and that the clerk of the boat asked McGrew what he had, and McGrew replied that he had " some chickens and eggs for Evansville, and a box for Cincinnati, and do j-ou want them ? " The clerk replied, in substance, that he would take the chick- ens and eggs, but would not take the box ; that appellee had an arrangement with another company that carried freight between New Orleans and Cincinnati not to take freight to any point beyond Evans- ville, and that the other company would not take freight within the boundary between Evansville and Cairo or Paducah ; and it further appears that the goods were stolen the same night that appellee refused to take them. It is the contention of appellee that it was not required by law to accept the box tendered, for the reason, as now relied on, that it could not be required to receive freight destined to a point beyond the end of its own line, which it appears in this case was Evansville, Ind. It is true that the appellee was not bound to undertake to deliver the box to the consignee at Cincinnati, but it was its duty to accept the box, if tendered to it as a common carrier ; for it was then its duty to carry the same to the end of its line, and there deliver, or ofPer to deliver, the box to some common carrier engaged in such business, to be by it forwarded or carried to Cincinnati. It is clear that the agree- ment between appellee and the other company did not furnish any excuse for its failure to receive the goods. Such an agreement is ille- gal and not enforceable even between parties thereto. Much less can it excuse a party for refusing to discharge its duty as a common car- rier as to the third party. Anderson v. Jett, 89 Ky. 375, 12 S. W. 670, 6 L. R. A. 390.2 Ed. 1 The principal point is printed. — Ed. 2 See Western Union Telegraph Co. v. Simmons (Tex. Civ. App.), 93 S. W. 688, BENNETT V. DUTTON. 197 BENNETT v. DUTTON. Supreme Coukt of New Hampshire, 1839. [10 N. E. 481.] CASfi. The declaration alleged that the defendant was part owner, and driver, of a public stage coach, from Nashua to Amherst and Francestown — thaton the 31st January-, 1837, the plaintiff applied to him to be received into his coach, at Nashua, and convened from thence to Amherst, oflFering to pay the customary fare ; and that the defend- ant, although there was room in his coach, refused to receive the plaintiff. It appeared in evidence that at the time of the grievance alleged there were two rival lines of daily stages, running between Lowell, in Massachusetts, and Nashua — that Jonathan B. French was the pro- prietor of one of these lines, and Nelson Tuttle of the other — that Tuttle's line ran no farther than from Lowell to Nashua — that French and the proprietors of the defendant's line were interested in a contract for carrying the United States mail from Lowell to Francestown, through Amherst (dividing the mail mone}- in proportion to the length of their respective routes), so as to form one continuous mail route from Lowell to Francestown — that French and the proprietors of the defendant's line had agreed to run their respective coaches so as to form a contin- uous line for passengers from Lowell, through Amherst, to Frances- town, and that their agents and drivers might engage seats for the whole distance, at such rates of fare as they thought expedient ; and the amount thus received, in instances where the^- thought proper to receive less than the regular fare, was to be divided between said pro- prietors, in proportion to the length of their respective routes — that it was also agreed that if the defendant's line brought down to Nashua an extra number of passengers, French should see them through, and be at the expense of furnishing extra coaches and horses, if necessary, to convey them to Lowell ; and, on the other hand, if French's line brought up an extra number of passengers from Lowell to Nashua, the proprietors of the defendant's line were to do the same, for the conveyance of sucli passengers above Nashua — and that it was further agreed (as Tuttle's line ran no farther than from Lowell to Nashua) by the proprietors of the defendant's line, that they would not receive into their coaches, at Nashua, passengers for places above Nashua, who came up from Lowell to Nashua on the same daj', in Tuttle's line ; the time of start- ing from Lowell and arriving at Nashua being the same in both lines. One of the requisitions of mail contracts is, that each line of stage coaches running into another, so as to form a continuous mail line, shall give preference to passengers arriving in the line with which it connects, and shall forward them in preference to any others. There were several other lines which started from Lowell at the same time with the lines before mentioned, running to other places, through 198 BENNETT V, BUTTON. Nashua ; and it was generally the understanding between their respec- tive proprietors that one line should not take, for a part of the distance where the route was the same, passengers who were going on further in another line; though this understanding had been occasionally interrupted. The plaintiff being at Lowell on the 31st of January, 1837, took pas- sage and was conveyed to Nashua in Tuttle's line ; and immediately on his arrival at Nashua applied to be received into the defendant's coach, and tendered the amount of the regular fare. There was room for the plaintiff to be conveyed on to Amherst, but the defendant refused to receive him. The plaintiff' was notified by the agent for the line of French and the defendant, at Lowell, previous to taking passage in Tuttle's coach for Nashua, that if he wished to go from Nashua to Amherst on that day, inlfie' regular mail line, he must take the mail line at Lowell ; and that if he took passage in Tuttle's line from Lowell to Nashua he would not be received at Nashua into the defendant's coach. The parties agreed that judgment should be rendered for the plaintiff for nominal damages, or for the defendant, according to the opinion of this court upon these facts. Clark & G. Y. Sawyer, for the plaintiff, cited Story on Bailment, 380; 2 Ld. Raym. 909, Coggs v. Bernard; Jones on Bailment, 109; 2 Barn. & Adolph. 803, Kent v. Shuckard. Baker (with whom was C. G. Atherton), for the defendant. It is not denied that anciently a common carrier was liable for refusing to carry goods ; a common innkeeper for refusing to receive a guest ; a common ferryman for refusing to carry a passenger; and generally, perhaps, that there was an implied obligation upon every' one standing before the public in a particular profession or emploj-ment to undertake the duties incumbent upon it ; though no case is recollected in which it has been determined that the proprietor of a stage coach is liable for refusing to receive a passenger. 2 Black. 451; 3 Black. 165; 1 Bac, Ab. 554 ; 1 Vent. 333 ; 2 Show. 327 ; Hard. 163 ; Rob. Ent. 103. Formerly it was held that where a man was bound to any -duty, and chargeable to a certain extent by operation of law, he could not, by any act of his own, discharge himself (1 Esp. R. 36; No3-'s Maxims, 92; Doc. & Stud. 270), though it is now well settled that this obligation may be limited. A liability for refusing to receive a passenger may be qualified by notice. Without notice a common carrier stands in the situation of an insurer. This obligation the law imposes upon him the moment he , takes upon himself the duties of carrier. His contract with the public is as an insurer; and if goods are committed to his care while stand- ing in this relation, he is liable as such. 6 Johns. 160; 3 Esp. 127; Selw. N. P. 395 ; 1 Wils. 181 ; 1 Inst. 89 ; IT. R. 33, 57 ; 5 T. K. 389 ; Story on Bailment, 328 ; 11 Pick. 42 ; 4 N. H. Rep. 306. But this contract, which is general with the public, may be made BENNETT V. DUTTON. 199 Bpecial. One who proposes to carry goods may undertake the business, not of a common, but of a special, carrier. He may give notice, when he commences business, that he does not assume all the responsibilities of a common carrier, technically so called ; that he will be liable to a certain extent, and upon certain conditions, and no farther. He may thus discharge himself from all responsibility, except perhaps in cases of gross negligence. 3 Stark. 337; 3 Camp. 27; Story on Bail. 338, 357; 3 Taunt. 271 ; 4 Camp. 41 ; Jones on Bail. 104 ; 6 East, 564 ; 4 Esp. 178 ; 1 H. Black. 298. But the carrier is not liable for refusing to receive what he is under no obligation to carry (16 East, 244), so that the carrier of goods may not only qualify his responsibility for the safe transportation of goods, but his liability for refusing to receive them. The principle to be derived from these cases, and upon which they dl rest, is, that although the law imposes certain obligations upon one who undertakes the duties of a particular profession or employment, he is at liberty to assume those duties but in part, and thus limit his re- sponsibility, provided he gives notice of his intention, generally, and that notice is brought home to the knowledge of the party interested. The principle is confined to no one branch or department of business ; to no one case or class of cases. Nothing more is required than that public notice should be given how far the carrier intends to limit his i-esponsibility, and that it should be known to the person to be affected by it in season to save his interest. The main point is to show the in- tention of the carrier, and to communicate knowledge of his terms, seasonably', to the individual interested. 6 East, 510 ; 2 Camp. 108 ; 1 Stark. Cas. 418 ; 2 Ditto, 461 ; 4. Burr. 2298 ; 1 Str. 145 ; 1 Bac. Abr. 556 ; 2 Stark. Ev. 338 ; 1 Pick. 50. And, provided the intention be manifest, it is not material whether any other person may have known the conditions, except the party whose interest they may affect. 1 Str. 145 : 4 Burr. 2298 ; 2 Stark. Cas. 461. But, yielding these points, it is contended that the defendant is not liable. It was competent for him to make all such rules and regula- tions as might be necessary for the convenient and successful prosecu- tion of the employment in which he was engaged. To prosecute this employment, to discharge his duties to the public, and particularly to the post-office department, it became necessary that some such arrange- ment as this should be made. It was as proper that he should prescribe the place where a passenger should be received as the time when he should be received. It was not a refusal to receive all passengers, or this one in particular, but merely the regulation of the mode in which they would be received. Persons going from Nashua to Francestown were received at Nashua. Persons going from Lowell to Francestown were received at Lowell. This was all that the defendant did. It was a mere regulation ; not a refusal to discharge a duty imposed b}- law. Parker, C. J. It is well settled that so long as a common carrier has convenient room he is bound to receive and carry all goods which 200 BENNETT V. BUTTON. are offered for transportation, of the sort he is accustomed to carry, if they are brought at a reasonable time, and in a suitable condition. Story on Bailment, 328 ; 5 Bing. R. 217, Riley v. Horne. And stage coaches, which transport goods as well as passengers, are, in respect of such goods, to be deemed common carriers, and respon- sible accordingly. Story,. 325. Carriers of passengers, for hire, are not responsible, in all particulars, like common carriers of goods. They are not insurers of personal safety against all contingencies except those arising from the acts of God and the public enemy. For an injury happening to the person of a passenger by mere accident, without fault on their part, they are not responsible ; but are liable only for want of due care, diligence, or skill. This results from the different nature of the case. But in relation to the baggage of their passengers, the better opinion seems to be that they are responsible like other common carriers of goods. And we are of opinion that the proprietors of a stage coach, for the regular transportation of passengers, for hire, from place to place, are, as in the case of common carriers of goods, bound to take all passengers who come, so long as they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for a refusal. 2 Sumner, 221 ; Jencks v. Coleman ; 19 Wend. R. 239. The principle which requires common carriers of goods to take all that are offered, under the limitations before suggested, seems well to apply. Like innkeepers, carriers of passengers are not bound to receive all comers. 8 N. H. Rep. 523, Markham v. Brown. The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion. And his object at the time may furnish a sufficient excuse for a refusal ; as, if it be to commit an assault upon another passenger, or to injure the business of the proprietors. The case shows the defendant to have been a general carrier of pas- sengers, for hire, in his stage coach, from Nashua to Amherst, at the time of the plaintiff's application. It is admitted there was room in the coach, and there is no evidence that he was an improper person to be admitted, or that he came within any of the reasons of exclusion before suggested. It has been contended that the defendant was only a special carrier of passengers, and did not hold himself out as a carrier of persons gen- erally ; but the facts do not seem to show a holding out for special em- ployment. He was one of the proprietors, and the driver, of a line of stages, from Nashua to Amherst and Francestown. They held them- selves out as general passenger carriers between those places. But by reason of their connection with French's line of stages from Lowell to Nashua, they attempted to make an exception of persons who came from Lowell to Nashua in Tuttle's stage, on the same day in which they applied for a passage for the north. It is an attempt to limit their re- sponsibility in a particular case or class of cases, on account of their agreement with French. ATCH., TOP. & S. r. E. V. DENVEE & NEW OELEANS E. 201 It is further contended, that the defendant and other proprietors had a right to make rules for the regulation of their business, and among them a rule that passengers from Lowell to Amherst and onward should take Frenuh's stage at Lowell, and that Ijy a notice brought home to the individual the general responsibility of the defendant, if it existed, is hmited. But we are of opinion thafthe proprietors had no right to limit their general responsibility in this manner. It has been decided in New York that stage coach proprietors are answerable, as common carriers, for the baggage of passengers, that they cannot restrict their common law liability by a general notice that the baggage of passengers is at the risk of the owners, and that if a carrier can restrict his common law liability, it can only be by an ex- press contract. 19 Wend. 234, Hollister v. Nowlen. And this prin- ciple was applied, and the proprietors held liable for the loss of a trunk, in a case where the passenger stopped at a place where the stages were not changed, and he permitted the stage to proceed, without any in- quiry for his baggage. 19 Wend. 251, Cole v. Goodwin. However this may be, as there was room in the defendant's coach, he could not have objected to take a passenger from Nashua, who applied there, merely because he belonged to some other town. That would fui'nish no sufficient reason, and no rule or notice to that effect could limit his dutN'. And there is as little legal reason to justify a refusal to take a passenger from Nashua, merely because he came to that place in a par- ticular conveyance. The defendant might well have desired that pas- sengers at Lowell should take French's line, because it connected with his. But if he had himself been the proprietor of the stages from Lowell to Nashua he could have had no right to refuse to take a pas- senger from Nashua, merely because he did not see fit to come to that place in his stage. It was not for him to inquire whether the plaintiff came to Nashua from one town or another, or by one conveyance or another. That the plaintiff proposed to travel onward from that place could not injuriously affect the defendant's business ; nor was the plaintiff to be punished because he had come to Nashua in a particular manner. The defendant had good right, by an agreement with French, to give a preference to the passengers who came in French's stage ; and as they were carriers of the mail on the same route, it seems he was bound so to do, without an agreement. If, after they were accommodated, there was still room, he was bound to carry the plaintiff, without in- quiring in what line he came to Nashua. ATCHISON, TOPEKA AND SANTA F^ RAILROAD v. DEN- VER AND NEW ORLEANS RAILROAD. Supreme Court of the United States. 1884. [no U. S. 667.] 202 ATCH., TOP. & S. F. B. V. DENTEE & NEW OKLEANS E. Bill in equity by tlie Denver & New Orleans Railroad Company, owning and operating a railroad between Denver and Pueblo, about one hundred and twenty-five miles, against the Atchison, Topeka & Santa F^ Railroad Company, a Kansas corporation, owning and operating a railroad in that State from the Missouri River, at Kan- sas City, westerly to the Colorado State line, and also operating from there, under a lease, a road in Colorado from the State line to Pueblo, built by the Pueblo & Arkansas Valley Railroad Company, a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe Company formed a continuous line of communication from Kansas City to Pueblo, about six hundred and thirty-four miles. The general purpose of the suit was to compel the Atchison, Topeka & Santa Fe Company to unite with the Denver Compare : Trust Co. v. No. Pacific R. E., 60 Fed. 803 ; U. S. v. Elliot, 62 Fed. 801 ; Re Phelan, 62 Fed. 803 ; Arthur v. Oakes, 63 Fed. 310 ; In re Debs, 158 U. S. 564.— Ed. PORTLAND NATUEAL GAS AND OIL CO, V. STATE. 255 question of its uncertaintj', and are technical in character. It has been so often decided that a demurrer is not the remedy for uncertainty that we need not cite authority upon the subject. The vital question in the case relates to the right of tlie relator to compel the appellant, bj- mandamus, to supply his dwelling house with natural gas for lights and fuel. Tliere are cases which hold that in the absence of a contract, ex- press or implied, and where the charter of the company contains no provision upon the subject, a gas company is under no more obligation to continue to supply its customers than the vendor of other merchan- dise, among which is the case of Commonwealth v. Lowell Gas Light Co., 12 Allen, 75 ; but we think the better reason, as well as the weight of authorit}', is against this holding. Mr. Beach, in his work on private corporations, volume 2, section 835, says: "Gas companies, being engaged in a business of a public character, are charged with the performance of public duties. Their use of the streets, whose fee is held by the municipal corporation, in trust for the benefit of the public, has been likened to the exercise of the power of eminent domain. Accordinglj-, a gas companj' is bound to snppl}' gas to premises with which its pipes are connected. " Mr. Cook, in his work on Stock and Stockholders, section 674 (2d ed.), says : " Gas companies, also, are somewhat public in their nature, and owe a duty to supply gas to all. " To the same effect are the following adjudicated cases: State v. Columbus Gas, &c. Co., 34 Oh. St. 572 ; New Orleans, &c. Co. v. Louisiana Light Co., 115 U. S. 650; People, ex rel., v. Manhattan, &c. Co., 45 Barb. 136; Gibbs v. Consolidated Gas Co., 130 U. S. 396 ; Williams v. Mutual Gas Co., 52 Mich. 499 ; In re Rochester Natural Gas, &c. Co. v. Richardson, 63 Barb. 437. Our General Assembl3-, recognizing the fact that natural gas com- panies were, in a sense, public corporations, conferred upon them the riglit of eminent domain, by an act approved February 20, 1889, Acts 1889, p. 22. It has often been held that mandamus is the proper proceeding by which to compel a gas company to furnish gas to those entitled to re- ceive it. 8 Am. and Eng. Encyc. of Law, 1284-1289 ; People v. Man- hattan Gas Light Co., supra; Williams v. Mutual Gas Co., supra; Rochester Natural Gas, &c. Co. v. Richardson, supra. In view of these authorities, we are constrained to hold that a nat- ural gas company, occupying the streets of a town or city , with its mains; owes it as a duty to furnish those who own or occupy the houses abutting on such street, where such owners or occupiers make the necessary arrangements to receive it and comply with the reasonable regulations of such company, such gas as they may require, and that, where it refuses or neglects to perform such duty, it may be compelled to do so by writ of mandamus. As to the suflSciency of an answer averring that the company had not a sufficient supply to furnish all 256 PORTLAND NATUKAL GAS AND OIL CO. V. STATE. those demanding gas, we intimate no opinion, as no such defence was interposed in this case. It follows that the complaint in this case states a cause of action against the appellant, and that the court did not err in overruling the demurrer thereto. The second paragraph of the answer avers that at the time of the demand for gas alleged in the complaint, the relator was being fur- nished with natural gas by the Citizens' Natural Gas and Oil Min- ing Company, of Portland, Indiana, and that said company has ever since continued to furnish him with gis for fuel and lights, and is ready and willing to continue doing so, so long as he may pay for the same. The third paragi-aph avers that the relator has no interest in the ap- pellant, except what he may have and hold under the laws of the State in common with all other citizens of the city of Portland, as shown by the allegations in the complaint. The fourth paragraph avers that the demand which the relator alleges he made on the appellant to furnish him natural gas is couched in gen- eral terms merely, and is not express and distinct, and does not clearly designate the precise thing which is required, but is vague, indefinite, and uncertain, as sliown by the facts alleged in the complaint. It is contended by the appellant, in support of the second paragraph of its answer, that in view of the facts therein averred it could not comply with the demand of the relator without a violation of tite pro- visions of an act of the General Assembly-, approved March 9, 1891, Acts 1891, p. 381. It would seem to be a sufficient answer to this contention to say that it does not appear, bj- an3' averment in this answer, that it was neces- sar}- to change, extend, or alter anj' service or other pipe or attach- ment belonging to the Citizens' Natural Gas and Oil Mining Company, in order to suppl3- the relator with the gas he demanded. For any- thing appearing from tliis answer, the gas required by the relator from the appellant could have been furnished without interfering with that company. But if it appeared otherwise, we would not be disposed to place a construction upon that act, which would give a gas company furnishing unsatisfactory service, or charging an unsatisfactorj- price for its service, the perpetual right to furnish gas to a particular building because it had been permitted to attach its appliances for the purpose of furnishing gas. In our opinion, the court did not err in sustaining a demurrer to this answer. The tliird paragraph of the answer was wholly insufficient to bar the relator's cause of action. It was not necessary that he should own an interest in the appellant, different from that held by other citizens of the city of Portland. It was sufficient that the appellant owed bira a duty, in common with other citizens, to furnish him gas, which duty it had refused to perform. PEOPLE EX EEL. V. HUDSON EIVEE TELEPHONE 00. 257 The fourth paragraph of the answer states no issuable fact, and is clearly bad. The evidence in the cause tends to support the finding of the Circuit Court, and we cannot, for that reason, disturb the finding on the evi- dence. There is no error in the record for which the judgment of the Circuit Court should be reversed. Judgment affirmed} PEOPLE EX EEL. POSTAL TELEGRAPH CO. v. HUDSON RIVER TELEPHONE CO. Supreme Court, New York, 1887. [19 Abb. N. C. 466.1] Parker, J. The relator is engaged in the transmission of messages by telegraph ; the defendant, in the transmission of human speech by 1 Opinion only is printed. — Ed. 17 258 PEOPLE EX BEL. V. HUDSON KIVER TELEPHONE CO. means of the telephone. In addition, both relator and defendant carry on a general messenger business in the citj' of Albany, and each are duly organized under and by virtue of statutes of this State. By the moving papers it appears that the relator demanded of the defendant that one of its telephones be placed in the office of The Postal Telegraph Cable Company, and at the same time offered to pay any sum required for the privilege of having and using such telephone, and further promised to " comply with all the rules and regulations, regulating and controlling all persons, corporations, and companies having or using said telephone," and that the defendant refused, and still refuses, to comply with such demand. Thereupon the relator moved the court for a peremptory mandamus directing the defendant, on pa3-ment to it, by relator, of its usual charges and compliance with its proper regulations, to place one of its telephones in relator's office. The owner of a patent has the right to determine whether or not any use shall be made of his invention, and, if an\^, what such use shall be. When however he determines upon its use, his legal duty to the public requires that all persons shall, in respect to it, be treated alike, without injurious discrimination as to rates or conditions. A common carrier is bound to carry all articles within the line of its business, for all per- sons upon the terms usually imposed. Bank v. Adams Express Co., 1 Flippin (S. C.) 242. When a railroad company establishes com- mutation rates for a given locality, it has no right to refuse to sell a commutation ticket to a particular individual of such loealit3-. Atwater V. Delaware, Lackawanna R. R., 4 East. Rep. 186. A gas company must furnish gas at the same rates to all consumers who apply and are ready and willing to pay therefor. Shepard v. Milwaukee, 6 Wis. 539 ; People ex rel. Kennedy v. Manhattan Gas Co., 45 Barb. 136. And a telephone company is not permitted to withhold facilities for the transaction of business from one class of citizens which it accords to others. State ex rel. American U. T. Co. v. Bell T. Co., 11 Cent. L. J. 359. The authorities cited establish the principle that a public servant, as the defendant is, cannot so use the invention protected by the govern- ment, as to withhold from one citizen the advantages which it accords to another ; and it follows that the relator in this case on compliance with the usual terms, and reasonable regulations of the defendant, is entitled to have matidamus issue directing the placing of one of its telephones in relator's office. The defendant's papers contain a copy of the agreement which it re- quires its subscribers to sign before giving to them a telephone for use, such agreement containing the rules and regulations which the defend- ant has determined must form a condition precedent to the placing or using of one of its telephones. Upon the argument, relator's counsel contended that a portion thereof was unreasonable, and that to comply therewith would sub- PEOPLE EX REL. V. HUDSON RIVER TELEPHONE CO. 259 stantially deprive his client from receiving any benefit to its business by the use of the telephone. The clauses in the agreement to which objection was made were : First. " They are not to be used for . . . any part of the work of col- lecting, transmitting, or delivering any message in respect of which any toll has been or is to be paid to any party other than the Exchange. Second. Nor for calling messengers except from the Central Office." As to the first : Both parties are engaged in the attempt to extend their business to the utmost possible limit. They are alike interested in securing as many customers as possible for their respective lines, and to a considerable extent they are competitors in the same territory for the business of transmitting messages. Now, while the rule is well settled that a common carrier must serve the public impartially, still it must be borne in mind that its duty is to the public, and not to other and competing common carriers. One common carrier cannot demand, as a right, that it be permitted to use a rival common carrier's property for the benefit of its own business. Express Cases, 117 U. S. 1 ; Jencks v. Coleman, 2 Sumner, 221 ; Barry v. O. B. H. Steamboat Co., 67 N. Y. 301. The relator in this case, however, contends that the statute, under which the defendant was incorporated, makes it the duty of the de- fendant to permit such use of its telephone as the relator's business requires. The statute, among other things, provides that " it shall be the duty of the owner or the association owning any telegraph line doing business within this State, to receive despatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals, for transmitting despatches, as established bj' the rules and regulations of such tele- graph line, to transmit the same with impartiality and good faith." It is clear that the provision quoted makes it the duty of the defend- ant to transmit over its wires, any and all messages which the relator may desire to have transmitted, on payment of their usual charges to individuals. It seems equally clear that it was not intended to and does not, authorize the relator to transmit its own messages over defendant's wires, on payment of the merely nominal sum required of its ordinary subscribers. Such a rule would result unjustly to the defendant, as it would enable the relator to enter into competition with defendant in the transmission of messages over its own wires. With equal propriety it could demand that it be connected with the wires of the Western Union Telegraph Company, on payment of a proper charge, and that then it be per- mitted to use in its own way, and at its own convenience, the wires and property of its competitor for its business. Such a construction as the relator contends for is not in accordance with either the letter or spirit of the statute. What the statute com- mands of corporations doing business in this State is, that they shall 260 PEOPLE EX KEL. V. HUDSON KIVEE TELEPHONE CO. send any message presented by another telegraph company, for that purpose, on payment of the proper and usual charges. Should defend- ant refuse at any time to send a message presented by the relator for that purpose, the law affords an adequate remedy for the violation of the statute. No claim is made that tiie defendant has ever refused to send messages for the relator, and the only question in respect to the transmission of messages in controversy here is. Can the relator demand the right to transmit them according to its own pleasure? Neither the rules established by the courts, nor the statute referred to justify such a holding, and in that respect, therefore, the rules and reg- ulations of the defendant seem to bo reasonable and proper. The objection that so much of defendant's regulations as prevents the use of the telephone by a subscriber for the purpose of calling messengers except from the Central office, is unreasonable, seems to me to be well taken. The defendant urges that the messenger business as conducted by it is profitable, and for that reason it is desirable that it should be retained as free from competition as possible ; and in aid of its position invokes the rule as established by the courts, that it owes DO such duty to its rival as the permission to use its property for the purpose of a competing business, would constitute. The rule can- not be questioned, but the application is faulty. The messenger busi- ness, although carried on by the same companj' and at the same offices, is nevertheless a distinct and separate business, and in nowise essen- tial to the conduct of the defendant's system of transmitting messages by telephone, for which purpose it was incorporated. To extend the rule protecting its business from rivals, so as to include any other business in which it might see fit to engage, could result in great in- justice to the public. A liverj' stable, provision store, meat market, and other classes of business could be added in the course of time, and b}' amending their rules so as to include each new business in the same manner as the messenger service is now attempted to be protected, a monopolj- could be created at the expense of tradesmen and merchants, and to the detriment of the public generally. In Louisville Transfer Co. v. Am. Dist. Tel. Co., 24 Alb. L. J. 283- 284, both parties were engaged in the carriage and coupd service, and the defendant insisted upon the right to a monopoly in the use of its own telephone methods of communicating and receiving orders for coupes. The court held otherwise, and granted an injunction restrain- ing defendant from removing the telephone, and from refusing to transact plaintiff's business. The decision of the court in that case is applicable to the question here involved, and its reasoning is approved. It follows : First. That the relator is entitled to a mandamus direct- ing and commanding the defendant to place a telephone in its office on compliance with defendant's rules and regulations, and payment by it of defendant's proper charges. Second. That so much of defendant's regulations as provide that the telephone shall not be used ' ' for calling messengers except from OHESAPEA.KE AND POT. TEL. CO. V. BAL. AND OHIO TEL. CO. 261 the Central Office,," are unreasonable, and need not be acceded to b^- the relator. Third. As it was stated npon the argument that a review of the decision was intended, an application for a stay under section 2,089, Code Civ. Pro., will be entertained. CHESAPEAKE AND POTOMAC TELEPHONE CO. v. BAL- TIMORE AND OHIO TELEGRAPH CO. Court of Appeals, Maryland, 1887. [66 Marijland, 399.1] Alvet, C. J. This was an application b}- tlie appellee, a telegraph corapan}', to the court below for a mandamus, which was accordingly ordered, against the appellant, another telegraph company, but doing a general telephone business. The appellant appears to be an auxiliarj^ company', operating the Telephone Exchange under the patents known as the Bell patents. Those patents, formerly held bj' the National Bell Telephone Com- pany, are now held by the American Bell Telephone Company, a cor- poration created under the law of the State of Massachusetts. The patents, with the contracts relating thereto, were assigned bj' the former to the latter company, prior to the 23d of May, 1882, and it is under a contract, of the date just mentioned, that the appellant acquired a right to use the patented devices in the operation of its system of telephonic exchanges. In the agreed statement of facts, it is admitted that all the tele- phones used by the Chesapeake and Potomac Telephone Company (a company to which the appellant is an auxiliary organization), and also all the telephones used by the appellant in its Exchange in the City of Baltimore, and elsewhere in the State, arc the property of the Ameri- can Bell Telephone Compan}'. It is alleged by the appellee and admitted by the appellant, that the offices of the Western Union Tele- graph Companj' of Baltimore City are connected with the Telephone Exchange of the appellant, and that when a subscriber to the Tele- phone Exchange wishes to send a message by way of the lines of the Western Union Telegraph Company, the subscriber calls up the Tele- phone Exchange, and the agent there connects him with the office of the Western Union Telegraph Company, and the subscriber thereupon telephones his message over the lines of the appellant, to tlie Western Union Telegraph office ; and a like process is repeated when a message is received by the Western Union Telegraph Company for a subscriber to the Telephone Exchange of the appellant. The appellee is a com- 1 Part of the opinion only is given. — Ed. 262 CHESAPEAKE AND POT. TEL. CO. V. BAL. AND OHIO TEL. CO. peting companj', in the general telegraph business, with the Western Union Telegraph Company. And being snch, it made application to the appellant to have a telephone instrument placed in its receiving room in Baltimore, and that the same might be connected with the Central Excliange of the appellant in that cit^- ; so that the appellee might be placed upon the same and equal footing with the Western Union Telegraph Company, in conducting its business. This request was refused, unless the connection be accepted under certain condi- tions and restrictions, to be specially embodied in a contract between the two companies, and which conditions and restrictions do not apply in the case of the Western Union Telegraph Company. It appears that there were conflicting claims existing as to priority of invention, and alleged infringement of patent rights, which were involved in a controversy- between the Western Union Telegraph Com- pany and others, and the National Bell Telephone Company, to whose rights the American Bell Telephone Company succeeded ; and in order to adjust those conflicting pretensions, the contract of the 10th of Nov., 1879, was entered into by the several parties concerned. The contract is very elaborate, and contains a great variety of provisions. By this agreement, with certain exceptions, the National Bell Telephone Com- pan3- was to acquire and become owner of all the patents relating to telephones, or patents for the transmission of articulate speech by means of electricity. But while it was expressly stipulated (Art. 13, cl. 1) that the right to connect district or exchange systems, and the right to use telephones on all lines, should remain exclusively with the National Bell Telephone Company (subsequently the American Bell Telephone Company), and those licensed by it for the purpose, it was in terms provided that " such connecting and other lines are not to be used for the transmission of general business messages, market quotations, or news, for sale or publication, in competition with the business of the Western Union Telegraph Company, or with that of the Gold and Stock Telegraph Company-. And the party of the sec- ond part [National Bell Teleph. Co.], so far as it lawfully and prop- erly can prevent it, will not permit the transmission of such general bnsiness messages, market quotations, or news, for sale or publication, over lines owned by it, or by corporations in which it owns a controll- ing interest, nor license the use of its telephones, or patents, for the transmission of such general business messages, market quotations, or news, for sale or publication, m competition with such telegraph busi- ness of the Western Union Telegraph Company, or that of the Gold and Stock Telegraph Company." The contract of the 23rd of May, 1882, under which the appellant derives its right to the use of the patented instruments, was made in subordination to the prior contract of the 10th of Nov., 1879, and contains a provision to conform to the restrictions and conditions just quoted. In that subordinate contract It IS provided that " no telegraph company, unless specially permitted by the licensor, can be a subscriber, or use the system to collect and deliver messages from and to its customers," &c. CHESAPEAKE AND POT. TEL. CO. V. BAL. AND OHIO TEL. CO. 263 These contracts are pleaded and relied on by the appellant as aflford- Ing a full justification for exacting from tlie appellee a condition in the contract of subscription to the Exchange, that the latter should observe the restrictions in favor of the Western Union Telegraph Company. The appellant contends that these restrictive conditions in the con- tracts recited are binding upon it, and that it is not at liberty to furnish to the appellant, being a telegraph, company, the instruments applied for and place them in connection with the Exchange, unless it be sub- ject to the restrictive conditions prescribed. And if this be so, the Court below was in error in ordering the mandamus to issue. But is the contention of the appellant well founded, in view of the nature of the service that it has undertaken to perform ? The appellant is in the exercise of a public employment, and has assumed the duty of serving the public while in that employment. In this case, the appellant is an incorporated body, but it makes no differ- ence whether the party owning and operating a telegraph line or a tele- plione exchange be a corporation or an individual, the duty imposed, in respect to the public, is the same. It is the nature of the service undertaken to be performed that creates the duty to the public, and in which the public have an interest, and not simply the body that may be invested with power. The telegraph and telephone are important instruments of commerce, and their service as such has become indis- pensable to the commercial and business public. They are public vehicles of intelligence, and thej- who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge, than a railway company, as a common carrier, can rightfully refuse to perform its duty to the public. They may make and estab- lish all reasonable and proper rules and regulations for the government of their offices and those who deal with them, but they have no power to discriminate, and while offering readj' to seiTe some, refuse to serve others. The law requires them to be impartial, and to serve all alike, upon compliance with their reasonable rules and regulations. This the statute expressly requires in respect to telegraph lines, and, as we have seen, the same provision is made applicable to telephone lines and exchanges. The law declares that it shall be the duty of any person or corporation owning and operating any telegraph line within this State (which, as we have seen, includes a telephone exchange) " to receive dispatches from and for any telegraph lines, associations, or companies, and from and for any individual," and to transmit the same in the manner established by the rules and regulations of the office, " and in the order in which they are received, with impartiality and good faith." And such being the plain duty of those owning or operating telegraph lines, or telephone lines and exchanges, within this State, they cannot be exonerated from the performance of that dutj', by any conditions or restrictions imposed by contract with the owner of the invention applied in the exercise of the employment. The duty prescribed by law is paramount to that prescribed by contract. Nor can it be any, longer controverted that the Legislature of the 264 STATE EX KEL. V. PORTLAND NATUKAL GAS AND OIL CO. State has full power to regulate and control, within reasonable limits at least, public emploj-ments and property- used in connection there- with. As we have said, the telegraph and telephone both being instru- ments inconstant use in conducting the commerce, and the affairs, both public and private, of the country, their operation, therefore, in doing a general business, is a public employment, and the instruments and appliances used are property devoted to public use, and in which the public have an interest. And such being the case, the owner of the propert}- thus devoted to public use, must submit to have that use and employment regulated hy public authority' for the common good. This is the principle settled by the case of Munu v. Illinois, 94 U. S. 113, and which has been followed b}' subsequent cases. In the recent case of Hockett V. State, 105 Ind. 250, where the cases upon this subject are largely collected, it was held, appl^'ing the principle of Munn v. Illinois, that it was competent to the State to limit the price which tele- phone companies might charge for their patented facilities aflforded to their customers. And if the price of the service can be lawfully regu- lated by State authoritj', there is no perceptible reason for denying such authority for the regulation of the service as to the parties to whom facilities should be furnished.* STATE EX EEL. SNYDER v. POETLAND NATURAL GAS AND OIL CO. Supreme Court of Indiana, 1899. [153 Ind. 483.2] Jordan, C. J. This is a proceeding in quo warranto by the State of Indiana on the elation of the prosecuting attorney of the twenty- sixth Judicial Circuit to dissolve and seize the corporate franchises of appellee. The venue of the cause was changed from the Jay Circuit Court to the Randolph Circuit Court, in which court a demurrer was sustained to the information for insufficiency of facts, and judgment was rendered in favor of appellee thereon. The State appeals and assigns error on the ruling of the court in sustaining the demurrer to the information. The information alleges that the defendant is a corporation duly organized in December, 1886, under the laws of the State of Indiana relating to the incorporation of manufacturing and mining companies. The object of its organization is to conduct the business of mining oil and gas, and to furnish the same for fuel and illuminating purposes and 1 Compare : Western Union v. Chicago R. R., 86 111. 246 ; Western Union v. Atlan- ta, &c. R. R., 5 Oh. St. 407 ; Union Trust v. Atcheson, &c. Co., 8 N. M 327. — Ed. 2 This case is abridged. — Ed. STATE EX KEL. V. PORTLAND NATURAL GAS AND OIL CO. 255 for propelling machinery, &c. Its place of business or operation is stated to be at the city of Portland, in the State of Indiana. After its incorporation it obtained from said cit)' permission to lay gas pipes along and under the public streets of that city for the purpose of sup- plying its inhabitants with gas for light and fuel, and it engaged in fnrnishiug gas to them for such purposes. That the Citizens Natural Gas and Oil Compan\vwas also duly incorporated in February, 1889, under the same laws and for the same purposes as was defendant, and it also was granted the privilege by the city of Portland to lay its pipes in and along the streets of the city for the same purposes as was de- fendant, and it engaged in supplying gas to the inhabitants of said city for fuel and light. After alleging these facts, the information charges that the defendant, on the 1st day of September, 1891, "in violation of law and in the abuse of its corporate powers and in the exercise of privileges not con- ferred upon it by law " entered into a certain agreement or combination with said Citizens Gas and Oil Mining Company "to fix the rate of gas to be charged by them and each of them to the consumers in said city of Portland." It was further agreed b^- and between tlie defend- ant and said other mentioned company that " neither of said com- panies should or would attach the service pipes of any gas consumer in said city to its pipe lines if, at the time, such customer or consumer was a patron of the other company." It is further averred that the defendant has observed and complied with said agreement, and the price of gas has been fixed tlierebj-, and it has at all times refused to sell or furnish gas to the inhabitants of said city at any other price than the one fixed by said agreement, and, in pursuance of said agreement and in order to prevent competition, it has refused, and still refuses, to suppl}' divers inliabitants of the said city of Portland with gas who, as it is alleged, were consumers of gas from the pipe line of the said Citizens Gas and Oil Mining Company. It is further alleged that there is no other corporation, com[)any, or person in said city engaged in supplying gas for light and fuel to its inhabitants. The information is not a model pleading, and may perhaps be said to be open to the objection that in some respects it is uncertain, and in others states conclusions instead of facts. The question, however, presented for our decision is: Are the facts, as therein alleged, suffi- cient to entitle the State to demand that the appellee's corporate fran- chises shall be declared forfeited ? Appellee is in its nature a public corporation, which fact has been recognized by our legislature in conferring upon companies engaged in a business of like character the right of eminent domain. Acts 1889, p. 22, § 5103, Burns, 1894. Being the creature of the law, the franchises granted to it by the State, in theory at least, were granted as a public benefit, and in accepting its rights, under the laws of the State, it im- pliedly agreed to carry out the purpose or oliject of its creation, and 266 STATE EX REL. V. PORTLAND NATURAL GAS AND OIL CO. assumed obligations to the public ; and such obligations it is required to discharge. Beach on Monopolies and Industrial Trusts, §221; Thomas v. Railroad Co., 101 U.'S. 71. It certainly can be said, and the proposition is sustained by ample authority, tliat, in furtherance of the purposes for which it was created, it owed a duty to the public. Its dut3' towards the citizens of the city of Portland and their duty towards it may be said to be somewhat re- ciprocal, and any dealings, rules, or regulations between it and tliem, which do not secure the just rights of both parties, cannot receive the approbation of a court. The law, among other things, exacted of ap- pellee the duty to offer and supply gas impartially so far as it had the ability or capacity' to do so, to all persons desiring its use within the territory to which its business was confined, provided always such per- sons made the necessary arrangements to receive it and complied with the company's reasonable regulations and conditions. Portland Natural Gas, &c. Co. V. State, 135 Ind. 54, and authorities there cited ; People V. Chicago Gas Trust Co., 130 111. 268 ; Chicago, &c. Co. v. People's, &c. Co., 121 III. 530 ; "Westfleld Gas, &c. Co. v. Mendenhall, 142 Ind. 538 ; Central Union Tel. Co. v. Bradbury, 106 Ind. 1 ; Central Union Tel. Co. V. Falley, 118 Ind. 194; Central Union Tel. Co. v. Swoveland, 14 Ind. App. 341 ; 8 Am. and Eng. Ency. of Law, 614. It is an old and familiar maxim that " Competition is the life of trade," and whatever act destroys competition, or even relaxes it, upon those who sustain relations to the public, is regarded by the law as in- jurious to public interests and is therefore deemed to be unlawful, on the grounds of public policy. Grcenhood on Public Policy, pp. 654, 655 I Chicago, &c. Co. v. People's, &c. Co., supra; Gibbs v. Consoli- dated, &c. Co., 130 U. S. 396; Hooker v. Yandewater, 4 Denio, 349; Consumers Oil Co. v. Nunnemaker, 142 Ind. 560 ; Beach on Pr. Corp. §§54, 55. The authorities affirm, as a general rule, that, if the act complained of, by its results, will restrict or stifle competition, the law will regard such act as incompatible with public policy, v^ithout any proof of evil intent on the part of the actor or actual injury to the public. The in- quiry is not as to the degree of injury inflicted upon the public ; it is suflScient to know that the inevitable tendency of the act is injurious to tlie public. Central Ohio, &c. Co. v. Guthrie, 35 Ohio St. 666 ; Swan V. Chorpenning, 20 Cal. 182; State v. Standard Oil Co., 49 Ohio St. 137; Gibbs v. Smith, 115 Mass. 592; Richardson d. Buhl, 77 Mich. 632 ; Pacific Factor Co. v. Adler, 90 Cal. 110 ; Beach on Monopolies and Industrial Trusts, § 82. Recognizing and adopting the principles to which we have referred as sound law, we next proceed to apply them as a test to the facts in- volved in this case. It will not be unreasonable to presume that one of the objects upon the part of the city of Portland in granting permission to the Citizens Gas Company to lay its pipes and mains along and under the streets of that city, after it had awarded the same rights to appellee, CHICAGO, M. &. ST. P. R< E. V. WABASH/ST. L. & P. K. E. 267 was that there might be a reasonable and fair competition between these two companies. B}- the agreement in question, when carried into ctfect, the patrons of one company were excluded from being supplied with gas from the other company-. Each compan}- was, by the terms of the agreement, bound to abide by and maintain the prices fixed, and e.ich was prohibited from furnishing gas to the customers of the other. That the people of that city who desired to become consumers of gas were, by the agreement in question, deprived of the benefits that might result to them from competition between the two companies certainly cannot be successfully denied. The exclusion 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 uniting in this agreement appellee disabled, or at least professed to have disabled, itself from the performance of its implied duties to furnish gas impar- tially to all, and thereby made public accommodations subservient to its own private interests. From what we have said it follows that the court erred in sustaining appellee's demurrer to the information, and the judgment is therefore reversed and the cause remanded with instructions to the trial court for further proceedings consistent with this opinion.^ CHICAGO, M. & ST. P. R. E. v. WABASH, ST. L. & P. E. R. CiKCCiT Court of United States, 1894. [61 Fed. 993.2] Caldwell, J. The design of the contract on which the appellant rests its claim is not left to presumption or conjecture. Its purpose is apparent on the face of the instrument. Its object was not to avoid ruinous competition by entering into an agreement to carry freight at reasonable rates, but its evident purpose was to stifle all competition for the purpose of raising rates. By the means of the contract, all of the roads are to be operated, as to through traffic, " as they should be if operated bj' one corporation which owned all of them." These seven corporations were made one company so far as concerned their relations with each other, with rival carriers, and with the public. Be- tween them there could be no competition or freedom of action. To tlie extent of the traffic covered by this contract, — and it covered no inconsiderable portion of the traffic of the continent, — each companj- practically abdicated its functions as a common carrier, and conferred ' Compare: Gibba v. Gas Co., 130 U. S. 396; Trust Co. v. Columbus, &c. R. R., 95 Fed. 22 ; Light Co. v. Sims, 104 Cal. 331 ; People D. Gas Trust, 130 111. 293 ; Light Co. V. ClafEy, 151 N. Y. 42. — Ed. 2 Only opinion is printed. — Ed. 268 CHICAGO, M. & ST. P. E. R. V. WABASH, ST. L. & P. E. E. them on a new creation, for the sole purpose of suppressing competi- tion. Before they entered into this contract, each of these companies had the power, and it was its duty, to make rates for itself, and to make them reasonable; hut, by the terms of tliis contract, every one of the companies was divested of all its powers and discretion in this respect. The contract removed every incentive to the companies to afford the public proper facilities, and to carry at reasonable, rates ; for, under its provisions, a company is entitled to its full percentage of gross earnings, even though it does not carry a pound of freight. The necessary and inevitable result of such a contract is to foster and create poorer service and higher rates. There is no inducement for a road to furnish good service, and carry at reasonable rates, wlien it receives as much or more for poor service, or for no service, as it would re- ceive for good service and an energetic struggle for business. A railroad company is a quasi public corporation, and owes certain duties to the public, among which are the duties to afford reasonable facilities for the transportation of persons and property, and to charge only reasonable rates for such service. Anj- contract bj- which it dis- ables itself from performing these duties, or which makes it to its inter- est not to perform them, or removes all incentive to their performance, is contrary to public policy and void ; and, the obvious purpose of this contract being to suppress or limit competition between tlie contracting companies in respect to the traffic covered by the contract, and to establish rates without regard to the question of their reasonableness, it is contrarj- to public policy, and void. Eailroad Co. i". Closser, 126 Ind. 348, 26 N. E. 159 ; Gulf, C. & S. F. R. Co. v. State (Tex. Sup.), 10 S. W. 81; State v. Standard Oil Co. (Ohio Sup.), 30 N. E. 279; Texas & P. Ry. Co. v. So'nthern Pac. Ry. Co. (La.), 6 South. 888 ; Gibbs V. Gas Co., 130 U. S. 396, 9 Sup. Ct. 553 ; Morris Run Coal Co. V. Barclay Coal Co., 68 Pa. St. 173 ; Salt Co. v. Guthrie, 35 Ohio St. 666 ; Stanton v. Allen, 5 Denio, 434 ; Hooker v. Vaudewater, 4 Denio, 349 ; Chicago Gaslight & Coke Co. v. People's Gaslight & Coke Co., 121 111. 530, 13 N. E. 169 ; West Virginia Transp. Co. ■;;. Ohio River Pipe Line Co., 22 W. Va. 600 ; W. U. Tel. Co. v. American Union Tel. Co., 65 Ga. 160; Sayre v. Association, 1 Duv. 143; U. S. v. Trans- Missouri Freight Ass'n, 7 C. C. A. 15, 58 Fed. 58. But, conceding that the contract is illegal and void, the appellant asserts that it has been performed, and that the appellee is bound to account for moneys received under the contract according to its terras. This contention rests on a misconception of the character of this suit. The appellant's claim is grounded on the illegal and void contract, and and this suit is, in legal effect, nothing more than a bill to enforce spe- cific performance of that contract. The contract contemplated two modes of pooling, — one by an actual division of the traffic, and the other by a division of the gross earn- ings. The traffic not having been divided, this is a suit to enforce the second method of the pool, — a division of the gross earnings ; or, in CHICAGO, M. & ST. P. R. E. V. WABASH, ST. L. & P. E. E. 269 other words', a pooling of the earnings. The illegfil and void contract has not been executed, and tlie appellant invokes the aid of the court to compel the Wabash Company to execute it on its part by pooling its earnings. It may be conceded that the illegal contract has been per- formed on the part of the appellant, though it does not appear to have done anything more than to sign the contract. The only thing it could do towards a performance of the contract was not to compete for the business. This was a violation of its duty to the public, and illegal. Bat a contract performed on one side only is not an executed contract. Where an illegal act is to be done and paid for, the contract is not ex- ecuted until the act is done and paid for. A court will not compel the act to be done, even though it has been paid for. Neither will it com- pel payment, although the act has been done ; for this would be to en- force the illegal contract. The illegality taints the entire contract, and neither of the parties to it can successfully make it the foundation of an action in a court of justice. The Wabash Company performed the service that earned the money the appellant is seeking to recover. The appellant earned no part of it. There is nothing in the record to show that the appellant would have carried more or the Wabash Company less freight if the contract had never been entered into. The money demanded was received by the Wabash Company for freight tendered to it by shippers themselves, and carried by it over its own line. It was legally bound to accept the freight tlius tendered, and was entitled to receive the compensation for tlie carriage, and cannot be compelled to pay the money thus earned, or any part of it, to the appellant on this illegal and void contract. The case of Brooks v. Martin, 2 Wall. 70, is not in point. In that case the defendant set up an illegal contract, which had been fully per- formed and executed, as a defence against a demand that existed inde- pendently of the contract ; whereas, in this case, the illegal contract is set up by the plaintiff as the foundation of its action. Strike this con- tract out, and confessedl}' the complaint states no cause of action ; leave it in, and it states an illegal and void cause of action. Courts will not lend their aid to enforce the performance of a con- tract which is contrary to public policy or the law of the land, but will leave the parties in the plight their own illegal action has placed them. Central Transp. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478 ; Gibbs v. Gas Co., 130 U. S. 396, 9 Sup. Ct. 553 ; Texas & P. Ry. Co. V. Southern Pac. Ry. Co., 41 La. Ann. 970, 6 South. 888; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173 ; Hooker v. Vandewater, 4 Denio, 349. We have not overlooked the case of Cen- tral Trust Co. V. Ohio Cent. R. Co., 23 Fed. 306. The opinion in that case is not supported by the authorities, and is unsound in principle. The decree of the court below is aflfirmed.^ 1 Compare : U. S. v. Freight Ass., 166 U. S. 290; U. S. v. Joint Traffic Assn., 171 U. S. 505 ; Anderson v. Jett, 89 Ky. 375 ; R. R. v. R. R., 41 La. Ann. 940 ; R. R. v. U. R., 66 N. H. 100 ; Leslie v. Lorillard, 110 N. Y. 519 ; Cleveland R. R. v. Clesser, 126Ind. 362. — Ed. 270 UNITED STATES V. AMERICAN WATER WORKS CO. UNITED STATES v. AMERICAN WATER WORKS COMPANY. ClECDIT COUKT OP NEBRASKA, 1889. [37 Fet relieve them from that duty ; and the question is, whether this obligation is an unenforceable one in the absence of express legislation upon the subject, or whether the right, which each has in the perform- ance of its public function, to locate a union station at a reasonably convenient point cannot be vindicated and enforced by the orders and decrees of this court. The right of these parties and the public to have the union sta- 316 JONES V. NEWPORT NEWS AND MISSISSIPPI, VALLEY 00. tion at Manchester located in the proper place is a legal right, the enforcement of which is not prevented by tlie circumstance that the remedial power is not conferred upon a tribunal of special and liftiited jurisdiction. It is a right which can be judicially- determined at the trial terra upon a petition or bill in equity seeking such relief. The procedure will be such as is considered most appropriate for the work to be done. Walker v. Walker, 63 N. H. 321. Case discharged.^ JONES V. NEWPOET NEWS & MISSISSIPPI VALLEY CO. Circuit Court of Appeals, Sixth Circuit, 1895. [65 Fed. 736.2] Action by H. M. Jones against the Newport News & Mississippi Valley Company for injury to and discontinuance of a railroad switch to plaintiff's warehouse. A demurrer was sustained to that part of the petition which claimed damages for discontinuance of the switch, and plaintiff brings error. Taft, Circuit Judge. Plaintiff bases his claim for damages — First, on the violation of an alleged common-law duty; and, second, on the breach of a contract. 1. The proposition put forward on plaintiff's behalf is that when a railroad company permits a switch connection to be made between its line and the private warehouse of any person, and delivers mer- chandise over it for years, it becomes part of the main line of the railroad, and cannot be discontinued or removed, and this on common-law principles and without the aid of a statute. It may be safely assumed that the common law imposes no greater obligation upon a common carrier with respect to a private individual than with respect to the public. If a railroad company may exercise its dis- cretion to discontinue a public station for passengers or a public ware- house for freight without incurring any liability ,or rendering itself subject to judicial control, it would seem necessarily to follow that it may exercise its discretion to establish or discontinue a private warehouse for one customer. In Northe^rn Pac. Ky. Co. v. Washington, 142 U. S. 492, it was held that a mandamus would not lie to compel a railroad company to establish a station and stop its trains at a town at which for a time it did stop its trains and deliver its freight. In Com. V. Fitchburg R. Co., 12 Gray, 180, it was attempted to compel a railroad company to run regular passenger trains over cer- 1 Compare : R. E. v. Commissioners, 6 Q. B. D. 586 ; P. v. R. R., 120 111. 48 ; Commissioners v. R. R., 63 Me. 273 ; P. v. R. R., 104 N. Y. 58. Ed. s This case is Abridged. — Eo. JONES V. NEWPORT NEWS & MISSISSIPPI VALLEY CO. 3l7 tain branch lines upon which they had been run for a long time, but had been discontinued because they were unremunerative. The court held that mandamus would not lie because the maintenance of such facilities was left to the discretion of the directors.^ It is true that the foregoing were cases of mandamus, and that the court exercises a discretion in the issuance of that writ which cannot enter into its judgment in an action for damages for a breach of duty. But the cases show that the reason why the writ cannot go is because there is no legal right of the public at common law to have a station established at any particular place along the line, or to object to a discontinuance of a station after its establishment. They make it clear that the directors have a discretion in the interest of the public and the company to decide where stations shall be, and where they shall remain, and that this discretion cannot be controlled in the absence of statutory provision. Such uncontrollable discretion is utterly inconsistent with the existence of a legal duty to maintain a station at a particular place, a breach of which can give an action for damages. If the directors have a discretion to establish and, discon- tinue public stations, a fortiori have they the right to discontinue switch connections to private warehouses. The switch connection and transportation over it may seriously interfere with the conven- ience and safety of the public in its use of the road. It may much embarrass the general business of the company. It is peculiarly within the discretion of the directors to determine whether it does so or not. At one time in the life of the company, it may be useful and consistent with all the legitimate purposes of the company. A change of conditions, an increase in business, a necessity for travel at higher speed, may make such a connection either inconvenient or dangerous, or both. We must therefore dissent altogether from the proposition that the establishment and maintenance of a switch con- nection of the main line to a private warehouse for any length of time can create a duty of the railroad company at common law forever to maintain it. There is little or no authority td sustain it. The latest of the Illinois cases which are relied upon is based upon a constitutional provision which requires all railroad companies to permit connections to be made with their track, so that the con- signee of grain and any public warehouse, coal bank, or coal yard may be reached by the cars of said railroad. The supreme court of that state has held that the railroad company has a discretion to say in what particular manner the connection shall be made with its main track, but that this discretion is exhausted after the completion of the switch and its use without objection for a number of years. Railroad Co. V. Suffern, 129 111. 274. But this is very far from holding that there is any common-law liability to maintain a side track forever 1 An extract from the opinion in Ry. v. Washington is omitted. The Court also cited Peo, o. N. Y. L. E. & W. E. R., 104 N. Y. 58 ; Florida, C. & P. E. E. v. State, 31 Fla. 482. — Ed. 318 JONES V. NEWPORT NEWS *orth while to specu- late. It would be difficult to exaggerate the evil of which such a system would be the cause, when fully developed, and managed by unscrupulous hands. Can it be seriously doubted whether a contract, involving such a CHICAGO AND NORTHWESTEKN RAILROAD V. PEOPLE. 325 principle, and such results, is in conflict with the duties which the company owes to the public as a common carrier? The fact that a contract has been made is reallj' of no moment, because, if the com- pany can bind tlie public by a contract of this sort, it can do the same thing by a mere regulation of its own, and say to these relators that it will not deliver at their warehouse the grain consVned to them, because it prefers to deliver it elsewhere. The contract, if vicious in itself, so far from excusing the road, only shows that the policy of delivering grain exclusively at its chosen warehouses is a deliberate policj", to be followed for a term of years, during which these contracts run. It is, however, urged very strenuously b^- counsel for the respondent, that a common carrier, in the absence of contract, is bound to carry and deliver onl}- according to the custom and usage of his business ; that it depends upon himself to establish such custom and usage ; and that the respondent, never having held itself out as a carrier of grain in bulk, except upon the condition that it maj' itself choose the consignee, this has become the custom and usage of its business, and it cannot be required to go beyond this limit. In answer to this position, the fact that the respondent has derived its life and powers from the people, through the legislature, comes in with controlling force. Admit, if the respondent were a private association, which had established a line of wagons, for the purpose of carrying grain from the Wisconsin boundary to the elevator of Mnnn & Scott in Chicago, and had never offered to carry or deliver it elsewhere, that it could not be compelled to depart from the custom or usage of its trade. Still the admission does not aid the respondent in this case. In the case supposed, the carrier would establish the terminal points of his route at his own discretion, and could change them as his interests might demand. He offers him- self to the public onl3' as a common carrier to that extent, and he can abandon his first line and adopt another at his own volition. If he should abandon it, and, instead of offering to carry grain onlj" to the elevator of Munn & Scott, should offer to carry it generally to Chicago, then he would clearly be obliged to deliver it to any consignee in Chicago, to whom it might be sent and to whom it could be delivered, the place of delivery being upon his line of carriage. In the case before us, admitting the position of counsel that a com- mon carrier establishes his own line and terminal points, the question arises, at what time and how does a railway company establish them? We answer, when it accepts from the legislature the charter which gives it life, and by virtue of such acceptance. That is the point of time at which its obligations begin. It is then that it holds itself out to the world as a common carrier, whose business will begin as soon as the road is constructed upon the line which the charter has fixed. Suppose this respondent had asked from the legislature a charter au- thorizing it to carry grain in bulk to be delivered only at the elevator of Munn & Scott, and nowliere else in the city of Chicago. Can any one suppose such charter would have been granted? The supposition is 326 CHICAGO AND NORTHWESTEKN EAILEOAD V. PEOPLE. preposterous. But, instead of a charter making a particular elevator the terminus and place of deliveiy, the legislature granted one which made the city of Chicago itself the terminus, and when this charter was ac- cepted there at once arose, on the part of the respondent, the corre- sponding obligation to deliver grain at any point within the city of Chicago, upon its linus, with suitable accommodations for receiving it, to which such grain might be consigned. Perhaps grain in bulk was not then carried in cai'S, and elevators ma3- not have been largely intro- duced. But the charter was granted to promote the conveniences of commerce, and it is the constant dut^- of the respondent to adapt its agencies to that end. When these elevators were erected in Chicago, to which the respondent's line extended, it could onl}' carr^' out the obligations of its charter by receiving and delivering to each elevator whatever grain might be consigned to it, and it is idle to saj- such obligation can be evaded b}- the claim that such deliver}- has not been the custom or usage of respondent. It can be permitted to establish no custom inconsistent with the spirit and object of its charter. It is claimed by counsel that the charter of respondent authorizes it to make such contracts and i-egulations as might be necessary in the transaction of its business. But certainl}- we cannot suppose the legis- lature intended to authorize the making of such rules or contracts as would defeat the very object it iiad in view in granting the charter. The company can make snch rules and contracts as it pleases, not in- consistent with its duties as a common carrier, but it can go no further, and any general language which its charter maj- contain must neces- sarily be construed with that limitation. In the case of The City of Chicago V. Eumpff, 45 111. 94, this court held a clause in the charter, giving the common council the right to control and regulate the business of slaughtering animals, did not authorize the cit}' to create a monopoly of the business, under pretence of regulating and controlling it. It is unnecessary to speak particularl}' of the rule adopted by the company in reference to the transportation of grain. What we have said in regard to the contract applies equally to the rule. The principle that a railroad company can make no injurious or arbitrary discrimination between individuals in its dealings with the public, not only commends itself to our reason and sense of justice, but is sustained by adjudged cases. In England, a contract which admitted to the door of a station, within the j-ard of a railway company, a certain omnibus, and excluded another omnibus, was held void. Marriot v. L. & S. W. R. R. Co., 1 C. B. (N.S.), 498. In Gaston v. Bristol & Exeter Railroad Company, 6 C. B. (N. S.) 641, it was held, that a contract with certain ironmongers, to carry their freight for a less price than that charged the public, was illegal, no good reason for the discrimination being shown. In Crouch v. The L. & N. W. R. Co., 14 C. B. 254, it was held a rail- way company could not make a regulation for the conveyance of goods which, in practice, affected one individual only. COE V. LOUISVILLE & NASHVILLE EAILEOAD. 327 In Sandford v. Railroad Company, 24 Pa. 382, the court held that the power given in the charter of a railway company to regulate the . transportation of the road did not give the right to grant exclusive privileges to a particular express company. The court say, "If the company possessed this power, it might build up one set of men and destroy others ; advance one kind of business and break down another, and make even religion and politics the tests in the distribution of its favors. The rights of the people are not subject to any such corpoiate control." We refer also to Rogers' Locomotive Works v. Erie R. R. Co., 5 Green, 380, and State v. Hartford & N. H. R. Co., 29 Conn. 538. It is insisted by counsel for the respondent that, even if the relators have just cause of complaint, they cannot resort to the writ of manda- mus. We are of opinion, however, that they can have an adequate remedy in no other way, and that the writ will therefore lie. The judgment of the court below awarding a peremptory mandamus must be reversed, because it applies to the Galena division of respon- dent's road, as well as to the Wisconsin and Milwaukie divisions. If it had applied only to the latter, we should have affirmed the judgment. The parties have stipulated that, in case of reversal, the case shall be remanded, with leave to the relators to traverse the return. We there- fore make no final order, but remand the case, with leave to both parties to amend their pleadings, if desired, in view of what has been said in this opinion. Judgment reversed. COE V. LOUISVILLE & NASHVILLE RAILROAD. Circuit Court of the United States, Middle District op Tennessee, 1880. [3 Fed. 775.] Baxter, C. J. The defendant corporation owns the Louisville & Nashville Railroad, and, in virtue of its purchase of the southeastern lease of the Nashville & Decatur, and ownership of a majority of the capital stock of the Nashville, Chattanooga & St. Louis Railwaj' Com- pany, controls every railroad centering at Nashville. It has, for many years past, been engaged in carrying such freights as are usuall}' trans- ported by rail, including live stock. Twelve or more years since, when it needed facilities for loading and delivering live stock, the complain ants bought a lot contiguous to defendant's depot, in Nashville, at $14,000, and fitted it up as a stock yard, at a cost of $16,000 more. There was no express contract between complainants and defendant in relation to the matter. But it is clear that it was a convenience to de- fendant's business. By the permission or acquiescence of defendant complainants' yard was connected with defendant's road by appropriate stock gaps and pens, which have been in use by both parties for more 328 OOE V. LOUISVILLE & NASHVILLE RAILROAD. than twelve years : but on the twenty-fifth of March, 1880, the defend- ant and the Nashville, Chattanooga & St. Louis Railway Company entered into a contract with the Union Stock Yard Company, whereby the said stock-yard company stipulated " to erect, maintain, and keep in good order," etc., " a stock yard in the city of Nashville, on the line of the Nashville, Chattanooga & St. Louis Railway," outside the city limits, and more than a mile from complainants' yard. And the parties of the first part — the railroad companies — among other things, agreed that " they would establish no other stock yard in Nashville," and that they would " deliver, and cause to be delivered, to said party of the second part all live stock shipped over the roads of the parties of the first part, and consigned to the city of Nashville ; the parties of the first part hereby agreeing to make this stock yard of the party of the second part their stock depot for said city, and will not deliver at any other point or points of the city, and agree to deliver all live stock shipped to said city of Nashville at the yards of the party of the second part." In furtherance of this contract, Edward B. Stahlman, defendant's traffic manager, and owner of $5,000 of the capital stock of the stock- yard company, issued the following order, addressed to defendant's agent, dated July 10, 1880 : " On the fifteenth inst. there will be opened and ready for business the stock yards erected by the Union Stock Yard Company, at Nashville, Tenn. These yards have every facility for the proper handling and care of live stock, and will be con- stituted our stock delivery and forwarding depots. Live stock from and after that date consigned to Nashville proper, or destined to any points over our line via Nashville, should be way -billed care of the Union Stock Yards ; " and on the twenty-fourth of the same month James Geddes, defendant's superintendent, supplemented the foregoing order with a notice to complainants in the following words: "I am directed by Mr. De Funiak, general manager, to notify j'ou that after the last day of Julj-, 1880, no delivery of stock will be made to you at our platform here, Nashville depot," to wit, the platform, gaps, and pens communicating with complainants' j'ard, where the defendant had heretofore delivered to them. Complainants remonstrated against this threatened discrimination against them and their business ; but, being unable to induce any change in defendant's avowed policy, filed their bill in which thej' praj' for an injunction to restrain " defendant's agents and officers and servants from interfering with or in any manner disturbing the enjoyment and facilities now accorded to complainants by the said defendant upon its lines of railway, for the transaction of business now carried on bj- the complainants, and especially from excluding or inhibiting persons from consigning stock to complainants, and from refusing to receive and trans- port stock from complainants' yard, and from interfering with or in any way disturbing the business of the complainants, and from refusing to permit the complainants to continue their business on the same terras as heretofore." The injunction asked for is both inhibitory and man- COE V. LOUISVILLE & NASHVILLE RAILROAD. 329 datory ; it seeks to prohibit the doing of threatened and alleged wrongful acts, and to compel defendant to continue the facilities and accommodations heretofore accorded b^' defendant to complainants ; and the question is, are complainants entitled, preliminarily, to the relief prayed for, or any part of it? The facts suggest the very important inquiry, how far railroads, called into being to subserve the public, can be lawfully manipulated by those who control them to advance, incidentally, their own private interests, or depress the business of particular individuals or localities, for the benefit of other persons or communities. As common carriers they are l)y law bound to receive, transport, and deliver freights offered for that purpose, iu accordance with the usual course of busine.ss. The delivery, when practicable, must be to the consignee. But the rule which requires common carriers by land to deliver to the consignee pei'- sonally at his place of business, has been somewhat relaxed in favor of said roads on the ground that the}- have no means of delivering beyond their lines ; but it was held in Vincent v. The Chicago & Alton R. Co., 49 HI. 33, that at common law, and independent of the statute relied on in the argument, that in cases where a shipment of grain was made to a party having a warehouse on the line of the carrying road, who had provided a connecting track and was ready to receive it, it would be the duty of the railroad company to make a personal delivery of the grain to the consignee at his warehouse ; because, say the court, " the common-law rule must be applied, as the necessity of its relaxation" did not exist. This rule is just and convenient, and necessary to an expeditious and economical delivery of freights. It has regard to their proper classifi- cation, and to the circumstances of the particular case. Under it articles susceptible of easy transfer may be delivered at a general de- livery depot provided for the purpose. But live stock, coal, ore, grain in bulk, marble, etc., do not belong to this class. For these some other ' and more appropriate mode of delivery must be provided. Hence it is that persons engaged in receiving and forwarding live stock, manufac- turers consuming large quantities of heavj- material, dealers in coal, and grain merchants, receiving, storing, and forwarding grain in bulk, who are dependent on railroad transportation, usually select locations for the prosecution of their business contiguous to railroads, where they can have the benefit of side connections over which their freight can be delivered in bulk at their private depots ; and may a railroad company, after encouraging investments in mills, furnaces, and other productive manufacturing enterprises on its line of road, refuse to make personal delivery of the material necessary to their business, at their depots, erected for the purpose, and require them to accept delivery- a mile dis- tant, at the depot of and through a rival and competing establishment? Or may such railroad company establish a "Union Coal Yard" in this city, and constitute it its depot for the delivery of coal, and thus im- pose on all the coal dealers in the citj-, with whom it has side connec 330 COE V. LOUISVILLE & NASHVILLE EAILKOAD. tions, the labor, expense, and delay of carting their coal supplies from such general delivery to their respective yards ? Or may such railroad company, in like manner, discriminate between grain elevators in the same place, — constitute one elevator its depot for the 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, thej' can destroy a refrac- tory manufacturer, exterminate, or very materially cripple competition, and in large measure monopolize and control these several branches of useful commerce, and dictate such terms as avarice may suggest. We think they possess no such power to kill and make alive. Impartiality in serving their patrons is an imperative obligation of all railroad com- panies ; equalitj' of accommodations in the use of railroads is the legal right of everybody. The principle is founded in justice and necessity, and has been uniformly recognized and enforced bj- the courts. A con- trarj' idea would concede to railroad companies a dangerous discretion, and inevitably lead to intolerable abuses. It would, to a limited ex- tent, make them masters instead of the servants of the public. Bj^ an unjust exercise of such a power they could destroj' the business of one man and build up that of another, punish an enemy and reward a friend, depress the interests of one community for the benefit of its rival, and so manipulate their roads as to compel concessions and se- cure incidental profits to which they have no legal or moral right whatever. The case in hand is but a sample of what might be done by these corporations if the power claimed in this case is possessed by them. Complainants' stock j'ard was purchased and fitted up at a heavy out- lay of money. It was, at the time, a necessity to defendant's business. By the express agreement or tacit understanding of the parties suitable connections for receiving and delivering stock were made, of which the defendant availed itself for twelve years. But, after thus accepting the benefits of complainants' expenditures, the defendant proposes to sever its connections, withhold further accommodations, decline to receive from or deliver stock at complainants' yard, concentrate its patronage on the Union Stock Yard Company, require all consignors to way-bill their stock to the care of said favored company, and, by this invidious discrimination, compel complainants to carry on their trade through a rival yard, or else abandon their established and lucrative business. The execution of defendant's threat would destroy complainants' busi- ness, depreciate their property, and deprive the public of the protection against exorbitant charges which legitimate competition, conducted on equal terms, always insures. Complainants' yard is on defendant's road ; it furnishes every needed facility ; was purchased and improved in the belief that they would receive the same measure of accommoda- tion extended to others sustaining the same relation to defendant ; de- fendant can receive and discharge stock at complainants' j-ard as easily and cheaply as it can at the Union Stock Yard Company's yards. Such COE V. LOUISVILLE & NASHVILLE E. E. 331 delivery is botli practicable and convenient, and it is, we think, its legal duty, under the facts of this case, to do so. But defendant, protesting that the proposed discriminatioi^ in favor of the Union Stock Yard Company would, if executed, constitute no wrong of which complainants ought justly to complain, contends, — first, that complainants, even supposing the law to be otherwise, have an adequate remedy at law, and therefore cannot have stny relief from a court of chancery ; and, second, that if a chancery court may enter- tain jurisdiction, no relief in the nature of a mandatory order to com- pel defendant to continue accommodations to the complainants ought to be made until the flnal hearing. If such is the law it must be so administered. But we do not concur in this interpretation of the adju- dications. Those cited in argument are not, we think, applicable to the facts of this case. Complainants could, in the event defendant carries its threat into execution and withholds the accommodations claimed as their right, sue at law and recover damages for the wrong to be thus inflicted. But thej' could not, through any process used by courts of law, compel defendant to speciflcallj- perform its legal duty in the premises. And this imperfect redress could onl}- be attained through a ranltiplicit}' of suits, to be prosecuted at great expense of money and labor; and then, after reaching the end through the harass- ing delaj's incident to such litigation, complainants' business would be destroyed, and the Union Stock Yard Company, born of favoritism and fostered by an illegal and unjust discrimination, would be secure in its monopoly. Here an adequate remedy can be administered and a mul- tiplicity of suits avoided. One other point remains to be noticed. Ought a mandatory order to issue upon this preliminary application ? Clearlj' not, unless the urgency of the case demands it, and the rights of the parties are free from reasonable doubt. The dut}' which the complainants seek by this suit to enforce is one imposed and defined by law — a duty of which the court has judicial knowledge. The injunction compelling its perform- ance, pending this controversj', can do defendant no harm ; whereas a suspension of accommodations would work inevitable and irreparable mischief to complainants. The injunction prayed for will, therefore, be issued. 332 COVINGTON STOOK-YAEDS COMPANY V. KEITH, COVINGTON STOCK- YA.RDS COMPANY v. KEITH. Supreme Court of the United States, 1891. [139 U. S. 128.] Mr. Justice Haklan delivered the opinion of the court. On the 28th of Januarj^ 1886, George T. Bliss and Isaac E. Gates instituted in the court below a suit in equity against the Kentucljy Central Railroad Company, a corporation of Kentucky, for the fore- closure of a mortgage or deed of trust given to secure the payment of bonds of that company for a large amount ; in which suit a receiver was appointed who took possession of the railroad, with authority to operate it until the further order of the court. The present proceeding was begun on the 18th of June, 1886, by a petition filed in the foreclosure suit by Charles W. Keith, who was engaged in buying and selling on commission, as well as on his own account, live stock brought to and shipped from the city of Covington, Kentucky, over the Kentucky Central Railroad. The petition pro- ceeded upon the ground that unjust and illegal discrimination had been and was being made against Keith by the receiver acting under and pursuant to a written agreement made November 19, 1881, between the railroad company and the Covington Stock- Yards Compan}-, a corpora- tion created under the general laws of Kentuck)' ; the j-ards of the latter company located in Covington, and connected with the railroad tracks in that city, being the onl}' depot of the railway compan3- that was pro- vided with the necessary platforms and chutes for receiving or discharg- ing live stock on and from its trains at that city. The petition alleged that Keith was the proprietor of certain live-stock lots and yards in that cit3' immediately west of those belonging to the Covington Stock- Yards Company, and separated from them bj- onl3- one street sixty feet in width ; that he was provided with all the necessary- means of re- ceiving, feeding, and caring for such stock as he purchased, or as might be consigned to him bj' others for sale; and that his lots and yards were used for that purpose subsequently to March 1, 1886, and until, b}- the direction of the receiver, the platforms connecting them with the railroad were torn up and rendered unfit for use. The prayer of the petitioner was for a rule against the receiver to show cause why he sliould not deliver to him at some convenient and suitable place outside of the lots or yards of the said Covington Stock-Yards Companj- free from other than the customary freight charges for transportation, all stock owned by or consigned to him and brought over said road to Covington. The receiver filed a response to the rule, and an order was entered giving leave to the Covington Stock-Yards Company to file an inter- vening petition against the railroad company and Keith, and requiring the latter parties to litigate between themselves the question of the COVINGTON STOCK-YARDS COMPANY V. KEITH. 333 validitj- of the above agreement of 1881. The Stock-Yards Company filed such a petition, claiming all the rights granted by the agreement referred to, and alleging that it had expended sixty thousand dollars in constructing depots, platforms, and chutes, as required by that agreement. Referring to that agreement it appears that the Stock- Yards Com- pany stipulated that its yards on the line of the railroad in Coyington should be maintained in good order, properly equipped with suitable fencing, feeding-pens, and other customary conveniences for handling and caring for live stock, and to that end it would keep at hand a suf- ficient number of skilled workmen to perform the operations required of it, and generally to do such labor as is usually provided for in stock yards of the best class, namely, to load and unload and care for " in the best manner all live stock delivered to them by the party of the first part [the railroad company] at their own risk of damage while so doing, and in no event to charge more than sixty cents per car of full loads for loading and sixty cents per car for unloading, and no charges to be made for handling less than full loads, as per way-bills." The Stock- Yards Company also agreed to become liable for those charges, and to collect and pay over to the railroad company, as demanded from time to time, such mone}" as came into its hands, the charges for feeding and caring for live stock not to be more than was charged for similar services and supplies at other stock yards of the country. The railroad companj-, upon its part, agreed to pay the Stock-Yards Company the above sums for loading and unloading and otherwise acting as its agent in the collection of freights and charges upon such business as was turned over to it by the railroad company ; that it would require all ears loaded at yards for sliipment South or East to be carefully bedded, which the Stock- Yards Company was to do at the rates usually' charged in other yards ; that it would make the yards of the Stock-Yards Company its "depot for delivery of all its live stock," during. the terra of the con- tract, and not build, " nor allow to be built, on its right of way, anj' other depot or yards for the reception of live stock." The delivery of stock in cars on switches or sidings provided for the purpose was to be considered a delivery of the stock to the Stock-Yards Company, which, from that time, was to be responsible for the stock to the railroad com- pany. To protect the business of the Stock- Yards Company from dam- age in case the railroad extended its track over the Ohio River, the railroad company agreed that during the term of the contract the rate of freight from all points on its road and connections should " not be less than five dollars per car more to the Union Yards of Cincinnati than the rate to Covington yards from the same points ; " that its busi- ness arrangements with any other railroad or transportation line should be subject to this agreement ; and that the yards of the Stock-Yards Company " shall be the de{X)t for all live stock received from its con- nections for Cincinnati or Eastern markets." The agreement by its terms was to remain in force for fifteen years. 334 COVINCTON STOOK-YAEDS COMPANY V. KEITH. In the progress of the cause E. W. Wilson, by consent of parties, was made a co-petitioner and co-respondent with Keith. By the final decree it was found, ordered, and decreed as follows : " It is the duty and legal obligation of the Kentucky Central Railroad Company, as a common carrier of live stock, to provide suitable and convenient means and facilities for receiving on board its cars all live stock offered for shipment over its road and its connections from the city of Covington, and for the discharge from its cars of all live stock brought over its road to the said city of Covington, free of any charge other than the customary transportation charges to consignors or consignees ; and that the said petitioners, Keith and Wilson, live- stock dealers and brokers, doing business at the city of Covington, and proprietors of the Banner Stock- Yards at that place, are entitled to so sliip and receive over said road such live stock without being subject to any such additional charges imposed by said receiver, said railroad companj-, or other person or corporation. The court further finds and decrees that the alleged contract entered into hy and between the said railroad company and the said Covington Stock- Yards Company, of date the 19th day of November, 1881, does not entitle the said Stock- Yards Companj- to impose upon any shipper of live stock over said road, passing such stock through the jards of said companj- to and from the cars of said railroad companj', anj- charge whatever for such passage. It is stipulated in said contract that said Stock-Yards Com- pany shall establish and maintain suitable yards or pens for receiving, housing, feeding, and caring for live stock, and to receive all such stock, and load and unload the same upon and from the cars of said companj- transported on or to be transported over said road for a com- I)ensation of sixty cents per car load, to be paid by said railroad company for and during the period of fifteen years from the date of said contract, which has not yet expired, while the said railroad company agreed that it would not during said period establish or allow to be established on the line of its road or on its right of way in said city of Covington any other platform or depot than that of said Stock- Yards Company for the receipt or delivery of such live stock. . . . The court doth further find that the general freight depot of the said railroad company in the said city of Covington, at the terminus of its road between Pike and Eighth Streets, is not a suitable or convenient place for the receipt and delivery of live stock brought to the said city or to be shipped therefrom over said road, and neither said railroad company nor said receiver having provided such suitable depot or place therefor, except the yards of said Stock-Yards Company, it is now ordered and decreed that the said rail- road company and said receiver shall hereafter receive and deliver from and to the said Keith & Wilson at and through the said Covington stock yards all such live stock as may be brought to them or offered by them for shipment over said road and its connections, upon the consent of said stock yards, in writing, that it may be so done, being filed in this court and cause on or before the 1st day of January next "after the COVINGTON STOCK-YARDS COMPANY V. KEITH. 335 i entry t)f this decree, free of any charge for passing through said yards to and from the cars of said railroad company. In default of such con- sent heing so filed, it is ordered and decreed that upon said Keith & Wilson putting the platform and chute erected by them on the land of said Keith adjacent to the live-stock switch of said railroad companj' north of said stock yards the said railroad company and said receiver shall receive and deliver all such live stock to said Keith & Wilson as shall be consigned to them or either of them or be offered by them or either of them for shipment at said platform. The said Keith & Wilson shall provide an agent or representative at said platform to receive such cattle as they may be notified by said railroad company or said receiver are to be delivered to them thereat, and thej' shall give the said rail- road company or said receiver reasonable notice of any shipment desired to be made bj- them from said platform to conform to the de- parture of live-stock trains on said road." The I'ailroad company, holding itself out as a carrier of live stock, was under a legal obligation, arising out of the nature of its employ- ment, to provide suitable and necessarj' means and facilities for receiv- ing live stock offered to it for shipment over its road and connections, as well as for discharging such stock after it reaches the place to which it is consigned. The vital question in respect to such matters is, whether the means and facilities so furnished by the carrier or by some one in its behalf are sufficient for the reasonable accommodation of the public. But it is contended that the decree is erroneous so far as it compels the railroad companj- to receive live stock offered by the ap- pellees for shipment and to deliver live stock consigned to them, free from any charge other than the customary' one for transportation, for merely passing into and through the yards of the Covington Stock- Yards Company to and from the cars of the railroad company. As the decree does not require such stock to be delivered in or through the yards of the appellant, except with its written consent filed in this cause ; as such stock cannot be properly loaded upon or unloaded from cars within the limits of the city, except by means of inclosed lots or yards set apart for that purpose, and conveniently located, in or through which the stock may be received from the shipper or delivered to the consignee, without danger or inconvenience to the public in the vicinity of the place of shipment or discharge ; and as the appellant has volun- tarily undertaken to discharge the duty in these matters that rests upon the railroad company, the contention jnst adverted to, is, in effect, that the carrier may, without a special contract for that purpose, require the shipper or consignee, in addition to the customary and legitimate charges for transportation, to compensate it for supplying the means and facilities that must be provided by it in order to meet its obligations to the public. To this proposition we cannot give our assent. When animals are offered to a carrier of live stock to be transported it is its duty to receive them ; and that duty cannot be efficiently dis- charged, at least in a town or city, without the aid of yards in which 336 COVINGTON STOCK-YAEDS COMPANY V. KEITH. the Stock offered for shipment can be received and handled with safety and without inconvenience to the public while being loaded upon the cars in whicli they are to be transported. So, when live stock reach tlie place to wliich they are consigned, it is the duty of the carrier to deliver them to the consignee ; and such delivery cannot be safely or effectively made except in or through inclosed yards or lots, convenient to the place of unloading. In other words, the duty to receive, trans- port, and deliver live stock will not be fully discharged, unless the carrier makes such provision, at the place of loading, as will enable it to properly receive and load the stock, and such provision, at the place of unloading, as will enable it to properly deliver the stock to the consignee. A railroad company, it is true, is not a carrier of live stock with ail the responsibilities that attend it as a carrier of goods. North Penn. Eailroad v. Commercial Bank, 123 U. S. 727, 734. There are recog- nized limitations upon the duty and responsibility of carriers of inani- mate property tliat do not apply to carriers of live stock. Tiiese limitations arise from the nature of the particular property transported. "But," this court said, in the case just cited, "notwithstanding this difference in duties and responsibilities, the railrond company, when it undertakes generally to carry such freight, becomes subject, under similar conditions, to the same obligations, so far as tlie delivery of the animals which are safely transported is concerned, as in the ease of goods. Tliey are to be delivered at the place of destination to the party designated to receive them if he presents himself, or can with reasonable efforts be found, or to his order. No obligation of the car- rier, whether the freight consists of goods or live stock, is more strictly enforced." * Tlie same principle necessarily applies to the receiving of live stock by the carrier for transportation. The carrier must at all times be in proper condition both to receive from the shipper and to deliver to the consignee, according to the nature of the property to be transported, as well as to the necessities of the respective localities in which it is received and delivered. A carrier of live stock has no more right to make a special charge for merely receiving or merely delivering such stock, in and througli stock yards provided by itself, in order that it may properly receive aud load, or unload and deliver, such stock, than a carrier of passengers may make a special charge for the use of 1 Myrick v. Michigan Central Railroad, 107 U. S. 102, 107 ; Hall & Co. v. Eenfro, 3 Met (Ky.) 51, 54; Mynard u. Syracnse & Binghamton Eailroad, 71 N. Y. 180; Smith !!. New Haven & Northampton Railroad, 12 Allen, 531, 533 ; Kimball v. Rutland & Burlington Railroad, 26 Vt. 247 ; South & North Alabama Railroad Company v. Henleiu, 52 Ala. 606, 613 ; Wilson v. Hamilton, 4 Ohio St. 722, 740 ; Ayres r. Chicago & Northwestern Railroad, 71 Wis. 372, 379, 381 ; McCoy v. K. & D. M. R. Co., 44 Iowa, 424, 426; Maslin v. B. & 0. R. R. Co., 14 W. Va. 180, 188; St. Louis & Sonth- eastern Railway v. Dorman, 72 111. 504 ; Monlton v. St. Paul, Minneapolis, &c. Rail- way, 31 Minn. 85, 87 ; Kansas Pacific Railway r. Nichols, 9 Kas. 235, 248 ; Clarke ". Rochester & Syracuse Railroad, 14 N. Y. 570, 573; Palmer v. Grand Junction Railway, 4 M. & W. 749. COVINGTON STOCK-YAEDS COMPANY V. KEITH. 337 its passenger depot by passengers when proceeding to or coming from its trains, or tliau a carrier may charge the shipper for the use of its general freight depot in merely delivering his goods for shipment, or the consignee of such goods for its use in merely receiving them there within a re&sonable time after they are unloaded from the ears. If tlie carrier may not make such special charges in respect to stock j-ards which itself owns, maintains, or controls, it cannot invest anotlier cor- poration or company with authority to impose burdens of that kind upon shippers and consignees. The transportation of live stock begins with their delivery to the carrier to be loaded upon its cars, and ends only after the stock is unloaded and delivered, or offered to be deliv- ered, to the consignee, if to be found, at such place as admits of their being safely taken into possession. We must not be understood as holding that the railroad company, in this case, was under anj' legal obligation to furnish, or cause to be fur- nished, suitable and convenient appliances for receiving and delivering live stock at every point on its line in the city of Covington where per- sons engaged in buying, selling, or shipping live stock, chose to estab- lish stock yards. In respect to the mere loading and unloading of live stock, it is only required bj' the nature of its employment to furnish such facilities as are reasonably sufficient for the business at that citj-. So far as the record discloses, the yards maintained by the appellants are, for the purposes just stated, equal to all the needs, at that city, of shippers and consignees of live stock ; and if the appellee had been permitted to use them, without extra charge for mere " yardage," they would have been without just ground of complaint in tliat regard ; for it did not concern them whether the railroad company itself maintained stock yards, or emploj-ed another company or corporation to supply the facilities for receiving and delivering live stock it was under obli- gation to the public to furnish. But as the appellant did not accord to appellees the privileges they were entitled to from its principal, the carrier, and as the carrier did not offer to establish a stock yard of its own for shippers and consignees, the court below did not err in requir- ing the railroad company and the receiver to receive and deliver live stock from and to the appellees at their own stock yards in the imme- diate vicinity of appellant's yards, when the former were put in proper condition to be used for that purpose, under such reasonable regulations as the railroad company might establish. It was not within the power of the railroad company, by such an agreement as that of November 19, 1881, or by agreement in any form, to burden the appellees with charges for services it was bound to render without any other compen- sation than the customary charges for transportation. Decree affirmed, 22 338 BUTCHEES', ETC. STOCK-YAED CO. V. LOUIS. & NASH. K. BUTCHERS' & DROVERS' STOCK-YARD CO. v. LOUIS- VILLE & NASHVILLE RAILROAD. Circuit Coukt of Appeals, Sixth Circuit, 1895. [67 Fed. 35 ] Taft, Circuit Judge, delivered the opinion of the court. > This is an action in equity by a stock-yards company for a manda- tory injunction to compel a railroad company to build, or to allow \a be built, a side track connecting a spur track of the railroad company with the stock yards of the complainant, and there to deliver and re- ceive all cattle consigned to and shipped by the complainant. The defendant answered, and the cause was heard on pleadings and evi- dence, and resulted in a dismissal of the bill. The complainant ap- peals. The facts are substantially as follows: The complainant, the Butchers' & Drovers' Stock-Yards Company, was organized under the laws of Tennessee, and entered upon its business in 1889. It has a stock yard within the city limits of the city of Nashville, and near to the business centre thereof. The Louisville & Nashville Railroad Company is a corporation of Kentucky, whose line of railroad extends to and through Nashville from Louisville. In 1890 the city council of the city of Nashville passed an ordinance permit- ling the defendant company to lay a spur track from its main track along Front Street in said city. . . . Sidings were laid by the defendant from the spur track to the prop- erty of W. G^ Bush & Co., Jacob Shaffer, Levi Langham, and the Capitol Electric Company, and others, under contracts made by the railroad company with these parties, in each of which the defendant retained the right to disconnect the siding from the spur track at any time without notice to the other Jjarty. The persons or firms with whom these contracts were made were manufacturing firms or coal dealers. They all owned land abutting on Front Street. Complain- ant is engaged in receiving, feeding, weighing, selling, and shipping live stock for the general public. Its yards are a block away from the defendant's main line. ... In 1891, after the spur track and the sidings already alluded to had been constructed, the complainant requested the defendant that a siding be so constructed in front of complainant's property as to allow the transportation of live stock to and from its establishment in car-load lots, and that the same facilities for transportation be afforded to it as were enjoyed by ^ Bush & Co. and the others who then bad sidings. . . . Defendant's attorney answered complainant's request, and stated that, inasmuch as the siding proposed appeared to be desired solely for the purpose of receiving and delivering live stock at defendant's yards, and the railroad company had provided a station for this purpose at Nashville, the establishment of another was declined. ' Part of tlie opinion is omitted. — Ed. butchers', etc. stock-yard CO. V. LOUIS. & NASH. R. 339 The Btock-yards station referred to was that of the Union Stock- Yards Company, . . , about a mile and a half from the stock yards of the complainant. The evidence in the record, some of which was admitted, and some of which was excluded by the court below, shows that no charge beyond the ordinary charge for transportation is made for the loading and unloading of cattle at the stock yards to the shipper or consignee; that after the cattle have been unloaded, and have not been taken away by the consignee from the yard for two or three hours, they are then turned into the pens of the stock yards, where a charge of two dollars per car for a day or part of a day is made by the stock-yards company for keeping them, until the con- signee takes them away. When cattle arrive at night, the usual result is that they are turned into the pens, because the consignee cannot drive them through the streets at night. There was evidence also of a charge of five or ten cents per head by the stock-yar4s com- pany if, after the cattle have been priced in the Union Yards, they are removed without sale to another stock yard. . . . It is insisted that the court will not establish a right that may be dissolved at the will of the defendant. The railroad company reserves the right in its contract with Bush to take up the spur track at any time, and therefore it ie said that it cannot be compelled to do that for the complainant which it might at once cease to do by taking up the track. This objection is untenable. The gravamen of the charge in the bill is that the railroad company is discriminating against the complainant, and in favor of those to whom sidings from the spur track are permitted, and that it should be granted equal facilities with such persons. The prayer is in form for an injunction against the discrimination. If the spur track is taken up, then all who enjoy it will be placed on an equal footing and at an equal disadvantage. But complainant's claim is that, while others enjoy the spur track, it also should have the same facilities. It is clearly no defense to a charge of discrimination that the facilities furnished the favored person may be withdrawn at the will of the one who grants them. We are therefore brought to the issue whether or not there is any discrimination between those who have side-track connections on Front Street and the complainant. This depends on two questions: First. Is it a discrimination which can be controlled or restrained by the courts for a railroad company to furnish a side track to one of its customers, and to refuse such accommodation to another similarly situated ? Second. Conceding an affirmative answer to the first question, is there such a difference between the facilities de- manded by the complainant and those extended to its neighbors on Front Street, in respect of the comparative bui'dens which must be assumed by the railway company in granting them, as to justify the latter in making the distinction it insists upon? The first question is one full of difficulty, both at common law, upon the principles of which this case must be decided, and also 340 BUTCHEES', ETC. STOCK-YAED CO. V. LOUIS. & NASH. E. under the interstate commerce act. Because we are able to satis- f actorily dispose of the case ou the second question, we reserve con- sideration of the fli'st until the case arises which requires it. We are clearly of opinion that, however unjust and unlawful it may be for a railroad company having furnished a side track to one shipper to refuse it to another similarly situated, the difference in this case be- tween the business of the complainant and that of the other abutters upon the spur track is so great as to make the refusal of the railroad company to grant the side track to the complainant entirely reason- at3le. The difference between the duties of a common carrier in the transportation of live stock and of dead freight has been remarked upon more than once by the Supreme Court of the United States. North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727-734; Stock-Yards Co. v. Keith, 139 U. S. 128-133. The evi- dence clearly shows that the delivery of car-load lots of dead freight and the receipt of them by side tracks is much less onerous, and involves much less care and responsibility for the railroad company, than would the receipt of live stock from a private yard by side track. One of the chief reasons why deliveries and shipments of rail- road car-load lots by side track are possible aud consistent with the conduct of the business of a large trunk line is that the loaded car may stand upon a side track for hours, or even a day, until the rail- road company finds it convenient to back its engine down and take it. Such delays are utterly impossible in the proper transportation of car loads of live stock. When they are loaded, they must be moved. The evidence shows that in other respects the supervision of the switching of cattle cars would be much more expensive and trouble- some to the railway company than dead freight. Indeed, it hardly needs expert evidence to establish it. There is no ground, therefore, for any charge of unjust discrimination against the defendant railway company as between complainant and the Front Street shippers. We come now to the charge of disci-imination as between the Butch- ers' & Drovers' Stock- Yards Company and the Union Stock- Yards Company. [The court here stated the case of Stock-Yards Co. v. Keith, 139 U. S 128, and quoted at length from the opinion in that case.]. In view of the principles laid down in this case, the complainant has no ground for objection to the arrangement between the Union Stock-Yards Company and the Louisville & Nashville Railroad Com- pany. The latter uses the chutes and yards of the Union Stock- Yards Company to deliver and receive cattle at that point as its station without any yardage charge or fee for the proper loading and unload- ing of cattle. The evidence wholly fails to support the charge of the bill that the facilities afforded by the Union Stock Yards are not ample for the business of Nashville. The evidence establishes that no charge is made by the Union Stock-Yards Company for two hours after the cattle are delivered from the cars. There is no evidence to butchers', etc. STOCK-YAED CO. V. LOUIS. & NASH. E.. 341 show that it would be unreasonable in the railroad company, were it the owner of the stock yards, to impose a charge for delay of the consignee in taking his cattle beyond two hours after unloading; and, in the absence of such showing, we cannot say that it is unrea- sonable for the railroad company to permit its agent, the stock-yards company, to make a charge of two dollars per car for turning the . cattle into the pens and keeping them there after such a delay. The discrimination averred and sought to be proven by evidence that, after the cattle have been priced in the pen, they cannot be taken to another yard without paying a fee, concerns the business of the stock-yards company, and not that of the railroad company, whose responsibility ends after the cattle are properly delivered or tendered to the consignee. Of course, the railroad company in delivering the cattle to the stock-yards company, to keep until the appearance of the consignee, can incur only a reasonable charge for the keeping of the cattle. More than this, the consignee is not obliged to pay the stock- yards company. If, however, he thereafter chooses to deal with the stock-yards company as a factor or sales agent, and to put a price upon his cattle for sale, the charges then imposed by the regulations of the stock-yards company, in case of a withdrawal of the cattle to another stock yard for sale, are wholly outside the question of dis- crimination by the railroad company as a common carrier. The contract between the defendants and the Union Company requires rates charged by the latter to be reasonable. There is no attempt in the record to show that the charge for the simple keep of the cattle in the pens is unreasonable or any higher than the railway company itself might charge for such service. The decree of the court below is aflSrmed, with costs.'- 1 Compare; Walker v. Keenan, 73 Fed. 755. — Ed. 342 LOUISVILLE AND NASHVILLE E.E. 00. V. CENT. STOCK. CO. LOUISVILLE & NASHVILLE RAILROAD COMPANY v. CENTRAL STOCKYARDS COMPANY. Supreme Court of the United States, 1909. [212 U. S. 132.1] The facts are stated in the opinion. Mr. Justice Holmes delivered the opinion of the court. It was argued, however, that the requirement that the plaintiff in error should deliver its own cars to another road was void under the Fourteenth Amendment as an unlawful taking of its propertj'. In view of the well known and necessarj' practice of connecting roads, we are far from sa3-ing 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 trafiSc. We do not pass upon the question. It is enough to observe that such a law perhaps ought to be so limited as to respect the paramount needs of the carrier concerned, and at least could be sustained only with full and adequate regulation for his protection from the loss or undue detention of cars, and for securing due compen- sation for their use. The constitution of Kentucky is simply a universal, undiscriminating requirement, with no adequate provisions snch as we have described- The want cannot be cured by inserting them in judg- ments under it. The law itself must save the parties' rights, and not leave them to the discretion of the courts as such. See Securitj' Trust & Safety Vault Co. y. Lexington, 203 U. S. 323, 333; Roller v. Holly, 176 U. S. 398, 409 ; Connecticut River R. R. Co. v. County Commis- sioners, 127 Massachusetts, 50, 57; Ash v. Curamings, 50 N. H. 591 ; Moody V. Jacksonville, Tampa & Key West R. R. Co., 20 Florida, 597; .Ea: /)ar«e Martin, 13 Arkansas, 198;, St. Louis v. Hill, 116 Mis- souri, 527. It follows that the requirement of the state constitution cannot stand alone under the Fourteenth Amendment, and that the judgment in this respect also, being based upon itj must fall. We do not mean, however, that the silence of the constitution might not be remedied by an act of legislature or a regulation by a duly authorized subordinate body if such legislation should be held consistent with the state constitution by the state court. We should add that the require- ment in the first part of the judgment, which we have been discussing, is open to the objections mentioned in the former decision so far as it practically requires the Louisville and Nashville Railroad to deliver cars at Louisville elsewhere than at its own terminus. 192 U S 570 671. 1 Only one point is printed. — Ed. MAYS V. SEABOARD AIR LINE RAILWAY. 343 MAYS V. SEABOAED AIR LINE RAILWAY. Supreme Court of South Carolina, 1906. [75 S. C. 455.'] Mr. Chief Justice Pope. Thus, we see both by the Federal and State Constitatious that full protection is herein provided against anj- infraction of the rights of citizens. This should be so. Any disregard of these constitutional provisions aims a death blow at the preservation of private rights, and it falls to the lot of the courts to uphold and pro- tect these provisions of law. A corporation in the eyes of the law is a private individual so far as property rights are concerned. In this instance, the defendant railroad has alreadj' had measured to it under the law its right to maintain its property rights in its tracks, in its engines and other property, and its franchises laid out and measured and admitted. By this act of the Legislature it is sought to confer upon a private individual the right, within the distance of one-half mile, to require this railway company to connect its railway track with a private brick mill against the railway company's consent. It is re- quired by this act that the railroad shall lay out a track from its line of railway to the brick mill of the plaintiff. It is true, that the act provides that the plaintiff shall pay the costs of trackage, but this, every dollar of it, must be returned by the railroad to the owner of the brick mill in instalments of twenty per cent, each for five successive years, thus taking from the railroad's pocket money which it has al- ready earned. If this is not an. infraction of law, what is it? Thus it violates the requirements of our Federal and State Constitutions. While the Legislature is empowered to alter or amend the charter of the de- fendant, it is imperative upon it to respect the property of defendant under the guarantees of the Constitution in so doing. Subdivision (a), therefore, must be overruled. 1 The principal poiiit is printed. — Ed. 344 PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. CHAPTER VI. EEGTJLATION OF THE SEKVICB. PENNSYLVANIA COAL CO. v. DELAWARE AND HUDSON CANAL CO. Court of Appeals, New York, I860. [31 N. Y. 91.] Davies, J. The defendant is the owner of a canal extending from tide water on the Hudson River, to the interior of the State of Pennsyl- vania. The plaintiff is the owner of extensive coal mines, bordering on the defendant's canal, which it mines for transportation to market. For such purpose, it is the owner of a large number of canal boats navigating the defendant's canal. By an agreement or deed, made and entered into between the parties to this action, dated 29th Jul^*, 1851, the defendant covenanted and agreed with the plaintiff, to furnish to any and all boats owned or used % the plaintiff for the purpose of transporting coal entering the said canal, by railroad connecting with the said canal, at or near the mouth of the Wallenpaupack River, or containing coal, entering as aforesaid, belonging to or transported by or on account of tlie plaintiff, in which coal, or the transportation thereof, the plaintiff might be in any manner interested, all the facili- ties of navigation and transportation which the said canal shbuld fur- nish, when in good, navigable condition and repair, to boats nsed by any other company or person, or belonging to or used by or containing coal transported by or for or on account of the defendant. The plaintifif alleged a breach of said contract or agreement in this, that the number of boats employed by the plaintiff in the transportation of coal upon said canal, was greater than the number employed by the defendant therein, and that the boats of the plaintifif, and tliose employed by it, made their trips in much shorter time than the boats of the defendant, and tlierefore the act of the defendant in neglecting and refusing to pass the boats of the plaintiff through the locks on said canal in the order in which they arrived at the locks respectively, but delaying them PENNSYLVANIA COAL CO. V. DELAWARE, ETC. CANAL CO. 345 until one of the boats of the defendant, or of some individual, arriving after the plaintiff's boat at such lock, had been passed, was highly in- jurious and of great detriment to the plaintiff. Tlie plaintiff prays judgment, that the defendant may be decreed and adjudged to use and manage said canal and tiie locks thereon, in such manner as not to im- pede, hinder, or delay the boats of the plaintiff navigating the said canal, and used for the purpose of transporting coal entering said canal at or near the mouth of the Wallenpaupack River, or containing coal, and entering as aforesaid, belonging to or transported by or on account of the plaintiff, and may be restrained from giving the preference of passage through any lock thereon to some other boat than tiie plaintiff's, although the latter arrived first at such lock, and that the defendant might be decreed specifically to perform its said agreement with the plaintiff. Tlie case was tried by the court without a jury, and the court found as matter of fact, tliat the plaintiff had not proven a breach of the con- tract, and the court thereupon gave judgment for the defendant, de- nying the relief asked for, and denying the injunction prayed for and dismissing the complaint with costs. The General Term, on appeal, affirmed this judgment, and the plaintiff now appeals to this court. The only ground upon which the plaintiff could invoke the aid of a court of equity to decree a specific performance of the contract, and to restrain the defendant \froin its violation, was that there had been a breach of the contract and a violation, or a threatened violation of it. This was the foundation of the plaintiff's edifice, the corner stone upon which it rested. The finding by the court, that no breach or violation of the contract had been proven, entirely- demolishes all claim of the plaintiff to any equitable relief. No thi-eate*ned violation of the con- tract is alleged or pretended, and it follows that the judgment of the Supreme Court on this state of facts was correct, and the same should be affirmed. MuLLiN, J. Two questions only are presented for consideration on this appeal. These are : 1st. "Whether the contract between the parties had been violated. And if it has, then, 2d. Are the plaintiffs entitled to a specific performance of the contract. 1. Have the defendants broken the contract? The defendants obligated themselves by the agreement to furnish to the plaintiffs' boats all the facilities of navigation and transportation which their canal should afford, when in good and navigable condition and repair, to boats owned or used by any other company or person, or owned or used by the defendants for the transportation of coal. The contract, it will be perceived, is not, as the plaintiffs' counsel seems to construe it, that the defendants will afford to the plaintiffs' boats all the facilities of navigation that the canal, when in good order, shall afford, but it is to furnish all the facilities to the plaintiffs that the canal, when in good order, shall afford to any other person's or com- pany's boats, including defendants' own boats. 346 PENNSYLVANIA COAL CO. V. DELAWAEE, ETC. CANAL CO. Before the plaintiffs can insist tliat tlie contract has been violated as to its boats, they were bound to show what facilities were afforded by the canal, when in good order, to other boats. No difference is shown to have been made between the plaintiffs' boats and those of other owners, in the facilities extended in the business of navigating the canal. The defendants, as owners, had the right to prescribe such reason- able rules and regulations for the government of vessels passing along their canal, as their directors deemed best calculated to promote their own interests and the interests of those engaged in navigating the canal. Such regulations must embrace the order in which boats should pass through the locks. Such regulations, while resting largely in the discretion of the officers of the company, must, nevertheless, be rea- sonable. Now, it appears that all boats passing to the Hudson River, were locked through the Eddyville lock in the order of their arrival at such lock. This regulation is not complained of; but it is insisted that the same rule should be observed in locking up through the same look the empty boats, and that the omission to do so is a, breach of the agreement. It is claimed that the detention of plaintiffs' boats, if they first arrive at the lock, until boats of the defendants, subsequently arriving, are locked through alternately with plaintiffs', causes unrea- sonable delay, and is an unjust detention of the plaintiffs' boats. When the plaintiffs' boats arrive at the lock first, it does seem to be oppressive to require any of them to be delayed until the boats of other persons, subsequently arriving, are locked through. But it must sometimes happen that the defendants' boats arrive first, and if they are dela.yed until the plaintiffs' boats, subsequently arriving, have - been passed through, the plaintiffs have the benefit of the same rule which operated injuriously when their boats were first at the lock. "While the rule is uniformly and impartially applied, it is difficult to see how it operates to the prejudice of the plaintiffs rather than to that of all others navigating the canal. While it is true that the plaintiffs owned the largest number of boats, it does not follow, nor is it proved, that their boats are uniformly first at the lock on their way back to the mines. If they are not, then they must take the delaj' imposed upon them b}' the regulation in compensation for the benefit derived from passing alternately with boats arriving at the lock before those of the plaintiffs. It does not appear that the regulation complained of was a new one. It may have been, and in the absence of both allegation and proof to the contrary, I think we are bound to presume that it had been in force from the making of the contract ; and if so — if the plaintiffs had ac- quiesced in it for so long a time — it is somewhat late to complain of it. If the regulation was designed to embarrass the plaintiffs, it is diffi- cult to see whj' it should not have been applied to the boats coming to as well as to those going from the Hudson. There would seem to have PENNSYLVANIA COAL CO. V. DELAWAEK, ETC. CANAL CO. 347 been some reason for the discrimination, but wliat it is is not disclosed by- tlie case. A reason is suggested by the respondents' counsel which would seem to account for the regulation, and is probably the true one, and that is, that as but a single boat, or at most but a very limited num- ber of boats is being laden at the same time, by either party, it is no cause of delay that the empty boats arrive one after the other, at in- tervals of twenty minutes ; for if twenty or thirty boats arrive at one time, they must be detained until those ahead are loaded, and the re- sult would be, that while nothing would be gained by the plaintiffs, considerable time would be lost by the other boats compelled to wait until all of plaintiffs' boats had passed through. By the regulation, it would seem that plaintiffs' boats are passed up as fast as they are re- quired to be loaded, and that unnecessary delay to the defendants' boats is avoided. A preference seems to be given to transient boats over those of either the plaintiffs or defendants. In what business these transient boats were employed, or their number, or who were the owners, does not ap- pear. But it is probable that they were boats engaged in the trans- portation of property other than coal, and that the number was small compared with the number owned by the plaintiffs or defendants. If these conjectures are correct, the^' would account for the preference given to such boats in passing the lock. It would be verj' harsh to re- quire a man, owning a single boat, to be detained until thirty or forty boats,, arriving ahead of him, were got through the lock. And, when a preference was given to one such boat, it became necessary to ex- tend it to all, and it does not appear that the preference delayed the loading of anj- of the plaintiffs' boats. This delaj', and not that at the lock, would be the cause of damage of which the plaintiffs could justly complain.' If the boats, on arriving at their place of destination, would have been detained as long before being loaded as they laj' at the lock, it is not perceived how the plaintiffs could be damnified. In a word, the regulation is one that the defendants had the right to make ; it is not shown to be either unreasonable or unjust, nor that it has been the cause of any real injury to the plaintiffs. It seems to have been acquiesced in for a long time, and no reason is perceived why it should now be repudiated or annulled.'' Judgment affirmed. 1 The learned judge also held tliat no case had been shown for equitable jurisdic- tion. — Ed. 348 PLATT V. LECOCQ, PLATT V. LECOCQ. Circuit Court of Appeals op the United States, 1907. [158 Fed. 723.1] This is an appeal from a decree of the court below that an order of the Board of Railroad Commissioners that the United States Ex- press Company' receive at its offices in Aberdeen, S. D., from the Aberdeen National Bank, all monej's tendered to it by that bank for carriage on certain trains which leave Aberdeen at 6:30, 7:00, and 7:45 a. m., during all reasonable business hours of the day preceding the departure of these trains, be enforced. Sanborn, Circuit Judge. The safe-keeping overnight and delivery in the morning before the trains start of the specie and currency which the bank might desire to ship by this express company upon these morning trains will entail no more expense upon the bank than their delivery the day before, while the receipt of them on the latter day and their storage overnight will cause the express company additional expense, and will make its business of handling this money a losing one. The risk of keeping these packages of money overnight is less to the bank than to the express company, because it has a burglar proof vault, and trusty messengers for the purpose of keeping large amounts of money safely, and protecting them against robbers and fire in the city of Aberdeen, while the express compan}^ has no such safeguards and facilitieb in that city, and, finallj', the business of the bank is to receive and keep safely for its depositors in the city of Aberdeen, and to send to them and to others who buy or borrow it, the specie or currency deposited with it, and it has a suitable vault and trust3' officers and servants to carry on this business and to protect this monej^ The business of the express company, on the other hand, is to transport money, to keep it safely, and to insure it against loss during its transportation, and for this purpose it has specially constructed stationary safes in cars and trusty messengers to travel with it, but it is no part of its business to store or to keep valuable packages of specie or currency for any length of time greater than is reasonably necessary to conduct its transportation. The trains under consideration do not leave Aberdeen at very early hours in the morning, and it is neither impossible nor impracticable for the bank to deliver its packages of monej- to the express company in the morning of the day before the trains start. To require the express company to receive these packages on the preceding day, and to store them and to insure their safe-keeping overnight is to transfer to the Ex- press company a part of the risk, responsibility, and business of the bank, a part of the safe-keeping of specie and currency in the city of Aberdeen, a part of its business which it has adequate safeguards to conduct, which it undertakes to carry on, and for which it presumably 1 Only the concluding part of the opinion is printed. — Ed. PLATT V. LECOCQ. 349 receives reasonable compensation, while the express company, which has no such facilities, can secure no such compensation, and does not offer or undertalfe to do any such business. In view of these facts, rules, and considerations, the evidence in this case falls far short of convincing proof that the rules and practice of the express company upon this subject which have been assailed here were unreasonable or unjust. Indeed, in our opinion, it would be far more unreasonable to require the express company to receive these packages of specie and currency for transportation on the morning trains the day before they start, and thereby to compel it to store and insure them overnight, than it would be to refuse so to do, and thus to leave the bank to send them insured by mail at a lower rate, or to deliver them to the express company in the morning before the trains depart. There is another consideration which leads to the same conclusion. Courts and commissions ought not to interfere with the established rules and practice of transportation companies on account of incidental inconveniences and trivial troubles to which the conduct of all business is necessarily subject. The business of railroad companies and express companies cannot be conducted for the purpose of carrying on the business of their customers exclusively, nor without some discomforts and inconveniences to all parties engaged in any of these occupations. Unless a clear injustice is perpetrated or a substantial injury is inflicted, or there is an imminent threat of them, the annoyances and inconven- iences in the transaction of the business of the transportation- com- panies should be left for correction in the pecuniary interests and business instincts of the respective parties concerned, and their laud- able anxiety to secure, retain, and increase their business. No injustice has been perpetrated in this case. No serious damage has been, or is likely to be, inflicted upon the bank by the refusal of the express com- pany to receive money until the morning of the day when the trains depart, in view of the pregnant fact that it has elected to cause its incoming currency to be shipped to it by mail for more than a year, and to the amounts of hundreds of thousands of dollars, when it could have caused it to have been sent by this express company. No other shipper is complaining, and the practice of the express company creates no preference or prejudice to party, locality, or description of traffic, while the practice which the bank seeks to enforce will inevitably compel other parties and other descriptions of traffic to bear a part of the burden of storing and keeping overnight the moneys it seeks to send out. There is no equity in this case of the bank, and it is entitled to no relief.^ Reversed. 1 Compare : Alsop v. Southern Express Company, 104 N. C. 278, contra. 350 POPE V. HALL. POPE V. HALL. Supreme Court of Louisiana, 1859. [14 La. Ann. 324.] Merrick, C. J. This suit has been brought against Messrs. Hall & Hildreth, the proprietors of the well-known St. Charles Hotel, of this citj', to recover of them three hundl-ed and forty-five dollars, for a watch and chain and gold coin, alleged to have been stolen from the trunk of the plaintiff whilst lodging with the defendants as a traveller. The case was tried without the intervention of a jurj-, and an elabo- rate examination of the law and facts by the learned judge of the District Court resulted in a judgment in favor of the plaintiff for $300 ; defendants have appealed. At the head of each stairwaj' a large card was posted, cautioning the- boarders to beware of hotel thieves, and requesting them to deposit all mone}', jewelry, watches, plate, or other valuables, in the safe at the office, and notifying the guests that the proprietors would not be responsible for anj- such articles stolen from the rooms. The regulations of the hotel were posted in print in each of the rooms. Among other regulations, is stated that " money and articles of value may be deposited and a receipt taken, and no remuneration may be expected if lost when otherwise disposed of." The defendants contend that the innkeeper has the right to say where the property Shall be kept as a sequence of his responsibility ; that if he is to be held responsible as a custodian, he must be permitted to guard the property in his own way, and they derive this right to limit the responsibility from the Roman law, and cite the concluding paragraph to law 7. Dig., lib. 4, tit. 9, De protestatione exercitoris. It is as follows : — Item si prmdixerit, et unusquisque rectorum res sjms servet, neque damnum se prcestatuntm, et consenserint vectores predictioni, non convenitur. It will be observed in the text cited, that the master of the ship limits his liability only by the actual consent of the passengers. In the present case, this right is claimed to the innkeeper without such express consent of the traveller. Without reviewing the cases, or entering into the prolix discussions which this question has given rise to in France, England, and the United States, it is sufficient to say that we think the district judge very cor- rectly took a distinction between articles of value and those ordinarily worn, together with such small sums of money as are usually carried about the person. He says, in conclusion : « They(innkeepers) have no right to require a traveller to deliver up to them his necessary FULLER V. COATS. 351 baggage, his watch, which adorns his person and is a part of his per- sonal apparel, and the money which he has about him for his personal use. Such a regulation is contrar}- to law and reason. If he had large sums of money or valuables the rules might be different. Under this view of the case, which we adopt, it is a matter of indif- ference whether the plaintiff did or did not read the notices posted in the hotel. The traveller who arrives at the inn where he intends to lodge during the niglit, ought not to be required to part with his watch which may be necessary to him to regulate his rising, or to know when the time of departure of the morning train or boat has arrived. Neither ought he to be required to deposit with the innkeeper such small sums of money as are usually carried by the majority of persons in the like condition in life visiting such hotel. The innkeeper should provide safe locks or fastenings to the rooms, and in default of the same, he must be held responsible for the loss of such articles of apparel and small sums of money as are usually carried or worn by the class of persons favoring the hotel with their patronage. The estimate of the damage sustained by the plaintiff is justified by the proof. Judgment affirmed. VooRHiES, J., absent. FULLER V. COATS. Supreme Court of Ohio, 1868. [18 Oh. St. 343.] The original action was brought by the plaintiff to recover of the defendants the value of an overcoat and articles in the pockets thereof, alleged to have been lost from the hotel of the defendants while the plaiptiff was a guest therein. The petition contains the ordinary aver- ments to charge upon the innkeepers a liability for the loss of the goods of their guest. The answer denies the material averments in the petition ; and, by way of defence, alleges that the defendants " had prepared a place in their office for the deposit of overcoats, and other articles of personal apparel not left in the rooms as baggage, and kept there a person to receive such articles and give to the owner a check therefor, and thej' required guests to so deposit such articles ; of all which the plaintiff had notice ; that the plaintiff neglected and omitted to leave his over- coat, witii its contents, in the custody of defendants, but carelesslj- and negligently hung the same up in the open hall of the inn without any notice to the defendants, and without any knowledge on their part that he liad so negligently exposed the same ; and that while so carelessly exposed by the plaintiff, said overcoat was, without the knowledge or 352 FULLER V. COATS. fault of the defendants, stolen, as they suppose. And so the defend- ants saj- that said overcoat was lost through and by reason of care- lessness and negligence of the plaintiff, and that the negligence of the plaintiff contributed to the loss thereof." The plaintiff denies, in his reply, that he had " notice that defend- ants required their guests to deposit overcoats in a place which de- fendants had prepared for that purpose ; and denies that he negligently or carelessly left said overcoat in an open hall, or that he in any way, by any carelessness of himself, contributed to its loss." The case was tried to a jury. On the trial the plaintiff pi-oved that he was a guest at the hotel of the defendants on the 12th of December, 1865, when the coat was lost ; that he came d'own from his room, late in the morning, to breakfast, with his overcoat, and, instead of going to the office, he hung up his coat in tlie hall, where there were three or four rows of hooks, and went into breakfast from the hall ; and that when he came out his coat was gone. The plaintiff testified, on cross- examination, that he knew there was a place at the office where carpet- bags and coats were taken and checks given therefor, and that he had before deposited coats at the office. One of the defendants testified that they kept a place back of the counter, in the office, where they kept and checked coats and satchels ; that he had frequently checked the plaintiffs satchel there before the 12th of December; that they kept some one there to receive these articles and give checks therefor ; that the plaintiff had stayed tliere at different times before for several daj's at a time ; and that when the coat was lost, a general search was made for it, and it could not be found ; that the hooks in the hall were for hats, and were placed in three or four rows, beginning two or three feet from the floor; that they had large printed notices in tlie office and some other rooms (but not in the hall), that " persons stopping at this hotel will please have their bag- gage checked, carpet-bags, and coats ; and if they have any diamonds, precious stones, watches, or jewelry, they must be kept in the office, in order to make the proprietors responsible." The court charged the jury as follows : " 4. The defendants had a right to require that the plaintiff should place his overcoat, &c., in a designated place in the office, or keep it in his own room when it is not on his own person, or in his own per- sonal custody ; and if they did so require, and brought this requirement to the knowledge of the plaintiff ; and if you shall find that the require- ment was a reasonable one, and that the proijert^- was lost in conse- quence of tlie refusal or neglect of the plaintiff to comply with such reasonable precaution, he is not entitled to recover in this action. "5. The defendants had the riglit to make reasonable rules and regulations for their own protection, and to limit, to some extent, their liability ; but, in order to so limit their liability in this case, it must be shown that the knowledge of the existence of such a rule or regulation was brought home to the plaintiff before the loss of his property. FULLER V. COATS. 353 " 6. A printed request merely posted in the rooms of the house, requesting or asking guests to leave their overcoats, earpet-saclis, or other baggage in the care of the landlord or his servants in the office, will not relieve the defendants from liability in case of its loss. To have this effect, the notice must state in clear and unequivocal terms that they will not be responsible for the loss unless the property is left in the office, or other designated place ; and must be brought to the knowledge of the guest.'' The jury returned a verdict for the defendants. The plaintiff moved for a new trial, on the ground [among others] that the court erred in the charge to the jury. The court overruled the motion for a new trial; to which exception was taken."^ Day, C. J. Three classes of questions are raised in this case in which, it is claimed, the court below erred : l.i In permitting the de- fendant to ask his witnesses on the trial illegal questions ; 2. In the refusal of the court to charge the jury as requested by the plaintiff, and in the charge given ; 3. In overruling the motion for a new trial. Nothing practically will be gained by considering here at length the separate questions raised bj' the objections of the plaintiff to the ques- tions propounded b^' the defendants to their witnesses on the trial ; for some of the objections are based upon grounds that must be considered in another form, arising upon the charge to the jur3'; soriie of the questions were unobjectionable, and of little or no importance; but cbiefly for the reason that the testimony elicited on all the questions in no way tended to prejudice the plaintiff ; and for that reason, under the provisions of the 138th section of the code, the ruling of the court on that class of questions will not afford sufficient ground to disturb the judgment. Did the court erroneously charge the jury ? By the statute of this State the common-law responsibility of inn- keepers, as to all goods therein enumerated, is materially modified. The goods sued for in this case are not mentioned in the act ; it has, therefore, no application to the case, further than the reason of the legislative policy on which it is based may be regarded in deciding cases between conflicting constructions of the rules of common law, b^' which this case must be determined. It is claimed that the common law makes an innkeeper an insurer of the goods of his guest, as it does a common carrier of goods, against all loss, except that occasioned by act of God or the public enemy. The rules of the law controlling both these classes of liability have their foundation in considerations of public utility; but it does not therefore follow that the rule in every case is precisely the same. It would seem, rather, that where the circumstances of the twti classes differ, public utility might reasonably require a corresponding modifi- cation of the rules applicable to the case. 1 Only so much of the case as involves the validity of the regulations is given. — Ed. 23 354 FULLEK V. COATS. Common carriers ordinarily have entire custody and control of the goods intrusted to them, with every opportunity for undiscoverable negligence and fraud ; and are therefore held to the most rigid rules of liability. Innkeepers may have no such custody of the goods of their guests. In many instances their custody of the goods is mixed with that of the guest. In such cases it would be but reasonable that the guest, on his part, should not be negligent of the care of his goods, if he would hold another responsible for them. The case of a carrier and that of an innkeeper are analogous ; but, to make them alike, the goods of the guest must be surrendered to the actual custody' of the innkeeper; then the rule would, undoubtedly, be the same in both cases. We are not, however, disposed to relax the rules of liability ap- plicable to innkeepers, nor to declare that they are different from those applying to carriers, further than a difference of circumstances between innkeeper and guest may reasonably necessitate some care on the part of the latter. The charge of the court below is not inconsistent with a recognition of the same extent of liability in both classes of cases ; for it is well settled that an action against a carrier cannot be maintained where the plaintiff's negligence caused, or directly contributed to the loss or injury. Upon this theory-, and assuming to the fullest extent the prima facie liability of the innkeeper, by reason of the loss, the court said to the jury: "The only question for j-onr consideration is whether the plaintiff's negligence caused, or directly contributed to, the loss of the propert}'." It was thus held by the court, and conceded by the counsel for the plaintiff, that if the property was " lost by reason of the negligence of the plaintiff to exercise ordinary care for its safety," the defendants were not liable. The essential question, then, between the parties is, what, on the part of the guest, is ordinary care, or wnat may be attributed to him as negligence. It is claimed that the court erred in relation to this point, in two particulars: 1. In holding that the guest might be chargeable with negligence, in the care of his goods, in any case where they were not actually upon his person ; 2. In holding that the innkeeper could, in any manner, limit his liability for the loss of the goods of his guest, except by contract with him. If the guest take his goods into his own personal and exclusive con- trol, and they are lost, while so held by him, through his own neglect, it would not be reasonable or just to hold another responsible for them. This is conceded to be true as to the clothes on the person of the guest, but is denied as to property otherwise held by him. There is no^good reason for the distinction ; for the exemption of the innkeeper from liability is based upon the idea that the property is not held as that of a guest, subject to the care of the innkeeper, but upon the responsi- FULLER V. COATS. 355 bility of the guest alone ; and, therefore, it makes no difference, in principle, whether it is on his person or otherwise equally under his exclusive control. But this must be an exclusive custody and control of the guest, and must not be held under the supervision and care of the innkeeper, as where the goods are kept in a room assigned to the guest, or other proper depository in the house. The public good requires that the property of travellers at hotels should be protected from loss ; and, for that reason, innkeepers are held responsible for its safety. To enable the innkeeper to discharge his duty, and to secure the property of the traveller from loss, while in a house ever open to the public, it may, in many instances, become absolutely necessary for him to provide special means, and to make necessary regulations and requirements to be observed by the guest, to secure the safety of his property. When such means and requirements are reasonable and proper for that purpose, and they are brought to the knowledge of the guest, with the information that, if not observed by him, the innkeeper will not be responsible, ordinary prudence, the interest of both parties, and public policy', would require of the guest a compliance therewith ; and if he should fail to do so, and his goods are lost, solely for that reason, he would justly and properly be chargeable with negligence. To hold otherwise, would subject a party without fault to the payment of damages to a party for loss occasioned by his own negligence, arid would be carrying the liability of innkeepers to an unreasonable extent. Story's Bail. sees. 472, 483; Ashill V. Wright, 6 El. & Bl. 890 ; Purvis v. Coleman, 21 N. Y. Ill ; Berk- shire Woolen Co. v. Proctor, 7 Cush. 417. Nor does the rule thus indicated militate against the well-established rule in relation to the inability of carriers to limit their liability ; for it rests upon the necessity that, under different circumstances of the case, requires the guest to exercise reasonable prudence and care for the safety of his property. In connection with the two foregoing propositions, the correctness of the holding of the court below, as stated in the seventh paragraph of the charge, is questioned. Without repeating that paragraph here, it is only necessary to say that upon the h3'pothesis there stated, the guest, by what he did and neglected to do, would directly contribute to the loss of his property. The charge was therefore right. Taking the whole charge together, so far as it related to the case, and is controverted, it is in harmony with the views herein expressed, and must therefore be approved. It also follows, from what has been said, that the court did not erroneously refuse to charge the jury as re- quested by the plaintiff. The request contained a connected series of propositions, some of which, at least, were unsound in law. It is well settled that in such a case the court may properly refuse the whole. 356 MONTGOMBKY V. BUFFALO EAILWAY COMPANY. MONTGOMERY v. BUFFALO EAILWAY COMPANY. Court of Appeals of New York, 1900. [165 N. Y. 139.] This action was brought by the plaintiflf against the defendant, a street railwaj' company, to recover damages for an assault and batterj', alleged to have been committed upon him by a conductor in forcibly expelling him from the car. He had paid his fare, upon entering one of the defendant's cars upon a connecting line, and with a transfer ticket, got upon the car in question. He placed himself upon the rear platform and tendered his transfer ticket to the conductor. One of the company's rules provided that conductors should "not allow pas- sengers to sit, or stand on, or to crowd the rear platform, but will politely request them to take seats or to stand inside the car," and the conductor, calling plaintiff's attention to it, directed him to go inside the car. The plaintiff declined to do so ; stating that he had a sick headache, was nauseated, and that he expected to be affected actively by the nausea at any moment. The conductor, Ijowever, insisted upon his compliance with the rule and, the plaintiff refusing compliance, the car was stopped and the plaintiff was ejected therefrom ; but with no excessive force, or physical injury. Gray, J. The company not only had the right, but it was bound, to make rules and regulation to insure the safe, effective, and comfort- able operation of its corporate business, and whether any particular rule is lawful and reasonable is a question of law for the court. The appel- lant concedes that the rule of the company was a reasonable one and thus the question is whether, because it was enforced by the conductor, in the expulsion of the plaintiff from the car upon his refusal to sub- mit to it, the company can now be made answerable in damages by reason of the conductor's action. The proposition would seem to furn- ish its own answer. The appellant, however, insists that, even if this rule was a reason- able regulation of the company, all rules, even if reasonable, " must have their exceptions," and whether it was reasonable to enforce the rule upon this occasion, was a question to be passed upon by a jury. In other words, it is claimed that the right of enforcement may depend upon the particular circumstances and, as the plaintiff had an excuse for non-compliance, in the present case, its reasonableness, or that of the conductor's conduct, became a question for the determination of the jury. I am unable to assent to the proposition. I think that, if the rule was a reasonable one, the passenger was bound to submit to it and that it was the duty of the conductor to enforce it. Therefore, in ejecting him from the car upon his refusal to submit, the conductor DANIEL V. NEW JERSEY STREET RAILWAY 00. 357 was acting lawfully in the discharge of his dutj'. The passenger, by his conduct, had forfeited his right to be carried any further. In Hibbard v. N. Y. & E. R. R. Co. (15 N. Y. 455), an early and lead- ing case, the question was fully discussed and its doctrine has been followed in this court. (Pease v. D., L. & W. R. R. Co., 101 N. Y. 367.) Barker v. Central Park, N. & E. R. R. R. Co. (151 N. Y. 237), is a recent case, in which the right of the carrier to make and to enforce its reasonable rules is distinctly recognized. It might be observed that there is quite a difference between such a case as the appellant's counsel mentions, where a passenger is ejected for failure to produce his ticket upon the conductor's request, which another con- ductor had previously taken up and retained, and such a case as this. In the former case it could be argued, with more force, that the pas- senger's inability to comply with the conductor's request was caused by the mistake, or fault of another of the company's servants, and the theory of the corporate liability would be rested upon different propo- sitions. A railway companj- is not obliged to carry persons, unless they are willing to submit to, and to be bound by, the reasonable rules and regu- lations which it has established. The plaintiff, if in the physical con- dition described by him upon the day in question, was not obliged to travel upon the defendant's street car ; but if he chose to do so, he was bound to submit to its regulations. He has no suflBcient reason in law for complaining, because the conductor performed his duty and compelled him to leave the car. I think the order and judgment were right and should be affirmed, with costs. Parker, C. J., O'Brien, Landon and Werner, JJ., concur ; Haight and CuLLEN, JJ., not voting. Order and judgment affirmed. DANIEL V. NEW JERSEY STREET RAILWAY COMPANY. Court of Errors op New Jersey, 1900. [64 N. J. L. 603.] Garrison, J. The plaintiff, carr3-ing in his arms in plain view a small goat, got on one of the cars of the defendant and paid his fare ; later he paid a second fare and received from the conductor a token that entitled him to be transferred to another car of the defendant com- pany. At the proper junction he presented this token to the conductor on the transfer car who refused to allow him to board the car with the goat. This was the plaintiff's cage. " A regulation of the defendant corporation forbidding the carrying of animals in its cars was proved, and the case went to the jury. The jury were told by the trial court that if the regulation in question was an unreasonable one, the defend- 358 DANIEL V. KEW JERSEY STREET RAILWAY CO. ant would be liable in damages for enforcing it, and that if it was a reasonable one the defendant, before enforcing it, must call the atten- tion of the passenger to it, which was not done in this case. In effect this directed a verdict for the plaintiff, without regard to the finding of the jury upon the only question submitted to it, viz., whether the regu- lation of the defendant allowing no animals to be carried in their cars was a reasonable one. Inasmuch as the court is unanimously of the opinion that it was error to submit this question to the jury, the judgment will be reversed for that error without reference to the assignment touching the necessity of giving notice of a reasonable regulation before enforcing it. The unanimity with which this result is reached does not, however, extend to the line of reasoning pursued in reaching it. Hence, no gen- eral rule upon the question of the relative functions of court and jury with respect to the reasonableness of corporate regulations can be laid down at this time. A majority of the court, however, are of opinion that the defendant company might lawfully adopt some regulation with respect to the carrying of animals on its cars, and that the reasonable- ness of such a rule, would be a question for the trial court and not for the jury. Whether, as a class, questions as to the reasonableness of corporate regulations are for the jury, to be taken from it only when deemed to be free from doubt; or whether they are primarily court questions, to be left to jurors only when some other standard than that of reasonableness enters into the test of corporate duty, is a point upon which the majority is not agreed inter sese. It suflSces for the decision of the present case to say that in either of these views it was error to leave to the jury the reasonableness of this regulation. It should have been decided by the court. To this extent the cases of State v. Overton, 4 Zab. 435 ; Morris & Essex Eailroad Co. v. Ayres, 5 Butcher, 393 ; Compton v. Van'Volken- burgh, 4 Vroom, 134, are disapproval ; although the learned judge who tried the case did right to follow these Supreme Court decisions for the reasons given by Chief Justice Beaslet in the Compton case. It is thought best to say that the question of the corporate authority of the defendant to carry animals on its cars is not involved in the decision of this case. Let the judgment be reversed. DIOKERMAN V. ST. PAUL UNION DEPOT COMPANY, 359 DICKERMAN v. ST. PAUL UNION DEPOT COMPANY. Supreme Court of Mississippi, 1890. [44 Minn. 433.] GiLFiLLAN, C. J. No claim is made, and none could well be made, against the reasonableness of the rules of the defendant requiring persons passing through the gates for the purpose of taking trains to exhibit their tickets to the gate-keeper and have them punched by him, and providing that no passenger shall be allowed to pass out of any gate after the train indicated by his ticket has started, or to board any train while in motion. Such or similar rules would seera absolutely necessary to preserve to the defendant control of its grounds, and to enable it to receive and discharge passengers with order, and to the safetj-, comfort, and convenience of the passengers. All persons having notice of such rules, and a reasonable opportunity to comply with them, are bound to observe them in order to have a right to pass through the gates or to take a train at defendant's depot ; and the de- fendant has a right to enforce such rules, and to prevent their violation, and to use such force as maj' be reasonably necessary to that end. If in no such case it may use force, then the right to enforce the rules and prevent their violation is but a barren right. On the occasion which furnished the subject-matter of this action, the plaintiff, while the gate-keeper was occupied in inspeicting and punching the tickets of passengers who were going through the gate, passed through without presenting his ticket to be inspected and punched, and without the consent of the gate-keeper, who immediately seized him by the coat, demanding to see his ticket, and, on his showing his ticket, told him he could not go, and, as plaintiff tells it, on his per- sisting in going, held him till the train he was intending to take had passed out of the depot. The ticket was for the short-line from St. Paul to Minneapolis, on the Chicago, Milwaukee & St. Paul Railway. Whether that train had already started at the time when plaintiff showed his ticket, the evidence was conflicting, making it a question, so far as material, for the jury. The theory of the law of the case claimed by plaintiff is presented by one of his requests to instruct the jury as follows : " No violation of any rule, regulation, or practice, on the part of the plaintiff, would justify or excuse the seizure of the plaintiff against his will, after he had passed through the gate." Without determining whether, in passing through the gate in violation of the rule of the defendant, the plaintiff became a trespasser upon that part of the depot without the gate, we will say that the proposition of this request is incorrect. It implies that the instant plaintiff wrongfully got through the gate his obligation to comply with the rule and right of defendant to insist on compliance with it ceased. The gate-keeper had. the right to stop him at the gate, 360 HART V. SOUTHERN RAILWAY COMPANY. and demand sight of his ticket to be punched, and, if necessary in order to stop him for that purpose, had the right to talie hold of him, and this right did not cease merely because the plaintiff had wrongfully got across the line of the gate. The keeper still had the right to enforce the rule ; certainly, while plaintiff was so near the gate as to be practi- cally at it, which was the fact in this case. The theory of law on which the court below put the case to the jury is presented in a part of its general charge excepted to by plaintiff. After charging that if, after passing through the gate, the plaintiff could have boarded his train before it started or was in motion, then he is entitled to recover at least nominal damages, it said : "If, on the other hand, you find from the evidence that the train plaintiff was in- tending to take had started before he passed through the gate, or that after he passed through the gate the train started and was in motion before plaintiff could have reached it and got on board if he had not been detained by defendant or interfered with bj' the gate-man, and if j'ou further find from the evidence that no more force or violence was used by the gate-keeper than to detain plaintiff, and that he was detained no longer than was necessary to prevent his boarding the train when it was in motion, then the plaintiff is not entitled to recover." This charge is to be taken in connection with the state of the evidence, even that of plaintiff himself, which shows, bej'ond anj- question, that he, while detained by the gate-man, insisted upon taking the train in ques- tion, and would, had he not been prevented, have attempted to take it even though in motion. To have done so would have violated the rule of the defendant, that no passenger shall be allowed to board anj- train while in motion, a rule which the defendant had the same right to en- force as to enforce that requiring passengers to exhibit their tickets in passing through the gates. The charge excepted to was only to the ef- fect that the defendant had the right to use such force as was necessary to prevent a violation of the rule ; that is, to prevent parties boarding trains while in motion. And tliat proposition is correct. Order affirmed. HAET V. SOUTHERN" RAILWAY COMPANY. Supreme Court of Georgia, 1904. [119 Ga. 927.] Lamar, J. This suit was for wrongful expulsion, and not for dam- ages inflicted upon the plaintiff as a result of his being compelled to alight from a moving train. The fact that one actually purchased a ticket, and that this was known to the agent who sold it, or to the gate-keeper who examined it, or to employees on the train who saw it, HART V. SOUTHERN RAILWAY COMPANY. 361 would not relieve the passenger of the obligation to surrender it to the conductor. Tickets var^- in tlieir terras. Some are good only on cer- tain trains ; others onlj- on particular dates ; others require validation. The mere fact that the plaintiff has a ticket does not, therefore, neces- sarily establish his right to be transported on a given train. These matters must be passed on by the conductor, and not by other em- ployees who are not charged with this duty by the company. "When the conductor makes his demand, he is entitled to have the ticket surrendered. He cannot be required to hear evidence or investigate the bona fides of the passenger's excuse for its non-delivery, nor to wait until he arrives at the next station and, by telegraphic correspon- dence with the selling agent, undertake to verify the correctness of the plaintiffs statement, or determine the character and validity of the ticket sold. It is manifest that such course would necessarily give rise to dela}', and seriously interfere with the operation of trains and the rights of the travelling public. Had the plaintiff's money blown out of his hand, it is evident that his misfortune would have to fall upon himself and not upon the companj-. Such loss would not have pre- vented his lawful eviction. The same result would follow where the ticket itself was lost ; for it might have come into the hands of another, and the company might thereby have been compelled to carr^- two passengers for one fare. Besides, anj- rule allowing an excuse as a substitute for a ticket would give rise to so much uncertainty and so many possibilities of fraud that the courts have uniformly held that the failure to pay the fare or produce the ticket warrants an eviction. In fact the plaintiff in error concedes the general rule to be that the pas- senger must produce his ticket, pay his fare, or suffer expulsion. He insists, however, that the special circumstances take this case out of the general rule. We fail to find any case warranting such a holding. Those cited by him, in 32 L. R. A. 193, and 56 L. R. A. 224, as well as Pullman P. C. Co. v. Reed, 75 111. 125, were on facts essentially different. See, on the general subject, L. & N. R. Co. v. Fleming, 14 Lea, 128; Rogers v. Atlantic City R. Co., 34 Atl. 11 ; Fetter on Car- riers, § 279. Compare Southern Ry. Co. v. De Saussure, 116 Ga. 63; G. S. & F. Ry. Co. v. Asmore, 88 Ga. 529. Pleadings are to be strictly construed against the pleader. Here it afHrmatively appears that plain- tiff did not have funds with which to pay the cash fare. The general demurrer having been sustained, and the judgment affirmed here, there is nothing to amend by. It is not like the case where the demurrer was overruled in the lower court and the judgment reversed, nor like the case where the demurrer was sustained or should have /been sus- tained only on a special ground not concluding the merits. Central R. v. Patterson, 87 Ga. 646; Savannah Ry. u. Chaney, 102 Ga. 817; Brown v. Bowman, 119 Ga. 153. There is nothing in the facts here to require the exercise of any discretionary power by this court to permit such amendment. 362 EEESB i). PENNSYLVANIA BAILEpAD. Judgment aflSrmed. All the Justices concur. REESE V. PENNSYLVANIA RAILROAD. Supreme Court of Pennsylvania, 1890. [131 Pa. 422.] On October 31, 1888, L. B. D. Reese brought trespass against the Pennsylvania Railroad Company to recover damages for the alleged unlawful ejecting of the plaintiff from a passenger train of the defendant. Issue. At the trial on September 17, 1889, the following facts were shown: About eleven o'clock on the evening of October 24, 1888, the plaintiff, in company with two friends, boarded a passenger train of the defendant company at East Liberty station, in the city of Pittsburgh, for the pur- pose of going to the Union station in said city. The testimony for the plaintiff tended to prove that they arrived at East Liberty station just as the train was about to start, and too late to get tickets ; while witnesses for the defendant testified that the plaintiff and his com- panions were at the station some minutes before the train left. The ticket office at East Liberty was kept open the usual length of time prior to the departure of that train, and afforded all persons who were at the station before it started an opportunity to procure tickets. The defendant company was incorporated by Act of April 13, 1846, P. L. 312, § 21 of which provides that " in the transportation of pas- sengers, no charge shall be made to exceed three cents per mile for through passengers, and three and one-half cents per mile for way passengers." After the train had started, the conductor called upon the plaintiff for his ticket, when the plaintiff stated that he had none and tendered to the conductor the sum of fourteen cents in cash. The distance between the East Liberty and Union stations is four and one half miles, and the regular and uniform fare charged by the defendant between those points was fourteen cents, being at the rate of three cents a mile. The compan}', however, had a regulation requiring pas- sengers without tickets to pay to the conductor, in addition to the regular fare of three cents per mile, the additional sum of ten cents. The amount so to be paid in excess of the regular fare was uniform in all cases, irrespective of the distance the passenger was travelling, KEESE V. PENNSYLVANIA RAILROAD. 363 and upon its payment the conductor was required to give to the pas- senger a memorandum or check, signed by the general passenger agent of the company, redeemable at ten cents on presentation at any ticltet office of the company along^ its road. This memorandum is known as a " duplex ticket," the conductor being required to retain and forward to the auditor of passenger receipts a duplicate of each one issued. It is printed upon a form so arranged that the stations from and to which fare is collected can be indicated upon it by punch marks, and conductors are required to do this in all cases. Of this regulation, notice was given to the public by printed cards posted at the company's ticket offices. ^ Acting under the regulation of the company respecting the paj'ment of cash fares, the conductor refused to accept the fourteen cents tendered him bj- the plaintiff and demanded twenty-four cents. The plaintiff declined absolutely to pa_y more than fourteen cents, whereupon he was put off the train at Roup station. The jury rendered the following verdict: "We find for the plaintiff in the sum of two hundred and fifty dollars ($250). And we have further answered the annexed questions submitted to us for answer as part of the verdict : " 1. Did the plaintiff, Mr. Reese, on the evening in question, arrive at the East Liberty station in time to procure a ticket before getting on the train ? "No." " 2. Did the conductor, when demanding from the plaintiff twenty- four cents fare, or before putting him off the train, inform him that he would obtain a receipt entitling him to be repaid ten cents of the fare on presentation at the proper office ; or did Mr. Reese know that such was the regulation ? " No." Judgment having been entered upon the verdict, the defendant took this appeal.^ •MiTCHEix, J., the right of railroad companies to make reasonable regulations, not only as to the amounts of fares, but as to the time, place, and mode of payment, is unquestionable. This right includes the right to refuse altogether to carry without the previous procure- ment of a ticket. Lake Shore, &c. Ry. Co. v. Greenwood, 79 Pa. 373. That case arose upon a special regulation as to the carriage of pas- sengers upon freight trains; but there is no appreciable distinction between it and a general regulation as to all passengers. Both rest on the common-law principle that requires payment or tender as an indis- pensable preliminary to holding a carrier liable for refusal to carry, and on the manifest and necessary convenience of business, where the 1 The points assigned for error were: 1, refusal of tlie trial court to charge that the regulation was reasonable and legal; 2, charge of the court that the amount demanded was in excess of the statutory amount. The statement of facts has been abridged and arguments of counsel omitted.— Ed. 364 KEESE V. PENNSYLVANIA KAILEOAD. number of passengers is liable to be large and the time for serving them short. So, too, the authorities are uniform that companies may charge an additional or higher rate of fare to those who do not purchase tickets before entering the cars. Crocker v. Railroad Co., 24 Conn. 249; Swan V. Railroad Co., 132 Mass. 116 ; Hilliard v. Goold, 34 N. H. 241 ; Stephen v. Smith, 29 Vt. 160 ; State v. Goold, 63 Me. 279 ; State v. Cliovin, 7 Iowa, 208 ; Du Laurans v. Railroad Co., 15 Minn. 49 ; State V. Hungerford, 39 Minn. 6 (34 Amer. & Eng. R. Cas. 265), and note; Chicago, &c. R. Co. v. Parks, 18 111. 460 ; Pullman Co. v. Reed, 75 111. 130 ; Railroad Co. v. Skillman, 39 Ohio, 451 ; Forsee v. Railroad Co., 63 Miss. 67. And it may be noted, in response to one of the most urgently pressed arguments of the defendant in error, that the reasons almost uniformly given in support of this long line of decisions include the furthering of the honest, orderly, and convenient conduct by the railroad compan}- of its own business. The regulation in question in the present case, is not in itself un- reasonable or oppressive. In regard to the traveller, it is scarcelj' just ground of complaint that he has to present his refunding ticket at the end of his journey, instead of getting an ordinar3- ticket at the start. The inconvenience, if any, is the result of his own default. With reference to the other passengers, and still more to the railroad com- pany, the regulation is conducive to the rapid, orderly, and convenient despatch of the conductor's part in the collection of fares, and thus to leaving him free for the performance of his other duties in connection with the stops at stations, the entrance and exit of passengers, and the general supervision of the safety and comfort of those under his care. If, therefore, the company may refuse to carrj' at all without a ticket, it may fairly refuse under the far less inconvenient alternative to the traveller of putting him to the trouble of going to an ofHce to get his excess refunded. If the corapanj- may charge those failing to get a ticket an additional price, and keep it, certainly they may charge such price and refund it ; and, as the regulation is not in itself unreasonable or oppressive, or needlessly inconvenient to the traveller, its validity, upon general principles and on authority, would seem to be beyond question. These views were conceded by the learned judge below, and are not seriously questioned by counsel here. But the decision was based upon the view that the extra ten cents imposed by this regulation is a part of the fare, and makes it higher than the rate allowed by the act of incorporation of the company. The language of the act is, " In the transportation of passengers no charge shall be made to exceed . . . three and one-half cents per mile for way passengers." As the dis- tance from East Liberty station to the Union station in Pittsburgh is four and one-half miles, and the regular fare fourteen cents, it is ad- mitted that the extra ten cents is in excess of the charter rate, if it is KEESE V. PENNSYLVANIA RAILROAD. 365 a " charge for transportation " within tlie meaning of the act. Should it be so regarded? " Charge" is a word of very general and varied use. Webster gives it thirteen different meanings, none of which, however, expresses the exact sense in which it is used in this charter. The great dictionary of the Philological Society, now in course of publication, gives it twenty separate principal deflnitions, besides a nearly equal number of subordinate variations of meaning. Of these definitions, one (10 b) is, "The price required or demanded for service rendered, or (less usuall}') for goods supplied ;" and this expresses accurately the sense of the word in the present case. The essence of the meaning is that it is something required, exacted, or taken from the traveller as compensation for the service rendered, and, of course, something taken permanently, — not taken temporarily, and returned. The purpose of the restriction in the charter is the regulation of tiie . amount of fares, not of the mode of collection ; the protection of tlie traveller from excessive demands, not interference with the time, place, or mode of payment. These are mere administrative details, which depend on varying circumstances, and are therefore left to the ordinary course of business management. We fail to see anything in the present regulation which can properly be treated as an excessive charge, within the prohibition of the charter. Nor is there any force in the objection that this regulation is un- reasonable. It is said not to be general, fair, and impartial, because it provides that as to passengers getting on the train at stations where there is no ticket office, &c., or on trains where, on account of the excessive rush of business, it is impossible to issue the refunding check, the collection of the excess shall be omitted. The objection overlooks the necessary qualifications to the validity of such a regula- tion. All the cases are agreed that the regulation would be unreason- able, and therefore void, unless the carrier should give the passenger a convenient place and opportunity to buy his ticket before entering the train. This part of the regulation merely puts in express words a necessary exception which the law would otherwise imply. So, as to the excessive rush of business. Reasonableness depends on circum- stances. To collect the extra amount and issue return checks to as many passengers as the conductor could reach in time, and let all others go free entirely, would be much more unreasonable than to treat all ahke and dispense with the regulation for the time being. Necessity modifies the application of all rules, and there is nothing unreasonable in requiring the conductor to exercise sufficient foresight to see whether he can perform the prescribed duty in the available time, and investing him with the discretion to omit it altogether, if, in his judgment, he cannot perform it fully. No authorities precisely in point have been found upon either side. The cases cited by the defendant in error, from Kentucky and Ohio, are widely distinguishable, as they were cases of absolute charge be- yond the charter limit, without any provision for return of the excess 366 FOESEE V. ALABAMA GREAT SOUTHERN RAILROAD. to the traveller. But on well-settled principles we are of opihion that the regulation is reasonable in itself, and not in violation of the re- striction in the act of incorporation. The defendant's first point should therefore have been affirmed. Judgment reversed. FORSEE V. ALABAMA GEEAT SOUTHERN RAILROAD, SUPKEME CotTEX OF MISSISSIPPI, 1885. [63 Miss. 66.] About nine o'clock p. m., on September 20, 1884, S. P. Forsee went to the ticket office of the Alabama Great Southern R. R. Co. at. Toomsuba, for the purpose of buying a ticket and taking passage for Meridian on that company's train, which was due at Toomsuba at about halfpast nine o'clock p. m. The depot was dark, no ticket agent could be seen or found, and as it was raining slightly Forsee and his companion, one Poole, left the depot, where, as they claimed, there was no adequate shelter, and went over to a store near bj', but from which they could still view the depot and watch for the train. No one was seen about the depot until the train approached, when a man with a mail bag ran out. Forsee seized him and said to him that he had tried to get a ticket but had not been able to find any one at the depot. The man, who proved to be the agent, replied that it was then too late. Forsee went to the conductor and told him that he had been unable to buy a ticket because the agent was not on band. Forsee tiien boarded the train, and when the conductor came to him for his fare again told him he had no ticket and why he had failed to get one, but tendered him thirt.y-five cents, the amount of the i"egular ticket rate between Toomsuba and Meridian. The conductor declined to receive it, and demanded fifty cents, explaining to Forsee that his instructions were positive to collect fifty cents from passengers going from one to the other point mentioned who failed to purchase tickets. Forsee still refused to pay more, when the conductor stopped the train, seized Forsee, and with the assistance of two train men was about to put him off. Forsee, rather than be put off", paid fifty cents under protest, and afterward brought this action to recover damages for the alleged injury that resulted to him from the neglect and wrongful conduct of the rail- road company's agents. Plaintiff introduced evidence tending to show that the conductor acted in a rough, insulting, and insolent manner; while the defence introduced evidence tending to show the opposite, and that the con- ductor used no more force than was necessary. Plaintiff offered to prove by witnesses and by the deposition of one C. P. Blanks that the acting ticket agent was a boy of sixteen years, FORSEE V. ALABAMA GREAT SOUTHERN RAILROAD. 367 that he was careless and indiflferent, and that he had been previously reported to defendant for neglecting his duties. This evidence the court below refused to admit. Plaintiff further offered to prove by two witnesses that he was at the time in a delicate state of health, and that he would have probably received serious and permanent injuries had he been put off the train, and that owing to the delicate state of his health, any undue excite- ment of mind was injurious, but the co&rt below refused to admit such testimony. Plaintiff also offered to prove that on the day following his attempt to purchase the ticket, the ticket agent had admitted to some third person that he was asleep before and on the arrival of the train on the day in question, and that the depot was not lighted ; and this evidence the court below refused to admit. The jury rendered a verdict for plaintiff, and fixed his damages at fifty dollars, and thereupon the court adjudged that each party pay his own costs. The plaintiff appealed. Arnold, J. There was no error in sustaining the objection to the proposed testimony in regard to appellant's health. It is not claimed that his health was affected b3' the occurrence of which he complains, and evidence on that subject was irrelevant. The testimony offered, including the deposition of C. P. Blanks in regard to tlie character of the ticket agent, was properly excluded. It was shown that the agent was not at his post, and that the ticket office was not open in time for appellant to obtain a ticket, and the character of the agent under these circumstances was immaterial. The alleged admissions or declarations of the ticket agent, made a day or more after the occurrence to which they related, were incom- petent, and the objection to the testimony introduced to prove such admissions or declarations was weU taken. Moore v. Chicago, &c.. Railroad Co., 59 Miss. 243. It is competent for a railroad corporation to adopt reasonable rules for the conduct of its business, arid to determine and fix, within the limits specified in its charter and existing laws, the fare to be paid by passengers transported oh its trains. It may, in the exercise of this right, make discrimination as to the amount of fare to be charged for the same distance, by charging a higher rate when the fare is paid on the train than when a ticket is purchased at its office. Such a regula- tion has been very generallj- considered reasonable and beneficial both to the public and the corporation, if carried out in good faith. It imposes no hardship or injustice upon passengers, who may, if they desire to do so, pay their fare and procure tickets at the lower rate before entering the cars, and it tends to protect the corporation from the frauds, mistakes, and inconvenience incident to collecting fare and making change on trains while in motion, and from imposition by those who may attempt to ride from one station to another without payment, and to enable conductors to attend to the various details of their duties on the train and at stations. State v. Goold, 53 Maine, 279 ; The 368 FORSEE V. ALABAMA GREAT SOUTHERN RAILROAD. JeflFersonville Eailroad Co. v. Rogers, 28 Ind. 1 ; Swan v. Manchester, &e. Eailroad Co., 132 Mass. 116. But such a regulation is invalid, and cannot be sustained, unless the corporation affords reasonable opportunitj' and facilities to passengers to procure tickets at the lower rate, and thereby avoid the disadvantage of such discrimination. When this is done, and a passenger fails to obtain a ticket, it is his own fault, and he may be ejected from the train if he refuses to pay the higher rate charged on the train. "When such a regulation is established, and a passenger endeavors to buy a ticket before he enters the cars, and is unable to do so on account of the fault of the corporation or its agents or servants, and ho offers to paj' the ticket rate on the train, and refuses to pay the car rate, it is unlawful for the corporation or its agents or servants to eject him from the train. He is entitled to travel at the lower rate, and the corpora- tion is a trespasser and liable for the consequences if he is ejected from the train by its agents or servants. The passenger may, under such circumstances, either pay the excess demanded under protest, and afterwards recover it by suit, or refuse to pay it, and hold the corpora- tion responsible in damages if he is ejected from the train. 1 Redfield on Railways, 104; Evans v. M. & C. Railroad Co., 56 Ala. 246; St. Louis, &c. Railroad Co. v. Dalby, 19 111. 353 ; St. Louis, &c. Railroad Co. V. South, 43 111. 176 ; Smith v. Pittsburg, &c. Railroad Co., 23 Ohio St. 10 ; Porter v. N. Y. Central Railroad Co., 34 Barb. 353 ; The Jef- fersonville Railroad Co. v. Rogers, 28 Ind. 1 ; The Jefferson Railroad Co. V. Rogers, 38 Ind. 116 ; State v. Goold, 53 Maine, 279 ; Swan v. Manchester, &c. Railroad Co., 132 Mass. 116 ; Du Laurans v. St. Paul, &c. Railroad Co., 19 Minn. 49. In such case exemplary damages would not be recoverable, unless the expulsion or attempted expulsion was characterized by malice, recklessness, rudeness, or wilful wrong on the part of the agents or servants of the corporation. Chicago, &c. Railroad Co. v. Scurr, 59 Miss. 456; Du Laurans v. St. Paul, &c. Railroad Co., 19 Minn. 49; Pullman, &c. v. Reed, 75 111. 125 ; Hamilton v. Third Avenue Railroad Co., 53 N. Y. 25 ; Townsend v. N. Y. Central Railroad Co., 56 N. Y. 295 ; Paine v. C. R. I. & P. Railroad Co., 45 Iowa, 569 ; McKinley v. The C. & N. W. Railroad Co., 44 Iowa, 814. The cause was tried in the court below on theories and principles of law different from those here expressed, and the judgment is reversed and a new trial awarded. Reversed. PHILADELPHIA, WILMINGTON 4 BALTIMORE E.R.' V. RICE. 369 PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY v. RICE. CouET OP Appeals op Maeyland, 1885. [64 Md. 63.] Robinson, J., delivered the opinion of the Court. The appellee, plaintiff below, bought a round trip ticket from "Wil- mington to Philadelphia. The ticket was in two coupons attached to each other, — one being for the trip to Philadelphia, and the other for the return trip. Shortly after leaving Wilmington, the conductor came through for tickets, took the plaintiff's ticket, tore off the coupon for the trip to Philadelphia, and by mistake punched the return coupon. A few minutes after, he came back and said to plaintiff, " let me see that ticket, I think I have made a mistake.'' He then took the ticket which was the return coupon punched by him, and wrote on the back of it with a pencil the words " cancelled bj- mistake," and returned it to the plaintiff, saying, " I have fixed it all right, now you can ride on it." The next day, the plaintiff on the return trip to Wilmington handed to the conductor of that train the punched coupon, which, how- ever, he declined to accept, because it had been cancelled. The plain- tiff then called his attention to the writing on the back of the ticket, and explained how it had been punched, and the mistake corrected by the conductor on the trip to Philadelphia. But the conductor declined to accept the explanation, saj-ing to the plaintiff, "anybody could have written that, you could have done it 3'ourself." The mistake, it seems, had not been corrected according to the rules ot ihe company, which required the conductor making the mistake to draw a ring around the cancellation mark, and write on the back of the ticket the word " error," and sign his name or initials. The conductor accordingly demanded of the plaintiff the fare from Philadelphia to Wilmington, and upon his refusal to pay it, he^ was put off the train. Upon these facts it is admitted an action will lie against the companj- for a breach of contract as a carrier, or for the negligence of the con- ductor in cancelling tiie plaintiff's ticket, and thereby destroying the only evidence of his right to the return trip ; but inasmuch as the can- cellation had not been corrected according to the rules of the company, the ejection of the plaintiff under such circumstances, it is argued, does not in itself furnish a substantive ground of action. We shall not stop to examine the several cases relied on in support of this contention. Hufford V. Grand Rapids and I. R. R. Co., The Reporter, 18 Vol., 147; Fredericks. The Marquette, Houghton and Ontonagon R. R. Co., 37 Michigan, 342 ; Yorton v. The Milwaukee, Lake Shore, and West- ern Railway Co., 54 Wisconsin, 234 ; Bradshaw v. South Boston R. R. Co., 135 Mass. 407. It is suflScient to say the facts in this case differ materially from the facts in those, cases. Here the plaintiff was wholly without fault. He 24 370 PHILADELPHIA, WILMINGTON & BALTIMORE E.K. V. RICE. had purchased a ticket which entitled him to a round trip from Wil- mington to Philadelphia. The return coupon was cancelled through the mistake of the conductor; this error he attempted to correct, and informed tiie plaintiff that it was all right. The latter had a rigiit to relj- on this assurance, and that the ticket for which he had paid his monej' entitled him to return to Wilmington. If the servants of the appellant under such circumstances laid their hands forcibly on the person of the plaintiff, and compelled him to leave the car, there was not merely a breach of contract on the part of the company, but an unlawful interference with the person of the plain- tiff, and an indignity to his feelings for which an action will lie, and for which he is entitled to be compensated in damages. Such is the well settled law of this State and of this countrj'. The mistake by which the plaintiff's ticket was cancelled was the mistake of the appellant's servant, and it must abide the conseqiiiences. There was no error, therefore, in the rulings of the Court in this respect. But in addition to damages for the unlawful interference with the person of the plaintiff and the indignity to his character and feelings, the Court also instructed the jur^' that if he was maliciously or wantonly ejected from the train, he was entitled to recover exemplary damages as a. punishment to the appellant. Now we have not been able to find a particle of evidence from which the jury could find that the plaintiff was wantonly or maliciously ejected from the car. The ticket which he handed to the conductor, Mattison, was a cancelled ticket, one which upon its face showed it had been used. It had been cancelled, it is true b3- the mistake of another conductor; but this mistake had not been corrected according to the rules of the company. Mattison could not therefore recognize it as a ticket entitling the plaintiff to the trip to Wilmington, and if the latter refused to pay his fare or to leave the car, the conductor was obliged to eject him forcibly. The proof shows the conductor acted in good faith, and in obedience to the rules of the company, and that no greater force was used than was actually neces- sary. No complaint is made by the plaintiff in his testimony of unnec- essary force, or that any abusive language was used. The brakeman, he says, " put his hand on his shoulder, and pulled him across the person who was sitting by him ; " at first he made up his mind to resist ; but upon the advice of friends he concluded to go out without further resistance. The testimony of his friends Friedenrich and Hobbs is to the same effect. Hobbs says, the manner "of the conductor and brakeman was firm and decided ; they looked angry." This is the evidence on the part of the plaintiff to support the claim for punitive damages, damages as a punishment to the appellant for having acted in bad faith, or maliciously, or wantonly, or in a spirit of oppression. The case, it seems to us, is wanting in every element necessary to entitle the plaintiff to vindictive damages. Camp, a passenger, who saw and heard all that took place says, "the conductor told the plaintiff he must have all the tickets regular, and hoped he would not think hard of him ; BRADSHAW V. SOUTH BOSTON RAILEOAD COMPANY. 371 his orders were imperative, and he was only doing his duty. The bralceman put his hand gently on plaintiff's shoulder and he went out without resistance; all the parties," witness thought "acted like gentlemen." This case comes before us a second time, and we naturally feel some reluctance in sending it back for another trial. But as there is no evi- dence from which the jury could reasonably find that the plaintiff was wantonly or maliciously put off the train, the Court erred in granting the plaintiflfs third prayer, by which the question oi punitive damages was submitted to the finding of the jury. Judgment reversed, and new trial awarded. BRADSHAW v. SOUTH BOSTON RAILROAD COMPANY. Supreme Court of Massachusetts, 1883. [135 Mass. 407.] ToHT for being expelled from one of the defendant's cars. C. Allen, J. It may be assumed, as the view most favorable to the plaintiff, that the defendant was bound by an implied contract to give him a check showing that he was entitled to travel in tlie second car, and that it failed to do so ; in consequence of which he was forced to leave the second car. It does not appear that the defendant had any rule requiring conductors to eject passengers under such circum- stances. We may, however, take notice of the fact that it is usual for passengers to provide themselves with tickets or checks, showing their right to transportation, or else to pay their fare in monej-. It was the practice for passengers on the defendant's road to receive and use such checks ; and the plaintiff intended to conform to this practice. The conductor of a street railway car cannot reasonably be required to take the mere word of a passenger that he is entitled to be carried by reason of having paid a fare to the conductor of another car ; or even to receive and decide upon the verbal statements of others as to the fact. The conductor has other duties to perform, and it would often be impossible for him to ascertain and decide upon the right of the passenger, except in the usual, simple and direct way. The checks used upon the defendant's road were transferable, and a proper ch^ck, when given, might be lost or stolen, or delivered to some other person. It is no great hardship upon the passenger to put upon him the duty of seeing to it, in the first instance, that he receives and presents to the conductor the proper ticket or cheek ; or, if he fails to do this, to leave him to his remedj' against the company for a breach of its con- tract. Otherwise, the conductor must investigate and determine the question, as best he can, while the car is on its passage. The circum- stances would not be favorable for a correct decision in a doubtful case. A wrong decision in favor of the passenger would usually leave the company without remedy for the fare. The passenger disappears at 372 BRADSHAW V. SOUTH BOSTON EAILEOAD COMPANY. the end of the trip ; and even if it should be ascertained by subsequent inquiry that he had obtained his passage fraudulently, the legal remedy against him would be futile. A railroad company is not expected to give credit for the payment of a single fare. A wrong decision against the passenger, on the other hand, would subject the company to liabil- ity in an action at law, and perhaps with substantial damages. The practical result would be, either that the railroad company would find itself obliged in common prudence to carry every passenger who should claim a right to ride in its cars, and thus to submit to frequent frauds, or else, in order to avoid this wrong, to make such stringent rules as greatlj- to incommode the public, and deprive them of the facilities of transfer from one line to another, which they now enjoy. It is a reasonable practice to require a passenger to pay his fare, or to show a ticket, check or pass ; and, in view of the difficulties above al- luded to, it would be unreasonable to hold that a passenger, without such evidence of his right to be carried, might forcibly retain his seat in a car, upon his mere statement that he is entitled to a passage. If the company has agreed to furnish him with a proper ticket, and has failed to do so, he is not at liberty to assert and maintain b^' force his rights under that contract ; but he is bound to j'ield, for the time being, to the reasonable practice and requirements of the company, and enforce his rights in a more appropriate wa}'. It is easy to perceive that, in a moment of irritation or excitement, it may be unpleasant to a passen- ger who has once paid to submit to an additional exaction. But, un- less the law holds him to do this, there arises at once a conflict of rights. His right to transportation is no greater than the right and duty of the conductor to enforce reasonable rules, and to conform to reasonable and settled customs and practices, in order to prevent the company from being defrauded ; and a forcible collision might ensue. The two supposed rights are in fact inconsistent with each other. If the passenger has an absolute right to be carried, the conductor can have no right to require the production of a ticket or the payment of fare. It is more reasonable to hold that, for the time being, the pas- senger must bear the burden which results from his failure to have a proper ticket. It follows that the plaintiff was where he had no right to be, after his refusal to pay a fare, and that he might properly be ejected from the car. This decision is in accordance with the principle of the decisions in several other States, as shown by the cases cited for the defendant ; and no case has been brought to our attention holding the contrary. Judgment for the defendant. PEOPLE V. MANHATTAN GAS LIGHT CO. 373 THE PEOPLE V. MANHATTAN GAS LIGHT CO. Supreme Court of New Yokk, 1865. [45 Barb. 136.] Appeal from an order made at a special term, denying an application for a mandamus commanding the defendants to supply the plaintiff with gas, at his house, No. 121 West Sixteenth Street, New York. £y the court, Ingraham, P. J. 1 think there can be no doubt about the authority of this court to direct the respondents to furnish gas to persons who, under the provisions of their charter, have a right to receive it and who offer to comply with the general conditions on which the company supply others. They possess, by virtue of their charter, powers and privileges which others cannot exercise, and the statutory duty is imposed upon them to furnish gas on payment of all moneys due by such applicants. We are left then to inquire whether the relator was in a condition to demand from the company this supply. It appears by the papers used on the motion that the relator commenced taking gas in 1858, at No. 61 in Seventh Avenue, and was supplied with gas by the companj', until 28th of December, 1861. That he paid for the gas so received up to 19th of August, 1861, and that for gas furnished after that date he has not paid. It also appears that in January', 1865, the respondent sued the relator and obtained a judgment against him for the amount due therefor, which still remains unpaid. In May, 1864, the relator applied to the company for gas at 121 West Sixteenth Street, which was fur- nished to him by the companj-, without objection on account pf the former indebtedness, until 9th of Febrnarj-, 1865, when the company shut off the supply of gas and refused to furnish anj- more. It also ap- pears that the relator in answer to a claim for payment of this indebted- ness, represents himself as insolvent and unable to pay the judgment. There is nothing in the charter of the company which requires them to make the objection that the applicant was indebted to them at the time of the first application. It would be unreasonable to suppose that in every instance they could ascertain such indebtedness. If at any time the party is so indebted, the company may refuse to furnish, and more especially should this be so when the relator avows his insolvency and his inability to pay for gas furnished previously'. The attempted denial of liability for this bill, by the relator, will not aid him. The company liave obtained a judgment against him. This is not disputed, and no attempt is made by Iiim to set it aside. So long as that remains in force it is conclusive against him. The order appealed from should be affirmed, with $10 costs.^ 1 Accord: Montreal Gas Co. n. Cadieux, 1899, A. C. 589; Shiras v. Ewing, 48 Kans. 170 ; Gas Co y. Storage Co., 1 1 1 Mich. 401 ; McDaniel v. Waterworks, 48 Mo. 273; Turner v. Water Co., 171 Mass. 330; Ins. Co. v. Philadelphia, 88 Pa. St. 393; Hotel Co. V. Light Co., 3 Wash 316. — Ed. 374 STATE V. NEBKASKA TELEPHONE CO. STATE V. NEBRASKA TELEPHONE CO. Supreme Cookt op Nebraska, 1885. [17iVe6. 126.1] Reese, J. This is an original application for a mandamus to compel the respondent to place and maintain in the office of the relator a tele- phone and transmitter, such as are usually furnished to the subscribers of the respondent. The respondent has refused to furnish the instru- ments, and presents several excuses and reasons for its refusal, some of which we will briefly notice. It appears that during the year 1883 the respondent placed an instru- ment in the office of the relator, but for some reason failed to furnish the relator with a directory or list of its subscribers in Lincoln and various other cities and villages within its circuit, and which directory the relator claimed was essential to the profitable use of the telephone, and which it was the custom of respondent to furnish to its subscribers. Finallj-, the directory was furnished, but upon pay-day the relator re- fused to paj- for the use of the telephone during the time the respondent was in default with the director}'. Neither party being willing to yield, the instruments were removed. Soon afterwards the relator applied to the agent of the respondent and requested to become a subscriber and to have an instrument placed in his place of business, which the respondent refused to do. It is insisted that the conduct of the relator now relieves respondent from an}' obligation to furnish the telephone even if such obligation would otherwise exist. We cannot see that the relations of the parties to each other can have any influence upon their rights and obligations in this action. If relator is indebted to respondent for the use of its telephone the law gives it an adequate remedy by an action for the amount due. If the telephone has become such a public servant as to be subject to the proc- ess of the courts in compelling it to discharge public duties, the mere fact of a misunderstanding with those who desire to receive its public benefits, will not alone relieve it from the discharge of those duties. "While either, or perhaps both, of the parties may have been in the wrong so far as the past is concerned, we fail to perceive how it can affect the rights of the parties to this action. . The pleadings and proofs show that the relator is an attorney-at-law in Lincoln, Nebraska. That he is somewhat extensively engaged in the business of his profession, which extends to Lincoln and Omaha, * and surrounding cities and county seats, including quite a number of the principal towns in southeastern Nebraska. That this territory is occupied by respondent exclusively, together with a large portion of 1 This opinion is abridged. — Ed. STATE V. NEBRASKA TELEPHONE CO. 375 southwestern Iowa, including in all about fifteen hundred different instruments. By the testimony of one of the principal witnesses for respondent we learn that the company is incorporated for tlie purpose of furnishing individual subscribers telephone connection with each other under the patents owned by the American Telephone Company ; instruments to be furnished by said company and sublet by the Nebraska Telephone Company to the subscribers to it. This is clearly the purpose of the organization. While it is true, as claimed by respondent, that it has been organized under the general corporation laws of the State, and in some matters has no higher or greater right than an ordinary corpora- tion, yet it is also true that it has assumed to act in a capacity which is to a great extent public, and has, in the large territory covered by it, undertaken to satisfy a public want or necessity. This public demand can only be supplied by compl3-ing with the necessity which has sprung into existence by the introduction of the instrument known as the tele- phone, and which new demand or necessity in commerce the respondent proposes satisfj'ing. It is also true that the respondent is not possessed of any special privileges under the statutes of the State, and that it is not under quite so heav3- obligations, legally, to the public as it would be, had it been favored in that waj', but we fail to see just how that fact relieves it. While there is no law giving it a monopolj' of the business in the territory covered by its wires, j-et it must be apparent to all that the mere fact of this territory' being covered by the "plant" of re- spondent, from the very nature and character of its business gives it a monopoly of the business which it transacts. No two companies will try to cover this same territory. The demands of the commerce of the present day makes the telephone a necessity. All the people upon complying with the reasonable rules and demands of the owners of the commodity — patented as it is — should have the benefits of this new commerce. The wires of respondent pass the office of the relator. Its posts are planted in the street in front of his door. In the very nature of things no other wires or posts will be placed there while those of respondent remain. The relator never can be supplied with this new element of commerce so necessarj' in the prosecution of all kinds of business, unless supplied by the respondent. He has tendered to it all the money required by it from its other subscribers in Lincoln for put- ting in an instrument. He has proven, and it is conceded by respond- ent, that he is able, financially, to meet all the payments which may become due in the future. It is shown that his office can be supplied with less expense and trouble to respondent than many others which are furnished by it. No reason can be assigned why respondent should not furnish the required instruments, except that it does not want to. There could, and doubtless does, exist in many cases sufficient reason for failing to comply with such a demand, but they are not shown to exist in this case. It is shown to be essential to the business interests of relator that his office be furnished with a telephone. The value of 376 STATE V. NEBRASKA TELEPHONE CO. such propertj' is, of course, conceded bj- respondent, but by its attitude it says it will destroy those interests and give to some one in the same business, who may have been more friendly, this advantage over him. It is said by respondent that it has public telephone stations in Lin- coln, some of which are near relator's office, and that he is entitled to and may use such telephone to its full extent by coming there. That, like the telegraph, it is bound to send the messages of relator, but it can as well do it from these public stations, that it is willing to do so, and that is all that can be required of it. Were it true that respondent had not undertaken to supply a public demand beyond that undertaken by the telegraph, then its obligations would extend no further. But as the telegraph has undertaken to the public to send despatches from its offices, so the telephone has undertaken with the public to send mes- sages from its instruments, one of which it proposes to suppl3' to each person or interest requiring it, if conditions are reasonabl3- favorable. This is the basis upon which it proposes to operate the demand which it proposes to supply. It has so assumed and undertaken to the public. That the telephone, b}' the necessities of commerce and public use, has become a public servant, a factor in the commerce of the nation and of a great portion of the civilized world, cannot be questioned. It is to all intents and purposes a part of the telegraphic system of the countr3-, and in so far as it has been introduced for public use and has been undertaken by the respondent, so far should the respondent be held to the same obligation as the telegraph and other public servants. It has assumed the responsibilities of a common carrier of news. Its wires and poles line our public streets and thoroughfares. It has, and must be lield to have taken its place by the side of the telegraph as such common carrier. The views herein expressed are not new. Similar questions have arisen in, and have been frequently discussed and decided bj', the courts, and no statute has been deemed necessarj' to aid the courts in holdino- that when a person or company undertakes to supply a demand which is "affected with a public interest," it must supply all alike who are like situated, and not discriminate in favor of, nor against any. This reasoning is not met by saying that the rules laid down by the courts as applicable to railroads, express companies, telegraphs, and other older servants of the public, do not apply to telephones, for the reason that they are of recent invention and were not thought of at the time the decisions were made, and hence are not affected by them, and can only be reached by legislation. The principles established and declared by the courts, and which were and are demanded by the highest mate- rial interests of the country, are not confined to the instrumentalities of commerce nor to the particular kinds of service known or in use at the time when those principles were enunciated, " but they keep pace with the progress of the country and adapt themselves to the new develop- ments of time and circumstances. They extend from the horse with its rider to the stage coach, from the sailing vessel to the steamboat, from STATE V. CAMPBELL. 377 the coach and the steamboat to the railroad, and from the raih-oad to the telegraph," and from the telegraph to the telephone; "as these new agencies are successively brought into use to meet the demands of increasing population and wealth. They were intended for the govern- ment of the business to which they relate, at all times and under all circumstances." A peremptory writ of mandamus must be awarded.' STATE V. CAMPBELL. Supreme Court op New Jersey, 1867. [32 N. J. Law, 309.2] The Chief Justice. ... To make intelligible the application of the law to the case, the circumstances must be understood. They were these : the passenger who was expelled had purchased, at the depot in New York, this ticket, which he produced and showed, for the first time, on the platform at the station at Newark. At the time that he provided himself with it, he expected to have trouble with the conduc- tor, as it was then his intention to insist on his right to use the return ticket, which was spent. Being called on by the conductor, on two several occasions, to show his ticket, he produced the spent one, keep- ing the other out of view, so that the conductor was not aware of its possession by him, while he remained in the cars. Having arrived at the Newark station, he was informed he must pay his fare or leave the cars. He refused to do either act. The conductor then declared his intention to delaj- the train until the passenger paid his fare or left the cars, and accordingly he sent back a flag, to warn a train that was nearly due at Newark. This produced excitement; and when the employees of the company were called in, the acquaintances of the rec- reant passenger collected around him and endeavored to prevent his being put out. Tlie passenger himself resisted by clinging to the seats. After a delay of twelve minutes he was ejected. During this time the other train, which had been warned of the danger, arrived. It is presumed that no person will deny that here was a transaction which, if often repeated, would deprive railroad travel of some of its ' security and much of its comfort. The annoyance and danger to be apprehended from such an affair, are too obvious to need exposition. It is clear, therefore, that some person was to blame. That person was certainly not the company or its agents. The company, through its 1 Accord ! Smith v. Water Works, 104 Ala. 315 ; Crow v. Irrigation Co., 130 Cal. 311 ; Lloyd v. Gas Co., 1 Mackey, 131 ; Gas Co. v. Calliday, 25 Md. 1 ; Bank v. Lowell, l.i2 Mass. 556; Wood o. Auburn, 87 Me. 287; Water Works v. State, 46 Neb. 194; Crumley v. Water Co., 99 Tenn. 420. — Ed. 2 This opiuion is abridged. — Ed. 378 STATE V. CAMPBELL. agents, simply enforced a plain legal right in a'legal mode. The whole fault must be laid to the passenger ; and the only question which can possibly arise is, whether his conduct was such as to justify the con- ductor in refusing him re-admission into the cars. The proposition is simply this : if a passenger refuses to show his ticket on a legal de- mand made, and refuses to leave the cars on request, and is put out, after resistance, has he, as a matter of law, the privilege to return to the cars upon the production, at this stage of the occurrence, of his ticket? This proposition must be answered in the affirmative, in order, in this case, to hold that the defendant was guilty of a wrong. In my opinion, such a doctrine is not consistent with either law or good sense. Its establishment would, practically, annul the power of a railroad company to require passengers to show their tickets ; for it is obvious, that if the only penalty on a refractory passenger is a momen- tary expulsion, he will be enabled, at a small sacrifice, by repeated refusals, to compel an abandonment of the demand upon him. A passenger takes his ticket subject to the reasonable regulations of the company ; it is an implied condition in his contract, that he will sub- mit to such regulations ; and if he wilfully refuses to be bound by them, by so doing he repudiates his contract, and after such repudia- tion cannot claim any right under it. In this case, the passenger, with full knowledge of the regulation in question, refused to show his ticket, which alone gave him the right to a seat in the cars. The ex- hibition of the spent ticket did not help the matter ; he stands, there- fore, on the same footing as any other passenger who, when properly applied to, will not exhibit the evidence of his rightful presence in the car. If this particular passenger had the legal right to re-enter the cars after his tortious refusal, so, on all similar occasions, will all other passengers be entitled to the same right. We come thus to the result, that railroad passengers may violate, with full knowledge, a legal reg- ulation of a company in whose cars they are carried ; they may resist, short of a breach of the peace, all attempts to expel them ; they may, by this means, at a loss to the company and to the peril of the public, disarrange the order of successive trains upon the road, with regard to each other; they may occasion a tumult and disorder in the car in which they may happen to be ; and, after being expelled, they may immediately return to repeat, if so inclined, the same misconduct. I must think it requires no argument to show that such a license to do evil as this does not exist. The defendant was entirely justified in forming the rational conclusion, that the passenger in question, if re-admitted into the cars, would again misconduct himSelf ; and, under such circum- stances, it was his duty to exclude him. The Court of Oyer and Terminer should be advised to set aside the verdict. PENNINGTON V. PHILADELPHIA, ETC. RAILROAD. 379 PENNINGTON v. PHILADELPHIA, WILMINGTON AND BALTIMORE RAILROAD CO. Supreme Court of Maryland, 1883. [62 Md. g.").!] Bryan, J., delivered the opinion of tlie court. Tlie appellant purchased from a ticket agent of the appellee a ticket of which the following is a copy. .1 Phila. Wilm. and Balto. R. E. (One Continuous Passage.) Pekrt man's to Baltimoke. In consideration of the reduced rate at which the ticliet is sold, it is agreed that it shall be used within three days, including the day of sale, for a continu- ous trip only, and by such trains as stop regularly at the station, and by its acceptance the purchaser becomes a party to and binds himself to a compliance with these conditions. (1,"23) Geo. A. Dadmun, General Ticket Agent. On the back of the above ticket is the following stamp, to wit : ( Phila. Wilm. and Balto. E. E. ) I Dec. 13, 1882. \ ( Baltimore. ) 7 V. 62. He proceeded in appellee's cars to Ferryman's on the thirteenth day of December, 1881, and while attempting to return on the sixteenth day of December, the conductor refused to receive the ticket for his passage and required him to leave the cars. The controyers}' depends upon the rights acquired by the purchase of the ticket. The plaintiff, at the trial below, offered to prove that before he purchased the ticket, he was informed by the agent, upon inquiry from him, that it was "good until used." We think that the plaintiff's rights in this regard are limited by the ticket. There is no evidence in the record that the ticket agent was authorized to make any contracts for the railroad companj', or that he had anj' duties bej'ond the sale and deliver3' of the tickets. The ticket purchased by the appellant clearly informed him that he would have no right to use it after the fifteenth, and the agent had no authority to vary its terms. A passenger has a right to be convej^ed in the cars of a railroad company without making any special contract for transportation. Upon payment of the usual fare, the company is bound to convey him, and is under all the obligations imposed bj' law on common carriers, so far as they relate to the transportation of him as a passenger. It is competent to vary these obligations by a special agreement, on valu- 1 Opiiiion only is printed. — Ed. 380 PENNINGTON V. PHILADELPHIA, ETC. EAILKOAD. able consideration, between the passenger and tiie company. But if the passenger chooses to do so, he may stand on his legal rights, and elect to be carried to his destination without making any special con- tract. The mere purchase of a ticket does not constitute a contract. Before the ordinary liability' of the railroad compan}' can be varied, there must be a consent of the passenger, founded on valuable con- sideration. The ticket ordinarily is only a token, showing that the passenger has paid his fare. But where the ticket is sold at less than the usual rates, on the condition that it shall not be used after a limited time, if the passenger accepts and uses the ticket, he makes a contract with the company- according to the terms stated, and the reduction in the fare is the consideration for his contract. It is true, he pays his fare before he receives the ticket, but if he has been misled or misin- formed by the seller of the ticket, as to its terms, he has a right to return the ticket and receive back his mone}'. The railroad company agrees to carry him at the reduced rate, upon the conditions stated on the face of his ticket ; if he agrees to those terms the contract is con- summated ; but he cannot take advantage of the reduction of the rate and reject the terms on which alone the reduction was made. In this case the plaintiflf made the journej- to Perrj-man's, under the terms mentioned in the ticket. There was evidence that he did not read the ticket. He used it and thereby availed himself of the advan- tage conferred by the diminished rates. He had an ample opportunity to read it if he had chosen to do so. He could not, on any principle, hold the railroad company to any terms except those stated. If there was a contract, these terms were embraced in it, if there was no con- tract, he had no right to the reduction in the fare. After availing himself of this reduction, it was too late for him to allege that he did not know on what terms the reduction was made ; when he had an ample opportunity of learning them from the ticket in his possession. The plaintiff was required to leave the cars at Back River Station, on his journey back to Baltimore from Ferryman's. After he had left the cars and while on the platform he offered to pay the conductor his fare from that station to Baltimore, but the conductor refused to give him admission to the cars. The plaintiff had already accomplished a portion of the return journey to Baltimore without paying his fare. He clearly was not entitled to be conveyed from Ferryman's to Balti- more without paying fare for the whole distance. If he had been car- ried from Back River Station to Baltimore, on payment of the fare only from that place, he would have escaped payment of a portion of the fare ; and so, in fact, he would have accomplished the return trip at a reduced rate. The company was under no obligation to carry him for less than the full rate for the whole distance, and so he was prop- erly excluded from the cars. The judgment must be affirmed. Judgment affirmed. WESTERN UNION TELEGRAPH CO. V. MCGUIRE. 381 WESTEEN UNION TELEGRAPH CO. v. McGUIEE. Supreme Coukt of Indiana, 1885. [104 Ind. 130.] Elliott, J. The complaint seeks a recovery of the statutory penalty for a failure to transmit a telegraphic message. The answer of the appellant is substantially as follows : " The defendant says that it did fail and refuse to transmit the message set forth in the complaint, but defendant says that the plaintiff was a stranger in Frankfort and a transient person tlierein ; that the said message was one that required an answer ; that the defendant has, and had at the time, as one of its general rules and regulations of business, regularly adopted for the government of the operators and agents of said companj-, the follow- ing rule : ' Transient persons sending messages whiclj require answers must deposit an amount sufficient to pay for ten words. In such case the signal, "33" will be sent with the message, signifying that the answer" is prepaid ; ' that the defendant's agent to whom said message was offered, informed the plaintiff of the existence of said rule and what said rule was, and that the amount required to be deposited was twenty-five cents ; that thereupon the plaintiff refused to comply with said rule and make said deposit." v To this answer a demurrer was sustained, and on this ruling arises the controlling question in the case. One of the incidental and inherent powers of all corporations is the right to make b^'-laws for the regulation of their business. There is no conceivable reason why telegraph corporations should not possess this general power ; nor is there any doubt under the authorities that this power resides in them. Western Union Tel. Co. ■;;. Jones, 95 Ind. 228 (48 Am. R. 713), vide opinion, p. 231, and authorities cited ; Western Union Tel. Co. v. Buchanan, 35 Ind. 429 (9 Am. R. 744) ; True V. International Tel. Co., 60 Maine, 9 (11 Am. R. 156) ; Scott & J. Law of Telegraphs, section 104. Affirming, as principle and authority require us to do, that the tele- graph company had power to make b3--lavvs, the remaining question is whether the one under immediate mention is a reasonable one. It is established by the authorities that an unreasonable by-law is void. Western Union Tel. Co. v. Jones, supra; Western Union Tel. Co. v. Buchanan, supra; Western Union Tel. Co. v. Adams, 87 Ind. 598 (44 Am. R. 776) ; Western Union Tel. Co. v. Blanchard, 68 Ga. 299 (45 Am. R. 480, see authorities note, pages 491, 492). It is for the courts to determine whether a by-law is or is not an un- reasonable one, and this is the question which now faces us. 1 Dillon Munic. Corp. (3d ed.), section 327; Scott & J. Law of Telegraphs, section 104. 382 OWENSBOEO GASLIGHT CO. V. HILDEBEAND. We are unable to perceive anj'thing unreasonable in the bj'-law under examination. A person who sends another a message, and asks an answer, promises by fair and just implication to pay for transmitting the answer. It is fairly inferable that the sender who asks an answer to his message will not impose upon the person from whom he requests the answer the burden of paying the expense of its transmission. The telegraph company has a right to proceed upon this natural inference and to take reasonable measures for securing legal compensation for its services. It is not unnatural, unreasonable, or oppressive for the telegraph company to take fair measures to secure paj'ment for ser- vices rendered, and in requiring a transient person to deposit the amount legally chargeable for an ordinary message, it does no more than take reasonable measures for securing compensation for transmit- ting the asked and expected message. We have found no case exactly' in point, but we have found many analogous eases which, in principle, sustain the b^'-law before^ us. Western Union Tel. Co. v. Carew, 15 Mich. 525 ; Camp v. Western Union Tel. Co., 1 Met. Kv. 164; Vedder v. Fellows, 20 N. Y. 126; Ellis V. Am. Tel. Co., 13 Allen, 226 ; McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180 ; Western Union Tel. Co. v. Blanchard, supra, see authorities cited note, 45 Am. R., page 489 ; Western Union Tel. Co. V. Jones, supra. Judgment reversed, with instructions to overrule the demurrer to the answer and to proceed in accordance with this opinion. OWENSBOEO GASLIGHT CO. v. HILDEBRAND. Court op Appeals of Kentucky, 1897. [42 S. W. Rep. 351.] Hazelkigg, J. The OwensboVo Gaslight Company and the Owens- boro Electric Company are not given, in express terms, exclusive right to manufacture and furnish gas in the city of Owensboro, but the com- panies are given the use of the streets and public ways of the city for the purpose of laying the mains and pipes and other appliances in the maintenance of its work. The companies may also acquire the use of lands for their business by writs ad quod damnum. Their business, therefore, is affected with public interest, and they are quasi-public corporations, and practically they have a monopoly of the business of manufacturing and furnishing gas within the corporate limits of the city. It is therefore their duty to furnish the city's inhabitants with gas, and to do so upon terms and conditions common to all, and with- out discrimination. They cannot fix a variety of prices, or impose dif- ferent terms and conditions, according to their caprice or whim. They STATE EX EEL, WEISE V. THE SEDALIA GAS LIGHT CO. 383 may, however, fix reasonable rules and regulations applicable to all the consumers alike. In tliese cases the companies undertook to com- pel the appellee to deposit the sum of twenty dollars as security for his future consumption of gas and electricity, and upon his refusal to do so, withdrew their pipes and wires from his building. This suit by •ippellee was to compel them to furnish him light, and the court, on final hearing, granted the relief sought. It is conceded by appellee that appellant may prescribe reasonable rules and regulations, and im- pose reasonable conditions upon the consumer, and require proper security for the payment of tiieir bills, and may even require deposits in advance ; but his contention here is that the companies have adopted no such rule or regulations as they have attempted to enforce against him, and such appears to us to be a fact. No ya\e or regulation of a general character is relied on or exhibited by the companies, and to allow them to select this or that consumer against whom to enforce special rules would put the consumer at the capricious humor of the agents and employees of the companies. The judgment below is affirmed. STATE EX BEi,. WEISE v. THE SEDALIA GAS LIGHT CO. Court of Appeals, Missouri, 1889. [34 Mo. App. 501.1] Statement of the case b}' the court. The petition avers, and the alternative writ recites, that the appellant was organized under the general laws of the State of Missouri for the purpose of supplj'ing the cit^' of Sedalia and its inhabitants with illu- minating gas ; that by section 14 of said article 7 (Wag. Stat.) said company might lay Its pipes, &c., through the streets of said city, by consent of the municipal authorities thereof, under such reasonable regulations as said authorities might prescribe ; that on the seven- teenth day of June, 1868, an ordinance was passed by the municipal authorities of said city granting to said company the exclusive right to lay its pipes through said city, and to supply it and its inhabitants with gas, for a period of thirty years, upon the sole condition, how- ever, that said company should furnish the city and its inhabitants'" a good article of illuminating gas, at a price per cubic foot, not exceeding the rate charged in similarly situated places ; " that said company accepted the terms of said ordinance ; that the relator complied with all the reasonable rules and regulations of said gas company, which are fully set forth in the petition and alternative writ ; that notwithstand- ing all this, and relator's offer and tender of full pay for all gas con- ' 1 This case is abridged. — Ed. 384 STATE EX KEL. WEISE V. THE SEDALIA GAS LIGHT CO. sumed, the gas company removed the meter from his place of business and refused to furnish him gas, &c. All this is admitted in respondent's return to the alternative writ, and the sole justification pleaded, for its refusal to furnish gas to relator, is that, in addition to the rules and regulations set out in the petition and alternative writ, said gas company had adopted anotlier to the effect that, " all persons using or desiring to use gas manufactured by the defendant within said city, should pay a monthly rental upon, and for tlie use of, the meter furnished by the defendant of the sum of one dollar and twenty-five cents per month, in all cases where such consumer consumes less than five hundred feet of gas, and which rental was to be taken in full of such gas, not exceeding the amount of five hundred feet in any one month." Thereupon relator moved to strike out that part of the return for the following reasons : I. The rule, regulation or by-law, in said portion of said return set up and pleaded as a reason why a peremptory mandamus should not issue against defendant herein, is not a fair, impartial nor reasonable rule or by-law ; it is oppressive and discriminator}' and contrary to public policj' ; it is beyond the power of the defendant to make and seeks to enlarge the powers of defendant, granted it bj- the laws of the State ; it is in conflict with the ordinance of the city of Sedalia, as set forth in the alternative writ, under which it supplies the city of Sedalia and its inhabitants with illuminating gas. II. Said portion of said return states no facts which in law constitute good cause why the defendant should not obey the mandate of the alternative writ issued herein. This motion was sustained. The respondent refused to plead further, and the return, after this portion being stricken out, being in effect a concession of the recitations of the alternative writ, a peremptory writ was ordered. The sole ground of error is the action of the court in striking out said portion of respondent's return. Gill, J. I. It is a well-understood principle that corporations, so engaged as the appellant gas company, may, in its- dealings with the people, adopt and enforce such reasonable and just rules and reo-nla- tions as may be necessary to protect its interests and-further the de- signs of its incorporation. They have such power, too, without an express grant to that effect. It is an inlierent power implied from the nature of the business in which they are engaged, limited only by express statute, or ordinance, or by a sense of what is right, reasonable, and just. Shepard v. Gas Co., 6 Wis. 539 ; Wendall v. State, 62 Wis. 300. The relator in this action contends, however, that the rule, or regu- lation, of the Sedalia Gas Company prescribing payment by the con- sumer of $1.25 per month, where the amount of gas used is less per month than five hundred cubic feet — the designated $1.25 per month being denominated rent of meter— is " unjust, unreasonable, and dis- STATE EX EEL. WEISE V. THE SEDALIA GAS LIGHT CO. 385 criminatory." What is just and reasonable is to be determined by the nature of the employment pursued by the corporation and the uses and conveniences of the public. There must be a reasonable protection of the interests of the one, consistent with the reciprocal rights of the other. Irrespective, now, of any ordinance provision, can it be said that this charge of $1.25 per month on a consumer of less than five hundred cubic feet of gas is unreasonable? We think it is not unjust or un- reasonable. The evident purpose of this rule was to exact fair com- pensation from those requiring gas connection, and gas furnished at hand, though the amount consumed should be very small, almost nominal. It is a matter of common knowledge, that to furnish the gas at hand for the very small or nominal consumer requires the same out-lay, in the waj- of a meter, periodical inspection and repairs, with weeklj- or montiily visitations, that is required of very large consumers. The same investment and the same care and oversight is required where the gas monthl3- consumed shall not exceed ten cubic feet or even one cubic foot, as where the amount used maj- be ten thousand cubic feet. At the rate charged then in Sedalia, as alleged in relator's complaint, the gas company would be required to invest and expend, for the benefit of this merely nominal consumer, more dollars than cents received. The rate there charged, as alleged, is $2.50 per thousand cubic feet. For tills ten cubic feet thus consumed, and for which the company could receive pay of onlj' two and a half cents, the cost to the gas company may be many dollars. II. Relator's further contention is that the gas company has no authority, under the ordinance of the city, under which it operates, to adopt or enforce the rule in question. Much courage for this contention is apparentlj' drawn from the terms of the grant of franchise, bj' the city, wherein it is provided that the grant should be "upon condition that it (the gas com panj-) , should furnish the public lamps of the city, and to the inhabitants of the city . . . gas at a price, per cubic foot, not exceeding the rate chained in similarly situated places ; that said gas company should have the right to collect pay for gas furnished from the consumers of the same," &c. It is insisted that this is not collecting for " gas consumed," but is charging rental on the meter used in measuring the gas, and that the company is only allowed to charge for gas per cubic foot. The construction insisted on is too narrow. While the rule names the charge for gas in this instance as "rent" of meter, yet by its express terms the $1.25 is pay for all gas consumed by the customer, to the extent of five hundred cubic feet. And again the clause limiting the maximum price at which the company should sell its gas to the city for street lamps and to its citizens was only intended to require of the company to furnish gas to Sedalia, and to its inhabitants, at prices not exceeding those prevailing in other " places similarly situated." It 25 386 WATAUGA WATEE CO. V. -WOLPE. was not meant to prohibit the gas company from selling gas by any other means than per cubic foot. If the company shall furnish gas to the city, and to its inhabitants, at prices not in excess of those charged In " places similarly situated," than the spirit of this ordinance pro- vision is fully met ; and if the gas company by this rule is charging more than is imposed in " places similarly situated," then the pro- visions of the ordinance in question are being violated, and the com- pany will not be protected in so doing. We think this is a fair construction to be given the clause in question. To hold otlierwise would impose upon the gas company the necessity to aflflx a meter on every lamp post in the city, and measure off each cubic foot furnished the city ; for the same stipulation implies to gas furnished the street lamps as is furnished private consumers. We hold then that the rule or regulation in question, and as is stated in the return to the writ, is not, as a matter of law, unreasonable, and does not conflict with the terms of the franchise ordinance referred to, and, admitting the truth of that portion of the return as pleaded, the trial court, in our opinion, committed error in striking out the same, as it was proper matter of defence to the action. Judgment reversed and cause remanded. The other judges concur. WATAUGA WATER CO. v. WOLFE. Supreme Court of Tennessee, 1897. [99 Tenn. 429.] Caldwell, J. C. H. Wolfe brought this suit against the Watauga Water Company and obtained judgment before tlie circuit judge, sitting without a jur}', for ten dollars, as damages for its refusal to furnish him water at his residence in Johnson City. The company appealed in error. The defendant is a water company, chartered under the general laws of the State (Code, annotated by Shannon, §§ 2499-2506), with the right of eminent domain and all essential powers, privileges, and fran- chises, and operating its waterworks at Johnson City under special contract with that city to furnish it and its inhabitants with water at designated rates. Being thus endowed by the State, and under con- tract with one of the State's municipalities, the company is essentially a public corporation, in contradistinction from a private corporation. It is engaged in a public business, under a public grant and contract, and is, therefore, charged with public duties, and cannot, at Its election and without good reason, serve one member of the community and not another. It is bound to furnish the commodity, which it was created to suppl}', to the city and all of its inhabitants upon the terms desig- WATAUGA WATER CO. V. WOLFE. 387 nated in its contract (the same being fair and reasonable), and witliout discrimination. Crumley v. Watauga Water Co., 98 Tenn. 420 ; Hangen o. Albina Light & Water Co. (Ore.), 14 L. R. A. 424; American Waterworks Co. v. State (Neb.), 30 L. R. A. 447; State V. Butte City Water Co. (Mont), 32 L. R. A. 697 ; Union Tel. Co. v. State, 118 Ind. 206; Lombard v. Stearns, 4 Gush. 60; Lowell v. Boston, 111 Mass. 464; Williams v. Mut. Gas Co., 62 Mich. 499 ; 50 Am. Rep. 266 ; Olmsted v. Morris Aqueduct Proprs., 47 N. J. Law, 333; Shepard v. Milwaiikee Gas Co., 6 Wis. 539; 70 Am. Dec. 479; Spring Valley Waterworks v. Schottler, 110 U. S. 347; New Orleans Gas Co. V. Louisiana Light Co., 115 U. S. 650 ; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; 2 Mor. on Pri. Corp., Sec. 1129; 2 Cook on S. S. & C. L., Sec. 932 ; 1 Dill, on Mun. Corp, (4th ed.), Sec. 52, and note, citing Forster v. Fowler, 60 Pa. St. 27 ; 29 Am. & Eng. Enc. L. 19, note : 15 L. R. A. 322. Though impressed with a public use, and under legal obligation to furnish water to all inhabitants at the designated rates, and without discrimination, the defendant companj- is allowed to adopt reasonable rules for the conduct of its business and operation of its plant, and such rules, so far as they affect its patrons, are binding upon them, and may be enforced by the corapanj-, even to the extent of denying water to those who refuse to complj' with them. American Waterworks Co. V. State (Neb.), 30 L. R. A. 447. Wolfe had been a patron of the companj-, and had been accustomed to leave his h}-drant open, so that large quantities of the escaping water went to waste. His claim was, that the water so wasted was stale and not fit for his use, and upon that ground he sought to justify' his action ; but the company thought the water not stale and the waste excessive. Complaints were made to the company by persons upon whose premises the escaping water flowed. Wolfe ceased to take water from the company for awhile, preferring to use his well. When he applied to the company for water again, tendering all required charges in advance he was requested to sign a regular application, and agree, in conformity to a rule of the company, that he would keep his hydrant closed except when using the water. This he declined to do, and the company refused to turn water into his hj-drant. He said he " wanted pure, good water," and that he " would keep the tube open so long as it was necessary to keep the water fresh." Three days after the company's declination this suit was brought to recover damages. The rule in question was reasonable, and Wolfe's refusal to comply with it disentitled him to receive the water, and relieved the company of its obligation to furnish it. This does not imply that a patron of a water company is not entitled to " pure, good water," but only means that he may not set himself up as the sole judge of its quality, and execute his own adverse judgment in his own way, and without restraint, in defiance of the company, and to its inevitable detriment. It has been held, that " a rule of a water 388 HAKBISON V. KNOXVILLE WATEE CO. company, giving it the right to shut off water from the premises of a consumer who wastes it, is reasonable " (Shiras v. Ewing, 48 Kan. 170) ; and that holding was approved in the case of American Water- works Co. V. State, 30 L. R. A. 449. Beversed, and enter judgment dismissing suit with costs. HAKBISON V. KNOXVILLE WATER CO. Court of Chanoert Appeals of Tennessee, 1899. [53 S. W. Rep. 993.] This bill was filed February, 1899, to enjoin the defendant from cutting off the water supply for domestic purposes from the premises occupied by complainant, and to secure a mandatory injunction com- manding defendant to furnish complainant water for the purpose stated, without requiring him to comply with certain of its rules and regula- tions, characterized in the bill as oppressive and unreasonable. The bill, after stating the location of the premises occupied by complain- ant, and that the defendant was a corporation organized under the laws of this State for the purpose of supplying water to the cityof Knoxville and its inhabitants, avers that, having been given the rights to lay its pipes, &c., in the streets and alleys of the citj- of Knoxville, it is a public corporation, and engaged in a public business. The bill further avers that complainant, soon after he occupied the premises described, commenced taking water from the defendant for domestic purposes, and continued to get water from it until May, 1899, paying in advance therefor, under the rules of the company ; that the hydrant or pipe from which complainant obtained his supply of water was located in his yard, adjacent to his house, and that in Maj', 1898, he, at his own expense, had a faucet put upon his h3'drant, and began to use water for sprinkling his yard and the street adjacent thereto ; that for water thus used he paid the additional charges exacted by the com- pan}', and continued to use water for both domestic and sprinkling purposes until January 1, 1899 ; that at this date he called at the office of the company in Knoxville, and informed its officers that he did not desire to take water for sprinkling purposes, but did desire to take water for domestic purposes, and offered then to pay its charges for water to be thus used ; that his reason for not wishing the water for sprinkling purposes was that during the winter and spring seasons na- ture's rains furnished the water free of charge, and he had no need of an artificial supply for sprinkling purposes. . . . The bill further states that the defendant, February 1, 1899, cut off his domestic supply of water altogether from his premises, because he would not pay its un- just charges in advance. It is alleged that complainant's sole reliance HARBISON V. KNOXVILLE WATER CO. 389 for water is upon the defendant, and that, if it is allowed to cut off the siipplj-, he will be pnt to great cost, expense, and anno3'ance in provid- ing himself with the water necessary for cooking, washing, and other domestic purposes. It is said in the bill that complainant is now com- pelled, in order to supply himself with water for domestic purposes, to get the same from his neighbor's cistern, across the street from him. The charges of the defendant 'for water for domestic purposes arc tendered with the bill. The complainant, however, denies the right of the defendant to cut off his water supplj' because its charges therefor were not paid in advance. He also denies the right of the defendant company to exact from its patrons, as a condition precedent to furnish- ing them with water, its price or charges for said water for three months in advance, or for any otiier period in advance. The rules and Regula- tions of the company in this regard are assailed as unjust, oppressive, and unreasonable. The prayer of the bill is for an injunction compel- ling defendant to abstain f i-om cutting off the water supplj- of complain- ant for domestic purposes, and for a mandatory injunction compelling defendant to furnish complainant water. A decree is also asked estab- lishing and declaring complainant's rights in the premises, under the facts, and especially for a decree compelling the defendant to furnish complainant water for domestic purposes without requiring him to in- jure, remove, or destroy the pipe or faucet placed bj' him upon his hydrant, and without requiring him to take and paj^ for the water for tlie entire season as fixed by defendant, and without requiring him to pay in advance therefor. The rules of the company exacting these requirements are asked to be set aside, as unreasonable and oppressive, and as beyond the power of defendant to establish. An injunction issued under the prayer of this bill. The defendant water company answered the bill in full. Chancellor Kj'le heard the case upon the whole record August 3, 1899. He held that the complainant was not entitled to the relief sought in his bill, nor to anj- relief, and thereupon dismissed the bill, with costs. The defendant thereupon moved the court for a reference to the master to ascertain and report the damages due the defendant, sustained by reason of the injunction sued out. The court, however, was of opinion that this reference should not be executed until after the hearing of the appeal prayed by the complainant. The complainant prayed and was granted an appeal to the Supreme Court, and has assigned errors. The errors assigned are : First. Error in dismissing the bill of com- plainant and in denying him relief. Second. Error in the chancellor in refusing to decree that the defendant could not, as a condition prece- dent to furnishing the complainant water for domestic purposes only, re- quire him to renipve or cut off the threads from the nozzle of his hj-drant. Third. Error in not holding that the defendant had no right, as a condition precedent to furnishing water for domestic purposes, to require him to pay for water for both domestic and sprinkling purposes in advance. Fourth. Error in not holding that the defendant bad no 390 HARBISON V. KNOXVILLE "WATER CO. right, as a condition precedent to furnishing complainant water for sprinkling purposes, to require him to take and to pay for the same for an entire season, extending from April to November of each season. Fifth. Error in not holding that defendant's rules, under and b3- virtue of which it assumed the right to do the tilings above complained of, were unjust, oppressive, harsh, unreasonable, and illegal.^ Wilson, J. The law is well settled that water companies organized and invested with the powers given the defendant company, and obli- gated to furnish cities and their inhabitants with water, are in the na- ture of public corporations, engaged in a public business, and are charged with the public dut3- of furnishing to the cities and their in- habitants water, alike, and without discrimination and without denial, except for ground, and upon suflSeient cause. It is equally well set- tled that such companies, while tlius charged and obligated, may adopt reasonable rules for the conduct of their business and the op- eration of their plants, and such rules are binding on their patrons, and may be enforced, even to the extent of denying water to those who refuse to comply with them. In support of these propositions, we need only refer to the cases of Crumley- v. Water Co., 99 Tenn. 420, 41 S. W. 1058 etseq., and Water Co. v. Wolfe, 99 Tenn. 429, 41 S. W. 1060 et seq. and the opinions therein prepared by Mr. Justice Cald- well, where numerous authorities are referred to and commented on. In these cases the rule is announced that a water company cannot re- fuse to furnish water, upon the tender of its charges therefor, on the ground that the applicant is indebted to it for a previous supply of water, which he refuses or is unable to pay for. It is further announced in tlie latter of the cases that a regulation of the company requiring patrons to keep their hydrants closed, except when using the water, is reasonable, and that a refusal to comply with this rule of the com- pany justifies it in refusing to supply water to the party so refusing, although under legal obligation to do so upon his compliance with its reasonable regulations. The question, therefore, in every case of this character, is the reasonableness or unreasonableness of the rule assailed by the citizen asking for a supply of water, and invoked by the com- pany in justification of its refusal to furnish it. The rules of the com- pany assailed in this case are, in brief: (1) That the citizens shall pay in advance for a quarter of a year for a supply of water for domestic purposes ; (2) that, if the citizen take water for sprinkling purposes, he must do so for the season in each year fixed by the company (that is, from April 1st to November 1st), and pay for the same in advance ; (3) that the company will not furnish water for domestic purposes, although its charges therefor for the quarter are tendered in advance, unless the applicant also takes water for sprinkling purposes, if the application come in the sprinkling season fixed by it, or unless the ap- plicant removes the appliances of his hydrant, or puts it in such con- » This statement of facts is taken from the statement of Wilson, J. — Ed. HAKBISON V. KNOXVILLE WATER CO. 391 dition that he cannot use it to get water for sprinkling purposes. In Tacoma Hotel Co. u. Tacoma Light & Water Co., 3 Wash. 797, 28 Pac. 516, 14 L. R. A. 669, a rule requiring a deposit of money to guarantee the payment of the price of gas used, and authorizing the company to discontinue furnishing gas unless the rule was complied with, was held to be reasonable. In Shiras v. Ewing, 48 Kan. 170, 29 Pac. 320, a rule of the water company to shut off the supply of a patron who wastes it was upheld as reasonable. In People v. Manhattan Gaslight Co., 45 Barb. 136, the rule of the gas company giving it the right to refuse to furnish a customer with gas until he paid his past-due gas bills was held not unreasonable. The holding of the case last cited, we take it, is in conflict with the rule announced in Crumley v. Water Co., supra. The above principle announced in the New York case is also repudiated in the case of Gaslight Co. v. CoUiday, 25 Md. 1. See, also, Lloyd v. Gaslight Co., 1 Mackey, 331. The case of Shepard v. Gaslight Co., 6 Wis. 539, and extended note thereto, give a full and clear statement of the law applicable to the duties and powers of gas companies, whose relations to the public are closely analogous to water companies char- tered to siipplj' cities and their inhabitants with water. In this case it was held that the gas company had the right to make such needful rules and regulations for its own convenience and security, and for the safetj' of the public, as are just and reasonable, and to exact from the consumer of its product a promise of conformity thereto. Under this general principle, it was held that the company had the right to demand security for the gas consumed, or a deposit of money to secure payment therefor. A rule of the compan3-, however, requiring the citizen to agree to free access to his house and premises at all times by the inspector of the company for the purpose of examining the gas appliances, and to remove the meter and service pipe, was held to be too general in its scope, and therefore unreasonable and beyond the power of the company to enforce. A rule of the company reserving to it the right at any time to cut off the communication of the service whenever it found it necessary or deemed it necessary to do so, to pro- tect its works against abuse or fraud, was also held to be unreason- able. In this connection the court said that the companj' must rely for protection against fraud upon the same tribunals that the law pro- vides for individuals. It was further adjudged in the case that the company had no power to impose a penalty for the violation of one of its regulations, and that it had no right to make submission to such penalty a condition precedent to the right of the citizen to be furnished with gas. See, also, the following additional cases for further illus- tration of the general rule, and its application to particular instances : American Water Works Co. v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447; Williams v. Gas Co., 52 Mich. 499, 18 N. W. 236; State V. Nebraska Tel. Co., 17 Neb. 126, 22 N. W. 237 ; City of Rush- ville V. Rushville Nat. Gas Co., 132 Ind. 575, 28 N. E. 853, 15 L. R. A. 321, note, and cases cited; Water Co. v. Adams, 84 Me. 472, 24 392 HARBISON V. KNOXVILLE WATEE CO. Atl. 840, and cases cited. In the case last referred to it was ruled that a regulation of the water company, that one year's rent would be required in all cases, payable In advance, on the 1st day of July each year, was unreasonable and could not be enforced, and therefore a year's rent could not be collected from a partj' who had used water only for a few months. It was further ruled in that case that a con- tract to pay for water according to the regulations of the company would not be implied from a knowledge of such regulations, jf they were unreasonable. A review of these and other authorities shows, we think, that the regulation of the defendant company requiring a prepayment of a quarter's rent for a water supply for domestic purposes is reasonable. We are not dealing with a case where the residence of the consumer is metered, and the exact quantity' used hy him can be measured. In such case the partj- pays for the water actually consumed by him, at the scale of prices fixed by the company, assuming its charges to be reasonable. In the case at bar the complainant gets his water from a hydrant in his j'ard, connected with the service pipe of the company, and the rule of the company fixes the quarter rent. Pacing this rent, he is limited to the consumption of no definite quantitj- of water. The only limitation upon his use of it, so far as we gather from the record, is an implied one, that he must not waste it ; and, if he does waste it, the company, under the authorities cited, can cut off the supplj-. But, in a controversy over this, the courts, we take it, are the tribunals to ultimately settle it, and not the company. Tlie rule or requirement of the company that the party taking and paying for water for domes- tic purposes onlj' must put his hydrant appliances in condition for such use only, and not have it in a condition to use water through and from them for sprinkling pui-poses, unless he pays a reasonable rental for the use for the latter purpose, is, we think, reasonable, and one that the company can enforce. Such a regulation for the sale of its water furnished through hydrants, where the quantity used cannot be or is not measured, is essential to protect the rights and safety of the com- pany, and may be necessary to enable it to meet its obligations to the public, and its duty to furnish water to all inhabitants of the city alike and without discrimination. In determining the reasonableness or un- reasonableness of a rule adopted by a water company chartered to supply a city and its people with water, we must necessarily take into consideration its relation to the city, and its compacted population, and the various elements composing such a population. It has no right to base a rule on the theory that the population, as a whole, is dishonest. But it has the right to adopt a i-ule which, while giving the honest citizen what he pays for, will prevent the dishonest from getting what he never paid for, and never intended to pay for, and said he never wanted. It may be doubted whether the company has the right to make an arbi- trary rule requiring the citizen to pay for water taken through his hydrant for sprinkling purposes for seven months in the year, when he does BROWN V. WESTEEN UNION TELEGRAPH CO. 393 not want it and docs not need it for tliat purpose for that length of time. As we understand the relation of the complainant to the com- pany in respect to this point, under the facts averred in his bill, this question is not necessaril}- in the case. If, when he wants water for sprinkling purposes, he will put his water appliances in condition for its use for this purpose, and apply to the company for water for this |)urpose for a less period of time than for the whole sprinkling season fixed by the companj-, tendering it a reasonable price for the water thus demanded, he will raise and present the question of the reason- ableness or unreasonableness of the rule of the company on this mat- ter assailed by the bill. As we have held, it was the duty of complainant to put his hydrant and its appliances in a condition to get water alone for domestic purposes, when he wanted it onl^- for that purpose. Fail- ing to put them in condition to use water alone for domestic purposes while he wanted water for tliis purpose alone, he had no right to de- mand that the company furnish him water for domestic purposes and agree to furnish him water for sprinkling purposes at some indefinite time in the future, and for an indefinite period thereafter, as he might call for it or need it. Such a demand, it seems to us, ignores the recip- rocal relations and duties existing between city water companies and tlie inhabitants of the cities they are organized to supplj' with water. There is no error in the decree of the chancellor, and it is affirmed, with costs. The other judges concur. BROWN V. WESTERN UNION TELEGRAPH CO. Sdpeeme Court of the Tekritory of Utah, 1889. [6 Utah, 219.] JuDD, J. This is an action brought by the plaintiff against the de- fendant in the District Court at Ogden City. The facts of the case show that on the 8th of April, 1888, between 5 and 6 o'clock in the evening, the plaintiff, a girl about five years old, had her hand badly mashed, and to such an extent that her forefinger of the right hand was broken at the middle joint. It seems that she, together with other children, were engaged plaj'ing upon the turn-table of the railroad at a station, called Promontory, in Box Elder County, Utah Territory, about 50 mile^ north of Ogden Citj-. That when her fatlier discovered her injury, — there being no physician that could be reached nearer than Ogden City, — he at once telegraphed to that city for a physician. To this telegram he received an answer that the pjiysician could not come. Immediately upon the receipt of the telegram from the physician he sent the follow- ing : " Promontor3', April 8th, 1888. To J. R. Brown, Ogden, Utah. — Send doctor on first train. Katy has broken her finger. T. G. 394 BKOWN V. WESTEEN UiTION TELEGKAPH CO. Brown." This telegram was received by the agent of the defendant at Promontory, who was likewise the agent of the railroad, at 6.30 o'clock, Promontory time, — 7.50 Ogden time. Trains left Ogden, going 4est, one at 7 p. m., and one at 11.30 at night. This despatch was "not delivered by the company to Brown until 7.35 a. m. the next day. The testimony sufficiently shows that if the despatch had been delivered to Brown at Ogden, that he would have procured a physician to go to Promontorj", who would have left on the 11.30 train, and arrived at Promontory at 2 o'clock. As it was no physician reached the plaintiff that night, and the next morning ber father took her upon the train, and arrived at Ogden at 10 o'clock on the morning of the 9th. When the father arrived at Ogden he at once took her to the office of a physician and surgeon by the name of Bryant, who found, as lie states, that the fore part of the finger, from where it was broken, was, to use his own language, " dead ; " that by twisting the finger around, or by some other means not entirely described, the circulation had been strangled ; and that he found it in such a condition that it was impossi- ble to re-establish circulation, and that amputation was necessary-, and he amputated it at the middle joint. The action of the plaintiff against the defendant is founded upon the idea that if the despatch sent to Brown had been delivered in proper time a physician would have arrived at Promontory at the hour of 2 o'clock that night after the accident, and that the finger, by proper surgical treatment, could have been saved, and the plaintiff saved of much pain and suffering. This theory of the case is put in issue by the defence and the ground taken is, Jirst, that the proof does not show that the final amputation of the finger was the result of any delay in procuring a phj'sician, and that it was probably the result of the accident which so badly damaged the finger ; and that in any event amputation would have been necessary-, and that the delay and negligence, if any, of the defendant, was not the proximate cause of the loss of the finger, and the pain and suffer- ing ; and therefore tlie defendant alleges that it is not liable ; and for furtiier defence it sets up that the manager of tlie defendant companj' in charge of the office in Ogden had established certain rules with reference to the deliver^' of despatches from that office, and that those rules were reasonable, and that, all other questions aside, it is not liable. It alleges and shows bj- the proof that, the day of the reception of this despatch at Promontory and its transmission to Ogden City being Sunday, its office Iiours were from 8 to 10 o'clock a. m. and 4 to 6 p. m., and that on week-days from 7.30 a. m. to 8 p. m. That this despatch, being received at Ogden at 8 o'clock and 9 minutes, was more than two hours after the office hours established for this office, and, to use ^he language of the brief of the counsel for the defendant, " these hours being reasonable, the company was not bound to deliver the despatch received outside of the hours, no matter what the conse- quences may have been." So far as tlie first point of the defence is concerned, — that is, " that BROWN V. WESTERN UNION TELEGRAPH 00. 395 the proof does not sufficiently show that the result to the plaintiff would have been different had the despatch been delivered," — this court is content to observe that all those matters were submitted fair]3', and under proper instructions by the trial judge to the jury, and, the jury having found against the defendant, the rule of this court is that it will not disturb the verdict of a jury where the evidence tends to support it, and under that rule this case falls. But the more important question arises on the ground as to the right of the defendant to establish rules for its guidance in the delivery of telegrams. It will be remembered that this telegram was received at Promontory, and the money paid for its transmission to the Ogden office, and that it was transmitted in due time to the last-named office ; and the only complaint, when the case is stripped of verbiage, is that the defendant company were guilty of negligence in failing to deliver this telegram when it reached Ogden City from that office to Brown, the person to whom it was sent ; and the direct defence of the defendant is that it was received after its office hours, which it had the right to establish, and that therefore there was no negligence. In other words, the defendant says " that we have the right to establish hours for the transmission and delivery of despatches, and we have the right to judge of the reasonableness of those hours, and that, so long as we are within the observance of the rules and hours which we have established, we are guilty of no negli- gence ; " the argument being that the public is bound to take notice of the hours and rules that " we have established for business." Can thi? contention be sanctioned, is the important question which arises in this case. Whether, if a telegram were tendered the company to be sent by them out of their office hours, they would be bound to receive and send it, is a question with which the court is not now dealing, and upon which it expresses no opinion ; but we are of the opinion that, having received and transmitted this despatch, the measure of diligence to be applied to the conduct of the defendant, with reference to its de- livery, is not to be, and cannot be, decided by any rules or hours that the company may see fit to establish. Whether in the individual case the rules of the company are or are not reasonable, or whether it is or is not guilty of negligence in failing to deliver a message, is a question which the court will not allow the company to decide. It is a funda- mental rule in the administration of remedial justice that courts claim and exercise for themselves the right to adjudge in each individual case as it may be presented the question of whether the parties sued \ are or are not guilty of wrong, with reference to the particular trans- actions under investigation. Whether the rules established by the defendant are reasonable or not, as we have said, is a question to be decided by the court or jury, as the case may be, in each Individual case as it arises. It will not do to say that, because the company has the right to establish rules for its government, therefore those rules determine the question of negligence or no negligence. It must be remembered that this defendant, in offering its services to the public, 396 BKOWN V. WESTERN UNION TELEGEAPH CO. and receiving the monej- of people for sending despatches from one point to another, is, to say the least of it, occupying the position of a public institution. In the language of Chief Justice VVaite, in the case of Munn v. Illinois, 94 U. S. 113 : " When tlie owner of property de- votes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest submit to be controlled by the public for the common good, as long as he maintains the use." This defendant company, by its invita- tion to the public to use its lines for the transmission of messages, impliedly grants to the public an interest in the use of its wires, and, having done this, like all other institutions of like character, its rules and regulations are at all times open to inquiry as to their reasonable- ness, and its conduct is at all times open to inquirj', as to whether it is guilty of negligence or not. We are of the opinion that the question in this case of the reasonableness of these rules of the company was properly submitted to the jury ; and we are also of the opinion that the question of whether this company was guiltj' of negligence in failing to deliver the despatch was properly submitted to the jury ; and in both instances the jurj' found against the defendant. In order that there may be no misunderstanding as to the judgment of tlie court in the case, we lay down the following rule as applicable to the facts in the case : It will be observed tliat this despatch was in plain, unambiguous language. It said: " Send doctor on first train. Katy has broken her finger." When that despatch was received at Promontorj- for transmission, and when it was received at Ogden b\- tlie agents of the defendant, the supreme importance of prompt and active service upon the part of tlie defendant's agents in delivering that telegram was made manifest from its verj' reading, and we hold that the degree of diligence required of the defendant was equal in impor- tance to the emergency of the occasion, and this without any regard to rules and hours established bj' the companj-, as testified to in this regard. It must be kept in mind that this company at Promontory, by its agent, received this despatch, and received the monej' for its transmission, and that it was transmitted to the oflSee at Ogden ; that this despatch was to the effect tliat a child was suffering with>a broken finger ; that it was important that a pliysician and surgeon be imraedi- atel}- sent ; and to allow the defendant, upon the pretext that it was received out of its office hours, to let it lie there until 7.35 the next morning, and then to excuse it from delivery under such circumstances would be the greatest injustice. It would be to put the public at the mercy entirely, or we may say the caprice and will, of public institu- tions, to which they are compelled to resort in the transaction of liusiness. So far as the receipt and delivery of telegrams with refer- ence to commercial transactions are concerned, we do not express an opinion, but we do not hesitate to say tliat when a despatch shown to be received by the company for transmission, which upon its face demonstrates the importance of delivery, as in this case, the deo-ree of WESTERN UNION TELEGRAPH CO. V. NEEL. 397 diligence i9 to be in proportion to the exigencies of tliat case. Nor has the defendant the right to complain at this. It sets itself up as a transmitter of messages for' the public, and it receives franchises from the State, in order that it ma}' do business ; it receives money from the public for the transmission of messages, and, like all other institutions, it should be willing to deal with the public in a fair and just manner, and not undertake to screen itself behind mere office rules and hours, which in all probability are made for the mere convenience of the employees ; and especially in cases like this, where human pain, suffer- ing, and deformation hang upon prompt action. Nor are these views new, but find ample authoritj' in adjudged cases of high respectability. As a sample we cite the cases of Telegraph Co. v. Broesche, 10 S. W. Rep. 734, and Telegraph Co. v. Sheffield, 10 S. W. Rep. 752. Other cases could be cited, but the foregoing are sufficient. The case was fairly submitted b^' the court to the jurj', under instructions in some respects more favorable to the defendant than the law warranted, and we are satisfied that substantial justice has been reached, and the judgment of the court below will be affirmed, with the costs. WESTERN UNION TELEGRAPH CO. v. NEEL. ScPKEME Court of Texas, 1894. [86 Tex. 368.] Gaines, J. " Upon the trial of the above entitled cause in the court below, it was shown, that Jodie Roden, a sister of the appellee Ella Neel, was lying at the point of death at her home near Hope, in Lavaca County ; that a brother of appellee went to the town of Yoakum, where appellant had au office, about 4 o'clock in the morning of July 29, 1891, and caused a telegram to be sent to Cuero to be addressed to Mrs. Neel, care of the Dromgoole Hotel, asking her to come to her sister at once. The telegram was received at Caero abont 4. .50 o'clock, but was not delivered until about 10 o'clock on the same morning. Mrs. Neel set out at once to go to her sister, but Mrs. Roden had died wheir Mrs. Neel arrived. If the telegram had been delivered promptly when it was received at Cuero, Mrs. Neel could have reached her sister before she died. "In defence of this suit for failure to deliver said telegram promptly, the appellant pleaded and proved, that its office hours at Cuero were from 7 o'clock a.m. to 7 o'clock p. m., and that the messenger did not reach the office until 7 o'clock a. m. ; and there was evidence that after this hour the telegram was promptly delivered ; and it alleged that the fixing of office hours was a reasonable regulation, that it was permitted by law to make. 398 "WESTERN UNION TELEGRAPH 00. V. NEEL. " The court charged the jury, in effect, that such regulation was proper, but that the sender of the telegram must either know or be reasonably presumed to know of it, or be informed thereof by defendant's agent. " The defendant then requested the following instruction to the jury: ' All messages to be sent by telegraphic wire are accepted subject to the delays ordinaril3' incurred during transmission; and if the jury believe from the evidence that the defendant company had reasonable office hours, during which it delivered telegraphic messages in the town of Cuero, it was not by law compelled to deliver messages outside of said hours ; and such reasonable business hours were implied in the contract between the plaintiff and defendant companj^, if such contract has been proved, unless specially stated or understood by the parties to said contract that the services to be performed should be performed other- wise than in the usual manner and subject to the usual rules under which the company does business.' " Tlie instruction asked b^- the defendant was pertinent, because if the message had been delivered within a reasonable time after 7 o'clock, the plaintiff would probably not have had time to see her sister before she died." Upon the foregoing statement, which we have quoted from the cer- tificate of the Court of Civil Appeals, the}' submit to us the following questions : " Believing that it has never been authoritatively' settled bj' our Su- preme Court, that it is the dtit}- in such case of the telegraph company to give notice to the sender of a despatch of the office hours at the receiving office, provided they are established and reasonable, and that the message will not be delivered outside of such office hours, we certify for the decision of the Supreme Court, which arises on appeal to this court, whether or not, in the absence of proof of a special con- tract to send and deliver at once, and the absence of actual notice to the sender of the regulation and office hours, the undertaking of the company was to deliver the message at once. " Should the instruction have been given?" We are of the opinion, that under the circumstances stated in the question, it was not the duty of the company to deliver before its office hours, and that the requested charge should have been given. A tele- graph company, from the necessity of the case, must have power to make some regulations for the conduct of its business ; and when such regulations are reasonable, it is generally conceded that a party who contracts with such a company for the transmission of a message is bound by them, provided he has notice of their existence. But whether or not he is bound when he has no notice, is a question which is by no means settled. We concur with the Court of Civil Appeals in holding that the question has never been authoritatively determined in this court. Under the peculiar eircumstances of the case, it was held In Western Union Telegraph Company v. Broesche, 72 Tex. 654, that the fact WESTERN UNION TELEGRAPH 00. V. NEEL. 399 that the company's office at the delivering station was closed at the time the despatch was transmitted, did not exonerate it from liability. But the agent of the company who accepted the message for trans- mission testified, that he knew that the purpose was to notify* the person addressed of the expected arrival of the dead body of the plain- tiffs wife at the railway station, and that unless it was delivered on the same evening the corpse would reach the station before the tele- gram. Having received the plaintiffs money, knowing his object in sending the message, and that that olijeet could only be attained by prompt transmission and delivery to the person addressed, it could not legally urge its rules as to office hours as an excuse for not delivering the despatch until the next da}-. It was properly held estopped to deny that the contract was for an immediate delivery. In the Bruner case, 19 Southwestern Reporter, 149, it would seem that the defence was set up, that at the time the despatch was taken for transmission the office to which it was to be sent was closed ; but we think it is apparent from the opinion that the point before us was not involved. The court in their opinion say: "Appellant accepted the telegram and undertook to deliver it about 9 o'clock at night. It cannot be excused in its failure to perform the contract because its office was practically closed against Alvin, especially since it does not appear that any effort was made to send the message until next morn- ing, when it was too late for the appellee to catch the train to Galveston." Upon the more general question, whether a party to a contract with a telegraph company is bound by the rules and regulations of the com- pany- of which he has no notice, the authorities are not in accord. In Birney v. Telegraph Company, 18 Md. 341, the court say, that a person delivering a message for transmission " is supposed to know that the engagements of the company are controlled by those rules and regulations, and does himself in law engraft them in his contract of bailment, and is bound by them." The doctrine is reaffirmed in Tele- graph Company v. Gildersleeve, 29 Md. 232 ; but is questioned by Judge Thompson in his work on the Law of Electricity (section 212). The law of Marj-land expressly provides that telegraph companies may make rules and regulations, and the opinions in the cases cited la^- stress upon that fact ; but it seems to us, that in the absence of a statute the power is necessarily implied. In Given v. Telegraph Company, 24 Fed. Hep. 119, it was held, in effect, that a telegraph company could establish reasonable office hours, and that the sender of a message was presumed to contract with refer- ence to such a regulation, although it was not known to him at the time that he entered into the contract. In Telegraph Company v. Harding, 103 Ind. 505, the same rule was applied in an action for the recovery of a penalty given by statute for the failure to make prompt delivery of a message ; but the court ex- pressly decline to say that it ought to apply to an ordinary suit for the 400 WESTEEN UNION TELEGTIAPH CO. V. NEEL. recover}' of damages for the breach of a contract to transmit a tele- gram. The court quote from the opinion of Mr. Justice Miller in Given's ease, sitpra^ as follows: " Nor do we see that it is the duty of the "Western Union Telegraph Companj' to keep the emploj-ees of every one of its offices in the United States informed of the time when any other office closes for the night. The immense number of these offices over the United States, the frequent changes among them as to the time of closing, and the prodigious volume of a written book on this subject, seems to make this onerous and inconvenient to a degree which forbids it to be treated as a duty to its customers, for the neglect of which it must be held liable for damages. There is no more obliga- tion to do this in regard to offices in the same State than those four thousand miles awaj', for the communication is between them all and of equal importance." In Behm v. Telegraph Companj-, 8 Bissell, 131, Judge Gresham, in charging the jury, recognized the doctrine, that reasonable regulations as to the number of servants at small stations should be considered in determining the question of diligence in the delivery of a message, and that the absence of a messenger boj- at dinner might be a just excuse for delay in such deliverj'. But see Tel. Co. v. Henderson, 89 Ala. 510. Such are the cases bearing immediately' upon the question submitted for our determination. There are, however, some railroad cases which seem to involve a similar principle. The contract of a railroad com- pany with a passenger is to earrj- him to his point of destination under the contract without unreasonable delay. Yet it is held, that a passen- ger who procures a ticket has no right to demand an immediate carriage, and must wait till the departure of the regular trains. Hurst v. Rail- way, 19 C. B. N. S. 310; Gordon v. Railwaj', 52 N. H. 596. There are delays which grow out of the necessary- regulation of the business, for whicli the carrier cannot be held responsible. If a passenger, on the other hand, be misled bv the company's time table, and buy his ticket upon the faith of it, the company may be held liable for not carrying him according to the table. In an English case of this char- acter the action was sustained on the ground of deceit. Denton v. Railway, 5 El. & Bl. 860. A limit as to the number of its trains and intervals of time more or less extended are obviously indispensable to the conduct of the busi- ness of a railway company. So also with telegraph companies. Although not absolutely necessary, some regulations as to office hours and as to the number of employees at each office are reasonably re- quired for the successful management of their business, both in their own interest and in that of the public in general. It may be to the interest of some individual, upon a particular occasion, or even at all times, that every office of a telegraph company should be kept open at all hours, and tliat the working force should be sufficient to receive and deliver a despatch without a moment's delaj'. So also, it may be to the interest of a vei-y few that an office should be kept at some point SEARS V. EASTEBN RAILBOAD. 401 on the line where an office could not be maintained in any way without a loss to the company. If in the first instance the company should be required to keep the necessary servants to keep its business going at all hours, it would result in the necessity of closing many offices or in the imposition of additional charges upon its customers in general, in order to recoup the loss incident to their being maintained. So on th» other hand, if they should be required to keep offices wherever it might result to the convenience of a few persons, additional burdens upon the general public would in like manner result. It follows, we think, that the public interest demands that these companies should have the power to establish reasonable liours within which their business is to be transacted, and that individual interests must yield. It seems to us, that the reasonableness of a regulation as to hours of business is sufficiently obvious to suggest to the sender of a message who desires its delivery at an unusually- early hour for busi- ness, the proprietj' of making inquir}- before he enters into the contract. In the application of the principles of law to new cases, we should proceed with caution, and therefore we deem it proper to say that our ruling is restricted to the question submitted. "Whether the rule we have announced should be applied to other regulations by telegraph companies, we leave for decision when the question maj- arise. This opinion will be certified in answer to the questions submitted. SEARS V. EASTERN RAILROAD. Supreme Judicial Court of Massachusetts, 1867. [14 Allen, 433.] Action containing one count in contract and one in tort. Each count alleged that the defendants were common carriers of passengers between Boston and Lynn, and that on the 15th of September, 1865, the plaintiff was a resident of Nahaut, near Lynn, and the defendants before then publicly undertook and contracted with the public to run a train for the carriage of passengers from Boston to Lynn at nine and one half o'clock in the evening each week day, Wednesdays andlSatur- days excepted ; and the plaintiff, relying on said contract and under- taking, purchased of the defendants a ticket entitling him to carriage upon their cars between Boston and Lynn, and paid therefor twentj'- five cents or thereabouts, and on a certain week day thereafter, neither Wednesday nor Saturday, namely, on the 15th of said September, pre- sented himself on or before the hour of nine and a half o'clock in the evening at the defendants' station in Boston and offered and attempted to take the train undertaken to be run at that hour, as a passenger, but the defendants negligently and wilfully omitted to run the said train at 26 402 SEAKS V. EASTEBN EAILROAD. that hour, or any train for Lynn, till several hours thereafter ; wherefore the plaintiff was compelled to hire a livery carriage and to ride therein to Lynn by night, and was much disturbed and inconvenienced. The following facts were agreed in the Superior Court. The defend- ants were common carriei-s, as alleged, and inserted in the Boston Dailj' Advertiser, Post, and Courier, from the 15th day of August till the 15th day of September an advertisement announcing the hours at which trains would leave Boston for various places, and among others that a train would leave for Lynn, at 9.30 p. m., except Wednesdays, when it would leave at 11.15, and Saturdays, when it would leave at 10.30. The plaintiff, a resident of Nahant, consulted one of the above papers, about the 9th of September, 1865, for the purpose of ascertain- ing the time when the latest night train would start from Boston for Lynn on the 15th, in order to take the train on that day, and saw the advertisement referred to. On the 15th, which was on Friday, he came to Boston from Lynn in a forenoon train, and in the evening, shortly after nine o'clock, presented himself at the defendants' station in Boston for the purpose of taking the 9.30 train for Lynn, having with him a ticket which previously to September 9th he had purchased in a package of five. This ticket specified no particular train, but pur- ported to be good for one passage in the cars between Boston and Lynn during the year 1865. He learned that this train had been post- poned to 11.15, on account of an exhibition, and thereupon hired a buggy and drove to Lynn, arriving there soon after 10.30. He had seen no notice of any postponement of this train. He once, in 1864, observed a notice of postponement, and heard that the defendants sometimes postponed their late trains. For several years before 1865 the defendants' superintendent had been accustomed occasionally to postpone this train, as often as from once to three times a month, for the purpose of allowing the public to attend places of amusement and instruction, and also upon holidays and other public occasions in Boston ; giving notice thereof by hand- bills posted in the defendants' cars and stations. On the 13tli of Sep- tember, 1865, in pursuance of this custom, he decided to postpone this train for September 15th till 11.15, and on the same day caused notice thereof to be printed and posted in the usual manner. The train was so postponed, and left Boston at 11.15, arriving at Lj-nn at 11.45. The defendants offered to prove, if competent, that this usage of de- taining the train was generally known to the people using the Eastern Kailroad, and that the number of persons generally going by the post- poned train was larger than generally went by the 9.30 train, and was larger on the evening in question ; but at the station in Boston there were persons complaining of the postponement of the train, and leaving the station. It was agreed that, if on these facts the plaintiff was entitled to re- cover, judgment should be entered in his favor for ten dollars, without costs. Judgment was rendered for the defendants, and the plaintiff appealed to this court. SEARS V. EASTEKN KAILROAD. 403 J. L. StacJcpole, for the plaintiff. U. P. Judd, for the defendants. If the plaintiff can maintain any action, it must be upon the count in contract. There was no proof of deceit. Tryon v. Whitmarsh, 1 Met. 1. What then was the nature of the contract between the parties? The ticket merely secured one pas- sage at any time in 1865. This was a contract to carry the plaintiff in the usual way of transporting passengers. It was usual to postpone this train, iu order to give the public greater accommodations. The plaintiff was bound by this usage, whether he knew it or not. If he neglected to inquire as to the custom, it is his own fault. Van Sant- voord V. St. John, 6 Hill, 160; Cheney v. Boston & Maine Railroad, 11 Met. 121; Clark v. Baker, lb. 186; City Bank v. Cutter, 3 Pick. 414; Ouimitv. Henshaw, 35 Vt. 616, 622. If tlie advertisement was an offer to carry passengers at 9.30, this offer was withdrawn on tlie 18th by due notice. M'Culloch v. Eagle Ins. Co., 1 Pick. 278 ; Boston & Maine Railroad v. Bartlett, 3 Cush. 227. The acquiescence in the usage of the defendants by the public for j-ears shows that the notice was sufficient. The plaintiff should have made further inquiry. Booth V. Barnum, 9 Conn. 290 ; Taylor v. Stibbert, 2 Ves. Jr. 437 ; Taylor v. Baker, 5 Price, 306. Chapman, J. If this action can be maintained, it must be for the breach of the contract which the defendants made with the plaintiff. He had purchased a package of tickets entitling him to a passage in their cars for each ticket from Boston to Lynn. This constituted a contract between the parties. Cheney v. Boston & Fall River Raih-oad, 11 Met. 121 ; Boston & Lowell Railroads. Proctor, 1 Allen, 267; Najac V. Boston & Lowell Railroad, 7 Allen, 329. The principal question in this case is, what are the terms of the contract? The ticket does not express all of them. A public advertisement of the times when their trains run enters into the contract, and forms a part of it. Denton v. Great Northern Railway, 5 El. & Bl. 860. It is an offer which, when once publicly made, becomes binding, if accepted before it is retracted. Boston & Maine Raih-oad v. Bartlett, 3 Cush. 227. Advertisements offering rewards are illustrations of this method of making contracts. But it would be unreasonable to hold that advertisements as to the time of running trains, when once made, are irrevocable. Railroad corpora- tions find it necessary- to vary the time of running their trains, and they have a right, under reasonable limitations, to make this variation, even as against those who have purchased tickets. This reserved right enters into the contract, and forms a part of it. The defendants had such a right in this case. But if the time is varied, and the train fails to go at the appointed time, for the mere convenience of the companj' or a portion of their ex- pected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change unless he has had reasonable notice of it. The defendants acted upon this view of their duty, and gave certain notices. Their trains had been advertised 404 SEAES V. EASTERN KAILROAD, to go from Boston to Lynn at 9.30 p. m., and the plaintiff presented himself, with his ticket, at the station to take the train, but was there informed that it was postponed to 11.15. The postponement had been made for tlie accommodation of passengers who desired to remain in Boston to attend places of amusement. Certain notices of the change had been given, but none of them had reached the plaintiff. They were printed handbills posted up in the cars and stations on the day of the change, and also a day or two before. Though he rode in one of tlie morning cars from Lynn to Boston, he did not see the notice, and no legal presumption of notice to him arises from the fact of its being posted up. Brown v. Eastern Railroad, 11 Gush. 101; Malone v. Boston & "Worcester Eailroad, 12 Graj-, 388. The defendants pub- lished daily advertisements of their regular trains in the Boston Daily Advertiser, Post, and Courier, and the plaintiff had obtained his information as to the time of running from one of these papers. If they had published a notice of the change in these papers, we think he would have been bound by it. For as they had a right to make changes, he would be bound to take reasonable pains to inform himself whether or not a change was made. So if in their advertisement they had reserved the right to make occasional changes in the time of running a particu- lar trahi, he would have been bound by the reservation. It would have bound all passengers who obtained their knowledge of the time-tables from either of these sources. But it would be contrary' to the elemen- tary law of contracts to hold that persons who relied upon the adver- tisements in either of those papers should be bound by a reservation of the offer, which was, without their knowledge, posted up in the cars and stations. If the defendants .wished to free themselves from their obligations to the whole public to run a train as advertised, they should publish notice of the change as extensively as the3' published notice of the regular trains. And as to the plaintiff, he was not bound by a notice published in the cars and stations which he did not see. If it had been published in the newspapers above mentioned, where his in- formation had in fact been obtained, and he had neglected to look for it, the fault would have been his own. The evidence as to the former usage of the defendants to make occa- sional changes was immaterial, because the advertisement was an ex- press stipulation which superseded all customs that were inconsistent with it. An express contract cannot be controlled or varied bj' usage. Ware v. Haj'ward Eubber Co., 3 Allen, 84. The court are of opinion that the defendants, by failing to give such notice of the change made by them in the time of running their train on the evening referred to as the plaintiff was entitled to receive, violated their contract with him, and are liable in this action. JudgmerO, for the plaintiff. CHICAGO, B. & Q. R. CO. V. GUSTIN. 405 CHICAGO, B. & Q. E. CO. v. GDSTIN. SUPREMK COUKT OF NEBRASKA, 1892. [35 Neb. 86.1] Maxwell, C. J. . . . The plaintiff below offered in evidence the following bill of lading: " 12-14-86-150 M. Form 71. " Cleveland, Columbus, Cincinnati & Indianapolis Ry. Co. " Edgae Hill, Gen'l Freight Agent, Cleveland, O. "A. S. White, Assist. Gen'l Freight Agent, Cleveland, O. This bill of lading to be presented by consignee without alteration or erasure. Marks, Consignee, Etc. A. J. Gnstin, Lincoln, Neb. This bill of lading contracts rates from to Wann, 111., via , at 25c. per lot and charges advanced at $ . Cleveland, O., 9-8, 1888. Received from the Eberhard Manf. Co., in apparent good order, except as noted, the packages described below (contents and value unknown), marked and con- signed as per One box iron castings $1 25 (Printed across the end : " C, C, C. & I. Ry. Gen'l Freight F. A., Pivi Sch. 8, 1888. E. L. Campbell, per B. This stamps receipts for freight but not for rates. Rate, 292 pr. 100 lbs. Wann, 111., to Lincoln, Neb. Guaranteed by Western road.") which the C, C, C. & I. Ry. agrees to transport with as reasonable despatch as its general business will permit to destination, if on its road, or otherwise to the place on its road where the same is to be delivered to any connecting carrier, and there deliver to the consignee or to such connecting carrier upon the following terms and conditions, which are hereby agreed to by the shipper, and by him accepted as just and reasonable, and which are for the benefit of every one over whose line said goods are transported : " 1st. Neither this compan}-, nor anj' other carrier receiving said property to carry on its route to destination, is bound to carry the same b}' anj- "particular train, or in time for any particular market, and any carrier in forwarding said property from the point where it leaves its line is to be held as a forwarder only. " 2d. Neither this company nor any such other carrier shall be liable for an3- loss of or damage to said property by dangers or acci- dent incident to railroad transportation, or by fires or floods while at 1 This case is abridged. — Ed. 406 ' CHICAGO, B. A Q. K. CO. V. GUSTIN. depots, stations, yards, landings, warehouses, or in transit. And said property is to be carried at owner's risk of leakage, breakage, chafing, loss in weight, or loss or damage caused by changes in weather, or by heat, frost, wet, or decay, and if any portion of its route to destination is by water, of all damages incident to navigation. "3d. Eesponsibility of any carrier shall cease as soon as said property is ready for delivery to next carrier or to consignee, and each carrier shall be liable only for loss or damage occurring on its own line, and in case of loss or damage to such property for which any carrier shall be responsible, its value or cost at time and place of shipment shall govern settlement therefor, unless a value has been agreed upon with shipper or is determined by the classification upon which the rate is based, in which case the value so fixed by agreement or classification shall govern ; and any carrier liable on account of loss of or damage to such property shall have the benefit of any insurance effected thereon by or on account of the owner or consignee thereof. "4th. Such property shall be subject to the necessary cooperage and bailing at owner's cost ; and if the owner or consignee is to unload said property, the delivering carrier may make a reasonable charge per day for the detention of any car after the same has been held twent3--four hours for unloading, and may add such charge to the freight due and hold said property subject to a lien therefor." This bill was objected to, for the reason that there was no evidence of its authenticity and because the company could not bind the C, B. & Q. Railway Company. These objections were overruled and the bill received. It will be observed that the answer of the railroad companj' admits receiving at Wann, Illinois, a box of saddler}' hardware weighing 125 pounds, admits in effect all that is claimed in the petition, except that thej' do not wrongfully withhold the same, and it alleges that the hard- ware is a kind classified as No. 2 in the schedule. There was no error in admitting the bill of lading, therefore. In a case of this kind, where the emploj'ment is not denied, it is probable that the bill is prima facie admissible in evidence, and a denial of its genuineness must be made by the adverse party to require proof on the point, but it is un- necessarj' to determine that point. It appears from the testimonj' that goods are not infrequently labelled, improperly. Thus, common hard- ware in boxes is placed in the fourth class, while saddler}- hardware is classified as No. 2 ; that the companies have inspectors to open the packages and place the goods in the proper class ; that in this instance the inspector opened the box, which was filled with Japanned iron rings, and, as Mr. Gustin had been engaged in the saddlery business, he at once seems to have assumed that the rings were designed for that business, and at once classified the goods as No. 2, the freight on which is eighteen cents per hundred. It is clearly shown that the rings are a new patent designed for a neck yoke for horses, and in no way PHILLIPS V. SOUTHERN KAILWAT. 407 connected with saddlery hardware. Upon this point there is practically no dispute, so that the classification No. 4 is correct, and the rates as shown by the schedule are less than sixty-two cents per hundred, and as Mr. Gustin had offered to pay that sum, he was entitled to recover. There is no error in the record, and the judgment is The other judges concur.* PHILLIPS V. SOUTHERN RAILWAY. SuPEEMK Court of North Carolina, 1899. [124 N. C. 123.2] FuRCHES, J. On the 15th of December, 1896, the plaintiff, intending to take the next train on defendant's road to Hot Springs, in Madison County, entered the defendant's waiting-room at Asheville about eight o'clock at night, with the Intention of remaining there until the depar- ture of the next train on defendant's road for Hot Springs, which would leave at 1.20 o'clock of the next morning. He was informed bj' de-y fendant's agent, in charge of the waiting-room, that according to the rules of the company, she must close the room and that he would have to get out. The plaintiff protested against this, and refused to leave. But when the clerk of defendant's baggage department (Graham) came and told him that he could not staj', and made demonstrations as if he would put him out, he left ; that he had no place to go where he could be comfortable ; that the night was cold ; that he was thinly clad and suffered very much from this exposure, and took violent cold there- from, which ran into a spell of sickness from which his health has been '^ permanently injured. It was in evidence, and not disputed, that the rules of defendant com- pany required the waiting-room to be closed after the departure of defendant's train, and to remain closed until thirty minutes before the departure of its next train ; that, under this rule of the defendant, it was time to close the waiting-room when the plaintiff was ordered to leave the room, and he was informed that it would not be opened again until thirty minutes before the departure of defendant's next train at 1.20 o'clock of the next morning. . . . So the only question that remains is as to whether the defendant had / the right to establish the rule for closing the waiting-room, and was the rule a reasonable one ? And we are of the opinion that the de- y fendant had the right to establish the rule and that it was a reason- able one. Webster v. Fitchburg R. Co., 161 Mass. 298 ; 34 At. Rep. 1 Compare : Savannah Co. v. Bnndick, 94 Ga. 775 ; jSmith v. Findley, 34 Kana. 316 ; Wellington v. R. R., 107 Mass. 582; Express Co. v. Koerner, 65 Minn. 540j Baldwin V. S. S. Co., 11 Hnn, 496; New York Co. v. Gallaher, 79 Tex. 685.— Ed. ' Fait of the opinion is omitted. — Ed. 408 OENE V. BARSTOW. 157; 1 Elliott on Railroads, sections 199 and 200; 4 Elliott on Rail- roads, section 1579. The case would probabl3' be different in the case of through passen- gers, and in the case of delayed trains ; but if so, these would be J exceptions and not the rule. Waiting-rooms are not a part of the ordinary duties pertaining to the rights of passengers and common carriers. But they are established by carriers as aneillaries to the business of carriers and for the accommo- dation of passengers, and not as a place of lodging and accommodation for those who are not passengers. This being so, it must be that the carrier should have a reasonable control over the same, or it could not protect its passengers in said rooms. There is error. Ifew trial. ORNE V. BARSTOW. StTPKEME Judicial Court of Massachusetts, 1900. [175 Mass. 193.] Holmes, C. J. This is a petition to enforce a mechanic's lien. At the trial the copy of the statement put in evidence by the petitioners bore the indorsement " A copy of mechanic's lien, filed with Middlesex So. District Registry of Deeds, Feb. 14, 1898, at 8 h. m. a. m. Recorded book 2633, page 621. Attest: Thos. Leighton, Jr., Ass't , Register." It is agreed that this was not within the thirty days allowed v for filing such statements by Pub. Sts. c. 191, § 6, but evidence was admitted which showed the following facts. The oflSce hours of the registry on Saturdays were from 8 a. m. to 1 p. m. On Saturday, February 12, which was within the thirty- da3-s, between half-past one and two, p. m., the petitioners' attornej', having got into the oflice after it was closed, tendered the statement and the fee to the register, who was there but refused to receive it. By the register's suggestion the attorney thereupon put the statement and fee into an envelope which the register gave him, was escorted to the door by a clerk, and after the door was closed pushed the envelope under the door. He was watched through a glass panel by the clerk, and the fair inference is that the clerk took the envelope, which was on the register's desk on Monday morning. The court ruled not only that the certificate of the register as to the time of filing was conclusive, but also that what was , done by the attorney did not amount to a filing ; and the case is here on exceptions. , There is no doubt that the register's certificate was evidence, if notj conclusive evidence, of the time of filing. Wood v. Simons, 110 Mass. 116 ; Fuller v. Cunningham, 105 Mass. 442. The statement was left OENE V. BAESTOW. 409 for record. Pub. Sts. c. 191, § 7. The register was required to note the time of reception, and every instrument is considered as recorded at the time so noted. Pub. Sts. c. 24, § 15. The register is also to certify the time upon the instrument. Pub. Sts. c. 24, § 21. We do not thinlt that the statutes mean to distinguish between receiving, re- cording, and filing, so far as this case is concerned. We perceive no inconsistency in principle Nvith these general provisions in Pub. Sts. c. 147, § 12, and c. 192, § 4, by which certain instruments are to be considered as recorded at the time when left for the purpose in the clerk's office. It is assumed that the time of leaving and the time noted are the same, or, in other words, that the clerk will note the true time. But the last named sections refer to different instru- ments and to city or town clerks, and do not affect the present case. Neither do we see anything adverse to the conclusiveness of the regis- ter's certificate in decisions that a court is not prevented by its own record, which it has power to correct if erroneous, from looking into the facts as to when a petition was filed. Goulding v. Smith, 114 Mass. 487, 489; Clemens Electrical Manuf. Co. v. Walton, 168 Mass. 304. But in the case at bar the parties very properly avoided raising a question as to the conduct of a register who meant to do his duty (Tracy v. Jenks, 15 Pick. 465, 468) bj- going into the facts, and the judge ruled upon them irrespective of the question whether the cer- tificate was conclusive as it stood. If the judge had ruled that the facts did amount to a filing, and the'ruling had been accepted by the parties, undoubtedly the register would have amended his certificate so as to avoid concluding the petitioners under the other ruling of the judge. At least there was such a possibility that the register might amend that we cannot treat the ruling as immaterial on the ground that, however the facts might be, the petitioners could not contradict tlie register's certificate as to the time. It was not argued that the register would not have power to amend under the same conditions as those on which other officers may amend records. See Baldwin v. Marshall, 2 Humph. 116 ; Sellers v. Sellers, 98 N. C. 13, 18, 19. / We are of opinion that, on the facts proved, the statement was filed '' on Saturday afternoon. We shall go no further in our decision than this case requires. We shall not undertake to decide whether the reg- ister had a right, under Pub. Sts. c. 24, § 12, to close his oflSce as early as he did, so far as to exonerate himself from liability had some one come to the office and found it empty. But he was there. With his knowledge and assent the instrument was left within the enclosure of/ the office or its approach, for the purpose of being recorded. It was taken into his custody bj- his servants or agents. He undertook to refuse legal effect to the deposit, it is true, but in our opinion that was beyond his power. It was the petitioners' right, if they found the reg- ister in his office on a week day and during daylight, to insist on their J statement being filed forthwith, and it is no answer to say that the 410 OENE V. BAESTOW. register might have been absent without liabilitj' under the law. As the petitioners did all that they could do, or were bound to do, the register's conduct did not affect their rights. See Sj'kes v. Keating, 118 Mass. 517, 519 ; Watkins v. Bugge, 56 Neb. 615; Dodge v. Potter, 18 Barb. 193, 202. .Exceptions sustained. FUNDEEBURG V. AUGUSTA AND AIKEN EY. COMPANY. 411 CHAPTER VII. DETEEMINATION OP BEASONABLB RATES. FUNDERBURG v. AUGUSTA & AIKEN RAILWAY COMPANY. SuPRkME Court op South Carolina, 1908. [61 S. E. 1075.1] The circuit court has found in tliis case that " a tender of f 5 to pay a 5 cent fare would be disproportionate to the amount of the fare, and that, under a proper rule on the part of the carrier upon the subject, in existence and actually enforced, the carrier could not be forced to fur- nisli change for so large an amount." He, however, held that such rule had not been brought to the notice of the travelling public, and had been habitually disregarded and waived. This shows that the circuit J court would have regarded as unreasonable the tender to the defendant railroad of 85 for a 5 cent fare, had it been admitted that defendant had promulgated a rule to that effect, and had not waived it. There is therefore no finding below that the rule is unreasonable, and indeed there is no fact appearing in the record to suggest a doubt of its reason- ableness. The difficulty of making change in the cotton picking season in South Carolina is a well-known fact, and the court takes notice of the territory and the thick population and the numerous mill towns along the route between Augusta and Aiken, which renders it probable that numerous fares will be collected on the defendant electric railway between these points on a single trip. To require defendant to furnish change for every bill presented would be unreasonable. The California and New York courts agree upon the proposition ' ?'that a passenger upon a street railway is not bound to tender the , exact fare, but must tender a reasonable sum, and the carrier must ao-V cept such tender, and furnish change to a reasonable amount," but in California the court, in view of local conditions, held that a tender of a gold coin of $5, the lowest gold coin in use in that section, for a 5 cent fare was reasonable (Barrett v. Market St. Ry. Co., 81 Cal. 295, 22 Pac. 859, 6 L. R. A. 336, 15 Am. St. Rep. 62), whereas in New York it is held that conductors cannot be required to furnish change for a $5 bill in payment of street car fare, and that a rule of the company re- J quiring change to be made to the amount of $2 is reasonable (Barker V. R. R. Co., 151 N. Y. 237, 45 N. E. 550, 35 L. R. A. 489, 56 Am. St. 1 An extract from the majority opinion is printed. — Ed. 412 FUNDERBUKG V. AUGUSTA AND AIKEN EY. COMPANY. Eep. 626). Conceding that the conductor had moie than $5 in change at the time plaintiff tendered his bill, that did not make it the con- ductor's duty to so deprive himself of change as to be unable to meet the reasonable requirements of the trip. Suppose he had $6.80 in change at the time. If he had given plaintiff $4.95 of that sum he would thereby have rendered himself unable to give change to the next pas- senger presenting a $2 bill. If he had failed to make change for such next passenger in breach of the rules of the company, would he not have violated the right of such passenger? Could not such passenger say: "You must change my $2 bill, because your rules require it." i Can it possibly- be a wilful breach of duty to the first passenger to de- cline to do that which would reasonably- result in a breach of duty to the second passenger? It is true that a conductor on a number of oc- casions made change for $5, but this was when he had " plentj- of change," and this was not in disregard of the rules, but in strict con- formity thereto. " Plenty of change " does not mean plenty for a sin- J gle transaction, but plenty for the reasonable requirements of the trip. The conductor must necessarily be allowed some discretion in deciding whether he has such an amount in change for the probable demands of the trip as would allow him to change over $2 in a particular case. We fail to find a scintilla of evidence in the record tending to show that the rule of the company had been habitually disregarded and waived. In- deed not one of the witnesses who testified as to seeing the conductor changa a $5 bill previously- to the occasion in question say that it was done after the 4th of November 1907, when the rule was adopted. The rule had been recentlj' adopted before the occasion in question, and possibly it was negligence to fail to give some public notice of it. But, as declared in the New York case above cited, it is not the duty of the i/ carrier to bring home to each passenger a personal knowledge of the existence of a reasonable rule. When notice of the rule was brought home to the plaintiff it was his duty to make an effort to comply, and yet it appears by his own testimony that he knew some of the people on the car, but did not try to borrow a nickel, and there is not a parti- cle of evidence that he made the slightest effort to have his bill changed b}' his fellow passengers. The judgment of the circuit court is reversed, and the case remanded for a new trial. BARRETT V. MARKET STREET RAILWAY. 413 BARRETT v. MARKET STREET RAILWAY. Supreme Court of California, 1889. [81 Cal. 296.'] Action for damages for forcible ejection. Plaintiff tendered con- ductor" of the defendant a five dollar gold piece for a five cent fare. * Tlie conductor refused it and thereupon ejected the plaintiff from the car. Pateeson, J. . . . The question on the merits to which counsel have mainly directed their arguments is, wliether the passenger was bound to tender tlie exact fare. It is argued for the appellant that the rule in / relation to the performance of contracts applies, and that the exact sum must be tendered. But we do not think so. The fare can be demanded in advance as well as at a subsequent time. Civ. Code, sec. 2187. And so far as this question is concerned, we see no dif- ference in principle where the fare is demanded in advance and where it is demanded subsequently'. If it be demanded in advance, there is no contract. The carrier simply refuses to make a contract. Conse- quently the rule in relation to the performance of contracts, whatever it be, has no necessary application. The obligation of the carrier in such case would be that which the law imposes on every common carrier, viz., that he must, " if able to do so, accept and carr}- what- y ever is offered to him, at a reasonable time and place, of a kind that he undertakes- or is accustomed to carr^-." Civ. Code, sec. 2169. This duty, like every other which the law imposes, must have a reason- able performance. And we do not think it would in all eases be reasonable for the carrier to demand the exact fare as a condition of carriage. Suppose that, on entering a street-car, a person should tender the sum of ten cents. Would it I)e reasonable for the carrier to refuse it ? Prior to the act of 1878, the usual fare was six and a quarter cents. In such a case it would be unreasonable for the carrier to demand the exact fare ; for there is no coin in the country which would enable the passenger to answer such a demand. It would be impossible for the passenger to furnish such a sum. Consequentlj-, to allow the carrier to maintain such a demand would be to allow him to refuse to perform the duty which the law imposes upon him. The fare which he is now allowed to charge is no longer the sum mentioned. / The act of 1878 forbids him to " charge or collect a higher rate than five cents." But there is nothing to prevent a lower rate from being charged. The carrier might fix it at four and a quarter cents. And in such a case it would be equally impossible for the passenger to comply with such a demand as in the case above put. Consequently, it will not do to lay down the rule that the passenger is obliged to tender the exact fare. 1 The case is abridged. — Ed. 414 WILLIAMS V. MUTUAL GAS CO. But it does not follow that the passenger raaj' tender any sum, how- ever large. If he should tender a hundred-dollar bill, for example, it would be clear that the carrier would not be bound to furnish change. The true rule must be, not that the passenger must tender the exact fare, but that he must tender a reasonable sum, and that the carrier must accept such tender, and must furnish change to a reasonable amount. The obligation to furnish a reasonable amount of change must be considered as one which the law imposes from the nature of ' the business. Jvdgment for plaintiff.'- WILLIAMS V. MUTUAL GAS CO. SupRKME Court of Michigan, 1884. [52 Mich. 499.] Error to the Superior Court of Detroit. (Chipman, J.) Jan. 22 — Jan. 29. Case. Plaintiff brings error. Affirmed. Sherwood, J. The plaintiff, in the month of November, 1879, re- sided in Detroit and was in possession of and keeping the hotel known as the Biddle House, containing a very large number of rooms, all of which were furnished with gas-pipes and fixtures for the purpose of lighting the same, and which had been so lighted for many years. The defendant corporation was duly organized under the Act of the Legislature for the formation of gaslight companies, approved Febru- ary 12, 1855, and located in Detroit. On the 15th day of November aforesaid the defendant, in pursuance of said Act of the Legislature and the charter and by-laws of Detroit, was and had been for some time previous carrying on the business for which it was organized, supply- ing the citizens at hotels and private dwellings with gas in such quan- tities as desired, and among others had connected its pipes with those of the Biddle House, and for some time previous had been supplying it with gas as its proprietors desired. On that da^- the defendant re- fused to supplj' the Biddle House longer unless its proprietor, the plain- tiff, would keep on deposit witii the company $100. It was receiving at that time about $60 worth of gas per week, and its requirements were increasing. The plaintifi!' regarding the demand as unreasonable, declined to make the required deposit, and tendered the defendant $75 and de- manded that the company should furnish him gas at the Biddle House to that amount. This the defendant refused to do and cut off the ser- vice at the hotel. The plaintiff claims that it was the defendant's duty to furnish hira with the gas required, and upon the terms demanded; that he has suf- 1 Compare: Fulton v. Grand Trunk Co., 17 U. C, Q. B. 428. — Ed. WILLIAMS V. MUTUAL GAS CO. 415 fered great injury to his business in consequence of the defendant's neglect so to do. And he brings his suit in this case to recover his damages. A trial was had in the Superior Court of Detroit, and the judge directed a verdict for the defendant. The plaintiff brings error and the case is now before us on a bill of exceptions containing all the testimony. The questions presented and argued before the judge of the Superior Court by counsel for defendant were — First, the plaintiff could not recover for the reason the defendant was under no legal duty or obli- gation to supply any citizen of Detroit with gas ; and, second, if such duty was imposed upon the defendant, the conditions upon whioli the defendant proposed and offered to perform it were reasonable. The court disagreed with the defendant's counsel in the first position, but sustained them in the second. I agree with the judge of the Superior Court that it is the duty of the defendant, upon reasonable conditions, to supply the citizens of Detroit who have their residences and places of business east of the centre of Woodward Avenue, with gas wher- ever the defendant has connected its mains and service pipes with the pipes and fixtures used at such residences and places of business and the owners or occupants shall desire the same. The defendant is a corporation in the enjoyment of certain rights and privileges, under the statutes of the State and charter and by- laws of the cit}-, and derived therefrom. These rights and privileges were granted that corresponding duties and benefits might inure to the citizens when the rights and privileges conferred should be exer- cised. The benefits are the compensation for the rights conferred and privileges granted, and are more in the nature of convenience than necessitj', and the duty of this corporation imposed cannot there- fore be well likened to that of the innkeeper or common carrier, but more nearly approximates that of the telegraph, telephone, or mill- owner. The company, however, in the discharge of its duty may go^•- ern its action by reasonable rules and regulations, and when it has done so all persons dealing with it, as well as the company itself, must yield obedience thereto. The statute under which the defendant com- pany is organized provides it may ordain and enact by-laws for that purpose; but the record discloses no such action taken on the part of the defendant; neither does it show any general action or custom of the company in making terms with, or for supplying gas to, proprietors of hotels or other persons except as required in this case. The president of the defendant company was sworn and examined, and testified that the defendant made weekly or monthly collections for gas furnished. He further said that the defendant refused to let the plaintiff have a supply for the Biddle House unless he would first sign a contract with the company therefor, and in addition thereto keep on deposit with the company the sum of one hundred- dollars so long as it furnished him with a supply ; that the plaintiff tendered the defendant $75, and demanded that the company should supply the 416 WILLIAMS V. MUTUAL GAS CO. house and offered to give good personal security for paj-ment and per- formance on his part to the extent it should he. furnished or the com- panj- require; and that the company refuse to accept the terms proposed by plaintiff, or furnish his house with gas as required. This corporation is authorized and permitted to do business in De- troit only upon the ground of public convenience, and that benefits may accrue to its citizens. It is true that neither by the charter of the compan)-, its articles of association, or the by-laws of the city authorizing its existence there, has it the exclusive right to manufacture and sell gas. It is, how- ever, within the experience of us all, and I may say, I think, with great propriety, within the judicial knowledge of the courts, that the manu- facture and supply of inflamable gas for the purpose of lighting cities, villages, stores, hotels, and dwellings, is not a domestic or family manu- facture. It is carried on almost exclusively by public or associated capital, and to make it a paying industry requires the exercise and enjoyment of certain rights and franchises only to be acquired from municipal or State authoritj-. Associations of this kind, as has been well said, " are not like trading and manufacturing corporations, the purview of whose operations is as extensive as commerce itself, and whose productions may be transported from market to market through- out the world." It is not a trading corporation, its product is de- signed for the citizen, and the extent to which it is used depends upon home consumption in the immediate neighborhood and communit}- in which the manufacture is wrought. It is in the strictest sense a local commodity, and not commercial. It can onl}- be used by consuming it, and hence can have no place with articles of trade. The success of tlie companj' greatly- depends upon the necessity of the citizens in the vicinit}- of its location, and its operations m&y seriouslj- affect the pub- lic policy and individual convenience of the community. The nature of the article made, the objects of the company, its relations to the community, and the rights and privileges it must necessarily- exercise, give the company a public character, and, to a certain extent, a monop- ol}- which can never be tolerated, only upon the ground of some cor- responding duty to meet the public want. Such dutj- rests upon this defendant, and I think it requires the company to furnish to this plain- tiff, at the Biddle House, the supply of gas demanded, under reason- able rules and regulations, but among all such as might be mentioned, it is with the defendant to adopt and rel}' upon such as it may select. This is its privilege. The duty of the company towards the citizen, and that of the citizen towards the company, is somewhat reciprocal, and any rule or regula- tion or course of dealing between the parties which does not secure the just rights of both ought not to be adopted, and cannot receive the sanction of the courts. When the defendant company made the connection of its service pipes and mains with the pipes and fixtures of the Biddle House, it im- WHEELER V. NORTHERN COLORADO IRRIGATION CO. 417 posed upon itself the duty to supply the house and premises upon reasonable terms and conditions with such amount of gas as the owner or proprietor might require for its use, and pay for, so long as the com- pany should exist and do business. If the defendant, as one of such conditions, required the plaintiff to give sufficient security that he would make such payment and perform such conditions, before making such service, I thing it would have been reasonable, but in the place of such security the defendant de- manded a deposit of money with the companj-, as had been its custom. This the company had a right to do. The condition was a reasonable one. The requirement of a special contract between, the parties, in addition to the deposit of money, may not be unreasonable, still it was quite unnecessary. The law implies all the contract needed, and courts will enforce it in all cases to the extent necessary to secure the rights of the parties. I think the judgment of the Superior Court should be affirmed. The other justices concurred. WHEELER V. NORTHERN COLORADO IRRIGATION CO. Supreme Court op Colorado, 1887. [10 Col. 582.1] Helm, J. . . . The pleadings in the case at bar show that respond- ent is a carrier and distributer of water for irrigation and other pur- poses. That its canal, two years ago, was upwards of sixty miles in length and capable of supplj'ing water to irrigate a large area of land. That relator is one of the land-owners and consumers under the canal, and can obtain water from no other source ; also, that respondent has, undisposed, a sufficient quantity to supplj' his wants. That he ten- dered the sum of $1.50 per acre, the annual rental fixed bj' respondent, i/ and demanded the use of water for the current season, but declined to pay the further sum of 110 per acre also demanded, and to sign a certain contract presented to him for execution. That respondent refused, and still refuses, to grant relator's request, except upon com- pliance with these conditions. The remaining essential facts will Bufflcientli' appear in connection with the specific questions of law presented, as they are' in their proper order discussed. Were the constitution and statutes absolutely silent as to the amount of the charge for transportation, and the time and manner of its col- lection, there would be strong legal ground for the position that the demand in these respects must be reasonable. The carrier voluntarily engages in the enterprise ; it has, in most instances, from the nature 1 This case is abridged. — Ed. 27 418 WHEELEK V. NORTHERN COLORADO IRRIGATION CO. of things, a monopoly of the business along the line of its canal ; its vocation, together with the use of its propert3-, are closely allied to the public interest; its conduct in connection therewith materially affects the community at large ; it is, I think, charged with what the / decisions term a public duty or trust. In the absence of legislation on the subject, it would, for these reasons, be held, at common law, to have submitted itself to a reasonable judicial control, invoked and exercised for the common good, in the matter of regulations and / charges. And an attempt to use its monopoly for the purpose of co- >/ ercing compliance with unreasonable and exorbitant demands would lay the foundation for judicial interference. Munn v. People, 4 Otto, 113, and cases cited ; Price v. Riverside L. L. C, 56 Cal. 431 ; C. & N. W. R. R. Co. «. People, 56 111. 365 ; Vincent v. Chicago & Alton R. R. Co., 49 111. 33. But the constitution is not silent in the particular mentioned. It evinces, beyond question, a purpose to subject this, as other branches of the business, to a certain degree of public control. As we have seen, it provides for a tribunal to which the maximum amount of water rates may be referred, in case of dispute between the carrier and consumer. And I think that, by fair implication, it forbids the carrier's enforcement of unreasonable and oppressive demands in re- lation to the time and manner of collecting these rates. Any other view would accuse the convention of but partialli' doing its work. For the fixing of maximum rates would be protection, grossly inadequate, if either of the parlies might dictate, absolutely, the time and condi- tions of payment. The primary objects were to encourage and pro- tect the beneficial use of water ; and while recognizing the carrier's right to reasonable compensation for its carriage, collectible in a rea- sonable manner, the constitution also unequivocally- asserts the con- sumer's right to its use, upon paj-ment of such compensation. Any unreasonable regulations or demands that operate to withhold or prevent the exercise of this constitutional right b}' the consumer must be held illegal, even though there be no express legislative dec- laration on the subject. The contract which respondent required relator to sign and agree to comply with, as a condition precedent to the granting of his request, contains the following among other conditions : That he buy in ad- vance "the right to receive and use water" from its canal, paying^ therefor the sum of $10 per acre ; also that he further pay "annually in advance, on or before the 1st day in May of each year, such reason- able rental per annum, not less than $1.50 nor more than $4 per acre, as may be established from year to year " by respondent. If we hold respondent to the literal term used in this contract we must declare the $10 exaction illegal. Respondent cannot collect of relator the | sum of $10, or any other sum, for the privilege of exercising his con- ■' stitutional right to use water. But counsel contended in argument that the foregoing expressions, WHEELEE V. NORTHERN COLORADO IRRIGATION CO. 419 quoted from respondent's contract, are not intended to require the payment of $10 per acre for a right to use water. The}- say this $10 is merely a portion of the annual "rental" exacted of consumers in advance for the remaining years of respondent's corporate existence ; that instead of requiring, say, $2.50 per acre for each irrigating sea- son in turn, respondent has seen fit to divide this sum into two parts, collecting $1.50 annually, and the residue of $1 each for the remaining ten years of its corporate life, as one entire sum in advance. This construction of the contract may, under all the circumstances, seem plausible, though I doubt if the courts could accept it ; but if accepted the difficulty under which respondent labors would not be obviated. If the carrier may collect a part of its annual transportation charge in advance for the remaining years of its corporate life, it may collect all. Suppose the company just organized; under counsel's view the consumer may, there being no legislation on the subject, be compelled to pay the cost of delivering water to him for the entire twenty years of its existence, before he can exercise his constitutional right during a single season. But there is nothing in the law obliging him to cultivate his land for any particular period. He may not want the water for twenty years, or it may be utterly impossible for him to advance so large a sum at once. In fact, the majority of those who till the soil are too poor to comply with such a demand ; to say that they must do so or have no water is to deprive them of their right to its use just as efiectually as though the right itself had no existence. It is true these people would not themselves be able to bring water from the natural streams to their farms, and without the carrier they might be compelled to abandon their attempt at agriculture. This consideration, however, only rein- forces the position that a reasonable control was intended. The car- rier must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional right, as well as a private enterprise prosecuted for the benefit of its (jnners. Yet, if such exactions as the one we are now considering are legal, the carrier might, at its option, in the absence of legislation, eflectuate or defeat the exercise of this right ; and we would have a constitutional provision conferring an affirmative right, subject for its efficacy in a given section to the greed or caprice of a single individual or corporation. Besides the extraordinary power mentioned, the carrier would also, under counsel's view, be able to consummate a most unreasonable and unjust discrimination. B. could have water because he can pay for its carriage twenty years in advance ; C. could not have water because he is unable to pay in advance for its carriage beyond a season or two. But, say counsel, C.'s only remedy, and the only remedy of relator and other consumers dissatisfied with the carrier's terms, is by applica- 420 WHEELEE V. NORTHERN COLORADO IRRIGATION CO. tion to the county- commissioners. I replj- : First, that so far as the present case is concerned, this suggestion embodies but little consola- tion. Relator's land is situate in Arapahoe countj-. The statute, as it stood when the proceedings described in the alternative writ took place, did not permit the commissioners of that county to act with rc- ferenceto respondent's canal; while, under the constitution, the com- missioners of no otlier county could exercise the necessary jurisdiction. It was utterly impossible, therefore, for relator to secure relief in the manner pointed out, and if the courts could not take cognizance of the alleged grievance he was wholly bereft of means ol redress. I reply : Second, that the commissioners may be empowered to fix the maximum amount of the rate ; tliat is, they may be authorized to announce a limit beyond which the carrier cannot go. In my judgment, under the constitution they cannot be vested with authority to establish the exact rate to be charged, or to specif}' either the time or conditions of payment. The time and conditions of pa^'ment are proper subjects for legislation. The Legislature doubtless has author- ity to say that the rate, whether the carrier adopt the maximum fixed by the commissioners or establish one below such limit, shall be col- lected annually in advance of each irrigating season ; or it can make any other reasonable regulations in these respects. But the legislature itself cannot establish the unreasonable rule we have been consider- ing, which enables the carrier to accomplish a wholesale discrimination between consumers, and deny, if it chooses, to a majority of therh, the rigiits secured them by the constitution. A regulation or rule entailing such results, whether established by the legislature or carrier, must be regarded as within a constitutional inhibition. This conclu- sion is not based merel}- upon the ground of private inconvenience or hardship; it rests, as will be observed, upon the higher and stronger ground of conflict with the beneficent purpose of our fundamental law. A further consideration worthy of mention in passing, bearing at least upon the unreasonableness of the view urged upon us, is the position of the consumer who pays the charges for twenty years iil advance. What assurance has he that the carrier can or will keep its engagement during that period ? Its business is attended with con- siderable hazard, and requires large and continuing expenditures of money. The consumer may find himself without water, and depend- ent, for the recovery of his large advancement, upon the doubtful experiment of suit against an insolvent company. To say that the courts may not interfere, under the circumstances above narrated, is to say that the clear intent of the constitution in relation to a constitutional right may be disregarded with impunity, simply because no express inhibitory constitutional or statutory provi- sion on the subject can be found ; also that, for a like reason, one charged witli an important duty may condition its performance upon unreasonable and oppressive demands. WHEELEU V. NORTHERN COLORADO IRRIGATION CO. 421 I do not usurp the province of the Legislature b}- declaring what would be reasonable requirements as to the time and manner of collect- ing water rates. My position is that, for the reasons given, respond- ent's demand of $10 per acre, as an advance paj-meut of part of the transportation charge for the remaining j'ears of its corporate life, is illegal as well as unreasonable and oppressive. Respondent's enterprise is of great public importance and benefit. The original construction of its canal cost large sums of money, and its running expenses are necessarily heavy. For a consi corporations are private, and, in the nature of their business, are subject to and bound b3- the doc- trine of common carriers, yet, beyond that, and in a peculiar sense, they are intrusted with certain functions of the government, in order to afford the public necessary means of transportation. The bestowment of these franchises is justified only on the ground of the public good, and they must be held and enjoyed for that end. This public good is common, and unequal and unjust favors are entirely inconsistent with the common right. So far as their duty to serve the public is concerned, they are not only common carriers, but public agents, and in their very constitution and relation to the public, there is necessarily implied a duty on their part, and a right in the public, to have fair treatment and immunity from unjust discrimination. The right of the public is equal in every citizen, and the trust must be performed so as to secure and protect it. Every trust should be administered so as to afford to the cestui que trust the enjoyment of the use intended, and these railroad trustees must be held, in their relation to the public, to such a course of dealing , as will insure to every member of the community the equal enjoyment V of the means of transportation provided, subject, of course, to their reasonable ability to perform the trust. In no other way can trade and commercial interchange be left free from unjust interference. On this latter ground, that part of the contract in question is illegal. The judgment of the Supreme Court must be affirmed. 492 SILKMAN V. WATEK COMMISSIONERS. SILKMAN V. WATER COMMISSIONERS. Court of Appeals, New Yoek, 1897. [152 N. Y. 327.1] Appeal from a judgment of the General Term of the Supreme Court in the second judicial department, entered August 3, 1893, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint upon the merits on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. Martin, J. . . . The claim of the plaintiff, that the rents established by the defendant were not authorized by the act incorporating it, can- not be sustained. In broad terms, the act conferred upon the defend- ant the power to establish a scale of rents to be charged and paid for the use and supplj' of water, having reference to matters referred to in the statute, among which was the consumption of water. The objec- tion made here is that the persons who consumed large quantities of water were not charged as much per hundred cubic feet as those who consumed a less amount. Under this statute the question of consump- tion was one of the elements to be considered in determining the rates. Surely, it cannot be said to be unreasonable to provide less rates where a large amount of water is used than where a small quantity is con- sumed. That principle is usually present in all contracts or established rents of that character. It will be found in contracts and charges re- lating to electric lights, gas, private water companies, and the like, and is a business principle of general application. We find in the rates as they were established nothing unreasonable, or that would in any way justify a court interfering with them. It follows that the decisions of the courts below were correct, and should be affirmed. The judgment should be affirmed, with costs. All concur. Judgment affirmed. 1 This case is abridged. — Ed. ^ si WESTERN UNION TELEGRAPH CO. V. CALL PUBLISHING CO. 493 WESTEEN UNION TELEGRAPH COMPANY v. CALL PUBLISHING COMPANY. Supreme Court of the United States, 1901. [181 U. S. 92.1] This was an action commenced on April 29, 1891, in the district court of Lancaster Conntj-, Nebraska, by the Call Publishing Company to recover sums alleged to have been wrongfully charged and collected from it by the defendant, now plaintiff in error, for telegraphic services rendered. According to the petition the plaintiff had been engaged in publishing a daily newspaper in Lincoln, Nebrasija, called The Lin- coln Daily CalL The Nebraska State Journal was another newspaper published at the same time in the same city, by the State Journal Com- pany. Each of these papers received Associated Press dispatches over the lines of defendant. The petition alleged: "4th. That during all of said period the defendant wrongfully and unjustly discriminated in favor of the said State Journal Company and against this plaintiff, and gave to the State Journal Company an undue advantage, in this : that while the defendant demanded, charged and collected of and from the plaintiff for the services aforesaid seventy-five dollars per month for such dispatches amounting to 1500 words or less daily, or at the rate of not less than five dollars per 100 words daily per month it charged and collected from the said State Journal Company for the same, like and contemporaneous services only the sum of $1.50 per 100 words daily per month. Mr. Justice Brewer. The case, therefore, was not submitted to the jury upon the alleged efficacy of the Nebraska statute in respect to discriminations, but upon the propositions distinctly stated, that where there is dissimilarity in the services rendered a difference in charges is proper, and that no recovery can be had unless it is shown, not merely that there is a difference in the charges, but that that dif- ference is so great as, under dissimilar conditions of service, to show an unjust discrimination, and that the recovery must be limited to the amount of the unreasonable discrimination. No one can doubt the inherent justice of the rules thus laid down. Common carriers, whether engaged in interstate commerce or in that wholly within the State, are performing a public service. They are endowed by the State with some of its sovereign powers, such as the right of eminent domain, and so endowed by reason of the public ser- vice they render. As a consequence of this, all individuals have equal rights both in respect to service and charges. Of course, such equality of right does not prevent differences in the modes and kinds of service and different charges based thereon. There is no cast iron line of uni- formity which prevents a charge from being above or below a particular sum, or requires that the service shall be exactly along the same lines. • Only an extract is printed, — Eb. 494 GOODEIDGE V. UNION PACIFIC RAILWAY COMPANY. But that principle of equality does forbid any difference in charge which is not based upon difference in service, and even when based upon dif- ference of service, must have some reasonable relation to the amount of difference, and cannot be so great as to produce an unjust discrim- ination.^ GOODEIDGE v. UNION PACIFIC EAILWAT COMPANY. ClRCtriT COUKT OP THE UNITED STATES, 1889. [37 Fed. 182.2] At law, on demurrer to answer. Hallett, J. From all this it is apparent that the answer sets up certain considerations received by the defendant from the Marshall Company, upon which less rates are given to the latter than to other shippers. And these considerations are not in the way of a charge for carr5-ing coal upon which any estimatb can be made to ascertain the amount of such charge. Whether we refer to the claim for damages against the Denver & Western Companj', or to the matter of furnishing coal for defendant's use, or to anj' other consideration for the contract, it is plain that there is no basis of calculation other than the rate fixed in the contract itself. It is not possible to say how much, if anything, should be added to the contract price of carrying coal on account of the claim for damages against the Denver & Western Company, or on ac- count of canceling the contract with the Union Coal Company, or on account of furnishing coal at cost for defendant's use, or on account of furnishing coal for sale, at a reduced price, or on account of any other matter mentioned in the answer. The whole answer amounts only to this : that the Marshall Company is allowed less rates than other ship- pers are required to paj' upon considerations which are satisfactory to defendant. And it is obvious that this is no answer to a complaint of I unlawful discrimination. 1 Compare : Schofield v. Lake Shore & M. S. Ry. Co., 43 Oh. St. 571, accord.; and Concord & P. R. R. Co. v. Forsaith, 59 N. H. 122, contra. ^ Only an extract is printed. — Ed. 818i TONS OF COAL. 4Eo 318J^ TONS OF COAL. District Court of the United States (Conn.), 1877. Circuit Court of the United States, 1878. [U Blatch. 453.] Libel in rem for freight and demurrage. The libellants carried a cargo of coal to New Haven, to be delivered to the Glasgow Co. at the Canal Railroad Dock. The consignee was located near the line of the railroad in Massachusetts. It was the custom of 'the port for coal, thus consigned to a railroad wharf, to be shovelled from the hold of the vessel into large buckets, let down and hauled up by a steam derrick, which discharged them into the cars of the railroad. Prior to 1871, the shovellers who filled the buckets had been hired and paid by the master of the vessel. In that year the Canal Bailroad Co. made a rule that it would thereafter supply all coal vessels with shovellers, at ten cents a ton, and that no vessel could discharge except by using shovellers thus supplied. Ten cents a ton was then the ordinarj' rate of wages for such services, but in 1876 charges of shovellers fell, and they could be hired for eight cents. The libellants thereupon hired shovellers at eight cents, and refused to receive those furnished by the company, unless they would work at the same rate. The company for this cause refused to allow the cargo to be unloaded, and it was discharged at a neighboring wharf, after some delay, and there libelled. Shipman, J. If the rule is valid and reasonable, there was no de- livery of the coal. If the rule is invalid or unreasonable, there was a delivery, or its equivalent, an offer and tender of delivery to the person entitled to receive the coal, at the usual and reasonable time and place, and in the reasonable manner of delivery, and a refusal to accept on the part of the railroad company. In the latter event, the contract of affreightment was complied with by the libellants, and freight was earned. No question was made as to the liabilitj' of the defendants under the bill of lading, for freight, in case the railroad company im- properly refused to receive the coal. The bill of' lading required de- livery to the defendants at the Canal Dock. It is admitted that the company, upon notification that the coal was ready to be discharged, 496 818J TONS OF COAL. replied that said cargo might be forthwith discharged, and would be received by it for the defendants. The railroad company is not merely an owner of a private wharf, having restricted duties to perform towards the public. Such a wharf owner may properly construct his wharf for particular kinds of business, and may make rules to limit and to restrict the manner in which his property shall be used ; (Croucher v. Wilder, 98 Mass. 322 ;) but the railroad company is a common carrier, and its wharf, occupied by rail- road tracks, is the place provided by itself for the reception of goods which must be received and transported, in order to comply with its public obligations. The coal was to be received from the vessel by the railroad companj', as the carrier next in line, and thence carried to its place of destination. The question which is at issue between the par- ties depends upon the power of a common carrier to establish rules which shall prescribe by what particular persons goods shall be deliv- ered to him for transportation. "Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to con- vey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price. ... As they hold themselves to tlie world as common carriers for a reasonable compen- sation, they assume to do, and are bound to do, what is required of them in the course of their employment, if they have the requisite con- venience to carry, and are offered a reasonable or customar3' price ; and, if they refuse, without some just ground, they are liable to an action." (2 Kent's Comm. 599.) A common carrier is under an obli- gation to accept, within reasonable limits, ordinary goods which may be tendered to him for carriage at reasonable times, for which he has accommodation. (Crouch v. L. & N. W. Railway Co., 14 C. B. 255.) The carrier cannot generally discriminate between persons who tender freight, and exclude a particular class of customers. The railroad company could not establish the rule that it would receive coal only from certain barge owners, or from a particular class of barge captains. It carries " for all people indifferently." But, while admitting this duty, the company' has declared that, for the convenience of the public, and in order to transport coal more expeditiously, and to avoid delays, it will receive such coal only, from barges at its wharf, as shall be de- livered through the agency of laborers selected 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 service, so far as the shovelling is concerned, is performed, not upon the property of the railroad company, but upon the deck of the vessel. The company is virtually saying to the barge owner, You shall employ upon your own property, in the service which you are bound to render, and for which you must pay, only the laborers whom we designate, and, though our general duty is to receive all ordinary goods delivered at reasonable 818i TONS OF COAL. 497 times, we will receive onlj' those goods which may be handled by per- sons of our selection. The law relating to carriers has not yet permitted them to impose such limitations upon tlie reception or acceptance of goods. The carrier may properly impose reasonable restrictions in re- gard to the persons by whom he shall deliver goods to the consignee or the carrier next in line. The delivery of goods is the duty of the carrier, for which he is responsible, and should be in his own control. (Beadell v. Eastern Counties R. Co., 2 C. B. N. S. 509.) It would not be contended that the railroad company could designate the crew upon the barge, or could select the barge captains, and I am of opinion that it has no more authority over tlie selection of the other employees of the barge owners. The fact that the barge owners are using, for a compensation, the derricks and* tubs of the railroad company, is not material. The berths under the derricks have been designated by the companj-, as proper places where coal is to be received, and, under reasonable circumstances as to time, and freedom from interference with prior occupants, the incoming barges properlj- occupy such posi- tions. Delivery is impracticable at the places designated by the companj' for deliver}', without the use of the railroad company's machinery. It is true, that, under this rule, the delivery of coal into the cars of the railroad company has been more expeditiously performed, and has been attended with fewer delays than formerly, and that the rule has been a convenience to the consignees, but the convenience of the prac- tice is not, of itself, an adequate reason for compelling its enforcement, if it interferes with the legal rights of others. I am not prepared to say, that, for the orderly management of an extensive through freight- ing business by means of connecting lines, and for the systematic and efficient transportation of immense quantities of goods, it may not hereafter be found a necessity that one or the other of the connecting lines shall be furnished with the power which is now sought by the rail- road company ; but, in the present condition of the coal traffic at the port of New Haven, this necessity does not exist. The power is a convenience to the railroad company'. It is not a necessity for the transaction of business. It is not necessary' to consider the inconveniences which may flow from the rule, but the case discloses one practical inconvenience which may arise. The rule presupposes that the same price is to be charged by the employees furnished by the railroad company, which is gener- ally paid by othefs for the same service. When prices are unvarying, no serious trouble results. There is no alternative, however, for the barge owners, but to pay the price which the railroad company declares to be the general price, or else submit to a refusal on the part of the railroad company to accept the coal. The barge captain may be able to obtain the service at a reduced rate, as he could have done in this case, but he must pay his own employees the regular tariff which the company has established, and then have the question of rates deter- 32 498 318i TONS OF COAL. mined by litigation. The result would be, that annoying litigation or vexatious altercations would ensue. If the barge owners are to make the payment, they should have an opportunity to make their own con- tracts, and to take advantage of changes in the price of labor. As matter of law, it is held that the rule is invalid, and that a valid delivery was made of the coal, whereby freight was earned in accord- ance with the terms of the contract. "Damages in the nature of demurrage are recoverable for detention beyond a reasonable time, in unloading only, and where there is no express stipulation to pay demurrage." (Wordin v. Bemis, 32 Conn. 268.) The libellants are entitled to a decree for the freight at the rate mentioned in the bill of lading, less $19.55, the amount paid, to wit, the sum of 6171.55, and for damages in the nature of demurrage, for a' detention for six days, being $114.66. The claimants appealed. Simeon E. Baldwin and William K. Townsend, for the libellants. Johnson T. Piatt, for the claimants. Blatchfokd, J. The decision of this case in the District Court was placed upon the ground that the New Haven and Northampton Com- panj', as a common carrier, had no right to impose on the canal-boat the requirement that it should, as a condition of the right to place the coal in the tubs of the company, attached to the company's derrick, employ, to place it there, shovellers designated b^- the company, and pay such shovellers the rate of compensation fixed by the company for such service. It is contended, in this court, b3' the claimants, that the District Court ignored the status of the compan3- as a wharf owner ; that the company, as the owner of the wharf, had the right to make reasonable rules in regard to the use of the wharf; that the company had a right, by statute, to exact seven cents per ton for coal discharged at its wharf, as wharfage ; that the libellants' boat was not charged anj- such wharfage ; that the use by the boat of the facilities provided bj- the company, in the way of derricks, hoisting engines, etc., is the use of the wharf; that all which the company- did was to refuse to allow the boat to use those facilities, and thus use the wharf, unless it would permit the coal to be shovelled into the tubs by men designated by the company ; and that this was onlj- a reasonable regulation made by the companj-, as a wharf owner. The difficulty with this view of the case is, that the regulation was not sought to be enforced, in fact, as a regulation of wharfage, or of the use of the wharf by the boat. There was no charge made against the boat for the privilege of making fast to the wharf; and, if any payment was to be made for the use of the wharf, by depositing the coal on the wharf, it was to be made bj- the claimants, who were the owners of the coal and the employers of the company. According to the well understood acceptation of a bill of lading such as the one in question here, where the coal was deliverable "to Glasgow Co., Canal Dock, New Haven," — the Glasgow Company being a mill owner at a place on the line of the railroad company, and HAYS V. THE PENNSYLVANIA COMPANY. 499 the latter company being the owner of the Canal Dock at New. Haven, with its tracks running to and on the dock, and having derricks and engines for hoisting the coal in tubs from the deck of the boat to the ears on the tracks, — the coal was delivered by the boat into the tubs, and the boat paid the company so much per ton for hoisting the coal and dumping it into the cars. The boat had nothing to do with paying anything for the use or occupation of the wharf by the coal, and it paid separately for the hoisting. If the company had a right to charge the boat for tying up to, and using the spiles on, the wharf, ho such charge was made. There was, therefore, no foundation for the requirement as to the shovellers, in any relation between the company as a wharf owner and the boat. The imposition of the requirement by the claimants' agent, as a common carrier, was not a reasonable one. In regard to this I concur entirely with the views of the District Judge, in his decision in the court below. He found that the regulation was not a necessary one. If it had been necessary and indispensable, it would have been reason- able. It might, indeed, have been reasonable without being necessary. But, to be reasonable, it mus be reasonable as respects both parties. In the present case, the effect of the requirement was to impose on the boat an unnecessary espense of two cents per ton of coal, for shovelling into the tubs. There must be a decree for the libellants, in aflSrmance of the decree below, with costs. HAYS V. THE PENNSYLVANIA COMPANY, Circuit Court of the United States, N. Ohio, 1882. [12 Fed. 309.] Baxter, C. J. The plaintiffs were, for several years next before the commencement of this suit, engaged in mining coal at Salineville and near defendant's road, for sale in the Cleveland market. They were wholly dependent on the defendant for transportation. Their com- plaint is that the defendant discriminated against them, and in favor of their competitors in business, in the rates charged for carrying coal from Salineville to Cleveland. But the defendant traversed this allega- tion. The issue thus made was tried at the last term of the court, when it appeared in evidence that defendant's regular price for car- rying coal between the points mentioned, in 1876, was $1.60 per ton, with a rebate of from 30 to 70 cents per ton to all persons or com- panies shipping 5,000 tons or more during the year, — the amount of rebate being graduated by the quantity of freight furnished by each shipper. Under this schedule the plaintiffs were required to pay higher rates on the coal shipped bj* them than were exacted from other and rival parties who shipped larger quantities. But the defend- 500 HAYS V. THE PENNSYLVANIA COMPANY. ant contended, if the discrimination was made in good faith, and for the purpose of stimulating production and increasing its tonnage, it was both reasonable and just, and within the discretion confided by law to every common carrier. The court, however, entertained the contrary opinion, and instructed the jury that the discrimination com- plained of and proven, as above stated, was contrary to law, and a wrono- to plaintiffs, for which they were entitled to recover the dam- ages resulting to them therefrom, to wit, the amount paid by the plaintiffs to the defendant for the transportation of their coal from Salineville to Cleveland (with interest thereon) in excess of the rates accorded by defendant to their most favored competitors. The jury, under these instructions, found for the plaintiffs, and assessed their damages at $4,585. The defendant thereupon moved for a new trial, on the ground that the instructions given were erroneous, and this is the question we are now called on to decide. If the instructions are correct the defendant's motion must be overruled ; otherwise a new trial ought to be granted. A reference to recognized elementary principles will aid in a cor- rect solution of the problem. The defendant is a common carrier by rail. Its road, though owned bj' the corporation, was nevertheless constructed for public uses, and is, in a qualified sense, a pubUo highway. Hence everybody constituting a part of the public, for whose benefit it was authorized, is entitled to an equal and impar- tial participation in the use of the facilities it is capable of affording. Its ownership by the corporation is in trust as well for the public as for the shareholders ; but its first and primary obligation is to the public. We need not recount all these obligations. It is enough for present purposes to say that the defendant has no right to make unreasonable and unjust discriminations. But what are such dis- criminations? No rule can be formulated with sufficient flexibility to applj' to every case that maj' arise. It ma3-, however, be said that it is only when the discrimination enures to the undue advantage of one man, in consequence of some injustice inflicted on another, that the law intervenes for the protection of the latter. Harmless discrimi- nation may be indulged in. For instance, the carr3-ing of one person, who is unable to pay fare, free, is no injustice to other passengers who may be required to paj' the reasonable and regular rates fixed by the company. Nor would the carrying of supplies at nominal rates tO communities scourged by disease, or rendered destitute by floods or other casualty, entitle other communities to have their supplies carried at the same rate. It is the custom, we believe, for railroad companies to carry fertilizers and machinery for mining and manufacturing pur- poses to be employed along the lines of their respective roads to de- velop the country and stimulate productions, as a means of insuring a permanent increase of their business, at lower rates than are charged on other classes of freight, because such discrimination, while it. tends to advance the interest of all, works no injustice to any one. Freight HAYS V. THE PENNSYLVANIA COMPANY. 501 carried over long distances may also be carried at a reasonably less rate per mile than freight transported for shorter distances, simply because it costs less to perform the service. For the same reason passengers may be divided into different classes, and the price regulated in accord- ance with the accommodations furnished to each, because it costs less to carry an emigrant, with the accommodations furnished to that class, than it does to carry an occupant of a palace car. And for a lilfe reason an inferior class of freight may be carried at a less rate than first-class merchandise of greater value and requiring more labor, care, and responsibility in the handling. It has been held that 20 separate par- cels done up in one package, and consigned to the same person, may be carried at a less rate per parcel than 20 parcels of the same character consigned to as many different persons at the same destination, because it is supposed that it costs less to receive and deliver one paclfage con- taining 20 parcels to one man, than it does to receive and deliver 20 different parcels to as many different consignees. Such are some of the numerous illustrations of the rule that might be given. But neither of them is exactly like the case. before us, either in its facts or principles involved. The case of Nicholson v. G. W. R. Co., 4 C. B. (N. S.) 366, is in its facts more nearly like the case under con- sideration than any other case that we have been able to find. This was an application, under the railway and traffic act, for an injunction to restrain the railroad company from giving lower rates to the Ruabon Coal Company than were given to the complainant in tliat case, in the shipment of coal, in which it appeared that there was a contract be- tween the railroad company and the Ruabon Coal Company-, whereby the coal company undertook to ship, for a period of 10 years, as much coal for a distance of at least 100 miles over defendant's road as would produce an annual gross revenue of £40,000 to the railroad company, in fully loaded trains, at the rate of seven trains per week. In passing on these facts the court said that in considering the question of undue preference the fair interest of the railroad companj- ought to be taken into the account ; that the preference or prejudice, referred to by the statute, must be undue or unreasonable to be within the prohibition ; and that, although it was manifest that the coal company had many and important advantages in carrj-ing their coal on the railroad as against the complainant and other coal owners, still the question re- mained, were the^' undue or unreasonable advantages? And this, the court said, mainly depended on the adequacy of the consideration given by the coal company to the railroad company for the advantages afforded by the latter to the coal company'. And because it appeared that the cost of carrying coal in fully loaded trains, regularly furnished at the rate of seven trains per week, was less per ton to the railway company than coal delivered in the usual waj-, and at irregular intervals, and in unequal quantities, in connection with the coal company's undertaking to ship annually coal enough over defendant's road, for at least a distance of 100 miles, to produce a gross revenne to the railroad of 502 HAYS V. THE PENNSYLVANIA COMPANY. £40,000, the court held that the discrimination complained of In the case was neither undue nor unreasonable, and therefore denied the application. This case seems to have been well considered, and we have no dis- position to question its authorit3-. Future experience may possibly call for some modification of the principle therein announced. But this case calls for no such modification, inasmuch as the facts of that case are very different, when closely anal^-zed, from the facts proven in this one. In the former the company, in whose favor the discrimi- nation was made, gave, in the judgment of the court, an adequate con- sideration for the advantages conceded to it under and in virtue of its contract. It undertook to guaranty £40,000 worth of tonnage per year for 10 years to the railroad company, and to tender the same for ship- ment in fully loaded trains, at the rate of seven trains per week. It was in consideration of these obhgations — which, in the judgment of tlic court, enabled the railroad companj- to perform the service at less expense — the court held that the advantages secured by the contract to the coal corapanj' were neither undue nor unreasonable. But there are no such facts to be found in this case. There was in this case no undertaking by anj' one to furnish any specific quantity- of freight at stated periods ; nor was any one bound to tender coal for shipment in fully loaded trains. In these particulars the plaintiffs occupied com- mon ground with the parties who obtained lower rates. Each tendered coal for transportation in the same condition and at such times as suited his or their convenience. The discrimination complained of rested ex- clusively on the amount of freight supplied by the respective shippers during the year. Ought a discrimination resting exclusively on such a basis to be sustained? If so, then the business of the country is, in some degree, subject to the will of railroad officials ; for, if one man engaged in mining coal, and dependent on the same railroad for trans- portation to the same market, can obtain transportation thereof at from 25 to 50 cents per ton less than another competing with him in business, solely on the ground that he is able to furnish and does furnish the larger quantity for shipment, the small operator' will sooner or later be forced to abandon the unequal contest and surrender to his more opulent rival. If the principle is sound in its application to rival parties engaged in mining coal, it is equally applicable to merchants, manufacturers, mil- lers, dealers in lumber and grain, and to everybody else interested in any business requiring any considerable amount of transportation by rail ; and it follows that the success of all such enterprises would de- pend as much on the favor of railroad officials as upon the energies and capacities of the parties prosecuting the same. It is not difficult, with such a ruling, to forecast the consequences. The men who control railroads would be quick to appreciate the power with which such a holding would invest them, and, it may be, not slow to make the most of their opportunities, and perhaps tempted to favor their friends to the detriment of their personal or political opponents ; MENACHO V. WARD. 503 or demand a division of the profits realized from such collateral pur- suits as could be favored or depressed by discriminations for or against them ; or else, seeing the augmented power of capital, organize into overshadowing combinations and extinguish all petty competition, mo- nopolize business, and dictate the price of coal and every other com- modity to consumers. We say these results might follow tiie exercise of such a right as is claimed for railroads in this case. But we think no such power exists in them ; they have been authorized for the com- mon benefit of every one, and cannot be lawfully manipulated for the advantage of any class at the expense of any other. Capital needs no such extraneous aid. It possesses inherent advantages, which cannot be taken from it. But it has no just claim, by reason of its accu- mulated strength, to demand the use of the public highways of the countr}', constructed for the common benefit of all, on more favorable terms than are accorded to the humblest of the land ; and a discrimi- nation in favor of parties furnishing the largest quantit3' of freight, and solelj- on that ground, is a discrimination in favor of capital, and is contrarj- to a sound public policj', violative of that equalitj- of right guaranteed to every citizen, and a wrong to the disfavored party, for which the courts are competent to give redress. The motion, therefore, for a new trial will be denied, and a judgment entered on the verdict for the damages assessed and the costs of the suit. Welkee, D. J., concurred. MENACHO v. WARD. Circuit Court op the United States, S. Nev? York, 1886. [27 Fed. 529.] Wallace, J. The complainants have filed a bill in each of these causes to restrain the defendants from making discriminations for trans- portation against the complainants, which consist in charging them a higher rate of freight than is charged by defendants, to other shippers of merchandise generally'. A motion is now made for a preliminary injunction. The facts in each case are essentiallj' the same, and both cases may be considered together. The complainants are merchants domiciled in the city of New York, and engaged in commerce between that port and the island of Cuba. The defendants are proprietors or managers of steamship lines plying between New York and Cuba. P^ormerly the business of transportation between the two places was carried on by sailing vessels. In 1877 the line of steamships known as "Ward's Line" was established, and in 1881 was incorporated by the name of the New York & Cuba Mail Steamship Line under the general laws of the State of New York. At 504 MENACHO V. WARD. the time of the incorporation of this company the line of steamships owned by the defendants Alexandre & Sons had also been established. These two lines were competitors between New York and Cuba, but for several years both lines have been 'operated under a traffic agreement between themselves, by which uniform rates are charged by each to the public for transportation. The two lines are the only lines engaged in the business of regular transportation between New York and Cuba ; and unless merchants choose to avail themselves of the facilities offered by them, thej' are obliged to ship their merchandise by vessels or steamers which may casually ply between the two places. It is alleged by the complainant that the defendants have announced generally to New York merchants engaged in Cuban trade that they must not patronize steamships which offer for a single voyage, and on various occasions when other steamships have attempted to procure cargoes from New York to Havana have notified shippers that those employing such steamships would thereafter be subjected to onerous discriminations by the defendants. The defendants allege in their answer to the bill, in effect, that it has been found necessarj-, for the purpose of securing sufficient patronage, to make differences in rates of freight between shippers in favor of those who will agree to patronize the defendants exclusively. Within a few months before the commence- ment of this suit two foreign steamers were sent to New York to take cargoes to Havana, and the complainants were requested to act as agents. Thereupon the complainants were notified by the defendants that they would be "placed upon the black-list " if thej' shipped goods by these steamers, and tliat their rates of freight would thereafter be advanced on all goods which they might have occasion to send by the defendants. Since that time the defendants have habituall}' charged the complainants greater rates of freight than those merchants who shipped exclusively by the defendants. The freight charges, by the course of business, are paid b}' consignees at the Cuban ports. The complainants have attempted to paj- the freight in advance, but have found this course impracticable because their consignees are precluded from deducting damages or deficiencies upon the arrival of the goods from the charges for freiglit, and as a result some of the complainants' correspondents in Cuba refuse to continue business relations with them, being unwilling to submit to the annoyance of readjusting overcharges with complainants. Upon this state of facts the complainants have founded the allegation of their bill that the defendants ' ' have arbi- trarily refused them equal terms, facilities, and accommodations to those granted and allowed by the defendants to other shippers, and have arbitrarily exacted from them a much greater rate of freight than the defendants have at the same time charged to shippers of merchan- dise generally as a condition of receiving and transporting merchandise." They apply for an injunction upon the theory that their grievances can- not be redressed by an action at law. It is contended for the complainants that a common carrier owes an MENACHO V. WARD. 505 equal dntj' to every member of the communitj', and is not permitted to make unequal preferences in favor of one person, or class of persons, aa against another person or class. The defendants insist that it is permit- ted to common carriers to make reasonable discriminations in the rates demanded from the public ; that they are not required to carry fbr all at the same rates ; that discriminations are reasonable which are based upon the quantity of goods sent by different shippers ; and that the discrimination in the present case is essentially such a discrimination, and has no element of personal preference, and is necessary for the protection of the defendants. Unquestionablj' a common carrier is alwaj-s entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equalitj-. It is his privilege to charge less than fair compensation to one person, or to a class of persons, and others cannot justlj' complain so long as he carries on reasonable terms for them. Respecting preferences in rates of com- pensation, his obligation is to charge no more than a fair return in each particular transaction, and except as thus restricted he is free to dis- criminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public. Bax- endale v. Eastern Counties R. Co., 4 C. B. (N. S.) 78; Branley v. Southeastern R. Co., 12 C. B. (N. S.) 74; Fitchburg R. Co. v. Gage, 12 Gray, 393 ; Sargent v. Boston & L. R. Corp., 115 Mass. 416, 422.^ In the present case the question whether the defendants refuse to carry for the complainants at a reasonable compensation resolves itself into another form. Can the defendants lawfully require the complain- ants to paj' more for carrying the same kind of merchandise, under like conditions, to the same places, than thej' charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much ; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justify- ing the exceptional charge. The estimate placed by a party upon the value of his own services of property is always sufficient, against him, to establish the real value ; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long continued and extensive course of business dealings, and held it out as a fixed and notorious standard for the information of the public. The defendants assume to justify upon the theory that a carrier may regulate his charges upon the basis of the quantity of goods delivered to hira for transportation by different shippers, and that their discrimi- nation against the plaintiff is in substance one made with reference to 1 The court here cited passages from the opinions in Messenger w. Pennsylyania R. S., 37 N. J. L. 531, and McDuffee v. Portlaud & R, E. K., 62 N. H. 430. — Ed. 506 MENACHO V. WARD. the quantity of merchandise furnished by them for carriage. Courts of law have always recognized the rights of carriers to regulate their charges with reference to the quantity of merchandise carried for the shipper, either at a given shipment, or during a given period of time, although public sentiment in many communities has objected to such discriminations, and crystallized into legislative condemnation of the practice. By the English statutes (17 & 18 Vict. c. 31) railway and canal carriers are prohibited from " giving any undue or unreasonable preference or advantage to or in favor of any particular description of traffic, in any respect whatever," in the receiving, forwarding, and de- livery of traffic ; but under these provisions of positive law the courts have held that it is not an undue preference to give lower rates for larger quantities of freight. Ransome v. Eastern C. R. Co., 1 Nev. & McN. 63, 155; Nicholson ■». Great Western Rj'. Co., Id. 121; Strick V. Swansea Canal Co., 16 C. B. (N. S.) 245 ; Greenop u. S. E. R. Co., 2 Nev. & McN. 319. These decisions proceed upon the ground that the carrier is entitled to take into consideration the question of his own profits and interests in determining what charges are reasonable. He maj' be able to carry a large quantity of goods, under some circumstances, at no greater ex- pense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correclly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the public for patronage he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is therefore justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analogj' exists between a discrimination based npon the quantity of business furnished \>\ dif- ferent classes of shippers, and one which altogether ignores this consid- eration, and has no relation to the profits or compensation which the carrier ought to derive for a given quantum of service. The proposition is speciously put that the carrier may reasonably discriminate between two classes of sliippers, the regular and the casual ; and that such is the only discrimination here. Undoubtedly the carrier may adopt a commutative sj'stem, whereby those who furnish him a regular traffic may obtain reduced rates, just as he may properly reg- ulate his charges upon the basis of the quantity of traffic which he receives from different classes of shippers. But this is not the proposi- tion to he discussed. Tlie defendants assume to discriminate against the complainants, not because they do not furnish them a regular busi- ness, or a given number of shipments, or a certain quantity of merchan- dise to carry, but because they refuse to patronize the defendants exclusively. The question is whether the defendants refuse to carry for MENACHO V. -WARD. 507 the complainants on reasonable terms. The defendants, to maintain the afBi'raative, assert that their charges are fair because they do not have the whole of the complainants' carr3-ing business. But it can never be material to consider whether tlie carrier is permitted to enjoy a monopoly of the transportation for a particular individual, or class of individuals, in ascertaining what is reasonable compensation for the services actu- ally rendered to him or them. Such a consideration might be influen- tial in inducing parties to contract in advance ; but it has no legitimate bearing upon the value of services rendered without a special contract, or wliich are rendered because the law requires them to be rendered for a fair remuneration. A common carrier " is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate liimself" Nelson, J., in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. His obligations and liabilities are not dependent upon contract, though they may be modifled and limited by contract. They are imposed by the law, from the public nature of his employment. Hannibal R. R. v. Swift, 12 Wall. 262. As their busi- ness is " affected with a public interest," it is subject to legislative regulation. " In matters which do affect the public interest, and as to which legislative control may be exercised, if tiiere are no statutory regulations upon the subject, the courts must determine what is reason- able." Waite, C. J., in Munn v. Illinois, 94 U. S. 113, 134. It is upon this foundation, and not alone because the business of common carriers is so largely controlled by corporations exercising under fran- chises the privileges which are held in trust for the public benefit, that the courts have so strenuousl,y resisted their attempts, by special con- tracts or unfair preferences, to discriminate between those whom it is their duty to serve impartially. And the courts are especially solicitous to discountenance all contracts or arrangements by these public servants which savor of a purpose to stifle competition or repress rivalry in the departments of business in which they ply their vocation. Illustrations are found in the cases of State v. Hartford & N. H. R. Co., 29 Conn. 538 ; Hooker v. Vandewater, 4 Denio, 849 ; W. U. Tel. Co. v. Chicago & P. R. Co., 86 111. 246; Coe v. Louisville & N. R. Co., 3 Fed. Rep. 775. The vice of the discrimination here is that it is calculated to coerce all those wlio have occasion to employ common carriers between New York and Cuba from employing such agencies as may offer. Its ten- dency is to deprive the public of their legitimate opportunities to obtain carriage on the best terms they can. If it is tolerated it will result practically in giving the defendants a monopoly of the carrying trade between tliese places. Manifestly it is, enforced by the defendants in order to discourage all others from attempting to serve the public as carriers between tiiese places. Such discrimination is not only unrea- sonable, but is odious. Ordinarily the remedy against a carrier is at law for damages for a refusal to carry, or to recover the excess of 508 BOOT V. LONG ISLAND KAILEOAD. charges paid to obtain the delivery of goods. The special circumstances in this case indicate that such a remedy would not afford complete and adequate redress, " as practical and efficient to the ends of justice " as the remedy in equity. Watson v. Sutherland, 5 Wall. 74. The motion for an injunction is granted. EOOT V. LONG ISLAND EAILEOAD. CoDBT OF Appeals of New York, Second Division, 1889. [U4 N. Y. 300; 21 N. E. 403.] Haight, J. In June, 1876, the defendant and one Qnintard entered into a written contract, which, among other things, provided that Qnintard should build at Long Island City upon the lands of the de- fendant a dock 250 feet long and 40 feet wide, and erect thereon a pocket for holding and storing coal, according to certain plans and specifications annexed. The defendant was to have the use of the south side of the dock, and also of 30 feet of the shore end, and the right to use the other portions thereof when not required by Quintard. In consideration therefor the defendant agreed with Quintard to trans- port in its cars all the coal in car-loads offered for transportation by him at a rebate of 15 cents per ton of 2,240 pounds from the regular tariff rates for coal transported by the defendant from time to time, except in the case of the coal carried for the Brooklyn Water- Works Company, with which company the defendant reserved the right to make a special rate, which should not be considered "the regular tariff rate.'' The defendant also agreed with Quintard to provide him with certain yard room and office room free of rent, and the con- tract was to continue for the term of 10 years, and at the termination of the contract the dock and structures were to be appraised, and the value thereof, less the sum of $2,000 advanced by the defendant, to be paid to Quintard. Pursuant to this agreement the dock and coal pocket were constructed at an expense of $17,000, and coal in large quantities was shipped over the defendant's road by Quintard or his assignee under the contract, and it is for the rebate of 15 cents per ton upon the coal so shipped that this action was brought. The defence is that the contract was against public policy, and was there- fore illegal and void. The defendant is a railroad corporation organized under the laws of the State, and was therefore a common carrier of passengers and freight, and was subject to the duties and liabilities of such. These duties and liabilities have often been the subject of judicial consid- eration in the different States of the Union. In Illinois it has been held that a railroad corporation, although permitted to establish its rates for transportation, must do so without injurious discrimination BOOT V. LONG ISLAND RAILROAD. 509 to individuals; that its charges must be reasonable. Railroad Co. V. People, 67 111. 11; Vincent v. Railroad Co., 49 III. 33. In Ohio it was held that where a railroad company gave a lower rate to a favored shipper with the intent to give such shipper an exclusive monopoly, thus affecting the business and destroying the trade of other shippers, the latter have the right to require an equal rate for all under like circumstances. Scofleld v. Railway Co., 43 Ohio St. 571. In New Jersey it has been held that an agreement by a railroad company to carry goods for certain. persons at a cheaper rate than it would carry under the same condition for others is void, as creating an illegal preference; that common carriers are public agents, transacting their lousiness under an obligation to observe equality towards every mem- ber of the community, to serve all persons alike, without giving unjust or unreasonable advantages by way of facilities for the carriage, or rates for the transportation, of goods. Messenger v. Railroad Co., 36 N. J. Law, 407; State v. Railroad Co., 48 N. J. Law, 65. In New Hampshire it has been held that a railroad is bound to carry at reasonable rates commodities for all persons who offer theni, as early as means will allow; that it cannot directly exercise unreasonable discrimination as to who and what it will carry; that it cannot im- pose unreasonable or unequal terms, facilities, or accommodations. McDuffee v. Railroad, 52 N. H. 430. To similar effect are crises in other States. Express Co. v. Railroad Co., 57 Me. 188; Shippers. Railroad Co., 47 Pa. St. 338; Railroad Co. v. Gage, 12 Gray, 393; Menacho v. Ward, 27 Fed. Rep. 529. In New York the authorities are exceedingly meagre. The question was considered to some extent in the case of Killmer v. Railroad Co., 100 N. Y. 395, in which it was held that the reservation in the general act of the power of the legislature to regulate and reduce charges, where the earnings exceeded 10 per cent of the capital actually expended, did not relieve the com- pany from its common law duty as a common carrier; that the ques- tion as to what was a reasonable sum for the transportation of goods on the lines of a railroad in a given case is a complex question, into which enter many elements for consideration. In determining the duty of a common carrier, we must be reason- able and just. The carrier should be permitted to charge reasonable compensation for the goods transported. He should not, however, be permitted to unreasonably or unjustly discriminate against other individuals, to the injury of their business, where the conditions are equal. So far as is reasonable, all should be treated alike ; but we are aware that absolute equality cannot in all cases be required, for circumstances and conditions may make it impossible or unjust to the carrier. The carrier may be able to carry freight over a long distance at a less sum {han he could for a short distance. He may be able to carry a large quantity at a less rate than he could a smaller quantity. The facilities for loading and unloading may be different in different places, and the expenses may be greater in some places than in others. 510 ROOT V. LONG ISLAND KAILEOAD. Numerous circumstances may intervene which bear upon the cost and expenses of transportation, and it is but just to the carrier that he be permitted to take these circumstances into consideration in determining the rate or amount of his compensation. His charges must therefore be reasonable, and he must not unjustly discriminate against others, and in determining what would amount to unjust dis- crimination all the facts and circumstances must be taken into con- sideration. This raises a question of fact, which must ordinarily be determined by the trial court. The question as to whether there was unjust discrimination embraced in the provisions of the contract does not appear to have been determined by the referee, for no find- ing of fact appears upon that subject. Neither does it appear that he was requested to find upon that question, and consequently there is no exception to the refusal to find thereon. Unless, therefore, we can determine the question as one of law, there is nothing upon this sub- ject presented for review in this court. Is the provision of the con- tract, therefore, providing for a rebate of 15 cents per ton from the regular tariff rates, an unjust discrimination as a matter of law? Had this provision stood alone, unqualified by other provisions, with- out the circumstances under which it was executed explaining the necessity therefor, we should be inclined to the opinion that it did provide for an unjust discrimination; but, upon referring to the con- tract, we see that the rebate was agreed to be paid in consideration for the dock and coal pocket which was to be constructed upon the defendant's premises at an expense of $17,000, in part for the use and convenience of the defendant. Quintard was to load all the cars with the coal that was to be transported. It was understood that a large quantity of coal was to be shipped over defendant's line, thus increas- ing the business and income of the company. The facilities which Quintard was to provide for the loading of the coal, his services in loading the cars, the large quantities which he was to ship, in con- nection with the large sums of money that he had expended in the erection of the dock, in part for the use and accommodation of the defendant, are facts which tend to explain the provision of the con- tract complained of, and render it a question of fact for the determi- nation of the trial court as to whether or not the rebate, under the circumstances of this case, amounted to an unjust discrimination, to the injury and prejudice of others. Therefore, in this case, the question is one of fact, and not of law; and, inasmuch as the discrim- ination has not been found to be unjust or unreasonable, the judgment cannot be disturbed. The judgment should be aflSrmed with costs. All concur. Judgment affirmed. LOUGH V. OUTERBKIDGE. 511 LOUGH V. OUTERBEIDGE. Court of Appeals of New York, 1894. [143 N. Y. 271 ; 38 N. E. 292.] O'Brien, J. The question presented by this appeal is one of very great importance. It touches commerce, and, more especially, the duties and obligations of common carriers to the public at many points. There was no dispute at the trial, and there is none now, with respect to the facts upon which it arises. In order to present the question clearly, a brief statement of these facts becomes necessary. The plaintiffs are the surviving members of a firm that, for many years prior to the transaction upon which the action was based, had been engaged in business as commission merchants in the city of New York, transacting their business mainly with the Windward and Leeward Islands. The defendant, the Quebec Steamship Company, is a Canadian corporation, organized and existing under the laws of Canada ; and the other defendants are the agents of the corporation in New Yorii, doing business as partners. The business of the cor- poration is that of a common carrier, transporting passengers and freight for hire u^on the sea and adjacent waters. For nearly 20 years prior to the transaction in question, a part of its business was the transportation of cargoes between New York and the Barbadoes and the Windward Islands, the other defendants acting as agents in respect to this business. During some years prior to the commence- ment of this action, the company had in its service a fleet of five or six of the highest class iron steamers, sailing at intervals of about ten days from New York to the islands, each steamer requiring about six weeks to make the trip. The steamers were kept constantly engaged in this service and sailed regularly upon schedule days without refer- ence to the amount of cargo then received. The regular and standard rate charged for freight up to December, 1891, fi'om New York to Barbadoes, one of the Windward Islands, was 50 cents per dry barrel of five cubic feet, which was taken as the unit of measurement, and the tariff of charges was adjusted accordingly for goods shipped in other forms and packages. In December, 1891, the regular rate was reduced from 50 to 40 cents per dry barrel. About this time the British steamer El Callao, which had for some years before sailed between New York and Ciudad Bolivar, in South America, trans- porting passengers and freight between these points, began to take cargo at New York for Barbadoes, and sometimes to other points in the Windward Tslands which she passed on her regular trips to Ciudad Bolivar, sailing from New York at intervals of five or six weeks. Her trade with South America was the principal feature of her busi- ness, but such space as was not required for the cargo destined for the end of the route was filled with cargo for the islands which lay 512 LOUGH V. OUTEEBRIDGE. in her regular course. The defendants evidently regarded this vessel as a somewhat dangerous competitor for a part of the business, the benefits of which they had up to this time enjoyed ; and, for the pur- pose of retaining it, they adopted the plan of ofCering special reduced rates of 25 cents per dry barrel to all merchants and business men in New York who would agree to ship by their line exclusively during the week that the El Callao was engaged in obtaining freight and taking on cargo. The plaintiffs' firm had business arrangements with and were shipping by'that vessel; and in February, 1892, they de- manded of the defendants that they receive 3,000 barrels of freight from New York to Barbadoes, and transport the same at the special rate of 25 cents per barrel upon one of its steamers. The defendants then informed the plaintiffs that the rate of 25 cents was allowed by them only to such shippers as stipulated to give all their business exclusively to the defendants' line, in preference to the El Callao, and that to all other shippers the standard rate of 40 cents per dry barrel was maintained; but they further informed the plaintiffs that, if they would agree to give their shipments for that week exclusively to the defendants' line, the goods would be received at the 25 cents rate. The plaintiffs, however, were shipping by the other vessel, and de- clined this offer. Again, in the month of May, 1892, the El Callao was in the port of New York taking on cargo, as was also the de- fendants' steamer Trinidad. The plaintiffs then demanded of the defendants that they receive and carry from New York to Barbadoes about 1,760 dry barrels of freight at the rate of 25 cents. The de- fendants notified the plaintiffs that a general offer had that day been made by them to the trade to take cargo for Barbadoes on the Trini- dad, to sail on June 4th, at 25 cents per dry barrel, under an agree- ment that shippers accepting that rate should bind themselves not to ship to that point by steamers of any other line between that date and the sailing of the Trinidad. The defendants offered these terms to the plaintiffs, but, as they were shipping by the rival vessel, the offer was declined. Except during the week when the El Callao was engaged in taking on cargo, the defendants have maintained the regular l-ate of 40 cents to all shippers between these points; and, when it reduced the rate as above described, exactly the same rates, terms, and conditions were offered to all shippers, including the plaintiffs, and carried freight for other parties at the reduced rates only upon their entering into a stipulation not to ship by the rival vessel. After the plaintiffs' demand last mentioned had been refused, they obtained an order from one of the judges of the court in this action requiring the defendants to carry the 1,760 barrels, and the defendants did receive and transport them, in obedience to the order, at the rate of 25 cents; but this order was reversed at general term. The plaintiffs demand equitable relief in the action to the effect, substantially, that the defendants be required and compelled by the judgment of the court to receive and transport for the plaintiffs their LOUGH V. OUTEEBRIDGE. 513 freight at the special reduced rates, when allowed to all other ship- pers, without imposing the condition that the plaintiffs stipulate to ship during the times specified by the defendants' line exclusively. Whether the regular rate of 40 cents, for which it is conceded that the defendants offered to carry for the plaintiffs at all times without conditions, was or was not reasonable, was a question of fact to be determined upon the evidence at the trial ; and the learned trial judge has found as matter of fact that it was reasonable, and that the re- duced rate of 25 cents granted to shippers on special occasions, and upon the conditions and requirements mentioned, was not profitable. This finding, which stands unquestioned upon the record, seems to me to be an element of great importance in the case, which must be recognized at every stage of the investigation. A common carrier is subject to an action at law for damages in case of refusal to perform its duties to the public for a reasonable compensation, or to recover back the money paid when the charge is excessive. This right to maintain an action at law upon the facts alleged, it is urged by the learned counsel for the defendants, precludes the plaintiffs from main- taining a suit for equitable relief such as is demanded in the com- plaint. There is authority in other jurisdictions to sustain the practice adopted by the plaintiffs ("Watson v. Sutherland, 5 Wall. 74 ; Mcnacho v. Ward, 27 Fed. 529; Toledo, A. A. & N. M. Ey. Co. v. Pennsylvania Co., 54 Fed. 741; Coe & Milsom v. Railroad Co., 3 Fed. 775; Vincent v. Railroad Co., 49 111. 33; Scofleld v. Railroad Co., 43 Ohio St. 571), though I am not aware of any i-n this State that would bring a case based upon such facts within the usual or ordinary jurisdiction of equity. So far as this case is concerned, it is sufficient to observe that it is now settled by a very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defence that an adequate remedy at law exists, unless he pleads that defence in his answer. Cogswell v. Railroad Co., 105 N. Y. 319; Town of Mentz v. Cook, 108 N. Y. 504; Ostrander •(>. Weber, 114 N. Y. 95; Dudley v. Congregation, 138 N. Y. 460; Truscott v. King, 6 N. Y. 147. When the facts alleged are sufficient to entitle the plaintiff to relief in some form of action, and no objection has been made by the de- fendant to the form of the action in his answer or at the trial, it is too late to raise the point after judgment or upon appeal. So that, whatever objections might have been'urged originally against the action in its present form, the defendants must now be deemed to have waived them. This court will not now stop to examine a minor question that does not touch the merits, but relates wholly to the form in which the plaintiffs have presented the facts and demanded relief, or to the practice and procedure. The time and place to raise and discuss these questions was at or before the trial, and, as they were not then raised, the case must be examined and disposed of upon the merits. The defendants were engaged in a business in which tha 33 514 LOUGH V. OUTEEBRIDGE. public were interested, and the duties and obligations growing out of it may be enforced through the courts and the legislative power. Munn V. Illinois, 94 U. S. 113; People v. Budd, 117 N. Y. 1. In England these duties are, to a great extent, regulated by the railway and canal traffic act (17 & 18 Vict., c. 31), and by statute in some of the States, and in this country, so far as they enter into the business of interstate commerce, by act of Congress. The solution of the ques- tion now presented depends upon the general principles of the common law, as there is no statute in this State that affects the question, and the legislation referred to is important only for the purpose of in- dicating the extent to which business of this character has been sub- jected to public regulation for the general good. There can be no doubt that at common law a common carrier undertook generally, and not as a casual occupation, to convey and deliver goods for a reason- able compensation as a business, with or without a special agreement, and for all people indifferently; and, in the absence of a special agreement, he was bound to treat all alike in the sense that he was not permitted to charge any one an excessive price for the services. He has no right in any case while engaged in this public employment to exact from any one anything beyond what under the circum- stances is reasonable and just. 2 Kent, Comm. (13th ed.) 598; Story, Bailm. §§ 495, 508; 2 Pars. Cont. 175; Killmer v. Kailroad Co., 100 N. Y. 395; Root v. Railroad Co. 114 N. Y. 300. It may also be con- ceded that the carrier cannot unreasonably or unjustly discriminate in favor of one or against another where the circumstances and conditions are the same. The question in this case is whether the defendants, upon the, undisputed facts contained in the record, have discharged these obligations to the plaintiffs. There was no refusal to carry for a reasonable compensation. On the contrary, the defend- ants offered to transport the goods for the 40 cents rate, and we are concluded by the finding as to the reasonable nature of that charge. The defendants even offered to carry them at the unprofitable rate of 25 cents, providing the plaintiffs would comply with the same condi- tions upon which the goods of any other person were carried at that rate. What is reasonable and just in a common carrier in a given case is a complex question, into which enter many elements for con- sideration. The questions of time, place, distance, facilities, quan- tity, and character of the goods, and many other matters must be considered. The carrier can afford to carry 10,000 tons of coal and other property to a given place for less compensation per ton than he could carry 50 ; and, where the business is of great magnitude, a rebate fi;om the standard rate might be just and reasonable, while it could not fairly be granted to another who desired to have a trifling amount of goods carried to the same point. So long as the regular standard rates maintained by the carrier and offered to all are reason- able, one shipper cannot complain because his neighbor, by reason of special circumstances and conditions, can make it an object for the LOUGH V. OUTERBEIDGE. 515 carrier to give him reduced rates. In this case the finding implies that the defendants at certain times carried goods at a loss, upon the condition that the shippers gave them all of their business. What- ever effect may be given to the legislation referred to, in its applica- tion to railroads and other corporations deriving their powers and franchises from the State, there can be no doubt that the carrier could at common law make a discount from its reasonable general rates in favor of a particular customer or class of customers in isolated cases, for special reasons, and upon special conditions, without violating any of the duties or obligations to the public inherent in the employment. If the general rates are reasonable, a deviation from the standard by the carrier in favor of particular customers, for special reasons not applicable to the whole public, does not furnish to parties not similarly situated any just ground for complaint. When the conditions and circumstances are identical, the charges to all shippers for the same service must be equal. These principles are well settled, and whatever may be found to the contrary in the cases cited by the learned counsel for the plaintiff originated in the appli- cation of statutory regulations in other States and countries. Eail. road Co. v. Gage, 12 Gray, 393; Sargent v. Railroad Co., 115 Mass. 422; Steamship Co. v. McGregor, 21 Q. B. Div. 544, affirmed 23 Q. B. Div. 598, and by H. L. 17 App. Cas. 26 ; Evershed v. Railway Co., 3 Q. B. Div. 135; Baxendale v. Railroad Co., 4 C. B. (N. S.) 78; Branley v. Railroad Co., 12 C. B. (N, S.) 74. ' Special favors in the form of reduced rates to particular customers may form an element in the inquiry whether, as matter of fact, the standard rates are reasonable or otherwise. If they are extended to such persons at the expense of the general public, the fact must be taken into account in ascertaining whether a given tariff of general prices is or is not reasonable. But, as in this case the reasonable nature of the price for which the defendants offered to carry the plaintiffs' goods has been settled by the findings of the trial court, it will not be profitable to consider further the propriety or effect of such discrimination. The rule of the common law was thus broadly stated by the Supreme Court of Massachusetts in the case of Railroad Co. V. Gage, supra. Upon that point the court said: "The recent English cases, cited by the counsel for the defendants, are chiefly commentaries upon the special legislation of Parliament regulating the transportation of freight on railroads constructed under the authority of the government there, and consequently throw very little light upon questions concerning the general rights and duties of com- mon carriers, and are for that reason not to be regarded as author- itative expositions of the common law upon these subjects. The principle derived from that source is very simple. It requires equal justice to all. But the equality which is to be observed consists in the restricted right to charge a reasonable compensation, and no more. If the carrier confines himself to this, no wrong can be done. 516 LOUGH V. OUTEKBEIDGE. If, for special reasons in isolated cases, the carrier sees fit to stipil* iate for the carriage of goods of any class for, individuals, for a certain time, or in certain quantities, for a less compensation than what is the usual, necessary, and reasonable rate, he may undoubt- edly do so without entitling all parties to the same advantage." In Evershed v. Railway Co/, supra, Lord Bramwell remarked: "I am not going to lay down a precise rule, but, speaking generally, and subject to qualification, it is open to a railway company to make a bargain with a person, provided they are willing to make the same bargain with any other, though that other may not be in a situation to make it. An obvious illustration may be found in season tickets." The authorities cited seem to me to remove all doubt as to the right of a carrier, by special agreement, to give reduced rates to customers who stipulate to give them all their business, and to refuse these rates to others who are not able or willing to so stipulate, providing, always, that the charge exacted from such parties for the service is not excessive or unreasonable. The principle of equality to all, so earnestly contended for by the learned counsel for the plaintiffs, was not, therefore, violated by the defendants, since they were willing and offered to carry the plaintiffs' goods at the reduced rate, upon the same terms and conditions that these rates were granted to others; and, if the plaintiffs were unable to get the benefit of such rate, it was because, for some reason, they were unable or unwilling to comply with the conditions upon which it was given to their neighbors, and not because the carrier disregarded his duties or obligations to the public. The case of Menacho v. Ward, 27 Fed. 529, does not apply, because the facts were radically different. That action was to restrain the carrier from exacting unreasonable charges habitually for ser- vices, the charges having been advanced as to the parties complaining, for the reason that they had at times employed another line. It de- cides nothing contrary to the general views here stated. On the con- trary, the court expressly recognized the general rule of the common law with respect to the obligations and duties of the carrier substan- tially as it is herein expressed, as will be seen from the following paragraph in the opinion of Judge Wallace: "Unquestionably, a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equality. It is his privilege to charge less than a fair compensation to one person, or to a class cf persons, and others cannot justly complain so long as he carries on reasonable terms for them. Respecting preference in rates of com- pensation, his obligation is to charge no more than a fair return in each particular transaction, and, except as thus restricted, he is free to discriminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public." But it is urged that the plaintiffs were in fact the only shippers of LOUGH V. OUTEKBEIDGE. 517 goods from New York to, Barbadoes by the El Callao, and therefore the condition imposed that the reduced rate should be granted only to such merchants as stipulated to give the defendants their entire business, while in terms imposed upon the public generally, was in fact aimed at the plaintiffs alone. The trial court refused to find this fact, but, assuming that it appeared from the undisputed evidence, I am unable to see how it could affect the result. The significance which the learned counsel for the plaintiffs seems to give to it in his argument is that it conclusively shows the purpose of the defendants to compel the plaintiffs to withdraw their patronage from the other line, to suppress competition in the business, and to retain a monopoly for their own benefit. Conceding that such was the purpose, it is_ not apparent how any obligation that the defendants owed to the public was disregarded. We have seen that the defendants might lawfully give reduced rates in special cases, and refuse them in others, where the conditions are different, or to the general public, where the regular rates are reasonable. The purpose of an act which in itself is per- fectly lawful, or, under all the circumstances, reasonable, is seldom, if ever, material. Phelps v. Nowlen, 72 N. Y. 39 ; Kiff v. Youmans, 86 N. Y. 324. The mere fact that the transportation business be- tween the two points in question was in the hands of the defendants did not necessarily create a monopoly, if the general rates maintained were reasonable and just. It is not pretended that the owners of the El Callao proposed to give regular service to the general public for any less. When the service is performed for a reasonable and just hire, the public have no interest in the question whether one or many are engaged in it. The monopoly which the law views with disfavor is the manipulation of a business in which the public are interested in such a way as to enable one or a few to control and regulate it in their own interest, and to the detriment of the public, by exacting unreasonable charges. But when an individual or a corporation has established a business of a special and limited character, such as the defendants in this case had, they have a right to retain it by the use of all lawful means. That was what the defendants attempted to do against a competitor that engaged in it, not regularly or permanently, but incidentally and occasionally. The means adopted for this pur- pose was to offer the service to the public at a loss to themselves whenever the competition was to be met, and, when it disappeared, to resume the standard rates, which, upon the record, did not at any time exceed a reasonable and fair charge. I cannot perceive anything Unlawful or against the public good in seeking by such means to retain a business which it does not appear was of suflBcient magnitude to furnish employment for both lines. On this branch of the argument the remarks of Lord Coleridge in the case of Steamship Co. v. McGregor, supra, are applicable: "The defendants are traders, with enormous sums of money embarked in their adventure, and naturally and allowably desire to reap a profit from their trade. They have a 518 UNITED STATES V. CHICAGO AND ALTON KY. COMPANY. right to push their lawful trades by all lawful means. They have a right to endeavor, by lawful means, to keep their trade in their own hands, and by the same means to exclude others from its benefits, if they can. Amongst lawful means is certainly included the inducing, by profitable offers, customers to deal with them, rat]ier than with their rivals. It follows that they may, if they see fit, endeavor to in- duce customers to deal with them exclusively by giving notice that only to exclusive customers will they give the advantage of their profitable offers. T do not think it matters that the withdrawal of the advantages is out of all proportion to the injury inflicted by those who withdraw them on the customers who decline to deal exclusively with them dealing with other traders." The courts, I admit, should do nothing to lessen or weaken the restraints which the law imposes upon the carrier, or in any degree to impair his obligation to serve all persons indifferently in his calling, in the absence of a reasonable excuse, and for a reasonable compensation only ; but to hold, as we are asked to in this case, that the plaintiffs were entitled to have their goods carried by the defendants at an unprofitable rate, without com- pliance with the conditions upon which it was granted to all others, and which constituted the motive and inducement for the offer, would be extending these obligations beyond the scope of any established precedent based upon the doctrine of the common law, and would, I think, be contrary to reason and justice. The judgment of the court below dismissing the complaint was right, and should be affirmed, with costs. Finch, Gray, and Bartlett, JJ., concur. Peckham, J., dissents. Andrews, C. J., not sitting. Judgment affirmed. UNITED STATES v. CHICAGO & ALTON EAILWAT COMPANY. District Court of the United States, 1906. [148 Fed. 646.] Landis, D. J. In this proceeding the Chicago & Alton Railway Com- pany and its vice-president and general freight agent are charged with violating the interstate commerce law by granting rebates. The gov* ernment having closed its case, the defendants move for an order direct* ing the jury to return a verdict of not guilty. The material facts are as follows : The Chicago & Alton Company is an interstate carrier, operating a railroad from Kansas City, Mo., to points east ; the Belt Railway Company is an interstate carrier oper- ating the belt line connecting Kansas City, Kan., and Kansas City, Mo. ; the Schwarzschild & Sulzberger Company is a corporation en- UNITED STATES V. CHICAGO AND ALTON EY. COMPANY. 519 gaged in the beef-packing business at Kansas City, Kan. ; the track of the Alton Gompanj' connects with the Belt track at Kansas City, Mo. ; and the Belt track connects with the private track of Schwarzschild & Sulzberger, laid and maintained by that corporation on its own prop- erty at Kansas City, Kan., occupied also by its packing plant. As required by the interstate commerce law the Alton Company and the Belt Company published and filed tariff schedules announcing to the ship- ping public what their charges would be for the transportation of pack- ing-house products. The Belt tariff was $3.00 per car from the packing company's track to the Alton connection. The Alton schedule stated that its rate included the Belt Company's charge, so that, in substance, it was as if the Alton road itself connected with the packing company's track. The Alton Company collected from the Schwarzschild & Sulz- berger Company the amount of its freight charge as per the published schedules, remitted to the Belt its $3 switching charge, and thereafter paid to Scwharzschild & Sulzberger $1 on each car of the Schwarzschild & Sulzberger product so handled. This practice has obtained since 1901. Prior to that time the Alton Company's tariff likewise included ihe Belt charge, which was then |4 per car. On collecting the full tariff from the Schwarzschild & Sulzberger Company, the Alton road paid to the Belt its charge of |4 per car, whereupon the Belt gave to the packing company $1 on each loaded car handled. It was at the request of Schwarzschild & Sulzberger (for some reason which does not appear) that for this arrangement was substituted the plan evidenced in the pending cause, whereby the railway company made payment direct to the shipper (some five months after the freight went forward), instead of indirectly through the medium of the Belt line. The indictment charges that the payment to the packing company was a rebate. The defendants contend that the payment was made by the railway companj' for its use of the packing company's private track, connecting its shipping dock with the Belt rails ; and it is urged in behalf of defendants that, if any provision of the law has been vio- lated, it is only that section requiring the carrier to publish any ter- minal charge or regulation which alters or determines the aggregate rate for the transportation of property. I am unable to see the force of this contention. The real question here is simply this : " Has the payment back to the shipper of $1 per car out of the money paid by the shipper to the railway company in the first instance resulted in the shipper get- ting its property transported at a less cost to it than that specified in the published schedules ? " It would seem that to state this question is to answer it. The word "rate," as used in the interstate commerce law, means the net cost to the shipper of the transportation of his property ; that is to,say, the net amount the carrier receives from the shipper and retains. In deter- mining this net amount in a given case, all money transactions of every kind or character having a bearing on, or relation to, that particular instance of transportation whereby the cost to the shipper is directly 520 UNITED STATES V. CHICAGO AND ALTON EY. COMPANY. or indirectly enhanced or reduced must be taken into consideration. Appljing this test to the case before me, the net cost to the Schwaiz- schild & Sulzberger Company- has been made $1 per car less than the published schedules represented that net cost would be. Viewing the transaction from the standpoint most favorable to the defendants, it amounts to the railway company assuming the cost of getting the ship- per's propertj' to the carrier's rails for transportation — a substantial consideration not mentioned in, or contemplated bj', the published schedules. With equal propriety (its schedules being silent on the sub- ject) a carrier might, for the purpose of inducing the routing of traflflc via its line, pay the consignor's and consignee's bills for the cartage of property between their warehouses and the railwaj' depots. The object of the statutes relating to interstate commerce is to secure the transportation of persons and property by common carriers for rea- sonable compensation. No rate can possibly be reasonable that is higher than anj-body else has to paj\ Recognizing this obvious truth, the law requires the carrier to adhere to the published rate as an absolute standard of uniformit3'. The requirement of publication is imposed in order that the man having freight to ship maj- ascertain by an inspection of the schedules exactly what will be the cost to him of the transportation of his property ; and not only so, but the law gives him another and a ver3- valuable right, namely, the right to know, by an inspection of the same schedule, exactly what will be the cost to his competitor of the transportation of his competitor's property. It being my opinion that, when the Alton Company published a spe- cific rate covering packing-house products, collected that rate from the Schwarzschild & Sulzberger Packing Company, and subsequently gave back part of that rate to Schwarzschild & Sulzberger, a device was employed by means of which the packing company's property was trans- ported at a less rate than that named in the published schedules, the defendants' motion will be overruled. DITTMAE V. NEW BRAUNFELS. 521 DITTMAR V. NEW" BRAUNFELS. CoDRT OF Civil Appeals, Texas, 1899. [20 Texas Civil Appeals, 293.] Fisher, C. J. Appellant, Dittmar, brought this suit, in the nature of an injunction, to restrain the city of New Braunfels from interfering with Lis use of water from the water s^-stem of New Braunfels for domestic purposes, and to require the city to restore him to his rights as a consumer of water under a contract existing between him and the city, and to connect his residence with the water mains of the city, after the city authorities operating the waterworks, without his con- sent, had disconnected his residence from the water system, and cut off his supply of water. There is also a claim of damages claimed to have resulted by reason of the wrongful interference of the city with his rights in the use of water. A temporary' injunction was granted, but, upon final hearing, general and special demurrers were addressed t6 the petition, which were sustained, and the case dismissed, from which judgment the appellant has appealed. Without stating in full the language of plaintiff's petition, the cause of action, as there set out, is substantially as follows : The citj- of New Braunfels is incorporated under the general laws of this State, and plaintiff is a resident and taxpayer thereof, occupying, with his familj-, a residence within the limits of the city. The city has in operation, and has had for several years past, a permanent and adequate sys- tem of waterworks, which is carried on and conducted by the city for the purpose of supplying the inhabitants water for public and private use. There is an abundant supply of pure and wholesome water, which the city, by the exercise of reasonable diligence in the operation of its waterworks, can continuously furnish the plaintiff and the other inhabitants of the citj-. This water is used for fire protec- tion and for domestic purposes b^' the inhabitants, and there is not, within the city, any other source from which the inhabitants can ob- tain a suflBcient and wholesome supply of water. In November, 1895, the apiiellant entered into a contract with the city, whereby it agreed to furnish him water at his residence, for household purposes, at the rate of one dollar a month, payable quarterly in advance. In pursu- ance of that contract, at considerable expense to the plaintiff, the amount of which is set out in the petition, the plaintiff's residence was connected with the water system operated by the city, and he, from that time, had promptly paid the water rates due from him, and has complied with all reasonable regulations made by the city for the con- sumption and use of water ; and if any water rent, upon the trial of the case, was found to be due, he was ready and willing to pay the same, and had tendered to the defendant all amounts due it for the use of water. In pursuance of said contract, he continued to use the water for household purposes, at his residence, until May, 1898, 522 DITTMAR V. NEW BKAUNFELS. when the defendant, through its servants operating the water system, wrongfully, without his consent, cut off the supply of water from his residence ; and thereupon he demanded of the defendant that he be again connected with the water system, and restored to his rights as a consumer, and tendered to the defendant the sum of $12, all of which the defendant refused to do. In 1897 the city passed an ordi- nance requiring consumers of water for household purposes to enter into a contract, which is styled in the petition as ' ' Exhibit A," as fol- lows :" $12.00. (Ord. Sec. 26.) New Braunfels, Texas, 1897. The city of New Braunfels is requested to connect my property known and described as lots Nos. 9 and 10, on Academy Street, Jahn's addition, in ward No. 4, New Braunfels, Texas, with the waterworks S3-stem of said city. The water is wanted and applied and subscribed for under conditions, and for the purposes and uses, following : Household. It is especially agreed and understood, and made a part of the consider- ation of this contract, that the city of New Braunfels is in no manner to be held liable for an\' scarcitj* or failure of water, nor for the quality or quantitj- thereof, nor for anj' failure to supplj' water in the event of fire on the premises, or other casualty or happening. This order is given and signed freel}-, with the understanding and acquiescence of the terms and conditions above, and with the knowledge and the understand- ing that, if a contract is desired not containing such a waivei", a higher rate would be demanded by the citj-, and with the full knowledge and acquiescence of the ordinance of the said city exempting it from lia- bilit}- in the event of failure or scarcity of water, either for fire or domestic purposes. This contract is continuous, and the subscriber is aware of the condition that, should he desire to have the same altered, abated, or cancelled, notice must be given to the city of New Braun- fels at least thirty daj's beforehand ; otherwise this contract is to remain in full force. But nothing herein shall be construed to prevent the city from cutting oflf the supply without notice or liability for damage of any kind, in the event the rate herein called for and specified is not promptly paid when due." And at the same time the city passed the following ordinances, which are known as sections 27 and 29 : " Section 27. Any person, corporation, or firm desiring a contract or form differing in its conditions from the order given in section 26 hereof, may, by application in writing to the city council of New Braun- fels, Texas, have a special contract granted him (or it) at the rate to be fixed by such council, upon the granting of such application, which rate shall not be less than double the amount of the charges in the ordinances set out, except for good reasons to the contrary, shown to the city council." " Section 29. No connections shall be made nor shall any water be furnished or supplied, unless the owner of the property to be so connected or supplied make his application therefor in writing and form following, to wit : [Here follows the form Exhibit A, leaving DITTMAR V. NEW BEAUNFELS. 523 blank the name, lot, street, &c., so as to constitute a printed blank form.] " This ordinance, as stated in section 27, was intended to give those inhabitants the right to a supply- of water who refused to sign and en- ter into the contract set out in Exhibit A. The plaintiff refused to sign the contract as previously set- out, or any of the contracts re- quired by the ordinance as stated in section 27, and for this reason, solely, the city disconnected hira from the water system, and refused further to continue furnishing him a supply of water under the contract that he had previously entered into with the citj' in 1895. It is also averred that it cost the city no more to furnish plaintiff a supply of water for household purposes than it does other inliabitants of the city ; that it is furnishing other inhabitants for household purposes a supply of water at the same rate that it agreed to furnish the plaintiff under the contract of 1895. In other words, that there are no dis- similar conditions existing between the plaintiff and the other inhabi- tants with reference to the cost and expense of furnishing water, and that the city is continuing to furnish other inhabitants an adequate and wholesome supply of water for household purposes at the rate of one dollar per month. The contention of the appellant is that the contract as stated in Exhibit A, and the ordinance upon which it is based, are unreasonable, and therefore void, and that for his refusal to enter into a contract of that nature the city arbitrarily, and without legal rea- son, cut off his supph- of water and disconnected him from the system ; that his rights as a consumer were fixed under the contract that he had entered into in 1895, which could not be disturbed, except for reasonable rules and regulations, which it is not questioned the city had the right to make, regarding the use and .consumption of water. This court has previously held in the case of Lenzen v. City of New Braunfels, which will be found reported in 35 S. W. 341, that a city who by contract owes a duty to a consumer will be required to exer- cise ordinary care in furnishing and supplj-ing him with the use of water. And the averments of the petition, in terms, state that the purpose of passing the ordinances which are here assailed was to evade the decision of this court in the Lenzen Case ; and the averments of the petition, together with the terms of the contract as set out in Ex- hibit A, impress us with the belief that such was, in part, the purpose of the council of the city in passing the ordinances, and requiring consumers to enter into contracts of the character set out in the exhibit. A city has the power to require consumers to enter into contracts obligating them to comply with the reasonable rules and regulations which may be imposed for the operation and protection of the water sj-stem and for the use of the water ; but, as a prerequisite to fur- nishing a consumer a supply of water, the city has no power to require him to enter into an agreement absolving the city from the duties im- posed upon it by the law and release it from liability for its own negli- 524 DITTMAK V. NEW BRAUNFELS. gence. The contract in question, which the plaintiff was required to sign, releases the city from liability for any scarcity or failure of sup- ply of water, or for the quality thereof, or for any failure to supply water in the event of a fire or other casualty or happening, and it expressly exempts it from liability- for failure or scarcity of water for fire or domestic purposes. It is averred in the petition that the sources from which the city obtained its water will furnish an unlimited supply of a wholesome qfuality, if the cMy should conduct its works with due care with reference to its obligation to the consumers. Tliis contract, in terms, releases the city from its obligation to furnish water of good quality' and sufficient quantity, and for a failure to supply water in the event of a fire on the premises or other casualty or happening. In other words, tlie purpose of these stipulations in this contract seems to be that, for any failure or refusal to furnish water to a consumer, either with reference to its quality or quantity, the city should be released from liability. We are clearly of the opinion, in view of the duty that the city owes to its consumers of water, that the imposition of a con- tract of this nature would be unreasonable, and therefore void. It is' probably true, if a consumer had entered into a contract of this nature and the city had undertaken under it to supplj' him with water, but had violated its duty and obligations resting upon it to furnish him an ade- quate and wholesome supply of water when it had in its power to do so, that the consumer could have, nevertheless, held it liable for the damages he had sustained ; for, although the consumer maj' have agreed to release the cit3', "Still, in urging his rights in an action against it, a court would not have enforced those provisions of the contract which were unreasonable, in that thej' released the citj- from its own negligence. "While it is true that no obligation would have been created against a consumer ^y reason of such unreasonable terms in a contract of tliis nature, still the city has no right to require him to sign and execute a contract of this character as a prequisite to his right to the use and consumption of water, and, upon failure to comply with this unreasonable request, to cut off the supply which he was entitled to by reason of his previous contract. It is next contended that as the ordinance upon which this contract is based, together with a contract of this nature, are void as being un- reasonable, the city could not require him, as a condition for the use of water, to enter into a contract of a nature called for by section 27 of the ordinances. We clearly think the plaintiff is also correct in this contention. It is averred in the petition that the other inhabitants of the city are enjoying the privilege of the use of water under a similar rate as that given to the plaintiff in the contract of 1895, and that the situation and condition of these people is similar to that of the plain- tiff. Upon the refusal of the plaintiff to sign the contract, as stated in Exhibit A, the city had no authority, under the averments of the peti- tion, to require him to enter into a contract such as is required in sec- tion 27 of the ordinances ; for a contract as required by that ordinance. INTEESTATE COMMERCE COMMISSION V. BALT. & OHIO E. 525 would place a greater burden upon the plaintiff, in requiring hira to pay a greater price for the consumption of water for the same purpose than that for which it was furnished the other inhabitants of the city. A city has the power and right to prescribe reasonable charges for the use of water it furnishes to consumers, but it has no power to discrimi- nate between the inhabitants of the city in its charges for the use of water, when they occupy a similar situation. y Reversed and remanded. INTERSTATE COMMEECE COMMISSION v. BALTIMOKE & OHIO EAILROAD. Supreme Court of the United States, 1892. [145 U. S. 263.] This proceeding was originally instituted by the filing of a peti- tion before the Interstate Commerce Commission by the Pittsburg, Cincinnati, & St. Louis Railway Company against the Baltimore & Ohio Railroad Company, to compel the latter to withdraw from its lines of road, upon which business competitive with that of the peti- tioner was transacted, the so-called "party rates," and to decline to give such rates in future upon such lines of road; also for an order requiring said company to discontinue the practice of selling excursion tickets at less than the regular rate, unless such rates were posted in its offices, as required by law. The petition set forth that the two roads were competitors from Pittsburg westward ; that the Baltimore & Ohio road had in operation upon its competing lines of road so-called "party rates," whereby "parties of ten or more persons travelling together on one ticket will be transported over said lines of road between stations located thereon at two cents per mile per capita, which is less than the rate for a single person ; said rate for a single person being about three cents per mile." ^ ... The cause was heard before the commission, which found "that so-called ' party rate ' tickets, sold at reduced rates, and entitling a number of persons to travel together on a single ticket or othenvise, are not commutation tickets, within the meaning of section 22 of the act to regulate commerce,'' and that, when the rates at which such tickets for parties are sold are lower for each member of the party than rates contemporaneously charged for the transportation of single passengers between the same points, they constitute unjust discrimination, and are therefore illegal." It was ordered and adjudged "that the defendant, the Baltimore & Ohio Railroad Com- pany, do forthwith wholly and immediately cease and desist from 1 Part of the statement of facts ia omitted. — Ed. 2 Act of Feb. 4, 1887 ; 24 St. 379. , , 526 INTEESTATE COMMERCE COMMISSION V. BALT. & OHIO E. charging rates for the transportation over its lines of a number of persons travelling together in one party which are less fo^- each person than rates contemporaneously charged by said defendant under schedules lawfully in effect for the transportation of single passengers between the same points." The defendant road having refused to obey this mandate, the com- mission, on May 1, 1890, pursuant to section 16 of the Interstate Commerce Act, filed this bill in the Circuit Court of the United States for the Southern District of Ohio for a writ of injunction to restrain the defendant from continuing in its violation of the order of the commission. . . . Mr. Justice Brown delivered the opinion of the court. Prior to the enactment of the act of February 4, 1887, to regulate commerce, commonly known as the "Interstate Commerce Act" (24 St. 379), railway traflSc in this country was regulated by the princi- ples of the common law applicable to common carriers, which de- manded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the partic- ular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service; Fitchbnrg Railroad Co. v. Gage, 12 Gray, 393; Baxendale t). Eastern .Counties Railway Co., 4 C. B. (N. S.) 63; Great Western Railway Co. v. Sutton, L. R. 4 H. L. 226, 237; Ex parte Benson, 18 S. C. 38; Johnson v. Pensacola Railway Co., 16 Fla. 623; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the States acts had been passed with the design of securing the public against unreason- able and unjust discriminations; but the ineflflcacy of these laws beyond the lines of the State, the impossibility of securing concerted action between the legislatures toward the regulation of traffic be- tween the several States, and the evils which grew up under a policy of unrestricted competition, suggested the necessity of legislation by Congress under its constitutional power to regulate commerce among the several States. These evils ordinarily took the shape of inequality of charges made, or of facilities furnished, and were usually dictated by or tolerated for the promotion of the interests of the officers of the corporation or of the corporation itself, or for the benefit of some favored persons at the expense of others, or of some particular locality or community, or of some local trade or commer- cial connection, or for the destruction or crippling of some rivai or hostile line. The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions; to prevent undue or unreasonable preferences to persons, corporations, or localities ; to inhibit greater INTERSTATE COMMERCE COMMISSION V. BALT. 4 OHIO E. 527 compensation for a shorter than for a longer distance over the same line; and to abolish combinations for the pooling of freights. ' It was not designed, however, to prevent competition between different roads, or to interfere with the customary arrangements made by rail- way companies for reduced fares in consideration of increased mile- age, where such reduction did not operate as an unjust discrimina- tion against other persons travelling over the road. In other words, it was not intended to ignore the principle that one can sell at whole- sale cheaper than at retail. It is not all discriminations or preferences that fall within the inhibition of the statute, — only such as are unjust // or unreasonable. For instance, it would be obviously unjust to charge A. a greater sum than B. for a single trip from Washington to Pittsburg; but, if A. agrees not only to go, but to return by the same route, it is no injustice to B. to permit him to do so for a reduced fare, since the services are not alike, nor the circumstances and conditions substantially similar, as required by section 2 to make an unjust discrimination. Indeed, the possibility of just discriminations and reasonable preferences is recognized by these sections, in declaring what shall be deemed unjust. We agree, however, with the plaintiff in its contention that a charge may be perfectly reasonable under section 1, and yet may create an unjust discrimination or an unreasonable preference under sections 2 and 3. As was said by Mr. Justice Blackburn in Great Western Eailway Co. V. Sutton, L. R. 4 H. L. 226, 239: "When it is sought to show that the charge is extortionate, as being contrary to the statutable obligation to charge equally, it is immaterial whether the charge is reasonable or not; it is enough to show that the company carried for some other person or class of persons at a lower charge during the period throughout which the party complaining was charged more under the like circumstances." The question involved in this Case is whether the principle above stated, as applicable to two individuals, applies to the purchase of a single ticket covering the transportation of 10 or more persons from one place to another. These are technically known as "party rate tickets," and are issued principally to theatrical and operatic com- panies for the transportation of their troupes. Such ticket is clearly neither a "mileage " nor an "excursion " ticket within the exception of section 22 ; and upon the testimony in this case it may be doubt- ful whether it falls within the definition of "commutation tickets," as those words are commonly understood among railway officials. The words "commutation ticket" seem to have no definite meaning. Tbey are defined by Webster (edition of 1891) as "a ticket, as for transportation, which is the evidence of a contract for service at a reduced rate. " If this definition be applicable here, then it is clear that it would include a party rate ticket. In the language of the railway, however, they are principally, if not wholly, used to desig- nate tickets for transportation during a limited time between neigh* 528 INTEESTATE COMMERCE COMMISSION V. BALT. & OHIO E. boring towns, or cities and suburban towns. The party rate ticket upon the defendant's road is a single ticket, issued to a party of 10 or more, at a fixed rate of 2 cents per mile, or a discount of one third from the regular passenger rate. The reduction is not made by way of a secret rebate or drawback, but the rates are scheduled, posted, and open to the public at large. But, assuming the weight of evidence in this case to be that the party rate ticket is not a "commutation ticket," as that word was commonly understood at the time of the passage of the act, but is a distinct class by itself, it does not necessarily follow that such tickets are unlawful. The unlawfulness defined by sections 2 and 3 consists either in an " unjust discrimination" or an "undue or un- reasonable preference or advantage," and the object of section 22 was to settle, beyond all doubt, that the discrimination in favor of cer- tain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrim- ination being unjust. In other words, this section, is rather illustra- tive than exclusive. Indeed, many, if not all, the excepted classes named in section 22 are those which, in the absence of this section, would not necessarily be held the subjects of an unjust discrimina- tion, if more favorable terms were extended to them than to ordinary passengers. Such, for instance, are property of the United States, State, or municipal governments; destitute and homeless persons transported free of charge by charitable societies ; indigent persons transported at the expense of municipal governments ; inmates of soldiers' homes, etc., and ministers of religion, — in favor of whom a reduction of rates had been made for many years before the passage of the act. It may even admit of serious doubt whether, if the mile- age, excursion, or commutation tickets had not been mentioned at all in this section, they would have fallen within the prohibition of sections 2 and 3 ; in other woi'ds, whether the allowance of a reduced rate to persons agreeing to travel 1,000 miles, or to go and return by the same road, is a "like and contemporaneous service under sub- stantially similar conditions and circumstances " as is rendered to a person who travels upon an ordinary single trip ticket. If it be so, then, under State laws forbidding unjust discriminations, every such ticket issued between points within the same State must be illegal. In view of the fact, however, that every railway company issues such tickets', that there is no reported case. State or federal, wherein their illegality has been questioned ; that there is no such case in Eng- land; and that the practice is universally acquiesced in by the public, — it would seem that the. issuing of such tickets should not be held an unjust discrimination or an unreasonable preference to the persons travelling upon them. But, whether these party rate tickets are commutation tickets proper, as known to railway officials, or not, they are obviously INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO E. 529 within the commuting principle. As stated in the opinion of Judge Sage in the court below: "The difference between commutation and party rate tickets is that commutation tickets are issued to induce people to travel more frequently, and party rate tickets are issued to induce more people to travel. There is, however, no difference in principle between them, the object in both cases being to increase travel without unjust discrimination, and to secure patronage that would not otherwise be secured." The testimony indicates that for many years before the passage of the act it was customary for railroads to issue tickets at reduced rates to passengers making frequent trips, — trips for long distances, and trips in parties of 10 or more, lower than the regular single fare charged between the same points ; and such lower rates were univer- sally made at the date of the passage of the act. As stated in the answer, to meet the needs of the commercial traveller, the 1,000-mile ticket was issued; to meet the needs of the suburban resident or frequent traveller, several forms of tickets were issued. For exam- ple, monthly or quarterly tickets, good for aoy number of trips within the specified time; and 10, 25, or 50 trip tickets, good for a specified number of trips by one person, or for one trip by a specified number of persons; to accommodate parties of 10 or more, a single ticket, one way or round trip, for the whole party, was made up by the agent on a skeleton form furnished for that purpose ; to accommodate excur- sionists travelling in parties too large to use a single ticket, special individual tickets were issued to each person. Tickets good for a specified number of trips were also issued between cities where travel was frequent. In short, it was an established principle of the busi- ness that whenever the amount of travel more than made up to the carrier for the reduction of the charge per capita, then such reduction was reasonable and just in the interests both of the carrier and of the public. Although the fact that railroads had long been in the habit of issuing these tickets would be by no means conclusive evi- dence that they were legal, since the main purpose of the act was to put an end to certain abuses which had crept into the management of railroads, yet Congress may be presumed to have had those prac- tices in view, and not to have designed to interfere with them, except so far as they were unreasonable in themselves, or unjust to others. These tickets, then, being within the commutation principle of allowing reduced rates in consideration of increased mileage, the real question is whether this operates as an undue or unreasonable preference or advantage to this particular description of traffic, or an unjust discrimination against others. If, for example, a railway makes to the public, generally, a certain rate of freight, and to a particular individual residing in the same town a reduced rate for the same class of goods, this may operate as an undue preference, since it enables the favored party to sell his goods at a lower price than his competitors, and may even enable him to obtain a complete 34 530 INTEESTATE COMMEECE COMMISSION V. BALT. & OHIO E. monopoly of that business. Even if tlie same reduced rate be allowed to every one doing the same amount of business, such disci'imiuation may, if carried too far, operate unjustly upon the smaller dealers engaged in the same business and enable the larger ones to drive them out of the market. The same result, however, does not follow from the sale of a ticket for a number of passengers at a less rate than for a single passenger; it does not operate to the prejudice of the single passenger, who cannot be said to be injured by the fact that another is able, in a par- ticular instance, to travel at a less rate than he. If it operates injuri- ously towards any one it is the rival road, which has not adopted corresponding rates; but, as before observed, it was not the design of the act to stifle competition, nor is there any legal injustice in one person procuring a particular service cheaper than another. If it be lawful to issue these tickets, then the Pittsburg, Chicago, & St. Louis Eailway Company has the same right to issue them that the defendant has, and may compete with it for the same traffic; but it is unsound to argue that it is unlawful to issue them because it has not seen fit to do so. Certainly its construction of the law is not binding upon this court. The evidence shows that the amount of business done by means of these party rate tickets is very large; that theatrical and operatic companies base their calculation of profits to a certain extent upon the reduced rates allowed by railroads; and that the attendance at conventions, political and religious, social and scientific, is, in a great measure, determined by the ability of the delegates to go and come at a reduced charge. If these tickets were withdrawn, the defendant road would lose a large amount of travel, and the single trip passenger would gain absolutely nothing. If a case were presented where a railroad refused an application for a party rate ticket upon the ground that it was not intended for the use of the general public, but solely for theatrical troupes, there would be much greater reason for holding that the latter were favored with an undue preference or advantage. In order to constitute an unjust discrimination under section 2 the carrier must charge or receive directly from one person a greater or less compensation than from another, or must accomplish the same thing indirectly by means of a special rate, rebate, or other devices but, in either case, it must be for a "like and contemporaneous ser- vice in the transportation of a like kind of traffic, under substantially similar circumstances and conditions." To bring the present case within the words of this section, we must assume that the transporta- tion of 10 persons on a single ticket is substantially identical with the transportation of one, and, in view of the universally accepted fact that a man may buy, contract, or manufacture on a large scale cheaper proportionately than upon a small scale^ this is impossible. In this connection we quote with approval from the opinion of Judge Jackson in the court below: " To come within the inhibition INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO R. 531 of said sections, the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traflflc under substantially the same circumstances and conditions. In respect to passenger traffic, the positions of the respective persons or classes between whom differences in charges are made must be compared with each other, and there must be found to exist substantial identity of situation and of service, accompanied by irregularity and partiality resulting in undue advantage to one, or undue disadvantage to the other, in order to constitute unjust discrimination. " The English Traffic Act of 1854 contains a clause similar to sec- tion 3 of the Interstate Commerce Act, that "no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or dis- advantage in any respect whatsoever." In Hozier v. Caledonian Bailroad Co., 17 Sess. Cas. (D) 302, 1 Nev. & McN. 27, complaint was made by one who had frequent occasion to travel, that passengers from an intermediate station be- tween Glasgow and Edinburgh were charged much greater rates to those places than were charged to other through passengers between these termini; but the Scotch Court of Session held that the peti- tioner had not shown any title or interest to maintain the proceeding ; his only complaint being that he did not choose that parties travelling from Edinburgh to Glasgow should enjoy the benefit of a cheaper rate of travel than he himself could enjoy. " It provides," said the court, " for giving undue preference to parties pari passu in the matter, but you must bring them into competition in order to give them an interest to complain." This is in substance holding that the allowance of a reduced through rate worked no injustice to passengers living on the line of the road, who were obliged to pay at a greater rate. So in Jones v. Eastern Counties Eailway Co., 3 C. B. (N. S.) 718, the court refused an injunction to compel a railway company to issue season tickets between Colchester and London upon the same terms as they issued them between Harwich and London, upon th« mere suggestion that the granting of the latter, the distance being considerably greater, at a much lower rate than the former, was an undue and unreasonable preference of the inhabitants of Harwich over those of Colchester. Upon the other hand, in Ran- some V. Eastern Counties Eailway Co., 1 C. B. (N. S.) 437, where it was manifest that a railway company charged Ipswich merchants, who sent from thence coal which had come thither by sea, a higher rate for the carriage of their coal than it charged Peterboro mer- ehants, who had made arrangements with it to carry large quantities over its lines, and that the sums charged the Peterboro merchants were 532 INTERSTATE COMMERCE COMMISSION V. BALT. & OHIO E. fixed SO as to enable them to compete with the Ipswich merchants, the court granted an injunction, upon the ground of an undue preference to the Peterboro merchants, the object of the discrimina- tion being to benefit the one dealer at the expense of the other, by depriving the latter of the natural advantages of his position. In Oxlade v. Northeastern Railway Co., 1 C. B. (N. S.) 454, a railway company was held justified in carrying goods for one person for a less rate than that at which they carried the same description of goods for another, if there be circumstances which render the cost of carry- ing the goods for the former less than the cost of carrying them for the latter, but that a desire to introduce northern coke into a certain district was not a legitimate ground for making special agreements with different merchants for the carriage of coal and coke at a rate lower than the ordinary charge, there being nothing to show that the pecuniary interests of the company were affected; and that this was an undue preference. In short, the substance of all these decisions is that railway com- panies are only bound to give the same terms to all persons alike under the same conditions and circumstances, and that any fact which produces an inequality of condition and a change of circum- stances justifies an inequality of charge. These traffic acts do not appear to be as comprehensive as our own, and may justify contracts which with us would be obnoxious to the long and short haul clause of the act, or would be open to the charge of unjust discrimination. But, so far as relates to the question of " undue preference," it may be presumed that Congress, in adopting the language of the English act, had in mind the construction given to these words by the Eng- lish courts, and intended to incorporate them into the statute. McDonald v. Hovey, 110 U. S. 619. There is nothing in the objection that party rate tickets afford facilities for speculation, and that they would be used by ticket brokers or "scalpers" for the purpose of evading the law. The party rate ticket, as it appears in this case, is a single ticket cover- ing the transportation of 10 or more persons, and would be much less available in the hands of a ticket broker than an ordinary single ticket, since it could only be disposed of to a person who would be willing to pay two thirds of the regular fare for that number of people. It is possible to conceive that party rate tickets may, by a reduction of the number for whom they may be issued, be made the pretext for evading the law, and for the purpose of cutting rates; but should such be the case, the courts would have no difficulty in discovering the purpose for which they were issued, and applying the proper remedy. Upon the whole, we are of the opinion that party rate tickets, as used by the defendant, are not open to the objections found by the Interstate Commerce Commission, and are not in violation of the act to regulate commerce, and the decree of the court below is therefore Affirmed, STATE V. CINCINNATI, NKW ORLEANS, ETC. RAILWAY. 533 STATE V. CINCINNATI, NEW ORLEANS, AND TEXAS' PACIFIC RAILWAY CO. S0PEEME Court of Ohio, 1890. [47 Ohio St. 130.1] Bradbury, J. . . . The petitions charge, among other things, that the defendants misused their corporate powers and franchises by dis- criminating in their rates of freight in favor of certain refiners of petroleum oil connected with the Standard Oil Companj', by charging other shippers of lilte products unreasonable rates, by arbitrarily and suddenly changing the same, and, Bnally, by confederating with the favored shippers to create and foster a monopoly in refined oil, to the injury of other refiners and the public ; and, further, that the defend- ants claimed and exercised, in contravention of law, the right to charge, for shipping oil in tank-cars, a lower rate of freight per 100 pounds than they charged for shipping the same in barrels, in carload lots. The defendants, by answer, among other matters, denied charg- ing any shippers unreasonable rates of freight, or that they arbitrarily or suddenly changed such rates, and denied any confederacy with any one to establish a monopoly. The actions were referred to a referee, to take the evidence, and to report to this court his findings of fact and conclusions of law therefrom, — all which has been done; and the cases are before us upon this report. . . . That the Cincinnati, Washington & Baltimore Railway Companj' did discriminate in its rates for freight on petroleum oil in favor of the Camden Consolidated Oil Companj-, and that the Cincinnati, New Orleans & Texas Pacific Railwaj' Company did the same in favor of the Chess-Carly Company, is shown by the finding of the referee, which is clearly sustained by the evidence. That these discriminating rates were in some instances strikinglj- excessive, tended to foster a monopoly, tended to injure the competitors of the favored shippers, and were in many instances prohibitory, actually excluding these com- petitors from extensive and valuable markets for their oil, giving to the favored shippers absolute control thereof, is established beyond any serious controversy. The justification interposed is that this was not done pursuant to any confederacy with the favored shipper, or with any purpose to inflict injury on their competitors, but in order that the railroad companies might secure freight that would otherwise have been lost to them. This we do not think sufHcient. We are not un- mindful of the difficulties that stand in the way of prescribing a line of duty to a railway company, nor do we undertake to say they may not pursue their legitimate objects, and shape their policy to secure bene- fits to themselves, though it may press severely upon the interests of 1 This case is abridged. — Ed. 534 STATE V. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. others ; but we do hold that thej' cannot be permitted to foster or create a monopoly, by giving to a favored shipper a discriminating rate of freight. As common carriers, their duty is to carry indiffer- ently for all who may apply, and in the order in which the application is made, and upon the same terras; and the assumption of a right to make discriminations in rates for freight, such as was claimed and exercised by the defendants in this case, on the ground that it thereby secured freight that it would otherwise lose, is a misuse of the rights and privileges conferred upon it by law. A full and complete discus- sion of the principles, and a thorough collation of the authorities, bear- inf upon the duties of railroad companies towards their customers, is to be found in the opinion of Judge Atherton, in the case of Scofield V. Railway Co., 43 Ohio St. 571, to which nothing need be now added. It appears that, of the two methods of shipping oil, — that by the barrel, in carload lots, and that in tank-cars, — the first only was available to George Rice, and the other refiners of petroleum oil at Marietta, Ohio, as they owned no tank-cars, nor did the defendants own or undertake to provide anj' ; but that both methods were open to the Camden Consolidated Oil Company and the Chess-Carly Company, bj' reason of their ownership of tank-cars, and that the rate per barrel in tank-cars was very much lower than in barrel packages, in box-cars ; that in fact the Cincinnati, Washington & Baltimore Railway Com- panj-, after allowing the Camden Consolidated Oil Company a rebate, and allowing the, Baltimore & Ohio Railway Compan}- for switching cars, received from the Camden Consolidated Oil Companj^ only about one-half the open rates it charged the Marietta refiners, and that both railroad companies claimed the right to make different rates, based upon the different methods of shipping oil, and the fact of the owner- ship by shippers of the tank-cars used by them. It was the duty of the defendants to furnish suitable vehicles for transporting freight offered to them for that purpose, and to offer equal terms to all shippers. A railroad is an improved highway. The public are equally entitled to its use. It must provide equal accommodation for all, upon the same terms. The fact that one shipper may be provided with vehicles of his own entitles him to no advantage over his competitor not so provided. The true rule is announced by the interstate commerce commission in the report of the case of Rice v. Railroad Co. "The fact that the owner supplies the rolling stock when his oil is shipped in tanks, in our opinion, is entitled to little weight, when rates are under consideration. It is properly the business of railroad companies to supply to their customers suitable vehicles of transportation (Railroad Co. V. Pratt, 22 Wall. 123) and then to offer their use to everybody-, impartially." 1 Int. St. Com. R. 547. No doubt, a shipper who owns cars may be paid a reasonable compensation for their use, so that the compensation is not made a cover for discriminating rates, or other advantages to such owner as a shipper. Nor is there any valid objec- tion to such owner using them exclusively, as long as the carrier STATE V. CINCINNATI, NEW ORLEANS, ETC. RAILWAY. 535 provides equal accommodations to its other customers. It may be claimed that if a railroad company- permit all shippers, indifferently and upon equal terms, to provide cars suitable for their business, and to use them exclusively, no discrimination is made. This may be theoretically true, but is not so in its application to the actual state of the business of the country ; for a very large proportion of the cus- tomers of a railroad have not a volume of business large enough to warrant equipping themselves with cars, and might be put at a ruinous disadvantage in the attempt to compete with more extensive establish- ments. Aside from this, however, a shipper is not bound to provide a car. The duty of providing suitable facilities for its customers rests upon the railroad company; and if, instead of providing sufficient and suitable cars itself, this is done by certain of its customers, even for their own convenience, yet the cars thus provided are to be regarded as part of the equipment of the road. It being the duty of a railroad company to transport freight for all persons, indifferently, and in the order in which its transportation is applied for, it cannot be permitted to suffer freight cars to be placed upon its track by any customer for his private use, except upon the condition that, if it does not provide other cars sufficient to transport the freight of other customers in the order that application is made, they may be used f6r that purpose. Were this not so, a mode of discrimination fatal to all successful com- petition by small establishments and operators with larger and more opulent ones could be successfully adopted and practised at the will of the railroad company, and the favored shipper. The advantages, if anj-, to the carrier, presented by the tank-car method of transporting oil over that by barrels, in box-cars, in car- load lots, are not sufficient to justify any substantial difference in the rate of freight for oil transported in that way ; but if there were any such advantages, as it is the duty of the carrier to furnish proper vehicles for transporting it, if it failed in this duty, it could not, in justice, avail itself of its own neglect as a ground of discrimination. It must either provide tank-cars for all of its customers alike, or give such rates of freight in barrel packages, by the carload, as will place its customers using that method on an equal footing with its customers adopting the other method. Judgment ousting defendants from the right to make or charge a rate of freight per 100 pounds for transport- ing oil in iron tank-cars, substantially lower than for transporting it in barrels, in carload lots. 536 GEIFFIN V. GOLDSBORO WATEE 00. GRIFFIN V. GOLDSBORO WATER CO. Sdpbeme Court of North Carolina, 1898. [112 iV. C. 206.] Civil action for an injunction, pending in Wayne Superior Court and heard before Timbeelakb, J., at Chambers on 19th April, 1898, on a motion to dissolve a restraining order thereto issued. His Honor con- tinued the injunction to the hearing and defendant appealed. Clark, J. The defendant corporation is the owner of a plant which supplies water to Goldsboro and its inhabitants under a franchise granted b^' the citj'. It has no competition. The complaint alleges that to prevent competition the defendant reduced its rates largely to certain parties who threatened to establish a rival company, but not only did not make a corresponding reduction to the plaintiffs and other customers but proposes to put in meters whereby the rates to plaintiffs and others will be greatly increased, and threatens to cut off the water supply of the plaintiffs if they do not pay the increased rates, which will be to their great injury ; that the rates charged bj- the cor- poration are not uniform and those charged the plaintiffs are unjust and unreasonable. The defendant denies, as a matter of fact, that the rates charged the plaintiffs are unreasonable and contends, as a proposition of law, that the company's rates are not required to be uniform and that it can discriminate in the rates it shall charge. It also relies upon the schedule of rates contained in the contract with the city and avers that the charges to the plaintiffs do not exceed the rates therein permitted. The defendant corporation operates under the franchise from the city, which permits it to lay its pipes in the public streets and other- wise to take benefit of the right of eminent domain. Besides, from the very nature of its functions it is " affected with a public use." In Munn V. Illinois, 94 U. S. 113, which was a case in regard to regulat- ing the charges of grain elevators, it was held that, in England from time immemorial and in this country from its first colonization, it has been customary to regulate ferries, common carriers, hackmen, bakers, millers, public wharfingers, auctioneers, innkeepers, and many other matters of like nature, and, where the owners of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use and must to the extent of that interest submit to be controlled by the public. Probably the most familiar instances with us are the public mills whose tolls are fixed by statute, and railroad, telegraph, and telephone companies, for tlie regulation of whose conduct and ciiarges there is a State Commission, established by law. Tiiere have been reiterated decisions in the United States Supreme Court and in the several States GKIFFIN V. GOLDSBORO WATEE CO. 537 affirming the doctrine laid down in Munn v. Illinois, swjora, and as to every class of interest affected with a public use, among others, water companies. Spring Valley v. Schotller, 110 U. S. 347. The right of fixiog rates is a legislative function which the courts cannot exercise, hut it is competent for the courts, certainly in the absence of legislar live regulations, to protect the public against the exaction of oppres- sive and unreasonable charges and discrimination. "The franchise of laying pipes through the city streets and selling water to the in- habitants being in the nature of a public use, or a natural monopoly, tlic company cannot act capriciously or oppressively, but must supply water to all impartially and at reasonable rates, and an injunction will issue to prevent the cutting off the water supply where the customer offers to paj' a reasonable rate and the company demands an unrear sonable one." 2 Beach Pri. Corp., Section 834 (c) ; Munn v. Illinois, supra; Lurabai'd v. Stearns, 4 Cush. 60. In the 29 A. & E. Enc. 19, it is said : " The acceptance by a water company of its franchise car- ries with it the duty of supplying all persons along the lines of its mains, without discrimination, with the commodity which it was organ- ized to furnish. All persons are entitled to have the same service on equal terms and at uniform rates.'' If this were not so, and if cor- porations existing by the grant of public franchises and supplying the great conveniences and necessities of modern city life, as water, gas, electric light, street cars, and the like could charge an3' rates however unreasonable, and could at will favor certain individuals with low rates and charge others exorbitantly high or refuse service altogether, the business interests and the domestic comfort of every man would be at their mercy. They could kill the business of one and make alive that of another and instead of being a public agency created to promote the public comfort and welfare these corporations would be the mas- ters of the cities they were established to serve. A few wealthy men might combine and, by threatening to establish competition, procure very low rates which the company might recoup by raising the price to others not financially able to resist — the very class which most needs the protection of the law — and that very condition is averred in this complaint. The law will not and cannot tolerate discrimina- tion in the charges of these quasi-public corporations. There must be equality of rights to all and special privileges to none, and if this, is violated, or unreasonable rates are charged, the humblest citizen has tlie right to invoke the protection of the laws equally with any- other. While the defendant cannot charge more than the rates stipulated in the ordinance granting it the franchise, because granted upon that condition, those rates are not binding upon consumers who have a right to the protection of the courts against unreasonable charges. Since the Constitution of 1868, Article VIII, Section 1, if the rates had been prescribed in a charter granted by the Legislature, they would be subject to revocation, and indeed independently of that constitutional 538 COMMONWEALTH V. DELAWAEE AND HUDSON, ETC. CO. provision, Stone v. Farmer's Co., 116 U. S. 307 ; E. Co. v. Miller, 132 U. S. 75; Chicago v. Munn, 134 U. S. 418; Georgia v. Smith, 70 Ga. 694 ; Winchester v. Croxton, 98 Kj-. 739, still less can these rates bind consumers (if unreasonable or discriminating) since the town had authority to grant the franchise but not to stipulate for rates binding upon the citizens. The Legislature did not confer that power. The rates are binding upon the company- as a maximum simpl3- because acting for itself it had the power to accept the franchise upon those conditions. The allegations of fact that the rates are unreasonable and oppres- sive are denied. That they are not uniform is not denied and the de- fendant contended that it had the right to discriminate, which cannot be sustained. On the final hearing the cost and value of the property will be material in determining as to the reasonableness of the rates charged. Smyth v. Ames (known as the "Nebraska Case"), U. S. Supreme Court, 1898. The evidence offered on that point on the hear- ing below is not satisfactory, the mere amount of mortgage bonds issued on the property being no reliable guide to the courts as to the true value of the investment. It may be, as sometimes happens, that the bonds and stocks are watered. Nor is the evidence of the cost of construction and operation conclusive, as has often been held, for it may be that the work was extravagantl3' constructed or is operated under inefficient management and the public are not called on to pay interest upon such expenditures, in the shape of unreasonable or ex- tortionate rates. Missouri v. Smith, 60 Ark. 221 ; Chicago v. Well- man, 143 U. S. 339 ; Livingstone v. Sanford, 164 U. S. 578. The court below properly continued the cause to the hearing. No error. COMMONWEALTH v. THE DELAWARE AND HUDSON CANAL CO. AND PENNSYLVANIA COAL CO. SuPKEME Court of Pennsylvania, 1862. [43 Pa. St. 29.5.1] The agreement referred to in the information, after reciting amongst other things, in substance and effect, that it was not for the interest of the canal company that the surplus capacity of its canal for trans- portation should remain unemployed ; that no companj' would prudently undertake to construct a " railwaj* connecting with it without a cer- tainty of being allowed to transport thereon at a permanent rate of tolls ; that with a view to induce capitalists to invest their funds in the construction of a railroad to be connected with the canal, the company had offered a permanent tariff of tolls on all coal entering the canal on any such railroad ; provides that the canal company will at all timea 1 This case is abridged. — Ed. COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. 539 hereafter furnish' to any and all boats owned or used by the Wyoming Coal Association for the time being, or its assigns, for the purpose of transporting coal entering the canal by railroads connecting with the canal, &c., &c., all the facilities of navigation and transportation which the canal shall afford, when in good and navigable condition and repair, to boats owned or used by any other company or persons, or belonging to or used by or containing coal transported for the canal company, charging and collecting a toll on the coal at a rate per ton to be established in the manner following, viz. : On the 1st day of May in each and every calendar year the quantity of lump coal of the said Delaware and Hudson Canal Company, which shall at that tinie have been sold to be delivered at Rondout, and to arrive by the said canal during the said calendar j'ear, shall be ascertained, and the average price at which such sales have been contracted, shall also be ascer- tained, and from the average price thus ascertained, $2.50 shall be subtracted, and one-half of the remainder shall be the toll per ton during sucli calendar year, except that if any discount or deduction, contingent or otherwise, shall be agreed upon or contemplated in the contracts for such sales, tlie said toll shall be reduced correspondingly to such discount or deduction as shall be actually made. But provided, nevertheless, that if on the 1st day of Ma}', in any calendar j'ear, the quantity of lump coal of the said Delaware and Hudson Canal Com- pany, which shall at that time have been sold as aforesaid, shall be less than one-half the estimated sales for such year, the toll during such year shall be calculated in the manner hereinbefore provided on the average price at which the sales of lump coal for such year shall be actually made ; and if in any calendar year no sales of the coal of the Delaware and Hudson Canal Company shall be made, then and In that case the toll during such year shall be calculated on the sales for such year of the lump coal of the Wyoming Coal Association for the time being, or its assigns, in the manner hereinbefore provided for, calcu- lating the toll on the sales of the said Delaware and Hudson Canal Compau}-. And in case of an enlargement of the said canal, the said president, managers, and company, and their successors and assigns, may also charge and collect an additional toll on the coal transported in pursuance of this agreement, at a rate per ton of 2,240 pounds, to be established after the completion of the said enlargement, in the manner following, viz. : The cost of transportation per ton on the said canal, between the points at which such coal shall enter the said canal and the point on the Rondout creek, at which the said canal meets tide- water, after the full effect of all the improvements previous to the said enlargement shall liave been experienced, shall be fairly ascertained or established ; the cost of transportation per ton on the said canal between those points after the said enlargement shall have been com- pleted shall also be fairly ascertained or estimated, and one-half of such portion of the reduction in the cost of transportation per ton on the said canal between these points as shall be estimated to have 540 COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. been produced bj* the said enlargement, and by no other cause, shall be the additional toll per ton to be thereafter permanently charged." The coutract then provides that until such enlargement the canal company shall not be bound to allow over 400,000 tons to be trans- ported over the canal in anj' one season, and that after such enlarge- ment it shall not be bound to allow such quantity- to be increased so as to exceed in any one season " one-half of the whole capacity for trans- portation of the said canal, exclusive of the tonnage emploj-ed in the transportation of articles other than coal," and the main question was, whether this agreement, made on the 31st day of August, 1847, be- tween the canal company and the Wyoming Coal Association, and re- newed with the Pennsylvania Coal Company, was in excess of the legitimate power of said parties. The defendants were not agreed as to the validity of the contract, the Hudson Canal Company insisting that it was and is contrary to law, vfhile the coal company claimed that it is a valid and binding agreement as between the parties. Separate answers to the information were filed by the defendants, but as the objections to the agreement are all contained in the answers of the canal company, and are suffi- ciently stated in the opinion of this court, it is unnecessary to repeat them here. LowRiE, C. J. . . The information alleges that the agreement in controversy is in excess of the legitimate power of these corporations, and prays that it may be so declared by this court, and that the defendant may be enjoined from acting under it, and also that they may be required to appear and consent to or refuse its cancellation, and for such other decree as may be agreeable to equity'. The infor- mation would have been formally and substantiall3^ improved if it had specially suggested wherein the agreement is in violation of the corporate rights of the defendants. But we may treat this defect as supplied by the answers of the defendants. The defendants have got into a quarrel among themselves about the agreement, and the canal company confesses and claims that the agreement is contrary to law, while the coal company insists that it is not, and claims that it shall stand as the bond and law of the relations between the parties. It is therefore in the answer of the canal com- pany that- we find the objections to the contract specified, and we proceed to consider them. 1. It is objected that the agreement grants to the coal company a monopoly of the one-half of the capacity of the canal of the other party, to the exclusion of the public, because it contracts to furnish to the coal company all the facilities of navigation which the canal will aiford, not exceeding one-half of its whole capacity, inclusive of the tonnage employed in the transportation of articles other than coal. This leaves to all property other than coal its full right of transpor- tation on the canal ; but it does profess to give the coal company a right, as against other carriers of coal,, to a preference to the extent of COMMONWEALTH V. DELAWARE AND HUDSON, ETC. CO. 54^ one-half the capacity of the canal. And this may be wrong if it inteifeies with the claims of others to have their coal carried as cheaply and speedily as that of the coal company. But there is no complaint that anybody has been wronged by this, or that either company has by this actually exercised any function that is exclusive of the public right. When the defendants do in fact transgress the limits of their legitimate functions and interfere with the public rights, then will be the time to bring a charge against them. A mere intention or contract to allow an act that may be wrong, is no ground for an information in law or equity in the nature of the quo warranto. 2. It is objected that the agreement, instead of fixed tolls to be col- lected at the locks according to the charter of the canal company, provides for a rate of toll to be ascertained by the market price of coal in every j-ear, and thus the rate of toll remains uncertain until this price is ascertained, and it cannot therefore be demanded at the locks, and may, in certain states of the coal market, exceed the toll allowed by the charter. We do not see that this objection involves any public grievance. The canal company has a right to commute its tolls ; and we cannot see Ihiit the public has any interest in objecting that it maj' get too much, under the contract of commutation, in a certain contingenc}-, or that it has contracted awaj' part of its means of obtaining the little that it agrees to accept under the contract. At all events, the agree- ment is, bj- itself, no actual transgression of proper functions. 3. But the above objection is repeated on behalf of the public ; that, on account of the uncertaint}' of the toll, the canal company cannot always know how much to demand of others, and therefore cannot do equal justice to all according to its public duty as a canal company. 12 Harris, 138 ; 10 M. & W. 398. But we find no averment or pretence that the public or any private person has suffered an^- wrong by i-eason of this, or that the canal com pan}' has been compelled, in obej'ing this part of the contract, to exercise any functions that do not properly belong to it as a canal company. If it really means to be honest towards the public, we doubt not that it will be able to discover some such reasonable rule of equality in dealing with other carriers that the public will have no reasonable ground of complaint. Exact equality is not demanded, but such a reasonable approximation to it as can be secured by reason- able general rules, free from mere arbitrariness. 4. It is objected that because the tolls are fixed at half the proceeds of the coal after deducting the estimated costs of the production, therefore the canal company is a speculative dealer in coal, which is a departure from the purposes of its creation. We do not perceive that the conclusion follows from the premises. Measuring toll by the profits on the article when sold, is not becoming a dealer in coal, else government would be a dealer in articles that are subjected to an ad valorem tariff. It is very, common for the State to 542 COMMONWEALTH V. DELAWAKE AND HUDSON, ETC. CO. measure taxes according to supposed profits, and we find no public wrong in the canal company doing so in its contract of commutation of tolls. 5. It is objected that such a contract, to be valid, ought to have the sanction of the Legislature, because it affects the interest and income of the State. But it is not any way shown to us that it does so. Nothing like this is averred in the information, and of course we cannot assume it. If either of these corporations do anything under the contract to the interest and income of the State, and contrary to its charter, and this be sliown to us in any regular manner, we shall probably interfere and correct it. But we can do nothing arbitrarily-. We must have some definite allegation and proof of usurpation before we can do anything. The allegation of mere probabilities of wrong raises no question for our interference. 6. It is objected that, since, under the contract, the tolls are measured by the profits, the coal company has the power bj^ sacrificing the regular profits or a portion of them, to control the coal market, and may at its pleasure so depress the price as to ruin manj' of those engaged in the trade, and greatly disturb the public interest without any serious injury to itself, and that it did so last spring. If this had been averred in the information, and proved as one of the grounds of the complaint against the agreement, we should have regarded it as the most serious one of all those that have been urged ; but it is neither alleged nor proved by the Commonwealth. And we incline to think that it is properly- so, for it seems to us that this objec- tion is founded rather on the abuse of the agreement than on the nature of it, and that the remedj- ought to be compensation under the equity, if not the letter, of the agreement, rather than cancellation of it."^ Nothing can be more obvious than that the parties intended to adopt a standard by which the tolls were to be indirectly- measured. But that can be no standard that may be controlled entirely by the will of either party, and neither can be supposed to have intended such a measure of value. They both meant to fix a standard independent of themselves, and in the public market where we look for the natural standard of value. Both of them, as dealers in the market, would have an influence in fixing the market price, and therefore the standard ; but neither of them, dealing according to the fair laws of the trade and of competi- tion in it, could control this standard or would attempt to do it. That is a standard that may well be appealed to, because it is never merely ^ arbitrary, and in trade and in law it is constantly appealed to. These parties are large dealers in coal, and tlierefore their sales are, by the agreement, to be taken as a means of ascertaining tlie market price, and not for the purpose of giving either of them the power to fix that price, or with tlie thought that either of them might do so. If they arbitrarily use their power to change the standard, they necessarily HOOVER V. PENNSYLVAKIA KAILROAD CO. 543 destroy its authority as a standard as in their favor ; for it is not their will, but the fair market price that is appealed to. We are not entitled in this case to inquire how far a trading corpo- ration is liable to control or punishment for recklessly raising or depressing prices, for our sole inquiry is concerning the legality of this agreement. We cannot discover any such illegality in it as would justify us in directing its cancellation. Some of the allegations of the canal company seem to show a great abuse of the agreement by the coal company, but the information is in no degree grounded on that, and we cannot inquire of it, and we must volunteer no opinion as to the fact or its consequences or remedy. Information dismissed.^ HOOVER V. PENNSYLVANIA RAILROAD CO. Supreme Coubt op Pennsylvania, 1893. ' [156 Pa. St. 220.2] Trespass for damages for alleged unlawful discrimination. At the trial, before Furst, P. J., it appeared that, in 1881, the defend- ant agreed to transport coal from the Snow Shoe district to the works of the Bellefonte Iron & Nail Company- for the sum of thirty cents per ton, provided the nail company consumed at least twenty tons per day. It appeared that the coal was to be tariffed at the usual public rate of fifty cents per ton, and that a rebate of twenty cents per ton net would be repaid by the railroad companj' to the nail companj-. In 1889, plaintiffs became retail coal dealers in Bellefonte, and were charged by tlie railroad company the usual public rate for the transportation of their coal. ' Mr. Justice Green. . . . Let us now see what is the voice of the authorities upon the subject of discriminations in freight charges by carrying companies. The subject is an old one. Prior to any statutes in England or in this countrj', the common law had pronounced upon the rights and duties of carriers and freighters, and in the enactment of statutes little more has been done than to embody in them the well- known principles of the common law. It happens, somewhat singu- larly, that the very question we are now considering, of a discrimina- tion in the rates charged to coal dealers and to manufacturers who use coal as a fuel, does not appear to have arisen. And yet it is very certain that such discrimination does prevail, and has prevailed for a long time on all lines of railway and canal. It is highly probable that the absence of litigation upon such discrimination is due to the general 1 Compare: Union Pacific Co. v. Goodridge, 149 U. S. 680. — Ed. * This case is abridged. — Ed. 544 HOOVEK V. PENNSYLVANIA RAILROAD CO. sentiment of its fairness and justness. "Within the writer's knowledge in the section of the State in which he lives, a much greater difference between the rates charged to dealers and those charged to manufac- turers bj- the coal-carrying companies has always existed and now exists, without anj- question as to its justness or its legalit}'. It is matter of public history that along the valleys of the Lehigh and the Schuylkill there are great numbers of blast furnaces, rolling mills, rail mills, foundries, machine shops, and numerous other manufacturing establishments which consume enormous quantities of the coal output of the State, and at the same time in every village, town, and city which abound in these regions, an immensely large industry in the buying and selling of coal for domestic consumption is also prosecuted. And what is true of the eastern end of the State is without doubt equally true throughout the Interior and western portions of the Commonwealth, where similar conditions prevail. Yet from no part of our great State has ever 3-et arisen a litigation which called in question the legality, or the wisdom, or the strict justice of a discrim- ination favorable to the manufacturing industries as contrasted with the coal-selling industries. This fact can scai-celj- be accounted for except upon the theory that such discrimination, as has thus far trans- pired, has not been felt to be undue, or unreasonable, or contrary to legal warrant. In point of fact it is perfectly well known and appre- ciated that the output of freights from the great manufacturing centres upon our lines of transportation constitutes one of the chief sources of the revenues which sustain them financially-. Yet no part of this income is derived from those who are mere buyers and sellers of coal. When the freight is paid upon the coal they buy, the revenue to be derived from that coal is at an end. Not so, however, with the revenue from the coal that is carried to the manufacturers. That coal is consumed on the premises in the creation of an endless variety of products which must be put back upon the transporting lines, en- hanced in bulk and weight by the other commodities which enter into the manufactured product, and is then distributed to the various markets where they are sold. In addition to this, a manufacturing plant requires other commodities besides coal to conduct its operations, whereas a coal dealer takes nothing but his coal, and the freight derived by the carrier from the transportation of these commodities forms an important addition to its traffic, and constitutes a condition of the business which has no existence in the business of carrying coal to those who are coal dealers only. Thus a blast furiiace requires great quaTitities of iron ore, limestone, coke, sand, machinery, lumber, fire bricks, and other materials for the maintenance of its structures and the conduct of its business, none of which are necessary to a mere coal-selling business. These are some of the leading considerations which estalilish a radical difference in the conditions and the circum- stances which are necessarily incident to the two kinds of business we are considering. Another important incident which distinguishes them BAILY V. FAYETTE GAS-FUEL CO. 545 is that the establishment of manufactiiving industries, and the conduct- ing of their business, necessitates the employment of numbers of work- men and other persons whose services are needed, and these with their families, create settlements and new centres of population, re- sulting in villages, towns, boroughs, and cities, according to the extent and variety of the industries established, and all these, in turn, furnish new and additional traffic to the lines of transportation. But nothinc of this kind results fi'om the mere business of coal selling. In fact that business is one of the results of the manufacturing business and is not co-ordinate with it. The business of the coal dealer is promoted by the concentration of population which results from the establish- ment of manufacturing industries, and these two kinds of business are not competitive in their essential characteristics, but naturally proceed together, side bj- side, the coal selling increasing as the manufacturing increases in magnitude and extent. Judgment for defendant?- BAILY w. FAYETTE GAS-FUEL CO. Supreme Court of Pennstltania, 1899. [193 Pa. St. 175.] On September 21, 23, aiid 24, 1898, IJie defendant company caused to be inserted in the Dail}' News Standard, published in Uniontown, an advertisement, notifj-ing domestic consumers of natural gas that after October 1, 1898, the rates for gas would be as follows: For heat, twent3--five cents per 1,000 cubic feet ; for light, $1.50 per 1,000 cubic feet; and requiring all consumers desiring to use gas for light to notif}' the company immediately that the light meters might be set. At or about the same time similar notices were mailed to the company's customers. The plaintiff, a resident of Uniontown, saw the notice as published and also received one by mail. On or about October 3, 1898, an employee of the defendant company notified the plaintiff orally that if he did not call immediatel}' at the defendant's office and make arrangements for using the gas for illumination the gas would be shut off, whereupon the plaintifll' filed the bill in this case, alleging that the proposed difference in charge for gas used for illuminating and heating purposes is an unjust and unlawful discrimination, and an un- reasonable regulation, not made in good faith, but for the benefit of otlier corporations ; that the proposed action of the defendant would be a violation of the plaintiff's rights and the defendant's duties and would work a continuous and irreparable injury to the plaintiff, and praying that the defendant be restrained from shutting off plaintifl^s 1 Contra: Hilton Lumber Co. v. Atlantic Coast Line, 53 S. E. 823. — Ed. 35 546 BAILT V. FAYETTE GAS-FUEL CO. supply of natural gas and from any interference with the connec- tion between its mains or supply pipe and plaintiff's premises, which would prevent him from using natural gas for either heating or illumi- nating purposes, so long as the plaintiff continues to pay the usual rates charged generally for gas, without discriminating as to the use thereof for illuminating purposes, &c. Mitchell, J. The defendant company was chartered under the Act of May 29, 1885, P. L. 29, to produce, transport, supply, &e., natural gas for heat, light, or other purposes. It has been supplying the gas for both heat and light, and proposes to continue doing so, but upon terms making a difference in price according to the use to which the gas is put bj- the consumer. The question now before us is the reason- ableness of this regulation. In his opinion the learned judge below said, " So far as concerns this case the defendant company may be regarded as incorporated for the purpose of supplying natural gas to consumers for heat and light." Not onl^- did its charter powers cover both uses, but as already said its actual operation has included both, and it is not intended now to abandon either, even if that could be done. The corporate powers are the measure of corporate duties. The gas is brought by the company through the same pipes for both purposes and delivered to the customers at the same point, the curb. Thence it goes into pipes put in by the consumer, and, after passing through a meter, is distributed by the customer through his premises according to his own convenience. The regulation in question seeks to differentiate the price according to the use for heating or for light. It is not claimed that there is an}' difference in the cost of the product to the company-, the expense of supplying it at the point of deliver}- or its value to the companj- in the increase of business or other ways. Some effort was made to show increased risk to the companj' from the use of gas for Ughting purposes, but the evidence of danger was so re- mote and shadowy that it cannot be considered as more than a mere makeweight. The real argument seeks to justify the difference in price solely by the value of the gas to the consumer, as measured by what he would have to pay for a substitute for one purpose or the other if he could not get the gas. This i§ a wholly inadmissible basis of dis-- crimination. The implied condition of the grant of all corporate franchises of even quasi-public nature is that tliey shall be exercised without indi- vidual discrimination in behalf of all who desi)-e. From the inception of the rules applied in early days to innkeepers and common carriers down to the present day of enormous growth of corporations for nearly every conceivable purpose, there has been no departure from this prin- ciple. And from all the legion of cases upon this subject the distin- guished counsel for the appellee have not been able to cite a single one in which a discrimination based solely on the value of the service to the customer has been sustained. Hoover v. Penna. R. Co., 156 Pa. LADD V. BOSTON. 547 S20, was much relied on bj' the court below, but was decided on a very different principle. That was an action for damages for unlawful dis- crimination by a dealer in coal, because a manufacturing company had been allowed a rebate on coal carried to it. But it was held that as the rebate was allowed in consideration of a minimum of coal to be carried per day, and also in view of return freight on the product of the manufacturing company, it was not an unreasonable discrimina- tion ; in other words, that the company might look for its compensation not only to the actual money freights from present service, but also to increased business to grow out of the establishment of a new industry in that place. So also Phipps v. London & North Western Ry. Co., L. R. 1892, 2 Q. B. 229, cited for appellee, where the decision was put upon the right of the railroad to make special rates for freights from distant points which otherwise it could not get at all. Both cases belong to the numerous class of discrimination sustained on the basis of special advantages to the carrier, not the customer. Decree reversed, injunction directed to be reinstated and made permanem. Costs to be paid by appellee. LADD V. BOSTON. Supreme Court of Massachusetts, 1898. [170 Mass. 332.1] Bill in equity, filed December 31, 1896, alleging the following facts. The plaintiff is the owner of a building on Pemberton Square in Boston, and the defendant supplies the water to be used therein. The defendant has established, and still continues, fixture rates and meter rates, in accordance with which it requires water takers to pay for the water they use. Many years ago tlie defendant put a water meter into the building owned by the plaintiff, and has maintained the same there ever since. At the time the meter was put in, the plaintiff, relying upon its continuance, supplied his building very liberally with water fixtures. By the meter rates, the water used in the building amounts to about five dollars each year, but the plaintiff has always paid fifteen dollars per annum, that being the minimum meter rate. The defendant has recently adopted a policy' of removing all meters where it would receive more mone3' from fixture rates, without any re- gard to the injustice it will work to certain water takers. In accord- ance with such polic}', it now threatens to remove said meter and put the building upon fixture rates, and to shut off the water unless the plaintiff allows it to do so. By fixture rates for all the fixtures in the building * The case is abridged, — Ed. 548 LADD V. BOSTON. in actual use the plaintiff would be required to pay about one hundred and five dollars per annum. The water fixtures in the building cannot be lessened or rearranged without very great expense, and in no way can they be so lessened or rearranged as to make the fixture rate in any sense reasonable for tlie quantity of water used. The income from the building has largely decreased in the last few yeara, and is not suf- ficient to warrant the payment of such excessive water taxation. The plaintiflf has suggested to tlie defendant that the minimum meter rate be reasonably increased if it be not now large enough to be just to fixture-rate water takers, and he has offered to furnish his own private meter and pay for repairs on the same if he could thereby continue to enjo}' meter rates ; but this suggestion has been declined, and this offer refused. If the building is placed upon fixture rates, the plaintiff will be obliged to pay more than twenty times as much as other water takers pay for the same quantity- of water. ' Knowlton, J. . . . Considerable discretion in determining the methods of fixing rates is necessarily given by the statute to the water commissioner. Money must be obtained from water takers to reim- burse the city wholl3' or in part for the expense of furnishing water. An equitable determination of the price to be paid for supplying water does not look alone to the quantit}' used by each water taker. The nature of the use and the benefit obtained from it, the number of per- sons who want it for such a use, and the effect of a certain method of determining prices upon the revenues to be obtained b}- the city, and upon the interests of property-holders, are all to be considered. Under any general and uniform sj-stem other than measuring the water, some will pay more per gallon than otiiers. It appears by the bill that the plaintiff has so arranged fixtures in his building that he and his tenants can obtain the convenience and benefit of having water to use in many places, while the quantity which they want to use in the whole building, paid for at the rale per gallon charged for measured water, would cost only five dollars per year. He has been accustomed to pay fifteen dollars per j-ear, because, however small the quantity used, that is the lowest sum per j-ear for which water will be furnished under the rules through any meter. The only averment in the bill which tends to show that the charge for his building after the meter is removed will be unreasonable, is that he " will be obliged to pay more than twenty times as much as other water takers pay for the same quantity of water." This means that the arrangement of fixtures in liis building is such that, paying by the fixture at the ordinary rate, the aggregate quantity used will be so small as to make the price per gallon twenty times aS much as the price paid for measured water where meters are allowed to be used, or the lowest price paid at rates by the fixture where the largest quantities are used through the fixtures. This does not show that charging by the fixture is an improper method. It only shows that the numbei-'and arrangement of the fixtures in the plaintiff's building are uneconomical STATE EX KEL. CUMBERLAND, ETC. CO. V. TEXAS, ETC. RAILROAD. C-19 for the owner as compared with a different construction and arrange- ment of tlie conveniences for using water in some otlier buildings. The rights of the parties are not affected bj^ the fact tliat the plaintiff was using a meter when he put in his fixtures. He knew that he had uo contract for the future with the cit}- in regard to the mode of flxinw the price to be paid for water, and it appears that the quantity which he has been using is only about a third of the smallest quantity for which water is ever charged by the gallon, running through a meter. The bill does not state a case for relief in equity. £ill dismissed. STATE EX REL. CUMBERLAND TELEPHONE AND TELE- GRAPH CO. V. TEXAS AND PACIFIC RAILROAD CO. Supreme Court of Louisiana, 1900. [28 -So. Rep. 284.1] Br.ANCHARD, J. . . . Defendant company is, quoad its lines in Louisiana, a Louisiana corporation. It acquired by purchase and ah- sorption the franchise rights and lines of the New Orleans Pacific Rail- way Company, which held under a legislative charter from the State of Louisiana, and whose domicile was the citj' of New Orleans. See Act No. 14, Acts La. 1876, and articles of agreement of consolidation between the Texas Pacific Railwaj' Company and the New Orleans Pacific Railway Company, found in the record. It is not true that the court, in its decree heretofore rendered, has assumed the authority to manage defendant company's railway and to direct the running of its trains. All the decree does is to require of the company the perform- ance of the same service for relator that it has extended to others, notably the Western, Union- Telegraph Companj'. The evidence estab- lishes that poles and materials for the construction, repair, and main- tenance of the Western Union lines have been distributed by the cars of plaintiff company between stations, and that this has been going on for years, and still goes on. It also establishes that it has been con- stantly the practice of defendant company to deliver freight for planters and others between stations, and to receive for transportation, at points between stations, rice, sugar, &c. This being shown, it is held that the company may not discriminate, and, when called upon under con- ditions that are reasonable, must perform the like service for relator; and the duty, being of a public nature, is enforceable by mandamus. The evidence also shows that the same service herein required of de- fendant company has been freely accoi'ded this relator and others by other railroad companies over their lines in this and other States. Relator, it appears, owns its own cars, on which are loaded its tele- • 1 This case is abridged. — Ed. 550 CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. phone and telegraph poles. It applied to defendant company to haul these cars over its lines between New Orleans and Shreveport and throw the poles off, or permit them to be thrown off, at convenient dis- tances. Other railroad companies, operating lines of railway into and out of New Orleans, had done this, and defendant company does the same for the Western Union Telegraph Companj', a rival line. It re- fused the service to relator. That it is the province of the court to say to this common carrier, " What you do for others you cannot refuse to relator," cannot, we think, be seriously questioned. And in so say- ing, and enforcing by its writs the performance of the dutj-, it is not apparent that defendant company is denied any of the rights, privUeges, and immunities granted to it by the several acts of Congress referred to in the application for rehearing and in the briefs filed on its behalf. The rehearing applied for is denied. CITY OF MOBILE v. BIENVILLE WATER SUPPLY CO. Supreme Court of Alabama, 1901. [so So. Bep. 445.1] Appeal from Chancery Court, Mobile County ; Thomas H. Smith, Chancellor. Bill by the Bienville Water Supply Company against the city of Mobile and others. Demurrers to the bill were overruled, and defend- ants appeal. Hakalson, J. ... 3. The bill alleges that complainant is a corpora- tion chartered by the State for the purpose of supplying and selling water to the city of Mobile and to its inhabitants ; that it has laid its mains and pipes in the streets of the city and established its plant at an expense of over $800,000, and is supplying water to customers in the city for family use, sewerage, and other purposes ; that the city of Mobile, by an act of the 30th November, 1898, was authorized to con- struct a system of waterworks and sewers for the use of Itself and its inhabitants, and was empowered to collect such rates for water sup- plied for the use of said sewerage system as shall be sufficient to pay the interest on the bonds issued by it for the purpose of providing said waterworks and sewerage systems and the expenses necessary for operating ; such rate not to exceed the usual and customary rates charged by other cities similarly situated for like service. It was further shown, that by act February 1.5, 1899, entitled " An Act to promote the health of the city of Mobile," «&c. (Act 1898-99, p. 895), the city was empowered to compel connections with its sewers, and for the use thereof, "to fix and charge such reasonable rates for 1 This case is abridged. — Ed; CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. 551 the purpose of maintaining and operating said sewerage sj-stem and paying tiie interest on the bonds issued by the city of Mobile to build said sewerage system, as said mayor and general council may deem proper ; " that it was empowered by another act (Acts 1898-99, p. 16), to issue $750,000 of bonds, secured by mortgage on its water and sewerage system, of which $500,000 was to be used for buying or building waterworks, and 6250,000 for buying or building sewers ; that it has issued and sold said bonds and built both systems, expending over $500,000 for the water System, and not over 8200,000 for the sewer system ; that it is operating both systems, and from its water- works is furnishing water to itself and its inhabitants, and is supplying water on about twenty miles of etreets upon which there are no sewers. The averment is made, that the city has never fixed any rate for the use of its sewers alone, but it will not allow any customers of com- plainant's water to connect with or use its sewers, except at the same price as the city charges for both its water and sewers together, in effect forcing its citizens and inhabitants to take the water of the cit}-, or to pay for the water of complainant in addition to what each citizen would have to pay for the city's water and sewerage together, discrimi- nating, as is alleged, against complainant and making it, in effect, fur- nish water for nothing, or to lose its customers by reason of the double charges so imposed on them ; that the city through its officers and agents threatens the people of Mobile that they will not be allowed to use the sewers, unless they subscribe for and take the citj' water, and that they will not be allowed to use the water of complainant in con- nection with the city's sewers ; that the city has the phj-sieal power, by means of its police force, to enforce this threat, and it is thus intimidat- ing the customers of complainant, and compelling them to leave com- plainant and take the water from the city waterworks, and upon their desiring to return, the city, through its officers, have refused to let them disconnect from the city's pipes or to connect with complainant's. It is further averred that the city charges its own customers on streets where there is no sewer service, the same rate that it charges others for both water and sewers, along streets where said sewers are laid, which, it is alleged, is a discrimination in charges for sewerage, not only against complainant and its customers of water, but also against all consumers of water and customers of the city, not on streets or lines where the sewers are laid. It is also averred that the city is insolvent, so that nothing can be made out of it by execution at law. . 4. The first, second, third, fourth, and fifth grounds of demurrer to the amended bill may be grouped as raising in different forms, the same question. To state the contention of defendant in th£ language of counsel, these "grounds of demurrer challenge the sufnciency of the bill as amended, upon the ground that the bill shows that the servants and agents of the city exceeded their power and authority, [and] should have been sustained," the contention being " that said acts and 552 CITY OF MOBILE V. BIENVILLE WATER SUPPLY CO. doings of said officers and agents, as charged in said bill as amended, were void and not binding upon the city of Mobile." The bill alleges, however, ver3' distinctly that the city is committing the wrongs com- plained of througli its officers and agents, a fact the grounds of de- luun-er specified clearly overlook. The city could, of course, commit the alleged wrongs in no other way, except through its agents and officers. If the acts of the city are warranted by law, it could not be enjoined from committing them. The wrongfulness of these acts is, therefore, the only predicate for relief. 5. The other grounds of demurrer to the original, reflled to the amended bill, and those added to the bill as amended, raise the more serious question to be decided. » From the facts of the case, as above recited, if true, — as they must be taken on demurrer, — it distinctly appears that the citj-, while it has the authority to do so, has never, by ordinance, fixed anj- charge or rate for the use of its sewers, and, indeed, is making no charge to its own customers for thfe use of the same ; that it charges anj- one using its water alone as much as it charges another for the use of both water and sewer; and against those who use the complainant's water, it charges for sewer service alone as much as it charges its own cus- tomers for both water and sewerage, — thus making its sewers free to those who use its water, while it imposes on complainant's customers a discriminating and onerous charge for the use of its sewers, — as much, as is alleged, as it charges for its own water and sewerage in addition. Whether intended by the city to so operate or not, one can scarcely conceive of a more effective scheme to deprive the complainant of its customers than the one alleged in the bill. If complainant has to furnish its customers with water, and they are required by the city to pay for sewerage the same price it charges its own customers for its water and sewerage, it follows the complainant would have to furnish water practicallj- free or abandon the business ; for it would be unrea- sonable to suppose that an}' one would use the complainant's water and bear the additional expense imposed for so doing. These sewers of the city are for the public at large, and every one should be per- mitted to use them without any discrimination in charges against him. The franchise to construct sewers being in the nature of a public use, the dutj- is on the citj- to supplj- sewerage rates to all impartiall}- on reasonable terms. As is said In- Mr. Bates, " All persons are entitled to have the same service on equal terms and on uniform rates." In addition, it is averred, as seen, that citizens are notified by the city that they cannot use its sewers unless they subscribe for the city water, and customers of complainant, desiring to return to it, are forbidden by the city from disconnecting from its pipes and connecting with com- plainant's, — a threat the city has the physical power to enforce. If these wrongs exist, they should be remedied. The complainant is far more interested and injured than any one or all of its customers. It cannot live and enjoy the rights and privileges bestowed on it by its PHIPPS V. LONDON AND NORTH WESTERN RAILWAY. 553 cliarter, if by unjust discriminations on the part of the citj- in operating its sewer system, its customers are taken from it. Its customers mi^ht not be willing to incur the trouble and odium of litigation to redress the private wrongs thus done to them, even at complainant's expense. But, complainant itself has rights which should be protected against such alleged wrongs, and is entitled to seek redress in its own name. The city should on considerations of highest equity and justice, as by its charter it is authorized to do, fix a rate for sewer service, distinct from the rate fixed for the use of its water, and this rate should be the same to all persons, including the complainant and its customers, or, it should make them free to all, without discrimination. In other words, these sewers should be used to promote the public health, as free to one person as another, or open to all, if any rate of charges is fixed, on equal terms and on uniform charges for their use. No more than this can be justly and legally claimed by the city under its authority from the Legislature, to establish its sewer system. 6. The complainant is entitled, upon the facts stated, to the re- straining power of a Court of Equitj-, to remedy the wrongs of which it complains. These continuing wrongs must work irreparable injury, and, as is alleged, the city, the perpetrator of the wrongs, is insolvent. High, Inj. §§ 1236, 1275 ; 3 Pom. Eq. Jur. § 1368. There was no error in overruling the demurrer to the bill. Affirmed. PHIPPS V. LONDON AND NORTH WESTERN RY. CO. Court of Appeal, 1892. [1892, 2 Q. B. 229.1] This was an appeal against so much of an order of the Railway Commissioners as dismissed an application made bj' the executors and trustees of the late Mr. Pickering Phipps, an owner of iron furnaces at Duston, for an order enjoining the London and North Western Rail- way Company to desist from giving undue and unreasonable preference or advantage to the owners of iron furnaces at Butlins and Islip in re- spect of charges for the conve3-ance of pig iron to the South StaflFord- shire markets. The 2d section of the Railway and Canal Traffic Act, 1854, enacts that no railway companj' " shall make or give any undue or unreason- able preference or advantage to or in favor of anj' particular person or company, or any particular description of traffic, in any respect what- soever, nor shall any such company subject any particular person or companj', or any particular description of traffic, to any undue or un- reasonable prejudice or disadvantage in any respect whatsoever." 1 This case is abridged. — Ed. 554 PHIPPS V. LONDON AND NORTH WESTEKN RAILWAY. The effect of the 27th and 29th sections of the Railway and Canal Traffic Act, 1888, is shortly as follows : — By section 27, first, whenever it is shown that any railway company charge one trader or class of traders, or the traders iu any district, lower tolls, rates, or charges, for the same or similar merchandise or services, than they charge to other traders or classes of traders, or to the traders in another district, or make any difference in treat- ment in respect of such traders, the burden of proving that such lower charge or difference in treatment does not amount to an undue prefer- ence is to lie on the railway company ; and, secondly, in deciding whether a lower charge or difference in treatment amounts to an undue preference, the court, or the commissioners, may, so far as the3- think reasonable, in addition to any other considerations affecting the case, take into consideration whether such lower charge or difference in treatr ment is necessary for securing in the interests of the public the traffic in respect of which it is made, and whether the inequality cannot be removed without unduly reducing the rates charged to the complainant. By section 29, any railway company may, for the purpose of fixing their rates for the carriage of merchandise on their railway, group to- gether anj' number of places in the sarhe district situated at various distances from any point of destination or departure of merchandise, and charge a uniform rate in respect thereof, provided that the dis- tances are not unreasonable and no undue preference is created. The sidings of the Duston furnaces were situated on the London and North Western Railway Company's line at a distance of about sixty miles from Great Bridge, one of the pig iron markets to the. westward. Tlie sidings of the Butlins and Islip furnaces were situated on the same line to the east of th*e Duston furnaces, and at a distance from the market as to Butlins of about seventy-one miles, and as to Islip of about eighty-two miles. Duston was dependent for its railway carriage on the London and North Western Company alone, but Butlins and Islip had both of them access not only to the London and North West- ern, but also to the Midland Railwa}-. The branch lines on which the Butlins and Islip sidings were situate united at a point to the westward, so that they were nearly equidistant from the western markets. The London and North Western Railwaj' Companj- had, for charging pur- poses, grouped Butlins and Islip together ; and although thej' carried the Islip pig iron eleven miles further than the Butlins, they made the same charge from both those places. The Midland Railway also charged the same rate and the same total charge per ton for the car- riage from Butlins and Islip. The London and North Western Railway Company, who carried the Butlins pig iron eleven miles further and the Islip pig iron twenty-two miles further than the Duston pig iron, charged Butlins 0.95