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to the necessities and conveniences of the public." 1 The burden is on those demanding the location of a station or the running of certain trains to prove the right to have it established; so of a switch to a private warehouse which has been discontinued. The court will never order a railroad station to be built or maintained contrary to the public interest. The right may be judicially determined."

An innkeeper, being required to receive everybody without discrimination, is not required to insure the honesty of his guests, and is responsible for loss caused through their dishonesty only when his negligence contributes to the loss. So a carrier, being under the same obligation, must in the charges for traffic be allowed to exercise that latitude of discretion necessary to enable him to handle all traffic without being made liable for incidental loss by shippers not caused by his negligence. "The equality to be observed in relation to the public and to every individual consists in the restricted right to charge, in each particular case of service, a reasonable compensation and no more. If the carrier confines himself to this, no wrong can be done, and no cause afforded for complaint. If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of any class for individuals for a certain time or in certain quantities for less compensation than what is the usual, necessary, and reasonable rate, he may

People v. Chicago & Alton R. R., 130 Ill. 175.
Mobile & Ohio Railroad v. People, 132 Ill. 559.

. Jones v. Newport News, etc., Co., 65 Fed. 736.

• Northern Pacific Railroad v. Washington, 142 U. S. 492.

* Concord & Montreal R. R. v. Boston & Maine R. R., 67 N. H. 465.

Anonymous, Moore, 78, pl. 207.

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undoubtedly do so without entitling all other persons and parties to the same advantages.' But the special reason must be justifiable. A railroad company is invested with important prerogative franchises, among which are the rights to build and use a railway, and to charge and take tolls and fares. These prerogatives are grants from the government, and public utility is a consideration for them. If they had remained under the control of the State, it would not have been legitimate to favor one citizen at the expense of another. Nor, when such rights are handed over, on public considerations, to a company of individuals, do they lose their essential characteristics. In the use of such franchises, all citizens have an equal interest and equal rights, and all must, under the same circumstances, be treated alike. It is not, under these principles, unreasonable to provide less rates where a large amount of water is used than where a small quantity is consumed. That principle is found in contracts and charges relating to electric lights, gas, private water companies, and the like, and is not unreasonable. But an unnecessary charge of two cents a ton of coal charged by a railroad and dock company through a rule requiring shovelers hired and paid by the railroad company to be used is unreasonable. In the absence of facts which reduce the cost, as a contract to ship a large amount yearly, or return freights," a per ton charge to one shipper greater than to his competitors

Fitchburg R. R. Co. v. Gage, 12 Gray, 393.

Messenger v. Pennsylvania Railroad Company, 7 Vroom (36 N. J. L.), 407, 8 Vroom (37 N. J. L.), 531.

Silkman v. Water Commissioners, 152 N. Y. 327.

4 318 Tons of Coal, 14 Blatch. 453.

'Phipps v. London & North Western Ry. Co., L. R. 1892, 2 Q. B. 229; Hoover v. Pa., 156 Pa. St. 220.

is unjust;1 nor is it a justifiable reason that shippers may be discouraged from favoring other lines by offering less rates to those who do not.' But such a contract would be lawful in the exercise of a private calling. A rebate on the freight on coal contracted for ten years in consideration of the construction of a dock and coal pocket partly for the use of the railroad and other considerations is not unlawful. The franchise of laying pipes through the city streets and selling water to the inhabitants being in the nature of a public use or a natural monopoly, the company cannot act capriciously or oppressively, but must supply water to all impartially and at reasonable rates, and an injunction will issue to prevent the cutting off of the water supply where the customer offers to pay a reasonable rate and the company demands an unreasonable one." Exact equality is not demanded, but such a reasonable approximation of it as can be secured by reasonable general rules, free from arbitrariness. A discrimina

tion based solely on the value of the service to the customer has never been sustained, and a charge of less for gas used for heat than for gas used for light where the gas is the same and comes through the same pipes is a discrimination against those who use gas for light, and is illegal. But a city may compel users of water to pay by the fixture or by meter, that is, for the

1 Hays v. The Pennsylvania Company, 12 Fed. 309.

2 Menacho v. Ward, 27 Fed. 529.

3 Whitwell v. Continental Tobacco Co., 125 Fed. 454.

4 Root v. Long Island Railroad, 114 N. Y. 300.

5 Munn v. Illinois, 94 U. S. 113; Griffin v. Goldsboro Water Co.,

112 N. C. 206; Lumbard v. Stearns, 4 Cush. 60.

295.

• Commonwealth v. Delaware & Hudson Canal Co., 43 Pa. St.

Bailey v. Fayette Gas-Fuel Co., 193 Pa. St. 175.

accommodation instead of the volume of water. But a city supplying water itself cannot compel users of the water supplied by a private water company to pay as much for the use of sewers as it charges others for both sewerage and water. A less charge for a long haul on a through rate than for a shorter haul is not necessarily unreasonable."

"Prior to any statute in England or in this country, the common law had pronounced upon the rights and duties of carriers and freighters, and in the enactment of statutes little more has been done than to embody in them th well-known principles of common law."

"Congress did not intend (by the Anti-Trust Law) to reach and destroy those minor contracts in partial restraint of trade which the long course of decisions at common law had affirmed were reasonable and ought to be upheld. Whenever a departure from common law rules and definitions is claimed, the purpose to make the departure should be clearly shown. Such a purpose does not appear and such a departure was not intended." "

But even in case of a departure from the common law the purpose of the legislature cannot be carried

While a person exercising a public calling cannot stipulate higher rates than those stipulated in a contract with the government, because granted upon that condition, yet those rates are not binding upon consumers, who have a right to the protection of the courts against unreasonable charges. A city may 1 Ladd v. Boston, 170 Mass. 332.

Mobile v. Bienville Water Supply Co., 30 So. Rep. 445.

Phipps v. London & N. W. Ry. Co., 1892, 2 Q. B. 229; Cincinnati, N. C. &. T. P. Ry. Co. v. I. C. Com., 162 U. S. 184.

4 Mr. Justice Green in Hoover v. Pennsylvania, 156 Pa. St. 220. • Brewer, J., in Northern Securities Case, 193 U. S. 268.

have the right to grant a franchise, but it can have no right to stipulate for rates binding upon the citizens; the rates are binding upon the company as a maximum simply because, acting for itself, it had the power to accept the franchise upon those conditions. Rates, to be binding on consumers, must be not only non-discriminating but reasonable. 1

§ 139. THE COURTS MAY GIVE AMPLE REmedy UNDER THE COMMON LAW. Carriers cannot be subjected to any restriction of rates by statute beyond (nor given any immunity thereby from) the restraint imposed by the common law.

As an authority and encouragement for the extension of railroads, there was passed the Act of Congress of June 15, 1866, which provided:

"That every railroad in the United States whose road is operated by steam, its successors and assigns, be, and is hereby authorized to carry upon and over its road, boats, bridges, and ferries all passengers, troops, Government supplies, mails, freight, and property on their way from one State to another, and to receive compensation therefor, and to connect with roads of other States so as to form continuous lines for the transportation of the same to the place of destination."

This was the situation in the law until the Interstate Commerce Law put the common law in statute form and gave certain rights of preliminary action to the Commission. The cases, however, under the law of 1887 and the amendment of 1890 and the Elkins law

1 Griffin v. Goldsboro Water Co., 112 N. C. 206; Livingstone v. Sandford, 164 U. S. 578; Anonymous, Y. B. 10 H. 8, pl. 14; Bastard v. Bastard, 2 Shower, 81.

2 R. S. sec. 5258.

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