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question very fully, and concluded that "to hold that the directors of this corporation, in determining the number, place, and size of its stations and other structures, having regard to the public convenience as well as to its own pecuniary interests, can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority in analogous cases."

§ 226. Progressive view of the question of stations.

The progressive view of the question is taken in several courts, which allow the writ of mandamus to issue to compel the railroad to establish stations in reasonable places. A leading case is that of the People v. Chicago and Alton Railroad. This was a petition for a writ of mandamus to compel the defendant to establish and maintain a station at Upper Alton. The court stated the facts as follows: "It cannot be doubted, we think, that the facts alleged make out a clear and strong case of public necessity. They show that Upper Alton is a town of over 1,800 inhabitants, situated on the line of the defendant's railway about midway between two other stations seven miles apart. The residents of the town and vicinity are shown to be possessed of at least the ordinary inclination to travel by railway, and it is averred that many of them have occasion and desire to travel by the defendant's railway between Upper Alton and other points on the line of said railway. Various manufacturing and other business enterprises are shown to be carried on within the town, creating a necessity for the use of said railway for the transportation of manufactured articles, merchandise, and other freights. To avail themselves of transportation upon trains which pass by their doors, the inhabitants of Upper Alton are compelled to go and transport their freights by other conveyances to a neighboring town about three and one-half miles away."

130 Ill. 175, 22 N. E. 857, B. & W. 226 (1889).

On these facts, the court held that the alternative writ should issue. Mr. Justice Bailey said: "It is undoubtedly the rule that railway companies, in the absence of statutory provisions limiting and restricting their powers, are vested with a very broad discretion in the matter of locating, constructing, and operating their railways, and of locating and maintaining their freight and passenger stations. This discretion, however, is not absolute, but is subject to the condition that it must be exercised in good faith, and with a due regard to the necessities and convenience of the public. Railway companies, though private corporations, are engaged in a business in which the public have an interest, and in which such companies are public servants, and amenable as such.

"As we have already said, the petition directly avers, and the demurrer admits, that the accommodation of the public living in and near said town requires, and long has required, the establishment of a passenger and freight depot on the line of its road within said town. Unless, then, there is some explanation for the course pursued by the defendant which the record does not give, we cannot escape the conviction that its conduct in the premises exhibits an entire want of good faith in its efforts to perform its public functions as a common carrier, and an unwarrantable disregard of the public interests and necessities. It cannot be admitted that the discretion vested in the defendant in the matter of establishing and maintaining its freight and passenger stations extends so far as to justify such manifest and admitted disregard of its duties to the public."

This case has been followed in Illinois, 10 and the same conclusion has been reached in other States.11 In New Hampshire

10 Mobile & O. R. R. v. People, 132 Ill. 559, 24 N. E. 643, 22 Am. St. Rep. 556, B. & W. 230 (1890), where, however, the petitioner failed to make out a case on the facts.

11 State v. Republican Valley R. R., 17 Neb. 647, 26 N. W. 329, 52 Am. Rep. 424 (1885); Chicago & N. W. R. R. v. State (Neb.), 103 N. W. 1087

it was held that a writ would issue, under certain circumstances, to compel the defendant railroad to join with the relator in erecting and maintaining a union station in the city of Manchester.12 In an opinion, written by Mr. Chief Justice Doe, but delivered per Curiam after his death, the court said: "It is conceded that the public good requires that there should be a union passenger station in the city of Manchester, to be used by the railroads connecting at that point, for the accommodation of the public, as well as for their own convenience and advantage. From this concession it necessarily follows that it is the legal duty of the parties to locate, erect and maintain such a depot as public necessity requires. The fact that they are unable to agree upon a suitable location does not relieve them from that duty."

§ 227. Carriers between certain stations only.

There is some authority in the English cases for the proposition that a carrier may limit his undertaking not only as to the nature of the goods carried, but also as to the points between which he will carry certain goods; so that, for instance, a railway having established three stations, and being a carrier of both coal and iron, might be a common carrier of iron between stations 1 and 2 only, and of coal between stations 2 and 3 only, refusing to receive for carriage iron at station 3 and coal at station 1. Thus, in Johnson v. Midland Railway,18 Baron Parke said "He may limit his obligation to carrying from one place to another, as from Manchester to London, and then he would not be bound to carry to or from the intermediate places." And following this opinion the Court of Common Pleas, In re Oxlade and the Northeastern Railway,11 held it competent for the railway to restrict their coal traffic to the carriage of coal for col

(1905); Concord & M. R. R. v. Boston & M. R. R., 67 N. H. 464, 41 Atl. 263, B. & W. (1893).

12 Concord & M. R. R. v. Boston & M. R. R., supra.

13 4 Ex. 367 (1849).

14 15 C. B. N. S. 680 (1864).

liery owners from the pit's mouth to stations where such colliery owners have sales or depots appropriated to them for the reception and sale of their coals, and to decline to carry coals from station to station, or for coal merchants; such an arrangement, as they found, being essential to the regulation of the large traffic in that article.

Chief Justice Earle said: "I am of opinion, seeing the large amount of traffic in coals upon the North Eastern Railwayupwards of 8,000,000 tons per annum-there is very good reason for the company saying that they will carry coals for colliery owners only. These may wait until the company are ready to receive them; but coals belonging to others, when once afloat on the line, are not managed with the same facility. I think the company have a perfect right to say that they will carry coals only for colliery owners."

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Although this case was cited with approval and made the basis of the decision of a recent case in the Federal Circuit Court, it is very doubtful whether it has ever represented the law in the United States. The spectacle of a railroad permitted to carry for every colliery-owner on its route, yet to refuse to carry for a private owner, would hardly appeal to the sense of law and justice of an American court. Nor would the more general suggestion, that a carrier could (for one class of goods or for all goods) refuse to become a common carrier at a way-station, meet with much more favor. If the coal of a private owner or goods tendered at a way station can be refused, the refusal must be grounded upon some legal excuse, not upon a denial that the common carrier's obligation exists.

15 Harp v. Choctaw, O. & G. Ry., 118 Fed. 169 (1902). This was affirmed on a different ground, 125 Fed. 445, 61 C. C. A. 405 (1903).

CHAPTER VIII.

EXCUSES FOR REFUSAL TO SERVE.

§ 231. General principles governing excuses.

TOPIC A-ILLEGALITY INVOLVED IN SERVICE.

§ 232. Duty not to abet illegality.

233. No right to exclude unless illegality involved.

234. Where refusal is made necessary by law.

235. Whether excused from serving by Sunday laws.

236. Whether excused from transporting intoxicating liquors for illegal sale.

237. Excused from carrying passengers who intend to do illegal acts.

TOPIC B-PROTECTION OF OTHERS SERVED.

$238. Exclusion of persons dangerous or annoying to other passengers. 239. Violent persons may be excluded.

240. Insane persons may be excluded.

241. How intoxicated persons must be treated.

242. Exclusion of indecent and profane persons.

243. Exclusion of persons who bring dangerous or obnoxious articles to the vehicle.

TOPIC CAPPLICANT UNDER DISABILITY.

§ 244. How far blind persons may be excluded.

245. How sick persons must be treated.

TOPIC DREFUSAL UPON PERSONAL GROUNDS.

§ 246. General obligations to serve all.

247. Refusal to carry because of color or race.

248. Refusing distasteful people.

249. Refusing on moral grounds.

§ 231. General principles governing excuses.

Although, as has been seen, it is the duty of those in public calling to serve all who apply that are within the public profession, who have fulfilled all conditions precedent unless there is justification, yet there are many and various excuses for

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