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Sec. 516. (§ 300.) Same subject.-In Standford v. The Railroad Company,5 a bill in equity was resorted to for the purpose of restraining the railroad from the performance of a contract by which it had attempted to grant to an express company the exclusive privilege of carrying freight upon its passenger trains, to the detriment, as was alleged, of the complainant, another express company, who had been denied the same privilege. The court held that the injunction was proper, and ordered that the contract should be canceled, using this language: "Limited means may perhaps limit the amount of business done by a railroad company, but it can never furnish an excuse for appropriating its energies to any particular individuals. If it possesses this power, it might build up one set of men and destroy others, advance one kind of business and break down another, and might make even religion and politics the tests in the distribution of its favors. Such a power in a railroad corporation might produce evils of the most alarming character. The rights of the people are not subject to any such corporate control. Like the customers of a grist-mill, they have a right to be served, all other things equal, in the order of their applications. A regulation, to be valid, must operate on all alike. If it deprives any persons of the benefits of the road or grants exclusive privileges to others, it is against law and void."

The doctrine of the above three cases is also the law in England.

Sec. 517. (§ 300a.) Same subject-The "Express Cases" in the United States supreme court. This whole question of the legal right of express companies to transact their business. upon the railroads of other corporations was exhaustively considered and conclusively settled as to interstate commerce by the United States supreme court in what are known as the Express Cases. In these cases, which were considered together, it appeared that the respective express companies had

5. 24 Pa. St. 378.

6. Pickford v. Railway Co., 10 M. & W. 399; Parker v. Railway

Co., 7 M. & G. 253.

7. 117 U. S. 1.

been doing business over various lines of railroad in pursuance of contracts to that effect, which determined the rights and obligations of both parties, and which also provided that the contract might be terminated by either party upon giving a stipulated notice. The railroad companies having terminated the contracts in accordance with their terms, the actions were brought by the express companies to compel the railroads, as common carriers, to permit the express companies to continue, as a matter of legal right, to transact their business substantially as they had previously transacted it under these contracts. The court below granted the relief prayed by the express companies, but the supreme court reversed the decree, holding, in substance, that railroad companies are not required by usage or by the common law to transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled; that they are not obliged, either by common law or usage, to do more as express carriers than to provide the public at large with reasonable express accommodation; and that they need not, in the absence of a statute requiring it, furnish to all independent express companies equal facilities for doing an express business upon their passenger trains.10

Sec. 518. Right of one express company to use the facilities of another express company.-Undoubtedly one express company has the same right as the general public to make

8. Mr. Justice Miller, Circuit Judge McCrary and District Judge Treat concurred in the decision below.

Sargent v Railroad Co., 115 Mass. 416; Atlantic Express Co. v. Railroad Co., 111 N. C. 463, 16 S. E. Rep. 393, 18 L. R. A. 393, 32 Am.

9. Justices Miller and Field dis- St. Rep. 805. sented.

10. The doctrine of the "Express Cases" has been approved by State courts in the following cases: Pfister v. Railroad Co., 70 Cal. 169; Railway Co. v. Keefer, 146 Ind. 21, 44 N. E. Rep. 796, 38 L. R. A. 93, 58 Am. St. Rep. 348;

But this rule has been changed by statute in Massachusetts, and railroads cannot now discriminate there in interstate business between express companies. Kidder v. Railroad Co., 165 Mass. 398, 43 N. E. Rep. 115.

use of the facilities of another express company, providing it pays or offers to pay the same rates as the general public. But it has no right to use those facilities in such a way as to destroy the other company's business. In a case decided by the High Court of Justice for Ontario, it appeared that it was the plaintiff's custom to gather together a number of smaller parcels which would ordinarily be expressed separately by merchants, put them in hampers or packed parcels and tender them to the defendant express company to be carried on the tariff charged for parcels under 100 pounds in weight, paying for such packed parcels very much less than would be charged for the several parcels if sent separately. The effect was to deprive the defendant company of the most lucrative part of its business. The court held that the express company had the right to charge for each parcel according to the ordinary rates, and to require from the plaintiff a statement of the number of parcels placed in the packed parcel, and that the defendant express company had never intended to hold itself out to the public as the carrier of a rival express company, making use of its capital and facilities for doing business to the aggrandizement of its rival and its own destruction.11

Sec. 519. Giving preference to one connecting carrier over another. The common-law obligation of the carrier to receive, transport and deliver the goods of a connecting carrier is the same as that which exists between the carrier and an individual. Whatever rights and privileges, other than those belonging to a natural person, that are claimed by the carrier as against a connecting carrier must be found either in the charters of the carriers or arise from contract.12 But, although the carrier is bound to receive, transport and deliver the goods of a connecting carrier without discrimination, as between himself and succeeding carriers, he is at liberty to

11. Johnson v. Express Co., 28 A. 811, overruling 70 N. H. 631, Ont. R. 203. 47 Atl. Rep. 614 and 69 N. H. 650, 45 Atl. Rep. 96, 76 Am. St. Rep. 204.

12. Hedding v. Gallagher, 72 N. H. 377, 57 Atl. Rep. 225, 64 L. R.

determine for himself what succeeding carrier he will employ in sending the goods beyond his own route. He puts himself in no worse position by extending his route by the help of others than he would occupy if the means of transportation employed were all his own. He may certainly, therefore, as between himself and succeeding carriers, select his own agencies and his own associates for doing his work.13

So at common law the furnishing of equal facilities to other carriers without unjust discrimination will not require the carrier to advance money to all other carriers on the same terms, nor give credit for the carriage of articles of trade and commerce to all other carriers because he extends credit for such services to others.14

Sec. 520. (§ 301.) Giving preference to one shipper over another. The rights of all shippers of goods of like kind applying for cars at the same station, and under the same circumstances, are equal,15 and unjust discriminative contracts between the carrier and a favored shipper are void. Thus in Messenger v. Pennsylvania Railroad,16 an action was brought against the road upon a contract by which it had agreed to carry for the plaintiff at a less rate than for other persons. The action was held not to be maintainable because the contract was void. "The defendants," say the court, "are common carriers, and it is contended that bailees of that character cannot give a preference in the exercise of their calling to one dealer over another. It cannot be denied that, at common law, every person under identical conditions had an equal right to the services of their commercial agents. It was one of the primary obligations of the common carrier to

13. St. Louis Drayage Co. v. Railroad Co., 65 Fed. 39; Atchison, T. & S. F. Ry. Co. v. Denver & O. R. Co., 110 U. S. 680, 4 Sup. Ct. R. 185.

14. Express Co. v. U. S. Express Co., 88 Fed. 659; affirmed in 92 Fed. 1022, 35 C. C. A. 172.

15. Nichols v. Railroad Co., 24 Utah, 83, 66 Pac. Rep. 768, 91

Am. St. Rep. 778. In this case it was held that if the carrier agrees to furnish cars to one shipper at a certain date, to furnish cars to other shippers who apply subsequently before furnishing cars to the shipper who first applied will constitute an unlawful discrimination.

16. 7 Vroom. 407.

receive and carry all goods offered for transportation upon. receiving a reasonable hire. If he refused the offer of such goods he was liable to an action unless he could show a reasonable ground for his refusal. Thus, in the very foundation and substance of the business, there was inherent a rule which excluded a preference of one consignor of goods over another. The duty to receive and carry was due to every member of the community and in an equal measure to each. Nothing can be clearer than that, under the prevalence of this principle, a common carrier could not agree to carry one man's goods in preference to those of another." And in the Great Western Railroad v. Burns,17 it was held that the common carrier, a railroad company, could not, under any circumstances, delay the transportation of goods which had been already delivered to him and were awaiting shipment. in order to receive and forward other goods.18

Sec. 521. (§ 302.) Same subject-Discrimination in rates. -The same principles become important in determining what, if any, discrimination may lawfully be made by the carrier in the rate charged to different shippers. This is a question of great importance and one which has been much considered. The cases contain many statements which seem to be in conflict, yet, except where the consideration is influenced by local statutes, it is believed that all the cases are in substantial harmony in reference to the vital principles involved.19

17. 60 Ill. 284.

18. And see Keeney v. The Railroad, 47 N. Y. 525; Wibert v. The Railroad, 12 N. Y. 245; The Chicago, etc. R. R. v. The People, 56 Ill. 365; The C. & A. R. R. v. The People, 67 Ill. 11. A carrier cannot refuse to carry goods, e. g., coal from a mine, because the owner also ships like goods from the same place by another carrier. Chicago, etc. R. R. Co. v. Suffern, 129 II. 274, 21 N. E. Rep. 824. 19. See the following cases upon this subject:

United States: Menacho v. Ward, 27 Fed. Rep. 529; Kinsley 1. Railroad Co., 37 Fed. Rep. 181; Hays v. Pennsylvania Co., 12 Fed. Rep. 309; Express Co. v. U. S. Express Co., 88 Fed. 659; affirmed in 92 Fed. 1022, 35 C. C. A. 172; Murray v. Railway Co., 92 Fed. 868, 35 C. C. A. 62, affirming 62 Fed. 24; Tift v. Railway Co., 123 Fed. 789; Railway Co. v. United States, 117 U. S. 355, 6 Sup. Ct. R. 772.

Arkansas: Railway Co. v. Oppenheimer, 64 Ark. 271, 44 L. R. A. 353, 43 S. W. Rep. 150.

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