station. It was accordingly held that the statutory penalty for refusing to receive freight cannot be recovered of a railroad company where the refusal to receive was not at a regular depot or station, but at a house and platform where freight was sometimes received, but where there was neither office nor books, and where bills of lading and receipts were not given.1

8 222. Extent of the carrier's route.

A carrier cannot be compelled to receive goods, still less to send and get goods, at a point off his line.

The carrier's route, of course, may cover all parts of a town. So, in the case of an express company the carrier often undertakes to call at any part of the town for goods. But his obligation even then extends no further than he has by rule or usage placed the limits of his route; and he cannot be required to call for packages at a place beyond those limits, though the limits in another direction are placed further away from his office,2 "while it would not be competent for a common carrier to discriminate against shippers within its fixed limits, it is not perceived why, if the company is entitled to limit its receipt of goods to its own office or place of business, it may not enlarge these limits at its discretion without being bound to go beyond them.” 3

§ 223. The establishment of stations must be reasonable.

In the absence of action of the company establishing stations, and making it a condition of receiving persons or goods that they should present themselves or be offered at a station, it would seem clear that the carrier cannot refuse a tender made at any point of his route; and such was undoubtedly the case with the earlier carriers, the wagons, the stage-coaches, and in fact

1 Kellogg v. Suffolk R. R., 100 N. C. 158, 5 S. E. 379 (1888).

2 Bullard v. American Exp. Co., 107 Mich. 696, 65 N. W. 551, 33 L. R A. 66 and note (1895).

3 Montgomery, J., in Bullard v. American Exp. Co., supra.

of

all carriers before the adoption of steam as the motive power carriage. If this is true, the establishment of stations must be accomplished by an affirmative act of the carrier, a regulation of his business, which like all regulations must be reasonable in order to give him a defence for failure to do what would otherwise be his public duty. It would follow that if a carrier does not establish a station where it is reasonably required, the carrier would have no excuse for refusing to receive persons or goods there, and that the person suffering from such refusal could maintain an action for it and recover damages.

§ 224. Establishment of stations by legislation.

It is everywhere agreed that the State may by statute establish stations at places where the public need requires them,* either by special statute or by some statute empowering a railroad commission to act in the premises.

"If the directors of a railroad were to find it for the interest of the stockholders to refuse to carry any freight or passengers except such as they might take at one end of the road and carry entirely through to the other end, and were to refuse to establish any way stations or do any way business for that reason, though the road passed for a long distance through a populous part of the State, this would be a case manifestly requiring and authorizing legislative interference under the clause in question. And on the same ground, if they refuse to provide reasonable accommodation for the people of any smaller locality, the legislature may reasonably alter and modify the discretionary power which the

4 Atchison, T. & S. F. R. R. v. Denver & N. O. R. R., 110 U. S. 667, 681, 23 L. Ed. 292, B. & W. 265 (1884, semble); Board of Commrs. v. Missouri Pac. Ry. (Kan.), 80 Pac. 53 (1905); Morgan's Va. & T. R. R. & S. S. Co. v. Railroad Commission (Va.), 33 So. 214 (1903); Commimssioners v. Portland & O. R. R., 63 Me. 269, 18 Am. Rep. 208 (1872); Commonwealth v. Eastern Railroad, 103 Mass. 254, 4 Am. Rep. 555 (1869); People v. New York, L. E. & W. R. R., 104 N. Y. 58, 66, 58 Am. Rep. 484, 9 N. E. 856 (1887, semble).

charter confers upon the directors, so as to make the duty to provide the accommodation absolute. Whether a reasonable ground for interference is presented in any particular case is for the legislature to determine; and their determination on this point must be conclusive. It is a modification of the charter, within the fair interpretation of the power reserved to the legislature in the charter, and merely requires them to provide what the legislature regards as a reasonable accommodation to the public in a particular locality where they are using property which they have taken for that purpose."5

§ 225. Requirement of stations by the courts; conservative view.

Whether the carrier can be required to establish reasonable stations through judicial process in the courts is a matter of more doubt. This might conceivably be done directly, through the writ of mandamus (or mandatory injunction) or indirectly by giving damages to an individual injured by refusal to stop at a proper place.

The leading authorities on this side of the question are two important decisions of the Supreme Court of the United States. The earlier of these cases was that of the Atchison, Topeka and Santa Fe Railroad v. the Denver & New Orleans Railroad. There was a physical junction of the two roads about three-quarters of a mile from the regular station of the Atchison road in the city of Pueblo; and the Denver road brought this bill for a mandatory injunction requiring (among other things) that the Atchison road should establish a station to receive and deliver passengers and freight at the point of junction. The injunction was granted in the Circuit Court, but the decree was reversed on appeal by the Supreme Court.

The second case was that of the Northern Pacific Railroad

5 Chapman, C. J., in Commonwealth v. Eastern R. R., supra.

6 110 U. S. 667, 23 L. Ed. 292, B. & W. 265 (1884).

v. Washington." This was a petition by the Territory of Washington for a mandamus to compel the defendant railroad to erect and maintain a station at Yakima City, through which the road passed. The facts were as follows: The defendant at one time stopped its trains at Yakima City, but never built a station there, and, after completing its road four miles further, to North Yakima, established a freight and passenger station at North Yakima, which was a town laid out by the defendant on its own unimproved land, and thereupon ceased to stop its trains at Yakima City. In consequence, apparently, of this, Yakima City, which at the time of filing the petition for mandamus, was the most important town, in population and business, in the county, rapidly dwindled, and most of its inhabitants removed to North Yakima, which at the time of the verdict had become the largest and most important town in the county. The Territorial court granted the writ, but this judgment was reversed on appeal by the Supreme Court of the United States. The decision was made in view of the fact that Yakima City had ceased to be a sufficiently considerable place to require station facilities. "The question whether a mandamus should issue to protect the interest of the public does not depend upon a state of facts existing when the petition was filed, if that state of facts has ceased to exist when the final judgment is rendered. In this regard, as observed by Lord Chief Justice Jervis in Railway Co. v. Queen, 'there is a very great difference between an indictment for not fulfilling a public duty, and a mandamus commanding the party liable to fulfil it.'"

8

It is therefore not actually decided in the case that the railroad had not violated its legal duty in failing to stop at Yakima City, or that some form of action might not lie against it for the failure. The court, however, discussed the general

7 142 U. S. 492, 35 L. Ed. 1092, 12 Sup. Ct. 283, B. & W. 231 (1892). 81 E. & B. 878 (1853).

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).