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."

15

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

not serving particular applicants. All this preliminary matter simply makes out a prima facie case for a particular applicant. If serving the particular applicant might involve the company serving in legal difficulties, the company ought to refuse to act; and so, for another example, if the particular applicant might endanger other people that are being served, it would again furnish an excuse for refusal to serve.

TOPIC A-ILLEGALITY INVOLVED IN SERVICE.

§ 232. Duty not to abet illegality.

A carrier of passengers could, of course, refuse to assist a thief in his flight. And in an analogous case it was assumed that the carrier might refuse to take a rebel officer going to the front to join his command.1 So a carrier of goods may refuse to receive from a thief or to abet an enemy; but if the carrier does not know of the illegal nature of the request he is not legally liable for taking passengers or goods according to his prima facie duty.2 Thus it is not conversion against

the true owner unless the true owner intervenes before the goods are delivered and demands them.3 But a railroad company which negligently permitted slaves to be transported without the authority of their owner, was held liable for their value by reason of being concerned in their escape." These cases show in a preliminary way the nature of the problem.

233. No right to exclude unless illegally involved. A closer case because nearer the line which separates an application proper in itself from an application improper in itself is Pearson v. Duane, the facts in which follow:

1 Turner v. N. C. R. R., 63 N. C. 522 (1869).

2 Jackson v. Railway Co., 87 Mo. 422, 56 Am. Rep. 460 (1885).

3 White Live Stock Commission Co. v. Chicago, M. & St. P., 87 Mo. App. 330 (1885).

4 Louisville Ry. v. Young, 1 Bush (Ky.), 401 (1866). 54 Wall. 605, 18 L. Ed. 447, B. & W. 110 (1867).