In the month of June, 1856, the steamship Stevens, a common carrier of passengers, of which Pearson was master, on her regular voyage from Panama to San Francisco, arrived at the intermediate port of Acapulco, where Duane got on board, with the intention of proceeding to San Francisco. He had, shortly before this, been banished from that city by a revolutionary yet powerful and organized body of men, called "The Vigilance Committee of San Francisco," upon penalty of death in case of return. Pearson ascertained that Duane had been expelled from California, and put Duane aboard the steamer Sonora. Duane filed a libel in admiralty for damages. If this had been banishment pronounced by an established government there would seem to be no doubt that the application to be transported back would be improper and that the applicant could be refused at the outset or after he had been accepted as a passenger that he might be expelled. But since it was not, it would seem that he had a right to return, whatever might be the consequences to him. The court deal with the question in hand in a rather hesitant way. The beginning of the opinion of Mr. Justice Davis follows: "This case is interesting because of certain novel views which this court is asked to sustain. Two questions arise in it: 1st, was the conduct of Pearson justifiable? 2d, if not, what should be the proper measure of damages? It is contended, as the life of Duane was in imminent peril, in case of his return to San Francisco, that Pearson was justified, in order to save it, in excluding him from his boat, notwithstanding Duane was willing to take his chances of being hanged by the Vigilance Committee. Such a motive is certainly commendable for its humanity, and goes very far to excuse the transaction, but does not justify it. Common carriers of passengers, like the steamship Stevens, are obliged to carry all persons who apply for passage, if the accommodations are sufficient, unless there is a proper excuse for refusal. If there are reasonable objections to a proposed passenger, the carrier is not required to

take him. In this case, Duane could have been well refused a passage when he first came on board the boat, if the circumstances of his banishment would, in the opinion of the master, have tended to promote further difficulty, should he be returned to a city where lawless violence was supreme. But this refusal should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board."

§ 234. When refusal is made necessary by law.

It is most obvious that when the refusal to serve is made necessary by the law that there is an excuse. An interesting case in point is Decker v. Atchison, Topeka and Santa Fe. Railroad Company. The plaintiff was not given the transportation he demanded upon the morning in question because on the 16th day of September, 1893, the defendant railroad company had prescribed a certain rule for the government of its trains entering the Cherokee Outlet on the day of its opening for settlement, providing that no train should enter said outlet within six hours of 12 o'clock noon of said day.

Mr. Justice Scott held this refusal under these circumstances

to be entirely justifiable; he said: "Was this rule prescribed by the defendant in error on the 16th day of September, 1893, a reasonable rule? The opening of the Cherokee Outlet to settlement has gone down into history as a scene and an occasion unequaled by any similar event of modern times. A vast domain was opened to homestead settlement in a day, and more than 100,000 people waited upon the borders for the hour of noon, when they could break forth on a wild rush for either town lots or homestead lands. At the particular point where the trains of the defendant in error were located, thousands

63 Okla. 553, 41 Pac. 610 (1885).

thronged to board the first train to enter, and, if possible, gain some advantage and get to the promised land before the awful rush. Had trains gone into the country prior to 12 o'clock, hundreds would have become violators of the law, no doubt, and, had the defendant in error permitted those already aboard when the trains arrived at the line to remain in the coaches, those waiting on the line to enter trains according to the order of the secretary of the interior and the rules prescribed by the company would have been placed at a disadvantage, and their rights under the law would have been unequal and prejudiced thereby. Yes, this rule was a reasonable one, and, in addition to this, was adopted by defendant in error by order of the secretary of the interior; and for this court to hold, or the court below to have held, as a matter of law, that it was an unreasonable rule, would, we think, have been error."

235. Whether excused from serving by Sunday laws.

If a carrier is forbidden by law to carry on Sunday, he may, of course, justify a refusal to carry. If such a law is repealed, it then ceases to be illegal to carry on Sunday, and the carrier may do so if he chooses. It has, however, been intimated in such a case that if the carrier does not choose to engage in business on Sunday he need not do so. "We do not understand that a railroad company or a steamboat is bound to transact business on the Sabbath merely because the statute permits it to be done; but if they hold themselves out to the public as so doing, and enter upon business which, according to their usages and habits, will be transacted on that day, they cannot shield themselves for either misfeasance or non-feasance because it was done or omitted to be done on the Sabbath." 9

7 Walsh v. Chicago, M. & S. P. Ry., 42 Wis. 23, 24 Am. Rep. 376 (1877). 8 Horton v. Norwalk Tramway Co., 66 Conn. 272, 33 Atl. 914 (1895).

9 Cooper, C. J., in Merchants' W. B. Assoc. v. Wood, 64 Miss. 661, 2 So. 76 (1887).

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

It follows from these general principles that a carrier may legally refuse to receive intoxicating liquors for delivery in a prohibition State if such delivery would be illegal.10

In State v. Goss 11 Mr. Justice Rowell said: "Although express companies are common carriers, and liable as such, yet the law neither requires nor permits them to do illegal acts; and they are not bound to transport and deliver intoxicating liquor or other commodities, if thereby they would commit an offence or incur a penalty. They cannot be allowed, any more than other people, knowingly and with impunity, to make themselves agents for others to break the laws of the State."

Where, however, the carriage and delivery would be legal, the carrier cannot refuse to receive the liquor. Thus, where the sale of liquor in original packages was lawful in South Carolina, though it was forbidden in any other form, the carrier could not refuse to receive liquor in the original packages for delivery in South Carolina.12

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

One of the leading cases upon this question is Thurston v. Union Pacific Railroad Co.13 Plaintiff had purchased a ticket for transportation over the defendant's line. Once when he was about starting he was prevented from boarding the train; later he entered a train but was forcibly ejected. The defendant admitted that the necessary force (but no more) was used to prevent his entering the train. It was claimed that he had been for

10 Milwaukee M. E. Co. v. Chicago, P. I. & P. Ry., 73 Iowa, 98, 34 N. W. 761 (1887); State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706 (1887). 11 Supra.

12 Blumenthal v. Southern Ry., 84 Fed. 920 (1898). 13 4 Dillon (U. S.), 321, Fed. Cas. 14,019 (1877).

years a notorious gambler,-a "monteman," so-called, and was then engaged in travelling on the defendant's road for the purpose of plying that calling, and was about to enter the train for that purpose. This the plaintiff denied. The question was, whether the defendant has the right to exclude gamblers from its trains?

Dundy, J., said: "The railway company is bound, as a common carrier, when not over-crowded, to take all proper persons who may apply for transportation over its line, on their complying with all reasonable rules of the company. But it is not bound to carry all persons at all times, or it might be utterly unable to protect itself from ruin. It would not be obliged to carry one whose ostensible business might be to injure the line; cne fleeing from justice; one going upon the train to assault a passenger, commit larceny or robbery, or for interfering with the proper regulations of the company, or for gambling in any form, or committing any crime; nor is it bound to carry persons infected with contagious diseases, to the danger of other passengers. The person must be upon lawful and legitimate business. Hence defendant is not bound to carry persons who travel for the purpose of gambling. As gambling is a crime under the State laws, it is not even necessary for the company to have a rule against it. It is not bound to furnish facilities for carrying out an unlawful purpose. Necessary force may be used to prevent gamblers from entering trains, and if found on them engaged in gambling, and refusing to desist, they may be forcibly expelled. Whether the plaintiff was going upon the train for gambling purposes, or whether, from his previous course, the defendant might reasonably infer that such was his purpose, is a question of fact for the jury. If they find such to have been the case, they cannot give judgment for any more than the actual damage sustained."