TOPIC C-DEMAND BY A RIVAL FOR USE OF FACILITIES.

§ 298. Rivals cannot demand use of facilities.

Although, as has been seen, common carriers, by reason of their public duty, must serve their rivals who ask, as members of the public, those things which members of the public might ask, the rule has its limitations. The principles discussed do not go so far as to give to one common carrier the right to demand the use of the facilities of rival common carriers in order to coinpete against them. Thus, it seems plain that one railroad cannot require another to give it running rights over its rails, with' permission to use its stations even if the applicant is willing to pay a reasonable price for the service. The fundamental reason which permits the railroad to protect itself against such applications is that no member of the public has a right to such privileges.

$299. Passenger making use of carrier's facilities in his own. business.

A passenger has no right to make use of a carrier's facilities to carry on his own business. A leading case on this point is the D. R. Martin. In that case the libellant, Barney, presented himself repeatedly for transportation as a passenger, carrying always a carpet-bag filled with parcels, which he was taking for various owners for compensation. Upon being ejected from the steamboat, he brought this action, claiming that it was the duty of the carrier to transport him and his baggage without any inquiry.

The Circuit Court, overruling the holding below, found for the ship. Mr. Justice Hunt said, in part: "The steamboat company owning this vessel were common carriers between Huntington and New York. They were bound to transport every passenger presenting himself for transportation, who was in a fit condition to travel by such conveyance. They were bound, also, to carry all freight presented to them in a reason

111 Blatch. (L. S.) 233, Fed. Cas. 1,030, B. & W. 114 (1873).

able time before their hours of starting. The capacity of their accommodation was the only limit to their obligation. A public conveyance of this character is not, however, intended as a place for the transaction of the business of the passengers. The suitable carriage of persons or property is the only duty of the common carrier. A steamboat company, or a railroad company, is not bound to furnish travelling conveniences for those who wish to engage, on their vehicles, in the business of boot-blacking, or of peddling books and papers. This individual is under their control, subject to their regulation, and the business interferes in no respect with the orderly management of the vehicle. But if every one that thinks fit can enter upon the performance of these duties, the control of the vehicle and its good management would soon be at an end." 2

$300. Carrier not bound to carry packed parcels.

Another excellent illustration of this rule is Johnson v. Dominion Express Company.3 Defendant in this action was a general express company, while plaintiff was an association, trading under the name of the National Package Express Company, engaged in forwarding small parcels. This action was brought to compel the defendant to accept from the plaintiffs, at the regular schedule rates for large packages, cases containing small parcels, which the plaintiff had collected for transportation from various shippers, to be delivered by them later to various consignees. The court held that the refusal was justifiable.

Extracts from the opinion of Mr. Justice Rose follow: "That a number of persons should combine to carry on a business in competition with the defendant, to take from it the most profitable part of its business; to make use of its capital and facilities for its destruction, cannot be assumed to have been considered or provided for by the company in fixing its present tariff. Nor

2 The law is all the same way; see, also, Barney v. Oyster Bay & H. S. B. Co., 67 N. Y. 301 (1826).

328 Ont. Rep. 203 (1890).

do I think that the plaintiffs or any of the public could for a moment fairly argue or assert that they believed, or were led to believe, that the defendant company professed to carry such packed parcels, or was an association doing business in such a manner. I find as a fact that the rates tendered by the plaintiffs, or which they were willing to pay, were not reasonable under the circumstances. I do not find it necessary to determine whether or not the defendant has the right absolutely to decline to carry parcels so packed for the plaintiffs, but I say I do not think the defendant ever intended to hold itself out to the public as the carrier of the goods of a rival express company, making use of its capital and its facilities for doing business to the aggrandisement of its rival and its own destruction." 4

TOPIC DPROTECTION OF A COLLATERAL BUSINESS.

§ 301. Limitations upon the right to engage in an independent business.

Those who are engaged in private business may conduct another business if they please, and plainly they may put in force policies to foster that business, many of which it is certain that those who conduct a public business may not employ. The open recognition of this law limiting the rights of one engaged in a public employment if he enters into competition with members of the public in various businesses in which his services are requisite, constitutes the latest development in this rapid growth

4 Compare Chambers v. Pennsylvania R. R., 4 Brewst. (Pa.) 563. But see Davies v. Pere Marquette Ry., 10 I. C. C. Rep. 405 (1905).

The view of the English cases seems to be that if a railway carries packed parcels for forwarders generally it cannot refuse a particular applicant. Crouch v. London & N. W. Ry., 14 C. B. 255 (1854); Baxendale v. So. West. Ry., 35 L. J. Exch. 108 (1866).

In Buckeye Buggy Co. v. Cleveland, C., C. & St. L. Ry., et al., 9 I. C. C. Rep. 620 (1903), it is decided that where the consignee is owner of goods it makes no difference if car loads are made up of shipments from various vendors; the question whether a carrier could prevent a forwarder from making up a car load for various customers was left undecided.

of the law governing public calling. The question has as yet come before the courts for adjudication only a few times; but even the most conservative courts recognize the necessity of regulation here, while the radical courts are willing in certain instances to go to the extent of prohibition.

Indeed, it is feared by many people, who are examining into the dangers affecting modern commerce from these new conditions, that unless those in common calling are held to the strictest accountability in the performance of their public duties the competitive system with its market open to all is in the gravest peril. And the situation would become intolerable if those who control the destinies of trade through their ownership of the public utilities should be permitted to concentrate in their own hands the principal private businesses, which they might not inconceivably do if they were permitted to enter into general business and make use of their superior position to crush their competitors.

§ 302. Carrier discriminating in favor of itself.

In an important case before the Interstate Commerce Commission-Grain Rates of Chicago Great Western Railway1 -the decision was that the defendant carrier could not purchase grain, even for the purpose of securing the right to transport it, if that involved the evasion of the law which would have applied to it had it been owned by any other party. It was proved at the hearing in this case that the Chicago Great Western Railway Company owning the entire stock of the Iowa Development Company, which had been organized for the purpose of holding the title to certain lands of the railway company, caused grain to be purchased in Kansas City in the name of the development company, transported over the lines of the railway company, to Chicago, and there sold upon the market. The development company had no bona fide interest in the transaction. Neither the railway company nor the development company purchased the grain for the purpose of ownership, the whole transaction being

17 I. C. C. Rep. 33 (1897).

simply a device to secure its transportation at other than the published rate; and the only rate paid was the profit upon the transaction, which varied with each shipment.

In the course of its decision the commission said, "Suppose that the development company be entirely eliminated from the consideration, and that the transaction be treated, as it in fact was, as the transaction of the railway company. In that case the railway company owned the grain, transported it for itself, and received for its compensation the difference in price between what was paid and what it sold for, less the commissions. There was no fixed rate. The rate varied with each individual shipment. The rate actually received was much less than was or would have been charged any other person for the same service under the same conditions. Clearly, therefore, the transaction was both a violation of the sixth section and an unjust discrimination under the second and third sections, unless the railway company, by virtue of the fact that it owned the merchandise transported, was relieved from the operation of the act. We hold that it was not. Granting that the railway company had the legal right under its charter to buy and sell this corn in this manner, still it must own it and transport it subject to the same limitations as every other individual. In its capacity of owner it was a private person, in its capacity of carrier it was a public servant. If it elected to become a private individual in respect of the ownership of this grain, it could extend to itself in its capacity as a public servant no other or different privileges than it extended to every other shipper. To hold that this respondent might become a shipper on its own account for the express purpose of avoiding the act to regulate commerce would be to nulify that act in many essential respects."

$303. Railroad cutting its own rates for itself.

This development which is going on in the law was brought to the attention of all not long ago by a striking decision handed down by the United States Supreme Court in regard to the coal