TOPIC D-CONNECTING CARRIERS.

§ 825. Discrimination between connecting carriers.

826. Goods requiring further transportation.

827. Transportation in the same cars.

828. Such transportation held obligatory.

829. Through traffic agreements.

830. Through arrangements compelled.

§ 801. Discrimination in regard to dependent services. The general problem is whether in dealing with dependent services the common carrier is under the usual obligations of the public service law or whether the common carrier is free to deal with them as it sees fit, consulting only its own interests. So close is the argument and so recent is its origin that there has been, and there remains, a square conflict of authority as to whether this law extends so far as to cover this situation. On one side are the jurisdictions conservative in attitude, which hold that there is no public duty involved and that therefore, the carrier may, for example, discriminate among expressmen. On the other hand, are the progressive jurisdictions which hold that there is a public obligation involved and that the carrier may not, therefore, admit certain hackmen to its station while excluding others. And in various other subsidiary businesses of the same sort, where those who offer a service to the public are dependent to a considerable extent for opportunity to conduct their calling upon obtaining privileges from the carrier, there will be found the same issue and the same controversy. Much is said upon both sides; and in a matter of such commercial consequence much of this is worth repeating. The discussion is carried on along the whole line; not only is the matter discussed from the point of view of the proper theory to be held, whether the general rules of public service govern or whether they are inapplicable; but the matter is also discussed with much heat from the point of view of public policy and business convenience.

TOPIC A-SUBORDINATE CARRIERS OF GOODS.

§ 802. Duty toward expressmen considered.

At the beginning of the controversy as to the position of subordinate carriers of goods both sides admit that to the extent to which a common carrier has made public profession covering a given line of business he is bound to serve all that apply without discrimination. Here is the first difficulty, as the case of expressmen shows: It may be established that the usual course of dealing between the railroad companies and the express com panies has been upon the basis of special contract; on the other hand, it may be shown that the railways have universally made some provision for handling express matter. This is so clear that it may be asserted that the modern railroad owes some duty in respect to the transportation of small and valuable parcels safely and quickly. But to whom is this duty owed? It hardly seems to be to the expressman or other subordinate carrier, for the railroad could plainly carry on these branches of the transportation business for the general public, and it could then exclude all others from the route. Therefore, the duty that it owes seems to be rather to the general public who ship through the expressmen. "An express company engaged in the business of transporting small packages has as good a right to the benefits of the railroad as the owners of the packages possess in person. It is impossible that they can all appear in person to claim their rights, and it is sufficient that they are represented by agents who are intrusted with their goods, and have a special property in them." 1

§ 803. Express companies: conservative view.

The leading authority upon the subject is certainly the Express Cases, 2 This is the general heading covering several

1 Per Lewis, C. J., in Sandford v. Catawissa R. R., 24 Pa. St. 378, 64 Am. Dec. 667 (1855).

2117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628, B. & W. 157 (1886).

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suits presenting substantially the same question, as they were all suits begun by expressmen against railways to compel them to give them respectively the express facilities on the several lines of railway which they had previously enjoyed by contract and of which they had been dispossessed by notice given in accordance with the terms of exclusive contracts made with favored companies. Judgments below had been rendered in favor of the express companies from which the railroad companies appealed. The cases were elaborately argued; and the whole history of the course of dealings that had gone on between the express companies and the railroad companies was discussed. The decision of the majority of the court went off upon this evidence. Mr. Chief Justice Waite concludes the majority opinion thus: It is not enough to establish a usage to carry some express company, or to furnish the public in some way with the advantages of an express business over the road. The question is not whether these railroad companies must furnish the general public with reasonable express facilities, but whether they must carry these particular express carriers for the purpose of enabling them to do an express business over the lines. In all these voluminous records there is not a syllable of evidence to show a usage for the carriage of express companies on the passenger trains of railroads unless specially contracted for. While it has uniformly been the habit of railroad companies to arrange, at the earliest practical moment, to take one express company on some or all of their passenger trains, or to provide some other way of doing an express business on their lines, it has never been the practice to grant such a privilege to more than one company at the same time, unless a statute or some special circumstances made it necessary or desirable. The express companies that bring these suits are certainly in no situation to claim a usage in their favor on these particular roads, because their entry was originally under special contracts, and no other companies have ever been admitted except by agreement. By the terms of their

contracts they agreed that all their contract rights on the roads. should be terminated at the will of the railroad company. They were willing to begin and to expand their business upon this understanding, and with this uncertainty as to the duration of their privileges. The stoppage of their facilities was one of the risks they assumed when they accepted their contracts, and made their investments under them. If the general public were complaining because the railroad companies refused to carry express matter themselves on their passenger trains, or to allow it to be carried by others, different questions would be presented. As it is, we have only to decide whether these particular express companies must be carried notwithstanding the termination of their special contract rights." 3

§ 804. Express companies: radical view.

It is admitted by both sides to this controversy that the modern railroad company owes a duty in respect to express matter to the general shipping public. Thereupon, it will be maintained by one side that if the railroad makes provision for the transportation of express matter by entering into an arrangement with an expressman to carry on the business along its route, it thereby fulfills its duty; and that it may, therefore, make an exclusive contract if it pleases, although that involves discrimination. But it may be answered from the other side that this argument carried to its logical conclusion leaves the public without protection.

3 Accord: Pfister v. Central R. R., 70 Cal. 169, 11 Pac. 686, 59 Am. Rep. 404 (1886); Louisville v. New Albany & C. R. R., 146 Ind. 21, 44 N. E. 796, 58 Am. St. Rep. 348, 38 L. R. A. 93 (1896); Sargent v. Boston & L. R. R., 115 Mass. 416 (1874); Atlantic Express Co. v. Wilmington & W. R. R., 111 N. C. 463, 16 S. E. 393 (1892).

This is governed by statute in some jurisdictions; for example, to-day in Massachusetts by statute, such number of local expressmen shall be permitted to operate over a given route as the railroad commissioners shall decide. See Rev. Laws chap. 111, sec. 241.

To bring out the difference of opinion upon this important matter it may be well to give at some length, one of the leading cases upon the other side of this controversy. The most radical decision upon this side is to be found in McDuffee v. Portland and Rochester Railroad. This was an action on the case by the plaintiff, an expressman, against the defendant railway for not furnishing the plaintiff terms, facilities, and accommodations for his express business on the defendants' road between Rochester, N. H., and Portland, Me., reasonably equal to those furnished by the defendants to the Eastern Express Company. The defendants demurred to the declaration, which demurrer the Supreme Court finally discharged. The gist of Chief Justice Doe's opinion may be seen from the following extract:

"A railroad corporation, carrying one expressman, and enabling him to do all the express business on the line of their road, do hold themselves out as common carriers of expresses; and when they unreasonably refuse, directly, or indirectly, to carry any more public servants of that class, they perform this duty with illegal partiality. The legal principle, which establishes and secures the common right, being the perfection of reason, the right is not a mere nominal one, and is in no danger of being destroyed by a quibble. If there could possibly be a case in which the exclusive arrangement in favor of one expressman would not be an evasion of the common-law right, the question might arise whether, under our statute law, public railroad corporations are not common carriers (at least to the extent of furnishing reasonable facilities and accommodations of transportation on reasonable terms) of such passengers and such freight as there is no good reason for their refusing to carry.5

4 52 N. H. 430, 13 Am. Rep. 72, B. & W. 149 (1873).

5 Accord: New Eng. Exp. Co. v. Maine C. R. R., 57 Me. 188, 2 Am. Rep. 31 (1868); Sanford v. Catawissa R. R., 24 Pa. St. 378, 64 Am. Dec. 667 (1855).

"The business of carrying what is called " express matter" has recently grown up, and is productive of great public advantage. The objection to