813. Hauling sleeping cars.

A case since the express cases which came up for decision in the Supreme Court of the United States really involves the same The general issue-Chicago v. Pullman Southern Car Co. facts so far as they are material to the present issue are these: An exclusive contract was entered into between a railroad company and a palace-car company whereby the latter company was to have the exclusive right for fifteen years to furnish parlor and sleeping-cars on all passenger trains of the railroad company, the railroad company binding itself not to contract with any other company to run the same class of cars over its lines during that period. Now, if this be considered an arrangement within a field not covered by public duty there is really no objection to such a transaction; for such arrangements for exclusive dealings between two private parties are properly not considered objectionable. But if there is a public duty in the premises then such a contract should be held void as against public policy.

The court disposed of the case by denying that there was any public duty to take on competing lines of palace-cars. An extract from the opinion of Mr. Justice Harlan follows: "The defendant was under a duty arising from the public nature of its employment to furnish for the use of passengers upon its lines, such accommodations as were reasonably required by the existing conditions of passenger traffic. Its duty, as a carrier of passengers, was to make suitable provisions for their comfort and safety. Instead of furnishing its own drawing-room and sleeping-cars, as it might have done, it employed the plaintiff, whose special business was to provide cars of that character, to supply as many as were necessary to meet the requirements of travel. It thus used the instrumentality of another corporation in order that it might properly discharge its duty to the public. So long as the defendants' lines were supplied with the requisite num

7 139 U. S. 79, 35 L. Ed. 97. 11 Sup. Ct. 490 (1890).

ber of drawing-room and sleeping-cars, it was a matter of indifference to the public who owned them."8

The argument for the conservative view is undoubtedly put most attractively when it is phrased in terms of public duty. It is squarely averred in this case, and in others which follow its line of thought, that the duty to the public is fully performed when the railroad makes provision for the subordinate service by entering into an arrangement with an independent company to do it, and that the public stand indifferent as to who shall serve them, provided that service is offered. This argument has the force and weakness of half-truth. All this is so; and yet if public duty plays no part in governing the arrangement between the railroad company and the palace-car company the public may without illegality be made subject to an exorbitant price by reason of the exaction of an outrageous fee for the monopoly; while, if public duty governs the railroad in entering into this arrangement, it must accept as many palace-car companies as care to take the risk of entering into this business upon paying a fair charge for haulage. There would never, in fact, be much actual competition under such circumstances; but there would always be the benefit to the public which results from potential competition.

8814. Favoring certain eating houses.

The point has been raised a few times whether there is a duty in respect to the provision of food for passengers. In Kelly v. Chicago, Milwaukee & St. Paul Rairoad it appeared that the railroad had arranged with the plaintiff to have a dining-room near the station premises at Sanborn Station where trains were stopped for meals. Later, another arrangement was made with other parties at Spencer Station, twenty-seven miles distant; in

8 Accord, Worcester Excursion Car Co. v. Pennsylvania Ry., 2 Int. Com. Rep. 792, 3 I. C. C. Rep. 577 (1890).

993 Ia. 436, 61 N. W. 957 (1895).

this latter contract the railroad agreed to transport supplies free, and to furnish fuel. Thereafter, the train schedule allowed for meals at Spencer instead of Sanborn. Plaintiff in this action alleged these discriminations.

The court decided in favor of the railroad. Mr. Justice Deemer said: "We are not inclined to commit ourselves to the doctrine that because a railroad company carries freight free of charge to one of its eating-houses, and furnishes the proprietor with fuel, ice, and transportation for his family and his employes, it is bound to do so for all without reference to the contractual relations existing between them." 10

The public duty here, again, is to the traveling passenger; for it cannot be denied that those who carry passengers over long distances owe them the duty to make provision for food for them. The rule is thus stated in Peniston v. Chicago, St. Louis Railroad Company,11 by Mr. Justice Poche: "In conveying passengers through long journeys, such as from Chicago to New Orleans, at great speed and with rapidity, a common carrier is required by humanity, as well as by law, to provide its passengers with easy modes and to allow them reasonable time for the purpose of sustaining life by means of food and necessary refreshments. Hence it is that on all such roads arrangements are made to enable passengers to obtain at least two meals a day, and that announcement is made in every passenger train by employes of the road of the approach of a train to a station where, under arrangements with the company, meals are prepared for the convenience of passengers.'

There may be seen in this instance again, the conflict of opinion between the two schools of thought, the first finding no duty in respect to food supply, the second insisting that there is a duty. If the prices charged for food should be outrageous

10 It may be claimed with some truth that Perth General Station Committee v. Ross, 1897, A. C. 479, is to the same effect.

11 34 La. Ann. 777, 44 Am. Rep. 444 (1882).

there ought to be redress; and it should be pointed out again that any monopolistic arrangement tends toward higher prices.

§ 815. Treating baggage transfer men with equality.

This question, whether access to the station may be granted exclusively to one baggage-transfer line and altogether denied to others, is another case under the general problem. There is upon this issue, therefore, the same bitter controversy; some jurisdictions would permit the exclusion of all but the favored line, while others would allow equal access to all.

On one side it may be said, as before, that there is no direct duty owed by the company to the baggage-transfer lines or any of them; and that, therefore, the railroad may make any discriminations that it pleases. For, as is pointed out in the principal cases cited below if there is no public duty in the matter, a public-service company may bestow its favors as it pleases; and to many courts it seems that the railways may deal as they please with the baggage-transfer people.12

On the other hand, in many other jurisdictions it would cer tainly be held that the general duty owed by the railway company to its passengers to allow them free egress from its station, involved the duty to allow them free access within the sta

12 Such is the doctrine of the following cases:

Connecticut-New York, N. H. & H. R. R. v. Scoville, 71 Conn. 136, 41 Atl. 246, 71 Am. St. Rep. 159, 42 L. R. A. 157 (1898).

Georgia-Kates v. Atlanta Bag. Co., 107 Ga. 636, 34 S. E. 372, 46 L. R. A. 431 (1899).

Massachusetts-Old Colony R. R. v. Tripp, 147 Mass. 35, 17 N. E. 89, 9 Am. St. Rep. 661, B. & W. 166 (1888).

Minnesota-Godbout v. Union Depot, 79 Minn. 188, 81 N. W. 835 (1900). New Hampshire-Hedding v. Gallagher, 72 N. H. 377, 57 Atl. 225 (1903).

New York-Brown v. New York C. & H. R. R. R., 151 N. Y. 674, 46 N. E. 1145 (1897).

Rhode Island-New York, N. H. & H. R. R. v. Bork, 23 R. I. 218, 49 Atl. 965 (1901).

Virginia-Norfolk & W. Ry. v. Old Dominion Bag. Co., 99 Va. 111, 37 S. E. 784, 50 L. R. A. 722 (1901).

tion to those who might wish to put themselves at their disposal to aid them in getting their belongings away.13

The most elaborate case upon this point is Kates v. Atlanta Baggage & Cab Company.14 In that case it appeared, first, that the defendants permitted the cab company to enter the passenger trains before reaching the city, for the purpose of solicit ing baggage, and refused the same privilege to the petitioner; second, that the servants of the cab company were allowed access to the passenger station for the purpose of soliciting patronage and for more conveniently attending to its business, and this privilege was refused to petitioner; third, that the privilege of using an office in the baggage room of the defendants for the - transaction of its business was granted to the cab company and refused to Kates; fourth, the privilege of checking the baggage of prospective passengers at hotels and residences in advance of delivery of the baggage at the passenger-station was given the cab company-each of which privileges was refused to petitioner.

The court held all of these justifiable; but it would seem that some distinctions should be taken. The first and fourth privileges it would seem to be permissible for the railroad to grant exclusively, as these are special favors not absolutely necessary for the conduct of the dependent service, the need of the pas

13 Such is the doctrine of the following cases:

Florida-Indian River St. B. Co. v. East Coast Trans. Co., 28 Fla. 387, 10 So. 480, 29 Am. St. Rep. 258 (1891).

Indiana-Indianapolis U. Ry. v. Dohn, 153 Ind. 10, 53 N. E. 937, 74 Am. St. Rep. 274, 45 L. R. A. 427 (1899).

Kentucky-McConnell v. Pedigo, 92 Ky. 465, 18 S. W. 15 (1892). Michigan-Kalamazoo Hack & Bus Co. v. Sootsuma, 84 Mich. 194, 47 N. W. 667, 22 Am. St. Rep. 693, 10 L. R. A. 819 (1890).

Missouri-Craven v. Rodgers, 101 Mo. 247, 14 S. W. 106 (1890).

Montana-Montana W. Ry. v. Langlois, 9 Mont. 419, 24 Pac. 209, 18 Am. St. Rep. 745, 8 L. R. A. 753 (1890).

Mississippi State v. Reed, 76 Miss. 211, 24 So. 308, 71 Am. St. Rep. 528, 43 L. R. A. 134 (1898).

14 107 Ga. 636, 34 S. E. 372, 46 L. R. A. 431 (1899).