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"There is no prin

public duty. But Mr. Justice Baker held: ciple of the common law requiring a common carrier receiving articles of trade and commerce from a connecting line to advance or assume the payment of the charges accrued thereon for the transportation of such articles from the point of origin to the connecting line. If it does thus pay or assume such accrued charges, it can retain a lien upon the property transported for their payment as well as for the payment of the charges due to itself for such transportation. An express company, like any other common carrier, has a right to demand that its charges for transportation shall be paid in advance, and is under no obligation to receive goods for transportation unless such charges are paid if demanded. Nor is such express company under any obligation to pay to the tendering company the charges due to it for its services in transporting such articles of trade and comcerce from the point of origin to the point of tender. It is true that the general practice is to collect the charges upon delivery of the goods to the consignee, and, when goods are received without payment in advance being demanded, it becomes the duty of the carrier to transport them to their destination, or to deliver them to the next receiving carrier. Receiving the goods for transportation without any demand for prepayment of charges constitutes a waiver of such right. The carrier holds a lien upon the goods for payment of charges, and, in case of a delivery of them to the consignee before payment, it can hold him responsible therefor. The same rule applies whether the articles of trade and commerce are received from the original consignor or from a connecting carrier. An express company, in the absence of contract, is under no obligation to receive and transport for the original consignor, or to continue the transportation for a connecting carrier, without the prepayment of its charges if demanded. The furnishing of equal facilities, without discrimination, does not require a common carrier to advance money to all other carriers on the same terms, nor to give credit for the

carriage of articles of trade and commerce to all carriers because it extends credit for such services to others."3

§ 827. Transportation in the same cars.

As to whether transportation must be given to the goods offered by a first carrier to a second carrier in the cars in which they are tendered by the first carrier, regardless of the desires of the second carrier, there is some conflict of authority. In Oregon Short Line and Utah Northern Railroad Company v. Northern Pacific Railroad Company the law and fact of this matter were by Mr. Justice Field summarized thus:

"As the receiving company is under no obligation to take the freight in the cars in which it is tendered, and transport it in such cars, when it has cars of its own, not in use, to transport it, there can be no custom that it shall pay the owner of such cars, should it receive them in such case, car mileage for their use. The car mileage in that case must be upon an arrangement between the parties. But when the receiving company takes the freight in the foreign cars because it has none of its own out of use to transport it, or because it would injure the freight to transfer it to its own cars, it is the general practice for the receiving company to pay the usual mileage on the cars taken and used, and such practice is a reasonable one, and should be enforced."5

3 Citing Oregon Short Line & U. N. Ry. Co. v. Northern Pac. R. Co., 9 C. C. A. 409, 61 Fed. 158 (1894); Id., 51 Fed. 465 (1892); Little Rock & M. R. Co v. St. Louis S. W. Ry. Co.. 11 C. C. A. 417, 63 Fed. 775 (1894); Little Rock & M. R. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. 559 (1890).

451 Fed. 465 (1892).

5 The use of cars upon other lines is a service incidental to the receiving, forwarding and delivering of traffic, and is within the provision of the English Act. Niphwys Casson Slate Co. v. Festiniog R. Co., 2 Nev. & Mac. 73 (1858).

Where cars are dissimilar in character a railway company may refuse to forward, upon reasonable requirements. Caledonian R. Co. v. North British R. Co., 3 Nev. & Mac. 56 (1862).

§ 828. Such transportation held obligatory.

On the other hand there are several cases, most of them based upon statute, which hold that the railroad is obliged to accept the cars of another road filled with goods and carry them through to their destination. Thus, in an opinion written by Mr. Justice Cooley, in the case of Michigan Central Railroad Company v. Smithson, is the following statement: “The primary fact that must rule this controversy is that the Michigan Central Railroad Company is compelled to receive and transport over its road all the varieties of freight cars which are offered to it for the purpose, and which are upon wheels adapted to its gauge. It is compelled to do so, first, because the necessities of commerce demand it. It cannot and would not be tolerated that cars loaded at New York for San Francisco, or at Boston for Chicago, should have their freight transferred from one car to another whenever they passed upon another road. Time would be lost, expense increased, injuries to freight made more numerous, and no corresponding advantage accrue to any one. It is compelled to do so, second, by its own interest. To attempt to stop every car offered to it at its termini, that the freight might be transferred to its own vehicles, would be to drive away from its line a large portion of its traffic, and compel it to rely upon a local business."

829. Through traffic agreements.

The principal question in this topic is whether, if a railroad enters into through traffic arrangements with one railroad, it is

645 Mich. 212, 7 N. W. 791 (1881).

7 See, to the same effect:

Louisville & N. R. R. Co. v. Boland, 96 Ala. 626, 11 So. 667 (1892); Baldwin v. Railroad, 50 Iowa, 680 (1878); C., B. & Q. R. Co. v. Curtis, 51 Neb. 442, 71 N. W. 42 (1897); Vermont & M. R. R. v. Fitchburg R. R., 14 Allen (Mass.), 462 (1867); Macklen v. Boston & A. R. R., 135 Mass. 201 (1887); Thomas v. Mo. Pac. Ry. Co., 109 Mo. 187, 18 S. W. 980 (1892).

bound to do so with others in the same situation. In the leading case in the United States Supreme Court, Atchison, Topeka and Santa Fe Railroad v. Denver and New Orleans Railroad, it was squarely held that a railroad might enter into through traffic agreements with one railroad, pro rating its through rate, and at the same time refuse to enter into a similar agreement with another railroad traversing the same territory as the first and having the same terminus. To quote but one paragraph from the elaborate opinion of Chief Justice Waite: "At common law, a carrier is not bound to carry except on his own line, and we think it quite clear that if he contracts to go beyond he may, in the absence of statutory regulations to the contrary, determine for himself what agencies he will employ. His contract is equivalent to an extension of his line for the purposes of the contract, and if he holds himself out as a carrier beyond the line, so that he may be required to carry in that way for all alike, he may nevertheless confine himself in carrying to the particular route he chooses to use. He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of transportation employed were all his He certainly may select his own agencies and his own associates for doing his own work."

own.

§ 830. Through arrangements compelled.

In some states, however, under authority of statute, through arrangements may be compelled by the body which has general power of the services and rates of the companies. The question has been raised whether such statutes are constitutional, but there seems to be little doubt.10 In holding such a Minnesota statute valid Mr. Justice Collins said: "We see no reason why, under the amendatory act (Gen. Laws 1895, chap. 91), the commission cannot lawfully compel a joint arrangement in

8 110 U. S. 667, 28 L. Ed. 281, 4 Sup. Ct. 185, B. & W. 265 (1884). 10 State v. Minneapolis & St. L. R. R., 80 Minn. 191, 83 N. W.60 (1900).

a case like this. The evidence shows that the location of the Duluth road and the Minneapolis and St. Louis road, their track facilities, equipment, etc., are such that, by operating together under joint traffic agreements, the cost of the service can be greatly lessened. The public has, at least, a right to share in the benefits of this condition. If it is judicious so to do and of public benefit to have joint traffic arrangements in any given case, why should not the public be permitted to compel that such arrangements be made?" "If the state is to have any voice, therefore, in the establishment of reasonable rates, it must have a voice in some degree and some manner in the business of the carrier. Where a single carrier is being dealt with, this can be accomplished by determining what the operating expenses ought reasonably to be; the reasonable value of the capital invested; what return, under all the circumstances of the case, would be fair; and then, by adjusting the rate, an economical management is secured. But in a case like the one at bar, where each may plead its inability to make the necessary agreement with the other, the state must have the power to arbitrate between them, and, within proper limitations, compel the acceptance of its award." "If the state is powerless to decide as between carriers, we have, as said by counsel for the commission, the following absurdity, namely: (a) The state may regulate rates; (b) the rate must be reasonable; (c) it must afford the carrier compensation over and above operating expenses; (d) the method of operating and consequent expenses is beyond the state control.' But this question has heretofore been considered and disposed of in this state adversely to defendant's contention in Jacobson v. Railroad Company. It was there held that the act of 1895 did not, under the facts of that case, contravene the federal or the state constitution when conferring upon the commission the power to compel the transfer and interchange of loaded cars, and

1171 Minn. 519, 74 N. W. 893, 40 L. R. A. 389 (1898), affirmed 179 U. S. 287, 45 L. Ed. 194, 21 Sup. Ct. 115 (1900).

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