was room in the defendant's coach, he could not have objected to take a passenger from Nashua, who applied there, merely because he belonged to some other town. That would furnish no sufficient reason, and no rule or notice to that effect could limit his duty. And there is as little legal reason to justify a refusal to take a passenger from Nashua, merely because he came to that place in a particular conveyance. The defendant might well have desired that passengers at Lowell should take French's line, because it connected with his. But if he had himself been the proprietor of the stages from Lowell to Nashua he could have had no right to refuse to take a passenger from Nashua, merely because he did not see fit to come to that place in his stage. It was not for him to inquire whether the plaintiff came to Nashua from one town or another, or by one conveyance or another. That the plaintiff proposed to travel onward from that place could not injuriously affect the defendant's business; nor was the plaintiff to be punished because he had come to Nashua in a particular manner.

"The defendant had good right, by an agreement with French, to give a preference to the passengers who came in French's stage; and as they were carriers of the mail on the same route, it seems he was bound so to do, without an agreement. If, after they were accommodated, there was still room, he was bound to carry the plaintiff, without inquiring in what line he came to Nashua."

§ 291. Railroads cannot refuse to take freight from those who deal with a rival.

The same law is applicable to carriers of freight. They must take freight of all who tender it properly, regardless of whether the shipper at times employs another carrier to get his goods to market. In one leading case, Chicago and Alton Railroad Company v. Suffern,2 it appeared that, defendants having connection

2 129 Ill. 274, 21 N. E. 824 (1889).

with a switch to plaintiff's mine, disconnected it and refused to supply cars and receive coal from plaintiff, because he allowed another road to connect with the switch. The Illinois courts. held that mandamus would issue to compel the connection. It is true that the Constitution provides that all railroad companies shall permit connections to be made with their track, so that any such consignee (of grain) and any public warehouse, coal bank or coal yard, may be reached by the cars on said railroad. And the court relied on this provision, but it seemed also to rest its opinion on the general grounds that a railroad cannot refuse to receive coal over its road because shippers send over another road also. Such a company must carry all freight offered, if legal charges are paid, since fair competition between roads is for public interest; if a road could do so it would establish the most odious sort of monopoly.

TOPIC B-APPLICATION BY A RIVAL FOR SERVICE.

$ 295. Competitors have same rights as general public.

It sometimes happens in the course of competition between two public-service companies that one of them may be bold enough to apply to the other for some service it requires in the conduct of its business. It is obvious that we have a delicate matter here. If the competitor can put himself in such a position that he can be said to apply, as one of the public might, it is difficult to see how his application can be refused. And yet this may aid him in the course of his business in various ways. whatever the situation, it may be premised, certainly, that when a competitor applies for such service as any one of the public might require, that he must be served as any other applicant, no more, no less.

3 Art. 13, § 5.

§ 296. A competitor cannot be refused as a passenger. The proposition in the heading is more or less contrary to an early American case, which still is famous, Jenks v. Coleman.1 This was an action on the case for refusing to take the plaintiff on board of the steamer Benjamin Franklin, as a passenger from Providence to Newport. The facts, as they appeared at the trial, were substantially as follows: That the plaintiff was the agent of the Tremont line of stages, running between Providence and Boston; that his object was to take passage in the boat to Newport, and then go on board the steamboat "President," on her passage from New York to Providence, on the next morning, for the purpose of soliciting passengers for the Tremont line of stages for Boston. This the proprietors of the "President" and "Benjamin Franklin " had prohibited, and had given notice that they would not permit agents of that line of stages to take passage in their boats for that purpose.

Mr. Justice Story virtually directed the jury to find for the defendant. He began his charge to the jury in this manner: "There is no doubt, that this steamboat is a common carrier of passengers for hire; and, therefore, the defendant, as commander, was bound to take the plaintiff as a passenger on board, if he had suitable accommodations, and there was no reasonable objection to the character or conduct of the plaintiff. The question, then, really resolves itself into the mere consideration, whether there was, in the present case, upon the facts, a reasonable ground for the refusal. The right of passengers to a passage on board of a steamboat is not an unlimited right, but it is subject to such reasonable regulations as the proprietors may prescribe, for the due accommodation of passengers and for the due arrangements of their business. The proprietors have not only this right, but the farther right to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to admit

12 Sumner, 221, B. & W. 100 (1835).

passengers on board who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct; or who make disturbances on board; or whose characters are doubtful or dissolute or suspicious; and, a fortiori, whose characters are unequivocally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests or patronage of the proprietors, so as to make the business less lucrative to them."

No exception can be taken to the general principles stated in this case which form, undoubtedly, an excellent recapitulation of the general law of public duty governing the situation. The real weakness in the case is the application of this law to the facts in hand. The plaintiff was in fact going from Providence to Newport, without any intention of soliciting passengers going down; although, as the court points out, he might have done so if he had a chance, there was no real likelihood of that. Of course he might have been excluded from the return trip, upon the ground that he was asking for facilities to compete, during the transit, but on the present trip he seems to have been simply a traveller, and must, therefore, be taken, although it might be to the business advantage of the carrier to leave him behind.

$297. Shipments made by a rival must be taken.

An analogous case would be if one railroad should make application to another railroad inimical to it to forward some materials to an intersecting point. It is submitted that it is the clear duty of the railroad to which this application is made to accept the shipment, although it might benefit much this road to which the application is made to cripple its rival by refusing to transport the supplies. For this is true of every publicservice company that it must accede to every proper application for service, although it might be more profitable to promote its own interests by imposing conditions, or even by refusing altogether.2

2 See Rogers Locomotive & Machine W. v. Erie R. R., 20 N. J. Eq. 379 (1869).

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).