situation may demand, can these diverse problems be successfully solved in particular cases. But that the monopoly system may be found to work well in particular instances, does not alter the fact that there is real danger in leaving the carrier wholly without the restraint of law, and able, therefore, to exploit those whom it is his duty to serve. The time has long since passed when lazzez faire may be put forward as the better method of dealing with the public services; and any concession, such as so many courts are willing to make in these instances, that there is no law to be found to restrain the common carriers in dealing with the dependent services, is a survival from that older policy now outgrown in respect to virtual monopolies.

But even if the common carrier at times exercises his discretion by seeing to it that the dependent service is provided under fair conditions, the danger remains in leaving this important situation without law; for if there is abuse of discretion and those who need the dependent service are systematically exploited, then there will be no law in reserve by which redress is possible. And if experience in dealing with the public service companies is teaching anything, it is showing that only the most comprehensive law will prove effectual; for if a way of escape is left, it will be found. Therefore, it is to be hoped that the progressive program in dealing with this special problem of the relation between the principal service and the dependent service will be the one that will prevail.

TOPIC D-CONNECTING CARRIERS.

§ 825. Discrimination between connecting carriers. One other form of discrimination ought to be discussed in this chapter, and that is differences made by one carrier between rival carriers which connect with it. With some one of these the carrier enters into a contract of one sort or another for through routing to some degree, but it refuses to give some of these privileges, or all of them, to the other. This is, of course,

illegal discrimination only to the extent that public duty is involved so that the preliminary question is as to the extent of the duty of a railroad in dealing with connecting railroads. May it refuse altogether to have dealings with them, to accept goods from them or to deliver goods to them? Obviously, this will not do; it is the duty of the railroad as a common carrier to accept of any consignor or deliver to any consignee, whether it be a railroad or a person. On the other hand it can hardly be said that the railroad must accord to all railroads every special privilege that it gives one railroad in a joint traffic agreement; for what it does for one as a favor, another cannot demand as a right. The truth of this matter must therefore lie between these two extremes.

§ 826. Goods requiring further transportation.

A common carrier must accept all goods properly tendered to it; however strained the relations between two carriers may be, the first carrier may tender goods received from a shipper to the second carrier; and the second carrier must accept these goods and forward them to their destination; for the first carrier in reality is offering the goods to the second carrier as agent of the shipper, to whom it is plain the public duty in the matter is owed.1

Although one line tendering goods as agent for the shipper may demand whatever the shipper might demand, if acting through any other agent, it cannot demand more. In Southern Indiana Express Company v. United States Express Company2 the plaintiff company complained that the defendant company refused to take parcels from it for further transportation without prepayment of charges, while for allied lines it not only did not require prepayment but even advanced back charges. The plaintiff claimed that this discrimination was a denial of its

1 Beers v. Wabash R. R., 34 Fed. 244 (1888).

2 88 Fed. 659 (1898).

"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).