Messenger v. The Pennsylvania Railroad Co. discharged if he is allowed to make unequal preferences, and thereby prevent or impair the enjoyment of the common right. and, as said by SHARSWOOD, J., in Audenried v. Philadelphia & Reading R. R. Co., 68 Penn. St. 370; S. C., 8 Am. Rep. 195, 'transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the right of all others." Chief Justice APPLETON, in the case of The New England Express Co. v. Maine Central R. R. Co., 57 Me. 196; S. C., 2 Am. Rep. 31, also says: "The very definition of a common carrier excludes the idea of the right to grant monopolies, or to give special and unequal preferences." In Baxendale v. The Eastern Counties Railway Co., 4 C. B. (N. S.) 63, two of the judges intimate a notion that unequal rates would not be contrary to the common law, but the same was mere dictum, foreign to the question at issue. Previous to that case, Smith, in his Leading Cases, 4th ed., vol. 1, p. 174, had said that "the hire charged must be no more than a reasonable remuneration to the carrier, and, consequently, not more to one (though a rival carrier) than to another for the same service." That clause gave occasion for the intimation of the judges to the contrary in Baxendale v. Eastern Counties Railway Co., and I find, in examining the last edition of Leading Cases, 6th ed., vol. 1, p. 364, that the editors have substituted for the latter part of his sentence the words, "though at common law there is no liability to carry at equal rates for all customers." The change, no doubt, was made under the force of the Baxendale Case, but, in my judgment, Mr. Smith was right in his statement. The view now contended for has been learnedly considered and sustained by several cases in this country, and must now be taken as the common-law doctrine of this State. The following are the cases referred to: The New England Express Co. v. Maine Central R. R. Co., 57 Me. 188; 2 Am. Rep. 31; McDuffee v. Railroad, 52 N. H. 430; Sanford v. Railroad Co., 24 Penn. St. 378; 1 Am. Railw. 530; Audenried v. Philadelphia & Reading R. R. Co., 68 Penn. St. 370; 8 Am. Rep. 195. It must not be inferred that a common carrier, in adjusting his price, cannot regard the peculiar circumstances of the particular transportation. Many considerations may properly enter into the agreement for carriage or the establishment of rates, such as the quantity carried, its nature, risks, the expense of carriage at differ Messenger v. The Pennsylvania Railroad Co. ent periods of time, and the like; but he has no right to give an exclusive advantage or preference, in that respect, to some over others, for carriage, in the course of his business. For a like service, the public are entitled to a like price. There may be isolated exceptions to this rule, where the interest of the immediate parties is alone involved, and not the rest of the public, but the rule must be applied whenever the service of the carrier is sought or agreed for in the range of business or trade. This contract being clearly within it, and odious to the law in the respect on which a recovery is sought, cannot be sustained. But there is an additional ground upon which it is also objectionable. I entirely agree with the Chief Justice that, in the grant of a franchise of building and using a public railway, that there is an implied condition that it is held as a quasi public trust, for the benefit of all the public, and that the company possessed of the grant must exercise a perfect impartiality to all who seek the benefit of the trust. It is true that these railroad corporations are private, and, in the nature of their business, are subject to, and bound by the doctrine of common carriers, yet, beyond that, and in a peculiar sense, they are intrusted with certain functions of the government, in order to afford the public necessary means of transportation. The bestowment of these franchises is justified only on the ground of the public good, and they must be held and enjoyed for that end. This public good is common, and unequal and unjust favors are entirely inconsistent with the common right. So far as their duty to serve the public is concerned, they are not only common carriers, but public agents, and in their very constitution and relation to the public, there is necessarily implied a duty on their part, and a right in the public, to have fair treatment and immunity from unjust discrimination. The right of the public is equal in every citizen, and the trust must be performed so as to secure and protect it. Every trust should be administered so as to afford to the cestui que trust the enjoyment of the use intended, and these railroad trustees must be held, in their relation to the public, to such a course of dealing as will insure to every member of the community the equal enjoyment of the means of transportation provided, subject, of course, to their reasonable ability to perform the trust. In no other way can trade and commercial interchange be left free from unjust interference. On this latter ground, that part of the contract in question is illegal. Messenger v. The Pennsylvania Railroad Co. There are three other counts also demurred to. It is unnecessary to refer to them in detail. The same vice exists in them as in the other two. The clear intention of the contracts set out in each is, to secure to the plaintiffs a monopoly of the transportation of hogs over the defendants' lines between the termini indicated, at less than any others are to be charged, except the seven named. The judgment of the Supreme Court must be affirmed. Judgment affirmed. INDEX. ABATEMENT. Of action for breach of promise of marriage.] See MARRIAGE, 123. ACCORD AND SATISFACTION. Agreement under seal to take less than debt.] After the maturity of an accepted draft the holder agreed, under seal, with the acceptor, to take less than ACKNOWLEDGMENT. By married woman, certificate of] See DEED, 634. ACT OF GOD. What is.] See NOTE, 618. ACTION. See PARTIES, 398; SLANDER; TENANCY IN COMMON; TRESPASS, 298. ADMINISTRATOR. When may purchase property of the intestate's estate.] See TRUSTS, 186. Unauthorized sale by agent.] See RATIFICATION, 480. When contract executed by president binds company.] See CORPORATION, 631 Of will.] See WILL, 368. ALTERATION. ANCIENT LIGHTS. Doctrine not applicable here.] The English doctrine of ancient lights giving a APPRAISERS. See ARBITRATION, 44. VOL. XVIII. - 96 ARBITRATION. Belection of arbitrators — must be impartial.] ▲ lease provided that the rent should be a percentage of the value of the property, to be determined by three appraisers, of whom one should be chosen by each party and the third by these two. Held, that the appraisers must be indifferent, and therefore that the choice by one party of his brother and business agent as an appraiser avoided the appraisement. Poole v. Hennessy (Iowa), 44. ARMS. See CONCEALED WEAPONS, 538. ARREST. When mail carrier liable to.] A mail carrier, while he may not, when in the discharge of his duty, be detained upon any civil suit, is legally liable to arrest on a charge of any criminal offense - for instance, of a violation of the law against the sale of intoxicating liquor. Penny v. Walker (Me. 269. Illegal — homicide in resisting.] See CRIMINAL LAW, 601. Bond of indemnity—when not assignable.] Defendant conveyed his business and good will to T., and gave a bond conditioned in a certain sum as liquidated damages, that defendant would not engage in the like business for a stated period. T. afterward conveyed the said business and good will to plaintiff, and assigned to him defendant's bond. In an action for a subsequent breach of the bond, held, that the assignment was void; such bond could only be enforced for the benefit of T. alone while carrying on the business in person, and there was no right of action to assign until after a breach of the condition. Hillman v. Shannahan (Oregon), 281. Of bond for purchase-money — priority of lien.] See LIEN, 694. ATTORNEY, Liability of husband for fees of the wife's attorney in divorce suit.] AUTREFOIS ACQUIT. See Hus By judgment of court not having jurisdiction.] Indictment for the embezzlement of six hundred dollars. Plea of former acquittal by the judgment of another court, which court had jurisdiction only of offenses against property, of a value less than fifty dollars. Held, that the plea was good Commonwealth v. Bosworth (Mass.), 467. |