Johnson v. Pensacola & Perdido Railroad Co. the conduct of his business. The law makes it his duty, when he can conveniently do so, to receive and carry goods for any person whatsoever for a reasonable hire." Under the English decisions a warehouseman, having by virtue of an act of Parliament a monopoly of his business, is, as to rates of compensation which he can demand, placed upon the same footing as a common carrier. He is bound by law to receive goods into his warehouse for a reasonable price and reward. The principles which underlie this rule, as announced by Lord HALE, are stated by the English courts as the basis of their conclusions as to this matter. So in a case in the Supreme Court of the United States (4 Otto, 134), where it proposed to state the common law on the subject, the views of Lord HALE, and these decisions of the courts of England, are cited as giving the true rule. In Allnut and another v. Inglis, Treasurer of the London Dock Company, 12 East, 527, Lord ELLENBOROUGH says that according to Lord HALE, "wherever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods, which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf. Lord HALE puts the case either way; where the King or a subject have a public wharf to which all persons must come who come to that port to unlade their goods, either because they are the wharves only licensed by the Queen, or because there is no other wharf in that port, as it may fall out; in that case (he says) there cannot be taken arbitrary and excessive duties for cranage, wharfage, etc., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the King's license or charter." And then he assigns this reason, "for now the wharf and crane and other conveniences are affected with a public interest and they cease to be juris privati only." Lord ELLENBOROUGH then says: "Here the company's warehouses were invested with the monopoly of a public privilege, and, therefore, they must by law confine themselves to take reasonable rates for the use of them for that purpose." LE BLANC, J., in the same case, after stating that the act of Parliament confines the privilege to the company's warehouse, inquires: "Is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound Johnson v. Pensacola & Perdido Railroad Co. to pay an arbitrary but only a reasonable rent ?" and then answers his own inquiry by declaring that "in case of dedication to such a purpose as this" (that is, where private property is affected with such a public interest) "the owners cannot take arbitrary and excessive duties, but the duties must be reasonable. That principle was followed up in the case of Bolt v. Stennett, 8 Term Rep. 606, for there the quay being one of the public quays licensed under the statute of Elizabeth, it was held that the owner was bound to permit the use of the crane upon it and could not insist either that the public should not use the crane at all, or should use it only upon his own terms, but that he was bound to permit the use of it upon reasonable terms." In the same case like views were expressed by BAYLEY, J. It cannot be questioned that the reason why a common carrier is restricted to reasonable rates is the same that causes the limitation at common law upon the rates to be charged by a wharfinger licensed under a statute. Munn v. Illinois, 4 Otto, 129–30. In reference to a railroad company it may be truly said that it exercises a quasi public employment. While railroads are managed for private benefit and the profits resulting from their operation go to individuals, yet they are treated as merely a public convenience and agency in the matter of State and inter-State commercial intercourse. It is the public character attached to them which, under certain circumstances, authorizes taxation for their construction, as a tax for a private purpose is unconstitutional; and it is the like public nature of their functions which enables them to become the objects of a legislative grant to take the property of an individual for their use, paying a reasonable compensation therefor. We have exhausted the material at our hands in the endeavor to ascertain the result of the English cases upon this question. We can find in England or the United States no case involving the precise point here involved, which is, whether, at common law, the defendant, a common carrier, is responsible to the plaintiff for the excess charged him upon the like material and during the same time over a charge for like freights for like material during the same time made of another. In the case of the Fitchburg Railroad Company v. Gage and others, 12 Gray, 393, the Supreme Court of Massachusetts held "that a railroad corporation is not obliged as a common carrier to more. Johnson v. Pensacola & Perdido Railroad Co. transport goods and merchandise for all persons at the same rates." In speaking of the common-law rule that court says: "It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the restricted right to charge in each particular case of service a reasonable compensation and no more. If the carrier confines himself to this, no wrong can be done and no cause afforded for complaint." The claim made in this case arose out of a difference between the freights upon plaintiff's ice and the price charged others upon the same class of freights. It was not upon the same material, but the court treated the case as involving the same principle. It based its conclusion upon the ground that the plaintiff did not set out a case of excessive or unreasonable charge. In the last edition of Story on Bailments, we find the rule of the common law thus stated: "At common law a common carrier of goods is not under any obligation to treat all customers equally. He is bound to accept and carry for all upon being paid a reasonable compensation. But the fact that he charges less for one than for another is only evidence to show that a particular charge is unreasonable; nothing There is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreasonably low rate or even gratis." In support of this doctrine the following cases are cited: 12 Gray, 393; 2 P. C. 237; 4 C. B. (N. S.) 78; 12 id. 74. While the text is the reasonable deduction from remarks in these cases, still, with the exception of the case reported in 12 Gray, they were (so far as we have been able to examine them) cases arising under statutes. Most of the cases treat of the common-law rule strictly as between the parties, and without comparison as to the charges against others, the cases where legislative action is being construed, and is controlling, being omitted as not being in point. The cases stating the common-law rule are simply that the charge must be reasonable. Thus far there cannot be any reasonable difference between fair minds. In the next place, the right to have the service of the common carrier at a reasonable rate is common. Upon a tender of a reasonable compensation, unless there is a reasonable ground for his refusal, in case of refusal he will be liable to an action. Under such circumstances he must receive and carry all goods offered for transportation (which it is his duty to transport) by any person whatever, upon receiving a suitable hire. Looking to the cases, and rejecting as we always Johnson v. Pensacola & Perdido Railroad Co. must theories of judges based upon ill-defined definitions and outside of the facts before them, the term "common" in this connection is used as contra-distinguished to private or exclusive. It means a public carrier as distinct from a private carrier — a carrier simply pro hac vice. As to whether a carrier is public or private is the method by which you measure his responsibility. In case of loss or damage to goods by a carrier, the grounds of the difference of the responsibility depend upon whether he is a public or a private carrier. The cases in England and the United States show that the term "common" as applied to carriers means simply public as distinct from private. The term "common" does not measure the extent of the right of each or its nature. It simply means that whatever is the right of one is the right of all, without proposing to define what is the right of any, except that the term "common" as applied to carrier involves the duty and obligation to undertake the service, while the term "private" as applied to carrier involves discretion in the matter. 2 Stephens' N. P. 962. Common carriers are "carriers for hire indifferently for all persons." "Those who are engaged in the business of carrying for all who apply, indiscriminately, upon a particular route, by whatever mode of transportation they conduct their business, must be regarded as common carriers; while those who undertake to carry in a single instance, for a particular person, not being engaged in the business as a general employment, even for a portion of the time, must be considered private carriers." 4 Harr. 448; 1 Pick. 50; 2 Redf. on Rail. (5th ed.) 5, and cases cited. Says Chancellor KENT: "Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire as a business, and with or without a special agreement as to price." 1 Salk. 249; 8 Carr. & P. 207; 3 Barb. 388; 2 Kelly, 353. Says NISBET, J. (in the case last cited), when treating of the distinctions between a common and private carrier: "If he refuses to carry he is liable to be sued and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character." Says Mr. Justice STORY (Story on Bailments, 495), after speaking of his general obligations: "A common carrier has, therefore, been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place." 1 Wend. 272; 2 Story, 17; 25 Penn. St. 120. In the last case the terms "common" and "public" are used as synonymous words. It is useless to multiply Johnson v. Pensacola & Perdido Railroad Co. quotations to determine the signification of the term "common" in this connection. It is used not to define, to limit, or explain the degree or amount of compensation which can be demanded for the service to be performed. Indeed, as to the amount of compensation which can be demanded, the rule as to public and private carriers is the same. It is a quantum meruit. True, the responsibility, the risk of the public carrier, is greater, and that fact may possibly enter into the estimate of the value of the service. That, however, would simply increase the damages, on account of the different degrees of responsibility attending the several bailments. It would not vary the rule. Our conclusions are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A and accommodate B; that all, the entire public, have the right to the same carriage for a reasonable price, and at a reasonable charge for the services performed ; that the commonness of the duty to carry for all, does not involve a commonness or equality of compensation or charge; that all the shipper can ask of a common carrier is, that for the service performed he shall charge no more than a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the smaller charge is the true reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree. The obligations in this matter must be reciprocal. Where there is no express contract the common-law action by the carrier against the shipper is for a quantum meruit, and the liability of the shipper is for a reasonable sum in view of the service performed for him. What is charged another person (in this case the amount charged the Perdido Bay Lumber Company), or the usual charge made against many others (the freight tariff), is matter of evidence admissible to ascertain the value of the service performed. In every case the legality of the charge is established and measured by the value of the service performed, and not by what is charged another, unless what is charged the other is the compensating sum, in which event it is the proper sum, not on account of its equality, but because of the relation it bears to the value of the service performed VOL. XXVI-93 |