§ 851. Serving applicants in rotation. Where the applicants for service are in the same general class the traditional rule, as has just been seen, has been to serve customers in the order of their application. Thus the law for grist mills has always been first come, first served.1 This works well enough when each applicant wishes a small service. Indeed where the application is practically indivisible, no other rule is practicable. Thus the normal rule as to telegrams is that they shall be forwarded in order of receipt.2 In most situations this rule of rotation will plainly govern. Plainly no other rule is applicable where the service which each applicant desires is the natural unit in the particular service. Thus a steamship company should assign berths to passengers in the order of their application. As between two shippers offering two shipments either one of which will exhaust the space available, the one which first applies should be given precedence in the normal case.1 1 Alabama. Sadler v. Langham, 34 Ala. 311 (1859). Georgia.-Loughbridge v. Harris, 42 Ga. 500 (1871). Maine.-State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528 (1893). Nebraska.-Getchell v. Benton, 30 Neb. 870, 47 N. W. 468 (1890). Tennessee.-Harding v. Goodlett, 3 Yerg. 41 (1832). West Virginia.-West v. Rawson, 40 W. Va. 480, 21 S. E. 1019 (1895). 2 Colorado.-Western Union Tel. Co. v. Graham, 1 Col. 230, 9 Am. Rep. 136 (1871). Indiana.-Western Union Tel. Co. v. Ward, 23 Ind. 377, 85 Am. Dec. 462 (1864); Bierhaus v. Western Union Tel. Co., 8 Ind. App. 246, 34 N. E. 581 (1893). Nevada.-Western Union Tel. Co. v. Call Publishing Co., 58 Neb. 192 (1895), 78 N. W. 579 (1897); Mackay v. Western Union Tel. Co., 16 Nev. 222 (1881). South Carolina.-Pinckney Bros. V. Western Union Tel. Co., 19 S. C. 71, 45 Am. Rep. 765 (1881). Tennessee.-Telegraph Co. V. Munford, 87 Tenn. 190, 10 S. W. 318 (1889); Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725 (1896). England.-Reuter v. El. T. Co., 6 E. & B. 341 (1856). 3 Patterson v. Steamship Co., 140 N. C. 412, 53 S. E. 224, 5 L. R. A. (N. S.) 1012, 111 Am. St. Rep. 848 (1906). 'Ocean Steamship Co. v. Savannah L. W. & S. Co. (Ga.), 63 S. E. 577, 20 L. R. A. (N. S.) 867 (1909). § 852. Proration of limited supply. There are several public services, as has been noted, where there is a natural limitation upon the amount of the supply available. Take the case of natural gas-when it is found that no more can be obtained by sinking more wells in the district, what shall be done? The actual cases which have come up in the natural gas regions have decided not merely that there should be a proration of the available supply when the demand outruns the supply, but apparently that new applicants within the same district must be received and given their share of the supply.1 Then there is the case of the irrigation system-in a period of drought how shall the available supply be distributed? At this point the matter is complicated by the established law in those regions as to priority in water right by reason of earlier appropriation; and the general rule follows of giving full supply to an earlier taker in preference to a later one, those who are upon the same plane sharing equally,2 1 Those interested in this problem should consult: Indiana.-State ex rel. Wood v. Consumers' Gas Trust Co., 157 Ind. 345, 61 N. E. 674, 55 L. R. A. 245 (1901); Indiana N. Gas & O. Co. v. State ex rel. Armstrong, 162 Ind. 690, 71 N. E. 133 (1904). Pennsylvania.-Thompson Glass Co. v. Fayette Fuel Gas Co., 137 Pa. St. 317, 21 Atl. 93 (1890); Black Lick Mfg. Co. v. Saltsburg Gas Co., 139 Pa. St. 448, 21 Atl. 432 (1891). "Those interested in this problem should consult: United States.-Souther v. San Diego Flume Co., 112 Fed. 228 (1901), 121 Fed. 347, 57 C. C. A. 561 (1903). California.-Volkmar v. Volkmar, 147 Cal. 175, 81 Pac. 413 (1905); Doland v. Clark, 143 Cal. 176, 76 Pac. 958 (1904). Colorado.-Farmers' H. L. C. & Ry. Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028 (1889); Nichols v. McIntosh, 19 Colo. 22, 34 Pac. 278 (1893); Northern Colo. Irr. Co. v. Richards, 22 Colo. 450, 45 Pac. 423 (1896); White v. Highline Canal & Ry. Co., 22 Colo. 191, 43 Pac. 1028 (1886). Oregon.-Cole v. Logan, 24 Oreg. 304, 33 Pac. 568 (1893). § 853. Distribution of cars to stations. It is obviously impossible to regulate the order of accepting goods according to the time of offers for shipment over the whole line. Reasonable facilities must be provided for each station, and when the space provided for the station has been exhausted no further goods need be received there until it is possible to get more cars without depriving another station of its supply. This matter was discussed in the case of Ballentine v. North Missouri Railroad. In the course of his opinion in that case Mr. Justice Fagg said: "It seems to have been the theory upon which the petition proceeded in this case, that it was the duty of the defendant to have shipped the live stock in the order of time in which it was offered with reference to the entire line of its road, and not to any particular station. This is altogether unreasonable, and in its practical operation would work great hardships upon all companies. Its duty in this respect, then, must be understood in reference to each particular station and not to the operation of the road as a whole. Whilst it may be difficult to lay down any general rule upon this subject, sufficiently accurate in its terms to cover all cases that may possibly occur, still we think it can be approximated by saying that its means of transportation must be so distributed at the various stations for receiving passengers and freight along the entire line of its road, as to afford a reasonable amount of accommodation for all." 2 1 40 Mo. 491 (1867). See further, Pittsburg, C., C. & St. L. Ry. Co. v. Wood (Ind. App.), 84 N. E. 1009 (1908). 2 Where a railroad company discriminated against a shipper who had no other means of shipment than over its line, and refused to furnish him with cars at times when it was supplying them freely to other shippers at points where it competed with other lines, it is held liable. Chicago, St. L. & P. Ry. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451, 50 Am. Rep. 320 (1895). But in Little Rock & Ft. S. Ry. Co. v. Oppenheimer, 64 Ark. 271, 43 S. W. 150, 44 L. R. A. 353 (1897), furnishing cars first to com § 854. No part of the system given preference. All cars available should be used for the equal benefit of the whole system, no part being given preference over another. The question was considered at length in Ayres v. Chicago & Northwestern Railway. In that case Mr. Justice Cassoday said: "It must be remembered that the defendant has many lines of railroad scattered through several different States. Along each and all of these different lines it has stations of more or less importance. The company owes the same duty to shippers at any one station as it does to the shippers at any other station of the same business importance. The rights of all shippers applying for such cars under the same circumstances are necessarily equal. No one station, much less any one shipper, has the right to command the entire resources of the company to the exclusion or prejudice of other stations and other shippers. Most of such suitable cars must necessarily be scattered along and upon such different lines of railroad, loaded or unloaded. necessarily be at the larger centers of trade. tions of the market are not always the same, but are liable to fluctuations, and may be such as to create a great demand for such cars upon one or more of such lines, and very little upon others. Such cars should be distributed along the different lines of road, and the several stations on each, as near as may be in proportion to the ordinary business requirements at the time, in order that shipments may be made with reasonable celerity. The requirement of such fair and general distribution and uniform vigilance is not only mutually beneficial to producers, shippers, carriers, and purchasers, but of business and petitive points was held not unjustifiable. 171 Wis. 372, 37 N. W. 432, 5 Am. St. Rep. 226 (1888). See also Many will Martin v. Gt. Northern Ry. Co., 110 Minn. 118, 124 N. W. 825 (1910). trade generally. It is the extent of such business ordinarily done on a particular line, or at a particular station, which properly measures the carriers' obligation to furnish such transportation." 1 § 855. Apportionment of cars to shippers. By the principles just established, facilities are assigned to localities not in the order of their application, but in proportion to their usual requirements, as this is regarded as fair to all concerned, upon the whole. When it becomes a question of the assignment of facilities to applicants in the same locality there is sometimes a disposition to adhere to the simple rule of rotation in the order of application. But upon reflection it is sufficiently plain that here too it is more fair to all concerned that there should be an apportionment of the facilities available. This law is quite modern; it was hardly worked out before State v. Chicago, Burlington & Quincy Railroad Company. The problem there arising for decision was whether 2 The principle permitting that policy to be adopted which will best clear the congestion with the least injury is well illustrated by the two following decisions which are really not at all inconsistent. In Galena & C. U. R. R. Co. v. Rae, 18 Ill. 488, 68 Am. Dec. 574 (1857), it was held that a railroad might be justified, in press of business, in taking grain from wagons or boats, while grain in private warehouses was awaiting transportation. On the other hand, in Choctaw, O. & G. R. R. Co. v. State, 73 Ark. 373, 84 S. W. 502 (1904), it was held that in time of stress the railroad might handle coal cars upon private sidings when it could not furnish facilities for shippers in its own yards which were congested with cars. Nevertheless in State v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1907), it seems to have been conceded that a railway would usually be justified in retaining cars until they were reloaded. Another cautious decision of this general sort is Union Pacific R. R. Co. v. Updike Grain Co., 178 Fed. 223 (1910). 271 Neb. 593, 99 N. W. 309 (1904). See also: Arkansas. St. Louis S. W. Ry. Co. v. Clay Ginn. Co., 77 Ark. 357, 92 S. W. 531 (1906). Minnesota.-Martin v. Gt. Northern Ry. Co., 110 Minn. 118, 124 N. W. 825 (1910). |