to carry indifferently, within the usual range of their business, for a reasonable consideration, all freight offered and all passengers who apply. For similar equal services, they are entitled to the same compensation. All applying have an equal the defendant carrier operated a line of road between the cities of Memphis, Tenn., and Huntsville, Ala. The Commercial Publishing Company was engaged in publishing a morning newspaper in the city of Memphis. At that time there was no early train service out of Memphis by which newspapers could be carried to points between that place and Huntsville. Conceiving the idea that the value of its newspaper would be largely enhanced by the establishment of such a train, it entered into a contract with the defendant carrier in which it was agreed that the defendant, in consideration of certain compensation to be paid it by the Commercial Publishing Company would operate a passenger train which would leave Memphis about 4 a. m. daily. It was further agreed that such train would carry all newspapers which the Commercial Publishing Company might desire to distribute between Memphis and Huntsville, and that it would refuse to carry on such train the newspapers or publication of any other publishing company; but other newspapers or publications were to be transported upon any other train or trains of the car rier, except the one in question. The train thus provided for was soon thereafter put into operation and was made one of the carrier's scheduled trains. It was controlled exclusively by the defendant company, and all the revenue derived from it belonged to the defendant company. It carried passengers and their baggage, United States mail, express matter and all such freight as is usually transported on passenger trains of a commercial railroad. Soon after the train was put into operation, the complainant, the Memphis News Pub lishing Company, began the publication in the city of Memphis of a daily morning paper. Having secured subscribers in the terri tcry reached by the defendant's road, and being desirous of reaching these subscribers at as early an hour as possible, it demanded the right to ship as freight its packages of newspapers directed to various stations along the line of road where the train was scheduled to stop and tendered the usual charges for the same. The demand, however, was refused, the defendant resting its right to do so upon the ground that it was restrained from such carriage by the terms of its contract with the Commercial Publishing Company. The complainant thereupon offered to enter into a contract with the defendant assuming the same liability in every respect as that assumed by the Commercial Publishing Company, but such offer was refused, whereupon it filed a bill for injunction and other relief. In affirming a decree for the complainant, the supreme court of Tennessee said: "It is true a common carrier may become a private carrier or bailee for hire when as right to be transported, or to have their freight transported, in the order of their application. They cannot legally give undue and unjust preferences, nor make unequal and extravagant charges. Having the means of transportation, they are liable to an action if they refuse to carry freight or passengers without just ground for such refusal. The very definition of a common carrier excludes the right to grant monopolies or to give special or unequal preferences. It implies indifference as to whom they may serve, and an equal readiness to serve all who may apply, and in the order of their application."60 a matter of accommodation or special agreement he undertakes to carry something which it is not his business to carry. Hutchinson on Carriers, sec. 44. . . . . But when a carrier has a regularly established business of carrying all of certain articles, and especially if that carrier be a corporation created for the purpose of the carrying trade, and the carrying of the articles is embraced within the scope of its chartered powers, it is a common carrier, and a special contract about its responsibility does not divest it of that character. . . . The train in question was a scheduled one, advertised to the world as such. An invitation was given to the public to take passage and ship freight upon it. . So far as the record shows, it received on this train merchandise from every other member of the community, and refused carriage alone to that of this complainant; and this refusal is based, not upon a lack of carrying capacity, but exclusively upon the ground that it had contracted away its duty, in respect to such property as the complainant had tendered, to another party. Such an excuse can not relieve the railway company from its obligations to the complainant as one of the public." Where the plaintiff had constructed his coal mine adjoining the defendant's track, and had been supplied with cars for some time by the defendant for the transportation of his coal, it was held that mandamus would be granted to compel the defendant to furnish cars where its refusal to do so was based on the ground that the plaintiff would not sell his coal below the market value to a company in which the defendant's president was interested. Loraine v. Railroad Co., 205 Penn. St. 132, 54 Atl. Rep. 580, 61 L. R. A. 502. 60. New England Express Co. v. Maine Central Railroad Co., 57 Me. 188. See also, Express Co. v. Railway Co., 81 Me. 92. A railroad company which controls a switch connecting a certain stone quarry with its main line, and which switch is a part of its general system, cannot lawfully refuse to accept stone for carriage when offered by the owner of another nearby stone quarry at such points on the switch where it may be reasonable for it to re Sec. 513. Same subject-Difference in situation of shippers may justify a preference.-But while, as a general rule, the carrier in providing vehicles for the transportation of goods is not permitted to show preferences which will give to one employer an advantage over another, there can be no actionable discrimination between those whose situation and relations to the carrier, with reference to the commodity to be shipped, are so different as to justify or demand a difference in treatment. For example, in the matter of furnishing cars for the shipment of coal from any given station, the carrier may adopt a different rule for those who load by tipple on cars placed on their own private tracks, which are used exclusively for handling coal, than for those who load by wagon on cars placed on the carrier's tracks which are used for the transaction of general business. For in the former case the carrier would not be seriously interrupted in the discharge of his duty to the public in the transportation of passengers as well as all classes of freight, while in the latter case he would be.1 Sec. 514. (§ 298.) Same subject-Duty to furnish facilities to express companies without discrimination. There is a square conflict of the authorities as to whether a railroad is compelled to furnish to an express company facilities and accommodations for its express business which are equal to those furnished by it to another express company. The more conservative jurisdictions hold that there is no such duty on ceive it. Bedford-Bowling Green Co. v. Oman, 24 Ky. L. R. 2274, 73 S. W. Rep. 1038, 115 Ky. 369, s. c. 134 Fed. 441. In State ex rel Cumberland Telephone & Telegraph Co., 52 La. Ann. 1850, 28 So. Rep. 284, and Cumberland Telephone & Telegraph Co., 51 La. Ann. 29, 24 So. Rep. 803, a writ of mandamus was held to lie to compel a railroad to haul special cars and run special trains in order to distribute poles, wires and cross arms between stations, and, in short, to afford the Cumberland Telephone & Telegraph Co. the same facilities it extended to the Western Union Telegraph Co., its rival. Property must be transported in the order in which it is received, without partiality or favor. Houston, etc. Ry. Co. v. Smith, 63 Tex. 322. 1. Railway Co. v. State, the part of the railroad. The more progressive jurisdictions hold that there is a public duty involved, and that a railroad cannot discriminate between express companies.2 One of the earliest cases holding the latter view was that of the New England Express Company against the Maine Central Railroad,3 which was an action by the express company against the railroad company for a refusal to accept and carry upon its passenger train. The plaintiff alleged that it was ready to pay or secure the payment of a reasonable sum for such service, and to comply with all the usual and reasonable terms applicable to the transportation of express matter, and that defendants refused to receive and transport its parcels and property upon said passenger train, though they were transporting express matter for the Eastern Express Company on their passenger trains at the time. The fact was that the railroad company had entered into a contract with one express company, to give to it for a period of years certain exclusive accommodations and privileges in the passenger trains of the road for the carrying of express freight, which it had subsequently denied to the plaintiff, another express company, upon its application to be allowed the same privileges; and the action, although in form for a refusal to carry the plaintiff's goods, was in effect for damages for the undue preference, which it was denied that the defendant had the right to extend to a rival company. And upon this principle, that the company was bound to serve all who might apply, alike and upon the same terms, it was held liable to the action. It was said that, independently of the statute which prohibited such a preference and monopoly, the right of action existed upon commonlaw principles. And in speaking of the defendant company as a railroad carrier, the learned judge went on to say: "The defendants derived their chartered rights from the state. They owe an equal duty to each citizen. They are allowed 2. See upon this subject the able article by Bruce Wyman in The Green Bag, Vol. XVII., p. 570. 3. 57 Me. 188. This case was followed in International Exp. Co. v. Railway Co., 81 Me. 92. to impose a toll, but not to be so imposed as specially to benefit one and injure another. They cannot, having the means of transporting all, select from those who may apply some whom they will, and reject others whom they can, but will not, carry. They cannot rightfully confer a monopoly upon individuals or corporations. They were created for no such purpose. They may regulate transportation; but the right to regulate gives no authority to refuse, without cause, to transport certain individuals and their baggage or goods, or to grant exclusive privileges of transportation to others. The state gave them a charter for no such purpose.' Sec. 515. (§ 299.) Eame subject.-In McDuffee v. The P. & R. Railroad, the action was in case for not furnishing to the plaintiff terms, facilities and accommodations for his express business upon the defendant's road, reasonably equal to those furnished by it to another express company. The declaration was demurred to, and the court, after arguing at length that, independently of statutory provisions, the common carrier was bound on common-law principles to furnish equal facilities for the transportation of their goods to all who might apply, overruled the demurrer, holding the action to be maintainable, and using the following language: "This being a case in some respects of novel impression in this state, the plaintiff's counsel, in drawing the declaration, very prudently referred to the statute and inserted several counts of considerable length and elaboration. Since we hold that damages suffered by the plaintiff from an unreasonable discrimination made by the defendant between the plaintiff and the Eastern Express Company or any one else, in terms, facilities or accommodations-damage caused by any undue or unreasonable preference or advantage made or given by the defendants as common carriers, to or in favor of any particular person or company, or caused by any undue or unreasonable prejudice or disadvantage to which the defendants subjected the plaintiff, is a cause of action at common law, a good and sufficient count can easily be drawn for such a cause of action without reference to the statute." 4. 52 N. H. 430. |