ure to discharge this duty, we answer that it springs out of the obligation resting upon it to use every power with which it is invested to transport the passenger safely to his destination. If two or three burly blackguards boarding the train of the defendant railroad at the Louisiana line, should ride through the State, insulting and beating every man, woman and child who entered the cars, can there be any doubt of the authority or duty of the officers in charge to use their utmost power to prevent the outrage? We conclude then that the undoubted power which is vested in railroad officials to preserve peace and good order on their trains, and if necessary for this purpose, to eject therefrom turbulent and disorderly persons, carries with it the absolute duty to exercise the power when called upon so to do in a proper case by the other passengers: that a failure to discharge this duty stands to some extent upon the same footing as the omission to perform any other official duty, and upon the maxim respondeat superior renders the corporation liable."

To the same effect see 6 Blatchford's Reports, page 158; 34 Connecticut Reports, page 534.

The sound rules of law laid down by these eminent courts, asserting as they do established principles of the common law as to the powers and duties of conductors and carriers, when taken in connection with the provisions of the Act to regulate commerce, which forbid unjust discrimination, or undue prejudice or disadvantage to any person or persons while being transported as passengers, are of vital importance to all railway carriers engaged in interstate commerce and the conductors of their passenger trains, and give such passengers rights to equal protection against disorderly conduct which cannot be overlooked. In these respects they are every-day law on every passenger train in this country engaged in interstate commerce. They cannot be enforced with a steady hand in one car and disregarded in another car on the same train. They must be so enforced as to protect the weak, the humble, and the ignorant, equally with those of intelligence and commanding influence. None are

beneath the requirements of their protection, and none who violate them can be permitted to be above their power.

A position of such power, authority, trust and responsibility as that of conductor of a passenger train, is no place to be filled by a man who is unequal to the task of firmly and fairly enforcing the regulations provided by the railway company and the law of the land for the equal comfort, accommodation and protection of passengers on the train. When this powerful officer fails to protect some passengers on a train from acts of disorderly conduct on the part of intruders, which come under his observation, or which are brought to his notice, thereby permitting them to be subjected to undue prejudice and disadvantage, while at the same time he extends the protection of the law to the other passengers on the train against like disorderly conduct, it is a violation of the statute on the part of the company. If he stands by, passive, and permits intruders to go into a car not their own, and drink whiskey repeatedly out of a tin cup at the water-tank, provided by the company for the use of passengers in drinking water from that tank in that car, all this in the presence of men and women who are passengers in the car, and against the protest of a passenger in that car, and not only this, but himself indulges in drinking whiskey with them, this is not alone "a mere breach of discipline of the known rules and regulations of the company by the conductor." If, as here, it subjects the passengers in that car to an undue prejudice and disadvantage against which other passengers on that train are protected, it is also a violation of the rights of passengers in that car, as secured to them by the law of the land. In performing the duty of protecting all passengers equally and alike from disorderly conduct on the part of other passengers and persons, as the conductor treats passengers, so the railway company treats them, because he is the appointed agent of the company to perform that duty, and is there, among his other official duties, for that purpose. The like equal protection should have been afforded by defendant to petitioner and the passengers in car 30 against disorderly conduct on the part of other passengers, as was extended to passengers in car 13.

The order of the Commission is, that notice forthwith issue to the defendant, the Georgia Railroad Company, to cease and desist without any further delay from subjecting petitioner and other persons of his race and color to undue prejudice and disadvantage, when engaged in interstate travel, by failing and refusing to furnish to them passenger cars of equal comfort and accommodation to those furnished to passengers of the white race engaged in interstate travel over its line, where the same fares are charged each: and further notifying the said defendant that it must cease and desist without any further delay from failing to furnish the equal protection required by law to petitioner and persons of his race and color, when engaged in interstate travel as passengers upon its passenger trains, the same as it furnishes to passengers who are of the white race, against disorderly conduct on the part of other passengers, and of all persons whatsoever; and it is further ordered by the Commission that with said notice a duly certified copy of this report and opinion of the Commission be forthwith furnished to the said defendant, the Georgia Railroad Company.

PUTNAM P. BISHOP v. H. R. DUVAL, RECEIVER OF THE FLORIDA RAILWAY & NAVIGATION COMPANY.

JAMES A. HARRIS v. H. R. DUVAL, RECEIVER OF THE FLORIDA RAILWAY & NAVIGATION COMPANY AND OTHER CARRIERS.

MEMORANDUM.

When, pending a proceeding begun to test the reasonableness of rates, the rates are reduced and made satisfactory to the complainants, the Commission will not consider the question whether the rates before reduction were or were not excessive; that question having by the reduction made become purely abstract and speculative.

The question whether rates paid ought to be refunded having been presented to a judicial tribunal, where it is now pending, the Commission will not take cognizance of it.

These two cases present the same legal questions and they were heard together.

Complaint was made that the rates charged on fruits transported from the town of Citra, in Florida, to northern markets were excessive. While the cases were pending the rates were reduced by the respondent parties, and we do not understand that any complaint is now made of them. The question, therefore, whether they were excessive as they were at the time of the commencement of these proceedings has become purely abstract and speculative.

Complainants, however, desire to be heard upon that question, and to have a decision upon it, upon the ground that otherwise the respondents may at any time restore the old rates. In that respect, however, the condition of affairs is not different from what it would have been had these proceedings not have been commenced. A carrier always has the power to put up rates, but the fact that it has the power scarcely affords sufficient reason for the institution of proceedings to determine whether other rates than those now existing would be sustainable.

The Commission must assume that the rates in this case

have been reduced in good faith, and that the carriers expect to abide by them as now established. There is nothing in the proceedings before us to indicate the contrary.

In the petitions, prayer was made that the respondents be ordered to refund sums previously paid in excess of what was claimed to be reasonable. It appears, however, that claim to a refunding has been made in the Court which appointed the receiver, who is the sole defendant in the first entitled case, and the principal defendant in the other case. The Court has therefore cognizance of that question, and the complainants, by filing their claims in court, have elected that tribunal to pass upon them. Under the circumstances, therefore, the complaints will stand dismissed.