they become the same as its own for the purposes of carriage. Every company judges for itself what style of car it desires for its passengers, and its reasons are unimportant so long as its patrons are properly served, nor is it material how the cars are procured. Whatever discretion of preference a carrier may exercise in the choice of passenger cars in its business is outside of the statute and only an exercise of legitimate authority. It relates to the physical operation of the road, for which the carrier is responsible to the public and to the law.

Upon the subject of a legal tribunal, or even a legislative body, interfering with the physical operation and management of a railroad, the report of a Royal Commission in Great Britain, appointed in 1874, shows how the subject is regarded in that enlightened country. In their report to Parliament, presented in 1877, they say:

"Large as are the powers now possessed by the board of trade and the railway commission in respect of railways, they are so adjusted and so limited as to leave with the companies. the undivided responsibility of working their lines. The first and most important question, therefore, which we have had to consider, as affecting the entire character of our report, is whether an investigation leads us to advise a departure from this policy, which has heretofore characterized railway legislation; but upon full consideration we are not prepared to recommend any legislation authorizing such an interference with railways as would impair in any way the responsibility of the companies for injury or loss of life caused by accident on their lines. To impose on any public department the duty and to intrust it with the necessary powers to exercise a general control over the practical administration of railways would not, in our opinion, be either prudent or desirable. A government authority placed in such a position would be exposed to the danger either of appearing indirectly to guaranty works, appliances, and arrangements which might practically prove faulty or insufficient, or else of interfering with railway management to an extent which would soon alienate from it public sympathy and confidence,

and thus destroy its moral influence, and with it its capacity for usefulness."

There is nothing in the Act to regulate commerce that indicates a different view on this subject so far as the mere physical operation of railroads is concerned in the carriage of passengers. That there must be no unjust discrimination, or unlawful preference, or undue prejudice or advantage, or disadvantage or extortion, is all true. But these cover a very different field from the power and duty of the carrier to legitimately exercise the authority of selecting cars of its own choice for the transportation of passengers over its line.

For the convenience of commerce, as a rule, carriers, to avoid breaking of bulk and as a method of business among themselves, adopted the rule of receiving and transporting freight cars of connecting lines under reciprocal arrangements, which went to the extent of the interchange of freight cars on agreements for allowance of car mileage. This was adverted to in the case of The Burton Stock Car Company v. The Chicago, Burlington & Quincy Railroad Company et al., 1 I. C. C. Rep. 140, and the Commission there said:

"As is well known, freight cars belonging to the different railroad companies throughout the land are, to a large extent, used interchangeably. A record of their mileage when away from home is made the basis of the payment of 'car service' at the rate of three-fourths of a cent per mile. Of course,

if the cars of a carrier are used as much away from home as it uses the cars of other roads on its line, the monthly payments for car service will be offset by the amounts received. This is theoretically the nature of the transaction-a matter of mutual convenience which costs neither party anything. The payments and receipts in any one month could not be expected to exactly balance, but if each road has cars sufficient for its use, the result in the long run will be very nearly equalized. In view of this fact, it is obvious that no great importance attends the making this payment an exact compensation for the use of the cars, and it would not be fair to make it the measure of payment required to be made for the use of cars hired from other persons."

The practice of carriers receiving and transporting freight cars of connecting lines under reciprocal arrangements which went to the extent of the interchange of freight cars on agreements for the allowance of mileage was followed by another practice among them of receiving and returning over their lines special freight cars, such as refrigerator cars and tank cars, owned in most instances by private car companies or shippers, at agreed rates and on certain allowances for the use of these special cars. But in these instances the cars thus transported by the carrier related exclusively to the transportation of freight, and for all the purposes of rates charged, liabilities incurred, and services performed were made by the carrier its own cars for the purposes of such service, rates, and journey. Under the rules settled by the Commission in the two cases of Rice and Scofield, supra, there is no question whatever of the existence of the power to regulate the rates and methods of the carrier in these cases. It is wholly immaterial to that regulation whether the cars used by the carrier are owned by it or whether the carrier obtains them from others, for the rates must be the same and all shippers must be treated alike in furnishing sufficient cars and facilities by the carrier for the freight. These rules recognize that for all the purposes of such service, the cars, no matter whether owned by the carrier or obtained by it from others for the carriage of freight, are for all the purposes of regulation, the cars of the carrier in the performance of service over its line. They admit without friction of the same general application to every kind of freight car.

But, as a matter of practice or usage, rail carriers have never interchanged passenger cars loaded with passengers as they do freight cars loaded with freight; and though in some instances contracts are entered into between roads forming a through line for moving cars from one end of the line to the other, yet this stands upon an entirely different principle. While there may be, and doubtless are, many reasons for the practice and usage of railway carriers, as a rule, of not interchanging passenger cars loaded with passengers, as they do freight cars loaded with freight, one sufficient reason would

seem to be that, in case of collisions, or wrecks, the danger and liabilities arising in carrying passengers are far greater than in the carriage of freight and are altogether different. And in performing so extraordinary, and to some extent, hazardous service as that of transporting passengers over its lines, the carrier may well say that it will do so only in its own cars, or cars which it has made its own by selecting them for that purpose.

The question is pertinent: What interest has the public in the fact as to whether passenger cars belong to the carrier as absolute owner, or whether the carrier has obtained them from one car company or another? The only features of every such transaction that the public are interested in, are whether the cars are safe, comfortable, furnished at reasonable rates alike to all, and without any element of unjust discrimination. The law-making power has not undertaken to divide responsibility with the carrier in the selection of cars, nor has it clothed any civil tribunal with any such power. The responsibility of selecting safe, suitable, and sufficient car equipment for the transportation of passengers over its line is left by law with the carrier; and in the performance of this duty the carrier has rights and grave responsibilities resting upon it. Whether seated in a Pullman car or a Worcester car, passengers traveling over defendant's line would be the passengers of the defendant, and it would be entitled to receive and collect their train fare and responsible for their safe carriage; and as part of the transaction the defendant would have to pay to the company owning the car a reasonable rental for its use during the journey.

It is unnecessary for the purposes of this discussion to consider the case of contracts or arrangements for the transportation of sleeping cars over its line made by the carrier with the owner of sleeping cars, because it seems to be settled that, under the principles laid down in the Express Cases, 117 U. S. Supreme Court Reports, this is a service for the proper and best performance of which a carrier might well make a separate arrangement with a car company to furnish sleeping

cars.

At the same time, for the ordinary and usual purposes of transportation, practically speaking, what substantial difference is there between a sleeping car and an excursion car? In their essential attributes each is substantially much the same. Though in some respects differently constructed, an excursion car is a sleeping car, and it would be a difficult task to assign any reasons that would make the transportation of one a service that might be best performed by one of these different kinds of cars, furnished by a car company, selected and designated by the carrier for that purpose, as indicated in the Express Cases, supra, that would not seem to apply equally to the other.

It appears that, by a contract, the defendant made an agreement with the Pullman Palace Car Company by which the latter furnished to defendant, upon terms named, sleeping and excursion cars to be transported over the lines of the defendant. We refer to this contract simply because it has been filed in evidence as showing that the defendant has made an arrangement for a sufficient supply of these cars, and not because we attach the slightest importance to its terms in the conclusions we have reached. As the Worcester Car Company has made no provision for the repair of its cars along defendant's lines, providing materials, machinery, and skilled men to repair them, but has left this duty to be performed by the defendant, and as the evidence shows that the parts of the Worcester Company's cars are not interchangeable with those of the Pullman Company, and that in consequence of this the defendant itself would have to provide materials and machinery for the repair of the Worcester cars, only few in number such as complainant is shown to possess, it is manifest that this might entail upon the defendant an outlay of expense far beyond any remuneration it would probably receive from transporting the excursion cars of the complainant. There is no claim or pretense that the arrangements of the defendant are not ample and sufficient for furnishing sleeping and excursion cars for all parties desiring them over its line.

The loss or inconvenience occasioned to a carrier by an