tial participation in the use of the facilities which it is capable of affording. Its ownership by the corporation is in trust, as well for the public as for the shareholders; but its first and primary obligation is to the public." In the light of these authorities, where can this defendant railroad company and public servant base its right to make the discrimination claimed by this demurrer? If a discrimination of 50 cents per hundred can be thus made and sustained, under such circumstances, then any discrimination, however great and oppressive, can be made; and practically the defendant can say who may and who may not serve the public, as common carriers on the Tennessee river, one of the great water-ways of commerce in the United States. It is true there is a line of decisions to the effect that railroad companies may make different rates to different persons; and the cases show upon what grounds discrimination in rates may be and are sustained, and upon what grounds they have been held to be vicious, and are condemned, by the courts. But it is not necessary here to go into any examination of the cases on this line of decision until advised by plea or otherwise upon what ground, and under what circumstances and conditions, the defendant made the discrimination here complained of. He admits the fact of discrimination; and when the service is stated to have been substantially the same, and rendered under substantially the same circumstances and conditions, the burden is on him to justify it. The demurrer, however, goes to the point that the mere fact that the defendant charged a higher price to the plaintiffs than to the line of rival steam-boats is no ground of complaint, unless it is alleged that the price charged the plaintiffs was unreasonable. In other words, the proposition seems to be that the defendant had the right to make the discrimination up to the point that the charge became unreasonable, and that charging a less price to the rival line of boats is no ground of complaint, unless the larger price is an unreasonable one. It is said that to charge one too little for a service is not to charge another too much for the same service; that the smaller charge does not make the greater charge more than the service is really worth, for that the service may have been worth every penny asked and received for it. Concede that, then it follows that the defendant company was serving the steam-boats Wilder and Chattanooga for a less hire and compensation than the service was really worth; and the practical result to these plaintiffs, as carriers on the river, is the same, whether the defendant charged them 50 cents per hundred too much, or charged their rivals 50 cents per hundred too little. In either case, the defendant railroad company makes the discrimination, and the plaintiffs lose and are deprived by the defendant of their equal right and opportunity for business as common carriers on the river. And the question recurs, what right, or upon what ground, can this public servant, owing an equal duty to the entire public, say to one, "I will serve you for less than I will serve your neighbor?" The proposition insisted upon is that a common carrier is bound to carry for a reasonable remuneration, but is not bound to carry for the same price for all; and the case of Johnson v. Pensacola R. Co., 16 Fla. 623, is cited, where the supreme court of that state say: "The rule is not that all shall be charged equally, but reasonably, because the law is for the reasonable charge, and not the equal charge; " and other authorities are cited on the same line. It would add nothing to the complaint, in its statement of fact, if the word "unreasonable" had been used. The word "unlawful" is used; but the use of qualifying words such as these is unimportant. The ultimate test of what is a reasonable or unreasonable charge, a lawful or unlawful charge, in a given case, is a mixed question of law and fact, to be reached by the verdict of a jury, under proper instructions by the court, or, perhaps, by the action of what is called sometimes a railroad commission, under statutes, state or national, on that subject. This is not a case for the recovery of extortionate and unreasonable charges, exacted by the defendant railroad company, where the question as to what is a fair and just charge for a given service might properly arise, and be determined by some accepted rate of charges, or some usage or custom which has acquired the force of law. Nor is it the question as to what is the intrinsic value of the service, in the ascertainment of which there are many elements to be considered, such as the amount of the capital employed, and the difficulty and expense attendant upon the service rendered, including compensation for services of officers having the administrative capacity required for such service. But, so to speak, on this side of that ultimate question is the question of the legal right of the defendant to make the discrimination here complained of. When it is said that to charge one too little is not to charge another too much for a given service, we are ready to give assent. Because individuals may serve for hire, or may, without compensation, donate their services, it does not follow that common carriers by rail may do the same thing. The company owns the property, and the capital employed in the construction and operation of its road, but it must not be forgotten that in such operation of its railroad it is also in the enjoyment of a public franchise; and in the control of the property it has not the same measure of power that persons have and exercise over property that is affected by no public use, and operated without the exercise of any public franchise. Munn v. Illinois, 94 U. S. 113. There may be, and there is, difficulty in the determination, in given cases, of the line of public and private right, as to this species of property, as is illustrated in the enactment and administration of the recent act of congress known as the "Interstate Commerce Law." But the question in this case is to be determined upon the principles of the common law, and in the light of those principles as applied to railroad companies. In a case like the one at bar, can there be a reasonable charge which is not at the same time substantially an equal charge? And is not a charge unreasonable when it is unequal, and in breach of the obligation and duty of the common carrier to the public? There is a suggestion in the argument that this is a claim for damages founded upon the refusal of the defendant railroad company to prorate with the plaintiffs, upon through freight, upon the same terms that it SAMUELS V. LOUISVILLE & N. R. CO. did with the rival line of boats; and the case of Atchison, T. & S. F. R. Co. v. Denver R. R., 110 U. S. 667, 4 Sup. Ct. Rep. 185, is cited upon this point, and in support of the general proposition insisted upon by the defendant in his demurrer to this complaint. That is not the case made by the complaint, and the supreme court of the United States, in the opinion in that case, in so far as it touches the issues involved in this case, is against the views of the demurrant, as is seen from page 684 of the opinion, where the court say: "The bill does not seek to reduce the local rates, but only to get this company put into the same position as the Denver & Rio Grande, on a division of through rates. This cannot be done until it is shown that the relative situations of the two companies with the Atchison, Topeka & Santa Fe, both as to the kind of service and as to the conditions under which it is to be performed, are substantially the same, so that what is reasonable for one must be reasonable for the other." Applying this to the case at bar, the implication is certainly very strong that the relative situation of the two rival lines of boats on the river being the same as to the defendant company, both as to the kind of service and the conditions under which it is to be performed, no charge is reasonable for one party that is not also reasonable for the other; and the idea of different prices to different parties, for substantially the same service, performed under like conditions, finds no favor in the authority cited. Another proposition of the defendant is that there is a charter provision, to the benefit of which the defendant is entitled, by which the legislature granted the power to take "tolls from all persons, property, merchandise, and other commodities, transported on their road, provided only the net profits of the road shall never exceed twenty-five per cent. per annum." And within this limitation, which it is said has never been passed, the company was vested with absolute discretion, bounded only by the common law, over the rates of compensation it should have for services rendered. This proposition answers itself, because it admits the bound and limit of the common law; and we have shown that the gravamen of this action is in the alleged violation by this defendant of the obligation and duty under the common law, as applied to common carriers by rail. The suggestion of a charter right which gives the defendant an option to discriminate at will, provided only the net profits of the road do not exceed a certain limit, scarcely merits serious consideration. Upon the question of the remote, indefinite, and speculative character of the damages claimed, the complaint is within the rule on that subject. As to the loss of business, it may be that the proof may show that it is incapable of measure by a pecuniary standard; but the reading of the complaint shows that an objection to the whole complaint, on the ground stated, ought not to be maintained. The result of these views is that the demurrer is overruled. ROOD V. RAILWAY PASSENGER & FREIGHT CONDUCTORS' MUT. BEN. ASS'N. (Circuit Court, N. D. Illinois. June 6, 1887.) 1. BENEVOLENT SOCIETIES-CONSTITUTION-DECISION OF DIRECTORS-FINALITY. A corporation was organized for the purpose of providing for its members in case of permanent disability, and for their dependents in case of death, by assessments to be levied on the surviving members. Its constitution provides that "all claims against the association shall be referred to the board of directors, whose decision shall be final," and that "assessments shall not be made except on its authority." Held that, after the decision of the board refusing payment of a death claim no suit upon such claim can be maintained. 2. SAME-MEMBERSHIP-STRIKING OFF ROLL. Where the laws of such an organization provide that, if a member neglects or refuses to pay any assessment for a specified period, he shall cease to be a member, and the secretary shall strike his name from the roll, such laws are self-executing, and the member so omitting to pay loses his rights as a member, although the secretary does not strike his name from the roll. At Law. F. S. Winston and James Meagher, for plaintiff. BLODGETT, J. This is a suit at law brought to recover the sum of $2,500 as a benefit fund, claimed by the plaintiff to be due her from the defendant by reason of the death of Sidney G. Rood, plaintiff's husband, while a member of the defendant association. The case was tried before a jury, and, there being no disputed facts, a verdict for the plaintiff was taken by direction of the court, and the questions of law arising upon the undisputed facts have been discussed upon motions in arrest of judgment and for a new trial. The defendant is a corporation, not for pecuniary profit, organized under an act of the legislature of Illinois, "concerning corporations," approved April 18, 1872; the objects of the corporation, as stated in the preamble to its articles of association, being "to provide for the widows and children, heirs and representatives, of those of our members who may lose their lives, die, or become permanently disabled;" and the membership was to consist of persons who were conductors on railroads in the United States or Canada. The general plan for carrying out this object was that, upon the death or disability of a member in good standing, a claim for the benefit funds was. presented to the board of directors, and, if the board approved and allowed the claim, an assessment of $2.50 on each member was made, which assessment was to be paid by the members within 30 days from the time it was made, and the proceeds, not to exceed $2,500, when collected, were paid over to the beneficiary of such member; but the payment of an assessment was wholly voluntary on the part of members. It is conceded that the number of members subject to assessment at the time the claim now in question was presented, was sufficient to have made the aggregate of the assessment amount to $2,500. Sidney G. Rood, the husband of the plaintiff, became a member of the defendant association on the twenty-third of May, 1883; he was at that time in the employ of the Michigan Central Railroad Company as conductor of passenger trains, and continued in such employment up to August 3, 1885, when he was killed by a railroad accident. Proof of his death was duly presented by the plaintiff to the board of directors of the association, and a claim made that the benefit fund should be allowed and paid to her. It was conceded that she was the proper person to make this claim for the benefit fund to be paid upon the death of Mr. Rood, if any person was entitled to such a fund. The board of directors of the association, after an investigation of the facts in regard to this claim, at a meeting held February 14, 1886, refused to allow the claim and order an assessment for its payment; assigning as the reason of their action that Mr. Rood was at least 60 days delinquent in the payment of his assessments at the time of his death. A motion to reconsider this action was made before the board at a meeting held May 2, 1886, but such motion was defeated by a unanimous vote, and this suit is brought to enforce the claim. The motion in arrest is based upon the ground that the power to allow or refuse payment of a claim is vested wholly in the board of directors, and that their action in the premises is final, and can only be disturbed for fraud or gross mistake, and that, inasmuch as the board of directors of the defendant association has passed upon and refused payment of this claim, no suit can now be maintained against the association to enforce it. The powers of the board of directors who have considered this claim, and refused to pay it, are defined by the fifth article of the constitution of the association, and, so far as they bear upon the questions in this case, are as follows: * * * * * * "Art. 5. The board of directors shall consist of seven members. To them shall all claims against the association be referred; and upon the approval of a majority of said board, with that of the president, the same shall They shall decide all points be paid by the secretary and treasurer. of dispute and questions of doubt that may arise, and their decision shall be final. Assessments shall be only made by authority of the board of directors." * * * It will be seen that the power of these directors in regard to the allowance of this claim, and ordering an assessment to pay it, is plenary. They are clothed with full authority to pass upon each and every claim presented against the association, and their decision is final. This is a purely voluntary association. The members of the association have, by their own organic law, provided a tribunal to hear and determine all claims against it, and I do not think any court can be invoked to review the action of the board in a matter so completely delegated to them. To attempt to enforce by suit any claim which the board of directors has acted upon, or refused to allow or approve, is equivalent to prosecuting an appeal from this board. It was certainly competent for the members of this association to agree among themselves that the action of their board of directors in reference to any claim presented against the association should be final; and there can be no doubt, from the language of |