TOPIC B-DEFENDANT PASSENGER SERVICES.

809. Duty toward hackmen considered.

In the preceding topic the right of those who were conducting a dependent freight service was found to rest in last analysis upon the public duty owed by the common carrier to the shipping public. In this topic the duty of the common carrier in its dealings with those who are conducting a dependent passenger service will be considered, and the hypothesis is brought forward that the duty in such cases is related to the general rights of the traveling public. One of the most bitter controversies within this general dispute is over the right of a railway company to exclude all but certain favored hackmen from its station grounds. It is admitted by all, that a railroad owes such duties to its incoming and outgoing passengers that it cannot exclude from its station driveways hackmen bringing passengers, or hackmen directed by passengers to call for them; for, of course, no one, upon reflection, would go so far as to deny the duty of the carrier of passengers to permit free access and egress for those whom it is serving.1

§ 810. Cases permitting discrimination between hackmen. Notwithstanding this, it is maintained by many courts that the railroad company is under no public duty to admit hackmen to its station grounds to solicit business. One of the strongest cases for the railway in this matter is the New York, New Haven & Hartford R. R. Co. v. Scoville.2 In that case it apappeared from the complaint that the plaintiff by its board of directors adopted a regulation excluding from its station grounds all persons who, without special permission in writing,

1 In the following cases, among others, it was held that at all events hackmen bringing passengers or coming for passengers on special order must be admitted: Griswold v. Webb, 16 R. I. 649, 19 Atl. 143 (1889); Summit v. State, 8 Lea (76 Tenn.) 413, 41 Am. Rep. 637 (1881).

271 Conn. 136, 41 Atl. 246, 71 Am. St. Rep. 159, 42 L. R. A. 157 (1898).

should come to solicit the carriage of passengers or their luggage. The defendant, knowing the regulation, soon afterwards entered upon its station grounds in Middletown to solicit business of that description. This was a bill for an injunction to stop this practice. The injunction was granted in the lower court, but the higher court set this aside.

Mr. Justice Baldwin held that the main question to be determined was whether the regulation was reasonable; saying that it rested primarily within the discretion of the company: "In regulating matters of this kind, a wide discretion is necessarily entrusted to the managers of the railroad. They are in a situation which should make them the best judges of what promotes the comfort of those who ride upon their road. Courts will always be slow to pronounce unreasonable any rule purporting to be directed toward that end, which they have deliberately adopted. It appears from the complaint that the station grounds at Middletown are sufficiently large to allow the estab lishment there of a public stand at which to ply the carriage and express business, and also that an exclusive privilege for raintaining such a stand there has been granted by the plaintiff to a third party. Such a grant was within its lawful powers, provided its terms were not inconsistent with the reasonable accommodation of the passengers upon its road. Nothing appears on the record to indicate any such inconsistency. It may well be more convenient for them to deal with a single local carrier than to be met, on alighting from their train, by importunate solicitations from a number of rival competitors for their custom; and, in the absence of averments to the contrary, it is to be presumed that the prices at this stand are fair, and the service sufficient. If any of them prefer that of some other person, they can secure it by an order in advance, which would justify his entrance on the grounds; or by passing by the stand established there, and going into the streets outside, to engage whomsoever they think fit. It follows that the defendant had no right to

enter the Middletown station grounds for the purpose of soliciting business."3

8811. Cases forbidding discrimination between hackmen.

On the other hand, the position that a railroad may not admit favored hackmen to solicit business upon the station grounds and exclude other hackmen from equal privileges is held in many cases. The argument for this view is stated very clearly in State v. Reed.a

From the agreed statement of facts it appeared in that case that there was in connection with the railroad station. in the city of Vicksburg a considerable enclosure; that the railroad company had granted to one Perue exclusive privilege of entering the station grounds in order to solicit passengers; and that hackmen kept thereby outside the enclosure were,

3 United States-Donovan v. Pennsylvania Co., 199 U. S. 272, 50 L. Ed. 000, 26 Sup. Ct. 91 (1905), affirming 124 Fed. 1016, 60 C. C. A. 168, 120 Fed. 215, 116 Fed. 907.

Connecticut-New York, N. H. & H. R. R. v. Scoville, 71 Conn. 136, 41 Atl. 246, 71 Am. St. Rep. 159, 42 L. R. A. 157 (1898).

Georgia-Kates v. Atlanta Bag. & Cab. Co., 107 Ga. 636, 34 S. E. 372, 46 L. R. A. 431 (1898).

Massachusetts-Old Colony R. R. v. Tripp, 147 Mass. 35, 17 N. E. 89, 9 Am. St. Rep. 661, B. & W. 166 (1888); Boston & A. R. R. v. Brown, 177 Mass. 65, 58 N. E. 189, 52 L. R. A. 418 (1900); Boston & M. R. R. v. Sullivan, 177 Mass. 230, 58 N. E. 689, 83 Am. St. Rep. 275 (1900).

Minnesota-Godbout v. Union Depot, 79 Minn. 188, 81 N. W. 835 (1900). New Hampshire-Hedding v. Gallagher, 72 N. H. 377, 57 Atl. 225 (1903), overruling on rehearing 59 N. H. 650.

New York-Brown v. New York C. & H. R. R. R., 151 N. Y. 674, 46 N. E. 1145 (1897); New York C. & H. R. R. R. v. Flynn, 74 Hun, 124, 26 N. Y. 859 (1893); New York C. & H. R. R. R. v. Sheeley, 27 N. Y. Supp. 185 (1893); New York C. & H. R. R. R. v. Warren, 64 N. Y. Supp. 781, 31 Misc. Rep. 571 (1900).

Ohio Snyder v. Depot Co., 19 Ohio Cir. Ct., 368 (1899); Union Depot Co., 71 Ohio St. 379, 73 N. E. 633 (1905).

State v.

Rhode Island-New York, N. H. & H. R. R. v. Bork, 23 R. I. 218, 49 Atl. 965 (1901).

4 76 Miss. 711, 24 So. 308, 71 Am. St. Rep. 528, 43 L. R. A. 134 (1898).

therefore, at great disadvantage. One Reed, a hackman, was arrested for trespassing within the enclosure contrary to the public prohibition made by the railroad company.

Mr. Chief Justice Woods held that the action of the court below in discharging Reed was correct; he summed the matter up thus: "The question is one that affects the interests of the public. The upholding of the grant of this exclusive privilege would prevent competition between rival carriers of passengers, create a monopoly in the privileged hackmen, and might produce inconvenience and loss to persons traveling over the railroad, or those having freights transported over it, in cases of exclusion of drays and wagons from its grounds, other than those owned by the person having the exclusive right to enter the railroad's depot grounds. To concede the right claimed by the railroad in the present case would be, in effect, to confer upon the railroad company the control of the transportation of passengers beyond its own lines, and to create a monopoly of such business, not granted by its charter, and against the interests of the public." 5

§ 812. Discussion of the duty toward hackmen.

There is again plainly no public duty owed by the railways to the hackmen. The hackmen are not asking for transportation

5 Florida-Indian River S. B. Co. v. East Coast Transp. Co., 28 Fla. 387, 10 So. 480, 29 Am. St. Rep. 258 (1891).

Illinois-Pennsylvania Co. v. Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 223 (1899).

Indiana-Indianapolis U. Ry. v. Dohn, 153 Ind. 10, 53 N. E. 937, 74 Am. St. Rep. 274, 45 L. R. A. 427 (1899).

Kentucky-McConnell v. Pedigo, 92 Ky. 465, 18 S. W. 15 (1892). Michigan-Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich. 194, 47 N. W. 667, 22 Am. St. Rep. 693, 10 L. R. A. 819 (1890).

Mississippi-State v. Reed, 76 Miss. 211, 24 So. 308, 71 Am. St. Rep. 528, 43 L. R. A. 134 (1898).

Missouri-Cravens v. Rodgers, 101 Mo. 247, 14 S. W. 106 (1890).

Montana-Montana W. Ry. v. Langlois, 9 Mont. 419, 24 Pac. 209, 18 Am. St. Rep. 745, 8 L. R. A. 753 (1890).

nor are they paying rates. And, ultra vires aside, the railways might, if they chose, establish a cab service of their own for the further transportation of their passengers, and in connection therewith they might exclude all rival carriages from soliciting patronage in their stations. Nor could the hackmen complain if they were all confined behind a bar in an appropriate part of the station, for this would be a reasonable regulation for administering the facilities for the general benefit of the passengers. But a regulation which arbitrarily admits one line of hacks to the station and excludes another is a different matter and whether this is valid or not depends upon whether it is consistent with the general duty of the carrier or not.

There seems, however, to be a violation of the duty owed by the carrier to the passenger to permit free egress by these special privileges at the station which prevent the passenger from having equal access to all who wish to put themselves at his disposal. The right of the passenger to have ingress to the station. by any carriage that he chooses to employ nobody dares to deny; it is very hard to see any essential difference from the obligation to give egress without discrimination. Moreover, to allow the grant of exclusive privilege permits the exploitation of the passenger by this monopoly; for monopoly price is always higher than competitive price; as may be shown by the fact that the favored lines are always willing to pay roundly for the exclusive privilege, even when maximum fares are fixed by local ordinance.

6 In the following cases, among many others, reasonable regulations governing carriage stands at railway stations were held valid upon the ground that no discrimination was involved: Cole v. Rowan, 88 Mich. 219, 50 N. W. 138, 13 L. R. A. 848 (1891); Smith v. New York, L. E. & W. R. R., 149 Pa. St. 249, 24 Atl. 304 (1892).