senger being at the station only.15 It is otherwise as to the second and probably as to the third, for it is submitted that at the station the passengers should be given equal access to all transfer companies who wish to deal with them.

§ 816. Granting concessions for private businesses.

It is obvious that the outside limits of this public duty which the common carrier owes in respect to dependent services have now been reached. So long as there was a question of the right of shippers in respect to the transportation of their goods, there was a public duty in the premises; and while it could be said that the service was one concerning adequate facilities for passengers, the public duty existed. Within these lines there should be neither exploitation nor discrimination; but beyond these conditions the common carrier should remain free to carry on its own business in its own way. For example, as it owes no duty to passengers to see to the provision of flowers, magazines, cigars and souvenirs, it may grant exclusive privileges for the sale of these articles upon its trains; and so it may grant in a station exclusive rights to barbers and bootblacks. "The business of selling lunches to passengers, or of soliciting from them orders for the same, is not one which every citizen has the right to engage in upon the tracks and premises of a railway company, and consequently those who do engage in it and carry it on must. depend upon the company for the privilege." In street cars, likewise, advertising rights may be given to one and refused to another, and certain newsboys may be allowed to sell papers while others are not. All these are more than the adequate facilities that the law requires to be provided by the common carrier to its patrons. And this may be shown by the fact that none of these trades which have just been mentioned are so affected

15 Lewis v. W. W. & N. W. R. R., 36 Tex. Civ. App. 48, 81 S. W. 111 (1900).

16 Fluker v. Georgia R. R., 81 Ga. 461, 2 L. R. A. 843 (1889).

by a public interest as to be held public employments. In Au17 the denried v. Philadelphia & Reading Railroad Company,' question was as to the right of the defendant company to so parcel or divide its wharf among other coal dealers as to exclude the complainant therefrom. After expressing great doubt as to whether the defendant, under its charter, was bound to provide wharf accommodations to any of the coal dealers in question, or was a trustee to any extent for them, the court adds: "Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the rights of all others. This was not transportation, but wharfage, the nature of which requires exclusive possession temporarily."

TOPIC C -PRIVILEGES AT FREIGHT TERMINALS.

§ 817. Special privileges at freight terminals.

The situation at freight terminals is analogous to the situation at passenger terminals; and as might be expected, there is conflict of authority in relation to the duties of common carrier in dealing with those who wish to serve owners of goods at freight terminals. It would probably be generally agreed that the railroad may undertake these incidental services itself, and if it does so it may exclude all others from conducting the service. But if the railroad does not care to undertake the service itself then the difficult question will arise again whether it may enter into an exclusive contract with one concern for the performance of these services, or whether such an exclusive contract constitutes an illegal discrimination against other people who would willingly undertake the service in competition. Upon this general problem more evidence is adduced in the sections immediately following.

17 68 Pa. St. 370, 8 Am. Rep. 195 (1871).

§ 818. Arrangements with stockyards.

The relative positions of the railroads and the stockyards have been discussed already at some length. Thus it has been seen that although the decision at first was otherwise, it is now held that there is no duty owed to the owner of cattle to make special delivery of them at any place along the line that he wishes. Consequently it is held that the railroad may designate certain points of delivery reasonably convenient as it may of other freight which it has undertaken to carry. Upon this basis the courts have been willing to permit the railroad to designate one of several stockyards as its cattle station in effect, where it will deliver cattle consigned to that point and have accordingly justified it in refusing to deliver at other stockyards. This was well enough so long as the court held strictly that no charge. could be made under such circumstances against the shipments for yardage if the consignee was ready to take the cattle away. But under the latest decisions the courts have permitted the stockyards company to make an additional charge as a connecting carrier might. It would seem, therefore, that there is present danger in the situation that the railroad will not fulfil its duty, which is to deliver everything it carries, as it ought. And should it persist in handing its patrons over to stockyards, with whom it has exclusive arrangements, the danger of exploitation which has been discussed earlier in this chapter will become apparent. Wherever the duty to the shipping public is involved the general rule that there must be no discrimination comes into play.1

1 For the convenience of the reader the principal cases in this sequence that have come before the judicial courts are cited below: Coe v. Louisville & N. R. R., 3 Fed. 775, B. & W. 251 (1880); Covington S. Y. Co. v. Keith, 139 U. S. 128, 35 L. Ed. 73, 11 Sup. Ct. 461, B. & W. 256 (1891); Butchers & D. S. Y. Co. v. Louisville & N. R. R., 67 Fed. 35, 14 C. C. A. 290, B. & W. 262 (1895); Walker v. Keenan, 73 Fed. 758, 19 C. C. A. 668 (1896); Interstate Com. Com. v. Chicago, B. & O. R. R., 186 U. S. 320, 46 L. Ed. 1182, 22 Sup. Ct. 824 (1904); and Central S. Y. Co. v. Louisville & N. R. R., 192 U. S. 568, 48 L. Ed. 565, 24 Sup. Ct. 339 (1905).

§ 819. Contracts with grain elevators.

As to grain elevators at terminals, the rule is established, as has been already pointed out, that the railroad must deliver to all of them that are along its route. Grain in bulk is a peculiar kind of freight, which as a commercial matter requires special delivery. And as this is a duty owed by the railroad to its patrons, it would not be legal for it to make a discrimination in favor of one grain elevator requiring its patrons to receive grain consigned to them through it and pay to its proprietor his fixed charges.2

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May such railroad companies, in like manner, discriminate between grain elevators in the same place,-constitute one elevator its depot for the delivery of grain, and force competing interests to receive from and transfer the grain consigned to them through such selected and favored channel? If railroad corporations possess such right, they can destroy a refractory manufacturer, exterminate, or very materially cripple competition, and in large measure monopolize and control these several branches of useful commerce, and dictate such terms as avarice may suggest. We think they possess no such power to kill and make alive. Impartiality in serving their patrons is an imperative obligation of all railroad companies; equality of accommodations in the use of railroads is the legal right of everybody. The principle is founded in justice and necessity, and has been uniformly recognized and enforced by the courts. A contrary idea would concede to railroad companies a dangerous discretion, and inevitably lead to intolerable abuses. It would, to a limited extent, make them masters instead of the servants of the public." 3

2 The quotation which follows is from Baxter, Circuit Judge, in Coe v. Louisville & N. R. R., 3 Fed. 775, B. & W. 251 (1880).

3 But see Richmond v. Dubuque R. R., 26 Iowa, 191 (1886), where it was held that an agreement between a railroad company and an elevator company that the latter should have the handling of all grain passing over their road did not constitute a monopoly.

§ 820. Access to connecting steamboats.

An analagous question is raised when a railroad having a terminus upon a wharf in a navigable stream, enters into some arrangement with one steamboat line whereby it may have exclusive access to the wharf. In the Indian River Steamboat Co. v. East Coast Transportation Company, the scheme employed was this: The Indian River Steamboat Company leased from the Jacksonville, Tampa & Key West Railway Company, 390 feet of the east end of its dock on the Indian River, at Titusville, on which dock was located the railroad track and terminal facility of the railroad company; and the railroad company covenanted, and agreed in the lease, to maintain the railroad track on said dock and bulkhead and to furnish exclusive facilities for transfer of local freight to and from the bulkhead. The bill asked for an injunction to restrain respondents, a rival steamship line, from using this dock at Titusville.

Mr. Justice Mabry wrote the opinion of the court. He said in one place: "The real question presented here is, can complainant corporation, engaged in carrying freight and passengers on the Indian River by means of steamboats, rent from a railroad common carrier its dock on said river, on which its track and terminal facilities are located, and exclude others from landing at said terminal point for the purpose of receiving freight and passengers to and from said common carrier? This question, we think, must be answered in the negative. If it be competent to sustain such a contract, the common carrier can select one connecting line of boats, and exclude all others from doing business with it. Such a doctrine would lead to the legalizing of a monopoly, and the sanction of an unfair and unjust preference between connecting and competing lines of transportation. We do not understand that a common carrier ever had such power as this." 5

428 Fla. 387, 10 So. 480, 29 Am. St. Rep. 258 (1891).

5 Accord: Mason D. & S. R. R. Co. v. Graham & W., 117 Ga. 555, 43 S.