tion has been called, the Inter-Ocean Company was engaged in publishing two newspapers in Chicago, the Daily and the Weekly Inter-Ocean. A contract was entered into between the parties as to furnishing news in accordance with the by-laws of the Associated Press. This contract the Inter-Ocean Publishing Company violated by procuring and publishing news obtained from other news concerns located in the city of New York. Being notified by the Associated Press to appear to answer such charges of violation of contract, the Inter-Ocean Publishing Company resorted to injunction to prevent expulsion for violation of the bylaws of the Associated Press, which formed part and parcel of the contract between the parties. The Inter-Ocean Publishing Company admitted in its bill for injunction that it had violated its contract, and, seemingly by way of excuse, alleged that it could not obtain all the news from the other contracting party, and so was forced to engage the services of other news-gathering associations. Answer was filed, and, upon hearing had, the bill was dismissed for want of equity, and this decree was affirmed in the appellate court. But when the cause reached the supreme court the decrees of the lower courts were reversed, and the cause remanded, with directions to enter a decree as prayed. The rulings in that case were: (1) Heed/The by-law and contract created a monopoly. (2) That it was necessary to publish news from other sources to make a check on the defendant. (3) That the by-law tends to restrict competition, because it prevents members from purchasing news from any other source. (4) That the contract and by-law are void, as being beyond the power of the defendant to make. (5) That the "obligation [of the defendant] to serve the public is one not resting on contract, but grows out of the fact that it is in the discharge of a public duty, or a private duty which has been so conducted that public interest has attached thereto." And (6) that the fact that the defendant possessed the right to use the power of eminent domain as to telegraph and telephone lines, although not exercised, contributed to determine the character of its corporate organization. And on these grounds was based the ruling that the defendant must furnish every one applying with the same service of news. The above decision is evidently at war with the rulings in the LiveStock Commission case, supra, where "the amount of business annually transacted at said stock yards is such as to constitute the market thus established the largest live-stock market in the world." If the facts just related did not impress the business with a public use, it is difficult to conceive what facts could do so; and, in addition to the utterances heretofore quoted in the Live-Stock Commission case, the court there also said: "The views here expressed

do not conflict with what was decided in Munn v. Illinois, 94 U. S. 113. The question raised and decided in that case was as to the constitutionality of the act of the legislature of this state declaring certain grain elevators to be public warehouses, and prescribing rules for their management, and fixing maximum charges for the storage and handling of grain. There the legislative department had interposed, and declared the public use; and the court, in holding the act constitutional, held merely that the legislative power had been properly exercised. This was the only question having any relevancy here presented in that case, or which the court undertook to decide; and the discussion of the evidence showing that the business carried on in said grain elevators was of such character that it had in fact become impressed with a public use was only for the purpose of showing that a condition of things existed which justified the legislature in passing the statute then under consideration." [143 Ill., loc. cit. 239.]

That case clearly announces that it is necessary in cases like the present one that the Legislature should declare that the business "had in fact become impressed with a public use"; something which, as there stated, the courts were powerless to declare. that case was wholly ignored in the case under comment.

But

For these reasons, besides those already given during the course of this investigation, we decline to follow that case or regard its rulings authoritative..

Moved by these considerations, we deny the peremptory writ. All concur.

4 See C. K. Burdick, "The Origin of the Peculiar Duties of Public Service Companies" (Part IV), 11 Columbia L. Rev. 753 to 764; E. A. Adler, "Business Jurisprudence," 28 Harvard L. Rev. 135; Note, 28 West Virginia L. Quart. 212.

CHAPTER II.

THE SERVICE TO BE RENDERED.

Section 1.

WHAT SERVICE MUST BE RENDERED.

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THE CITIZENS' BANK v. THE NANTUCKET
STEAMSHIP CO.

2 Story, 16. 1841.1

STORY, J. This cause has come before the Court under circumstance, involving some points of the first impression here, if not of entire novelty; and it has been elaborately argued by the counsel on each side on all the matters of law, as well as of fact, involved in the controversy. I have given them all the attention, both at the argument and since, which their importance has demanded, and shall now proceed to deliver my own judgment.

The suit is in substance brought to recover from the Steamboat Company a sum of money, in bank bills and accounts, belonging to the Citizens' Bank, which was intrusted by the cashier of the bank to the master of the steamboat, to be carried in the steamboat from the Island of Nantucket to the port of New Bedford, across the intermediate sea, which money has been lost, and never duly delivered by the master. . .

...

There are some preliminary considerations suggested at the argument, which it may be well to dispose of, before we consider those, which constitute the main points of the controversy. In the first place, there is no manner of doubt, that steamboats, like other vessels, may be employed as common carriers, and when so employed their owners are liable for all losses and damages to goods and other property intrusted to them as common carriers to the same extent and in the same manner, as any other common carriers by sea. But whether they are so, depends entirely upon the nature

1 The statement of facts and arguments of counsel, as well as a part of the opinion dealing with questions of evidence, are omitted.— ED.

and extent of the employment of the steamboat, either express or implied, which is authorized by the owners. A steamboat may be employed, although I presume it is rarely the case, solely in the transportation of passengers; and then the liability is incurred only to the extent of the common rights, duties and obligations of carrier vessels of passengers by sea, and carrier vehicles of passengers on land; or they may be employed solely in the transportation of goods and merchandise, and then, like other carriers of the like character at sea and on land, they are bound to the common duties, obligations and liabilities of common carriers. Or the employment may be limited to the mere carriage of particular kinds of property and goods; and when this is so, and the fact is known and avowed, the owners will not be liable as common carriers for any Keld. other goods or property intrusted to their agents without their consent. The transportation of passengers or of merchandise, or of both, does not necessarily imply, that the owners hold themselves out as common carriers of money or bank bills. It has never been imagined, I presume, that the owners of a ferry boat, whose ordinary employment is merely to carry passengers and their luggage, would be liable for the loss of money intrusted for carriage to the boatmen or other servants of the owners, where the latter had no knowledge thereof, and received no compensation therefor. In like manner the owners of stage-coaches, whose ordinary employment is limited to the transportation of passengers and their luggage, would not be liable for parcels of goods or merchandise intrusted to the boatman employed by them to be carried from one place to another on their route, where the owners receive no compensation therefor, and did not hold themselves out as common carriers of such parcels. A fortiori, they would not be liable for the carriage of parcels of money, or bank bills, under the like circumstances. So, if money should be intrusted to a common wagoner not authorized to receive it by the ordinary business of his employers and owners, at their risk, I apprehend, that they would not be liable for the loss thereof as common carriers, any more than they would be for an injury done by his negligence, to a passenger, whom he had casually taken up on the road. In all these cases, the nature and extent of the employment or business, which is authorized by the owners on their own account and at their own risk, and which either expressly or impliedly they hold themselves out as undertaking, furnishes the true limits of their rights, obligations, duties and liabilities. The question, therefore, in all cases of this sort is, what are the true nature and extent of the employment and business, in which the owners hold themselves out to the public as engaged. They may undertake to be

common carriers of passengers, and of goods and merchandise, and
of money; or, they may limit their employment and business to
the carriage of any one or more of these particular matters. Our
steamboats are ordinarily employed, I believe, in the carriage, not
merely of passengers, but of goods and merchandise, including
specie, on freight; and in such cases the owners will incur the lia-
bilities of common carriers as to all such matters within the scope
of their employment and business. But in respect to the carriage
of bank bills, perhaps very different usages do, or at least may,
prevail in different routes, and different ports. But, at all events, I
do not see, how the Court can judicially say, that steamboat owners
are either necessarily or ordinarily to be deemed, in all cases, com-
mon carriers, not only of passengers, but of goods and merchandise
and money on the usual voyages and routes of their steamboats;
but the nature and extent of the employment and business thereof
must be established as a matter of fact by suitable proofs in each
particular case. Such proofs have, therefore, been very properly re-
sorted to upon the present occasion.

In the next place, I take it to be exceedingly clear, that no person
is a common carrier in the sense of the law, who is not a carrier
for hire; that is, who does not receive, or is not entitled to receive,
any recompense for his services. The known definition of a com-
mon carrier, in all our books, fully establishes this result. If no
hire or recompense is payable ex debito justitia, but something is
bestowed as a mere gratuity or voluntary gift, then, although the
party may transport either persons or property, he is not in the
sense of the law a common carrier; but he is a mere mandatary, or
gratuitous bailee; and of course his rights, duties and liabilities are
of a very different nature and character from those of a common
carrier. In the present case, therefore, it is a very important in-
quiry, whether in point of fact the respondents were carriers of
money and bank notes and checks for hire or recompense, or not.
I agree, that it is not necessary, that the compensation should be
a fixed sum, or known as freight; for it will be sufficient if a hire
or recompense is to be paid for the service, in the nature of a
quantum meruit, to or for the benefit of the Company. And I
farther agree, that it is by no means necessary, that if a hire or
freight is to be paid, the goods or merchandise or money or other
property should be entered upon any freight list, or the contract be
verified by any written memorandum. But the existence or non-
existence of such circumstances may nevertheless be very important
ingredients in ascertaining, what the true understanding of the
parties is, as to the character of the bailment.

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In the next place, if it should turn out, that the Steamboat Com