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firm on,

ous,

Pipe in mouth they sat there sleeping,

done that, we should have suspected a joke. On Sitting on their vine-clad stoops, While with rippling prows came creeping

Sunday there was an appropriate sermon in the Up the river quaint old sloops.

Temple Church - lighted with electricity! The Here with corpulenco redundant

occasion seems to have been too much for the staid
Life with many blessings fraught -
Crowned with benefits abundant

Law Times, which has the following poetic rash
They long smoked and ate "saur kraut." worse than any of our own :
In the ancieut cemetery
Peaceful rest their mouldering bones,

A royal jubilee rarely occurs in this sublunal sphere, Far from strifes tumultuary,

And it's right that lawyers should welcome it when it really Under quaintly carved headstones.

does appear; But the city of their founding

So the Benchers of the Inner Temple, with the handsomest Does in strength and beauty thrive,

designs, And in reverence abounding

Got up their Hall, themselves, and Church, up to the very Keeps their memory alive.

nines,
Still their river, gently gliding,

To celebrate the jubilee of our most gracious Queen
Laves with lapping waves the sands;

Queen of England, Scotland, Wales, and of the Island green
Still behind their dim hills hiding

(If Gladstone will of grace permit this loyal observation, Sinks their sun to other lands.

Which couples with the Saxon curs the glorious Irish nation.)
But how to celebrate this great event was the importan

question, The death of David Davis has removed one of the

Without imposing too much work on any one's digestion most original, forcible and independent of Ameri- Without neglecting any art, good fun, or Christian duty, can characters. He was one of the peculiar pro

Or subjecting to vulgar gaze the Benchers' daughters' beauty, ducts of our soil. Starting out a poor boy, he died How easily the Benchers solved this very knotty problem,

And sugared plums for heavy swells with certainty to noba very rich man, by virtue of wise investments; born

ble 'em; and reared in obscurity, he rose to a seat on the Su- How in the early hours of night the guests were plied with preme Court bench, and the temporary vice-presi- Theara familiar comedy of Bottom and the Ass; dency of the republic. He was a singular combination How later on, when dreams had fixed their soft illusions of personal frugality, business sagacity, broad common sense, large legal learning, shrewd humor, im

The company at midnight hour submitted to a sermon;

And after with philosophy proverbial as of Tupper, perturbable good temper, perfect independence, and

And organ strains and handsome trains, returned to halt apparent absence of ambition. He graced the

and supper i

All this is told in humble prose in newspapers most numerbench of our highest court by his wisdom and impartiality. He was one of the few men in public with phrases which almost suggest a lurking spirit humor life who have uniformly been indifferent and superior to party considerations. When he was in the If we had been told that Tennyson wrote this, Senate, it was the fashion of the newspaper cor

we should not have doubted. Well, God bless the respondents to laugh at his independence, and good queen, and may she live fifty years longer! crack their unfailing joke about his always being on the fence," as if it were not rather a virtue to keep himself in a position to take the better side

NOTES OF CASES. or perhaps to take neither. It made no difference to the strong man, however; he always did just as N Schnell v. Blohm, 40 Hun, 378, an action of he had a mind, and we believe he always did what he thought was right. He was one of the sort who ously obtained by the plaintiff against the defendant think him

for enticing the wife away was no bar. Dykeman, "A slave who dares not be

J., said: “The enticement of a man's wife from In the right with two or three,"

him, and from her home and child, is a wrong of or all alone, for that matter. If he would have sufficient magnitude, but a fresh sting is imparted allowed politicians to coach him and use him, he

to the injury when the seducer, in the face of the might perhaps have risen to higher station, but he

For could not have been more worthy of honor. Ilis that new and increased wrong another action may

world, commences an adulterous intercourse. faculties, attainments and characteristics made him be commenced, and another judgment recovered. an ideal judge, and we should have been glad if he 3 Bl. Com. 139. Even if the plaintiff's former recovhad chosen to remain where his predominant trait

ery had been for the scduction and debauchery of of independence was a recommendation rather than

his wife, he could still maintain this action; for enter upon a life where it subjected him to derision.

every moment that the wife continues absent fron

her husband without justifiable cause, without his The London lawyers have been celebrating the consent, is a new tort, and every one who persuades fiftieth anniversary of the Queen's accession. They her to do so does a new injury, and cannot but gave a representation of “Midsummer Night's know it." Hutcheson v. Peck, 5 Johns. 205.

The Dream” at Inner Temple Hall. Peter Quince for- defendant injures the plaintiff anew every day he got his proper phraseology for a moment, and when maintains the unlawful and adulterous intercourse he should have said: “We will have such a prologue, with his wife, and so furnishes a fresh cause of and it shall be written in eight and six; ” he ren- action to the plaintiff with each recurring day." dered it “six and eight.” If an “American” had Pratt, J., said: “The former recovery for alienat

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THE ALBANY LAW JOURNAL.

43

ing the wife's affections, though relevant and com- and Mr. Schneider's own canvassers went regularly petent upon the question of damages, does not con- into Mr. Duncan's committee-rooms in order to see stitute a bar to the present action. Neither the | what was being done. Now we must not impute judgment in the plaintiff's favor nor its satisfaction crime to a man if his conduct is such that a less had any effect to diminish his marital rights. They serious construction may reasonably and consistently continued, and on any infringement by defendant be placed upon it, and for this reason I cannot, or others an action arose."

under the circumstances, come to the conclusion that the conduct of either Mr. Duncan or Mr. Gar

nett was corrupt in the sense understood by the In Schneider v. Duncan, Q. B. Div., March, 1886,

statute." 54 L. T. Rep. (N. S.) 618, D. and his agents gave gratuitous refreshment to certain persons styled

In Packard v. Collings, Q. B. Div., March, 1886, "workers" at a parliamentary election at which D.

54 L. T. Rep. (N. S.) 619, it was held that to offer was a candidate. Held, that this was an illegal

a voter his travelling expenses, with the intention employment within the act, and rendered the elec

of inducing him to come and vote for a certain cantion of D. void. Field, J., said: “ The principal didate is bribery. The court said: “Mr. Waddy's question here is concerned with the provision of contention was, that being a mere offer to pay travrefreshments, and I may say at once that I have had elling expenses, it was not now contrary to law. great difficulty in making up my mind whether it is | Now Garrard himself gives his own interpretation not my duty to say that this comes within the

of it. He says he had an impression that payment definition of a corrupt practice. Under circum- of wages was illegal, but he had an opinion that the stances which have been laid before us at great payment of travelling expenses was not illegal. But length, there was a meeting called at the Central the case really will not turn upon what his notion Hall, and a discussion took place between Mr. Dun- may bave been. If he made the promise in order to can and his supporters, or some of his supporters, bring the voter, then it is held in many cases that upon the question whether refreshments should or this is fatal to the transaction. Now, in Cooper v. should not be provided to workers and other per- Slade, 6 H. L. Cas. 747, this matter was gone into sons who might be ready to render assistance on in the House of Lords very fully. There an agent the polling day. The result of the discussion was had written to an out-voter, asking him to come that the persons who left the hall on that day cer- and vote for a candidate, and giving the name of tainly left it under the impression and with the the candidate, adding: Your railway expenses will assurance that they would be provided with refresh- be paid.' Great judicial doubt existed as to whether ments. It is said that Mr. Schneider was described this could be construed to be a conditional offer as stingy and penurious, but what would the voters an offer of the money provided he came — and the generally have said if, after the assurance which judges differed about it, until at last it came before they received at the Central Hall, Mr. Duncan had the highest tribunal. That highest tribunal held not provided any refreshments? They would have that it was a conditional promise to pay the railway said, in effect, that he was guilty of a breach of expenses if he came to vote for the candidate, and, faith and a breach of contract. Now the essential therefore, they held that there had been bribery meaning of a contract is in reality a very sim- within section 2 of the act of 1854, and that it was ple matter, and it is easy for a contract to be in fact a bargain between the candidate and the entered into without any definite stipulation in

voter, No one has suggested that if there was a writing, or any express statement in words. Under promise only, there is no legal difference between the circumstances of the present case I am driven to

that and an actual payment. This was a bargain the conclusion that there was on this occasion an

similar to that on the other case, equivalent to sayemployment of these men, and that it was ing to the outer-voter: 'If you will come and vote employment for payment within the meaning of for me, I will give you money for paying the exsection 64, which provides that the expression pense of your coming to vote.' It is said however * payment' shall include any pecuniary or other by Mr. Waddy, that looking at the current of legisreward; and that the expressions ' pecuniary re- lation this is not now bribery. He said everything ward' and 'money' shall be taken to include any in that view he possibly could; but in the very case office, place or employment, and any valuable se- cited by Mr. Waddy, the Coventry case, 20 L. T. curity or other equivalent for money and any valu. Rep. (N. S.) 405; 1 OM & H. 109, the enactments able consideration. I am therefore compelled to relating to the mere payment of expenses which are come to the conclusion that it will be our duty to to be considered as altering the law laid down in report to the speaker of the House of Commons that Cooper v. Slade (ubi sup.), must have been of no there have been illegal payments and illegal em- effect. Willes, J., lays it down that illegal payment ployments by the sitting member and his agents. would void the election, so that the election will be It has been argued that the evidence shows that this void if a promise were made to a voter as an inducepractice was corrupt on the part of Mr. Duncan and ment to vote. The law upon this subject was very his agent, but I am unable to come to that conclu- fully considered in the Ilorsham case, 3 O'M. & H. sion. There seems to have been no secrecy about 54, by Quain, J. He gave a complete answer to the thing; it was done in a perfectly open manner, Mr. Waddy's argument. In that case Quain, J.,

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declared the election voided on account of bribery, a feme sole, both with regard to the outside world and he stated the law as.follows: Upon the sub- and between herself and her husband. If that was ject of travelling expenses, it has been well known the recognized rule, it would of course follow from since Cooper v. Slade (ubi sup.), where the judges con- that that her husband would be liable to her in strued the letter as a promise to a voter, and putting respect of any promise made by him to her with that construction upon it, it was decided that that regard to her separate estate, and she would be anwas a bribe. Every payment of expenses, though swerable to him in respect of her separate estate for fair and reasonable to a voter, to induce him to vote, the consideration to support his promise. Now the is bribery within the meaning of the act; therefore case in which it was most clearly recognized that a as a proposition of law, the offer to pay for the husband may make his wife a defendant in an travelling expenses as a bribe admits, as Lord action respecting her separate estate was the case of Wensleydale says, of no doubt whatever. There- Earl v. Ferris, 19 Beav. 67. Passage after passage fore the decision in Cooper v. Slade (ubi sup.), and in that and other cases may be read which contain what is more important for the present case, Willes, clear statements that it is the recognized rule of J.'s reference to the subsequent legislation which courts of equity that as to her separate estate, a followed upon Cooper v. Slade (ubi sup.), remains wife is to be treated as a feme sole between herself untouched.' That being the law upon the matter and her husband. This Court of Appeal is a court that was followed again by a decision in the Bolton of equity as well as of law, and can enforce the case, 31 L. T. Rep. (N. S.) 194; 2 O'M. &. H. 138. same remedies that the Court of Chancery formerly The Reform Act did not in the slightest degree could. If the rule was, as I have stated it, before alter the doctrine. It is clear the legislation has not the passing of the act of 1882, it is clear that the altered the leading doctrine in Cooper v. Slade. statute has not interfered with it nor taken away Although paying travelling expenses is merely made from a husband any of the rights and remedies an illegal act not in itself sufficient for voiding the which he had against the separate estate of his wife election, yet if it is a promise under the condition before the passing of the act. I understand, from that the voter should come up to vote, it becomes his judgment, that Wills, J., decided the case on the bribery within the meaning of the Corrupt Prac- very same grounds as those on which I am now decidtices Act, section 2. That is a complete answer at ing it, and I think that his judgment is correct. I once to every thing to be said on the subject, and dis- referred during the arguments to a passage in poses of the able argument by Mr. Waddy. That Daniell's Chancery Practice, which is a text-book was a case decided in 1875, long after the act of of great accuracy, and which states the rule to be 1868, and I cannot find any thing in subsequent that to which I have referred, and I think the cases legislation to alter the law as laid down. We must of Wake v. Parker, 2 Keen, 59; Davis v. Prout, 7 therefore hold that Garrard, an undoubted agent of Beav. 288, and Brooke v. Brooke, 27 L. J. 639, Ch., the respondents, did an act which comes within the assume that a husband may in equity sue his wife definition of bribery, and that compels us to hold in respect of her separate estate.” Cotton, L. J., that the election of the respondents is void.” said; “As regards her separate estate, a married

woman could contract with the world at large, or In Butler v. Butler, Ct. of App., Dec., 1885, 54

with her husband, if not restrained; that was the L. T. Rep. (N. S.) 591, it was held that a husband

old equity doctrine which was always acted on for can maintain an action against his wife, and can

years before the passing of this act of Parliament, charge her separate estate for money lent by him to

and it is not for a moment contended that the act her after their marriage, and for money paid by him

places any restrictions upon that doctrine; but for her after their marriage, at her request, made really it is not material to consider the act of Parbefore or after their marriage. Lord Esher, M. R.,

liament, because this action is really quite indesaid: “It is suggested that he cannot, and for this pendent of the act, and is such an action as it was reason that husband and wife cannot contract to

perfectly competent for a husband to bring before gether, so as to enable the husband to sue his wife

the passing of the Married Women's Property Acts

at all." upon her contract. Now it is clear that at common law no such action could be maintained; the

CARRIERS OF GOODS DISCRIMINATION IN common law did not recognize the possibility of

RATES. any such contract, always holding husband and wife incapable of contracting together. But on looking UNITED STATES CIRCUIT COURT, S. D. NEW YORK, into the equity cases, it will be found that though

MAY 15, 1886. the courts of equity took in general the same

MENACHO V. WARD.* view upon this point as the courts of common law,

While a common carrier may make discrimination in rates, yet they made an exception in those cases where the

based upon the quantities of goods sent by different shipwife was possessed of separate estate. I think there

pers, he may not charge a higher rate to shippers who is no one case precisely in point, but yet it seems refuse to patronize him exclusively. to have been again and again stated as the recog- N nized rule of courts of equity that a wife, having separate estate, was to be treated in all respects as

* From * Federal Reporter, 529.

IN equity.

Frederic R. Coudert and Edward K. Jones, for com- ants have founded the allegation of their bill that the plainants.

defendants “bave arbitrarily refused them equal James C. Custer and Lewis C. Ledyard, for defend

terms, facilities, and accommodations to those granted

and allowed by the defendants to other shippers, and ants.

have arbitrarily exacted from them a much greater WALLACE, J. The complainants have filed a bill in rate of freight than the defendants have at the same each of these causes to restrain the defendants from time charged to shippers of merchandise generally as a making discriminations for transportation against the condition of receiving and transporting merchancomplainants, which consist in charging them a dise.” They apply for an injunction upon the theory higher rate of freight than is charged by defendants to that their grievances cannot be redressed by an action other shippers of merchandise generally. A motion is at law. now made for a preliminary injunction. The facts in It is contended for the complainants that a common each case are essentially the same, and both cases may carrier owes an equal duty to every member of the be considered together.

community, and is not permitted to make unequal The complainants are merchants domiciled in the preferences in favor of one person or class of persons, city of New York, and engaged in commerce between as against another person or class. The defendants that port and the island of Cuba. The defendants are insist that it is permitted to common carriers to make proprietors or managers of steam-ship lines plying be- reasonable discriminations in the rates demanded tween New York and Cuba. Formerly the business from the public; that they are not required to carry of transportation between the two places was carried for all at the same rates; that discriminations are on by sailing vessels. In 1877 the line of steam-ships reasonable which are based upon the quantity of goods known as “Ward's Line" was established, and in 1881 seut by different shippers; and that the discrimination was incorporated by the name of the New York & in the present case is essentially such a discriminaCuba Mail Steam-ship Line under the general laws of tion, and has no element of personal preference, and the State of New York. At the time of the incor- is necessary for the protection of the defendants. poration of this company the line of steam-ships Unquestionably a common carrier is always entiowned by the defendants Alexandre & Sons had also tled to a reasonable compensation for his services. been established. These two lines were competitors Hence it follows that he is not required to treat all between New York and Cuba, but for several years those who patronize him with absolute equality. It is both lines have been operated under a traffic agree- his privilege to charge less than fair compensation to ment between themselves, by which uniform rates are one person, or to a class of persons, and others cannot charged by each to the public for transportation. The justly complain so long as he carries on reasonable two lines are the only lines engaged in the business of terms for them. Respecting ipreferences in rates of regular transportation between New Cork and Cuba; compensation, his obligation is to charge no more and unless merchants choose to avail themselves of than a fair return in each particular transaction, and the facilities offered by them, they are obliged to ship except as thus restricted he is free to discriminate at their merchandise by vessels or steamers which may pleasure. This is the equal justice to all which the casually ply between the two places.

law exacts from the common carrier in his relations It is alleged by the complainant that the defendants with the public. Baxendale v. Eastern Counties R. have announced generally to New York merchants Co., 4 C. B. (N. S.) 78; Branley v. Southeastern R. Co., engaged in Cuban trade that they must not patronize 12 id. 74; Fitchburg R. Co. v. Gage, 12 Gray, 393; Sarsteam-ships which offer for a single voyage, and on gent v. Boston & L. R. Corp., 115 Mass. 416, 422. various occasions when other steam-ships have at- It is in this sense that the observations found in tempted to procure cargoes from New York to Hay. some of the authorities are to be understood. So anna bave notified shippers that those employing such understood, the language of the opinion in Messenger steam-ships would thereafter be subjected to onerous v. Penn. R. Co., 37 N. J. Law, 531, is apposite: “The discriminations by the defendants. The defendants business of the common carrier is for the public, and allege in their answer to the bill in effect, that it has it is his duty to serve the public indifferently. In the been found necessary, for the purpose of securing suf- very nature, then of his duty, and of the public right, ficient patronage, to make differences in rates of his conduct should be equal and just to all. freight between shippers in favor of those who will A common carrier owes an equal duty to all, and it agree to patronize the defendants exclusively. Within cannot be discharged if he is allowed to make una few months before the commencement of this suit equal preferences, and thereby prevent or impair the two foreign steamers were seut to New York to take enjoyment of the common right.” cargoes to Havanna, and the complainants were re- In the same sense the remarks of the court in Jcquested to act as agents. Thereupon the complainants Duffee v. Portland & R. R. Co., 52 N. H. 430; S. C., were notified by the defendants that they would be 13 Am. Rep. 72, are approved and adopted as pertinent "placed upon the black-list” if they shipped goods by to the case in hand. The court says: “And as all these steamers, and that their rates of freight would common carriers combined cannot, directly or iudi. thereafter be advanced on all goods which they might rectly, destroy or interrupt the common right by stophave occasion to send by the defendants. Since that ping their branch of the public service while they retime the defendants have habitually charged the com- main in that service, so neither al} of them together, plainauts greater rates of freight than those mer- nor one alone, can directly or indirectly deprive any chants who shipped exclusively by the defendants. individual of his lawful enjoyment of the common The freight charges, by the course of business, are paid right. Equality, iu the sense of freedom from onby consignees at the Cuban ports. The complainants reasonable discrimination, being of the very substance have attempted to pay the freight in advance, but of the common right, an individual is deprived of his have found this course impracticable because their lawful enjoyment of the common right when he is consignees are precluded from deducting damages or subjected to unreasonable and injurious discrimivadeficiencies upon the arrival of the goods from the tion in respect to terms, facilities, or accommodations. charges for freight, and as a result some of the com

* A denial of the entire right of service by a plainants' correspondents in Cuba refuse to continue refusal to carry differs, if at all, in degrees only, and business relations with them, being uuwilling to sub- in the amount of damage done, and not in the essenmit to the annoyance of readjustiug over-charges with tial character of the act, from a denial of the right in complainants. Upon this state of facts the complain- part by an unreasonable discrimination in terms, fa

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cilities, or accommodations. Whether the denial is ry a large quantity of goods, under some circumstangeneral by refusing to furnish any transportation ces, at no greater expense than would be required to whatever, or special. by refusing to carry for one per- carry a smaller quantity. His fair compensation for sou or his goods; whether it is direct, by expressly re- carrying the smaller quantity might not be correctly fusing to carry, or indirect, by imposing such unrea- measured by the rate per pound, per bushel, or per sonable terms, facilities, or accommodation as render mile charged for the larger. If he is assured of regu. carriage undesirable; whether unreasonableness of lar shipments at given times, he may be able make terms, facilities, or accommodations operates as a more economical arrangements for transportation. total or a partial denial of the right; and whether the By extending special inducements to the public for unreasonableness is in the intrinsic individual nature patronage he may be able to increase his business, of the terms, facilities, or accommodations, or in their withont a corresponding increase of capital or exdiscriminating, collective, and comparative character, pense in transacting it, and thus derive a larger profit. the right denied is one and the same common right He is therefore justified in making discriminations by which would not be a right if it could be rightfully a'scale of rates having reference to a standard of fair denied, and would not be common in the legal sense remuneration of all who patronize him. But it is im. if it could be legally subjected to unreasonable dis- possible to maintain that any analogy exists between crimination and parceled out among them in unrea- a discrimination based upon the quantity of business sonable, superior, and inferior grades, at the behest of furnisbed by different classes of shippers, and one the servant from whom the service is due."

which altogether ignores this cousideration, and has In the present case the question whether the de- no relation to the profits or compensation which the fendants refuse to carry for the complainants at a carrier ought to derive for a given quantum of serreasonable compensation resolves itself into another vice. form. Can the defendants lawfully require the com- The proposition is speciously put that the carrier plainants to pay more for carrying the same kind of may reasonably discriminate between two classes of merchandise, under like conditions, to the

shippers, the regular and the casual; and that such is places, then they charge to others, because the com- the only discrimination here. Undoubtedly the carplainauts refuse to patronize the defendants exclu- rier inay adopt a commutative system, whereby those sively, while other shippers do no:? The fact that the who furnisb him a regular traffic may obtain reduced carrier charges some less than others for the same ser- rates, just as he may properly regulate his charges vice is merely evidence for the latter, tending to show upon the basis of the quantity of traffic which he rethat he charges them too much; but when it appears ceives from different classes of shippers. But this is that the charges are greater than those ordinarily and not the proposition to be discussed. The defendants uniformly made to others for similiar services, the assume to discriminate against the complainants, not fact is not only competent evidence against the car- because they do not furnish them a regular business, rier, but cogent evidence, and shifts upon him the or a given number of shipments, or a certain quantity burden of justifying the exceptional charge. The es- of merchandise to carry, but because they refuse to tinate placed by a party upon the value of his own patronize the defendants exclusively. The question is services or property is always sufficient, against him, whether the defendants refuse to carry for the comto establish the real value; but it has augmented pro- plainants on reasonable terms. The defendants, to bative force, and is almost conclusive against him, maintain the affirmative, assert that their charges are when he has adopted it in a long.continued and exten- fair because they do not have the whole of the comsive course of business dealings, and held it out as a plaiuants' carrying business. But it can never be mafixed and notorious standard for the information of terial to consider whether the carrier is . permitted to the public.

enjoy a monopoly of the transportation for a particuThe defendants assume to justify upon the theory lar individual, or class of individuals, in ascertaining that a carrier may regulate his charges upon the basis what is reasonable compensation for the services actuof the quantity of goods delivered to him for trans- ally rendered to him or them. Such a consideration portation by different shippers, and that their dis- might be influential in inducing parties to contract in crimination against the plaintiff is in substance one advance; but it has no legitimate bearing upou the made with reference to the quantity of merchandise value of services rendered without a special contract, furnished by them for carriage. Courts of law have or which are rendered because the law requires them always recognized the rights of carriers to regulate to be rendered for a fair remuneration. their charges with reference to the quantity of mer- A common carrier “is in the exercise of a sort of chandise carried for the shipper, either at a given public office, and has public duties to perform, from shipment, or during a given period of time, although which he should not be permitted to exonerate himpublic sentiment in many communities has objected self.” Nelson, J., in New Jersey Steam Vav. Co. v. to such discriminations, and crystallized into legisla- Merchants' Bank, 6 How. 344. His obligations and tive condemnation of the practice. By the English liabilities are not dependent upon contract, though statutes (17 & 18 Vict., ch.31) railway and canal car- they may be modified and limited by contract. They riers are prohibited from “giving any undue or un- are imposed by the law, from the public nature of his reasonable preference or advantage to or in favor of employment. Hannibal R. v. Swist, 12 Wall. 262. As any particular description of traffic, in any respect their business is “affected with a public interest," it whatever,” in the receiving, forwarding, and delivery is subject to legislative regulation. “In matters of traffio; but under these provisions of positive law which do affect the public interest, and as to which the courts have held that it is not an undue prefer- legislative control may be exercised, if there are no ence to give lower rates for larger quantities of statutory regulations upon the subject, the courts freight. Ransom v. Eastern C. R. Co.. 1 Nev. & McN. must determine what is reasonable." Waite, C. J., in 63, 155; Nicholson v. Grent TV estern Ry. Co., id. 121; Munn v. Illinois, 94 U. S. 113, 134. It is upon this Strick v. Swansea Canal Co., 16 C. B. (N. S.) 235; foundation, and not alone because the business of Greenop v. S. E. R. Co., 2 Nev. & McN. 319.

common carriers is so largely controlled by corporaThese decisions proceed upon the ground that the tions exercising under franchises the privileges which carrier is entitled to take into consideration the ques- are held in trust for the public benefit, that the courts tion of his own profits and interests in determining have so strenuously resisted their attempts, by special what charges are reasonable. He may be able to car- contracts or unfair preferences, to discriminate be

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