Railroad companies are not required by usage or by the common
law to transport the traffic of independent express companies over
their lines in the manner in which such traffic is usually carried
and handled.
Page 117 U. S. 2
Railroad companies are not obliged either by the common law or
by usage to do more as express carriers than to provide the public
at large with reasonable express accommodation, and they need not,
in the absence of a statute, furnish to all independent express
companies equal facilities for doing an express business upon their
passenger trains.
These cases were commenced by defendants in error as plaintiffs
below to compel plaintiffs in error to give them respectively the
express facilities on the several lines of railway which they had
previously enjoyed by contract, and of which they had been
dispossessed by notice given in accordance with the terms of the
contracts. Judgments below in favor of the express companies, from
which the railroad companies appealed. The causes were argued
together. The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
These suits present substantially the same questions, and may
properly be considered together. They were each brought by an
express company against a railway company to restrain the railway
company from interfering with or disturbing in any manner the
facilities theretofore afforded the express company for doing its
business on the railway of the railway company.
1. The St. Louis, Iron Mountain & Southern Railway
Company
This suit was begun May 21, 1889, and the business of the
express company is thus described in the bill:
"Your orator, the Southern Express Company, is a corporation
duly created, organized, and now existing under the laws of the
State of Georgia, for the purpose, and with the powers
Page 117 U. S. 3
necessary thereto, of receiving and forwarding upon railroads,
steam vessels, and other vehicles of rapid transportation, in a
safe and secure manner, and with the greatest practical expedition,
in the special, care and custody of its own employees, and at
destination personally delivering packages of money or currency,
gold and silver bullion, bonds, banknotes, deeds, and other
valuable papers, jewels, silks, laces, and other articles of great
value, requiring for their security extraordinary care and
precaution, and also parcels of goods, wares, and merchandise
requiring great dispatch or careful handling, and also fruit,
vegetables, fresh meats, fish, oysters, fish spawn, and other
articles liable to decay or other injury from delay, and also live
animals requiring particular care and attention during
transportation, and also for receiving and forwarding for
collection bills, notes, drafts, and accounts, and receiving and
returning payment thereof, and also for receiving and forwarding
all articles of trade and commerce with the bills and charges of
the shipper thereto attached, to be collected of the consignee on
delivery of such articles, and returned to shipper, and in so doing
to afford the public, under a single contract, and on assured
responsibility, safe, reliable, and speedy transportation from and
to all points accessible only over two or more railroads, and
generally to perform for the public all offices that by usage are
incident to the class of carriers now well known, recognized, and
designated by the public as 'express carriers.'"
The St. Louis, Iron Mountain and Southern Railway Company is a
railway corporation existing in the States of Missouri and
Arkansas, formed by the consolidation of the St. Louis and Iron
Mountain Railroad Company, the Cairo and Fulton Railroad Company,
and the Cairo, Arkansas and Texas Railroad Company. Its railway
extends from St. Louis, and from a point on the Mississippi
opposite Cairo, through Missouri and Arkansas, by way of Little
Rock, to Texarkana, on the boundary between Arkansas and Texas,
with certain branches.
On the 30th of April, 1872, and before the consolidation, the
St. Louis and Iron Mountain Company entered into a contract in
writing with Adams Express Company, by which the railroad company
agreed to furnish the express company "one-half
Page 117 U. S. 4
the baggage car on each of its passenger trains on main line and
branches for carrying express freight," and also "the use of a part
of the baggage car on accommodation trains between St. Louis and
Potosi to an extent not in excess of the amount allowed in
passenger trains." The cars were not to be loaded with over seven
thousand pounds at anyone time, and the railway company agreed that
each of the cars should run each way daily on the passenger trains.
The company also agreed that it would "prohibit its conductors,
agents, and baggage masters from transporting on its passenger
trains, or from accepting compensation for, any matter except extra
baggage," and further that it would not
"permit any person or company to do an express business on its
passenger trains on any better terms, or for any less payment, than
that given the Adams Express Company."
In consideration of this service, the express company agreed to
pay $125 a day, and a proportional increase for every ten miles
operated by it on an extension of the railroad, "for the
transportation of its messengers with safes and package chests, and
an average amount of freight not exceeding ten thousand pounds per
day," and an agreed rate for all freights in excess of that amount.
The express company also agreed
"to carry all money and other valuables for the said railroad
company to and from points on the line of its road free of charge,
and for such matter as may be sent to, or received from, points off
the line to charge the railroad company not exceeding two-thirds
the rate charged the public."
It was also stipulated that
"the railroad company should be exempt and indemnified by said
express company against all loss or damage to goods or money
transported by said express company,"
and that settlements should "be made on or before the tenth day
of each month for the business of the preceding month." The
contract also contained this clause:
"This agreement to remain in full force one year from the first
day of May, 1872, and thereafter until thirty days' notice shall be
given by either party to the other of its desire to discontinue the
same."
On the first of February, 1874, also before the consolidation,
the Southern Express Company entered into a contract in writing
with the Cairo and Fulton Railroad Company
Page 117 U. S. 5
and the Cairo, Arkansas and Texas Railroad Company, by which the
railroad companies agreed to furnish the express company
"one-third of the room in the baggage car on each passenger
train over the Cairo and Fulton road and the Cairo, Arkansas and
Texas road for the carriage of express matter, not to exceed six
thousand pounds per day for each car."
This contract also contained provisions similar to that between
the Adams and St. Louis and Iron Mountain Companies as to the
regulation of the duties of conductors, agents, and baggage
masters, and the privileges of other persons for doing an express
business on passenger trains. The Southern Company agreed to pay
for the transportation of its messengers, with safes and package
chests, and an average amount of express matter, not to exceed six
thousand pounds per car, $50 a day to the Cairo and Fulton Company,
and $10 a day to the Cairo, Arkansas and Texas Company, and an
agreed rate for all excess over six thousand pounds. There were
also other provisions as to the carriage of money packages and
valuables by the express company for the railroad companies, and as
to the details of the business at the end of which was the
following: "This contract to remain in force until terminated on
either party giving the other sixty days' notice of its intention
to thus withdraw therefrom."
The consolidation took place May 16, 1874, and the two express
companies continued their business upon the road under their
respective contracts until April 1, 1878, when the Adams Company,
with the assent the and permission of the consolidated railway
company, relinquished its business on the line to the Southern
Company, and that company thereafter conducted the whole express
business on the entire line under the two contracts.
On the 26th of March, 1880, the railroad company, having come to
the conclusion to change the mode of doing the express business
over its line, gave the express company the stipulated notice for a
termination of the existing contracts. All efforts by the express
company to secure facilities for a continuation of its business
over the road having failed, this suit was brought, and the prayer
of the bill is
"1. That during the pendency of this suit the defendant, its
Page 117 U. S. 6
officers, agents, servants, and employees, may be restrained and
enjoined by a proper preliminary or provisional order or
injunction, and until the further order of the court, from
interfering in any manner with, or disturbing in any manner, the
enjoyment by the Southern Express Company of the facilities now
accorded to it by the said defendant, upon its lines of railway,
for the transaction of the business of the said Southern Express
Company, and of the express business of the public confided to its
care, and from interfering with any of the express matter or
messengers of the Southern Express Company, and from excluding or
ejecting any of its express matter or messengers from the depots,
cars, and lines of the said defendant, as the same have been
heretofore and are now enjoyed and occupied by the said Southern
Express Company, and from refusing to receive and transport, in
like manner as the said defendant is now doing, over its lines of
railway, the express matter and messengers of the said Southern
Express Company, and from interfering with or disturbing the
business of the said Southern Express Company, or its present
relations in reference thereto with the said defendant, in any way
or manner whatsoever, and so long as the said Southern Express
Company shall be willing and ready and offer to pay, according to
all legal rates therefor."
"2. That if any dispute or disagreement shall arise between the
parties hereto during the pendency of this suit, and before a final
decree herein upon the question of what is a lawful or reasonable
compensation to be paid by your orator to the defendant for the
transportation of express matter, your orator may be permitted to
bring the same by way of interlocutory application to this Court
for its decision, and that, pending the inquiry thereon, the
preliminary injunction heretofore prayed may be continued to the
same purport, tenor, and effect as if the prayer for the same were
here repeated."
"3. That the said defendant may be decreed by this Court to
transport at all times the express matter, safes, and messengers of
the said Southern Express Company by the same trains and with the
same accommodations thereon, and in its depots and stations, as it
may transport its own express matter, or as it may accord to
itself, and that the said defendant may be decreed
Page 117 U. S. 7
so to transport the said express matter, safes, and messengers
of the said Southern Express Company at and for the statutory tolls
and compensation in that behalf by law provided, and that the said
defendant may be decreed to make a reasonable rebate or reduction,
to be fixed and determined by this honorable court, from its
charges to the said Southern Express Company by reason of its
performance of said assessorial service, as above specified, so
long as the said Southern Express Company shall offer to conform to
all the reasonable rules and regulations of the said defendant, and
to pay all lawful charges for the transaction of its said
business/"
"4. That a permanent injunction may issue herein to the same
purport and effect as is hereinbefore prayed in regard to said
provisional or preliminary injunction."
"5. That your orator may have such other relief or such further
or different relief herein, with its costs, as to the court may
seem meet."
The railway company answered the bill, and, among other things,
as follows:
"38. Defendant further avers that it does not claim, and never
has claimed, a right to exclude the transportation of the express
matter of the complainant from the lines of defendant's railway,
and has always been willing, and is now willing, to carry and
transport any freight or express matter of complainant that it may
offer to defendant. Defendant claims the right to carry and
transport what is called 'express matter' in the spaces in its
express cars selected by itself, and under the supervision, care,
and control of its own employees, and has refused and does refuse
to complainant the right to have allotted to itself any particular
space in defendant's express cars for its exclusive use or to
permit its messengers to ride in the express cars and to take
charge of complainant's express freight."
2.
The Memphis and Little Rock Railroad Company.
This suit was begun by the same express company on the 11th of
June, 1880. The Memphis and Little Rock Railroad Company is a
railroad corporation formed by the reorganization of a former
corporation of the same name, owning and operating
Page 117 U. S. 8
a railroad in Arkansas between Little Rock and a point on the
Mississippi River opposite Memphis. On the 26th of May, 1871,
before the reorganization and while the railroad of the present
company was owned and operated by the original corporation, that
corporation entered into a written contract with the Southern
Express Company by which the railroad company was to furnish the
express company with one end of a baggage car for express service
when convenient, and if not, a box car. For this, the express
company was to pay for each hundred pounds of freight carried at
certain agreed rates, and to assume all risks of the transportation
of express matter except such damage as arose from the gross
neglect or carelessness of the railroad company. This agreement
also contained other stipulations for the regulation of the conduct
of the parties under it, and at the end was this: "This agreement
takes effect June 1, 1871, and may be terminated by either party on
thirty days' notice." After the reorganization, no new contract was
made, but the express company continued business on the road under
the old contract, without objection by the reorganized company,
until June 2, 1880, when it was notified that, as the railroad
company had
"determined to transport all express matter and transact all
express business on its own account, and through and by its own
officers and agents, on and after the fourteenth of June,"
all contracts or arrangements existing between the companies
would terminate on that day. The notice concluded as follows:
"We shall be glad to receive, transport, and deliver any express
matter you or your company may think proper to entrust to us, as
reasonable rates, and in conformity to law."
This suit was brought in consequence of that notice, and the
prayer of the bill is substantially like that against the St.
Louis, Iron Mountain and Southern Company.
This company also answered the bill, and among other things, is
the following:
"It says that the fact is that when it purchased the road it now
operates, May 1, 1877, it found complainant on the road with all
its investments made, and its agencies and business routes
established, and that respondent tacitly permitted complainant to
continue its business over its road, but it is now
Page 117 U. S. 9
able, ready, and willing to do the express carrying business
over its road for itself, and for the benefit of its own
stockholders, and desiring to take the business into its own hands
it gave complainant the notice mentioned and copied in the bill. It
repeats here what is said in that notice, that it is ready and
willing to carry for complainant in the same manner and upon the
same terms that it carries for all other shippers. It submits that
this is the extent of its duty toward complainant, and no
injunction of this Court is necessary to compel it to discharge
that duty. It submits that complainant has no privilege or right
which is not common to all shippers, and it repeats that what it
does for others it will freely, and in its proper order, do for
complainant. None of the privileges claimed by complainant are
accorded by respondent to any other shipper, and no other even asks
such privileges. Respondent denies that it must give complainant
the same privileges or facilities that it enjoys itself, for that
would be to surrender to complainant a part of its corporate rights
and privileges and also to surrender to complainant the control of
a part of its cars and business. All that it is required to do for
complainant is to receive and carry for it in the same manner and
at the same rates it does for others. In the conduct of its
business, express and all other, it receives freights from the
shippers, giving therefor a receipt or bill of lading, takes the
freight into its own possession, loads it itself into its cars,
carries it in its own custody, and at the place of destination
delivers it to the consignee. All this it is willing, has offered,
and again offers, to do for complainant."
3.
The Missouri, Kansas and Texas Railroad Company.
This suit was brought on the 28th of December, 1880, by or on
behalf of Adams Express Company, a joint-stock association of the
State of New York, organized in 1854. The Missouri, Kansas and
Texas Railroad Company is a Kansas railroad corporation, owning and
controlling lines of railroad from Junction City, Kansas, and
Sedalia, Missouri, to Parsons, Kansas, thence southerly to a
crossing of the Arkansas River, and from Holden, Missouri, on the
Missouri Pacific Railroad, westerly to
Page 117 U. S. 10
Paoli, on the Missouri River, Fort Scott and Gulf Railroad, in
all a length of say 473 miles.
The bill in this case contains, among others, the following
averments:
"X. After the formation of the Adams Express Company, various
other express companies were formed for the conduct of the same
general business, to be operated in like manner over the public
thoroughfares of the country. As the principal railway lines known
as 'Trunk Lines,' and running in a general direction from east to
west, ran in courses generally parallel, the principal express
companies existing at the early date aforesaid, namely, the
'Adams,' the 'American,' and the 'United States,' agreed among
themselves that they would reach the commercial centers of the
country by different railway and steamboat routes, and that they
would divide the north and south express business in a manner best
calculated for the welfare thereof, and for the best service of the
public."
"This understanding was generally effectuated, but in various
instances two express companies have at the same time, and with
permission of the railway company, occupied, for a greater or less
distance, the same line of railway, and such occupation has not
been found incompatible with the harmonious working of such two
express companies, and has resulted in a larger income to the
railway company than it would have received had its line been
occupied by but one express company only, and has also afforded the
public the opportunity, both upon short and long routes, for the
most efficient service, and for the competition to which it is
lawfully entitled."
"XI. Under the mutual understanding aforesaid, the Adams Express
Company, as soon as the demands of the public warranted the
expenditure, extended its business westward to the cities of
Wheeling, Columbus, Cincinnati, Indianapolis, Louisville, and St.
Louis, by means of the facilities afforded by the Pittsburgh,
Cincinnati and St. Louis Railroad and other companies, and thereby
made the routes of the said Adams Express Company continuous from
Boston, New York, Philadelphia, and Pittsburgh to the cities last
aforesaid, and such continuous routes are now operated by it.
Page 117 U. S. 11
"
"XII. The said Adams Express Company, under the arrangements and
understandings aforesaid, extended its business in a southerly
direction, and, as the word 'express' imports, always by the
shortest line of communication, to all the principal cities in the
South -- namely Richmond, Charleston, Savannah, Mobile, Montgomery,
New Orleans, Memphis, and other places -- and in so doing was
always afforded by those occupying the public office of a common
carrier all necessary facilities therefor, and which facilities
were by said carriers increased to the said Adams Express Company
in proportion with the increase of the demands of the public
therefor."
"XIII. The Adams Express Company has always in the conduct of
its business paid, and now pays, to the common carriers whom it
employs a just and reasonable compensation, satisfactory to them,
for the facilities afforded, and has itself always charged the
public only a just and reasonable compensation for the express
services performed for it."
"XIV. In the conduct of its business, as aforesaid, the Adams
Express Company has always represented, and now represents, that
portion of the public which desires to avail itself, in the
transmission of its property and valuables, of the pecuniary
responsibility of the express company, and of the safeguards and
checks which it has originated, provided, and enforced for the safe
custody of the property committed to its care."
"XV. The Adams Express Company conducted its business as
aforesaid until the commencement of hostilities, in 1861, when, by
reason of the derangements of commercial intercourse then ensuing,
and for other controlling reasons of a public character then
generally known, it was obliged to discontinue its organization and
business in the southern states, and it thereupon withdrew from the
same, and sold so much of its goodwill and its equipment as then
there existed to the Southern Express Company, a corporation
created, as this plaintiff is informed and believes, under and
pursuant to the laws of the State of Georgia, and since then the
express business in the principal southern states has been and is
now conducted by the said Southern Express Company under said
charter, by which it is expressly authorized to conduct the same,
and which said charter gives a legislative
Page 117 U. S. 12
description of the kind and character of business to be done by
said company as an express company, and to a copy of which the
plaintiff craves leave to refer."
"XVI. After the cessation of the hostilities aforesaid, an
arrangement was made, and which is now in force, between the said
Adams Express Company and the said Southern Express Company for the
general regulation of the transportation of property coming from
the territory of the one into the territory of the other, and by
which property received by the Adams Express Company, destined for
points within the territory of the Southern, and property received
within the territory of the Southern, destined to points within the
territory of the Adams Express Company, or reached by its
connections, is interchanged at certain specified points, and upon
a basis of charge proportioned to the distance traversed in the
territory of either. In case of such interchange of express matter
within such territory, the express company originally receiving the
same remains liable to the public for the value thereof until
delivered to the consignee."
"XVII. Since the said understanding and arrangement, the Adams
Express Company has made such interchanges with the said Southern
Express Company, and now makes the same at Richmond, Lynchburg, and
Danville, Virginia, Chattanooga, Tennessee, Cairo, Illinois, and
Paducah, Kentucky, and has not itself, since then, either delivered
or received express matter directly south of such points, but the
territory so directly south thereof has been operated by the said
Southern Express Company alone."
On the 23d of November, 1871, the Adams Express Company and the
Missouri, Kansas and Texas Company entered into the following
contract:
"This agreement, made this twenty-third day of November, A.D.
1871, between the Missouri, Kansas, and Texas Railway Company, by
R. S. Stevens, its general manager, party of the first part, and
the Adams Express Company, by _____, party of the second part,
witnesseth:"
"* * * *"
"1. The Missouri, Kansas, and Texas Railway Company will
Page 117 U. S. 13
furnish for the use of the Adams Express Company one car each
way on its line from Sedalia, Missouri, via Parsons, Kansas, to
Junction City, Kansas, to be hauled on a passenger train each day
that a passenger train is to run over the line. The car to be used
exclusively by the Adams Express Company, but not to carry at any
one time an excess of seven tons of freight. The charges by the
express company to its patrons to be not less than one and one-half
first-class rates of the Missouri, Kansas, and Texas Railway
Company at the time, as per its freight tariff. The railway company
will also furnish from Parsons south to the Arkansas River the
necessary accommodations in its baggage car, and also similar
accommodations in a baggage car on the Holden line on one train
each way. The express car, as well as all express matter carried
over the road in any baggage or other car, to be in charge of one
agent or messenger of the express company on each train, who is to
be carried free."
"2. All express matter from points on or north of the Missouri
Pacific Railroad, and all that comes from any point beyond or east
of St. Louis, via that city, for points on the line of the
Missouri, Kansas, and Texas Railway, or beyond, is to be brought on
the said line at Sedalia, and no business for this road is to be
done, or freight of any kind to be received or delivered at Vinita
except such as originated at or is destined to points on the
Atlantic and Pacific Railroad south and west from Franklin,
Missouri."
"3. As part compensation to the railway company for the
privileges furnished by it, as herein provided, the express company
will pay to the railway company monthly one hundred dollars per day
for each and every day that trains are run over the railway, or any
part thereof."
"4. As part consideration, it is also agreed that the express
company shall carry the money and valuable packages belonging to
the railway company over the line of the Missouri, Kansas, and
Texas Railway free of charge, and for all matter going to or coming
from points beyond the line of the Missouri, Kansas, and Texas
Railway the express company will charge not exceeding two-thirds of
its regular rate for such business, the
Page 117 U. S. 14
superintendents and agents for said express company, whenever it
is necessary to supervise the business, to have the privilege of
traveling over the line of said road free, passes for such free
passage to be furnished on application of the superintendent of the
express company for this division."
"5. The railway company agree further that they will not carry
freight or packages for pay in their baggage cars on passenger
trains, nor allow their conductors or baggage masters or other
employees to do so, during the existence of this agreement, nor
will they allow any other company, firm, or person the privilege of
carrying freight on their passenger trains at any less rate of
payment per day, or any greater weight in a car, or upon any better
terms in any way, than is granted to said express company under
this agreement."
"6. It is understood that as the line of the Missouri, Kansas,
and Texas Railway is extended south from the Arkansas River similar
accommodations will be furnished for an express business, as herein
above provided at a reasonably increased cost, to be paid by the
express company, as shall hereafter be agreed upon."
"7. This agreement to take effect on the first day of December,
A.D. 1871, and continue in force for one year thereafter, and until
thirty days' notice shall have been given to the other by the party
desiring to terminate same."
Under this contract, the Adams Company carried on its business
over the railroad line without objection from the railroad company
until December 1, 1880, when the railroad company notified the
express company that it would be expected to retire from the
operation of its business on that road January 1, 1881, as on and
after that date the business would be done by or for the railroad
company. This suit was brought after the service of that notice,
and the prayer of the bill is substantially like that in the other
cases.
The railroad company at first answered the bill, and testimony
was taken, but before a final hearing, the answer was withdrawn and
a demurrer substituted.
In each of the cases, a preliminary injunction was granted, and
from that time until now, the express companies have occupied
Page 117 U. S. 15
the roads the same as before the suits, but in connection with
the railroad companies, as carriers of express matter, or with some
other express company to which the privilege of doing an express
business over the line had been granted by the railroad
company.
A large amount of testimony was taken, and on the final hearing
a decree was entered in each of the cases, one of which is as
follows:
"I. That the express business, as fully described and shown in
the record, is a branch of the carrying trade that has by the
necessities of commerce and the usages of those engaged in
transportation become known and recognized so as to require the
court to take notice of the same as distinct from the ordinary
transportation of the large mass of freight usually carried on
steamboats and railroads."
"II. That it has become the law and usage, and is one of the
necessities of the express business, that the property confided to
an express company for transportation should be kept while in
transit in the immediate charge of the messenger or agent of such
express company."
"III. That to refuse permission to such messengers or agents to
accompany such property on the steamboats or railroads on which it
is to be carried, and to deny to them the right to the custody of
the property while so carried, would be destructive of the express
business, and of the rights which the public have to the use of
such steamboats and railroads for the transportation of such
property so under the control of such messengers or agents."
"IV. That the defendant, its officers, agents, and servants,
have no right to open or inspect any of the packages or express
matter which may be offered to it for transportation by the
plaintiff's company, or to demand a knowledge of the contents
thereof, nor to refuse transportation thereof unless such
inspection be granted or such knowledge be afforded."
"V. That it is the duty of the defendant to carry the express
matter of the plaintiff's company and the messengers or agents in
charge thereof at a just and reasonable rate of compensation, and
that such rate of compensation is to be found and
Page 117 U. S. 16
established as a unit, and is to include as well the
transportation of such messengers or agents as of the express
matter in their custody and under their control."
"VI. That on and subsequent to the 1st day of May, 1877, the
said defendant afforded to the said plaintiff all the facilities
needed by it for the conduct of its express business over the
defendant's lines, and such as are specifically in the bill herein
set forth; that thereafter the defendant notified the plaintiff
that such facilities would be withdrawn, and that it was the
intention and purpose of the defendant to exclude the plaintiff's
company from its lines on and after the 21st day of June, 1880;
that such intention and purpose were restrained by the preliminary
injunction order of the court, which said injunction order was
afterwards modified, as appears in the record."
"VII. That it is the duty of the defendant to afford to the
plaintiff all express facilities, and to the same extent and upon
the same trains that said defendant may accord to itself, or any
other company or corporation engaged in the conduct of an express
business on the defendant's lines, and to afford the same
facilities to the plaintiff on all its passenger trains."
"VIII. That the plaintiff keep and render monthly a true account
of the services performed for it by defendant, and pay therefor at
the rate hereinafter specified, on or before the _____ of each
month, after the date hereof, for the business of the month
preceding, and that the defendant has no right to require
prepayment for said express facilities, or payment therefor at the
end of every train, or in any other manner than as is herein
provided, and that plaintiff execute and deliver to the defendant a
bond in the sum of twenty-five thousand dollars, conditioned well
and faithfully to make such payments as are herein provided, and
with surety to be approved by a judge of the court."
"IX. That it is and was the duty of said defendant to afford,
and to have afforded, such facilities to the plaintiff as herein
specified, for a just and reasonable compensation."
"X. Whereas it is alleged by complainant that since the
commencement of this suit and the service of the preliminary order
of injunction herein the defendant has, in violation of
Page 117 U. S. 17
said injunction and of the rights of complainant, made unjust
discriminations against complainant, and has charged complainant
unjust and unreasonable rates for carrying express matter;
therefore it is ordered that complainant have leave hereafter to
apply for an investigation of these and similar allegations, and
for such order with respect thereto as the facts, when ascertained,
may justify, and for the appointment of a master to take proof and
report thereon."
"XI. That the defendant, its officers, agents, servants, and
employees, and all persons acting under their authority be, and
they hereby are, permanently and perpetually enjoined and
restrained from interfering with or disturbing in any manner the
enjoyment by the plaintiff of the facilities provided for in this
decree, to be accorded to it by the said defendant upon its lines
of railway, or such as have been heretofore accorded to it for the
transaction of the business of the plaintiff, and of the express
business of the public confided to its care, and from interfering
with any of the express matter or messengers of the plaintiff, and
from excluding or ejecting any of its express matter or messengers
from the depots, trains, cars, or lines of the said defendant, as
the same are by this decree directed to be permitted to be enjoyed
and occupied by the said plaintiff, and from refusing to receive
and transport in like manner as the said defendant is now
transporting, or as it may hereafter transport, for itself or for
any other express company, over its lines of railway, the express
matter and messengers of the said plaintiff, and from interfering
with or disturbing the business of the said plaintiff in any way or
manner whatsoever; the said plaintiff paying for the services
performed for it by the defendant monthly, as herein prescribed at
a rate not exceeding fifty percent more than its prescribed rates
for the transportation of ordinary freight, and not exceeding the
rate at which it may itself transport express matter on its own
account, or for any other express or other corporation or for
private individuals, reserving to either party the right at any
time hereafter to apply to this Court according to the rules in
equity proceedings for a modification of this decree as to the
measure of compensation herein prescribed. "
Page 117 U. S. 18
"XII. It is further ordered, adjudged, and decreed that
defendant pay the costs to be taxed herein and that an execution or
a fee-bill issue therefor, And the said defendant enters herein its
prayer for appeal, which prayer is granted."
The decrees in the other cases differ from this only in matters
of detail.
The cases are now here for review on these appeals.
The evidence shows that the express business was first organized
in the United States about the year 1839. The case of
New Jersey Steam Navigation
Company v. Merchants' Bank, 6 How. 344, grew out of
a loss by the burning of the steamboat
Lexington, on Long
Island Sound, in January, 1840, of $18,000 in gold and silver coin
while in charge of William F. Harnden, an express carrier, for
transportation from New York to Boston. In the report of this case
is found a copy of one of the earliest advertisements of the
express business, as published in two of the Boston newspapers in
July, 1839. It is as follows:
"Boston and New York Express Package Car. -- Notice to
Merchants, Brokers, Booksellers, and all Businessmen."
"Wm. F. Harnden, having made arrangements with the New York and
Boston Transportation and Stonington and Providence Railroad
Companies, will run a car through from Boston to New York, and
vice versa, via Stonington, with the mail train daily for
the purpose of transporting specie, small packages of goods, and
bundles of all kinds. Packages sent by this line will be delivered
on the following morning at any part of the city, free of charge. A
responsible agent will accompany the car, who will attend to
purchasing goods, collecting drafts, notes, and bills, and will
transact any other business that may be entrusted to him. Packages
for Philadelphia, Baltimore, Washington, New Haven, Hartford,
Albany, and Troy will be forwarded immediately on arrival in New
York."
"N.B. -- Wm. F. Harnden is alone responsible fro any loss or
injury of any articles or property committed to his care, nor is
any risk assumed by, or can any be attached to, the Boston and New
York Transportation Company, in whose
Page 117 U. S. 19
steamers his crates are to be transported, in respect to it or
its contents at any time."
The report also contains a copy of the contract between Harnden
and the New Jersey Steam Navigation Company, the owner of the
Lexington, dated the first of August, 1839, for the
facilities to be afforded Harnden for his business on the steamers
of that company. This contract was similar to one made a short time
before with the Boston and New York Transportation Company, a
company which became merged in the New Jersey Steam Navigation
Company August 1, 1839, and it provided that Harnden, in
consideration of $250 per month, was to have the privilege of
transporting in the steamers of the company between New York and
Providence, via Newport and Stonington, not to exceed once each day
from New York and from Providence, "one wooden crate of the
dimensions of five feet by five feet in width and height, and six
feet in length (contents unknown)." It was also stipulated and
agreed that
"The said crate, with its contents, is to be at all times
exclusively at the risk of the said William F. Harnden, and the
said New Jersey Steam Navigation Company will not in any event be
responsible either to him or his employers for the loss of any
goods, wares, merchandise, notes, bills, evidences of debt, or
property of any and every description to be conveyed or transported
by him in said crate or otherwise in any manner in the boats of the
said company."
It was also further provided that Harnden should attach to all
his advertisements for business, and to his bills of lading,
notices in the form of that at the foot of his advertisement, a
copy of which is given above, and that he should not violate any of
the provisions of the post office laws, or interfere with the
navigation company in its transportation of letters or papers, or
carry powder, matches, or other combustible materials of any kind
calculated to endanger the safety of the boats or the property or
persons on board. At the end was this clause: "And that this
contract may be at any time terminated by the New Jersey Steam
Navigation Company or by the said Harnden upon one month's notice
given in writing."
Page 117 U. S. 20
Such was the beginning of the express business which now has
grown to an enormous size, and is carried on all over the United
States and in Canada, and has been extended to Europe and the West
Indies. It has become a public necessity, and ranks in importance
with the mails and with the telegraph. It employs for the purposes
of transportation all the important railroads in the United States,
and a new road is rarely opened to the public without being
equipped in some form with express facilities. It is used in almost
every conceivable way, and for almost every conceivable purpose, by
the people and by the government. All have become accustomed to it,
and it cannot be taken away without breaking up many of the long
settled habits of business and interfering materially with the
conveniences of social life.
In this connection, it is to be kept in mind that neither of the
railroad companies involved in these suits is attempting to deprive
the general public of the advantages of an express business over
its road. The controversy in each case is not with the public, but
with a single express company. And the real question is not whether
the railroad companies are authorized by law to do an express
business themselves; nor whether they must carry express matter for
the public on their passenger trains, in the immediate charge of
some person specially appointed for that purpose; nor whether they
shall carry express freights for express companies as they carry
like freights for the general public, but whether it is their duty
to furnish the Adams Company or the Southern Company facilities for
doing an express business upon their roads the same in all respects
as those they provide for themselves or afford to any other express
company.
When the business began, railroads were in their infancy. They
were few in number, and for comparatively short distances. There
has never been a time, however, since the express business was
started that it has not been encouraged by the railroad companies,
and it is no doubt true, as alleged in each of the bills filed in
these cases, that
"no railroad company in the United States . . . has ever refused
to transport express matter for the public upon the application of
some express
Page 117 U. S. 21
company of some form of legal constitution. Every railway
company . . . has recognized the right of the public to demand
transportation by the railway facilities which the public has
permitted to be created of that class of matter which is known as
'express matter.' Express companies have undoubtedly invested their
capital and built up their business in the hope and expectation of
securing, and keeping for themselves, such railway facilities as
they needed, and railroad companies have likewise relied upon the
express business as one of their important sources of income. But
it is neither averred in the bills nor shown by the testimony that
any railroad company in the United States has ever held itself out
as a common carrier of express companies -- that is to say, as a
common carrier of common carriers. On the contrary, it has been
shown, and in fact it was conceded upon the argument, that down to
the time of bringing these suits, no railroad company had taken an
express company on its road for business except under some special
contract, verbal or written, and generally written, in which the
rights and duties of the respective parties were carefully fixed
and defined. These contracts, as is seen by those in these records,
vary necessarily in their details according to the varying
circumstances of each particular case and according to the judgment
and discretion of the parties immediately concerned. It also
appears that, with very few exceptions, only one express company
has been allowed by a railroad company to do business on its road
at the same time. In some of the states, statutes have been passed
which, either in express terms or by judicial interpretation,
require railroad companies to furnish equal facilities to all
express companies, Gen.Laws N.H. c. 163, § 2; Rev.Stat. Me. 494, §
134; but these are of comparatively recent origin, and thus far
seem not to have been generally adopted."
In Missouri, by the constitution, railways are "declared public
highways and railroad companies common carriers." The general
assembly is also required
"to pass laws to correct abuses and to prevent unjust
discrimination and extortion in rates of freight and passenger
tariffs on the different railroads in
Page 117 U. S. 22
this state,"
and
"to pass laws establishing reasonable maximum rates of charges
for the transportation of passengers and freight on said railroads,
and enforce all such laws by adequate penalties."
Article XII, sec. 14. And by section 23 it is provided that
"No discrimination in charges or facilities in transportation
shall be made between transportation companies and individuals or
in favor of either by abatement, drawback, or otherwise, and no
railroad company, or any lessee, manager, or employee thereof,
shall make any preference in furnishing cars or motive power."
We have not been referred to any statute of the state which does
more than reproduce these constitutional provisions in
substantially the same general language.
Article XVII, sec. 1, of the Constitution of Arkansas, provides
that "All railroads, canals, and turnpikes shall be public
highways, and all railroad and canal companies shall be common
carriers." Sections 3, 5, and 6 of the same article are as
follows:
"SEC. 3. All individuals, associations, and corporations shall
have equal rights to have persons and property transported over
railroads, canals, and turnpikes, and no undue or unreasonable
discrimination shall be made in charges for or in facilities for
transportation of freight or passengers within the state or coming
from or going to any other state."
"SEC. 5. No president, director, officer, agent, or employee of
any railroad or canal company shall be interested directly or
indirectly in the furnishing of material or supplies to such
company or in the business of a common carrier of freight or
passengers over the works owned, leased, controlled, or worked by
such company, nor in any arrangement which shall afford more
advantageous terms or greater facilities that are offered or
accorded to the public."
"SEC. 6. No discrimination in charge or facilities for
transportation shall be made between transportation companies and
individuals, nor in favor of either, by abatement, drawback, or
otherwise, and no railroad or canal company, or any lessee,
manager, or employee thereof, shall make any preference in
furnishing cars or motive power. "
Page 117 U. S. 23
The legislation of this state has not, so far as we have been
advised, extended the operation of these constitutional provisions
in a way to affect the questions now to be decided.
In Kansas, the following statute is in force:
"SEC. 55. Every railway corporation in this state which now is
or may hereafter be engaged in the transportation of persons or
property shall give public notice of the regular time of starting
and running its cars and shall furnish sufficient accommodations
for the transportation of all such passengers, baggage, mails, and
express freight as shall, within a reasonable time previous
thereto, be offered for transportation at the place of starting at
the junction of other roads and at the several stopping places, and
they are hereby required to stop all trains carrying passengers at
the junction or intersection of other railways a sufficient length
of time to allow the transfer of passengers, personal baggage,
mails, and express freight from the trains or railways so
connecting or intersecting, or they may mutually arrange for the
transportation of such persons and property over both roads without
change of cars, and they shall be compelled to receive all
passengers and freight from such connecting and intersecting roads
whenever the same shall be delivered to them."
Comp.Laws Kansas, 1879, 225, c. 23.
The reason is obvious why special contracts in reference to this
business are necessary. The transportation required is of a kind
which must, if possible, be had for the most part on passenger
trains. It requires not only speed, but reasonable certainty as to
the quantity that will be carried at one time. As the things
carried are to be kept in the personal custody of the messenger or
other employee of the express company, it is important that a
certain amount of car space should be specially set apart for the
business, and that this should, as far as practicable, be put in
the exclusive possession of the express man in charge. As the
business to be done is "express," it implies access to the train
for loading at the latest, and for unloading at the earliest,
convenient moment. All this is entirely inconsistent with the idea
of an express business on passenger trains free to all express
carriers. Railroad companies are by law
Page 117 U. S. 24
carriers of both persons and property. Passenger trains have
from the beginning been provided for the transportation primarily
of passengers and their baggage. This must be done with reasonable
promptness and with reasonable comfort to the passenger. The
express business on passenger trains is in a degree subordinate to
the passenger business, and it is consequently the duty of a
railroad company, in arranging for the express, to see that there
is as little interference as possible with the wants of passengers.
This implies a special understanding and agreement as to the amount
of car space that will be afforded and the conditions on which it
is to be occupied, the particular trains that can be used, the
places at which they shall stop, the price to be paid, and all the
varying details of a business which is to be adjusted between two
public servants so that each can perform in the best manner its own
particular duties. All this must necessarily be a matter of
bargain, and it by no means follows that because a railroad company
can serve one express company in one way, it can as well serve
another company in the same way and still perform its other
obligations to the public in a satisfactory manner. The car space
that can be given to the express business on a passenger train is,
to a certain extent, limited, and as has been seen, that which is
allotted to a particular carrier must be in a measure under his
exclusive control. No express company can do a successful business
unless it is at all times reasonably sure of the means it requires
for transportation. On important lines, one company will at times
fill all the space the railroad company can well allow for the
business. If this space had to be divided among several companies,
there might be occasions when the public would be put to
inconvenience by delays which could otherwise be avoided. So long
as the public are served to their reasonable satisfaction, it is a
matter of no importance who serves them. The railroad company
performs its whole duty to the public at large and to each
individual when it affords the public all reasonable express
accommodations. If this is done, the railroad company owes no duty
to the public as to the particular agencies it shall select for
that purpose. The public require the carriage, but the company may
choose its own appropriate
Page 117 U. S. 25
means of carriage, always provided they are such as to insure
reasonable promptness and security.
The inconvenience that would come from allowing more than one
express company on a railroad at the same time was apparently so
well understood both by the express companies and the railroad
companies that the three principal express companies, the Adams,
the American, and the United States, almost immediately on their
organization, now more than thirty years ago, by agreement divided
the territory in the United States traversed by railroads among
themselves, and since that time each has confined its own
operations to the particular roads which, under this division, have
been set apart for its special use. No one of these companies has
ever interfered with the other, and each has worked its allotted
territory, always extending its lines in the agreed directions as
circumstances would permit. At the beginning of the late civil war,
the Adams Company gave up its territory in the southern states to
the Southern Company, and since then, the Adams and the Southern
have occupied, under arrangements between themselves, that part of
the ground originally assigned to the Adams alone. In this way,
these three or four important and influential companies were able
substantially to control, from 1854 until about the time of the
bringing of these suits, all the railway express business in the
United States except upon the Pacific roads and in certain
comparatively limited localities. In fact, as is stated in the
argument for the express companies, the Adams was occupying when
these suits were brought 155 railroads, with a mileage of 21,216
miles; the American 200 roads, with a mileage of 28,000 miles, and
the Southern 95 roads, with a mileage of 10,000 miles. Through
their business arrangements with each other and with other
connecting lines, they have been able for a long time to receive
and contract for the delivery of any package committed to their
charge at almost any place of importance in the United States and
in Canada, and even at some places in Europe and the West Indies.
They have invested millions of dollars in their business, and have
secured public confidence to such a degree that they are trusted
unhesitatingly
Page 117 U. S. 26
by all who need their services. The goodwill of their business
is of very great value if they can keep their present facilities
for transportation. The longer their lines and the more favorable
their connections, the greater will be their own profits and the
better their means of serving the public. In making their
investments and in extending their business, they have undoubtedly
relied on securing and keeping favorable railroad transportation,
and in this they were encouraged by the apparent willingness of
railroad companies to accommodate them; but the fact still remains
that they have never been allowed to do business on any road except
under a special contract, and that as a rule only one express
company has been admitted on a road at the same time.
The territory traversed by the railroads involved in the present
suits is part of that allotted in the division between the express
companies to the Adams and Southern Companies, and in due time
after the roads were built these companies contracted with the
railroad companies for the privileges of an express business. The
contracts were all in writing, in which the rights of the
respective parties were clearly defined, and there is now no
dispute about what they were. Each contract contained a provision
for its termination by either party on notice. That notice has been
given in all the cases by the railroad companies, and the express
companies now sue for relief. Clearly this cannot be afforded by
keeping the contracts in force, for both parties have agreed that
they may be terminated at any time by either party on notice; nor
by making new contracts, because this is not within the scope of
judicial power.
The exact question, then, is whether these express companies can
now demand as a right what they have heretofore had only as by
permission. That depends, as is conceded, on whether all railroad
companies are now by law charged with the duty of carrying all
express companies in the way that express carriers when taken are
usually carried, just as they are with the duty of carrying all
passengers and freights when offered in the way that passengers and
freight are carried. The contracts which these companies once had
are now out of
Page 117 U. S. 27
the way, and the companies at this time possess no other rights
than such as belong to any other company or person wishing to do an
express business upon these roads. If they are entitled to the
relief they ask, it is because it is the duty of the railroad
companies to furnish express facilities to all alike who demand
them.
The constitutions and the laws of the states in which the roads
are situated place the companies that own and operate them on the
footing of common carriers, but there is nothing which in positive
terms requires a railroad company to carry all express companies in
the way that under some circumstances they may be able without
inconvenience to carry one company. In Kansas, the Missouri, Kansas
and Texas Company must furnish sufficient accommodations for the
transportation of all such express freight as may be offered, and
in each of the States of Missouri, Arkansas, and Kansas, railroad
companies are probably prohibited from making unreasonable
discriminations in their business as carriers; but this is all.
Such being the case, the right of the express companies to a decree
depends upon their showing the existence of a usage, having the
force of law in the express business, which requires railroad
companies to carry all express companies on their passenger trains
as express carriers are usually carried. It is not enough to
establish a usage to carry some express company, or to furnish the
public in some way with the advantages of an express business over
the road. The question is not whether these railroad companies must
furnish the general public with reasonable express facilities, but
whether they must carry these particular express carriers for the
purpose of enabling them to do an express business over the
lines.
In all these voluminous records, there is not a syllable of
evidence to show a usage for the carriage of express companies on
the passenger trains of railroads unless specially contracted for.
While it has uniformly been the habit of railroad companies to
arrange at the earliest practicable moment to take one express
company on some or all their passenger trains, or to provide some
other way of doing an express business on their lines, it has never
been the practice to grant such a privilege to more
Page 117 U. S. 28
than one company at the same time unless a statute or some
special circumstances made it necessary or desirable. The express
companies that bring these suits are certainly in no situation to
claim a usage in their favor on these particular roads, because
their entry was originally under special contracts, and no other
companies have ever been admitted except by agreement. By the terms
of their contracts, they agreed that all their contract rights on
the roads should be terminated at the will of the railroad company.
They were willing to begin and to expand their business upon this
understanding and with this uncertainty as to the duration of their
privileges. The stoppage of their facilities was one of the risks
they assumed when they accepted their contracts and made their
investments under them. If the general public were complaining
because the railroad companies refused to carry express matter
themselves on their passenger trains, or to allow it to be carried
by others, different questions would be presented. As it is, we
have only to decide whether these particular express companies must
be carried notwithstanding the termination of their special
contract rights.
The difficulty in the cases is apparent from the form of the
decrees. As express companies had always been carried by railroad
companies under special contracts which established the duty of the
railroad company upon the one side and fixed the liability of the
express company on the other, the court, in decreeing the carriage,
was substantially compelled to make for the parties such a contract
for the business as in its opinion they ought to have made for
themselves. Having found that the railroad company should furnish
the express company with facilities for business, it had to define
what those facilities must be, and it did so by declaring that they
should be furnished to the same extent and upon the same trains
that the company accorded to itself or to any other company engaged
in conducting an express business on its line. It then prescribed
the time and manner for making the payment for the facilities, and
how the payment should be secured, as well as how it should be
measured. Thus, by the decrees, these railroad companies are
compelled to carry these express companies
Page 117 U. S. 29
at these rates, and on these terms, so long as they ask to be
carried, no matter what other express companies pay for the same
facilities or what such facilities may, for the time being, be
reasonably worth, unless the court sees fit, under the power
reserved for that purpose, on the application of either of the
parties, to change the measure of compensation. In this way, as it
seems to us, "the court has made an arrangement for the business
intercourse of these companies such as in its opinion they ought to
have made for themselves," and that, we said in
Atchison,
Topeka & Santa Fe Railroad Co. v. Denver & New Orleans
Railroad Co., 110 U. S. 673,
followed at this term in
Pullman's Palace Car Co. v. Missouri
Pacific Railway Co., 115 U. S. 587,
could not be done. The regulation of matters of this kind is
legislative in its character, not judicial. To what extent it must
come, if it comes at all, from Congress and to what extent it may
come from the states are questions we do not now undertake to
decide, but that it must come, when it does come, from some source
of legislative power we do not doubt. The legislature may impose a
duty, and when imposed, it will, if necessary, be enforced by the
courts, but unless a duty has been created either by usage or by
contract or by statute, the courts cannot be called on to give it
effect.
The decree in each of the cases is reversed and the suit is
remanded with directions to dissolve the injunction, and after
adjusting the accounts between the parties for business done while
the injunctions were in force and decreeing the payment of any
amounts that may be found to be due, to dismiss the bills.
MR. JUSTICE MILLER, dissenting.
When these cases were argued before Circuit Judge McCrary and
myself at St. Louis, after due consideration and consultation with
him and Judge Treat, of the district court, I announced certain
propositions as the foundations on which the decrees should be
rendered. These were afterwards entered in the various circuits to
which the cases properly belonged, and, I believe, in strict
accordance with the principles thus announced.
Page 117 U. S. 30
I am still of opinion that those principles are sound, and I
repeat them here as the reasons of my dissent from the judgment of
the court now pronounced in these cases.
They met the approval of Judge McCrary when they were submitted
to his consideration. They were filed in the court in the following
language:
"1. I am of opinion that what is known as the express business
is a branch of the carrying trade that has, by the necessities of
commerce and the usages of those engaged in transportation, become
known and recognized; that while it is not possible to give a
definition in terms which will embrace all classes of articles
usually so carried and to define it with a precision of words of
exclusion, the general character of the business is sufficiently
known and recognized as to require the court to take notice of it
as distinct from the transportation of the large mass of freight
usually carried on steamboats and railroads; that the object of
this express business is to carry small and valuable packages
rapidly in such a manner as not to subject them to the danger of
loss and damage, which, to a greater or less degree, attends the
transportation of heavy or bulky articles of commerce, as grain,
flour, iron, ordinary merchandise, and the like."
"2. It has become law and usage, and is one of the necessities
of this business, that these packages should be in the immediate
charge of an agent or messenger of the person or company engaged in
it, and to refuse permission to this agent to accompany these
packages on steamboats or railroads on which they are carried, and
to deny them the right to the control of them while so carried, is
destructive of the business and of the rights which the public have
to the use of the railroads in this class of transportation."
"3. I am of the opinion that when express matter is so confided
to the charge of an agent or messenger, the railroad company is no
longer liable to all the obligations of a common carrier, but that
when loss or injury occurs, the liability depends upon the exercise
of due care, skill, and diligence on the part of the railroad
company. "
Page 117 U. S. 31
"4. That under these circumstances, there does not exist on the
part of the railroad company the right to open and inspect all
packages so carried, especially when they have been duly closed or
sealed up by their owners or by the express carrier."
"5. I am of the opinion that it is the duty of every railroad
company to provide such conveyance by special cars, or otherwise,
attached to their freight and passenger trains, as are required for
the safe and proper transportation of this express matter on their
roads, and that the use of these facilities should be extended on
equal terms to all who are actually and usually engaged in the
express business. If the number of persons claiming the right to
engage in this business at the same time, on the same road, should
become oppressive, other considerations might prevail; but until
such a state of affairs is shown to be actually in existence, in
good faith, it is unnecessary to consider it."
"6. This express matter, and the person in charge of it, should
be carried by the railroad company at fair and reasonable rates of
compensation, and where the parties concerned cannot agree upon
what that is, it is a question for the courts to decide."
"7. I am of the opinion that a court of equity, in a case
properly made out, has the authority to compel the railroad
companies to carry this express matter and to perform the duties in
that respect which I have already indicated, and to make such
orders and decrees, and to enforce them by the ordinary methods in
use necessary to that end."
"8. While I doubt the right of the court to fix in advance the
precise rates which the express companies shall pay and the
railroad company shall accept, I have no doubt of its right to
compel the performance of the service by the railroad company, and,
after it is rendered, to ascertain the reasonable compensation, and
compel its payment."
"9. To permit the railway company to fix upon a rate of
compensation which is absolute, and insist upon the payment in
advance or at the end of every train, would be to enable them to
defeat the just rights of the express companies, to destroy their
business, and would be a practical denial of justice."
"10. To avoid this difficulty, I think that the court can
assume
Page 117 U. S. 32
that the rates or other mode of compensation heretofore existing
between any such companies are
prima facie reasonable and
just, and can require the parties to conform to it as the business
progresses, with the right to either party to keep and present an
account of the business to the court at stated intervals and claim
an addition to or rebate from the amount paid, and to secure the
railroad companies in any sum which may be thus found due them a
bond from the express company may be required in advance."
"11. When no such arrangement has heretofore been in existence,
it is competent for the court to devise some mode of compensation,
to be paid as the business progresses, with like power of final
revision on evidence, reference to master, etc."
"12. I am of opinion that neither the statutes nor Constitutions
of Arkansas or Missouri were intended to affect the right asserted
in these cases, nor do they present any obstacle to such decrees as
may enforce the right of the express companies."
Three years' reflection and the renewed and able argument in
this Court have not changed my belief in the soundness of these
principles. That there may be slight errors in the details of the
decrees of the circuit courts made to secure just compensation for
the services of the railroad companies is possibly true, but I have
not discovered them, and the attention of the Court has not been
given to them in deciding this case, for holding as it does that
the complainants were entitled to no relief whatever, it became
unnecessary to consider the details of the decrees.
I only desire to add one or two observations in regard to
matters found in the opinion of this Court:
1. The relief sought in these cases is not sought on the ground
of usage in the sense that a long course of dealing with the public
has established a custom in the nature of law. Usage is only relied
on as showing that the business itself has forced its way into
general recognition as one of such necessity to the public, and so
distinct and marked in its character, that it is entitled to a
consideration different from other modes of transportation.
Page 117 U. S. 33
2. It is said that the regulation of the duties of carrying by
the railroads and of the compensation they shall receive is
legislative in its character, and not judicial.
As to the duties of the railroad company, if they are not, as
common carriers, under legal obligation to carry express matter for
anyone engaged in that business in the manner appropriate and usual
in such business, then there is no case for the relief sought in
these bills. But if they are so bound to carry, then, in the
absence of any legislative rule fixing their compensation, I
maintain that compensation is a judicial question.
It is, then, the ordinary and ever-recurring question on a
quantum meruit. The railroad company renders the service
which by the law of its organization it is bound to render. The
express company refuses to pay for this the price which the
railroad company demands because it believes it to be exorbitant.
That it is a judicial question to determine what shall be paid for
the service rendered, in the absence of an express contract, seems
to me beyond doubt.
That the legislature may, in proper case, fix the rule or rate
of compensation I do not deny. But until this is done, the court
must decide it when it becomes matter of controversy.
The opinion of the Court, while showing its growth and
importance, places the entire express business of the country
wholly at the mercy of the railroad companies and suggests no means
by which they can be compelled to do it. According to the
principles there announced, no railroad company is bound to receive
or carry an express messenger or his packages. If they choose to
reject him or his packages, they can throw all the business of the
country back to the crude condition in which it was a half century
ago, before Harnden established his local express between the large
Atlantic cities, for let it be remembered that plaintiffs have
never refused to pay the railroad companies reasonable compensation
for their services, but those companies refuse to carry for them at
any price or under any circumstances.
I am very sure such a proposition as this will not long be
acquiesced in by the great commercial interests of the country and
by the public, whom both railroad companies and the
Page 117 U. S. 34
express man are intended to serve. If other courts should follow
ours in this doctrine, the evils to ensue will call for other
relief. It is in view of amelioration of these great evils that, in
dissenting here, I announce the principles which I earnestly
believe
ought to control the actions and the rights of
these two great public services.
MR. JUSTICE FIELD, dissenting.
I agree with MR. JUSTICE MILLER in the positions he has stated,
although in the cases just decided I think the decrees of the
courts below require modification in several particulars -- they go
too far. But I am clear that railroad companies are bound, as
common carriers, to accommodate the public in the transportation of
goods according to its necessities, and through the
instrumentalities or in the mode best adapted to promote its
convenience. Among these instrumentalities, express companies, by
the mode in which their business in conducted, are the most
important and useful.