805. Discussion of these conflicting views.

The strongest argument for the progressive view may be developed from the principles laid down in the opinion just quoted. If the public duty in this matter does not go to the extent of preventing discrimination in performing it, none of the law of public service applies between the railroad company and the express company; and it follows that any express company may be charged extortionate prices. Such unreasonable charges, if not forbidden, will inevitably react upon the general shipping public to whom, by the hypothesis, a public duty is owed to provide adequate service for reasonable rates. It may be urged at this stage that since the express business itself is a public calling, therefore, the express companies themselves are bound to give satisfactory service at reasonable rates. But their duty is relative; if they cannot get adequate facilities they are not bound to provide them; and if they must pay extortionate prices they may charge these against the general shipping public as necessary operating expenses. If the Express Cases are law, there is no limit upon the amount which the railroad may charge the express company and no way by which the reaction of that charge upon the shipping public may be avoided. This seems to reduce the doctrine of the Express Cases to an absurdity; if, as those cases decide, there is no public duty owed from the railways to the expressmen, then it is because of that gap impos

carrying such matters, on the ground of the novelty of the business, has nothing in it deserving serious consideration. If all the improvements of this progressive age are to be excluded from railroad transportation because they were not in existence when the charters were granted for the roads, the public would soon be deprived of the chief value of these important works. The law is not so unreasonable in its constructions. The rights of express agents or carriers have been fully recognized in this respect in England. They are entitled to equal benefits with others, and no exclusive advantages can be granted to others to their injury. Pickford v. G. J. Ry., 10 M. & W. 397; Parker v. G. W. Ry., 7 M. & G. 253; Parker v. G. W. Ry., 11 C. B. 545, 583." Lewis, C. J., in Sandford v. R. R., supra. 6 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628, B. & W. 157 (1886).

sible in any way entirely satisfactory to protect by the law the shippers of express matter from the machinations of those who are concerned with transporting it.

The arguments from policy that are urged in these conservative cases are not conclusive, although they have a certain force. It is true that it is somewhat more difficult for the railroads to handle three distinct expresses than one, but not more difficult than many problems of railroading that are part of every day traffic handling. Subdivision of express cars upon light runs, and more development of the special train for express matter, would solve the difficulty; and the railroad is protected in any event by the right to charge a fair price for its services based upon the cost of service. Again, it is said that large express companies are better than a greater number of smaller companies. It should be pointed out, however, that the doctrine of the Express Cases2 may be used to exclude the national express companies with their full equipment from any railroad system, the directors of which favor some local company.

§ 806. Exclusive contracts with private car lines.

The doctrine of the Express Cases is continually hampering the common law in dealing with interstate transportation. Within the last few years public opinion has been much aroused against the exclusive arrangements entered into between the railways and the various private car lines. It is pretty generally agreed that what ought to be done in dealing with the private car lines is to apply to the whole situation the coercive law that regulates public calling. Either the railways ought to be obliged to conduct these special services themselves, furnishing their own cars, or if they decide upon a different policy they should be obliged to haul the cars of as many private car lines as choose to undertake the business. But the conservative doc

7 Supra.

8 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628, B. & W. 157 (1886).

trines held by the Supreme Court of the United States stand in the way of the immediate application to interstate commerce of any such progressive views as these. In the meantime, in the absence of efficient regulation by thorough-going law, those private car lines that have exclusive agreements with the railways are showing very clearly what may happen when a common carrier is permitted to foster a monopoly in a dependent service.

§ 807. Refrigerator car lines.

The private refrigerator car lines have been the subject of especial complaint. Finally, the Interstate Commerce Commission, upon complaints made by various shippers and consignees, instituted an investigation into the matter, the results of which are reported under the heading, Re Transportation of Fruit."

It was shown that the respondent railroad companies, the Pere Marquette and the Michigan Central, had entered into contracts with the other respondent, the Armour Car Lines, to furnish the refrigerator car service for the transportation of fruit over their lines, that under these contracts the use of any other car service was prohibited, and that the icing during transportation was to be exclusively performed by the car company. Further, it was proved that following after the making of this arrangement the cost of refrigerator car transportation increased from fifty to one hundred and fifty per cent. The commission. held that it was the duty of the railroad companies either to provide cars proper for this service or to enter into arrangements whereby this service would be provided. Under the doctrine of the Express Cases 10 it felt bound to hold that exclusive contracts of this sort might be entered into. But in its final recommendations the Commission nevertheless suggested that if outrageous extortion resulted from this plan some redress might

9 10 I. C. C. Rep. 360 (1905).

10 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628, B. & W. 157 (1886).

be given, saying: "It appears that the Armour Car Lines Company-and that is Armour & Company-already has a practical monopoly of the fruit carrying business under refrigeration from Michigan. We know from former investigations that this is also true in some other sections of the country; and this mo nopoly may finally become general. All this is a matter of no concern to the public so long as the service is good and the charge reasonable; but the establishment of a general monopoly might result in poor service, just as it has in this section already resulted in exorbitant charges. For this reason it is urged that the Railway Companies ought not to be permitted to make exclusive contracts with private car lines like those under consideration, but should be compelled to provide their own equipment. The facts before us call for no expression of opinion on that subject, and none is attempted." 11

§ 808. Live stock transportation companies.

Similar issues have been raised as to private car lines for the transportation of live stock; but the federal courts have applied the doctrine of the express cases to them as in duty bound. The leading case on this point seems to be United States ex rel. Morris v. Delaware, Lackawanna & Western Railroad Company.12

To an application for a mandamus to compel a carrier to transport relators' stock in the cars of a certain live stock transportation company, the respondent set forth in its return that it had entered into a contract with another transportation company, by which that company was to furnish respondent a certain number of cars per year; that such cars were available to all shippers of stock; that they were much more useful to de

11 In Rogers L. T. M. Wks. v. Erie Ry., 20 N. J. Eq. 379 (1869), the defendant railroad company entered into an arrangement with a locomotive express concern for the handling of all locomotives offered it for transportation. It was held that plaintiff, a shipper of locomotives, could ob ject to this scheme.

12 40 Fed. 101 (1889).

fendant than other live stock cars, in that they could be converted into coal-cars when not used for live-stock; that defendant paid mileage for the use of cars; and that for all of these reasons, the respondent railroad was justified dealing exclusively with the Lackawanna Live Stock Express Company and in refusing to enter into relations with the American Live Stock Transportation Company, the co-relator. In holding the defense of the defendant railroad sufficient, Judge Wallace said: "It is no part of the common-law obligation of railway companies to furnish the same facilities or instrumentalities of transportation to all alike, and while it is unquestionably their duty to furnish suitable and adequate facilities for all reasonable necessities of the business they engage in, they may nevertheless choose their own appropriate means of carriage. This was the doctrine of the Express Cases, 13 in which it was held by the Supreme Court that 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. But the Interstate Commerce Act requires them to treat all impartially, and if one shipper is subjected to any undue or unreasonable prejudice or disadvantage because a railway company permits another shipper to use his own cars for carrying traffic over its road, their right to choose their own appropriate means of carriage is to that extent curtailed."1

13 117 U. S. 1, 29 L. Ed. 791, 6 Sup. Ct. 542, 628, B. & W. 157 (1886). 14 Citing Burton Stock Car Co. v. Chicago, B. & Q. R. Co., 1 Int. Com. Rep. 329, 1 I. C. C. Rep. 132 (1887). See, also, Nicholson v. Great Western R. Co., 5 C. B. N. S. 366 (1858); Cooper v. London & Southewestern, 4 C. B. N. S. 454 (1857). See, however, Shamberg v. Delaware, L. & W. R. R., 3 Int. Com. Rep. 502, 4 I. C. C. Rep. 630 (1891).