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TENNESSEE SUPREME COURT.

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MEMPHIS NEWS PUBLISHING COM-| A PPEAL by defendants from a decree of PANY

in favor of complainant in a suit to comSOUTHERN RAILROAD COMPANY et al., pel the defendant railroad company to furAppts.

nish complainant with facilities for the ship

ping of papers by a certain train upon its (........ Tenn.........)

road. Affirmed.

The facts are stated in the opinion. 1. A railroad

chartered to transact the general business of a

Messrs. F. P. Poston and Wright, carrier cannot by special con

Peters, & Wright for appellants. tract make itself a special carrier as to a par- Mr. G. T. Fitzhugh, for appellee: ticular commodity, such as newspapers, so as The Southern Railway Company is a comto be able to make discriminating contracts in

mon carrier, and must treat all shippers of favor of one publishing house against others. 2. The mere fact that a train is run by

packages of newspapers alike. a railroad company at the solicita

Hutchinson, Carr. § 49. Moss v. Bettis, tion of a newspaper publisher, who | 4 Heisk. 661, 13 Am. Rep. 1; Gordon v. agrees that the daily revenue shall amount to Hutchinson, 1 Watts & S. 285, 37 Am. Dec. a certain sum in consideration that he have 464. the exclusive right to use it for the trans- Railroad companies are by the very naportation of papers, does not chartered train,

to enable the

ture of their business and organic character carrier to exclude other publishers from common carriers, and liable as such. its use, where it is placed on the regular Falvey v. Georgia R. Co. 76 Ga. 597; schedule of the road, and advertised to carry Selma & M. R. Co. v. Butts, 43 Ala. 385, 94 persons and property generally the same as other trains.

Am. Dec. 694; M'Clure v. Richardson, Rice

L. 215, 33 Am. Dec. 105; Moses v. Norris, 4 3. A shipper upon whose solicitation a train was established for the accommo

N. H. 304; Chevallier v. Straham, 2 Tex. dation of his business is not a necessary party 115, 47 Am. Dec. 639; Chouteaux v. Leech, to a suit by a rival to compel the railroad | 18 Pa. 224, 57 Am. Dec. 602; Haynie v. Baycompany to furnish him with equal facilities | lor, 18 Tex. 498. upon it.

A railroad company cannot close its office 4. A shipper who is made a party to a

and refuse to receive goods for cartage, suit to compel a railroad company to furnish equal facilities to a rival while at the same time it continues to reupon a train which has been established at the ceive similar goods from a particular inshipper's solicitation, but against whom no dividual. relief is asked, cannot, by cross bill, compel Garton v. Bristol & F. R. Co. 1 Best & S. complainant to share the expense which the 112; Chicago & N. W. R. Co. v. People, 56

establishment of the service has cost him. 5. A shipper who procures the estab- III. 365, 8 Am. Rep. 690; Messenger v. Penn

lishment of a train for the accommo- sylvania R. Co. 37 N. J. L. 531, 18 Am. Rep. dation of his business by guaranteeing 754; Levi v. Lynn & B. R. Co. 11 Allen, 300, the carrier against loss, with the understand- 87 Am. Dec. 713; 6 Am. & Eng. Enc. Law, ing that it shall not be at the service of rivals,

p. 257. cannot, when the carrier is compelled to serve such rivals,

Every common carrier must carry for all compel them to contribute to the expense of establishing the train, to the extent of his capacity, without unsince it would be impossible to state an due or unreasonable discrimination, either equitable account. One is no more bound to in charges or facilities. contribute than are all who have utilized the

Atchison, T. & S. F. R. Co. v. Denver & advantages of that train, and no shipper is bound, as a condition of the right to have his N. 0. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 property transported by a particular train, to Sup. Ct. Rep. 185. share a burden voluntarily assumed by an- A common carrier must carry for all other shipper for the purpose of having the alike, and cannot show preferences. train established.

Hutchinson, Carr. 2d ed. $ 297. Rice v. (June 30, 1903.)

Atchison, T. & 8. F. R. Co. 3 Inters. Com.

Rep. 264. Note. As to compulsory service by common carrier, see, in this series, note to Rushville v.

All that can be required on the part of the Rushville Natural Gas Co. 15 L. R. A. 321 ; also owner of goods, by way of compensation, is Kirby v. Western U. Teleg. Co. 30 L. R. A. 612; that he shall be ready and willing to pay a California Powder Works v. Atlantic & P. R. reasonable compensation, and to deposit the Co. 36 L. R. A. 618; Seasongood, S. K. & Co. v. Tennessee & O. River Transp. Co. 49 L. R. A: money in advance, if required. 270 ; and Mathis v. Southern R. Co. 61 L. R.

2 Redf. Railways, p. 95, 17 Am. & Eng. A. 824.

Enc. Law, 2d ed. p. 145.

Beard, Ch. J., delivered the opinion of said traiy all newspapers which the Comthe court:

mercial Publishing Company might desire This is an injunction bill filed by the com- to distribụte between Memphis and Huntsplainant, a corporation organized under the ville, and to transport upon such train daily laws of Tennessee, against the Southern also such employees of the Commercial PubRailway Company, a corporation chartered lishing Company as might be necessary to by the state of Virginia, engaged in operat- handle the same, and also to forward daily ing a line of railroad running between the on a freight train such newspapers to points cities of Memphis and Chattanooga, and the east of Huntsville; also to operate its own Commercial Publishing Company, a corpora- hand car or velocipede, at its own risk and tion with a charter issued under the author. expense, over its branch line to Somerville, ity of the state of Tennessee. The first and Tennessee, from the town of Moscow. (3) third of these corporations are engaged in It further agreed to refuse, so far as it the publication and circulation of two daily might lawfully do so without violating the newspapers, and have their situs in the city postal laws, rules, and regulations of the of Memphis, and the Southern Railway Com United States, to carry upon said train the pany is a common carrier of freight and newspaper or publication of any other pubpassengers between the termini mentioned. lishing company; but other newspapers or The controversy arises out of a refusal upon publications were to be transported upon the part of the railway company to receive any other train or trains of the railway comand carry upon its train No. 6, scheduled to pany except the one in question. (4) The leave Memphis for Huntsville, Alabama, contract further provided that the railway each morning at 4:30 o'clock, packages con company might carry on said train all such taining newspapers published by the com- passengers and their baggage, express matplainant company and put up for delivery ter, and other business usually accommoat certain stations along the line of said dated upon passenger trains, as might be ofrailroad; the refusal being based upon the fered, upon such rates or terms as it might ground, alleged by the railway company, prescribe, and should retain all earnings and that by the terms of a contract already ex- revenue derived from the operation of these isting between it and the Commercial Pub- trains. (5) It was also provided that the lishing Company it was prohibited from employees of the Commercial Publishing carrying any other newspaper than such as Company were to be under the exclusive was published by that company. The facts, control of the railway company, and amenaconceded in the pleadings or found in the ble to the orders and instructions of its conagreed stipulation of counsel in the record, ductor, and to the reasonable rules and reg. are:

ulations of the carrier company. In considThe defendant, the Commercial Publisheration of these undertakings on the part of ing Company, was on the 29th of November, the railway company, on its part the Com1901, and had been for years prior thereto, mercial Publishing Company in this conengaged in the publication daily of a news tract guaranteed to the railway company a paper called the “Commercial-Appeal,” of revenue from the operation of this train of wide circulation, and especially with many $125 for each one of the round trips consubscribers living along the line of the rail. templated by the contract, and agreed to road. At that time there was no early train pay the railway company the difference beservice out of Memphis by which newspapers tween the gross earnings of each of these could be carried to points between that trips and this sum. The Commercial Pubplace and Huntsville, a point on the road lishing Company further agreed to indemsituated in the state of Alabama. Conceiv- nify the railway company against all deing the idea that the value of its newspaper mands, suits, judgments, or sums of money would be largely enhanced by the establish- accruing to the publishing company or any ment of such train, it entered into a contract one or more of its employees and to protect with the Southern Railway Company, the it against any claims of the employees of terms of which, so far as it is necessary to the publishing company and the cost of destate them, may be summarized as follows: fending them, if suits were brought against (1) The railway company agreed to operate it. In other words, the publishing company a passenger train, consisting of an engine, agreed to be responsible for all costs, dea combination passenger and baggage car, mands, and claims growing out of the opand at least one passenger coach, between eration of the train and incurred in handling Memphis and Huntsville, leaving Memphis papers by and transporting employees of the about 4 A. M. daily, and reaching Huntsville publishing company. It also undertook to at or about 10:40 A. M., and on its return publish daily a schedule time-card of the trip departing from the latter place about railway company in the Commercial-Appeal, 7:20 A. M. and arriving at Memphis about as the same might be promulgated from 2:00 P. M. (2) It agreed to forward upon 'time to time, with all desired changes and

corrections therein as might from time to served to itself exclusively this right. The time be made, and also to publish 500 inches record discloses that, in order to avoid comof any advertising matter desired by the plications which possibly might result from railway company, all of which should be this refusal, the express company temporaridone at the expense of the Commercial Pub- ly withdrew its service from these particular lishing Company. The railway company, trains. Thus thwarted in all its efforts to however, agreed to grant a reasonable avail itself of the advantage of this daily amount of free transportation over its lines train, and there being none other by which to the publishing company. This contract it could reach its subscribers in the terri. took effect December 1, 1901, and was totory tributary to this railway, so as favorcontinue until Deceniber 31, 1902, with the ably to compete with the Commercial Apright of renewal for a further period of one peal newspaper, the present bill was filed. year. The train thus provided for was soon The theory of the bill is found in the thereafter put in operation by the Southern ninth clause thereof, which is in these words: Railway Company, and it is agreed in the "Complainant avers that in receiving and cause that it was one of its scheduled trains, transporting the papers of the aforesaid and was advertised to the public as such. Commercial Publishing Company on said It is also agreed that it was controlled ex. train, thus enabling it to deliver its papers clusively by that company, that all of the to its subscribers in that particular terrirevenue derived from its operation was its tory a short time after the publication property, and that it carried passengers and thereof, and in refusing to receive and transtheir baggage, the United States mail, ex port on the same terms the papers of compress matier, newspapers of the Commercial plainant, and thus depriving it of an opporPublishing Company, and all such other tunity to deliver its papers to its subfreight as is usually transported on pas- scribers with equal promptness, the defendsenger trains of a commercial railroad. ant railway company has been and still is,

On the 4th of May, 1902, the complainant granting daily to said Commercial Publishbegan in the city of Memphis the publica- ing Company an undue, unreasonable, and tion and issuance of a daily morning paper unlawful preference or advantage over comcalled the "Memphis Morning News," and plainant, and has been and still is, guilty of immediately secured several thousand sub- an unjust and illegal discrimination against scribers in the territory reached ivy this line complainant and in favor of the said Comof railroad. Desirous of reaching these sub- mercial Publishing Company. . . Comscribers at as early hour as possible, the plainant is advised, and so charges, that the complainant demanded the right to ship as said contract so entered into by and between freight its packages of newspapers, properly defendant and the said Commercial Publishdirected to its several agents at the various ing Company, in so far as it attempts to stations along the line of the railroad where give to the said Commercial Publishing the train was scheduled to stop, and ten- Company a monopoly of transportation dered the usual charges on the same. This of a certain kind of traffic, to wit, newsdemand, however, was refused by the rail. papers, causes the defendant Southern Rail. way company, upon the ground that it was way Company to violate its duty as a comrestrained from such carriage by the terms mon carrier by refusing to receive and of its contract with the Commercial Publish- transport on said trains the newspapers or ing Company. Upon this refusal the com- publications published by any other publish: plainant then tendered to the railroad com- er than said Commercial Publishing Company a bond, with proper security, in con- pany, is absolutely prohibited, and unlawsideration of being allowed to ship its pack-ful.” It is also alleged that the contract ages of newspapers as freight on this train, was violative of the 17th section of an act of by which it undertook to indemnify it the general assembly of the state of Ten. against all loss resulting from the operation nessee, passed March 24, 1897, and apof the train up to $125 for each round trip proved April 7, 1897, which is in these thereof; complainant thereby seeking, so far words: “Be it enacted, that it shall be unas the railway was concerned, to place itself lawful for any corporation to make or give in the same condition of liability as was the any undue or unreasonable preference or Commercial Publishing Company. This advantage to any particular description of tender was also declined. Thereupon the traffic, or to subject any particular person, complainant offered for transportation, with company, firm, corporation, or locality, or charges prepaid, its packages of newspapers any particular description of traffic to any to the Southern Express Company, which undue or unreasonable prejudice or disadwas shipping express matter on this train; vantage.” Acts 1897, p. 120, chap. 10. The but it also declined to receive or transport prayer of the bill was, in effect, that the these packages, assigning as a reason for rights of the complainant in this regard be the refusal that the railway company had re- ascertained and established, that an injunc

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tion be awarded restraining the defendant | ant one half of all such sums. This cross the Southern Railway Company as a com- bill was dismissed on demurrer. mon carrier from discriminating in favor Upon the hearing of the issue made by the of the Commercial Publishing Company and original bill and answers thereto, a decree against the complainant in the transporta- was entered adjudicating all the questions tion of packages of their respective news involved in favor of the Morning News. Pub.. papers upon this train, and for a mandatory lishing Company. From the decree dismissinjunction requiring the railway companying its cross bill, and from the final decree, to accord to it the same privileges as were the Commercial Publishing Company has apgranted the publishing company in the mat. pealed, and now makes the following assignter of transportation, upon the tender of ment of errors, to wit: freight charges and guaranties against loss "(1) The court erred in holding that the such as had been executed by the Commer- contract with the Commercial Publishing cial Publishing Company; and upon final Company was made by the Southern Railbearing it was asked that the injunction be way Company as a common carrier, and made perr nal and general relief be that it was invalid and illegal, in that it granted.

undertook to grant exclusive rights and privTo this bill answers were filed by the two ileges to the Commercial Publishing Comdefendants, in which it was insisted that pany, and in holding that the Memphis under the conditions existing at the time of News Publishing Company was entitled to the making this contract it was legal; that the same rights as were conferred upthere was at that time no early train service on the Commercial Publishing Company by out of Memphis on which newspapers could the said contract in transporting its newsbe carried; that the railway company did papers and employees on this train. not believe this train would be self-support- “(2) The court erred in holding that the ing, and it was only at the solicitation of the contract between the Southern Railway Commercial Publishing Company, and upon Company and the Commercial Publishing its guaranty that it should earn at least Company was not valid. $125 for each round trip, that the train was “(3) The court erred in holding that the put on; that in the early history of its op- contract between the Southern Railway eration it was not self-sustaining, but en- Company and the Commercial Publishing tailed a loss on the Commercial Publishing Company created a monopoly, that it unCompany under its guaranty of about $7,000 justly and illegally discriminated against in money paid by it to the railway com- the Memphis News Publishing Company, pany. Under these facts it was insisted that and was invalid as against said company. this train was a chartered train, on which “(4) The court erred in holding that the alone the Commercial Publishing Company Memphis News Publishing Company was enwas entitled to carry its newspapers, and titled to transport its papers and employees that the railway company, in complying on this train, and to enjoy equal privileges with this contract hereinbefore set out, was and rights with the Commercial Publishing not a common carrier, and was not guilty Company thereon, without paying to it anyof any unjust, unlawful, or discriminating thing therefor. conduct against the complainant.

(5) The court erred in not holding that, With its answer the Commercial Publish: before the Memphis News Publishing Coming Company filed a cross bill, in which, pany could conduct its business and transafter repeating many of the allegations of port its newspapers and agents on this train, its answer, it insists, among other things, and avail itself of all the rights and privthat, if the Memphis News Publishing Com- ileges accorded to the Commercial Publishpany should, by decree of the court, be let ing Company on said train under its con

tract with the Southern Railway Company, into an equal enjoyment of this train service, for the carriage of its packages of news

the said Memphis News Publishing Compapers, then it should only be on the condi- pany, should be required to pay to the Comtions that it reimburse the cross-complain the sums of money expended by it in inaug.

mercial Publishing Company one half of all ant to the extent of one half the money paid urating and maintaining the operation of out by costs expended by it in the establish the said train, and in advertisements and ment of this service, and, in addition, one other expenditures, which amounted to a half the value of the advertisements which, very large sum of money.” under the contract, it had done for the rail- The first three of these assignments may way company. To this end the chancellor well be treated together, as raising the queswas asked that, if it should be held the tion whether the Southern Railway ('omNews Publishing Company was entitled to pany, in the matter of the transportation of an equal advantage in this service, then it the newspapers of the Commercial Publishshould be decreed to pay to cross-complain-'ing Company, is a common carrier; for, if

so, then it cannot, at common law or under | its service. Impressed, as it is, by its grant the statute, discriminate against any other of franchises, with a trust to the public, person who in like condition, with a tender this trust can only be discharged by extendof all reasonable charges, offers its news- ing equal facilities to each member constipapers to be transported as freight over its tuting the public. It fails of its duty, line of road. The criterion by which it is therefore, when, discriminating between in. ordinarily determined whether one is a com- dividuals in like condition, it gives one an mon carrier is that "he has held himself out, advantage of the carriage of his person or or has advertised himself in his dealings or property which it refuses to another, and it course of business with the public, as being follows that any contract made by it, by ready and willing for hire to carry particu- which one or more members of a class are lar classes of goods for all those who may fostered at the expense of or to the detridesire the transportation of such goods be- ment of others of the same class, who de tween the places between which he professes mand like service, is unenforceable. Grantin this manner his readiness and willing ing that goods not dangerous in their nature ness to carry. If he has done so, he is, of and not unfit for shipment are offered at course, to be regarded as a common carrier; a proper place and time, and that the cost but, if not, he will be treated as a private of carriage is tendered, and the railroad has carrier for hire.” Hutchinson, Carr. § 48. facilities for shipment, then it must accept This, however, it has been held, is not a uni- and transport them. In doing this it "can versal test. There are cases, exceptional, it show no favor, nor make distinctions which is true, where a party has had imposed upon will give one employer an advantage over him the character of a common carrier, another, either in the time or order of shipthough it may be he has not given the public ment, or in the distance of the carriage, or to understand that this was his profession, in the convenience or accommodations which but has carried only in occasional or par. may be afforded.” Hutchinson, Carr. & 297 ; ticular instances, but in this has received New England Exp. Co. v. Maine C. R. Co. 57 hire for his service. In Gordon v. Hutchin- Me. 188, 2 Am. Rep. 31; Messenger v. Pennson, 1 Watts & S. 285, 37 Am. Dec. 472, and sylvania R. Co. 36 N. J. L. 407, 13 Am. Rep. Moss v. Bettis, 4 Heisk. 661, 13 Am. Rep. 1, 457; Union P. R. Co. v. Goodridge, 149 U. it was ruled that such a party pro hac vice S. 680, 37 L. ed. 896; 13 Sup. Ct. Rep. 970. assumed the responsibilites of a common These general principles are conceded by carrier.

the defendants to be sound, but it is inWhatever doubt may have been thrown by sisted they do not control the present case. text writers on the wisdom of extending the It is admitted-or it is true, whether adcommon-law definition or rule so as to em- mitted or not that the railway company, brace such exceptional cases, there can be as to the train in question, was a common none that commercial railroad companies are carrier of passengers and of mail and exby their very nature and organic character press; but it is contended that it was, by common carriers. Recognizing them as pub- reason of its contract with the Commercial lic utilities, as well as private enterprises, Publishing Company, a private carrier of there has been conferred upon them exten- newspapers, and therefore was under no obsive rights and franchises, among these be- ligations to admit the newspapers of the ing that of the right to invoke the power of complainant on its train. It is true "a comeminent domain; but at the same time, mon carrier may : . become a private whether by statute or upon the principles of carrier or bailee for hire, when as a matter the common law, they have had imposed up- of accommodation or special engagement he on them duties they cannot avoid, one of undertakes to carry something which it is which is that they shall serve the public not his business to carry.” Hutchinson, without unjust discrimination. Not only Carr.. § 44. For example, if a carrier of prohave they been fostered by the government, duce, running a truck boat, should be rebut, by reason of aggregation of capital and quested to carry a keg of silver or a load of the great facilities which they possess for furniture, he might justly refuse to receive the transportation of all the commodities such freight, except hy such an agreement of commerce, they have practically monopo- as he might choose to make. “But when a lized the land carriage of the country. This carrier has a regularly established business being so, it is just and proper that they for carrying all or certain articles, and esshould be held to the strict discharge of pecially if that carrier be a corporation their common-law and statutory duties. created for the purpose of the carrying Hutchinson, Carr. § 67. One of the duties trade, and the carriage of the articles is emimposed upon a railroad as a common car- braced within the scope of its chartered rier is that it shall deal fairly and impar- powers, it is a common carrier, and a special tially with all who seek, as passengers or contract about its responsibility does not shippers of freight, to avail themselves of' devest it of the character.” New York C.

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