Sargent v. Boston & Lowell Railroad , 115 Mass. 416 ( 1874 )

Wells, J.

This action is founded upon the supposed obligation of the defendants, as common carriers, to provide facilities and accommodations to enable the plaintiff to transact his business as expressman over and upon the railroads of the defendants. For this purpose he requires that his merchandise and parcels shall be transported, not as freight under the general charge and control of the managers and servants of the railroads, but in their passenger trains and under the exclusive control and supervision of the plaintiff and his agents: who also require special accommodations and facilities in the cars and stations of the defendants, for the receipt and distribution of their packages. It is not alleged that there is any contract for such service. The contract which once existed, and the course of business in previous years, are recited for the purpose of showing the manner in which the business of the plaintiff had grown up and the good will connected therewith had been gained, as bearing upon the damages caused by withdrawing from him the means for its further prosecution. The complaint is, that under the guise of a proposal to sell or let the privilege which the plaintiff and his associates had before enjoyed, to be used exclusively by the one party who would pay most for it, the defendants had m fact denied it to all, and assumed the conduct of the business of express carriage and parcel delivery by its own agents and servants.

The allegation of the second count, that the defendants had refused to receive and transport articles of freight for the plaintiff in the usual modes of transportation of freight, is abandoned.

We know of no principle or rule of law which imposes upon a railroad corporation the obligation to perform service in the transportation of freight, otherwise than as a carrier of goods for the owner in accordance with their consignment; or which forbids it from establishing uniform regulations applicable alike to all persons composing the public to whom the service is due. We are pointed to no provision in the charters of these defendants, or in the general laws relating to railroads, which subjects the use of their roads to the convenience or requirements of other carriers than the corporations authorized to construct and operate them, and such other railroads as may have been authorized to enter upon or unite with and use them. Gen. Sts. e. 63, § 117.

All the provisions of law for the regulation of railroads contemplate the unlimited exercise by the corporation of the rights and duties of general carriers of goods and passengers; and this involves the right to adopt any and all reasonable rules and regulations to direct the mode in which their business shall be transacted. They cannot be required to convert their passenger trains to the purposes of freight at the discretion of parties not responsible for the management of the trains; nor can they be compelled to admit others than their own agents and servants upon their trains or to their stations for the custody, care, receipt and delivery of freight or parcels.

Whether the defendants, in establishing and conducting the business of their own “ parcel department ” undertake to collect and distribute goods and parcels in a manner which involves acts ultra vires, does not affect the question; nor, if they do so, does it afford the plaintiff any ground of action. His claim is for their refusal to furnish to him certain claimed facilities upon the roads,. That refusal does not involve any acts or exercise of powers ultra vire».

Nor does the fact that for many years the defendants did afford certain facilities to separate and independent carriers, as express companies, confer any right upon them or impose any obligation, either of contract or duty, upon the defendants to continue the same unchanged.

Whatever may have been contemplated, when the charters for these roads were granted, as to the parties by whom and the mode in which the tracks would be used for the running of trains or carriages upon them, and the manner in which tolls would be received, it cannot be doubted that since the St. of 1845, c. 191, the direction of the use of the roads, and the control of all carriages upon them, are exclusively in the directors of the corporations owning them. It is a franchise of a public nature, it is true; and the directors are bound to conduct its exercise with a view to public convenience. But they, and not the individual members of the public, are intrusted with the discretion, authority and duty, in the first instance, to determine what the public convenience requires. They are subject, in this respect,- to the oversight and regulation of the legislature. It is only when they disregard such regulations as are provided by law, or required by a reasonable consideration of the public convenience and the purposes of their charter, that individuals are entitled to complain.

The plaintiff’s counsel argues that it is unreasonable, and a violation of the legal obligations of the defendants, to make any discrimination between individuals; or to refuse to the plaintiff privileges which they grant to any other party; and therefore that the arrangement of the defendants with another express company, by which the plaintiff was excluded from similar facilities, was a violation of his legal rights. Such does not appear to be the rule of the common law as held in Massachusetts. Fitchburg Railroad v. Gage, 12 Gray, 393. If such a rule has been established by the St. of 1867, c. 339, the plaintiff’s case is not maintained upon that ground: 1st, because the contracts with other parties complained of were made before the statute, to wit, in December, 1865, for one year from January 1, 1866, and renewed only for one year from January 1, 1867, — and although the report finds that during the time from January 1, 1866, to the date of the writ, November 15, 1871, the plaintiff “ has repeatedly demanded to be allowed to carry on his express business over said roads as formerly,” it does not appear that any such demand was made after that statute took effect and before the arrangement with those other parties expired. 2d, because the declaration does not charge any such wrong. The allegation is that the parties with whom the supposed contracts were made “ were and are only the paid agents of said defendant corporations, and not the proprietors of said express privileges, and that they have continued as such, and such only, to the date of this writ; and that the profits accruing from said fraudulent arrangement are the property of the said defendant corporations.” The whole scope and drift of the declaration is to charge the defendants with “ conspiring and illegally contriving,” by means of pretended contracts with other parties, to deprive the plaintiff of the profits of his express business in order to appropriate the same to their own use. The gravamen of his complaint then is not that the defendants have refused to give him “ equal terms, facilities and accommodations ” with other persons and companies, but simply that they have refused to give him such facilities as he requires, for his special business as carrier, over their roads. His claim must stand upon the right to demand such facilities independently of any enjoyment of like facilities by others. As an absolute right this cannot be maintained.

The plaintiff contends that the “ parcel department ” which the defendants have established, to the exclusion of the plaintiff and others desiring to make like arrangements, is in contravention of the equality required by the statute, as much as if it were conducted in the interest of a third party. But we think the statute was intended to apply to the dealings of the railroad corporation with the public, and not to the mode in which it should arrange and conduct the different branches of its business as carrier. All that the plaintiff can demand is that, in each of those branches, he shall have equal terms with other persons and companies.

The report finds that when the plaintiff demanded to be allowed to carry on his express business over said roads as formerly, “ there was sufficient accommodation in the defendants’ baggage cars for the plaintiff as well as the other occupants of said cars.” But there was no refusal to carry the plaintiff and his freight upon the same terms and in the same manner as the defendants per» formed like service for other persons and companies. It was a refusal only to permit the plaintiff to occupy a portion of the space in the cars and stations in the same manner and for the same purposes as the defendants themselves used and occupied them, paying therefor, and for the required transportation, some special rate which could not well be adjusted otherwise than by special agreement.

The plaintiff fails to make out a legal cause of action, and the

Judgment must be for the defendants.