State v. Reed , 76 Miss. 211 ( 1898 )

Wooes, C. J.,

delivered the opinion of the court.

Joseph Reed, the appellee, was arrested upon affidavit charging him with trespassing upon private premises belonging to the Alabama & Vicksburg Railway Company, and was, before the justice of the peace, tried and convicted. He appealed from that conviction to the circuit court of Warren county, and was there tried upon an agreed statement of facts, and was, by the judgment of that court, acquitted of the charge and discharged. From this judgment of the circuit court the state prosecutes this appeal.

From the agreed statement of facts it appears that the depot of the railway company in the city of Vicksburg is surrounded by a fence, and that there is a “considerable inclosure of grounds adjacent thereto.” It further appears, also, that “ within said inclosxire around the depot is the most convenient and best place for hackmen and busmen to discharge, solicit and receive passengers departing and arriving on the passenger trains of said company, and that any hackman or busman who had the exclusive privilege of entering this inclosure and soliciting passengers there, would have an advantage over hackmen or busmen excluded therefrom, so far as passengers arriving-on said trains was concerned. ’ ’

These facts, moreover, appear in the agreed statement, viz.: that the railway company granted, in June 1894, the exclusive privilege of entering said inclosure and soliciting passengers therein to said Peine, and that Peine was a person engaged in the hack, bus and general transfer business in Vicksburg, and that, after said exclusive grant to Peine, all other hackmcn and busmen were excluded from entering said inclosure for the purpose of soliciting passengers therein, and were notified not to eater said inclosure for that purpose, under threat of being-prosecuted as trespassers; that 'the appellee, Reed, after having been notified not to enter said inclosure for such purpose, drove his hack into the inclosure, and while therein solicited and received a passenger, and then drove away, and that in doing this he created no disturbance or disorder; that Cherry street is about 150 feet from the depot, and that from the depot to Cherry street, where hacks, other than Peine’s, can stand, there is a good- sidewalk. In a word, Peine’s hacks have the exclusive privilege of entering the inclosure surrounding the depot and soliciting incoming passengers, while all other hacks aro excluded from the inclosure and must stand outside and about 150 feet from the depot, and in an open street.

It is admitted in the agreed statement any hackman, or bus-man, having the exclusive privilege of entering said inclosure and soliciting passengers there, would, to that extent, have an advantage over hackmen or busmen excluded therefrom, so far as concerned incoming passengers.

The agreed statement of facts distinctly states the question to be decided by us, and to that we must confine ourselves. Says the agreed statement: “It is contended that the said company had the right to make the said contract, and thus exclude the defendant and others than the said Peine from the said inclosure, and to grant to the said Peine the exclusive right to enter the said inclosure for the purpose of there soliciting passengers for his hack line. Defendant controverts this position, in so far as it is claimed that the said company can grant the exclusive right to any particular person to enter the said inclosure with his hack and there solicit passengers, and contends that the railway company must exclude all, or admit all into the said inclosure, so long as they conduct themselves in an orderly and peaceable manner. ’ ’

The single issue is thus sharply defined, viz.: Has a railway the right to confer upon one hackman the exclusive privilege of entering with his hacks its inclosed station-house grounds, and of soliciting incoming passengers, and to exclude all others from the inclosure, such privilege conferring advantages upon the favored hackman and discriminating against all other hackmen by forbidding them to enter the inclosure to solicit passengers, and by placing the hacks of those excluded one hundred and fifty feet from the depot, and in an open street? The question has never before been presented in our courts, but it is by no means a new one, and has been passed upon in other jurisdictions.

Quite independently of constitutional or statutory provisions, it seems to be the prevailing doctrine in the United States that a railroad company may make any necessary and reasonable rules for the government of persons using its depots and grounds; yet it cannot arbitrarily, for its own pleasure or profit, admit to its platforms, or depot grounds, one carrier of passengers or merchandise, and, at the same time, exclude all others.

The question is one that effects not only the excluded hack-men: it affects the interest of the public. The upholding of the grant of this exclusive privilege would prevent competition between rival carriers of passengers, create a monopoly in the privileged hackmen, and might produce inconvenience and loss to persons traveling over the railroad, or those having freights transported over it, in cases of exclusion of drays and wagons from its grounds other than those owned by the person having the exclusive right to enter the railroad’s depot grounds. To concede the right claimed by the railway in the present case. would be, in effect, to confer upon the railway company the control of the transportation of passengers beyond its own lines, and, in the end, to create a monopoly of such business, not granted by its charter, and against the interests of the public. These are the views ably urged in Kalamazoo Hack Company v. Sootsma, 84 Mich., 194; Montana Union Ry. Co. v. Manglois, 9 Mont., 419; Cravens et al. v. Rodgers, 101 Mo., 247, and McConnell v. Pedigo, 92 Ky., 465. These are tne views held, too, by the three dissenting judges in the case of Old Colony Railroad Co. v. Tripp, 147 Mass., 35-41. The majority of the judges in that case held that a railroad might grant to one an exclusive right to solicit the patronage of incoming passengers, but this is the only American case making that distinct holding, and that opinion was delivered by four judges, the other three members of the-court vigorously dissenting, and with better show of reasoning, in our judgment. The cases of Barney v. Oyster Bay & Huntington Steamboat Co., 67 N. Y., 31; Fluker v. Georgia Railroad & Banking Co., 81 Ga., 461, and Cole v. Rowen, 88 Mich., 219, do not present the precise point involved in the case before us. They are all decisions of other questions and can be readily distinguished from the case in hand.-

Counsel for appellant think that in Cole v. Rowen, 88 Mich., 219, the supreme court of Michigan has swung away from the doctrine announced in the earlier case of Kalamazoo Hack Co. v. Sootsma, 84 Mich., 194. But that very able court did not so think, and was careful to disabuse the mind of counsel, who-seems to have the notion which counsel here puts forward, and the court clearly distinguished the two cases.

We are of opinion that the railway had no right to exclude Reed, the appellee, from its depot and inclosed grounds, on the facts appearing in the agreed statement on which the case is submitted to us, and hence that the action of the court below in discharging Joseph Reed was correct. Affirmed..