Hedding v. Gallagher

The demurrer raises the question of the extent of the right of one who has undertaken a public business to make contracts which tend to infringe public rights. Those who engage in such business thereby surrender certain rights which belong to private persons. The common carrier is not permitted to carry for A and refuse to carry for B under like circumstances. The innkeeper must, to the extent of his accommodations, entertain all who apply in a proper way. By virtue of their employment, they have impliedly agreed to do these things for all. Their services are public property. Hence it is that, when a question arises which involves their rights or liabilities as to matters touching their duty to the public, the ordinary standards of the rights of private individuals to use their own as they will, or to contract or refuse to contract at their pleasure, afford little or no aid.

If one has entered upon such public employment, he must treat alike all who seek to employ his public services. It is equally true that he must accord like treatment to all who, engaging in another and connecting branch of public service, offer their services to those of the public who are temporarily upon his premises. Markham v. Brown, 8 N.H. 523. In that case it was decided that an innkeeper, at a place from which travelers habitually continued their journeys, could not discriminate between rival stage-drivers as to the privilege of soliciting the patronage of his guests upon his premises. So here, the solicitation of the patronage of incoming passengers, for the continuation of their journeys, is a privilege to be equally enjoyed by all. The attempt to distinguish the cases upon the ground that travelers commonly journeyed from Hanover in public conveyances, while their baggage is usually carried from the Manchester station in some other way, is conclusively answered by the fact that the carriage of baggage by public conveyance is so extensive that the plaintiff agreed to pay one hundred dollars a year for the mere privilege of soliciting such business upon the railroad's premises.

It is also said that "a traveler arriving at his destination upon a railway ceases to be a traveler," and that for this reason Markham v. Brown does not apply; and, further, that a railway station is not a hotel, where the traveler may stop and claim the rights of a guest. If both propositions were sound, his situation would be a perplexing one. He could not stop and consider himself a guest; and if he went on he would not be a traveler and could claim none of a traveler's rights. The traveler doubtless ceases to be a passenger upon the railroad when he leaves its premises; but how he can cease to travel before he reaches his destination beyond those premises is not readily perceived. And if he continues to rightfully travel, he would seem to be justified in claiming a traveler's rights. His rights at the station do not terminate the instant he alights from the train. He also has the right to a reasonable time and way to leave the station, and to reasonable facilities for the reception of his baggage by whoever is to transport it further. The carrier's duties relating to a passenger's baggage do not necessarily terminate at the same time with those as to his person.

The carriage of baggage is a part of transportation. It is to be expected that when travelers arrive at a railway station they will have more or less baggage to be carried from there. It is admitted that this is so far a part of the reasonable and customary mode of travel that a person who has a previous contract with the passenger has the right to come upon the station grounds to await the arrival of his patron. The case differs vitally from the so-called analogous ones of keepers of restaurants and vendors of papers. A previous contract by a hotel-keeper to serve dinner to an incoming passenger in the station waiting-room would not confer upon the hotel-keeper a right to set a dining-table there in anticipation of the arrival of his guest. Refreshment and entertainment are mere conveniences which the carrier may, if he chooses, provide for the passenger, but it is no part of his duty to do so. In the matter of the further transportation of baggage, he does owe a duty to the traveler. As there is this fundamental distinction between the cases, it is not necessary to consider the result of a decision of this case in an attempted application of it to cases to which the reasoning cannot apply.

The right to enter upon the carrier's premises under a previous contract with a passenger being admitted, the right of those who seek such contract to reasonable and equal facilities cannot be denied upon any satisfactory grounds. It is argued (as in Old Colony Railroad v. Tripp, 147 Mass. 35) that the defendants had no right to go upon the premises, and therefore they cannot complain because others are admitted while they are shut out. It is true that no one has the right to go upon the property of a railroad corporation merely because it is railroad property. But this rule applies only so far as the corporation uses its property for private purposes, or in a public use which does not require or allow the admission of the public thereto. When this limit is passed, and the corporation puts its property to public uses and admits thereto a part of the public, by what rule of law is it allowed to admit one and exclude another? "Public agents, taking private property for the public use, are bound to treat all alike (that is, without unreasonable preference), so far as the property is used, or its use is rightfully demanded by the public for whose use it was taken." McDuffee v. Railroad,52 N.H. 430, 454. The carriage of baggage is a right of the public. The work to be done is a part of the reasonable and necessary conduct of the public business, of which the railroad was chartered to carry on another and connecting part. It cannot be changed to a private undertaking by any form of words used in making an illegal agreement, nor by assertions (contrary to the fact) that the journey ends when the traveler and his baggage are left at the station.

The duty to provide equal facilities does not end with the mere act of carriage. It extends to all things which are incident thereto and a substantial part thereof. The carriage of baggage from the station, being in the reasonable and frequently necessary furtherance of a journey partly performed upon the cars, comes within this rule. There seems to be no sound reason for a different rule as to carriers of baggage from a railway station from that which applies to carriers of passengers from an inn. Markham v. Brown, 8 N.H. 523. But it is said that this case does not apply, for the reason, in addition to those before alluded to, that a railroad may acquire its property by the exercise of the right of eminent domain, while an innkeeper has no such power. The grant of this extraordinary right cannot lessen the public obligations of the grantee. On the contrary, it has always been considered a cogent reason for holding the grantee to a strict performance of his public duty. The right can be conferred only upon those who perform such a duty. There is no substantial distinction between Markham v. Brown and this case. The question in each is, whether the work of a public carrier is so connected with a public right that those who have undertaken another public duty, intimately connected therewith, must treat all such carriers alike. A common carrier, who owes the duty to furnish to passengers for Manchester reasonable and equal facilities at the station there, is bound to accord equal facilities to all who come to that station for the purpose of carrying passengers or baggage beyond its line of road. The rights of the traveling public being involved, all that the road can do is to make reasonable regulations as to how these rights shall be furthered by baggage-carriers. It cannot discriminate between them.

The amendment to the bill alleges that the object of this agreement is to regulate the business so that it may be done in an orderly manner. If this is the object, it must be sought by regulation, and not by the arbitrary admission of one and exclusion of all others. Regulation is not discrimination; and a contract, which so far discriminates that the favored party pays a substantial sum for the privileges conferred, cannot be considered to be a regulation in any fair sense of that term. If the road had the right to make an exclusive contract, it is immaterial what its object was in so doing. If, as was said in Old Colony Railroad v. Tripp, 147 Mass. 35, the defendants had no rights in the premises, and the only rights involved were those of the road, there would be no occasion to inquire into the motives of the parties or the reasonableness of the contract. It would be entirely their private business. If it is the road's private business, it would seem to follow that an exclusive contract might be made whereby the road exacted such a sum from the privileged carrier that he in turn must exact unreasonable prices for his services to passengers. When this course of procedure has been carried far enough, it amounts to a denial of the right of the public to have baggage carried in a reasonable way; and, unless a public right is involved, there is no power to prevent it.

It is argued that the right to be preserved is that of the passenger, and that these defendants take nothing by virtue of it. Even if this should be conceded to be true, it would leave the plaintiff in no better position. He sets up an agreement which he says is a legal contract, and he asks a court of equity to protect him in the enjoyment of it. But if it appears that the agreement infringes a public right which the court is bound to preserve, it will not be recognized as a foundation upon which to base a decree. Indianapolis etc. Co. v. Dohn, 153 Ind. 10.

It is said that the right of railroads to make contracts regulating their respective charges has been recognized in this state (M. L. Railroad v. Railroad, 66 N.H. 100), and that therefore this agreement is valid. But the contracts there referred to are those which directly concern the road's own business and that of its competitors. The reason for sanctioning such an agreement is that it protects stockholders from the suicidal policy of rate-cutting by rival lines. No such reason exists here, and no case has been cited wherein it has been held in this state that a public carrier may create and protect a monopoly which does not directly concern his own business interests. "There would seem to be great doubt whether, upon any fair construction of general or special statutes, a common carrier, incorporated in this country, could be held to have received from the legislature the power of making unreasonable discriminations and creating monopolies, unless such power were conferred in very explicit terms." McDuffee v. Railroad, 52 N.H. 430, 454, 455.

The contention that this was merely a letting of the use of a portion of the road's real estate is also without merit. The use of the road's public rooms and platforms has been given over to public purposes. It is not the fact that the station is railroad property that gives value to the agreement here set up, but the fact that the traveling public there have need of the services of connecting carriers. And the public have the right to demand that this need shall be supplied, or, in any event, that the road shall not prevent or hinder such a result. The road cannot derive revenue from this situation by the admission of one such carrier and the exclusion of all others, under the guise that it is a mere letting of the use of its property, or the claim that neither the plaintiff nor defendants could go there as of right. The property consists of the use. The use, so far as travel and its incidents are concerned, had passed to the public, subject only to reasonable regulation. If regulations are needed, they may be made and enforced (Markham v. Brown, supra); but that is the extent of the right of the road to participate in the control of the business of connecting carriers, whose services it is the passengers' right to receive in a reasonable way.

The cases from other jurisdictions upholding agreements like the one under consideration are in conflict with Markham v. Brown, supra, and their reasoning is not satisfactory. The one most relied upon (Old Colony Railroad v. Tripp, 147 Mass. 35) was decided by a bare majority of the court; and its soundness has been denied, not only by three of the seven judges who in the case, but also in nearly every jurisdiction where it has since been considered. Kalamazoo etc. Co. v. Sootsina, 84 Mich. 194; Montana etc. Co. v. Langlois, 9 Mont. 419; McConnell v. Pedigo, 92 Ky. 465; State v. Reed, 76 Miss. 211; Fetter Car. Pass., s. 245; 33 Am. Law Rev. 453.

This conclusion renders it unnecessary to consider whether the statute (P. S., c. 160, s. 1) is anything more than a declaration of the common law upon this subject. McDuffee v. Railroad, supra.

Demurrer sustained.

All concurred.