a carrier may require that packages containing fragile articles or contained in glass must be plainly marked to indicate contents. And where the shipper refused to state, as required by tariff, the market value of shipment of stocks and bonds, the carrier was under no obligation to transport such securities, and it was its duty to refuse the shipment. § 204. Carriage of live stock. Another prominent matter in the topic under discussion is the carriage of live stock. The carriage of live stock was not ordinarily within the profession of the early carriers as they had no vehicles large enough for such carriage. Therefore when the railways came in, it was doubted in England whether their carriage could be obligatory unless express undertaking with respect to them could be found; and in one American jurisdiction, Michigan, it was decided that this special profession was necessary. But this is not the sort of reasoning that appeals to American courts, and it is now almost universally agreed that live stock constitutes one of the many classes of goods which the modern railway undertakes to carry for the public generally and that the railway is therefore a common carrier of live stock in its freight trains. This was strongly stated in an early Kansas case,52 in which the usual functions of the modern railway are thus described: "It can hardly be supposed that they were created for the mere purpose of taking the place of pack-horses, or clumsy wagons, often drawn by oxen or such other primitive means of carriage amd transportation as were used in England prior to 1607. Railroads are undoubtedly created for the purpose of carrying all kinds of property which the common law would have permitted to be carried by common carriers in any mode, either by 52 The quotation which follows is from Kansas Pacific Ry. Co. v. Nichols, 9 Kans. 235, 12 Am. Rep. 494. land or water, which probably includes all kinds of personal property.5 53 § 205. Carriage of rolling stock. This general principle that the railways generally must accept for transportation every kind of freight in every form that is appropriate for transportation is well brought out by the case of rolling stock offered for transportation as freight. As is said by a Canadian court 54 such transportation comes within the general profession of the railroads which "hold themselves out as carriers of all descriptions of property capable of being reasonably and conveniently transported over rails by a locomotive engine, to the extent to which they have the means and accommodations." Although the Commission realizes that carriers may refuse to carry certain classes of private equipment, it holds that if they do so they may not discriminate between private cars owned by different persons.55 And, indeed, it has little doubt as to its power to regulate rates upon the movement of cars offered to transportation. § 206. Profession limited to car service. To go to the other extreme of this problem, there is the railway service which the terminal railway provides. These railways not only undertake the carriage of freight exclusively, but often will only take that when offered in loaded cars. The profession of such a road, indeed, is exclusively to transfer loaded cars to and from railway systems. In recognizing this situation the Illinois court 56 said: "Nor do we see anything in the objection that the business of the company is to be limited to the carrying of freight offered in cars only. Every common carrier has the right to determine what particular line of business 53 See Interstate Stockyards Co. v. Indianapolis Ry. Co., 99 Fed. 472. 54 Greene v. St. John & M. Ry., 22 N. B. (P. & T.) 252. 55 Chappelle v. Louisville & N. R. R., 19 I. C. C. 456. 56 Wiggins Ferry Co. v. East St. Louis Union Ry., 107 Ill. 450, 458. he will follow. If he elects to carry freight only, he will be under no obligations to carry passengers, and vice versa. So if he holds himself out as a carrier of a particular kind of freight, or of freight generally, prepared for carriage in a particular way, he will only be bound to carry to the extent and in the manner proposed. He will nevertheless be a common carrier." And it has recently been held in the federal courts, in dealing with the extent of the jurisdiction of the Commission under the Act, that loaded cars, as well as other property, may be the matter of carriage by a common carrier.57 § 207. Special trains. Where cars loaded with freight are to be hauled in a special train at special times, not on the regular schedule, and by a special arrangement, the railroad company in so hauling the cars is not a common carrier. This arrangement is commonly made between the owner of a circus and the railroad which transmits the establishment from one place of exhibition to another. The circus is transmitted in a special train, made up exclusively of the circus cars, on a special schedule of time, and for a price less than the regular rates; and the owner furnishes men to load and unload. For such transportation the railroad is not responsible as a common carrier. 58 "The trains were to be made up entirely of cars which belonged to plaintiff and which the defendant neither loaded nor prepared, and into the arrangement of which, and the stowing and placing of their contents defendant had no power to meddle. The cars contained horses which were entirely under control of plaintiff, and which under any circumstances may involve special risks. They contained an elephant, which might very easily involve difficulty, 57 U. S. v. Union S. & T. Co., 192 Fed. 330. 58 The quotation is from Coup v. Wabash, St. L. & P. Ry., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374. especially in case of accident. They contained wild animals which defendant's men could not handle, and which might also become troublesome and dangerous. It has always been held that it is not incumbent on carriers to assume the burden and risks of such carriage." 59 § 208. Forwarders offering consolidated shipments. The Commission has long maintained that the Act does not justify the classification of shippers with regard to their interest in property shipped. A carrier, it has said, may not properly look beyond the transportation to the ownership of the shipment as a basis for determining the applicability of its rates.60 Its doctrine has been that where shipments belonging to, and ultimately intended for, various consignees have been united in a bulked shipment from one consignor to one consignee, it is unlawful for the carrier to refuse to apply the rate applicable upon the shipment as a whole and to insist upon making a separate charge upon the package or packages intended for each ultimate consignee.61 However as a matter of the machinery of transportation, naming one consignee for consolidated shipments may be required.62 And the Commission has approved various rules applying to rates on shipments consolidated or bulked by agents.63 The federal courts at one time had apparently taken a different attitude, conceding that the carrier had a right to protect itself from competitors in its own line, thus utilizing its facilities.64 But it has recently been settled by the Su 59 Clough v. Grand Trunk Ry. Co., 155 Fed. 81, 85 C. C. A. 1, 11 L. R. A. (N. S.) 446. In one proceeding reparation was denied, since the shipment in question was too long to be loaded through the side door of a box car. Jones v. Southern Ry., 18 I. C. C. 150. 60 California Com. Ass'n v. W., F. & Co., 14 I. C. C. 422. See also Ex port Shipping Co. v. W. R. R., 14 I. C. C. 437. 61 California Com. Asso. v. W., F. & Co., 21 I. C. C. R. 300. 62 Davies v. I. C. R. R., 19 I. C. C. R. 3 (4) 6822, 918. 63 Western Classification Case, 25 I. C. C. 442. 64 Lundquist v. Grand Trunk W. Ry., 121 Fed. 915. See also Johnson v. Dominion Exp. Co., 28 Ont. Rep. 203. preme Court that a carrier cannot, when goods are tendered to it for transportation, make the mere ownership of the goods the test of the duty to carry, and in effect discriminate in fixing the charge for carriage, not upon any difference inhering in the goods or in the cost of the service rendered in transporting them, but upon the mere circumstances that the shipper is or is not the real owner of the goods.65 § 209. The problem of dependent service. A special problem under the general head of the true extent of public duty is whether, in dealing with dependent services, those who conduct the principal service can make such arrangements as they please with those who apply for such special privileges, or whether there is a public duty in the premises, requiring that equal facilities shall be granted. In the first place it is plain that there is no direct duty owed by the management of the principal service to those who conduct these dependent services. The railroad company surely owes no duty to hackmen who would ply their trade upon station premises, its sole duty is to its passengers." 66 On the other hand, that there is some public duty in the premises is plain. In the case of the express service the modern railroad owes a duty of some sort in respect to the transportation of small and valuable parcels safely and quickly.67 Even when it is once established that there is a public duty toward their own patrons in respect to the subordinate service involved, there remains the conflict of authority as to the extent to which this duty goes. According to the conservative view, the principal company fulfills its duty by making provision for the service desired. Thus a railroad by many 65 Interstate Com. Comm. v. D., L. & W. R. R. Co., 220 U. S. 235, 55 L. ed. 48, 31 Sup. Ct. 392, relying upon such cases as Baxendale v. So. W. Ry., 35 L. J. Exch. (N. S.) 108, interpreting similar clauses of the English act to the same effect. 66 Hot Springs v. Curry, 64 Ark. 152, 41 S. W. 55. 67 Sanford v. Catawissa R. R., 24 Pa. St. 378. |