most of these is their duty to receive passengers and goods, and to carry them for a reasonable reward. The question of the reasonableness of the rate charged is of the very essence of the relation between the parties. And the common law doctrine may be regarded as too well established to admit of controversy, that the carrier can charge only a reasonable compensation for services rendered. 1

In

§ 423. A brief review of some of the leading cases in support of the principle above enunciated may not be amiss, and will certainly serve to fix the principle itself more clearly in the mind of the reader. Ilarris v. Packwood, 3 Taunt., 264, we have the high authority of Lord Chief Justice MANSFIELD in support of the proposition that carriers have not an unlimited discretion to charge such rates as they may see fit, but that the rates established must be uniform. He "It would, however, be useless to pass any such statutes to limit the price of carriage, if the carrier be at liberty to charge what he pleases; the price must be reasonable." And Mr. Justice LAWRENCE, in the same case, while conceding the right of carriers to charge a greater price for transporting goods of greater value, says: "I would not, however, have it understood that carriers are at liberty by law to charge

2

says:

'See in support of this proposition, 2 Kent's Com. 599; Story on Bailments, § 508; Harris v. Packwood, 3 Taunt. 264; Riley v. Horne, 5 Bing. 217; Cole v. Goodwin, 19 Wend. 261, opinion of Mr. Justice CoWEN; Parker v. Bristol and Exeter Ry. Co. 6 Exch. 702; Parker v. Great Western Ry. Co. 7 Manning & Granger, 253; Lamar v. New York and Savannah Steamship Co. 16 Ga. 558; Sanford v. The Catawissa R. R. Co. 24 Pa. St. (12 Harris), 378; Shipper v. The Pennsylvania R. R. Co. 47 Pa. St. 338.

2 Harris v. Packwood, 3 Taunt. 264.

whatever they please: a carrier is liable by law to carry everything which is brought to him, for a reasonable sum to be paid for the same carriage; and not to extort what he will."

2

§ 424. Indeed, both in England and America, the question of determining whether a carrier has made reasonable charges has repeatedly been before the courts, and their jurisdiction1 to pass upon the reasonableness of the rates charged is well established. Thus in Parker v. The Bristol & Exeter Ry. Co., 6 Exch., 702, the question involved was whether plaintiff had been overcharged by the railway company, and this question was left to the decision of a jury. In this case the company was required by its charter to charge all persons equally under the same circumstances. By the scale bill of the company certain rates were fixed for the transportation of freight, and the bill contained a foot note to the effect that where goods were collected and delivered by the parties themselves, a deduction would be made of a specific sum per ton. Plaintiff collected and delivered his own goods; and demanded a larger deduction than that mentioned in the scale bill, and had invariably paid the amount demanded by the company under protest, and brought his action to recover the excess. It was objected by the defendant, among other things, that the action for money had and received would not lie; but the court held that the plaintiff was entitled to maintain the action for such amount as the jury should think had been overpaid by

1 By this is not meant that the courts have exclusive jurisdiction. That is a point to be discussed under the head of "Legislative Jurisdiction."

2 Parker v. Bristol and Exeter R. R. Co. 6 Exch. 702.

him. And the court refused to disturb the finding of the jury upon this point, and denied a new trial.

$425. And in Parker v. The Great Western Ry. Co., 7 Manning & Granger, 253, the jurisdiction of the court over the question of the reasonableness of the charges made, and whether unjust discrimination was shown in the rates, was recognized, and the whole question was passed upon by the court as a judicial question, although the company was empowered by its charter to fix its own charges.1 So in Parker v. The Great Western Ry. Co., 8 Eng. L. & Eq., 426, and Edwards v. same, Ib. 447, both of which cases were decided by Lord Chief Justice JERVIS, the reasonableness of charges and the justice of discrimination were the chief points determined by the court.

$ 426. One of the earliest American cases in which the same doctrine is recognized, is Lamar v. New York & Savannah Steamship Co., 16 Ga., 558. Here the object of inquiry was, whether the freight asked was the usual freight, and whether the carrier might, in case of packages of extra value, charge an extra price. And the decision of the court is based expressly upon the fact that they find the price asked to be a reasonable and the usual price for the transportation of the particular kind of goods in question."

§ 427. It is to be observed, however, with reference to the English cases above cited, that the charters of the companies, as is the case with most English railway charters, limit the right of the companies in fixing their rates to the establishing of reasonable charges,

1 Parker v. Great Western R. R. Co. 7 Manning & Granger, 253. 2 Ibid. and Eng. L. & Eq. 426; Edwards v. same, Ibid. 447. "Lamar v. New York and Savannah Steamship Co. 16 Ga. 558,

and provide, also, that no unjust discriminations shall be made. Similar provisions have in some instances been inserted in the charters of railway companies in this country, especially in Pennsylvania. It is proposed, therefore, to consider in brief the effect of such provisions as bearing upon the common law liabilities of the railways.

$428. So far from changing or modifying the common law doctrine, it is believed that the only effect of these limitations in the charter is to recognize and declare as law principles which derive their origin from the common law and exist independent of statutes. The case of Sandford v. The Catawissa R. R. Co., 24 Pa. St. (12 Harris,) 378, is a case of great importance in illustration of the doctrine contended for, and recognizes in clear and unmistakable terms the common law duty of railways to transport for all alike and without distinction. In this case the charter of the railroad expressly provided that it should be the duty of the company to transport all freight "so that equal and impartial justice shall be done to all owners of property by the said company." But the court held that this clause of the charter was merely declaratory of the common law. The language of Chief Justice LEWIS upon this point is as follows:

* * "But wherever a charter is granted for the purpose of constructing a railway, and the corporation is clothed with the power to take private property, in order to carry out the object, it is an inference of law from the extent of the power conferred, and the subject matter of the grant, that the road is for the public accommodation. The right to take tolls is a compensation to be received for the benefits conferred.

If the public are entitled to these advantages, it results from the nature of the right, that the benefits should be extended to all alike, and that no special privileges should be granted to one man or set of men, but denied to others. The special stipulations inserted in charters for the purpose of securing these rights, are placed there in abundance of caution, and affirm nothing more than the common right to equal justice which exists independent of such provisions. Of this character is the declaration in the charter of the railway company before us, which requires it to transport articles in the order in which' it shall be requested to transport the same,' 'so that equal and impartial justice shall be done to all owners of property,' 'who shall pay or tender the toll and freight due under this act.' The supposed necessity for such provisions in charters granted in this country and in England proves nothing more than that the law-makers in both countrics were aware of the difficulty in holding large corporations to those common obligations of justice which individuals feel bound to acknowledge without legislative enactment."1

$429. The same doctrine is affirmed in Shipper v. The Pennsylvania R. R. Co., 47 Pa. St. 338. In this case, Mr. Justice STRONG, now on the national bench, pronouncing the opinion of the court, says: "The charter of the defendants, authorizes them, from time

1 Sandford v. Catawissa R. R. Co. 24 Pa. St. (12 Harris.) Here we have enunciated in clear and unmistakable terms the doctrine that railways are incorporated for the use and in the interests of the public; in other words, that they are quasi public corporations, with the performance of public functions and duties incumbent upon them.