572

THE GREEN BAG

owes a duty in respect to express matter to III To bring out the difference of opinion the general shipping public. Thereupon, it upon this important matter it may be well will be maintained by one side that if the to give at some length, one of the leading railroad makes provision for the transporta cases upon the other side of this contro tion of express matter by entering into an versy. The most radical decision upon this arrangement with an expressman to carry side is to be found in McDuffee v. Port on the business along its route, it thereby land and Rochester Railroad (52 N. H. 430). fulfills its duty; and that it may, therefore, This was an action on the case by the plain make an exclusive contract if it pleases, al tiff, an expressman, against the' defendant though that involves discrimination. But railway for not furnishing the plaintiff it may be answered from the other side that terms, facilities, and accommodations for this argument carried to its logical conclu his express business on the defendants' road sion leaves the public without protection. between Rochester, N. H., and Portland, If the public duty in this matter does not Me., reasonably equal to those furnished by go to the extent of preventing discrimina the defendants to the Eastern Express Com tion in performing it, none of the law of pany. The defendants demurred to . the public service applies between the railroad declaration, which demurrer the Supreme company and the express company; and it Court finally discharged. follows that any express company may be The gist of Chief Justice Doe's opinion charged extortionate prices. Such unrea may be seen from the following extract: "A sonable charges, if not forbidden, will in railroad corporation, carrying one express evitably react upon the general shipping man, and enabling him to do all the express public to whom, by the hypothesis, a public business on the line of their road, do hold duty is owed to provide adequate service themselves out as common carriers of ex for reasonable rates. presses; and when they unreasonably refuse, It may be urged at this stage that since directly, or indirectly, to carry any more pub the express business itself is a public calling, lic servants of that class, they perform this therefore, the express companies themselves duty with illegal partiality. The legal prin are bound to give satisfactory service at rea ciple, which establishes and secures the com sonable rates. But their duty is relative; if mon right, being the perfection of reason, the they cannot get adequate facilities they are right is not a mere nominal one, and is in not bound to provide them; and if they must no danger of being destroyed by a quibble." pay extortionate prices they may charge these The doctrine of this case is also the law against the general shipping public as neces of England, Maine, New Hampshire, and sary operating expenses. If the Express Pennsylvania,1 because there are square de Cases are law, there is no limit upon the cisions upon the point in those jurisdictions. amount which the railroad may charge the But as this issue is but one instance of the express company and no way by which the more general problem, this would naturally reaction of that charge upon the shipping be the holding in other jurisdictions where public may be avoided. This seems to re there are decisions of similar tendency, duce the doctrine of the Express Cases to which will be discussed later in this chapter. an absurdity; if, as those cases decide, there It is admitted by both sides to this con is no public duty owed from the railways to troversy that the modern railroad company the expressmen, then it is because of that gap impossible in any way to protect by 1 Accord: Pickford v. G. ]. Ry., 10 M. & W. the law the shippers of express matter from 399; Parker v. G. W. Ry.. 7 M. & G. 253; New Eng. Exp. Co. v. R. R., 57 Me. 188; McDuffee v. the machinations of those who are con R. R., 52 N. H. 430; Sandfordi;. R. R., 24 Pa. 378. cerned with transporting it.