Page:Federal Reporter, 1st Series, Volume 8.djvu/815

SOUTHERN EXPRESS CO. V. MEMPHIS, ETC., B. CO. 801 �F. E. Whitejield and G Lover e Shepley, for complainant. �B. C. Brown e J. 0, Broadhead, for respondent. �McCeary, C. J., delivered the opinion of the court : �1. I will consider first the motion to dissolve the injunctidn. Thia is urged upon two grounds, to-wit : (1) That the railroad company is, by its charter, possessed of the exclusive privilege of conducting the express business over and upon its own road ; and (2) that even if thia were not so, the express company bas no right to carry on its business upon said road without the consent of the railroad company. Does the charter of the respondent railroad company confer upon it the exclusive right to carry on the express business upon its own road ? The answer to this question depends upon the construction of the sixth section of said charter, which provides as follows : ' �"The said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, or produce over said railroad by them to be construeted." ' �This language must be construed in the light of the history of the construction of railroads in this country. When first introduced they were regarded only as improved highways, subject to be used by the general public . It was thought that any person ought to have the right to place his vehicle upon the track of a railroad, and to transport his own freight upon it, paying toll for the use of the track, and it was considered necessary, in order to limit the use of the road and to give a particular person or company the exclusive right to operate it, that such exclusive right should be expressly reserved by law. It was for this purpose that clauses substantially like the one above quoted were inserted in very miaiiy of the earlier, and not a few of the later, railroad charters. Experience very soon demonstrated that it was not practicable to apply to the System of railways all the principles that obtained in defining and regulating the rights of the public with respect to the common highway. Certain innovations were necessary; certain exclusive privileges were inevitable in order to seeure safety and celerity in the transportation of persons and property by the use of cars and steam-engines. One of the first of these to be generally recognized was the necessity that the operation of every railroad should be under the oontrol of a single head. It Was seen that the safety, not only of property, but of life as well, depended upon vesting in the owner of the track, or the company operating the road, the exclusive right to say what vehicles should be placed upon the track, or, in other words, the exclusive right of trans- v.8,no.ll— 51 ��� �