Page:Federal Reporter, 1st Series, Volume 8.djvu/816

802 . FEDEfiAL BEfOBiBB. �portation ajid conveyance of persohs and property over their tracks. An examination of therailroad charters adopted by the varions legisla- tures of the Union will show that tjiis ptovision has been inserted in nearly aEof them in one form or another. It was never intended to apply to or deterruine such «, question as that now under consid- eration. It gives the^railroad oompany the exclusive right to place cars on the track, and operatethem for the transportation of persons, goods,v?ares, and merchandise. M gives no other or greater exclusive right. ^It follows that the questioh whether the railroad company bas the exclusive right ta carryon the. expresS' business upon its line, and the; right to eject the eomplainant, must be determined inde^ penidently of this provision. This brings us to the question whether the express company may, as a matterof right, catry on ita business upon the respondent's road. Substantialiy, this question bas recently been considered by several of the courts of the United States, and it bas been uniformly held that it is the duty of the Courts to maintain Buch right by granting a preliminary injunction,-at least, until there can be. a final hearing u^on -the merits. Such bas been the ruling of Mr. Justice Harlaoij on the circuit; of Jadge Baxter, of the sixth «irouit; and of District Judges' Key,^ Greshaba, Treat, Hallett, and Galdwell. I am of the opinion thsse decisions are sound in princi- ple, as well as of great weight as authority. They wHl be followed, unless the supreme court shall otherwise-decide. The guiding princi- ples running through them all, and which should govern in determin- ing the respective rights of the partiesj are these : �(1) A railroad company is a gwofi pyibjiic corporation, and bound by the law iregulating the powera and duties of ccmmon Carriers of persons and property. �(2) It is the duty of such a company, as a public servant, to receive and carry goods for all persons alike, witbbut'injtirious discrimination as to rates of terms. �{3) The business of expressage has grown into a public necessity. It is the means whereby articles of great value may be carried over long distances with certainty, safety, and celerity, heing placed in the hands of a special messen- ger, who is to have the charge arid care of them en route. The railroad com- panies must, in conlmon with the public, recoghi^e the necessity for this mode of transportation, and must carry express packages, and the messenger in charge of them, for all express companies that apply, On the same terms, unless excused by the fact that so many appiy that is impossible to accommodate all —a state of things not likely to occur. If it be said that this is giving to the express companies privileges not aiiorded to other shippers, the answer is that the nature of the express business makes special facilities for its transaction necessary, and the case is, therefore. properly exceptional. �(4) It is not necessary now to determine whether the respondent railroad ��� �