DEPENDENT SERVICES OF COMMON CARRIERS gued; and the whole history of the course of dealings that had gone on between the express companies and the railroad com panies was discussed. The decision of the majority of the court went off upon this evidence. Mr. Chief Justice Vaite concludes the majority opin ion thus: "In all these voluminous records there is not a syllable of evidence to show a usage for the carriage of express companies on the passenger trains of railroads unless specially contracted for. While it has uni formly been the habit of railroad companies to arrange, at the earliest practicable mo ment, to take one express company on some or all of their passenger trains, or to provide some other way of doing express business on their lines, it has never been the practice to grant such a privilege to more than one company at the same time, unless a statute or some special circumstances made it nec essary or desirable. The express companies that bring these suits are certainly in no sit uation to claim a usage in their favor on these particular roads, because their entry was originally under special contracts, and no other companies have ever been admitted except by agreement." According to prevalent opinion as to the local force in the federal courts of a decision of the Supreme Court upon matters of gen eral commercial law, it must be admitted that this decision practically settles the law for interstate commerce. It is, also, the common law for intrastate commerce in Cal ifornia, Indiana, Massachusetts, and North Carolina, at least. At the beginning of this controversy both sides admit that to the extent to which a 1 Pfistcr v. R. R., 70 Cal. 169; Louisville, etc. Ry. v. Keefer, 146 Ind. 21; Sargent v. R. R., 115 Mass. 416; Exp. Co. v. R. R., in N. C. 463. This is governed by statute in some jurisdictions; for example, to-day in Massachusetts by statute, such number of local expressmen shall be permitted to operate over a given route as the railroad com missioners shall decide. See Rev. Laws, c. in, § 24i-
common carrier has made public profession covering a given line of business he is bound to serve all that apply without dis crimination. Here is the first difficulty. It may be established that the usual course of dealing between the railroad companies and the express companies has been upon the basis of special contract; on the other hand, it may be shown that the railways have universally made some provision for handling express matter. This is so clear that it may be asserted that the modern railroad owes some duty in respect to the transportation of small and valuable par cels safely and quickly. But to whom is this duty owed? It hardly seems to be to the expressman; for the railroad could plainly carry on this branch of the trans portation business for the general public, and it could then exclude all expressmen from the route. Therefore, the duty that it owes seems to be rather to the general pub lic who ship through the expressmen. But even if this be accepted as an accurate pre liminary statement, the discussion is but fairly begun. The arguments from policy that are urged in these conservative cases are not conclu sive, although they have a certain force. It is true that it is somewhat more difficult for the railroads to handle three distinct ex presses than one, but not more difficult than many problems of railroading that are part of every day traffic handling. Subdivision of express cars upon light runs, and more development of the special train for express matter, would solve the difficulty; and the railroad is protected in any event by the right to charge a fair price for its services based upon the cost of service. Again, it is said that large express companies are better than a greater number of smaller com panies. It should be pointed out, how ever, that the doctrine of the Express Cases may be used to exclude the national express companies with their full equipment from any railroad system, the directors of which favor some local company.
