INTRODUCTION,*

BY HON. JOHN M. PALMER.

THE COMMON LAW OF RAILWAYS.

So much has been said about vested rights, and such unwarrantable claims have been based upon them, that we have become the victims of delusions created by ourselves. But the railroads exist. They are part of our social and business system, and if they inflicted double the wrongs upon us that they do now, they themselves are fixed, and will never be disturbed. is not necessary for me to engage in the discussion of any of the controverted theories which have been advanced in respect to the nature or extent of the powers of railroad corporations under what are called their charters.

It

I admit the law to be as decided by the Supreme Court of the United States in the case of "The Trustees of Dartmouth College against Woodward." I have no doubt that the Supreme Court held correctly, that the charter granted by the British Crown to the Trustees of Dartmouth College, in the year 1769, is a contract, within the meaning of that clause of the

*This subject was elaborately discussed by Ex-Governor Palmer, in an address, delivered and published when this treatise was nearly ready for the press. The author at once requested the Governor to furnish a preliminary paper, for use in this connection, which he kindly consented to do.

Constitution of the United States which declares that no State shall make any law impairing the obligation of contracts, and I am quite as clear, upon principles that are well understood and eminently just, that the acts of the General Assembly of New Hampshire by which it was proposed to change the name and essentially modify the powers of that corporation, and also to seize the property and usurp the government of the institution, were in violation of the Constitution, and I am prepared also to assent to the doctrine of the Supreme Court of Illinois, that the charters of private corporations are contracts which are inviolable, and as decided by the same court in the cases of "Neustadt and others against the Illinois Central Railroad Company," and of the "Illinois Central Railroad Company against the County of McLean," that the act incorporating the Illinois Central Railroad Company, which declares certain exemptions of the property of the Company from taxation is a contract between the State and the Company, which cannot be changed or amended without the consent of both parties. Indeed, I concede it to be too well established to be shaken or questioned that the State cannot, by the action of any of the departments of its government, impair the charters of private corporations in any material respect.

Having made these concessions, no one will expect me either to attack the claim of corporations to vested rights, or to complain of those decisions of the courts. that recognize such rights and vindicate them against every attempt to impair them. Many persons who are under the influence of the delusions for which the representatives of corporate pretensions are responsible, observing that I admit all that has been decided

by the Courts in respect to the nature and inviolability of the rights of corporations will be ready to conclude that I have, by my concessions, already defined the rights and obligations of railway carriers, and that I have abandoned the only grounds upon which the correction of the abuses which are known to exist in the railway carrying system can be demanded; but I hope to demonstrate that the principles which recognize the inviolability of contracts between the State and the railway corporations, so far from justifying the pretensions of railway carriers to be "a law unto themselves,” afford support to theories I will hereafter present and maintain in regard to the legal extent of their duties and obligations.

Carriers are among the earliest agencies of the intercourse of mankind. One of the earliest records of the human race preserves the fact that "Jonah went down to Joppa, and found a ship going to Tarshish, and paid the fare thereof, and went down into it to go with them to Tarshish." Accounts equally ancient refer to the freighting of ships with the products of the industry and skill of the oldest of the nations. In all ages the office or employment of carrier has borne an important relation to the commerce and business of the world, and their obligations and liabilities, as well as their duties and powers are defined in the commercial codes of all civilized nations.

All over the world their business is treated as a public office or employment, and their rights and duties are held to result from the relation they voluntarily assume to the public. Wherever the English language is spoken they are called "common carriers," a term which indicates the general nature of their busi

ness, and at the same time describe the extent of their legal obligations. The distinguishing feature of the office or employment implied in the term "Common Carrier" is, that its obligations and liabilities are not. dependent upon the contract, but are imposed by law. I will only enumerate, in this connection, a few of the duties and obligations which the law has imposed upon common carriers, and I will confine myself to those which are least disputed, and interest the publie most. "They must furnish reasonable and ordinary facilities for transportation, such as will meet the ordinary demands of the public.”

They are obliged by law to undertake the charge of transportation indifferently for all, without partiality or improper discrimination, and for a reasonable compensation. These obligations are implied in the very nature of the office, for a common carrier, in the language of the courts of highest authority, is one who holds himself out to the world as ready to undertake to carry all persons, or for all persons, indifferently for hire, as a business. He engages to receive at all reasonable times, according to the nature of the business, all passengers, if a carrier of passengers, or, if a carrier of freights, all property which is of a character suited to his means of transportation, in the order in which it is offered, and to transport with safety and reasonable dispatch, and to discharge or deliver, at the place or to the persons expressed or implied in his undertaking, and by the very nature of his employment he undertakes to discharge all the ordinary duties ho assumes for a reasonable reward, and as these are duties and obligations imposed upon common carriers by law, they cannot release themselves from them except by

the consent of every person who may call upon them to perform them. Railway corporations, and all natural persons who undertake the duties which I have described as pertaining to that office or employment, are common carriers.

The Supreme Court of our own State, in one of the cases before it, speaking through Justice Breese, a venerable name in jurisprudence, uses the following language: "We suppose that it is not necessary that the charters should provide, in so many words, that the railroad companies created by them shall be common carriers. The authorities are numerous to the point, that such companies using cars for the purpose of conveying goods for all persons indifferently for hire, and whose custom and uniform practice is to do so, are common carriers, and are liable as such. There needs no legislative declaration to make them such; they are so in virtue of their uniform business, and are subject to the provisions of the common law which are applicable to carriers." And the same Court said in another case: "It is admitted by respondent's counsel that railway companies are common carriers. Regarded merely as common carriers at common law, and independently of any obligations imposed by the acceptance of its charter, it would owe important duties to the public, from which it could not release itself except with the consent of every person who might call upon it to perform them. These obligations grow out of the relation voluntarily assumed by the carrier to the public. But railway companies may well be regarded as under higher obligations, if that were possible, than those imposed by the common law, to discharge their duties to the public as common car