of such rates were so unequal as to exceed the flexible limit of judg-
ment which belongs to the power to fix rates, that is, transcended
the limits of just classification, and amounted to the creation of
favored class or classes whom the carrier was compelled to serve
at a loss, to the detriment of other class or classes upon whom the
burden of such loss would fall, that such legislation would be so
inherently unreasonable as to constitute a violation of the due
process and equal protection clauses of the Fourteenth Amendment.
Let it also be conceded that a like repugnancy to the Constitution
of the United States would arise from an order made in the exer-
cise of the power to fix a rate when the result of the enforcement
of such order would be to compel a carrier to serve, for a wholly
inadequate compensation, a class or classes selected for legislative
favor, even if, considering rates as a whole, a reasonable return.
from the operation of its road might be received by the carrier.
Neither of these concessions, however, can control the case in hand,
since it does not directly involve any question whatever of the
power to fix rates and the constitutional limitations controlling the
exercise of that power, but is concerned solely with an order
directing a carrier to furnish a facility which it is a part of its
general duty to furnish for the public convenience. The distinction CC. aan te
between an order relating to such a subject and an order fixing ordered
Tates coming within either of the hypotheses which we have stated to this
is apparent. This is so because, as the primal duty of a carrier is Renee.
to furnish adequate facilities to the public, that duty may well be
compelled, although, by doing so, as an incident some pecuniary
loss from rendering such service may result. It follows, therefore,
that the mere incurring of a loss from the performance of such
a duty does not, in and of itself, necessarily give rise to the con-
clusion of unreasonableness, as would be the case where the whole

Held:

scheme of rates was unreasonable, under the doctrine of Smyth v. 2. must
Ames, or under the concessions made in the two propositions we be reasmh
reasonable
have stated. Of course, the fact that the furnishing of a necessary
facility ordered may occasion an incidental pecuniary loss is an
but finque.
important criterion to be taken into view in determining the reason-loss alone
ableness of the order, but it is not the only one. As the duty tout
furnish necessary facilities is coterminous with the powers of the haw
corporation, the obligation to discharge that duty must be con-
sidered in connection with the nature and productiveness of the
corporate business as a whole, the character of the services required,
and the public need for its performance. A similar contention
to the one we are considering was adversely passed upon in Wis-
consin, M. & P. R. Co. v. Jacobson, supra. That case involved the

2(1900), 179 U. S. 287.

enforcement of an order of a state railroad commission directing a railroad company to acquire the necessary land and make a track connection for the purpose of affording facilities for the interchange of business with another road. The court, after holding that the order was not so unjust and unreasonable as to be repugnant to the Constitution of the United States, disposed of the contention that the order was void because compliance with it would necessitate the incurring of expense, by saying (179 U. S. 302):

"Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant Worcester v. Norwich & W. R. Co. 109 Mass. 112; People ex rel. Green v. Dutchess & C. R. Co. 58 N. Y. 152, 163; People ex rel. Kimball v. Boston & A. R. Co. 70 N. Y. 569; People v. New York, L. E. & W. R. Co. 104 N. Y. 58, 67.

in error.

Affirmed.

Facts:Matry.

ordered to

do.

STATE ex rel. MATTOON v. REPUBLICAN VALLEY
RAILROAD CO.

17 Neb. 647. 1885.1

Cовв, Ch. J. This is an original application to this court for a writ of mandamus requiring the respondent, the Republican Valley Railroad Company, to build within the corporate limits of the city of Blue Springs a depot, and to lay down the necessary side tracks and switches, and to stop its trains thereat for the proper transaction of business.

So far then as the case is presented by the pleadings, it involves these two questions:

3 See Missouri Pac. Ry. Co. v. Kansas (1919), 216 U. S. 262 (requiring a railroad to run regular passenger train instead of a mixed train, though regular train would be run at a loss); Chesapeake & O. Ry. Co. v. Public Serv. Comm. (1914), 75 W. Va. 100 (railroad required to instal passenger service on a line where it had had only freight service).

1 Arguments of counsel and part of the opinion are omitted.— ED.

1, Is the depot of respondent at Wymore sufficiently near to the business portion of Blue Springs as to afford her inhabitants and

Ry.

merchants, and particularly the relator, all the facilities and ac-andered to

commodations which the respondent owes them as a common carrier, one of whose lines runs through the last named city, without discrimination against the business and inhabitants thereof? this station If not, 2, Is it practicable to operate respondent's branch line of railroad between Wymore and Beatrice with depots and regular for such

services thereat, both at Wymore and Blue Springs?

t

6 properly

The more important and quasi public question of the power of easy the courts in the absence of legislation to compel the respondent to establish and maintain a depot at Blue Springs, is raised by serve the respondent in its brief, and that question will be first considered.

public. Analogy

Relator in his brief contends that the legislature of the state has imposed upon the respondent the duty of furnishing side tracks a. and depots, and stopping its trains for the receipt and discharge of draine to passengers and freight, and the proper transaction of business at all places upon their road, etc., and he cites section 121, of chapterdiscrim 16, Comp. Stat., in support of that proposition. The section readseases. as follows: "Sec. 121. Every such railroad corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of passengers and freight, and shall take, transport, and discharge all passengers to and from such stations as the trains stop at, from or to all places and stations upon their said road, on the due payment of fare or freight bill.'

I do not think that this section furnishes authority for the interference of the courts to compel the establishment of a depot or station at any point on the line of respondent's road, but on the contrary, it is quite apparent upon the face of the section that every duty thereby imposed is qualified by the words, "to and from such stations as the trains stop at," and its application limited to established depots.

But in the opinion of this court it has authority to grant relief in cases such as that presented in this case, yet for the source of its authority it must look to the principles of the common law rather than to legislative enactments. The respondent is a common carrier of persons and merchandise. At common law it was the duty of a common carrier by land to deliver freight personally to the consignee; but when railways took the place of conveyances drawn by animals, necessity required the relaxation of this rule so as to allow of the substitution in place of personal delivery

a delivery at the warehouse or depot provided by the companies for the storage of goods. Vincent et al. v. C. & A. R. R. Co., 49 Ill., 33. Is it too much to say that this relaxation of the above rule in favor of railway companies as common carriers imposed upon them the duty of providing suitable depots for the purpose of such delivery? This duty is so intimately connected with the business for which railways are built and managed that motives of selfinterest almost always secure its observance. But when for any reason it is neglected or refused, may it not be enforced the same as any other public duty? . . .

This question can scarcely be said to be a new one in this court. In the case of The State, ex rel. Webster, v. Nebraska Telephone Co., ante p. 126, this court issued a peremptory mandamus, compelling the respondent to place and maintain in the office of the relator a telephone and transmitter, such as are usually furnished to its subscribers. In the opinion by Judge REESE, he says: "Similar questions have arisen in, and have been frequently discussed and decided by, the courts, and no statute has been deemed necessary to aid the courts in holding that when a person or company undertake to supply a demand which is affected with a public interest,' it must supply all alike who are alike situated, and not discriminate in favor of nor against any." As a question of power, I fail to see any ground for distinguishing between that which compels a telephone company to furnish a separate instrument for the accommodation of one customer, and that which would compel a railroad company to make stoppage of its trains and furnish depot accommodations to a whole community. In neither case would any court interfere except where it is made to appear that such interference is necessary to prevent an unjust discrimination, or an abuse of that discretion which must be conceded to reside in all private corporations in respect to their dealings with the public.

The record in this case does not present the question of the power of the state to impose new duties upon railroad companies, or to take away or limit their powers by appropriate legislation. Nor does it present the question of the power of the courts to enforce the performance of every duty enjoined upon such corporations, either by the acts under which they derive their corporate existence or other legislation. If either of these questions were presented there would be abundant authority for their decision in the works and cases cited by counsel. But upon the precise point of the power of the court to enforce the discharge of a duty by the railroad company not specially enjoined upon it by the terms of its charter, nor any provision of statutory law, which, as above

stated, I conceive to be the turning point in this case, there is but very little.

There are many opinions of courts and dicta in cases cited by counsel wherein the assumed right of railway corporations to discriminate between shippers and others is discussed, deprecated, and denied. Such discrimination is in but few cases upheld, and then only when such discrimination is shown not to be unjust to the complaining party. The remarks of Chief Justice Beasley, of the supreme court of New Jersey, in the case of Messenger v. Pennsylvania R. R. Co., 36 N. J. L., 407, are so entirely in accord with the views of this court that I deem it not out of place to transcribe them here. "A company of this kind is invested with important prerogative franchises, among which are the rights to build and use a railway, and to charge and take tolls and fares. These prerogatives are grants from the government, and public utility is the consideration for them. Although in the hands of a private corporation they are still sovereign franchises, and must be used and treated as such, they must be held in trust for the general good. If they had remained under the control of the state, it could not be pretended that in the exercise of them it would have been legitimate to favor one citizen at the expense of another. If a state should build and operate a railroad, the exclusion of everything like favoritism with respect to its use would seem to be an obligation that could not be disregarded, without violating natural equity and fundamental principles. And it seems to me impossible to concede that when such rights as these are handed over on public considerations to a company of individuals, such rights lose their essential characteristics. I think they are unalterably parts of the supreme authority, and in whatsoever hands they may be found they must be considered as such. In the use of such franchises all citizens have an equal interest and equal rights, and all must, under the same circumstances, be treated alike. It cannot be supposed that it was the legislative intention when such privileges were given that they were to be used as private property at the discretion of the recipient, but, to the contrary of this, I think an implied condition attaches to such grants that they are to be held as a quasi public trust for the benefit, at least to a considerable degree, of the entire community. In their very nature and constitution, as I view this question, these companies become, in certain aspects, public agents, and the consequence is they must in the exercise of their calling observe to all men a perfect impartiality."

While I frankly admit that I am able to find no case certainly none has been cited by counsel - where the above principles have been applied to circumstances exactly like those of the case