in considerable quantities of such freight as it would be actually impracticable or peculiarly disadvantageous to transport by teams over the roads.25 A railroad may have elaborate terminals in great cities and only freight sidings at small towns, the question being in all cases whether adequate provision is being made for handling existing business.26

125. Priorities given in emergencies. In time of stress when the company involved has not sufficient facilities to meet all demands made upon it for service, it is not enough to say simply that the company is excused from not meeting particular demands upon it. Being in public service still, it must always discharge its public duties, so far as it is able, handling the business demanding its attention, with proper regard to the exigencies of the whole situation. To give one example, it is sufficiently obvious that such service as the company itself needs, in order to maintain its service for the benefit of all concerned, has precedence over everything. Thus a railroad may give coal cars bringing its own coal supply to any point where the supply is low precedence over other shipments.27 In case of war, troops and their equipment will be given priority over all other business.28 And in case of public calamity, as the Chicago fire, relief trains may be given precedence over all others.29 Likewise, a water company

25 Railroad Commission v. Kansas City So. Ry. Co., 111 La. 133, 35 So.

487.

26 Michie v. New York, N. H. & H. R. R. Co., 151 Fed. 694.

27 Louisville & N. R. R. Co. v. Queen City Coal Co., 13 Ky. Law Rep. 832. 28 Illinois Central Ry. Co. v. Ashmead, 58 Ill. 487.

29 Michigan Central R. R. Co. v. Burrows, 33 Mich. 6.

is temporarily excused for failing to give its household customers a proper supply when the fire plugs are open in that district to extinguish a fire, if the supply of water for householders was, in all ordinary circumstances, adequate.30

31

126. Ordinary course of performing service.— There are general rules of precedence governing service, when no particular emergency appears. Passenger business has priority over freight service, just as the safety of passengers always outweighs the protection of goods. As between two offerings of freight, perishable freight should be sent ahead of other freight.32 Live stock and perishable fruits constitute the plainest examples of the sort of things for which a special equipment and a fast train schedule are imperatively demanded. Conversely hay and sand, not being perishable, may be delayed in transit in time of stress in favor of other goods.33 Even as between the same commodities there may be priorities to be observed in emergencies. Goods of special classes, which have a brief market, may be preferred to staple commodities, which are always salable. If the carrier forwards first those goods which are most necessary to the public, it can hardly be said that the carrier is not performing its public duty. But, on the other hand, it will be a safe generalization that no preference is justifiable between goods of the same nature, unless some such public interest appears. Not even a southern carrier may

30 Campbell v. East London Waterworks, 26 L. T. (N. S.) 475 (Eng.). 31 Farnsworth v. Groot, 6 Cow. 698 (N. Y.).

32 Marshall v. New York C. R. R. Co., 45 Barb. 502 (N. Y.).

33 Southern Ry. Co. v. Atlanta Sand & Supply Co., 135 Ga. 35, 68 S. E. 807.

give King Cotton preference over lumber, as a recent case holds.34

127. Assignment of facilities.-As the provision of facilities is primarily a question of management, the decision as to the assigning of accommodations should be left to those providing the service, unless they act outrageously. There is fundamental truth in what a court once said, justifying a ferryman in assigning passengers to their seats-the ferryman must be the captain.35 Upon these principles it was held in a late case that where several street cars were standing at a depot waiting for passengers from an incoming train, a passenger had no right to complain because he was directed to take passage in one car, instead of another.36 It is equally well established that the innkeeper may, even after a room has once been assigned, direct the guest to change to another room, whether it is agreeable to him or not.37 However, it has been held that if a passenger has once settled himself in a seat the conductor should not disturb him merely for his own personal convenience. Where there are more applicants for service in the same general class than there are facilities available, the traditional rule has been to serve customers in the order of their application. Thus the normal rule as to telegrams is that they shall be forwarded in order of receipt.39 And so a steamship

38

34 Ocean S. S. Co. v. Savannah L. W. & S. Co., 131 Ga. 831, 63 S. E. 577. 35 Claypool v. McAllister, 20 Ill. 504.

36 Dobbins v. Little Rock Ry. & El. Co., 79 Ark. 85, 95 S. W. 794.

37 Doyle v. Walker, 26 Upp. Can. Q. B. 502 (Canada).

38 McLain v. St. Louis Ry. Co., 13 Mo. App. 733, 11 S. W. 835. 39 Western Union Telegraph Co. v. Ward, 23 Ind. 377.

company should assign berths to passengers in the order of their application.40

128. Rules for car distribution.-In the case of railroad service, it is obviously impossible to regulate the order of accepting goods according to the time of offers for shipment over the whole line. Reasonable treatment must be accorded each station, and each given its fair share of the available supply."1 While it may be difficult to lay down any general rule upon this subject sufficiently accurate in its terms to cover all cases that may possibly occur, still it can be approximated by saying that the means of transportation must be so distributed at the various stations for receiving passengers and freight along the entire lines of the road as to afford a reasonable amount of accommodation for all.42 When it becomes a question of the assignment of facilities to applicants in the same locality, it is now realized that fairness to all concerned requires that there should be careful apportionment of the facilities available.

What is the fair share of each shipper is a matter with which the courts are still wrestling at present; but some things are clear enough. Rules established for car distribution between carrier and shippers based upon their normal requirements will not be set aside as unreasonable.44

40 Patterson v. Old Dominion Steamship Co., 140 N. C. 412, 53 S. E. 224. 41 Ballentine v. No. Missouri R. R., 40 Mo. 491, LEADING ILLUSTRATIVE CASES.

42 Ayres v. Chicago & N. W. R. R., 71 Wis. 372, 37 N. W. 432.

43 State ex rel. Crandall v. Chicago B. & Q. R. R. Co., 72 Neb. 452, 101 N. W. 23, LEADING ILLUSTRATIVE CASES.

44 United States v. West Va. No. Ry. Co., 125 Fed. 252.

CHAPTER XIII.

DETERMINATION OF REASONABLE CHARGES.

129. Principles for determining reasonableness. -A rate which is reasonable from the point of view of the customer served may not be reasonable to the company serving. The interest of the company is entirely directed toward framing a schedule of rates which as a whole shall produce a certain return. So long as the requisite return is realized, it is immaterial to it what the proportion of contribution of each individual customer is to the whole amount. On the other hand, the customer is interested in the individual rate charged to him, and in that alone. So long as his rate is a fair one it is immaterial to him that the whole schedule is so arranged as to yield a great profit to the company. It is only within a comparatively few years that there has been any attempt to work out this problem, but great progress has been made of late in the development of the law governing rate making. It may now be determined with sufficient certainty whether a schedule of rates taken as a whole is producing too much. And one may even give a judgment upon the reasonableness of the particular rates composing that total. It might be added that the public service commissions having power to fix rates have gone much farther in developing this science of rate making than the courts have found it necessary to go in