State v. Del., L. & W. R. Co.

• Decision Date: 26 February 1886
• Citation: 2 A. 803,48 N.J.L. 55
• Court: New Jersey Supreme Court
• Parties: STATE ex rel. ATWATER v. DELAWARE, L. & W. R. Co.

2 A. 803

48 N.J.L. 55

STATE ex rel. ATWATER

v. DELAWARE, L. & W. R. Co.

Supreme Court of New Jersey.

February 26, 1886.

On rule to show cause why a mandamus should not issue.

The relator, an attorney and counselor at law, practicing his profession in the city of New York, resides at East Orange, in this state. He testified that he is permanently residing at that place, having resided there since August, 1884, occupying a rented house, the present lease of which expires May 1, 1886. East Orange is on the line of the Delaware, Lackawanna & Western Railroad, the only railroad between East Orange and New York city. The regular fare between East Orange and New York city is 26 cents for a single ticket, and 50 cents for an excursion ticket. Monthly commutation tickets, such as the company is accustomed to sell to persons who apply for them, are sold at the rate of $6.50. Until March, 1885, the relator was a commuter, purchasing monthly tickets at commutation rates. On the twenty-eighth of February, 1885, the relator applied to the company's agent, whose business it was to sell tickets of that class, for a commutation ticket for the ensuing month of March, and tendered the price of the ticket. The agent refused to sell relator a ticket, and assigned as his reason therefor that he had received instructions not to sell the relator commutation tickets. The relator, on the first of March, applied again for the ticket, and was again refused. The agent testified that, in refusing to sell the ticket to the relator, he acted under written instructions to him from the company's passenger agent, of the date of February 7, 1885, in these words: "If Henry G. Atwater, who now hold commutation ticket No. 27, applies to you for a renewal of his ticket next month refuse to sell him one. He has violated the rules governing the sale of commutation tickets, and, as these are special tickets, the company has the right to refuse the privilege of buying one to any person who willfully violates the rules. If Mr. Atwater asks any questions, simply tell him that you are acting under instructions, and refer him to this office, or to Supt. Reasoner." On the day of the first refusal, the relator wrote to the president of the company, stating that a commutation ticket for March had been refused, claiming the right to buy the same on the same terms as other persons, and stating that if it was again refused he would take proceedings to insure his rights, and compel the issuance of the ticket. To this letter no answer was received. The agent testified that the order contained in the instructions of February 7th was never countermanded or withdrawn. Monthly commutation tickets were sold at East Orange, for the month of March, 1885, to all persons desiring to purchase, with the exception of the relator. The relator, on the seventh of March, 1885, applied for and obtained a rule to show cause why a mandamus should not issue commanding the company "to cease from discriminating against Henry G. Atwater, the relator, and to furnish him with transportation between East Orange and New York upon the same terms upon which it furnishes the same transportation to other persons, and to issue and deliver to the said relator commutation tickets between said East Orange and New York as often and whenever he shall demand the same, upon the same terms and conditions, and for the same price, upon and at which it issues and delivers them to persons in general, other than the relator."

Cornelius S. See, for relator.

J. D. Bedle, contra.

DEPUE, J. The Morris & Essex Railroad Company was incorporated in 1835, to construct a railroad for the purpose of carrying passengers and freight. The charter authorized the company to charge for the carriage of passengers and freight, and prescribed the limits of the rates to be charged per ton for the transportation of freight, and per mile for the carriage of passengers. P. L. 1835, p. 29, § 10. In virtue of its charter rights and privileges, the company became a common carrier of passengers and freight. By legislative authority the Delaware, Lackawanna & Western Railroad Company, as lessee of the company's railroad, was invested with its franchises, rights, and privileges, subject, of course, to all the obligations and duties resting on the lessor.

At this day it would be superfluous to enter upon a discussion to support the doctrine, so well settled, that common carriers are public agents, transacting their business under an obligation to observe equality towards every member of the community,—to serve all persons alike,—without giving any unjust or unreasonable advantages by way of facilities for the carriage or rates for transporting them. 1 Wood, Rys. § 195. The leading case on this subject is Messenger v. Pennsylvania R. Co., reported, as decided in the supreme court, in 36 N. J. Law, 407, and in the court of errors, in 37 N. J. Law, 531. In his opinion in the supreme court, Chief Justice Beasleysays: "It was one of the primary obligations of the common carrier to receive and carry all goods offered for transportation, upon receiving a reasonable hire. * * * Thus, in the very foundation and substance of the business there was inherent a rule which excluded a preference of one consignor of goods over another. * * * Recognizing this as the settled doctrine, I do not see how it can be admissible for a common carrier to demand a different hire from various persons for an identical kind of service, under identical conditions. * * * A person having a public duty to discharge is undoubtedly bound to exercise such office for the equal benefit of all, and therefore to permit a common carrier to charge various prices, according to the person with whom he deals, for the same services, is to forget that he owes a duty to the community." On affirmance of this case the court of errors was equally emphatic in affirming the doctrine that a common carrier owes an equal duty to all, which is not discharged if unequal preferences are made, and the enjoyment of the common right is thereby prevented or impaired. How uniformly the doctrine of this case has been adopted and applied will be seen by the citations and extracts from opinions of the courts of our sister states given by Mr. Justice ATHERTON in his opinion in the recent case of Scofield v. Lake Shore & M. S. Ry. Co., as reported in 3 N. E. Rep. 907. A collection of cases illustrative of the application of the same principle to railroad, express, telegraph, gas, and water companies will be found in a note to Baltimore & O. Tel. Co. v. Bell Telephone Co., 24 Amer. Law. Reg. (N. S.) 578.

There is also a considerable line of cases holding that the carrier may discriminate in the rates charged for the transportation of different classes of goods, or in favor of persons shipping large quantities of freight, or in favor of the long distances for which freight is carried as against shorter distances, or upon grounds which would reduce the trouble or cost of carrying for one party as compared with another. Some of these cases were decided on the "equality clauses" in the English statutes, which our courts have held to be merely declaratory of the common law. Others, were decided upon common-law principles, without any statutory regulation of the subject. An...