128 Ga. 754 | Ga. | 1907
Lead Opinion
Tbe rulings of the majority of the court are contained in the headnotes; and in the discussion which will follow, anything that may be said which is in conflict with such rulings is to be understood as setting forth merely the individual views of the writer.
During the year 1906 the American Baggage and Transfer ■Company filed a bill against the Atlanta Baggage and Cab Company (hereinafter called the Cab Company) and the Atlanta Terminal Company (hereinafter called the Terminal Company), wherein it was sought to enjoin the grant by the Terminal Com.-, pany to the Cab Company of the use of a system of “claim checks,” and for the purpose of having declared void a certain contract between the Terminal Company and the Cab Company, on the ground that such contract was in violation of the constitution, art. 4, sec. 2, par. 4. Upon a trial had in that case before the judge, a temporary injunction was granted, to which judgment there was exception to this court; and on May 24, 1906, the judgment of the court below was reversed, as will be seen from a report of that case in 125 Ga. 677. Afterwards, upon application of (he Transfer Company, the Governor authorized this suit to be brought by the attorney-general. The petition avers, that the Terminal Company is a railroad corporation of this State, that the Cab Company is a corporation, and that the Terminal Company is the owner of the Terminal Station in the City of Atlanta, which is used for the arrival and departure of trains of the Southern Bailway, the Atlanta & West Point Bailroad, and the Central of Georgia Bailway. The railroad companies are made
The privileges granted the Cab Company by the Terminal Company, complained of by the plaintiff in error, so far as are pertinent to this discussion, are: (1) The exclusive control of checking baggage from and to all points in the City of Atlanta from and into the baggage-room of the terminal station. (2) The exclusive privilege of having an office in the depot building from which to conduct business. (3) The exclusive privilege of soliciting business on the depot property and in the depot "building-from passengers. (4) The exclusive privilege of boarding the cars of the several railroad companies entering the passenger station, for the purpose of. soliciting the delivery in the city of incoming baggage. (5) The exclusive privilege of receiving from the Terminal Company railroad checks and checking baggage at hotels and residences of passengers, when tickets or evidences of the right to travel are exhibited to it. (6) The exclusive right to rent and occupy for the purpose of delivery and storage of baggage of incoming passengers for delivery in the City of Atlanta, and of outgoing passengers, prior to the checking of such baggage with railroad checks. Each of these privileges is granted exclusively to the Cab Company and denied to all others.
Prior to the decision rendered by this court on May 24, 1906, in the ease of Atlanta Terminal Company v. American Baggage Company, 125 Ga. 677, each of these privileges was granted, to 'and enjoyed by the Cab Company, except the last. After the rendition of that opinion, the Terminal Company cut off one corner of its baggage-room by an iron railing about three feet high, and furnished the same to the Cab Company in which to store outgoing baggage prior to the cheeking of the same by railroad checks. This space so cut off'opens on the driveway from which trunks and other baggage are delivered into the baggage-room, and also has openings into the remaining portion of the baggage-room, which space the Cab Company was occupying at the time this suit was
The plaintiff in error asks that the Kates case be reviewed and overruled. The judgment in that case was concurred in by a full bench of six Justices. In order to overrule it, the judgment of reversal must be concurred in by a full bench of six Justices. TTpon a review of the Kates ease a sufficient number of Justices do not concur in order to overrule and reverse it. Therefore that decision must stand and be followed as to all questions decided by it. In view whereof, it is not deemed advisable, in this connection, to enter upon a discussion of the principles underlying the decision. The subject is treated in Beale &' Wyman’s ‘ Railroad Rate Regulation, §§809-816, where the authorities pro and eon are collated. An inspection of the opinion in the Kates case will reveal that art. 4, see. 2, par. 4 (Civil Code, §5800), was considered by the court and the decision rendered with reference thereto. It is insisted by plaintiff in error that the right of the
It is.urged-by-the counsel for the cab company in this case that the court in this extract was speaking of baggage in its technical sense, having in mind a trunk the custody and possession of which, by reason of its owner’s relation to the railroad, could at once be legally enforced upon it; that is, when presented with a railroad ticket, to be checked to point of destination. The court, however, could not have had this view of the matter, for the simple reason that Kates was not complaining that there was a refusal to check with railroad check-s trunks when presented with the evidence of the right of transportation; his complaint in this respect was that the baggage-master received into the baggage-room trunks having on them claim Checks of the cab company, and refused him the same privilege. ■ Nor could the court have had in view the complaint of Kates as to checking baggage by the cab company with railroad checks at hotels and residences, because the opinion deals with this subject and upholds this special privilege thus given to the cab compan}’-. as being legal: It hardly seems possible to escape the conclusion that the court had in mind the system of - claim-checks as practiced at the station, and of which Kates was complaining. It was not the sj^stem of claim-checks in and of itself which Kates objected to. He had the perfect right to have a system of his own, just as the cab company had; but the trouble was, as claimed by Kates, that the'baggage-master recognized the system of the cab company, and received the trunks into the baggage-room, but refused to recognize those upon trunks handled by Kates. The court says that “if it should be found to be true,” (that is, as the writer interprets the meaning of the court, if the jury on the final trial of the case should find it to be true that the baggage-master received trunks into the baggage-room on the claim-checks of the cab company and refused a like privilege to trunks handled by Kates, the parties being at issue on this question) “that the .defendant railroad companies, either in the receipt or delivery of baggage by their baggage-master or other agents, discriminated against any passenger or the agent of any passenger in the time or manner in which baggage was received or discharged either through a system of claim-checks or otherwise, such discrimination would be a palpable violation of their public duties,”
The only right of storage allowed the cab company in the baggage-room was to place the trunks handled by it along with and among the other trunks in the baggage-room, this right of storage being exercised under the claim-check privilege. It is certain, so far as storage privileges were concerned, that the cab company had no separate space set apart to it for that purpose. The conclusion follows that in point of fact the cab company had no right of storage in the baggage-room except that allowed by the claim-cheek privilege, which, being a matter about which there was conflicting evidence, was not decided, and the opinion so expressly states. “The right of the petitioner to have the judgment refusing the injunction reversed must depend on the application of legal principles to such of the allegations as are not contested by the evidence” (page 642). One of the contentions bjr Kates was that the cab company had the privilege of using an office in the baggage-room for the transaction of its business, and this right ■was denied to him. There was no conflict in the evidence, nor denial in the pleadings, as to the truth of this contention, by Kates. Whatever business may have been transacted in this office by the cab company, it is certain that the storage of trunks was not a part of such business. The original record in the case indicates that the office was used in connection with incoming baggage. In par. 15 of its answer the board of control says: “Therefore it is ■necessarily true, that, in order to do this work effectively, some arrangement had to be made with some company granting to it the privilege of meeting incoming trains for the purpose of receipting for baggage to be delivered to the passenger’s residence. In order to do this the defendant had to furnish the company thus engaged with an office in which lousiness could be conducted.” Kates attacked the right of office privileges and the right of storage privileges separately; and it is a significant fact that the court treated these subjects under separate heads, sanctioning the office privilege as legal, and, if not condemning, certainly refusing to joass on the legality of the storage privilege, because its existence
It is insisted, however, that the right of the cab company to have an office in the baggage-room from which to conduct its business was distinctly decided; and that there is no difference, in principle, in the right to an office'in the baggage-room and the right of storage space; that, the right of rental being conceded, the right of use for all purposes follows. In this connection it would be well to determine what principle the Kates ease decides. It will not be controverted that the exclusive privileges held by the court to be legal, which were granted the cab company and denied to Kates, are all based upon the same legal principles. They are all stated together and one line of argument applies to all. The court on page 643 of the opinion says: “The merit of his [Kates’s] complaint, if any exists, must be found in the fact of the refusal of the defendant to grant to him the opportunities so to serve the public and thereby better his business. Whether the refusal so to do is proper or unlawful does not depend upon the favor or inclination of the railroad company, hut upon the plaintiff’s right.’’ In order for Kates, therefore, to show that he was entitled to an office in the depot building, he had to show that he had a legal right, under the facts, to compel the railroads to grant it to him. The court further says that “if it should depend upon favor, then the plaintiff in error has no cause of complaint, because favor is essentially free and voluntary, and may not be demanded; and it is in this view we come to measure by the legal standard what are the rights of the petitioner under the allegations he makes, as against the rights of the defendants to control property to which they have title and consequently the right of use; and the plaintiff in error [Kates], to succeed, must establish the proposition that the defendants as common carriers are in law bound to afford to him the same conveniences and facilities for carrying on his business which they afford to others engaged in the same calling.” The court then proceeds to argue that Kates, seeking to ply his private business upon the railroads’ property, has no rights which he can enforce, The decision is predicated upon the proposition that
The plaintiff insisted, that the claim-check system was discontinued because of the decision in the Atlanta Terminal Company case (supra), and that the claim that exclusive space was rented to the cab company was only a subterfuge to avoid the ruling in that case and thus continue the same discrimination against the public as practiced by the claim-check system; that the inconvenience to the general public in procuring railroad checks for baggage was greater since the change than before; that when the change was made the space which had been, up to that time, used for incoming baggage was used for outgoing baggage and vice versa, and the distance the passenger would have to walk to procure his
Mr. Justice Little in the Kates case, 107 Ga. 645, says: "It is a sound legal principle that a railway company as a common carrier can not grant to any person or persons, or to any part of the public, rights or privileges which it refuses to others, but must treat all alike. Receiving and discharging baggage is one of the duties of a public passenger carrier.” It being the duty of a carrier as such to receive the baggage of those who desire to travel upon its lines, it is its duty also to provide suitable and convenient facilities for the reception thereof. Such facilities as it prepares must be furnished without discrimination to all alike who desire to avail themselves of the use of such facilities. This is a public duty. It is not granted as a favor, but may be demanded as a right. The right to have baggage transported by a common carrier is incidental to the right of the owner thereof to be transported: incidental in the sense that no right to have baggage transported arises unless the owner thereof procures the right of transportation for himself. The price paid for a railroad ticket is the consideration for the right of transportation of both person and baggage, and is equally obligatory upon the carrier. The price paid for the ticket 2>ays for the transportation of the baggage in the same way that it 2)ays for the transportation of the person. 8 A. & E. Enc. Law, 543; Hutch. Car. (ed. 1906) §1241; 6 Cyc. 663. A railway company has the right to make and enforce reasonable rules for the conduct of its business. A rule requiring the purchase of a ticket
It is insisted in this ease.that the carrier has adopted a rule, which the agent, the terminal company, is bound to obey, to the effect that no parcel shall be received into the baggage-room unless the same be accompanied bjr a railroad ticket; that this rule is adopted for its own safety, as well as for the benefit of the public. It is conceded that a rule is reasonable which provides that no parcel shall be checked with a railroad check for transportation before the presentation of a railroad ticket, but it does not follow, because this regulation is reasonable and is for the protection, of the carrier, that a regulation refusing admission into the baggage-room of
For reasons stated in the foregoing discussion, the writer is of the opinion that the judge below should have enjoined the defendants from carrying out the contract with the cab company, renting to it exclusively space in the baggage-room, on the ground that it
Affirmed.
Concurrence Opinion
specially concurring. In my opinion the right of the defendant to rent space in its baggage-room to another for the purpose of enabling the tenant to carry on therein the business of storing trunks and other parcels preparatory to checking them as baggage rests upon the same principle as the right of the defendant to grant to another the exclusive use of the “claim-check system.” Concerning that question my views are fully expressed in the report of the ease of Atlanta Terminal Company v. American Baggage Co., 125 Ga. 617. In the present case there is a slight conflict of evidence as to whether there was not a discrimination in favor of the Atlanta Baggage & Cab Company in the matter of checking trunks as baggage after passenger relations had been established by purchasers of tickets. For example, the evidence offered generally by the defendant tended to show that there was no such discrimination, while the testimony of Mrs. Robertson indicates that after the purchase of a ticket by one not a patron of said Atlanta Baggage & Cab Company, the purchaser of the ticket was not then afforded an equal opportunity with patrons of the. Atlanta Baggage & Cab Company for identifying and cheeking trunks. It may be that the example cited was illustrative of a. general custom of discrimination after the passenger, relation had been established. As to whether it was or not, and, if so, whether in fact the complaint was well founded, presented questions of fact for determination by the chancellor. Aside from these questions, I do not see from the evidence any other question of fact involved in the ease. The other questions are purely of law and are such as to enable me to agree with the majority in the conclusion that the court did not commit error by refusing to grant the injunction.