48 N.J.L. 55 | N.J. | 1886
The opinion of the court was delivered by ■
The Morris and 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. Pamph. 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 and Western Railroad Company, as lessee of the company’s railroad, was invested with its franchises, rights and privileges, (Pamph. L., 1869, p. 28,) subject, of course, to all the obligations and duties resting on the lessor.
At this day it would be superfluous to enter upon á 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
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
The principle above stated is applicable to the case in hand. In virtue of the charter under which the company transacts its business it is a common carrier of passengers as well as of
The excuses the law admits of as sufficient to justify a common carrier in refusing to admit a passenger willing to pay his fare relate to the character or condition of the proposed passenger, or the inability of the carrier to carry such person for want of room in the vehicle. For instance, the carrier is not bound to receive gamblers, thieves, or known pickpockets, who seek to board the train to ply their vocation—persons whose conduct is riotous or disorderly, or one whose person or clothing is so filthy as to be obnoxious to other passengers, or who is afflicted with a contagious disease, or intoxicated to such an extent as to render it probable that he would be disagreeable or annoying to passengers. 2 Wood on Railways,. § 297; Boone on Corp., § 259. Thehrarrier may also exclude a passenger who refuses to comply with the reasonable rules and regulations of the company.
In this instance the excuse for refusing to sell the relator a commutation ticket is his refusal to pay his fare on one occasion during the previous month, when by inadvertence he had left his commutation ticket at home. The facts of that transaction are these: that on the 6th of February, the relator,, holding a commutation ticket for the month of February, took passage in the company’s cars for New York city ; that the baggage master came through the cars, collecting tickets, and asked the relator for his ticket; that the relator looked for his commutation ticket and could not find it, and thereupon offered a regular trip ticket, provided it should not be punched, and should be returned to him the next morning on presentation of his commutation ticket, and refused otherwise to pay his fare; that the same offer was made to the conductor and refused, for the reason that the latter had no right to permit the relator to ride on a ticket which should not be punched. The relator then rode to Hoboken without paying fare or surrendering the trip ticket, and no disturbance was made. The
The relator’s right to proceed by mandamus is disputed. It is insisted that his only remedy is by action for damages. It is undisputed that mandamus is an appropriate remedy.for withholding a right such as the relator has in this instance, and that the court in its discretion will award the writ, if justified by the circumstances. State v. R. R. Co., 37 Conn. 153; Chicago & N. W. R. R. Co. v. The People, 56 Ill. 365; High Extr. Rem., § 322. It will be observed that the relator testified that his residence at East Orange is a permanent residence, and that the lease for the house he occupies extends until May 1st next. His business is established in the city of New York. He also testified that the agent’s refusal was to sell him anymore commutation tickets, and it does not appear that the terms of the agent’s instructions by the letter of February 7th were communicated to him. The agent, on his examination as a witness on the 1st of May, 1885, testified that the order so given had not been countermanded or withdrawn, and it is manifest from this litigation that it is intended not to admit the relator’s right until a decision upon that right shall be obtained—a circumstance which is sufficient evidence of refusal to justify the award of a mandamus. Lindabury v. Freeholders of Ocean, 18 Vroom 417. Furthermore, the relator applied for and obtained this rule to show cause on the 7th of March, and brought on the argument of