the great business centres of the country, is transacted under this system, and the rental and market value of lands in such localities is largely determined by the ability to procure transportation at reduced commutation rates. The denial of this privilege to a particular individual is to him a substantial injury. A company is under no obligation to establish commutation rates for a particular locality, but when it has established such rates, and commutation tickets are sold thereat to the public, the refusal of such a ticket to. a particular individual, under the same circumstances and upon the same conditions as such tickets are sold to the rest of the public, is an unjust discrimination against him and a violation of the principle of equality which the company is bound to observe in the conduct of its business. There is not a perceptible shade of difference between the denial of a commutation ticket, under such circumstances, and the refusal to sell the same individual an ordinary ticket, at the customary rate, and demanding of him the utmost price allowed in the company's charter, in excess of the usual price at which such tickets are sold to the public; and such denial cannot be made to square with the principles laid down and emphasized in the Messenger Case. 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 conditions 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 vocations; 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 Rys., sect. 297; Boone, Corp., p. 259. The carrier 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 VOL. XXXIV.—57 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 provided it should be returned to him the next morning, on presentation of his regular commutation ticket, and refused otherwise to pay his fare; that the same offer was made to the conductor and was refused for the reason that the latter had no right to permit the relator to ride on a ticket that should not be punched. The relator rode to Hoboken without paying fare or surrendering his trip ticket, and no disturbance was made. He knew and should have respected the duties of the employees on the train, in the enforcement of the company's rules. By his conduct he made himself liable to ejection from the train, and it may be to the forfeiture of the commutation ticket he then held. But we think that his misconduct did not justify the company in excluding the relator thereafter from a privilege in which, as a member of the community, he was entitled to participate, in common with others of the public. Such a measure of punitive justice has not been granted by any statute, and if inflicted by any regulation of the company, which it was not, would be an unreasonable exercise of the company's power to make rules and regulations for the government of passengers. 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. Railroad Co., 37 Conn. 154; Chicago & N. W. Rd. v. 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 any more commutation tickets, and it does not appear that the terms of the agent's instructions by letter of February 7th, were communicated to him. The agent, on his examination as a witness on the 1st day 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 : State v. Freeholders of Ocean, 47 N. J. Law 417. Furthermore, the relator applied for and obtained a rule to show cause on the 7th of March, and brought on the argument of the rule at the first term of this court thereafter. The delay in the decision of the case was due to causes for which the relator is in nowise responsible, and action for damages, with the obligation to demand and to tender the price of a commutation ticket, from month to month, and make a payment of the fares charged under protest every time, would be an inadequate and vexatious means of enforcing the relator's rights. Under the circumstances, we think a peremptory mandamus, in conformity with the terms of the rule to show cause, should be granted. An early definition of a common carrier is “any man undertaking, for hire, to carry the goods of all persons indifferently:" Gisbourn v. Hurst, 1 Salk. 250. A more recent definition is "every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability imposed, to be considered a common carrier:" Orange Bank v. Brown, 3 Wend. 161. See U. S. Express Co. v. Backman, 28 Ohio St. 150. It will be observed that these definitions involve a serving of the public without discrimination between persons, so far as it relates to the carrying of "goods;" but, as we shall see, this same rule is applicable to the carrying of persons also; B. & O. Rd. v. Adams' Express Co., 18 Am. & Eng. Rd. Cas. 455. Thus it is said in one case of a railway company, that it "is bound, as a common carrier, when not over-crowded, to take all proper persons who may apply for transportation over its line, on their complying with all reasonable rules of the company. But it is not bound to carry all persons at all times, or it might be utterly unable to protect itself from rain. It would not be obliged to carry one whose ostensible business might be to injure the line (Jencks v. Coleman, 2 Sumn. 221); one fleeing from justice; one going upon the train to assault a passenger, commit larceny or robbery, or for the purpose of interfering with the proper regulations of the company, or for gambling in any form, or committing any crime; nor is it bound to carry persons infected with contagious diseases, to the danger of other passengers:" Thurston v. Union Pac. Rd., 4 Dill. 321; sce Pearson v. Duane, 4 Wall. 605; Bennett v. Dutton, 10 N. H. 481. Nor is a carrier bound to carry a drunken person, who is in such a condition as to render it reasonably certain that by act or speech, he will become offensive or annoying to other passengers, even though he has not committed any act of offence or annoy ance: Vinton v. Middlesex Rd., 11 Allen 304; Pittsburgh, &c., Rd. v. Vandyne, 57 Ind. 576. So with reference to the transportation of goods, the same principles are applicable in general. A common carrier is bound to serve all alike, and carry all goods which they carry that are tendered to them, and which they are able to carry: Story on Bailment, sect. 508. In speaking of the right to compensation it was said: "These charges, however, must be uniform; that is, the charge should be the same for all persons similarly situated, and for all freights of a like kind and equality, for a given service. They may divide passengers and freights into classes, with descriptive distinctions, and charge different rates for different classes for a given service, but the charge should be uniform upon all persons and freights embraced within each class" Chicago, &c., Rd. v. Parks, 18 Ill. 460; s. c. 68 Am. Dec. 562. In another case it is said that " transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive grant to one is inconsistent with the rights of all others :" Audenried v. P. & R. Rd., 68 Penn. St. 370; s. c. 8 Am. Rep. 195. This standing indifferent between men and men implies that the price charged for transportation must also be an indifferent price; in other words, for the same service at the same time and place, under the same conditions, the same price must be charged, and no inequality of price can be insisted upon. This is the current of authority in this country, and it is declared to be the same at common law: McDuffee v. Portland & Rochester Rd., 52 N. H. 430; s. c. 13 Am. Rep. 72; Messenger v. Pennsylvania Rd., 36 N. J. L. 407; s. c. 13 Am. Rep. 457; s. c. on appeal, 8 Vroom 531; s. c. 18 Am. Rep. 754; New England Express Co. v. Maine Cent. Rd., 57 Me. 196; s. c. 2 Am. Rep. 31; Sandford v. Railroad Co., 24 Penn. St. 378; s. c. 1 Am. Ry. Rep. 530. In this country numerous statutes have been passed, regulating fares and charges, or providing that there shall be no unreasonable discrimination in fares, rates or services between persons. These statutes have been almost universally held to be only declaratory of the common law, and as applying principles well known before their passage: McDuffee v. Portland & Rochester Rd., 52 N. H. 430; s. c. 13 Am. Rep. 72. In England, however, it has been declared in a dictum that at common law, there was no prohibition against unreasonable discrimination: Baxendale v. Eastern Counties Ry., 4 C. B. (N. S.) 63; but this case has not been accepted in this country as an authority. In 1854 in that country was passed a statute concerning the regulation of railroad companies' charges, in which there was a clause usually known us the "equality clause." Under this statute the courts have the right to make inquiry into unreasonable discrimination, both in accommodations and price charged, and many decisions have been rendered construing this clause. But this clause has been accepted in this country as declaratory of the common law; and this is undoubtedly the true exposition of it. The courts of that country, not finding it necessary to go beyond the words of the statute, on any occasion, fell into the error that there was no power at common law to grant relief for unreasonable discrimination, and came to regard this statute as the only law affording redress: McDuffee v. Portland & Rochester Rd., supra. These English cases may, therefore, be regarded as authorities in this country touching questions of unreasonable discrimination. The cases are to the point that there must be no "unreasonable discrimination." But "neither the service nor the price is necessarily unreasonable because unequal in a certain narrow, strict and literal sense; but that is not a reasonable service, or a reasonable price, which is unreasonably unequal. The question is not merely, whether the service or price is absolutely unequal in the narrowest sense, but also whether the inequality is unreasonable and injurious:" McDuffee V. Portland & Rochester Rd., supra. This is quite evident from the example given in the case just quoted. Thus, a charge of ten dollars for carrying a barrel of flour for one merchant from A. to B. may be a reasonable rate; but to allow the carrier to charge another merchant a greater sum for a like barrel of flour of the same weight, carried over the same route, at the same time, would be an unjust discrimination. It cannot, it has been said, always be accepted as a criterion that a charge is too great or unjust from the fact that another is not charged as much. As was said by Justice CROMPTON to a plaintiff "The charging another person too little is not charging you too much :" Garton v. B. & E. Rd. Co., 1 B. & S. 112. In the language used it was assumed that the plaintiff had not paid an unreasonable price, and this conclusion necessarily settled the controversy. Suppose, however, "another person" had been charged a full but reasonable price, then any overcharge to the plaintiff would have been an unreasonable charge. The charging of one too little is only an apparent discrimination. "But if an apparent discrimination is found to have been a real one, the question is whether it was reasonable, and if unreasonable, whether the party complaining was injured by it" McDuffee v. Portland, &c., Rd. Co., supra. The subject we are discussing is well illustrated by a New Jersey case. The plaintiff sued the Pennsylvania Railroad Company for overcharges, alleging that in 1870 he entered into a contract with the company, to take effect January 1st, 1871, providing to transport hogs from Chicago and Pittsburgh to Jersey City, at the regular rates, allowing him a drawback of twenty cents per hundred pounds upon all hogs shipped from Chicago, and ten cents per hundred pounds upon all hogs shipped from Pittsburgh; and if the company, after January 1st, 1871, should carry the same description of freight for others, between the same points, except seven named parties, at less than their regular rates, or should allow such others drawback, then it would allow the plaintiff such further drawback as would bring their freights twerty cents per hundred and ten cents per hundred lower than the lowest. It was averred by the plaintiff that he had shipped twelve millions of pounds from Chicago, and a like amount from Pittsburgh to Jersey City by the defendant's road; that he had paid the regular rates, and had received the tweuty cents and ten cents drawback, but the company, during the same year, carried for other persons than those excepted in the contract, allowing such persons the saine drawback, or making a reduction in the rates equal to the drawback, whereby the plaintiff became entitled to have a further drawback of twenty cents and ten cents per hundred weight. The court refused relief, and held the contract void, on the ground that it was "calculated to give an important advantage to one dealer over other dealers, *** and that if the power to make the present engagement exists, many branches of business are at the mercy of these companies," and therefore created a monopoly, contrary to public policy. It was said: "A merchant who can transport his wares to market at a less cost than his rivals, will soon acquire, by underselling them, a practical monopoly of the business." "A person having a public duty [as a common carrier] to discharge, is undoubtedly bound to exercise such office for the equal benefit of all, and, therefore, to permit the common carrier to charge various prices, according to the person with whom he deals, for the same service, is to forget that he owes a duty to the community. If he exacts different rates for the carriage of goods of the same kind, between the same points, he violates, as plainly, though it may not be in the same degree, the principle of public policy which, in his own dispute, converts his business into a public employment. The law that forbids him to make any discrimination in favor of the goods of A. over the goods of B., when the goods of both are tendered for carriage, must, it seems to me, necessarily forbid any discrimination |