Mont. 419, 24 Pac. 209, 8 L. R. A. 753, 18 Am. St. Rep. 745; Cravens v. Rogers, 101 Mo. 249, 14 S. W. 106; Indianapolis Union Ry. Co. v. Dohm, 153 Ind. 10, 53 N. E. 937, 45 L. R. A. 427, 74 Am. St. Rep. 274; State v. Reed, 76 Miss. 211, 24 South. 308, 43 L. R. A. 134, 71 Am. St. Rep. 528; McConnell v. Pedigo, 92 Ky. 465, 18 S. W. 15.

The following cases cited by appellants, and also sometimes cited as authorities in some of the foregoing cases, do not directly pass upon the question presented by appellants: Lucas v. Herbert, 148 Ind. 64, 47 N. E. 146, 37 L. R. A. 376; New England Exp. Co. v. Maine Cent Ry. Co., 57 Me. 188, 2 Am. Rep. 31; Sanford v. Railway Co., 24 Pa. 378, 64 Am. Dec. 667; Pennsylvania Ry. Co. v. City of Chicago, 181 Ill. 289, 54 N. E. 825, 53 L. R. A. 223; Lindsay v. Anniston, 104 Ala. 257, 16 South. 545, 27 L. R. A. 436, 53 Am. St. Rep. 44; Mariott v. London & S. W. Ry. Co., 1 C. B. (N. S.) 489. The doctrine announced in 57 Me. 188, 2 Am. Rep. 31, and in 24 Pa. 378, 64 Am. Dec. 667, has long since been abandoned. In those cases it was held that one common carrier was legally required to carry another common carrier, although such other carrier desired to carry on an independent business on the property of the first carrier. This doctrine was exploded by the Supreme Court of the United States in the Express Cases, 117 U. S. 1, 6 Sup. Ct. 542, 29 L. Ed. 791, where the true distinction is pointed out with regard to persons who desire to be carried as passengers or shippers of freight, and such as desire to be transported for the purpose of transacting or of carrying on an independent business with the public upon the property or trains of a common carrier. A common carrier need not provide facilities for others to do business, but must transport them and their property and provided reasonable facilities to do this.

The following American cases support the doctrine that a common carrier may grant an exclusive privilege to one and exclude all others who desire to go upon his premises for the sole purpose of soliciting custom or business: Old Colony Ry. Co. v. Tripp, 147 Mass. 35, 17 N. E. 89, 9 Am. St. Rep.

661 (by a divided court); Boston A. R. Co. v. Brown, 177 Mass. 65, 58 N. E. 189, 52 L. R. A. 418, 19 A. & E. R. R. Cases (N. S.) 304; Boston & M. R. R. v. Sullivan, 177 Mass. 230, 58 N. E. 489, 83 Am. St. Rep. 275, 20 A. & E. R. R. Cases (N. S.) 356; Barney v. O. B. & H. Steamboat Co., 67 N. Y. 301, 23 Am. Rep. 115; Fluker v. Georgia R. & B. Co., 81 Ga. 461, 8 S. E. 529, 2 L. R. A. 843, 12 Am. St. Rep. 328; Kates v. Atlanta Baggage & Cab Co. (Ga.), 16 A. & E. R. R. Cases (N. S.) 140; New York, N. H. & H. R. Co. v. Bork, 23 R. I. 218, 49 Atl. 965, 22 A. & E. R. R. Cases (N. S.) 511; Hedding v. Gallagher, 72 N. H. 377, 57 Atl. 225, 64 L. R. A. 811, 35 A. & E. R. R. Cases (N. S.) 91; Donovan v. Pennsylvania Co., 120 Fed. 215, 57 C. C. A. 362, 61 L. R. A. 140; Donovan v. Pennsylvania Co., 199 U. S.279, 26 Sup. Ct. 91, 50 L. Ed. 192; Barney v. Martin, 2 Fed. Cas. 892, No. 1,030; Norfolk & W. Ry. Co. v. Old Dominion Baggage Transf. Co., 99 Va. 111, 37 S. E. 784, 50 L. R. A. 722; State v. Union Depot Co., 71 Ohio, 379, 73 N. E. 633, 68 L. R. A. 792; Brown v. New York & H. R. Ry. Co., 75 Hun 357, 27 N. Y. Supp. 69. The following English cases also support respondent's contention: Perth Gen. Station Committee v. Ross, 8 Am. & Eng. R. Cases (N. S.) 639; Bedell v. Eastern C. Ry. Co., 2 C. B. (N. S.) 509; Barker v. Midland Ry. Co., 18 C. B. 45.

the

We have not cited all the cases either pro or con upon question; but, as those omitted are about equally divided, nothing would be gained either way by citing them. There are but few of the cases which support appellants' contention that enter upon a thorough discussion of the principles involved. Those cases that do discuss it most freely are the ones cited from Montana, Michigan, and the dissenting opinion in the case of Old Colony Rd. Co. v. Tripp. Upon the other hand, there are quite a number of courts that support the contention of the respondent which discuss the question both from the standpoint of statutory provisions similar to the one quoted by us from the Constitution, and also in view of the principles of the common law which are applicable. Some of the courts which deny the right of the common car

rier to grant exclusive privileges claim the weight of authority to be against the right, while some of those opposed to that view likewise assert that the weight of authority supports their view. From a thorough examination of the cases passing upon the question we have arrived at the conclusion expressed by Mr. Justice Harlan of the Supreme Court of the United States in his opinion rendered in the case of Donovan v. Pennsylvania Company, 199 U. S., at page 299, 26 Sup. Ct., at page 96, 50 L. Ed. 192, wherein he says:

"There are cases to the contrary; but in our opinion the better view, the one sustained by the clear weight of authority and by sound reason and public policy, is that which we have expressed."

This view sustains respondent's contention and supports the judgment of the lower court in this case.

Apart, however, from the number of adjudicated cases either way, let us pause a moment for the purpose of examining the underlying principles involved in the proposition. Let us look at it in the light of reason and logic. Counsel for appellants concede (and this concession is also made by all the authorities cited by them) that the respondent may exclude all persons who desire to come upon its premises for the sole purpose of soliciting custom or business, and may likewise prevent all who come there to transact business with it from soliciting business for themselves. But counsel contend that respondent may not grant the privilege to one to solicit business and refuse it to all others. Counsel, therefore, must concede that no person may go upon respondent's premises to solicit business as matter of right; that to do so is a privilege that the respondent may grant or refuse at pleasure. If this be, how do the appellant acquire the right to compel the respondent to admit them, or any one of them, into its depot or upon its ground for the purpose of soliciting business in their own behalf? Appellants argue that they obtain the right from the fact that the respondent may not discriminate as between applicants in conferring the privilege, and that, if it grants it to one, then it has waived the right to exclude all others and must admit all. This argument seems to be

based upon the theory that so long as all are excluded no monopoly is created, but, if all are excluded save one, then a monopoly results in favor of the one who is granted the privilege, Assuming that the respondent may not create a monopoly in this regard, and for that reason the exclusive privilege granted to one is void as against public policy, how does this give the appellants the right to enter upon the respondent's premises for the purpose of soliciting business? Does the granting of an exclusive privilege to one, which, as is contended, is illegal and void, transform what are termed mere privileges into absolute rights? That this transformation takes place is the logical result of appellants' contention. If it be true that respondent may not grant an exclusive privilege, and that to do so is illegal, it does not follow that, if it does this, thereby a mere privilege is transformed into a right. What would legally follow is this: The exclusive privilege granted would confer no legal rights upon the grantee and would not be binding upon the respondent. In other words it would leave the appellants, the person to whom the privilege was granted, and the respondent in the same relative situation they were in before the privilege was granted. The grantee could not enforce the contract, because illegal, and hence could be excluded from respondent's premises at its pleasure; and, since the appellants never had the permission to enter, it necessarily follows that they, too, may be excluded. The mere fact, therefore, that the grantee is not excluded, does not give appellants the legal right to enter.

Appellants further assert that respondent's property used in the business of a common carrier is dedicated to public use, and, as they are likewise engaged in a similar business they have the right, in the interest of the public, to enter upon property that is so dedicated. No doubt, if either of them has any business with respondent, he may so enter to transact such business. If appellants desire to be carried as passengers or intend to deliver or receive freight, they may enter upon respondent's premises as a matter of right. All or any one of them may also do this in behalf of another who has business with respondent; but this gives them no legal right to require

the respondent to devote any of its property to their use for the purpose of soliciting business for themselves. Suppose the respondent, through its agents demanded the right to enter upon appellants' vehicles for the purpose of soliciting business in its own behalf, and based this demand upon the ground that such vehicles were engaged in a public business, in that they were used in the business of common carriers; would its claim be allowed? In what way would this claim differ in principle from the one urged by appellants? Neither can we see how appellants can prevail upon the ground that the public is interested; that to deny to them the right to enter respondent's premises might result in destroying competition, and thus advance the prices the public will be required to pay for the services appellants desire to render to the public; and that it may result in making the service inefficient, if not inadequate. In making this claim appellants overlook the fact that respondent at all times is subject to regulation and control by the state; that it is a public service corporation and thus amenable to regulation. It may be required to provide reasonable conveniences for the public in the conduct of its business. It must treat all alike, and afford all an equal opportunity to transact business, and may not discriminate in its charges for services rendered. If appellants are engaged in a like business, as they claim they are, they are subject to the same regulation and control. Indeed, the state, through its agencies, may fix the charges they may exact for transporting both persons and property to and from the trains of respondent or its depot. These regulations apply to any one to whom the respondent may grant the privilege to enter upon its premises to make arrangements with incoming passengers to either transport them or their baggage and property to any part of the city. The opportunity to do this does not prevent such passengers from engaging any other person, either in advance of their arrival or after they have arrived, for the purpose of transporting them or their property; nor are they prevented from doing this at or before the time of their departure. If the charge for the service is regulated by law or ordinance, and the facilities of transportation