James B. Johnson, Plaintiff in Error, vs. The Pensacola and Perdido Railroad Company, 16 Fla. 623

.Me. Justice Westcott delivered the opinion of the court. This writ of error is'prosecuted here by James B. Johnson, the plaintiff in the Circuit Court. What he questions .first, as a matter of practice, is the correctness of the ruling • of the Circuit Court upon the demurrer to defendant’s pleas. The defendant before filing its pleas had demurred to the declaration, and the court had overruled the demurrer.

To the ,pleas then filed the plaintiff demurred, and the first question in the case to be;determined is, does this demurrer reach.the declaration, or, the declaration having been sustained by the court in overruling defendant’s demurrer thereto,'does this action of the-.court fix the law of the case, and, xipon demurrer to the plea, prevent this court or the Circuit-Court from going back to the declaration ? The plaintiff in error here maintains that it does, and insists that the only question is, admitting the declaration to be .good, is this a good plea.?

The only case brought to our attention in this connection is the case of Ellison, Adm’r, vs. Allen, 8 Fla., 209. There this, court held that a defendant in the Circuit Court, and appellant.here, could not avail himself of his demurrer, abandoned in .that eourt, by his .pleading over when it was overruled. We will state the principles of law .controlling this subject as applicable to that case, as well as to this.

Upon the interposition of the demurrer of the defendant to plaintiff’s declaration, going as-it did to the sufficiency in law of the matter stated as a foundation for.the action, the judgment consequent upon the overruling the demurrer was a judgment .quod recuperet. -This was the-strict.common .law rule. (Tidd’s Prac., 657.) This rule has been varied in most of the State courts, as well as in the courts of the United States.

The general rule is now that even after the court has announced its judgment to be that the declaration is good in law, the defendant is permitted to withdraw his demurrer, to plead de novo, and thus avoid a final judgment against him. In this State the statute provides (act of Nov. 23, 3828, Thomp.

Dig., 331,) that “no demurrer, either at law or in equity, shall be considered as an admission of the facts set forth in the pleadings demurred to, so as to debar the person demurring from any substantial claim or defence which he might have urged if said demurrer had not been filed,” and the constant practice upon the circuit is, upon overruling a demurrer to a declaration, to permit the defendant to plead to the merits.

When, howevef, he pleads to the merits he must withdraw his demurrer, and the consequent final judgment quod recuperet, which is the only known form of judgment which can follow overruling a general demurrer to a declaration, is not entered. This is the reason why a defendant, if he pleads over after judgment against him upon his demurrer to the declaration, is held to waive his demurrer. In such cases courts of error, controlled by the common law practice, treat the record as not containing any such judgment or demurrer—treat the case as if no demurrer had been filed.

This, in view of our "statute, is eminently just and proper. The statute takes from the plaintiff, so far as defendant’s pleading is concerned, all advantage of the judgment in his favor upon defendant’s demurrer to his declaration; and as to the defendant, it very properly provides that his case shall stand as “ if said demurrer had not been filed.” This is the reason why the appellant in the case referred to by the plaintiff in error here (8 Fla., 209,) was not permitted to assign for error the judgment of the court upon his demurrer.

This court in that case says, if he desired to have that ruling reversed he should have refused to go to the country, and have permitted the judgment on the demurrer to stand. The only authority cited by this court in that case for the view there announced was the case of the United States vs. Boyd, 5 How., 51. There the Supreme Court of the United States says, “ The withdrawal of the demurrer and going to issue upon the pleading operated as a waiver of the judgment.

If the defendants had intended to have a review of that judgment on a writ of error, they should have refused to amend the pleadings and have permitted the judgment on the demurrer to stand.” The Supreme Court of the United States is somewhat more explicit in the language used in the later cases covering this subject. In the United States vs. Vigil, 10 Wall., 423, that court says, “ The filing of a plea to the merits after the demurrer was overruled, operated as a waiver of the demurrer. The pleading was thus abandoned and ceased thenceforth to be a part of the record.” In Young vs.

Martin, 8 Wall., 357, the same court, in speaking of this subject says, “ They thus abandoned their demurrer, and it ceased to be a part of the record.” With this explanation and statement of the true grounds of this action of the court and of the Supreme Court of the United States, in cases where the plaintiff in error seeks to question a judgment of the court of original jurisdiction overruling a demurrer after he has plead over, we ask what is the result of its application here ?

The rule being that such a demurrer and judgment is, in contemplation of law, no part of the record, or if it is strictly a part of the record it is waived, then the general rule that upon plaintiff’s demurrer to the defendant’s pleas, the sufficiency of the declaration is brought in question must operate, for the simple reason that there is nothing to prevent its operation. The record stands as if originally there was nothing but the declaration, the plea and the demurrer thereto.

Why should the defendant be held to have waived his demurrer, and the plaintiff be given all advantage, of it in the same manner as if not waived ? How can it be held that a demurrer can. be considered as withdrawn for one party and not for the other ? The law has no such anomalies. If it is withdrawn it is withdrawn for all parties, and that is the end of it. This, our conclusion, reasoning from elementary principles of pleading, is sustained, without exception, by the cases which we have been able to find covering the precise point. In Cumming vs.

Gray, 4 Stew. & Port., 397, the Supreme Court of Alabama says, “ That where a demurrer to a declaration containing no substantial cause of action has been overruled and the defendant pleads over, a second demurrer may well be extended bach to the declaration.” To the same effect are the cases reported in 13 Ala., 265, and 13 Ala., 490-500, and the like rule is announced by the Supreme Court of the United States in 7 Wall., 93.

Our conclusion as to this point is that the demurrer to the plea reached the declaration, notwithstanding a previous demurrer to the declaration overruled, and that upon the argument of the demurrer to the plea, the record was to be treated in just the same manner as it should have been if no demurrer to the declaration was ever filed. The next question in order in view of this conclusion is, do the facts set forth in this declaration constitute in law a cause of action ?

The facts here alleged are that the defendant, a common carrier, compelled the plaintiff to pay to the defendant, between the first day of July, A. D. 1874, and the first day of March, A. D. 1877, fifty cents per thousand feet on 4,400,-000 feet of lumber shipped by plaintiff over said railroad, making an aggregate of $2,200 in excess of what the said defendant charged the Perdido Bay Lumber Company for like transportation over said railroad during the said period, between the first day of July, A. D. 1874,fand^ the first of March, A. D. 1877.

Under the charter of this company it has the general power “ to' levy and collect tolls from all persons, property, merchandise, and all other commodities transported ” on its road. There is no statute in this State regulating the matter of freights and charges by railroad companies. It is not denied that this company is a common carrier.

We must, therefore, look to the common law for the settlement of the question involved. •The fact here stated is, that defendant compelled plaintiff to pay for lumber shipped over its road fifty cents per one thousand feet more than it charged another party for transporting lumber over its road at the same time, and the plaintiff insists that this difference of fifty cents was an illegal charge, and that he is entitled to judgment for $2,200, having been compelled to pay freight at that rate and in this manner on 4,400,000 feet of lumber.

The question here is, what was and is the extent of the obligation of a common carrier at common law to the public, when viewed in reference to charges for tolls and freights ? . In Peck vs. North Staffordshire Railroad Company, decided in the House of Lords in 1863, (10 Ho. Lords cases, 511,) Mr. Justice Blackburn says : “A common carrier, is bound to carry for a reasonable remuneration.” In one of the earliest cases upon the subject (Bastard vs.

Bastard, 2 Show., 81,) it is said that “ where there is no agreement as to price,” (and this is really the best method by which to fix the common law right.,) “ the carrier might have a quamtiwm meruit for his hire.” This means simply that he could recover the value of his service. In Harris vs.

Packard, 3 Taunt., 264, it is said: “ A carrier is bound by law to carry everything which is brought to him for a reasonable sum to be paid to him for the same carriage, and not to extort what he will.” We cannot say that the carrier is bound to carry anything beyond articles of such class as he is under a legal obligation to cany, (3 Story, 34,) but it is unquestionably true that his charge must be “ reasonable.” So in Comyn’s Digest we find it announced that in the absence of an agreement for a price certain, the common carrier may have a qucmbwm mermi. 1 Com. Dig. C., citing 1 Sid., 36.

In the case of the Citizens’ Bank vs. The Kan tucket Steamboat Company, 2 Story, 35, Mr. Justice Story, speaking of the hire or recompense of common carriers, remarks that “it may be in the nature of a quantum meruit.” The same view is announced in 5 Wend., 340, and in 5 Wend., 350. Says Parke B., in Pickford vs. The Grand Junction Railroad Company, 8 M. & W., 378 : “ The carrier is bound to receive the goods on the money being paid or tendered, and the bailor to pay the reasonable amount demanded.” In 2 Steph. N.

P., 978, it is said “ common carriers are bound to receive and carry the goods of the subject, for a reasonable reward.” In 1 Duval, 146, the Court of Appeals of Kentucky says: “ A common carrier cannot, like a merchant or mechanic, consult his pleasure or caprice as to. the conduct of his business. The law makes it his duty, when he can conveniently do so, to receive and .carry goods, for any person whatsoever for a reasonable hire.” Under the English decisions a warehouseman, having by virtue of

an act of Parliament a monopoly of his business, is, as to rates of compensation which he can demand, placed upon the same footing as a common carrier. He is bound by law to receive goods into his warehouse for a reasonable price and reward. The principles which underlie this rule,' as announced by Lord Hale, are stated by the English courts as the basis of their conclusions as to this matter.

So in a case in the Supreme Court of the United States, (4 Otto, 134,) where it proposed to state the common law on the subject, the views of Lord Hale, and these decisions of the courts of England, are cited as giving the true rule. In Allnut and another vs.

Inglis, Treasurer of the London Dock Company, (12 East, 527,) Lord Ellenborougli says that according to Lord Hale, “ wherever the accident of time casts upon a party the benefit of having a legal, monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods, which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf.

Lord Hale puts the case either way ; where the King or a subject have a public wharf to which all persons must come who come to that port to unlade their goods, either because they are the wharves only licensed by the Queen, or because there is no other whmf in that port, as it may fall out; in that case (he says) there cannot be taken arbitrary and excessive duties for cranage, wharfage, &c., neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the King’s license or charter.” And then he assigns this reason, “ for now the wharf and crane and other conveniences are affected with a public interest and they cease to be juris privati only.” Lord Ellenborough then says: “ Here the company’s warehouses were invested with the monopoly of a public privilege, and, therefore, they must by law confine themselves to take reasonable rates for the use of them for that purpose.” Le Blanc, J., in the same case, after stating that the act of Parliament confines the privilege to the company’s warehouse, enquires: “ Is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary but only a reasonable rent ?” and then answers his own enquiry by declaring that “ in case of dedication to such a purpose as this ” (that is, where private property is affected with such a public interest,) “ the owners cannot take arbitrary and excessive duties, but the duties must be reasonable.

That principle was followed up in the case of Bolt vs. Stennett, (8 Term Reports, 606,) for there the quay being one of the public quays licensed under the statute of Elizabeth, it was held that the owner was bound to permit the use of the crane upon it and could not insist either that the public should not use the crane at all, or should use it only upon his own terms, but that he was bound to permit the use of it upon reasonable terms.” In the same case like views were expressed by Bayley, J.

It cannot be questioned that the reason why a common carrier is restricted to. reasonable rates is the same that causes the limitation at. common law upon the rates to be charged by a wharfinger licensed under- a statute. (Munn vs. Illinois, 4 Otto, 129-30.) In reference to a railroad company it may be truly said that it exercises a quasi public employment. While railroads are managed for private benefit and the profits resulting from their operation go to individuals, yet they are treated as merely a public convenience and agency in the matter of State and inter-State commercial intercourse.

It is the public character attached to them which, under certain circumstances, authorizes taxation for their construction, as a tax for a private purpose is unconstitutional; and it is the like public nature of their functions which enables them to become the objects of a legislative grant to take the property of an individual for their use, paying a reasonable compensation therefor. We have exhausted the material at our hands in the endeavor to ascertain the result of the English cases upon this question..

We can find in England or the United States no ease involving the precise point here involved, which is, whether, at common law, the defendant, a common carrier, is responsible to the plaintiff for the excess charged him upon the like material and during the same time over a charge for like freights for like material during the same time made of another. In the case of the Fitchburg Railroad Company vs.

Gage and others, (12 Gray, 393,) the Supreme Court of Massachusetts held “ that a railroad corporation is not obliged as a common carrier to transport goods and merchandise for all persons at the same rates.” In speaking of the common law rule, that court says : “ It requires equal justice to all. But the equality which is to be observed in relation to the public and to every individual consists in the restricted, right to cha/rge in each particular case of service a reasonable compensation and no more.

If the carrier confines himself to-this, no wrong can be done and no cause afforded for complaint.” The claim made in this case arose out of a difference between the freights upon plaintiff’s ice and the price-charged others upon the same class of freights. It was not upon the same material, but the court treated the case as involving the same principle. It based its conclusion upon the ground that tbe plaintiff did not set out a case of excessive or unreasonable charge.

In the last edition of Story on Bailments, we find the rule of the common law thus stated : “At common law a common carrier of goods is not under any obligation to treat all customers equally. lie is bound to accept and carry for all upon being paid a reasonable compensation. But the fact that he charges less for one than for another is -only evidence to show that a particular charge is unreasonable; nothing more.

There'is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreasonably -low rate or even gratis.” In support of this doctrine the following cases are cited: 12 Gray, 393 ; 2 P. C., 237; 4 C. B., (N. S.) 78; 12 C. B., (N. S.) 74. While the text is the reasonable deduction from remarks in these cases, still, with the exception of the case reported in 12 Gray, they were (so far as we have been able to examine them) cases arising under statutes.

Most of the cases treat of the common law rule strictly as between the parties, and without comparison as to the charges against others, the cases where legislative action is being construed and is controlling, being omitted as not being in point. The cases stating the common law rule are simply that the charge must be reasonable. Thus far there cannot be any reasonable difference between fair minds. In the next place, the right to h'avfe the service of the common carrier at a reasonable rate is common..

Upon a tender of a reasonable compensation, unless there is a reasonable ground for his refusal, in case of refusal he will be liable to an action. Under such circumstances he must receive and carry all goods offered for transportation (which it is his duty to transport,) by any persons whatever, upon receiving a suitable hire. .Looking to the pases,'and rejecting as we always must theories of judges based upon ill defined

definitions and outside of the facts before them, the term “ common ” in this connection is used as contra-distinguished to private or exclusive. It means a public carrier as distinct from a private carrier—a carrier, simply pro hac vice. As to whether a carrier is public or private is the method by which you measure his responsibility. In case of loss or damage to goods by a carrier, the grounds of the difference of the responsibility depend upon whether he is a public or a private carrier.

The cases in England and the United States show that the term common .as applied to carriers means simply public- as distinct from primate. The term common does not measure the extent of the right of each or its nature. It simply means that whatever is the right of one is the right of all, without proposing to define what is the right of any, except that the term common as applied to carrier involves the duty and Obligation to undertake the service, while the term private as applied to carrier involves discretion' in the matter. (2 Stephens N.

P., 962.) Common carriers are “ carriers for hire indifferently for all persons.” ’ ■ “ Those who are engaged in the business of carrying for all’ who apply, indiscriminately, upon a particular route, by whatever mode of transportation they conduct their business, must be regarded as common carriers; while those who undertake to carry in a single instance, for a particular person, not being engaged in the business as a general employment, even for a portion of the time, must be considered private carriers.” (4 Harr., 448; 1 Pick., 50; 2 Red. on Rail., 5 Ed., p. 5, and cases.cited.) Says Chancellor Kent, “common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire as a business, and with or without a special agreement as to price.” (1 Salk., 249 ; 8 Carr, and P., 207; 3 Barb., 388; 2 Kelly, 353.) Says Nisbet, J., (in the case last cited,) when treating of the distinctions between a common and private carrier: ■ “If he refuse to carry he is liable to be sued and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character.” Says Mr.

Justice Story, (Story on Bailments, 495,) after speaking of his general obligations, “ a common carrier has therefore been defined to be one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place.” (1 Wend., 272; 2 Story, 17; 25 Penn. St., 120.) In the last case the terms common and public are used as synonymous words. It is useless to multiply quotations to determine the signification of the term common in this connection.

It is used not to define, to limit, or explain the degree or amount of compensation which can be demanded tor the service to be performed. . Indeed, as to the amount of compensation which can be démanded, the rule as to public and private carriers is the same. It is a quantum rnermt. True, the responsibility, the risk of the public carrier is greater, and that fact may possibly enter into the estimate of the value of the service. That, however, would simply increase the damages, on account of the different degrees of responsibility attending the several bailments. It would not vary the rule.

Our conclusions are that, as against a common or public carrier, every person has the same right; that in all cases, where his common duty controls, he cannot refuse A. and .accommodate B.; that all, the entire public, have the right to the same carriage for a reasonable price, and at a reasonable charge for the service performed ; that the commonness of the duty to ca/rry for all, does not involye a commonness or equality of compensation or charge; that all the shipper ean ask of a common carrier is, that for the service performed he shall charge no more thorn a reasonable sum to him; that whether the carrier charges another more or less than the price charged a particular individual, may be a matter of evidence in determining whether a charge is too much or too little for the service performed, and that the difference between the charges cannot be the measure of damages in any case, unless it is established by proof that the smaller ■charge is the true reasonable charge in view of the transportation furnished, and that the higher charge is excessive to that degree.

The obligations in this matter must be reciprocal. Where there is no expréss contract, the common, law action by the carrier against the shipper is for a quantum meruit, and the liability of the shipper is for a reasonable sum in view of .the service performed for him. What is charged another person, (in this case the amount charged the Perdido Bay Lumber Company,) or the usual charge made against many others (the freight tariff) is matter of evidence admissible to ascertain the value of the service performed.

In every case the legality of the charge is established and measured by the value of the service performed, and not by what is charged another, unless what is charged the other is the compensating sum, in which event it is the proper sum, not on account of its equality, but because of the relation it bears to the value of the service performed as an adequate compensation therefor. To sum the whole matter .up, the common law is that a common carrier shall not charge excessive freights.

It protects the individual from, extortion, and limits the carrier to a reasonable rate, and this on account of the fact that he exercises a public employment, enjoys exclusive franchises and privileges, derived, in the ease of defendant here, by grant from the State. The rule is not that all shall be charged equally, but reasonably, because the law is for the reasonable charge and not the; equal charge. A statement of inequality does not make a. legal cause of action, because it is not necessarily unreasonable.

It would be a strange rule indeed which would authorize a shipper, after being compelled to pay his freights according to established rates, (this appears from the pleas and declarations,) to look around and find some smaller charge for the same- service during the same time, which may be either as a gratuity, or a sale of service at a non-compensating rate, or less than the reasonable charge, and claim his damages according to this difference, based upon an inequality not general in its character, but existing only by virtue of a charge made for the same service against one-other person.

If this court sanctions the doctrine of absolute equality, and then measures the damages by the difference in the charge as to one person named in a declaration, which does not negative a fair inducement or consideration for the difference, it must sustain such a rule as that stated. The declaration, to be good in law, must state a case of excessive charge for the service performed.

When it simply states a case of inequality of charge, it states no cause of' action, for the smaller charge may be less than reasonable,, and the greater charge may be exactly the value of the service and the reasonable charge for the- transportation furnished. Whether a charge made by A. against B. is reasonable- ■ cannot be determined by establishing the charge against C. for the same service. It is too plain for argument that the higher charge, where there is a difference, may be what is the compensating sum, and the lower charge may be too .small for the service.

In a case of this importance we do not deem it improper to review the cases brought to our attention by the plaintiff in error here. Our attention has been called to the following cases, decided by the Supreme Court of Illinois: The Chicago and Alton Railroad Company vs. The People, 67 Ill., 11 ; Vincent vs. Chicago and Alton Railroad Company, 49 Ill., 33, and Chicago, B. & Q. R. R. Co. vs. Park, 18 Ill., 460.

The first case was an information in the nature of a quo wa/rramto based upon the provisions of “an act to prevent unjust discrimination and extortion' in the rates to be charged by the different railroads for the transportation of freight on said roads.” The question was whether a charge of $5.65 per thousand feet of lumber a distance of 110 miles, while at the same time the company charged $5 per thousand feet of lumber for a distance of '126 miles, did not subject the company to the penalties prescribed by the act.

In answer to the information, the company alleged that the higher charge for the shorter distance-was a reasonable charge, and that the smaller charge was unreasonably low. Upon demurrer to this answer or plea, the court held that notwithstanding the charter of the corporation was a contract giving general power to prescribe tolls, the Legislature had power to prohibit unjust discriminations ; that it did not have the power under the.

Constitution to prohibit any discrimination, and that “ the naked fact that a railway company charged a larger sum for transporting freight of the ■same class over a given distance than it is charging for the same distance over another part of its road, or in the opposite direction, is not of .itself conclusive evidence of an unjust discrimination,” and “'that a difference of price for the same distance of transportation is not necessarily an unjust discrimination.” In the case reported in 49 Ill., the court decided that railroad companies were not at liberty to discriminate at their discretion in their charges for delivery at different warehouses.

The case reported in 18 Ill., 466, was a claim by a passenger for damages for an alleged illegal expulsion at a place not a station. In the later cases in Illinois we find the question of discrimination discussed. In 76 Ill., 67, the court sustained a contract allowing a rebate of 5-J- cents less than the uniform tariff per bushel for corn. In 79 Ill., 121, the question of the power of a railroad company, anterior to this legislation, to make a contract with a party “ for transportation of freight at a less rate than the general public was required to pay,” was sustained.

The agreement was to transport coal for $3 per car load, the-freighter furnishing the cars, while the regular tariff was $9.. We do not think the question of equality was involved in any of the Illinois decisions brought to our attention by counsel. The later cases sustaining a difference (76 and 79 Ill.) in the amounts paid for freight, we think are entitled toraore consideration. The case reported in 76 111. was upon a contract made before any of the legislation against unjust discrimination. The rule for its determination was the common law.

It is, therefore, more like this case, and what is there said is entitled to more weight. We consider other cases cited. The case reported in 57 Maine, 188, was where a railroad company refused to carry the plaintiff’s express freight. The case reported in 52 N. H., 430, was upon a statute requiring that “ all persons shall have reasonable and equal terms, facilities and accommodations for the transportation of themselves, their agents and servants, and of any merchandise,” &c.

In speaking of the rule of the common law upon the subject as stated by the English courts, the Supreme Court of Hew Hampshire in this ease says : “ We-have not overlooked the fact that in England it seems to be supposed that at common law common carriers are not bound to carjy all and for all on reasonably equal terms,’7 and that “ the fact seetns now to be overlooked ” (by the English courts) “ that the general principle of equality is the principle of the common law.” “ A mistake of this kind is an evil of some magnitude.” This case is under a statute.

Not only is this true, but we cannot accept the reasoning of this court, based upon- no authority, founded in decisions involving the points discussed, as against what it admits is the rule as announced by the English courts. The English courts announce the rule as it is fixed by the common law cases cited in the beginning of this opinion. The New Hampsaire court fails to pay any attention to these sources of information, and calls the conclusions therefrom a mistake. We think the dictum of the New Hampshire court wrong, and the doctrine of the English courts right. The case in 68 Penn.

St., 370, did not involve the question of equality of charges for transportation. It involved a right of wharfage. The court--held that the nature of wharfage required exclusive possession. The case reported in 24 Penn. St., 378, was under the statute incorporating the company, and the court held that under this statute a contract giving to one express company an exclusive right of transportation in the passenger trains was illegal and void. The case cited from 24 La. An., 1, is against the plaintiff. It approves the decision in 12 Gray, 399. In the case of Messenger, et al. vs. Penn. R. R. Co., 7 Vroom (N. J.

L.) 407, it was held -that an agreement by a railroad company to carry goods for certain persons at a cheaper rate than they will carry under the same conditions for others is void, as creating an illegal preference. The declaration in the case before us does not make a case of charge for carriage greater against the plaintiff, under the same conditions, than a smaller charge was made of the Perdido Bay Lumber Company. It simply sets up that 50 cents per thousand feet of lumber was charged plaintiff beyond what was charged the Perdido Bay Lumber Company for transportation for lumber at the same time.

Hor is there any sanction in this case in Hew Jersey for the idea that the damages are to be measured alone by the extent of the inequality in the charge. Indeed, in this very case the court say that “ the duty of the common carrier was to receive and carry all goods offered for transportation, upon receiving a reasonable hire.” This case in Hew Jersey is to the effect that it is not “ admissible for a common carrier to demand a different hire from various persons for an identical kind of service, under identical conditions.” The declaration in the case before us does not make this case.

It makes a case of difference in charge upon the same kind of freight (lumber) during the same time. The amount of freight to be furnished by the parties may have been different, and there pay be other circumstances so unlike in character (in re Baxendale vs. The G. W. R. R. Co., 94 E. C. L., 308,) as to control.

Independent of these questions, however, the common law rule as we understand it, and we ascertain it by looking to the elementary principles as announced by the English and American courts, and not from any process of reasoning as to what the rule, in our judgment, ought to be, does not require an equality of charge, but only a reasonable charge in view of the service which the party gets and the carrier renders. Erom the very earliest English cases the measure of the right of the carrier was a quantum meruit.

The carrier must receive this if tendered, and must (with certain defined exceptions) perform the service, and the shipper must pay the value of what he gets. Whether as an internal State regulation of commerce equality should be required by the Legislature, is a matter of legislative discretion ; at least this court can only enforce the rule of the common law as it finds it, and not as it ought to be. Even as to the power of the Legislature in the. premises, however, we say nothing in this case, as it is not ■involved.

Our conclusion is that the declaration does not contain a legal cause of action, and that the demurrer to the pleas of the defendant reached the declaration, notwithstanding a previous demurrer to the declaration by the defendant had been overruled. The judgment must be affirmed.