Page:Federal Reporter, 1st Series, Volume 10.djvu/226

 214 .1. . FEDERAL EBPOBTKB. '' �this business, that these packages should be in the immediate charge of an agent or messenger of the person or company engaged in it; and to refuse permission to this agent to accompany these packages on steam-boats or raiiroads in whieh they are carried, and to deny them the right to the control of them while so carried, is destruc- tive to the business, and of the rights which the public have to the use of the raiiroads in this class of transportation. �3. I am of the opinion that when express matter is so confided to the charge of an agent or messenger the railroad company is no longer liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due care, skill, and diligence on the part of the railroad company, �4. That under these circumstances there does not exist, on the part of the railroad company, the right to open and inspect -11 packages so carried, especially -when they have been duly closed or sealed up by their owners or by the express carrier. �5. I am of the opinion that it is the duty of every railroad company ,to provide 8uch conveyances by special cars, or otherwise, attached to thejr freight or passenger trains, as are required for the safe and proper transportation of this express matter on their roads, and that the use of these facilities should be extended on equal terms to all who are actually and usually engaged in the express business. If the number of persons claiming the right to engage in this business at the same time, on the same road, should become op- pressive, other considerations might prevail ; but, until such a State of aiiairs is shown to be actually in existence in good faith, it is unneeessary to consider it. �6. This express matter and the person in charge of it should be carried by the railroad company at fair and reasonable rates of com- pensation, and where the parties concerned cannot agree upon what that is, it is a question for the courts to decide. �7. I am of the opinion that a court of equity in a case properly made out has the authority to compel the railroad oompanies to earry this express matter, and to perform the duties in that respect which 1 have already indicated, and to make such orders and decrees, and to enforce them by the ordinary methods in use, necessary to that end. �8. While I doubt the right of the court to fix in advance the pre- cise rates which the express companies shall pay and the railroad companies shall accept, I have no doubt of its right to compel the performance of the service by the railroad company, and after it is ��� �