I concur in the judgment in this case, but I ■can not concur in all that is said in the opinion of my able and learned brother. It was decided in Kates v. Atlanta Baggage & Cab Co., 107 Ga. 636, that “Relatively to passengers and their baggage, the duty of a railway companj’', in its capacity as a common carrier, begins with affording to them, and to all of them alike, proper and suitable facilities for entering depots to purchase tickets and take passage, and for checking baggage, and ends with affording to them like facilities for leaving such deposits and obtaining their baggage on presenting the checks therefor. The rights which the law in these respects secures to passengers may be exercised by them either in person or through their chosen agents.” The possession of a ticket is a common evidence of an intention to travel on the train; but it will not do to say that no duty at all on the part of a railroad company to the prospective traveler arises until after the person intending to- take passage has procured a ticket. This clearly - appears from the foregoing quotation. Suppose a railroad company should assert that it had the right to discriminate between persons going to its station to take the train, until after the purchase of tickets, and that it should say that all who come to the station in its cabs, or those of a certain company, will be first admitted to the station and allowed the first opportunity to procure tickets and check baggage. Clearly this would be illegal, although such persons had not actually procured tickets. That some duty on the part of a railroad towards a person who goes to a station to take passage may arise before actual purchase of a ticket, *692see the Kates case, supra, and also Baltimore & Ohio R. Co. v. State, 81 Md. 371 (32 Atl. 201); Norfolk & Western R. Co. v. Galliher, 89 Va. 639; Grimes v. Pennsylvania Co., 36 Fed. 72, 73; Allender v. C., R. I. & P. R. Co. 37 Iowa, 264, 267. The railroad company always has public functions which must be properly discharged. . Whether a particular person can claim that he is in a position where there is a duty to him, which he may enforce, depends on the facts. A railroad company can make reasonable rules relative to passengers and baggage, but it can not make arbitrary rules unjustly discriminating in reference to passengers or those who have established a relation with the company as passengers, whether they have actually procured tickets or not. In the case of Kates, supra, it was said by Mr. Justice Little, in delivering the opinion: “Beeeiving and discharging baggage is one of the duties of a public passenger-carrier, and the obligations before enumerated apply in full force in the receipt and discharge of baggage at the union passenger-station in the city of Atlanta; and if it should be found to be true that the defendant railroad companies, either in the receipt or delivery of baggage by their baggage-master or other agents, discriminated against any passenger or the agent of any passenger in the time or manner in which baggage was received or discharged either through a system of claim-checks or otherwise, such discrimination would be a palpable violation of their public duties, for which the law affords ample remedy by injunction and full redress in the nature of damages. So of injury to or undue interference with the baggage presented.” In that- case the issues of fact were found against the plaintiff. What the railroad companies can not do b3? themselves, if it interferes with the discharge of their public duties, they can not do by an agent, or through a contract with another corporation. I do not mean to say that the whole claim-check system, if it be in itself beneficial rather than injurious to the public service, would necessarily be enjoined, should improper use be made of it, unlawfully discriminating among the traveling public; but doubtless the discrimination might be enjoined upon application by a proper party.
• If a railroad company violates its public duty to the injury of the traveling public, an action for damages will lie by a proper party plaintiff so injured, or remedy may be had by injunction or mandamus in a proper case; or probably the attorney-general might *693proceed on behalf of the public. But this need not be discussed in the present case. The action here is not by one claiming to have been a passenger, or who sought to become a passenger; nor is it by any one shown to have a right to proceed on behalf of the public. It is by a transfer or hauling company which desires equal rights as to claim-checks with another transfer or hauling company. Kelatively to the plaintiff no duty to issue claim-checks is shown. Here again the decision in the Kates case is.controlling, when it says: “If a railway company in good faith complies with the law as above laid down, it does not violate any public duty or deprive any citizen of any lawful right by granting to a single corporation or individual the exclusive right of entering its train to solicit the transportation of passengers and baggage, or by renting to such corporation or individual a portion of its baggage-room and conceding to it or him the privileges necessarily incident to the occupancy and use thereof, provided that so doing does not interfere with the exercise by any other person of any right which he may lawfully demand of the company as a common carrier.” In a case recently before the Supreme Court of the United States (Donovan v. Pennsylvania Co., 199 U. S. 279) the question was not identical with the one here raised, and the hackmen there concerned were not carrying passengers or their baggage to the station, but desired to •enter it, and there and along the sidewalk around the door to solicit custom; but the question of making contracts with one cab •company and not with another, where not injurious to the public service, was elaborately discussed, and also the difference between the duty to serve the public on the one hand, and the alleged duty, on the other, to make similar agreements with all hackmen, for the private benefit of the latter. In the opinion by Mr. Justice Harlan (p. 295) it was said: “The record does not show that the arrangement referred to was inadequate for the accommodation of- passengers. But if inadequate, or if the Transfer Company was allowed to charge exorbitant prices, it was for passengers to complain of neglect of duty by the railroad company and for the constituted .authorities to take steps to compel the company to perform its public functions with due regard to the rights of passengers. The ■question of any failure of the company to properly care for the convenience of passengers was not one that, in any legal aspect, concerned the defendants as licensed hackmen and cabmen.' It *694was not for them to vindicate the rights of passengers. They only sought to use the property of the railroad company to make profit in the prosecution of their particular business. A hackman, in nowise connected with the railroad company, can not, of right and against the objections of the company, go upon-its grounds or into-its'station or cars for the purpose simply of soliciting the custom of passengers; but, of course, a passenger upon arriving at the station, in whatever vehicle, is entitled to have such facilities for his entering the company’s depot as may be necessary.”
It was urged that the plaintiff here could assert the rights of passengers as to the matter involved. But this view does not appear well grounded, certainly not if the plaintiff was neither transporting a passenger, nor his baggage accompanied by -proper. evidence that it was such. I do not mean that the plaintiff’s vehicles, could be prevented directly or by indirect obstruction from entering lawfully upon the depot grounds to carry persons seeking to go-there to take passage, or their baggage, or to carry and deliver their trunks accompanied by a ticket for the purpose of cheeking,, or that in these respects improper discrimination could be made, against it. But this is different from claiming in all respects equal privileges as to storage and the like with another cab and transfer company as a matter of private gain. I do not think that, under the decisions above cited, the plaintiff was so far clothed with the rights of passengers as to be entitled to the injunction which was. granted.
I am authorized by Mr. Justice Beck to say that he concurs in. the views above expressed.
Cobb, P. J.I agree with my brethren in a great deal that has been said by each. There are, however, points of disagreement between us. I can best show where our views are in accord and where they diverge by a brief statement of my views in reference to the-matter. A railway company in its capacity as a common carrier owes to persons about to become passengers a duty to afford to all alike proper and suitable facilities for the purchase of 'tickets and checking of baggage. A railway company may, within limits, fix the rights of persons about to become passengers, by the adoption of reasonable rules. Such a rule must, however, be general in its scope and uniform in its application. If a railway company adopts a rule that no baggage shall be checked until the passenger has sup*695plied himself with a ticket, and enforces it as to all, the rule and its enforcement can be properly upheld. A railway company would not be bound, under such a rule, to receive for storage the baggage of a prospective passenger who had not procured a ticket. If, however, with such a rule in existence the railway company stores the baggage of one class of passengers without requiring a ticket, and refuses to store the baggage of another class of passengers under similar circumstances, it violates its own rule, in effect abrogates it, and adopts a new rule in regard to storage which must be followed in every instance. It is not compelled to store the baggage of any prospective passenger, but if it adopts the custom of storing for one class, it must accord this privilege to all similarly situated.
A railway company is allowed to employ its own agents, but it must see that its agent complies with the law and the rules of the company. It can not throw off a public duty imposed upon it as such, by employing -an agent and allowing the agent to conduct the business-of the company in such a way as to work a discrimination against those to whom the railway company in its public capacity owes a duty; In the present case it was permissible for the railway companies to employ the Terminal Company and turn over .to it the discharge of those duties relating to the baggage of passengers. It was also permissible for the Terminal Company to employ in like manner the defendant Cab Company, and turn over to it the discharge of its duties which it had undertaken to perform for the railway‘companies. So far as the baggage of passengers is concerned, the defendant Cab Company owes the same duties that the railway companies owed in the first instance. The defendant Cab Company as to its own business, independently of the duties of the railway companies it was performing, is entitled to transact its business as it deems proper, and as is consistent with the law. The defendant Cab Company could, as to its customers, adopt a system of claim-checks, and follow this system as to one class of customers and not as to another. That is, it could transact its own business in just such a manner as it deemed proper in this respect. But as the representative of the railway companies, it would not be allowed this latitude. If it accords to one person about to become a passenger the right of storage in the baggage-room set apart to the .discharge of its duty to the railway companies, then it must accord to every other passenger under similar circumstances the same *696right. The defendant Cab Company occupies a dual position. It is a cab company entitled to attend to its own business in just such a way as it sees proper. It is a representative of the railway companies in regard to the baggage of passengers and prospective passengers. So far as its own business is concerned, it may'have the right to discriminate between individuals and classes. As to the the business of the railway companies, which it has undertaken to carry on, this power to discriminate does not exist. The defendant cab company may rent a storeroom from the Terminal Company or the railway companies, and in the same building in which these companies carry on their public business. The business in the storeroom so rented may be conducted in just such a manner as it sees proper. But the business conducted in the baggage-room of the railway companies,. whether set apart by the railway companies directly or whether as a result of a contract between the railway companies and the Terminal Company and the defendant Cab Company, can not be carried on either by the Terminal Company or the defendant Cab Company in such a way as to work a discrimination between those who are about to become passengers on the trains of the railway companies. There is nothing in this view which conflicts with the rule in the Kates case. Under the facts in that case,"the storage-room of the Cab Company while in the depot building was not the baggage-room of the railway companies. The railway companies did not permit any baggage in their baggage-room, either in the custody of their- own agents or the agents of the Cab Company, until accompanied by a ticket. The business in the baggage-room of the company was conducted in strict accordance with the rule requiring a purchase of tickets as a condition precedent to checking baggage. A storage-room was merely rented to the Cab Company where it conducted its own business in behalf of its customers until each of them purchased,a ticket which would give the right to have the baggage passed into the baggage-room of the railway companies. If the plaintiff in the present case had been a prospective passenger who had been denied the right to store his baggage in the baggage-room when -other prospective passengers holding claim-checks were allowed this privilege, an injunction of the character indicated in the order complained of would have been properly granted. Under the ruling in the Kates case, however, as I apprehend it, a rival cab company engaged in *697the business of hauling baggage would have no inherent right to complain. The suit must be brought by a prospective passenger who has been actually denied the right of storage accorded to the customers of the defendant Cab Company.
I concur in the judgment of reversal solely upon the ground that, under the ruling in the case referred to, the plaintiff was not in a position to complain of the palpable discrimination resulting from the claim-check system. The prospective passenger might complain in behalf of himself; and as the duty violated by the system was a duty owed to the public, the attorney-general, in his official capacity, as the representative of the entire public, might have a right to proceed in a court of equity to enjoin the continuance of such a discriminating system. Mr. Justice Evans authorizes me to say that he concurs in the views above presented.