(dissenting). Prior to 1865 the railways entering Chicago had four separate places for the delivery of live stock, each equipped with the necessary facilities. Considering, for obvious reasons, a union of these facilities desirable, the Union Stock Yards were established by the railways, though as a separate corporation, with such lines of intervening railway as put the yards in connection with all the roads centering in Chicago. It is substantially undisputed that, from the consolidation of these delivery stations until 1894, the chutes, pens, and other equipment at the new stock yards, were the delivery station for live stock of each of the defendant railways; that, although owned by a separate company, no extra compensation was charged for the use of the intervening tracks, or the unloading facilities; that the other live stock stations were abandoned; that no separate stations, except perhaps in mere semblance, have since been established; and that, by this long course of dealing, the shipping public has come to look upon the Union Stock Yards as the destination of cattle shipped to Chicago.
In June, 1894, the Union Stock Yards having passed largely from the ownership of the railways to outside parties, a minimum trackage charge of forty cents per car was imposed upon the railways by the Stock Yards Company. Thereupon the railway companies inserted in the schedules, required by the Interstate Commerce Act, a paragraph to the effect that upon all live stock, or other freight received from, or delivered to, the stock yards, a terminal charge of two dollars per car would be thereafter made, in addition to the fiat Chicago rates. It is the lawfulness and reasonableness of this charge that is the subject-matter of this case.
The precise question, so far as it relates to the lawfulness of the charge, has been before the courts of this circuit three times. In the first case, in the circuit court, Union Trust Co. v. Atchison, T. & S. F. Ry. Co., 64 Fed. 992, it was held that, as a matter of public policy,' a charge for freight must be held to cover the entire service of the carrier from depot to depot inclusive; that such service and charge include, not only actual carriage, but also thé necessary facilities for loading and unloading; that the service being a single one, the compensation is likewise single, and in law incapable of division; that the carrier can not make up its bill of charges in items, — one for loading, one for carriage, one for personal service of attendants, one for delivery, etc. The ruling in that case was supposed to be founded upon the Covington Stock Yards Case, 139 U. S. 128, 11 Sup. Ct. 461, 30 L. Ed. 914.
The case was reviewed in the circuit court of appeals under the title of Walker v. Keenan, 19 C. C. A. 668, 73 Fed. 755, where it was in effect held that, although, as incidental to its business of transporting cattle, a railway company must provide the means for loading and unloading, there is no reason, in law, or in the nature of things, *253why the compensation may not be apportioned; that it is lawful, other considerations aside, that: a charge may he made for the loading, another and separate charge for the carriage, and still another for the unloading and delivery. The compensation to be received was not looked upon, in this decision, as a single charge; but rather as an aggregation of such separate charges as, being reasonable in themselves, may have been properly inserted in the published schedules.
In the present decision the majority of the court hold it to be the general duty of the railway companies to provide proper facilities for the recept ion and discharge of freight and passengers at each of their regular stations; and, inferentially, as I read the opinion, that no extra charge may be made for these unloading facilities. But live stock is regarded as an exceptional kind of traffic, and its transportation to, and delivery at the stock yards, as something super-added to the general undertaking of the railway companies to transport live stock from the stations of initiation to Chicago. This opinion seems to me to shift the ground upon which Walker v. Keenan, supra, was decided, and while sustaining the general proposition upon which Union Trust Co. v. Atchison, T. & S. F. Ry. Co. was decided, to hold that delivery of live stock at the stock yards is an exception to the requirements of the general rule. In view of these rulings, and especially of the change of ground taken by the majority opinion, I look upon the question involved as a more or less open one, and have thought it not improper to restate, in substance, the grounds upon which, in the circuit court, I decided the case of Union Trust Co. v. Atchison. T. & S. F. Ry. Co., and upon the basis of which I am constrained to dissent from the decision in this case.
As common carriers of freight and passengers, railway companies come in touch with every character of shipper and traveler. They deal alike Avith the unintelligent and the intelligent; with people inexperienced in matters of traffic, as well as with the experienced; with people in liaste and uninquiring, as well as with people deliberate and careful.
The usual passenger buys his ticket at the station where he goes aboard, expecting that it will carry him to the general passenger station in the city of destination. He does not consult the rate sheet, and, least of all. does he inquire if the line over which he travels may or may not include rails and stations belonging to another company. The usual shipper is remote from the station of destination. He is unacquainted with local conditions, especially if that station be a great city spreading over a large territory. He has in mind a single place of delivery: and when he inquires respecting the rate of freight, unquestionably conceives that the payment of the sum named will lay down his goods in the general depot of delivery. However much, as a careful man, he ought, perhaps, to consult the posted rates, he does not. as a matter of fact, consult them. Both traveller and shipper, with perhaps a few exceptions, accept Avithout further inquiry the railway agent’s general statement respecting the company’s charge, and act upon the presumption that the charge is from depot to depot inclusive.
*254Now what, upon such a state of facts, irrespective of a divisional posted rate, would be the measure of the carrier’s undertaking? Could it rightly compel the passenger to alight at a suburban station, geographically within Chicago, and, therefore, in letter, within the terms of its obligation? Could it deposit the freight at some depot other than its general depot, though such other depot .was within the city limits? No one, I think, will so contend. The tangible, visible facts relating to the usual places of depositing passengers and freight constitute an element, though unexpressed, in the carrier’s undertaking; and its contract will be construed as if such element had been plainly embodied in the ticket, or bill of lading. Any other interpretation would violate a primary rule in arriving at the terms of consent between parties.
The posting of a divisional rate — one item for carriage and another for delivery facilities — may be regarded technically as a purposed exclusion of this unexpressed element; but in practice the traveller and shipper would proceed upon the same conception as if there had been no posting and the rate had remained single. They would still be guided, notwithstanding the divisional rate posted — at least in large numbers — by the visible facts relating to the company’s general depot facilities at the city of destination, and would still look upon the flat rate named as inclusive of delivery, as well as of carriage: Passengers from New York, having paid their fare to Chicago, would feel outraged, if, once within the city limits, they were compelled to pay an additional so-called terminal charge, or disembark at a suburban station. The shipper of freight would experience the same feeling, if, in the absence of directions to the contrary, his goods were delivered at some place other than the carrier’s general depot. The fact that a divisional rate was formally posted would not disabuse their expectations in time to adjust their course to the real rate thus imposed.
The law, in my judgment, upon considerations of public policy, comes to their rescue.' It requires the carrier to do what, in view of this conception in the public mind, respecting travel and shipment— a conception natural and almost universal — the carrier ought, in good conscience, to do. An enforced single charge is no hardship to the carrier; it prevents infinite misunderstanding and inconvenience among its patrons. It is the only method that, treating the carrier fairly, at the same time fairly subserves the interests of the public. It is simply a recognition of an almost universal fact — a fact that is not undone by special provisions written into unnoticed tariff schedules. If the law, irrespective of the carrier’s wish or contract, in sub-serving the public interests, interferes to impose a duty that the appliances shall be reasonably sufficient, and that the freight shall be carried in the customary mode, I can see no reason why, upon analogous motives, it should not recognize the convenience and the justice of the rule here insisted upon, and impose a duty in accordance.
The opinion of the majority, in substance, concedes this general proposition, but escapes its application to the case under consideration, by holding that live stock is an exceptional character of traffic; and that transportation to the stock yards is in the nature of a di*255version, in the interest of the shipper, from the carrier’s general depot to the market designated by the shipper. In what respect the traffic is exceptional is not stated. It requires, of course, cars of a special character, and delivery facilities different from those provided for dead freight; but the difference between live stock and dead freight, in these respects, is not so wide as the difference between the equipment necessary' to the carriage and delivery of passengers, and the equipment essential to the carriage and delivery of dead freight. Nor. is the live stock shipped to Chicago a sporadic kind of traffic, turning up a car load to-day, and possibly not another car load for days to come; it is shown that more than three hundred thousand car loads of live stock (an average of one thousand car loads daily) come into the stock yards each year. No other single source of revenue to the railway companies is perhaps so large and so unfailing. This kind of exceptionalness, it seems to me, emphasizes rather than diminishes, the reason why the rule should he applied to live stock as well as to other freight.
The other reason stated for making live stock an exception — that it is a diversion, in the interest of the shipper, to the shipper’s market — ignores the facts found by the Commission, and the undisputed history of the yards. When, in 1865, the yards were established, as the consolidated live stock station of the railway companies, there were at that place no packing houses and no established markets. The locality selected was in the country, centrally located, it is true, lor the railways, hut still unoccupied by any industry. In course of time, as doubtless the railways anticipated, a market grew up around the station. Here, as elsewhere in industrial evolution, like attracted like. The railways in establishing these yards did not go to the market; the market came to the railways.
As the general Chicago depot for the delivery of live stock, the stock yards remain to-day what they were the day of their establishment, only grown larger. It would be lawful doubtless to change this station, if it were done in substance, not in mere semblance; hut the railway companies have not yet chosen to make the change. Why does it not remain their general depot for the delivery of live stock in as full a sense as upon the day it was first established before the surrounding industries had yet gathered; and in as full a sense as during the thirty years succeeding. Is it because the carriers do not own the chulés and pens and the intervening tracks; the same may be said of many passenger lines that come only to the city limits, passing from there over rails, and into the stations belonging to a terminal company. Is it because they pretend to be ready to deliver live stock from their own rails, should the shipper wish; that would be the substitution of a myth, known only on paper, for an actuality, known by the public at large. Is it because they have cold out their holdings in the yards and the intervening rails; that will not entitle them to divide the charge for a service between depot rnd depot. If, on tire day the stock yards were established — before i market was there — they became the depot at which the shipper vas entitled to have his stock delivered as a part of the service un*256dertaken, nothing has since transpired to change either the right of the shipper or the obligation of the carriers.
But assuming that the railways went to the markets and established their stations for delivery there, is it any the less, in the public mind, their general depot in Chicago for the delivery of live stock? It seems clear to me that the presence of a market about the stations — the only market of the kind in Chicago — must be taken as a forceful fact, definitely fixing, in the mind of the shipper, the locality of the delivery facilities. Where other than the stock yards, in view of these circumstances, would the shipper reasonably suppose his consignments would go? Would it not take the clearest character of information to convince him that, in the absence of a special direction, the cattle would he unloaded in some unknown place in the city? In this fact, that in the very nature of things live stock must go to the stock yards, will he found strong additional reason for, rather than against, the rule that there should be hut a single charge from depot to depot, inclusive.
The general rule invoked is a salutary one, and should not he frittered away upon exceptions not founded upon cogent reasoning. Once open the door to exceptions on easy hinges, and a multitude will find their way in, until, indeed, the rule itself will have become the exception.