was right in thinking the decree was authorized by the statute, and, if the court was right in so thinking, then it is the only theory that can be advanced in justification of the statute. It is to be hoped that no lawgiver or court of justice ever proceeded knowingly and consciously upon a theory so destructive of every principle of justice.

But what shall be said of the end for the attainment of which the court was tempted to make so extraordinary a decree? It is undoubtedly a common thing for a court of equity to rescind a transaction between two persons which has been procured by the fraud of one of them, i.e., to compel the tort-feasor to restore what he has received from the person defrauded, upon the latter's restoring to him what he gave in exchange, equity thus restoring both parties to the situation that they were in when the fraudulent transaction took place. It is scarcely necessary to say, however, that such a rescission can be made by a court of equity only upon the application of the person defrauded, he being the only person who is entitled to a rescission as well as, presumably, the only person who desires one. Can a court of equity, then, rescind a transaction between two persons, in which neither has been defrauded by the other, neither has injured the other, which neither wishes to have rescinded, and which neither will join the other in rescinding, except upon compulsion? To do so would necessarily imply a suit in which both parties to the transaction to be rescinded are made defendants, and some person who is a stranger to that transaction is plaintiff, and the only plausible reason that could be given for such a suit would be that the plaintiff is the state, and is seeking to punish a crime, i. e., is seeking to compel the defendants to undo a thing which has been done by them, and the doing of which has been made a crime. Such is the suit in question; and hence we have the extraordinary spectacle of a court of equity attempting, indirectly, and by means of an illegal decree, to compel defendants, as the only means of escaping the penalties of that decree, to do what the court had no power to compel them to do, and that too by way of inflicting a punishment

1 The reader will observe that section 4 of the Act does not say in whose name the suits which it directs shall be brought, but it directs them to be brought by a District Attorney of the United States, and it is only on behalf of the United States that the statute could direct suits to be brought, or a District Attorney to bring suits; and, as the statute furnishes no ground upon which a civil suit could be directed, of course the suits directed must be criminal.

for a crime.

It seems scarcely necessary to add that the statute lends not the slightest countenance to such a proceeding.

The conclusion, therefore, is that the decree is a mere act of arbitrary power and utterly without justification or excuse. Lest, however, some reader should be apprehensive that its reversal would leave the public without protection against the "rapacity of railway monopolists," it seems proper to say that a powerful argument in support of the view that no part of the statute extends to railways or railway companies is derived from the fact that there was no call for such an act respecting them; that the only way in which railways can do an injury to the general public is by charging unreasonable rates for the services which they render, and that for such an injury the state already had an incomparably better remedy than any which the Sherman Anti-Trust Act can furnish, in its unquestioned power to regulate and control railway rates; that the principle of unlimited competition, as a means of keeping prices within reasonable limits, is not only inapplicable to railways, but, if applied to them, produces the greatest evils to the public as well as to the railways; that, if the state itself should undertake the duty of rendering to the public the services which are rendered by railway companies, every one would agree that its monopoly of such service should be complete and absolute; and when the state delegates to railway companies the right to rende these services, and imposes upon them the corresponding duties. it becomes the function of the state, first, to see that those com panies faithfully perform their duties to the public, and, secondly, to give them, so far as it is practicable, the same protection against competition that it would itself enjoy, namely, by permitting no railways to be constructed except under its own special authority, and by authorizing the construction of new railways only where those already existing are unable, or fail, to perform all the service which the public requires; that the ideal railway system would be a system comprising all the railways in any given state, and of course controlled by a single authority, namely, either by the direct authority of the state, or by the direct authority of those by whom the system is owned, acting, however, under such rules and regulations as the state from time to time sees fit to make; and such in particular is the system for which those who desire to see state ownership of railways should work; that, as has been already seen, the only competition possible among railway companies is at competing points, and that the only effect upon the public

of unrestrained competition at all competing points is, first, to give those who "ship" their goods at competing points lower rates than they are in justice entitled to receive, and, secondly, to give those unreasonably low rates at the expense of those who can "ship" their goods only at non-competing points; and, finally, that it was such competition as that just mentioned that caused the only great and widespread dissatisfaction with railway rates that ever existed in this country, and that the dissatisfaction thus caused was so great and widespread as to lead to the enactment of the Interstate Commerce Act.1

1 24 Statutes at Large, c. 104, p. 379.

C. C. Langdell.

Note to p. 543. — It was through an inadvertence that I described in the text the right of a person to have his goods carried by a railway company at a reasonable rate as a "personal" right. The state imposes upon every railway company the duty of carrying the goods of every person at a reasonable rate, and hence the right of every person to have his goods so carried is a relative right, and a refusal to perform the correlative duty is a violation of the right, and constitutes a negative tort. See 13 HARV. L. REV. 537-8, 539, 542-6, 659-61.

LIMITATIONS UPON THE RIGHT OF WITHDRAWAL FROM PUBLIC EMPLOYMENT.

THE

HE law of "public callings," although a very interesting branch of legal knowledge, and one rapidly assuming great importance in connection with the development of our economic system, has received only partial and fragmentary treatment from legal writers, and still furnishes a fruitful field for investigation. The present writer has already published certain opinions and authorities on the question of what constitutes a public calling.1 In this article it is proposed to discuss one of the incidents of such employments, the duty, imposed by the law under certain circumstances, of continuing to carry on a public calling.

It is undoubtedly true- and allusion is made to it in the opinion in Munn v. Illinois 2- that where a public right in property or to service arises from a voluntary holding out of the property or the service to the public, it may ordinarily be terminated by a withdrawal of the offer of public use. One who owns a hotel may go out of the hotel business and use the building for his private dwelling; or a wagoner who is a common carrier may cease to be a common carrier, and resume exclusive use of his vehicles for his domestic purposes.

This rule is, however, obviously subject to the qualification that one cannot abruptly, and without reasonable opportunity to the public to change their own affairs accordingly, so terminate his relations with the public. For example, an innkeeper could not lawfully put a sudden end to his business in the middle of a winter night, nor a common carrier suddenly leave his occupation and abandon his passengers or freight by the roadside; and it would seem to be true that the character of property, in a given instance, may be such, or the dealings with the public may have become of such character and so intricate, that it may not be possible for a very long period, and perhaps may not be possible at all, to withdraw the property from the public right.

1 In a pamphlet entitled "The Coal Mines and the Public," published by the J. B. Millet Co., Boston, and an article entitled "A Word More about the Coal Mines in the "Green Bag" for December, 1902.

2 94 U. S. 113.

If this suggestion is thought to go a long way, it may be answered that it goes no further than the accepted doctrines of custom and dedication. The broad proposition that a man, by encouraging the public to rely upon a certain use of his property, may find himself unable to withdraw it from that use, is already firmly established in the law. Furthermore, the theory of permanency of public rights in cases of the particular kind under discussion, that is, cases of public employment, is not now suggested for the first time. For example, in the case of Allnut v. Inglis,1 Lord Ellenborough suggested, as at least admitting of considerable doubt, the question whether a public warehouse owner might not be bound to continue indefinitely the existing application of his property to a public use.

It cannot be said, however, that the law has as yet taken definite shape on the broad question thus presented. But when certain additional factors are introduced, as when the public servant in question stands in a peculiar relation to the state through the enjoyment of governmental privileges, or when the withdrawal proposed is temporary or incomplete, authority is less meagre. Before proceeding to examine these situations in detail, it will be well to consider a few general principles.

The public employment about which the largest number of cases has arisen, with a correspondingly complete elaboration by successive decisions of its legal relations to the public, is that of the common carrier. It is there accordingly that we shall find the most plentiful illustrations of the principles applicable to the present discussion. It may be admitted at the outset that one of the incidents attaching to the business of the common carrier, as well as to that of the innkeeper, does not apply equally to all other employments of the class under discussion. This incident, belonging to the carrier or the innkeeper in his capacity as a bailee, is his liability as an insurer for goods in his custody. Since there is such an incident, not common to all public callings, we must first inquire what is meant when we say that a telegraph company or a grain elevator company is engaged in a public employment, in the same sense as a common carrier, and subject like the latter to the incidents of such employment.

Underlying the entire law of carriers, from the Year Books down to the present day, are three fundamental duties: first, to carry for

1 12 East, 527, 540. See also remark of BAYLEY, J., in same case, at p. 544.