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itself certain limitations. The principles established do not go so far as to give to one public company the right to demand the use of the facilities of another company in order to compete against it. Thus it seems plain that at common law one railroad company cannot be required to give another running rights over its rails with permission to utilize its stations, even if the applicant offers to pay a reasonable price for the privilege. Indeed, one case, Petition of Philadelphia Railway, went so far as to hold legislation unconstitutional which gave to one street railway the right to acquire upon payment of compensation running rights over the tracks of another without its consent. The fundamental reason which permits a railway to protect itself from such demands of a rival is that it does not undertake to furnish highway facilities to the general public. Another instance from another branch of public service is to be found in Matter of the Baldwinsville Telephone Company,2 in which a local telephone company demanded the right to utilize the long distance lines of its rival. There was even a statute forbidding telephone companies to discriminate against one another; but the judge said that under such a statute, when truly construed in the light of common law principles, there was no right to demand the utilization of facilities. as part of its own system, but the petitioner's rights were to be measured by those secured to an ordinary person seeking to employ the defendant's telephone system.3

VII.

Dependent often upon public services are subsidiary businesses in the conduct of which special privileges are absolutely necessary. If those who are managing the principal employment can make

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8 A close case under this heading is whether a common carrier is obliged to accept at the rate for large packages a packed parcel made up by a rival carrier from bundles for transportation from the shipping public. It would seem that the rival is not asking service as one of the public in such cases. Johnson v. Dominion Express Co., 28 Ont. 203, so holds; but Chambers v. Pennsylvania R. R., 4 Brewst. (Pa.) 563, seems to hold the contrary. Upon similar principles it has been held that a water company may refuse to supply water at wholesale to the owner of several buildings who intends to resell to tenants. United States v. American Water Works, 37 Fed. Rep. 747. And in a more striking case still it was held that one gas company could not call upon a rival gas company for a supply to resell to consumers. Public Service Corporation v. American Lighting Co., 67 N. J. Eq. 122.

such arrangements as they please with those who apply for these privileges, there is a peculiar opportunity to make additional profits. The general problem therefore arises here in another form, whether in dealing with dependent services the usual obligations of the public service law apply, or whether the management of the principal employment is free to deal with them as it sees fit, consulting only its own interests. There has been, and there remains, a square conflict of authority as to whether this law extends so far as to cover this situation. On one side are the jurisdictions conservative in attitude, which hold that there is no public duty involved and that therefore a carrier may, for example, discriminate among expressmen. On the other hand are the progressive jurisdictions which hold that public obligation is involved, and that the carrier may not, therefore, admit certain hackmen to its station while excluding others.

In the express situation the most prominent decision is certainly the Express Cases,1 in which the United States Supreme Court finally decided that a railroad company might make an exclusive contract with a single express company, upon the ground that carrying expressmen was not shown to be within its public profession. But the reasoning in the leading case on the other side of this controversy, McDuffee v. Portland & Rochester R. R.,3 seems more fundamental in basing the obligation to deal with all expressmen without discrimination upon the common right to equal service which all have who demand any transportation of a common carrier.1

However much it is modified, the conservative view of this matter cannot give the shipping public the full protection which the progressive view assures. For if the public duty does not go to the extent of preventing discrimination in performing it, it seems that little of the law of public service can be applied

1 117 U. S. 1.

2 This view is held in C. M. & St. P. Ry. v. Pullman Co., 139 U. S. 79 (sleeping. car lines); Morris v. D. L. & W. Ry., 40 Fed. Rep. 101 (fast freight lines); Pfister v. Central R. R., 70 Cal. 169; Louisville v. N. A. & C. R. R., 146 Ind. 21; Sargent v. B. & L. R. R., 115 Mass. 416; Atlantic Express Co. v. Wilmington & W. R. R., 111 N. C. 463; Fort Worth & D. C. Ry. v. State, 87 S. W. Rep. 336 (Tex.) (sleepingcars).

3 52 N. H. 430.

4 This view is held in New England Express Co. v. Maine C. R. R., 57 Me. 188; Rogers Locomotive Works v. Erie Ry., 20 N. J. Eq. 379 (semble); Sanford v. Catawissa R. R., 24 Pa. St. 378; Pickford v. Grand Junction Ry., 10 M. & W. 397; Parker v. Great Western Ry., 7 M. & G. 253.

between the railroad company and the express company; and it would seem to follow that any express company, therefore, may be charged extortionate prices. It may be urged that the express business itself is a public calling, and that therefore the express companies themselves are bound to give satisfactory service at reasonable rates. But their duty is relative; if they must pay extortionate prices, they may charge these against the general shipping public as necessary operating expenses. Therefore, if the whole law governing public duty is not applied between the railways and the expressmen, it would seem to be impossible in any entirely satisfactory way to protect by the law the shippers of express matter from the machinations of those who are concerned with transporting it. For even if this service thus established could be regulated to some extent, the fact would remain that competition might produce better results; at all events, it seems to be inconsistent with public duty to foster a monopoly in a necessary service.

The same problem comes up in a more exasperating form when a railroad undertakes to exclude all but certain favored hackmen from the privileges of its stations. The best reasoned case in support of this policy is perhaps New York, New Haven & Hartford R. R. v. Scoville,1 where the court said in effect that this was a question of management left to the directorate of the railroad free from any coercion by law. And it must be conceded that there are many cases that hold this conservative view, that it is usually best to leave those in public employment to manage their own affairs as they see fit. But from early times there have been men radical enough to point out that such exclusive contracts were truly inconsistent with public duty. On this fundamental ground it was

1 71 Conn. 136.

2 The principal cases to this effect are listed below. Louisville & W. Ry. v. West Coast N. S. Co., 198 U. S. 483 (wharfage); Donovan v. Pennsylvania Co., 199 U. S. 272 (hackmen); St. Louis D. Co. v. L. & W. Ry., 65 Fed. Rep. 39 (draymen); Kates v. Atlanta Bag. & Cab Co., 107 Ga. 636 (baggage transfer); Kelley v. C. M. & St. P. Ry., 93 Ia. 456 (restaurant); Old Colony R. R. v. Tripp, 147 Mass. 35 (baggage transfer); Boston & Albany R. R. v. Brown, 177 Mass. 65 (hackmen); Godbout v. Union Depot, 79 Minn. 188 (hackmen); Hedding v. Gallagher, 72 N. H. 377 (baggage transfer); Brown v. New York C. & H. R. R. R., 151 N. Y. 674 (hackmen); State v. Steele, 106 N. C. 766 (innkeeper); State v. Union Depot Co., 71 Oh. St. 379 (hackmen); N. Y., N. H. & H. R. R. v. Bork, 23 R. I. 218 (hackmen); Norfolk & W. Ry. v. Old Dominion Co., 99 Va. 111 (baggage transfer); Perth Station Committee v. Ross, [1897] A. C. 479 (restaurant); Borsum v. Hardie, 23 Vict. Sup. Ct. 479 (hackmen); Worcester Ex. C. Co. v. Pa. Ry., 2 I. C. C. Rep. 792 (palace car); The Telephone Case, 3 Can. Ry. Cas. 203 (pay stations).

decided in the early case of Markham v. Brown,1 that an innkeeper could not make an exclusive contract with the proprietors of one line of stages that their representatives should have exclusive access to his guests. And, once established, this is a principle that goes so far as to forbid every exclusive contract which interferes with the public rights.2

Those who take the conservative position in all of these questions are prone often to rest their case upon practical convenience, assuring us that only if the common carrier be left to deal with these dependent services as the situation may demand, can these diverse problems be successfully solved in particular cases. That the monopoly system may be found to work well in particular instances does not alter the fact that there is real danger in leaving a public servant wholly without the restraint of law, and able therefore to exploit those whom it is his duty to serve. The time has long since passed when laissez faire may be put forward as the better method of dealing with the public services, for if experience in dealing with public employments is teaching anything, it is showing that only the most comprehensive law will prove effectual in the end.

VIII.

Those who are engaged in private business may conduct another business if they please, and then they may put in force policies. to foster that business, many of which it is certain that those who conduct a public business may not employ to protect a collateral business. The open recognition of this law, limiting the rights of one engaged in a public employment if he enters into competition with members of the public in various businesses in which his ser

1 8 N. H. 523.

2 Upon these principles the numerous cases are decided which hold that equal privileges must be given. Indian River S. B. Co. v. East Coast Transp. Co., 28 Fla. 387 (wharfage); Mason D. & S. Ry. v. Graham & W., 117 Ga. 555 (wharfage); Pennsylvania Co. v. Chicago, 181 Ill. 289 (hackmen); Indianapolis U. Ry. v. Dohn, 153 Ind. 10 (hackmen); McConnell v. Pedigo, 92 Ky. 465 (hackmen); Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich. 194 (hackmen); State v. Reed, 76 Miss. 211 (hackmen); Cravens v. Rodgers, 101 Mo. 247 (hackmen); Montana W. Ry. v. Langlois, 9 Mont. 419 (hackmen); Alexandria B. St. Co. v. N. Y., C. & H. R. R. R., 45 N. Y. Supp. 1091 (wharfage). * It is needless doubtless to state the obvious limitation upon the doctrine, that where public duty is not involved, the management of a public service may make such bargains as it pleases with concessionaires, as for boot-blacks, news-stands, barber-shops, and lunch counters. The D. R. Martin, 11 Blatchf. (U. S.) 233; Fluker v. Georgia Ry., 81 Ga. 461; Barney v. Oyster Bay Co., 67 N. Y. 301; State v. Steele, 106 N. C. 766; Audenreid v. Phila. & R. Ry., 68 Pa. St. 370; Lewis v. W. & N. W. Ry., 36 Tex. Civ. App. 48.

vices are requisite, constitutes the latest development in the rapid growth of the law governing public callings. The question has as yet come before the courts for adjudication only a few times; but even the most conservative courts recognize the necessity of regulation here, while the radical courts are willing in certain instances to go to the extent of prohibition. Indeed, it is feared by many people, who are examining into the dangers affecting modern commerce from these new conditions, that unless those in common callings are held to the strictest accountability the competitive system with its market open to all is in the gravest peril. And the situation. would become intolerable if those who control the destinies of trade through their ownership of the public utilities should be permitted to concentrate in their own hands the principal private businesses, which they might not inconceivably do if they were permitted to enter into general business and make use of their superior position to crush their competitors.

When a public service company is also engaged in collateral business, the temptation always is to use the power in its public business to promote its collateral business. An illustration of this was shown in Louisville Transfer Co. v. American District Telegraph Co.,1 where the rather extraordinary state of affairs transpired that the defendant telephone company also operated a carriage service, and therefore had refused to permit its patrons to call the plaintiff transfer company by telephone to order carriages. The court held that it occupied the same position toward the plaintiff as it did toward its other patrons, and must therefore give the plaintiff full telephone service in the conduct of its business.2 Another extreme case of unfair action may be seen in Mobile v. Bienville Water Supply Co., where the city had constructed both a waterworks and a sewerage system, and had announced a single rate for both sewerage service and water supply, which was the same whether water was taken or not. It was held that the established water supply company might complain of this discrimination by one service in favor of the other as unfair competition, since it was the plain public duty of the city to furnish either service separately at a reasonable rate.1

1 1 Ky. L. J. 1447.

2 Cf. Electric Despatch Co. v. Bell Telephone Co., 20 Can. Sup. Ct. 83, and Postal Telegraph Co. v. Hudson River Telephone Co., 19 Abb. N. C. (N. Y.) 46; accord. 3 130 Ala. 379.

* The court obviously holds similar views in Snell v. Clinton Electric H. & P. Co., 196 Ill. 626, and in Loraine v. P. J. E. & E. R. R., 205 Pa. St. 132.

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