$49 CHAPTER VI THE DUTY TO SERVE THE PUBLIC ANONYMOUS. [Y. B. Trinity, 21 Hen. VI. 55, pl. 12 (1443).] PASTON, J.: If I come riding along the highway to a town where a smith lives who has sufficient stuff to shoe my horse, supposing it has lost a shoe, and I request him at a proper time to shoe it and offer him enough for his labor and he refuses so that my horse is later lost for want of shoes, because of his default, I say in such event I shall have action of trespass on the case. $50. The "Justum Pretium" in the Middle Ages.-The doctrine announced here is, of course, no longer law. The ordinary business man is entirely free to deal with members of the public or refuse to do so as he sees fit. "It is a part of a man's civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice." Cooley on Torts, p. 278. Quoted in Great Atlantic and Pacific Tea Company v. Cream of Wheat Company, 227 Fed. Reporter, 46, 48. There is, however, a large and growing list of exceptions among public utilities and other specially regulated or licensed business and professions, as illustrated in the following cases. A closely related question is that of the limitation of one's rights to set his own price on his wares or services. The idea of a justum pretium was generally accepted in the Middle Ages, that is to say, a just price established by custom or statute rather than by the will of the seller controlled only by economic exigencies* In the nineteenth century there was scarcely a vestige of it, 1E. g. 1 Statutes of the Realm 199 (fixing the prices of bread and beer in 1256); 23 Ed. III, and 25 Ed. III (Statutes of Laborers, 1349 and 1351); 23 Ed. III c. 6 (prices of victuals, 1349); 25 Ed. III c. 4 (prices of shoes, 1351.) so complete was the dominance in law of the school of Adam Smith. Its revival today not only by enlarging the list of public utilities but by the general demand of laws against "profiteering," is significant of the tendency that has been aptly described as the "socialization of the law."' $51. MCDUFFEE v. THE PORTLAND & ROCHESTER RAILROAD. Supreme Judicial Court of New Hampshire, 1873. He en DOE, J. I.: A common carrier is a public carrier. gages in a public employment, takes upon himself a public duty, and exercises a sort of public office. Sanford v. R. Co., 24 Pa. St. 378, 381; N. J. S. N. Co. v. Merchants' Bank, 6 How. 344, 382; Shelden v. Robinson, 7 N. H. 157, 163, 164; Gray v. Jackson, 51 N. H. 9, 10; Ansell v. Waterhouse, 2 Chitty 1, 4; Hollister v. Nowlen, 19 Wen. 234, 239. He is under a legal obligation; others have a corresponding legal right. His duty being public, the correlative right is public. The public right is a common right, and a common right signifies a reasonably equal right. "There are certain cases, in which, if individuals dedicate their personal services, or the temporary use of their property, to the public, the law will impose certain duties upon them, and regulate their proceedings to a certain extent. Thus, a common carrier is bound by law, if he have conveniences for the purpose, to carry for a reasonable compensation." Olcott v. Banfill, 4 N. H. 537, 546. "He [the common carrier] holds a sort of official relation to the public. He is bound to carry at reasonable rates such commodities as are in his line of business, for all persons to offer them, as early as his means will allow. He cannot refuse to carry a proper article, tendered to him at 'Cf. a note on Congressional Rent Legislation for the District of Columbia (Pub. Laws, 66th Cong., First Session, No. 63, H. R. 8624, Title II, approved Oct. 22, 1919) in which the applicability of this War Power legislation to peace conditions is discussed, 20 Col. L. Rev. 109. On "fair prices" see also H. R. hearings, 13305, 63rd Congress, Second and Third Sessions, and 13568, 64th Congress First and Second Sessions. Minimum wage legislation is a type of price regulation. On experiments in foreign countries compare Wilkinson, State Regulation of Prices in Australia, Melbourne, 1917. During the World War a very extensive price regulation was practised by the government agencies entrusted with the distribution and conservation of food and other necessaries. On legislation and litigation connected with Rent Regulation see article by Walter F. Dodd and Carl H. Zeiss in Journal issued by Am. Bar Assn., Jan., 1921, p. 5. See also note in 34 Harv. L. R. 426. a suitable time and place, on the offer of the usual reasonable compensation. Story on Bailments, $508; Riley v. Horne, 5 Bing. 217, 224; Bennett v. Dutton, 10 N. H. 486. When he undertakes the business of a common carrier, he assumes this relation to the public, and he is not at liberty to decline the duties and responsibilities of his place, as they are defined and fixed by law." Moses v. B. & M. R. R., 24 N. H. 71, 88, 89. On this ground, it was held, in that case, that a common carrier could not, by public notice, discharge himself from the legal responsibility pertaining to his office, or from performing his public duty in the way and on the terms prescribed by law. "The very definition of a common carrier excludes the idea of the right to grant monopolies, or to give special and unequal preferences. It implies indifference as to whom they may serve, and an equal readiness to serve all who may apply, and in the order of their application." N. E. Express Co. v. M. C. R. R. Co., 57 Me. 188, 196. A common carrier of passengers cannot exercise an unreasonable discrimination in carrying one and refusing to carry another. Bennett v. Dutton, 10 N. H. 481. A common carrier of freight cannot exercise an unreasonable discrimination in carrying for one and refusing to carry for another. He may be a common carrier of one kind of property, and not of another; but, as to goods of which he is a common carrier, he cannot discriminate unreasonably against any individual in the performance of the public duty which he assumed when he engaged in the occupation of carrying for all. His service would not be public, if, out of the persons and things in his line of business, he could abitrarily select whom and what he would carry. Such a power of arbitrary selection would destroy the public character of his employment, and the rights which the public acquired when he volunteered in the public service of common carrier transportation. With such a power, he would be a carrier, a special, private carrier, but not a common, public one. From the public service, -which he entered of his own accord, he may retire, ceasing to be a common carrier, with or without the public consent, according to the law applicable to his case; but, as long as he remains in the service, he must perform duties appertaining to it. . . $52. From Edward A. Adler. Business Jurisprudence, 28 Harv. Law Rev. 133, 156.-"The disappearance of this conception [that the business man has no legal right to discriminate among members of the public] from our law in the case of all ordinary businesses and its retention in the case of carriers is to be explained partly by economic and social changes and partly by judicial misinterpretation of the early cases. That the disappearance did not take place suddenly is evidenced by the frequently cited cases of Gisbourn v. Hurst (1710), 1 Salk. 249; Lane v. Cotton (1701), 12 Mod. 472, and Coggs v. Bernard (1703), 2 Ld. Raymond 909, decided at the beginning of the eighteenth century, which still assert the ancient doctrine. But with the inventions of Arkwright, the writings of Adam Smith, and the spread of the idea of free trade, a great change took place in business conditions toward the close of the eighteenth century. In ordinary trades there ceased to be any need for a distinction between the common and the private exercise of a trade." §52a. Public and Private Business.-The basis of distinction between common carriers and other business men, suggested in the McDuffee case, is that "common carrier" means "public carrier." This is a misconception of the original meaning of the expression, a bit of folk-etymology, from which important deductions have been made by courts, none the less. In the old expressions, common merchant, common marshal, common schoolmaster, common surgeon, common shaver, common bellman, common maker and vendor, common hoyman, common kidder, common scold, common railer and brawler, common thief, the word "common" meant habitual, regular-doing a thing frequently or commonly. Thus the opposite of a common carrier is not a private carrier, but a special carrier; that is one who carries goods on a particular occasion. In course of time, this sense of the word was lost in English and the expression "common carrier" came to suggest a public carrier in the sense of one who served the public. The argument drawn from this understanding of the term, that such a carrier must serve all members of the public alike, was an afterthought. A similar afterthought has since been said to justify and explain the exercise of the right of eminent domain on behalf of a common carrier, and other peculiar rights and privileges, as well as peculiar duties and liabilities. The term "common carrier" came to have the con notation of a carrier engaged in a public service, that is, a service primarily due from the state (compare Ranney, J. in Giesy v. Railroad Co., 4 Ohio State, 324). Needless to say, no such socialistic view colored the word "common" in the English law of the 1300's. Compare 23 Jour. of Pol. Econ., p. 554, note 1. 'It would logically follow from this concept of the carrier's calling that he is an agent of the state. In a paper read before the National Association of Railway Commissioners, in 1913, by Max Thelen, commissioner and attorney of the California Railroad Commission, on "a just and scientific basis for the establishment of public-utility rates with particular attention to land values" this view, now widely held as an inarticulate major premise, is eloquently expressed. "The fundamental relationship existing between the public and its public utilities is that of principal and agent. Out of this relationship logically should grow the proper basis for determining the rates which a public utility is entitled to charge. The state has the right to do for the public whatever is demanded for the public welfare, including the establishment and operation of enterprises of a public utility character. . . . I shall now consider the bearing of this relationship on the problem of the proper basis for rate fixing. It is a well-established principle in agency that an agent acting within the scope of his authority is entitled to be reimbursed for the money which he honestly and judiciously expends for the benefit and account of the principal, together with a proper compensation for his services. As a general rule it is a breach of good faith and of loyalty to the principal for an agent to deal with the subject-matter of the agency so as to make a profit out of it for himself in excess of his lawful compensation. If such profit is made, the agent may be held as a trustee and may be compelled to account to his principal for all profits and advantages acquired by him out of the relationship. If the agent acquires title to property in his own name as part of the agency, he will be deemed to hold this title for his principal. If A is the principal and B the agent, and A, for the purpose of enabling B to carry out the agency, deeds property to B, B cannot later contend that he can hold the property for himself. He holds it for his principal. Likewise, if B, in the course of his agency, acquires title to property from any source, and that property thereafter increases in value, he cannot lay claim to keep the increase for himself. In each of the above cases the agent holds the property for the principal, and must account to the principal for it. Applying these principles to the relationship between the public and the public utilities, it seems clear that the public utilities are entitled to a reasonable return upon such money as they honestly and wisely expend for the public, but that they should not be allowed a return on the increased value of the property used in the agency. If the agent has expended money dishonestly or has expended it injudiciously, he is not entitled to a return thereon. the other hand, if he has acted honestly and wisely, and it thereafter becomes possible to acquire more cheaply property which he has purchased in the agency, or to secure at a lesser expense labor or material used therein, the agent should not be compelled to suffer the loss, but should be entitled to a return on the money honestly and wisely spent by him in pursuance of the agency." Quoted in 48 L. R. A. (N. S.), 1199. On |