veniences are affected with a public interest and they cease to be juris private only." No more significant phrases were ever penned.

§ 7. Continuance of State regulation.

The irresistible advances of the modern competitive system gradually worked the destruction of the mediaval organization of industry. Great, however, as was this change from the old economic theory to the new, it was gradual, and it was never complete. There was a swing of the pendulum. General but not absolute restriction of freedom of trade was the policy of the middle ages; general freedom of trade, with the restriction of certain exceptional occupations, has become the policy of modern times. A state of free competition has been for several centuries now considered to be for the best interests of society; and, therefore, in modern times almost every business has been opened to almost every man. And yet at all times in economic history, both restriction and freedom are to be found in the law. The proportion, however, changes greatly. In one epoch there is much legal limitation, with little freedom left; in another age there is almost universal competition, with some little franchise to be found. And the rule will generally hold true that the more the natural laws of competition regulate service and price, the less the State need interfere in these respects; but conversely when competition ceases to act efficiently State control be

comes necessary.

§ 8. Parliamentary regulation of rates.

During this transitional period when the medieval system of customary laws ceased to operate effectively, Parliament itself frequently regulated the prices of necessaries of life by direct legislation. The great staples, like wool and food, were habitually regulated in this way, and the employment and the price of labor was a subject of statutory provision. Thus, in 1266, Henry III, after

reciting former statutes to the same effect, regulated the price of bread and ale according to the price of wheat and barley, and forbade forestalling; that is, cornering the market. In 1337 it was made felony to export wool, and the importation of cloth was forbidden. In 1349 all laborers were obliged to serve for the customary wages, and "butchers, fishmongers, regrators, hostelors (i. e., innkeepers), brewers, bakers, poulterers, and all other sellers of all manner of victuals," were bound to sell for a reasonable price. These statutes continued in force throughout the middle ages, and until after the settlement of America.

§ 9. Restriction of prices in the colonies.

This legislative power the colonists brought to America with them. In a new colony life is a serious thing, the necessaries of life are scarce, and the needs of the public are pressing. The conditions are ideal for a distressing cornering of the market by merchants. Accordingly, though most of the statutory regulations of trades and prices had either been repealed or had become obsolete in the mother country, the colonies at an early time passed statutes regulating the prices of staple commodities. Thus in Massachusetts in 1635 shopkeepers and merchants were forbidden to charge excessive prices. In Plymouth colony the price of boards was fixed in 1668. Corn and tobacco, beer and bread, beef and boards, all that was most important for the colonists to have was regulated as a matter of course by the assemblies of the time.

§ 10. Persistence of the legislative power.

This extreme form of the police power over public employment remained in the legislative branch notwithstanding the general guaranties of individual liberty contained in the American constitutions. To compel the proprietors of those businesses which had been regarded

as peculiarly affected with a public interest to serve all that applied at reasonable rates was immemorial practice, and therefore was indisputably due process of law. This historical argument was given chief place by the Supreme Court of the United States in the leading case 3 on this branch of the police power. "Under these powers," said the court, "the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, innkeepers, etc., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitutional prohibitions against interference with private property."

§ 11. Survival of the common law.

From one point of view the constitutional validity of legislative control is conclusive evidence of the persistence of the common-law principles regulating public employments. The common law persists from age to age, and though the instance of its rules may be seen to change as old conditions pass away and new conditions arise, its fundamental principles remain. The early cases which were just under discussion are illustrations of this course of events. Barber, surgeon, smith and tailor are no longer in common calling because the situation in the modern times does not require it; but innkeeper, carrier, ferryman and wharfinger are still in that classification, since even in modern business the conditions require them 'Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77.

to be so treated. With changed economic conditions in modern times new callings have come into being with such potentialities that this special law has been utilized as never before in regulating them. Indeed, from the point of view of one who believes in our common law the class of public callings is capable of indefinite extension whenever new conditions bring new employments within its scope. And in all times our law has held to the principle that this peculiar regulation was necessary in certain kinds of business. It depends largely upon the opinion current at the time how far this law shall be extended. But, however much public opinion may change, this possibility of the enforcement of the obligation to the public owed by those who conduct a business public in character, remains.

Topic B. Persistence of State Regulation

§ 12. Introduction of improved highways.

What was destined to give the greatest scope to the public service law was the improved facilities for transportation. It was late in the eighteenth century that the need for transportation of persons and goods more quickly and more cheaply between distant communities began to outgrow the facilities for commerce then at the disposal of the public. The solution of this question thenceforth became one of the most pressing economic problems of the time, engaging the attention of statesmen, as every great commercial problem must. The scheme gradually worked out was a system of improved turnpikes all over the country supplemented by toll bridges, and between the most important markets the construction of canals and the development of existing water ways. The theory of the statesmen of the early nineteenth century, who dealt with the conditions under which these

The historical argument is effectively used in many cases, but in no one is it more elaborately put

than in People v. Budd, 117 N. Y. 1, 22 N. E. 670, 5 L. R. A. 549, 15 Am. St. Rep. 460 (1889).

works of internal improvement should be constructed, was that private enterprises were better than State ownership. However, they were willing to meet the need of the time for immediate construction of these expensive works by grants from the State treasury or by guaranty of the bonds of the private companies. These improved highways were considered like other highways, public in character and open to all, though maintained by private companies which were given the franchise to charge tolls, without which none could be demanded.

§ 13. The building of turnpikes.

On important lines of travel even over considerable spans, bridges began to replace the ferries. As the ferries had been maintained by private parties with an exclusive franchise, charging ferriage, the bridges were built by private companies with an exclusive franchise such as the ferryman had, charging tolls as the ferryman did. For the charging of tolls it is to be remarked a rough classification was made, and on that point there is some public service law from this period. One interesting scheme was the chartering of bridge companies with the provision that when the cost of the bridge, together with a certain per cent of profit should have been repaid to the proprietors, the bridge should become free. Throughout the country, turnpikes were constructed of various kinds, gravel roads and plank roads, for example. These were built by private companies with a protecting franchise, charging tolls roughly classified. Some little public service law dates from this period; for such improved highways were regarded as public in character by whomsoever owned. As one court 5 put this principle in those earlier days: "Though the ownership is private, the use is public. So turnpikes, bridges, ferries and canals, although made by individuals under public grants, or by companies, are regarded as publici juris.”

'The quotation is from Olcott v. Supervisors, 16 Wall. 678, 21 L. ed. 382 (1872).