due notice, while continuing freight service. The prayer of the information was quo warranto against the corporation to forfeit its franchises. The railroad answered that since the construction of a competing street railway the passengers' receipts had so fallen off that the passenger service had been operated at a loss. The court dismissed the information.

Mr. Justice Thomas discussed the matter after this fashion: "The precise question before us is, whether the running of regular passenger trains was, under the facts admitted by the demurrer, a legal duty? Neither the statutes under which the respondents hold their franchises, nor the general laws regulating railroad companies, in terms impose upon the respondents such duty. If it had been intended that the duty of running trains should be absolute, it would have been made definite. If the duty is to be held absolute, how long, for what period of time, is it to be performed? It is during the lifetime of the charter, and this though the expense of running the train is daily and rapidly using up the capital stock of the company."

It is submitted that the rule laid down in this last case is correct. This does not mean, as some of the cases point out, that there may be cessation of service in respect to some integral part of the system. But it does mean that there may be withdrawal upon proper notice from any separable portion of the business, as was seen in the case just discussed. The alternative is to hold a company in public employment forever bound to carry on, at any loss, whatever service it may at any time have undertaken."

9 The following cases hold that a public service company may retire from any separable part of the business:

United States.-N. P. Railroad v. Dustin, 142 U. S. 492, 35 L. Ed. 1092 (1891); Royal Trust Co. v. Washburn, etc., R. R., 113 Fed. 531 (1902); Jack v. Williams, 113 Fed. 823 (1902).

Kansas.-See Asher v. Hutchinson W. L. & P. Co., 66 Kan. 496, 71 Pac. 813 (1903).

Massachusetts. Com. v. Fitchburg R. R. Co., 12 Gray, 180 (1858). Minnesota.-State v. Southern Minnesota R. R. Co., 18 Minn. 40 (1871).

$282. Whether permanent withdrawal is allowed.

This seems almost an absurd inquiry, whether permanent withdrawal is allowed, since the result of holding that such withdrawal is impossible, is to hold any one who has ventured into any public calling bound to continue in that public service forever. It would seem upon the face of it that this cannot be the positive rule of law. And yet it will be remembered 10 that many cases hold that even if the charter of a public-service corporation contains no provision requiring complete operation, still there can be no withdrawal from any part of that undertaking, however separable it may be. The logic of such cases would seem to go to the extent of forbidding abandonment of public employment as a whole, as well as in part. But on the other hand, there is a different view of the matter, held by other cases, to the effect that there may be withdrawal from any separable part of the business.11 These cases plainly would permit complete withdrawal from the business.

§ 283. Complete abandonment permitted.

It seems to be the better law, that a public-service company may surrender its charter and give up its whole undertaking if it is insolvent by reason of the hopelessness of the venture. A plain case of this rule is State ex rel. Little v. Dodge City, Montezuma and Trinidad Railway Company.12 This pro

Montana.-State v. Helena Power & Light Co., 22 Mont. 391, 56 Pac. 685 (1899).

New York. People v. Rome, W. & O. R. R. Co., 103 N. Y. 95, 8 N. E. 369 (1886).

Ohio. Coe v. Columbus R. R., 10 Ohio St. 372.

Texas. San Antonio Railway v. State, 90 Tex. 520, 39 S. W. 926, 59 Am. St. Rep. 834, 35 L. R. A. 662 (1897).

Virginia. Sherwood v. Atlantic & Danville R. R., 94 Va. 291, 26 S. E. 943 (1897).

Wisconsin.-Whiting v. Sheboygan Ry., 25 Wis. 167, 3 Am. Rep. 30

(1869).

10 See § 280, supra, and cases cited.

11 See § 281, supra, and cases cited.

12 53 Kans. 329, 36 Pac. 755, B. & W. 64 (1894).

ceeding was commenced in this court for the purpose of compelling the Dodge City, Montezuma and Trinidad Railway Company to repair and relay certain portions of the track and roadbed. The railway company was hopelessly insolvent; and it had no rolling stock. Its line of road had not been operated for many months; it could not be operated except at a great loss. The railway company was not able to operate it, and had no funds or property which could be applied to the payment of operating expenses. It seemed to be conclusively shown that all the receipts to be derived from operating the road would not pay the operating expenses, not taking into account the repairs of the road and the taxes.

The chief justice, Horton, took pity upon the miserable plight of this company. "A railway company may be compelled by mandamus to perform the public duties specifically and plainly imposed upon the corporation; and, therefore, we have no doubt of the power of this court, in a proper case, to compel a company to operate its road, and for that purpose to compel the replacement of its track torn up in violation of its charter. But the granting of a writ of mandamus rests somewhat in the discretion of the court. Therefore, the question is, whether the court will compel, or attempt to compel, the railway company, a bankrupt corporation, to relay the track and repair the roadbed. The court will not make a useless or futile order. It will not do a vain thing. The order prayed for should only be issued in the interest of the public. If the track is replaced, there is no reasonable probability that the road will be or can be operated. If a railway will not pay its mere operating expenses, the public has little interest in the operation of the road or in its being kept in repair. If the track were replaced, it would be of no immediate public benefit-possibly of no future benefit-because, if the railway is not operated, the mere existence of a road, not in use, is not beneficial to any one."

CHAPTER X.

RIGHT TO PROTECT ITS OWN INTERESTS.

§ 291. Public duty may conflict with business policy.

TOPIC A APPLICATION FOR SERVICE BY MEMBERS OF THE

PUBLIC.

§ 292. Those who deal with a rival must be served.

293. Carriers must take passengers who come by rival lines.

294. Railroads cannot refuse to take freight from those who deal with a rival.

TOPIC B-APPLICATION BY A RIVAL FOR SERVICE.

295. Competitors have same rights as general public.

296. A competitor cannot be refused as a passenger.

297. Shipments made by a rival must be taken.

TOPIC

DEMAND BY A RIVAL FOR USE OF FACILITIES.

§ 298. Rivals cannot demand use of facilities.

299. Passenger making use of carrier's facilities in his own business.

300. Carrier not bound to carry packed parcels.

TOPIC D-PROTECTION OF A COLLATERAL BUSINESS.

$301. Right to engage in an independent business.

302. Carrier discriminating in favor of itself.

303. Railroad cutting its own rates for itself.

304. Charging its competitors higher relative rates.

305. Whether a collateral business is ultra vires.

306. Whether collateral businesses should be permitted. 307. Arguments for the radical view.

$291. Public duty may conflict with business policies.

New conditions seem to us often to create new laws, however much we may be told that nothing more is being done than the

application of existing rules to present circumstances. In the case of the public-service companies the increase in their power has led to such development in the law for their regulation that it is difficult to believe that this law is no more than a necessary deduction from established principles. We have been so used to the many liberties permitted those who carry on a private business, that it has not been seen how fundamentally different are the limitations upon public calling. Those who conduct a private business may adopt such policies as will produce the greatest profits; but those who profess a public employment must not do anything inconsistent with their public duty.

It is proposed in this chapter to consider four aspects of the general problem which has been sketched: (1) May common carriers refuse to serve applicants who persist in having dealings with a rival carrier; (2) or may they refuse to give service to the rival itself if it applies for service as one of the public; (3) or may they deny to a rival the use of their facilities if it wishes them in order to compete against them; (4) or, finally, may they take advantage of their superior position in competing in any capacity with those that they are serving? All of these problems receive a preliminary mention here; and the more important problems are discussed later under the title Discrimination.

TOPIC A

APPLICATION FOR

SERVICE BY MEMBERS OF THE

PUBLIC.

8 292. Those who deal with a rival must be served.

First, the case will be considered where the application for service is made by some one of the public, and the service is denied, because the applicant deals with a rival, getting service from him at times. There are gradations here; sometimes there is total refusal to serve any applicant who has dealings with the rival; but more frequently there is some discrimination, more or less onerous, made against those who will not deal exclusively.