business of transportation. The shippers are appealing to government to protect them against unwarrantable exactions by the carriers. Appeal may be made by the carriers to protect their interests from unremunerative rates to which they may be restricted by State or other local authorities. In either case complaint is heard and redress is given.10 It is no longer doubtful that the question of the reasonableness of a rate of charge for transportation is eminently a question for judicial investigation."" § 34. Rate regulation at the present time. But rate regulation is not a mere theoretical possibility, it is the present practice. As this discussion progresses from chapter to chapter it will be seen how firmly established is the law that those who are conducting a public business must charge no more. than a reasonable rate, and how general is the legislation providing some method of revising the rates charged by the public service companies. At this moment this legislation is becoming more exacting; for the present tendency plainly is to do more by legislation than to provide for setting aside rates shown to be extortionate; it is to go further and permit the fixing of a new rate by the supervising authority. It can be predicted with confidence that there will be further advance along these lines until a complete system for fixing rates by governmental authority in place of the rates set aside will be established by legislation. This is the spirit of the times, and one who wishes the continuance of our present regime of private ownership of the public utilities will do well to strengthen the hands of those who are working to establish this system of State control over 10 Citing Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014 (1894); Chicago, etc., Ry. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970 (1890); Rose's Notes on U. S. Reports, vol 11, p. 946, et seq. 11 Citing Justice Blatchford, in Chicago & St. Paul Ry. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970 (1890). the conduct of the public services. For if this systematic program to regulate effectually the charges of the public service companies fails of something like full success, there is no alternative but State ownership with its unknowable consequences. As matters stand to-day the advocates of State control are really the conservatives. PART I. CHIEF CHARACTERISTICS OF COMMON CARRIAGE. CHAPTER II. COMMON CARRIAGE AS A PUBLIC EMPLOYMENT. § 41. Reasons for regarding carriers as in the public employment. TOPIC A.-LEGAL PRIVILEGES AS GROUND OF PUBLIC POSITION OF THE CARRIER. § 42. Power of eminent domain. 43. Pipe lines as an example. 44. Cemeteries as an example. 45. Aid from taxation. 46. Irrigation canals as an example. 47. Grist mills as an example. TOPIC B.-EFFECT OF LEGAL MONOPOLY CONSIDERED. § 48. Grant of an exclusive franchise. 49. Bonded warehouses as an example. 50. Log-driving corporations as an example. 51. Use of the streets. 52. Street railways as an example. 53. Electrical subways as an example. 54. General conclusions relative to special legal privileges. TOPIC C.- VIRTUAL MONOPOLY AS A GROUND OF PUBLIC POSI TION OF THE CARRIER. § 55. Virtual monopoly the true ground for regulating public callings. 56. Monopoly due to character of business. 57. Water works as an example. 58. Natural gas as an example. 59. Gas works as an example. 60. Electric plants as an example. TOPIC D.-MONOPOLY OF THE ESTABLISHED PLANT. § 61. Monopoly due to established plant. 62. Telegraph service as an example. 63. Telephone service as an example. 64. Sewerage system as an example. 65. Docks as an example. 66. General conclusions as to virtual monopolies. 67. Law governing all public employments the same. 41. Reasons for regarding carriers as in the public employment. As has been seen, common carriage has for a long time been regarded as the typical and indeed almost the only public employment; and though the number of public-service companies has been greatly increased of late years, it still remains the most important of all. It is worth while, therefore, to examine the grounds upon which it has been supposed that the common carrier is engaged in a public employment; and in the course of that investigation to note the relation in which common carriage stands to other public employments. The most important characteristic of the law of public employment to-day is the right of the State to regulate the business, and thus to secure reasonable rates and fair service. The right of regulation is now widely exercised, but the legal justification for its exercise is often placed upon untenable grounds, which must first be examined. TOPIC A.-LEGAL PRIVILEGES AS GROUND OF PUBLIC POSITION OF THE CARRIER. 8 42. Power of eminent domain. It is often urged that the reason a railway company can be regulated by law is because it is endowed with the right of eminent domain, and is therefore a quasi-public corporation. This reasoning seems, however, to be objectionable, because it is taking the effect for the cause. A legislature can give a railway company the right of eminent domain only because the company, irrespective of the enjoyment of that right, is already in the service of the public; since private property can by the provisions of most of our constitutions be taken by eminent. domain only for a public purpose. In at least one early case it was doubted whether the operation of a railroad was such a public enterprise as to justify the giving of eminent domain to it. In that case, Raleigh & Gaston Railroad v. Davis, it was finally decided that the right might be granted to the company, Chief Justice Ruffin disposing of the matter thus: "Upon the supposition that the legislature may take the property to the public use, it is next said that this taking is not legitimate, because the property is bestowed on private persons. It is true that this is a private corporation, its outlays and emoluments being individual property; but it is constituted to effect a public benefit by a means of a road, and that is publici juris. In earlier times, there seems to have been a necessity upon governments, or at least it was a settled policy with them, to effect everything of this sort by the direct and sole agency of the government. The highways were made by the public, and the use was accordingly free to the public. The government assumed the exclusive direction as well as authority, as if they chose to be seen and felt in everything, and would avoid even a remote connection between private interests and public institutions. An immense and beneficial revolution has been brought about in modern times by engaging individual enterprise, industry, and economy in the execution of public works of internal improvement. The general management has been left to individuals, whose private interests prompt them to conduct it beneficially to the public; but it is not entirely confided to them. From the nature of their undertaking and the character of the work, they are under sufficient responsibilities to insure the construction and preservation of the work, which is the great object of the govern 1 Raleigh & Gaston Ry. v. Davis, 2 Dev. & Bat. (N. C.) 451 (1837). |