drive them all, or to use reasonable skill and diligence to accomplish that object."

Upon the whole this case better than most shows the impossibility of any other decision in cases, like this, of legal monopoly. Formerly the river was open to every one for the purpose of floating his logs to market; now it was closed to every one. A lumberman whom the company refused to serve would therefore have no alternative, since to drag his logs overland to market would not be a commercial possibility. No reasonable system of law would leave without relief a man confronted with such a situation. If any rule in our law is dictated by natural justice, this one would seem to be.1

51. Use of the streets.

Carriers and other public-service companies are sometimes granted a use of the public streets; and this right to use the streets has been urged as the reason for holding the user to be subject to regulation by law. But here again the earlier carriers, and indeed most carriers at the present day have no peculiar rights in the streets. The power of regulation must therefore be sought in some other characteristic of the carrier.

52. Street railways as an example.

Of course the most obvious illustration of the grant of the use of the streets to a public service corporation is for the operation of a street railway. But it is because the street railway is a common carrier that it is permissible to give it the use of the streets. Sometimes this is stated rather plainly. Thus in State v. Spokane Street Railway Company,5 Mr. Justice Reeves

4 The following cases, among others, hold the log driving companies in public calling: Sands v. Manistee River Imp. Co., 123 U. S. 288, 31 L. Ed. 149 (1887); Penobscot Log D. Co. v. West Branch L. D. Co., 99 Me. 452, 59 Atl. 593 (1905); Mann v. White R. L. Log Driving Co., 46 Mich. 38, 8 N. W. 550, 41 Am. Rep. 141 (1881).

5 19 Wash. 518, 53 Pac. 719, 720 (1898).

in establishing the public character of the business said: "Its franchise was granted to appellant by the State, not for its own profit alone or that of its stockholders, but in a large measure for the public benefit. Peculiar privileges were conferred upon it in consideration that it would provide facilities for communication and for intercourse for the public. It is a common carrier. It was granted the power of eminent domain, a part of the sovereignty of the State, and, with the consent of the municipalities it may lay its tracks over the public streets and highways."

§ 53. Electrical subways as an example.

A late method of permitting the use of the streets by electrical companies is by authorizing the construction of a general duct large enough to hold the wires of various companies. The electrical subway company chartered for such a purpose may or may not be given an exclusive privilege against the construction of other similar enterprises. For the purpose of accommodation of various interests full power of control is usually reserved by the governmental authority which grants the rights. Often, as in the case of New York, this is exercised by a special board. What are the mutual rights and duties between an electric light company and an electrical subway company? It ought not be difficult to determine. Brush Electric Illumi

6 The following cases, among many others, involve the proposition that street railways are public business: Milwaukee El. Ry. v. Milwaukee, 87 Fed. 577 (1898); Barrett v. Market St. Ry., 81 Cal. 296, 22 Pac. 859, 15 Am. St. Rep. 61, B. & W. 297 (1889); Chicago & M. El. Ry. v. Ch. & N. W. Ry., 211 Ill. 352, 71 N. E. 1017 (1904); Dean v Chicago G. Ry., 64 Ill. App. 165 (1896); Levi v. Lynn & B. Ry., 11 Allen (Mass.), 300, 87 Am. Dec. 713, B. & W. 11 (1865); Parker v. Metropolitan Ry., 109 Mass. 506; Com. v. Interstate Consolidated Ry., 187 Mass. 436 (1905); Bay v. Omaha St. Ry., 44 Neb. 167, 62 N. W. 447, 48 Am. St. Ry. 717 (1895); Putnam v. Broadway & Sev. Ave. Ry., 55 N. Y. 108, 73 N. E. 580, 14 Am. Rep. 190 (1873).

7

nating Company v. Consolidated Telegraph and Electrical Subway Company, one of the few cases in the books as yet, is hardly satisfactory in its treatment of the general question.

In refusing an injunction asked by the plaintiff company in that case, to prevent the defendant company from removing the wires of the plaintiff, although the plaintiff professed itself willing to pay a reasonable price, Justice Ingraham said: "The plaintiff claims that the defendant is a quasi public corporation, and has only such rights as are given to it by charter, and, as it is nowhere expressly given the right to withdraw the plaintiff's wires from its ducts, when they are once there it must allow them to remain there forever; and the only remedy that the defendant has against the plaintiff, or any one using its ducts, is an action at law for the recovery of the rent reserved. But the statutes and contracts in question conferred upon defendant no remedy in case of the refusal of a person using its subways to pay the rate fixed, and I can see no reason why it should not have the same rights that any other person would have under similar circumstances. It seems to me, however, that this position arises out of a misconception of the defendant's real position. The defendant is not a common carrier, nor has it received from the State a franchise such as is conferred upon a ferry company or a turnpike road. Defendant, it is true, obtained permission from the public authorities to build these subways in the public streets, and it has bound itself by contract to furnish to such corporations or individuals as have authority to use the public streets for electrical purposes the use of its subways, but such obligation rests entirely upon its contract under which it received its authority to build its subways. Irrespective of that contract, and section 7 of the Acts of 1887, the plaintiff would have no right, against the will of the defendant, to use its subways, nor would the public authorities, nor the courts, have power to compel the defendant to give

715 N. Y. Supp. 811, B. & W. Cases, 30 (1891).

any rights to the plaintiff. Whatever right, therefore, the plaintiff acquired, it is under the contract under which the defendant had authority to build the subways, and the statutes under which such contract was made, and there can be nothing found in these statutes or contract that would justify the claim of the plaintiff. On the contrary, the utmost care is taken to provide for the payment of compensation to the defendant for the use of the subways, and defendant is expressly prevented from giving any one the right to use them, except upon the payment of the rate fixed; and to say that a corporation getting permission to use the subways upon an agreement to pay the rate fixed for its use, under the provisions of the statute, could, by simply refusing to pay, defeat the express provisions of the contract by using the subway without paying for it the rate fixed or paying a less rate, would subvert the whole scheme under which the subways have been built."

§ 54. General conclusions relative to special legal privileges. It is submitted therefore, without going into more detail about the matter, that under our constitutional system no special privileges can be granted except for a public purpose. Unless there is public interest apparent the grant is void. In the case of the public service companies which have been brought forward for examination thus far in this discussion, a characteristic fact has been that the corporation in question enjoyed some privilege or other from the State. It is quite true that eminent domain, or at least use of the streets, may be found in many of the examples cited; while aid out of taxation may be fastened upon in certain instances, and even actual operation by the State has been known. The question thus arises whether the establishment of public employment depends upon public privileges; or whether the conditions of virtual monopoly, how

8 Much to the same effect is West Side El. Co. v. Consolidated Tel. & El. Co., 87 N. Y. App. Div. 550, 84 N. Y. Supp. 1052 (1903).

ever caused, may give rise to public calling if the State has had no hand in the establishment of the situation.

All these considerations are most suggestive; indeed, one is led by them to an entire reversion of the common statement of the relation between the existence of public privileges and the establishment of public employment. It is common to argue that because a certain business has had a certain privilege granted to it, the consequence of that privilege is that the business is put by the courts in the class of public callings. But the real truth of the matter seems to be in the opposite statement, that no business can be granted a privilege under our constitutional system unless it is public in character. This is because the conditions which permit competition or produce monopoly are altogether external matters of fact with which, when accomplished, the law must deal. The difference between public calling and private calling is thus inherent in the nature of things.

TOPIC C.-VIRTUAL MONOPOLY AS A GROUND OF PUBLIC POSITION OF THE CARRIER.

§ 55. Virtual monopoly the true ground for regulating public callings.

Upon the whole, the conditions surrounding the acknowledged public services suggest this working hypothesis, that in the private calling the situation is that of actual competition, while in the public calling the situation is that of virtual monopoly. The division indicated is a proper one; where competition prevails it regulates the conduct of business by its own processes, but monopoly requires the intervention of the law of the land in all cases where the business is of public importance. Wherever virtual monopoly is established the situation demands this law; that all who apply shall be served, with adequate facilities, for reasonable compensation and without discrimination. Otherwise in crucial instances of oppression, inconvenience, extor