The principal case seems sound in every particular if one accepts the progressive view in dealing with this problem; but if one adopts the conservative view it is difficult to see why the decision must not be the other way. And it seems that such a result would be unfortunate; since, by force of such an exclusive arrangement, the railroad might turn its patrons over to the favored company and demand what price it pleased for fostering this monopoly. And again, if this were legal, there would seem to be no way to prevent the steamboat company from charging this terminal expense against the shipping public. In some instances, perhaps, this exclusive arrangement might stand, as if it were all one line operated by one system, competing steamboats might be excluded from the intermediate wharf.

§ 821. No access owed except at wharf stations.

It should be said, however, that, as no access or egress is owed, except at established stations, by a railroad to its patrons, the only legal wrong in such discrimination against connecting steamboats at terminal wharves will be at such wharves as are regular stations. This was the deciding point in the final decision in Ilwaco Railway and Navigation Company v. Oregon Short Line Railway Company, where the Circuit Court of Appeals held that a transportation company operating a railway and a line of steamboats connecting at the company's wharf is not required, by the 3d section of the Interstate Commerce Act, to permit the boats of a competitor to land at such wharf. For, as Mr. Justice McKenna pointed out: “The contention of complainant is not that defendant's facilities are inadequate, but that it is excluded from them. The exclusion,

E. 1000 (1903); Alexandria B. Sb. Co. v. New York C. & H. R. R. R., 45 N. Y. Supp. 1091 (1897).

6 57 Fed. 673, 15 U. S. App. 173, 6 C. C. A. 495, B. & W. 275 (1893), overruling 51 Fed. 611 (1892).

however, only consists in the prevention of the landing of its boats at defendant's wharf. We have probably said enough to indicate out views of this, but we may add that the wharf does not seem to be a public station. It is a convenience, only, in connecting its railroads and boats; the general station being at Ilwaco, where ample facilities exist." 7

§ 822. Rights of competing draymen.

On analagous principles to those discussed in regard to baggage transfer it would seem that the railroad may not permit certain draymen to have access to its freight houses to cart goods to consignees, and refuse all access to other carters. For example, if a consignee sends to a freight house for his freight by a drayman of his own selection, it should be clear that the railroad would act contrary to its duty if it refused such a drayman access to the goods. On the other hand, it may be granted that if the carrier chooses to extend its route in effect by undertaking personal delivery of freight to the consignee at his address, it might do this by its own carts and men and need not employ in that service all who wish to engage in it. But whether, if it offers delivery beyond its own route to its patrons, and to that end enters into an exclusive contract with one line of drays to perform this service, the owners of other drays may complain if they are excluded from offering their services to shippers in this behalf, is the question of the duties of a common carrier in dealing with a dependent service presented in still another form. The Federal courts, as might be expected, see nothing wrong in such an arrangement. The point is thus made in St. Louis Drayage Company v. Louisville and Nash

7 See Louisville & N. Ry. Co. v. West Coast N. S. Co., 198 U. S. 483, 49 L. Ed. 1135, 25 Sup. Ct. 745 (1905), overruling 121 Fed. 645 (1903), where it was held that if a railroad provided adequate wharfage facilities, it might at a particular wharf exclude all but one line. See, also, Gulf C. & S. F. Co. v. Miami S. S. Co., 86 Fed. 407 (1900).

ville Railroad Company, where the facts involved the issue which has just been raised. In that case Mr. Justice Phillips said: "It was essential that, in selecting a company for the transfer of its freights between St. Louis and East St. Louis, it should secure one fully equipped for doing the business,solvent and reliable. It could not afford to take chances in so grave a matter. It might be unsafe to trust to the caprice of competing transfer companies, or to sporadic rivalries. It could not foresee how long it would be before the railroad company, in such dependence, might find itself a prey to a combine among the transfer companies, or become exposed to the not improbable contingency of a rivalry between competing companies, which would break both down, leaving the railroad company without a certain, reliable connection with the city. It would be harsh, unreasonable, and questionable legislation that would deny to the common carrier the protection of a provident, reliable contract, like the one in question. It was essential to a reliable and permanent arrangement that the transfer company should establish and maintain sufficient warehouse buildings for the reception and storage of freights collected from the city of St. Louis, and that the company with which it contracted should have ample facilities and equipments to successfully carry out such connecting arrangement. All this, the evidence shows, was represented in the business character, standing, and capital of the transfer company, which, without disparaging the business character of the younger company, it is not too much to say, the defendant would not find in the plaintiff company to the extent presented in the transfer company. So long as the public enjoys the advantages of the competition between the defendant company and other railroad companies, in securing through rates for freights to competitive points, it is of no concern to the public that the plaintiff drayage company cannot share equally in the business of the de

865 Fed. 39 (1894).

fendant company. Especially so when the plaintiff makes no showing of any benefit to the shipper by admitting it to equal facilities with the transfer company."

§ 823. Permitting installation of telephones.

A most interesting modern instance of the problem arose before the Canadian Board of Railway Commissioners, reported as the Telephone Case. It appeared in that case that an arrangement had been entered into between the Canadian Pacific Railway and the Bell Telephone Company by which the telephone company was to have the exclusive right to place instruments in the railway stations. A rival telephone system was therefore excluded from installing an instrument in a railway station.

The majority of the tribunal held that there was nothing illegal in giving such an exclusive right; but a minority held for the applicants. An extract from each view is given herewith as the case is of first impression. Bailey, J., for the majority, said: "If it be said that the Bell Company has a monopoly, the question may fairly be asked, 'What does their monopoly consist of?' Certainly not of the telephone business. There is nothing to prevent telephone companies from being established in any locality where a company with means sufficient for the purpose may choose to locate. The extent of their monopoly so far as affects the present application is the right to have their phones in the railway station on railway premises. The only difference between the Bell Company and any other company is that the railway company's agent may be reached directly by subscribers by phone, other companies not having a phone in the station may reach him indirectly by their agent most conveniently located. There is, therefore, no monopoly of the business of telephony; there is no monopoly of the information which the railway officials have to furnish for the general public; there will be no material difference in the expense of maintaining

93 Can. Ry. Cas. 203 (1904).

him; so that, so far as I can discover, the general interests of the public are not prejudicially affected."

Commissioner Mills, dissenting, said in part: "In all these cases, however, one thing is clear, viz.: that the fundamental and guiding principle is the public interest, and that no restraint upon trade or restriction upon legitimate business in any part of the country, should be regarded as reasonable and in harmony with public policy, unless it can be clearly shown that it does not interfere or tend to interfere with the rights and interests of the public in that locality. It may be said that an exclusive privilege, such as that in the telephone agreement, does not interfere with the public interest, because the public will be better served by a strong, well-equipped organization, such as the Bell Telephone Company, than it would be served if free competition were allowed. That may or may not be so. One thing we know, viz.: that this is the argument of all monopolists. We know, also, that, generally speaking, the people are the best judges of their own interests; and, on a well-established principle of government in free countries, they should be allowed to decide such questions for themselves-whether to depend wholly on an organization such as the Bell Telephone Company, or to establish a municipal system of telephones for their own use."10

8824. Fostering monopoly in public services.

There have been brought forward now the principal arguments for the conservative view and the chief reasons for the progressive view upon each distinct instance that has arisen under the general problem of the public duty of the common carrier in dealing with the dependent services. Those who argue for the conservative position are prone to rest their case upon practical convenience, assuring us that only if the common carrier be left to deal with these dependent services, as the

10 Compare Cumberland Telephone & Telegraph Co. v. Morgan's Louisiana R. R., 51 La. Ann. 180, 24 So. 803 (1899).