PART II. PRIMARY DUTIES OF COMMON CARRIERS. CHAPTER VII. CONDITIONS PRECEDENT TO SERVICE. § 201. Public duty the basis of the restriction to reasonable charges. TOPIC A-DUTY OWED TO CERTAIN CLASSES OF PERSONS. § 202. Service owed to certain classes. 203. Person desiring shelter merely. 204. Person desiring to transact business. 205. Sleeping and parlor car subject to similar rule. 206. Person demanding incidental services. 207. Person assisting or meeting passengers. 208. Right involved is that of the passenger. 209. Extent of carriers duty to such persons. TOPIC B-TENDER OF COMPENSATION REQUIRED. § 210. Payment of fare as condition of receiving. 211. What is sufficient tender of fare or freight. 212. What denomination of money may be tendered. 213. Tender of money refused as counterfeit. 214. Tender of fare usually waived by the carrier. TOPIC C- GOODS MUST BE TENDERED IN PROPER MANNER. § 215. Goods must be tendered to the carrier at proper time. 216. Passengers must enter vehicle at proper time. 217. Goods must be tendered properly packed. 218. Special freight may require special tender. 219. Shipments in bulk should be received under proper conditions. 220. Reception of live stock. TOPIC DTRANSPORTATION MUST BE DEMANDED AT A PROPER PLACE. § 221. Tender for carriage must be at the proper place. 222. Extent of carrier's route. 223. The establishment of stations must be reasonable. 224. Establishment of stations by legislation. 225. Requirement of stations by the courts; conservative view. 226. Progressive view of the question of stations. 227. Carriers between certain stations only. 8 201. Public duty the basis of the restriction to reasonable charges. The fundamental duty in public employment is to serve all who apply; and this duty has important consequences. Therein public employment differs altogether from private business; and while it is true that a man in ordinary business must be permitted to manage his own affairs in his own way, the argument is not applicable to public callings. The State may, for instance, dictate the price at which a common carrier must serve, because the law requires the carrier to serve the public properly. It would be idle to lay upon the common carrier the duty to serve all who apply and at the same time permit that carrier to charge any extortionate rate that it might be his fancy to fix. To establish the right to regulate rates, and the other rights of the public to regulate the business of common carrier it is necessary to show only the duty of the carrier to serve all who apply. Where it is said that it is the duty of a public service company to serve all, that is the statement of a principle, not of a rule of law. The fact is that there are many conditions precedent to the obligation of a particular public service company to serve a particular applicant. Those who wish service must put themselves in a proper position to demand service; until this condition precedent is performed there is no obligation to serve. Moreover, in connection with such proper application there must be tender of adequate compensation; for clearly a public service company is not obliged to serve otherwise. In these two classes of cases at all events there are conditions precedent to be performed by the particular applicant before a legal duty is owed to him, even though he wishes a service in respect to which there has been public profession of a public employment. TOPIC A-DUTY OWED TO CERTAIN CLASSES OF PERSONS. § 202. Service owed to certain classes. In most public callings service is due to special classes only, and not to the public in general. This is the consequence of the principles developed in the preceding chapter concerning the essential nature of public employment and the necessary scope of public profession. By these fundamental rules an employment is held public in its nature only in so far as it is affected with a public interest, and only to the extent that it has been undertaken; both that public interest and that public profession must co-exist in order that there may be public duty in the premises. That being so, it is natural to find that in most public callings either the public necessity is confined to a certain class or the undertaking assumed has been solely toward a special class. It is to that extent and to them that the public duty is therefore conferred. The discussion below of many well-known examples of limitation of this sort will make this matter plainer. From ancient times it has been recognized that in certain public employments the public duty was owed only to bona fide travellers. It was only as to dealings with travellers that these callings were affected with a public interest. Those who offer necessary services, protection or transportation, to wayfarers and travellers always have the upper hand; their monopoly is temporary, but it is effectual, while these very same persons, in offering their services to the local population under other circumstances, have no monopoly at all. There is every reason, therefore, why innkeepers should be bound to entertain weary wayfarers, and why carriers of passengers must take up travellers bound their way; but there is no special reason in the nature of the case why they should not be free to deal with other persons as they please. As a general principle, therefore, carriers of passengers are bound to carry only travellers. No similar restriction limits the duty of carriers of goods; but their undertaking is subject to conditions of another sort, as will be seen later. § 203. Person desiring shelter merely. A person who desires shelter merely is not one whom the carrier of passengers is bound to serve; and it may, therefore, decline to receive such a person on its premises. So, a ferry company, plying during the night between the opposite shores of a river, might, no doubt, decline to admit to its boat a person who desired only to stay on the boat during the night for the purpose of securing a lodging. Similarly, a railroad company is not bound to keep open its station after the last train has left in order to shelter an intending passenger who, having missed his train, is now waiting for a street car.1 As Mr. Justice Devens said: "This room was not a place where every one might resort and use it for his own business, and he could not expect that it, or the way out of it, would be kept lighted until the arrival of the horse car for which, as he stated, he waited." § 204. Person desiring to transact business. A person who desires to ride in a vehicle of the carrier merely in order to transact business in it has no right to be received. Doubtless if a person desires transportation to a certain destination he is entitled to demand it of a public carrier to that place, even if incidentally he means to transact business en route; but in order to demand carriage he must be desirous of reaching his destination. Therefore one has no right to demand carriage for the purpose of selling papers, or making contracts for trans 1 Heinlein v. Boston & P. R. R., 147 Mass. 136, 16 N. E. 698, 9 Am. St. Rep. 676 (1888). porting baggage, or taking care of express packages. As Mr. Justice Hunt said, in the case of The D. R. Martin: 2 "The suitable carriage of persons or property is the only duty of the common carrier. A steamboat company or a railroad company is not bound to furnish travelling conveniences for those who wish to engage, on their vehicles, in the business of selling books, papers, or articles of food, or in the business of receiving and distributing parcels or baggage, nor to permit the transaction of this business in their vehicles, when it interferes with their own interests. If a profit may arise from such business, the benefit of it belongs to the company, and they are entitled to the exclusive use of their vehicles for such purposes.' 3 205. Sleeping and parlor cars subject to similar rule. The public profession and obligation of a sleeping-car, parlorcar, or dining-car company is subject to a similar limitation. Its services are tendered, not to all persons who may desire shelter or food, but only to passengers on the train to which they are attached, and indeed only to such passengers as the carrier permits to ride in the cars of the company. So in Lawrence v. Pullman Palace Car Company Mr. Justice Devens said: "The defendant company could not certainly furnish a berth in its cars until the person requesting it had become entitled to transportation by the railroad company as a passenger, and he must also be entitled to the transportation for such routes, distances, or under such circumstances, as the railroad company should determine to be those under which the defendant company would be authorized to furnish him with its accommodations. The defendant company could only contract with a passenger when he was of such a class that the railroad company permitted the contract to be made." 211 Blatch. 233, Fed. Cas. No. 1030, B. & W. 114 (1873). 3 Barry v. Oyster Bay, etc., Steamboat Co., 67 N. Y. 301, 23 Am. Rep. 115 (1876); Jenks v. Coleman, 2 Sumn. (U. S.) 221, 13 Fed. Cas. 7,258, B. & W. 100 (1835). 4 144 Mass. 1, 10 N. E. 723, 59 Am. Rep. 58, B. & W. 139 (1887). |