construct sewers being in the nature of a public use, the duty is on the city to supply sewerage rates to all impartially on reasonable terms. As is said by Mr. Bates: All persons are entitled to have the same service on equal terms and on uniform rates.' In addition it is averred, as seen, that citizens are notified by the city that they cannot use its sewers unless they subscribe for the city water, and customers of complainant, desiring to return to it, are forbidden by the city from disconnecting from its pipes and connecting with complainant's, a threat the city has the physical power to enforce.” 6

$65. Docks as an example.

The established docks are similar to these other instances recently under discussion. Vessels calling at a port are practically forced to use the public docks that are open to it. There will necessarily be comparatively few docks since the positions upon deep water and near to the commercial centres are few. There will be oppression resulting from this situation unless the law of public service is applied.

Barrington v. Commercial Dock Company bears out this contention. The appellant was the owner of a wharf situated upon navigable water in the city of Tacoma, not located, how-. ever, upon any highway. The respondents were owners of the steamer Cricket, a passenger steamer plying between the cities. of Tacoma and Seattle; they instituted this action for the purpose of compelling the appellant to permit them to use its wharf as a landing place. Vessels of a similar character in competing business with the steamer Cricket were permitted to use the dock. The only statute gave a right to erect wharves upon,navigable waters and to charge wharfage. The appellant therefore contended that the wharf was its private wharf, and that it had

6 See Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 46 Law Ed. 1132, 22 Sup. Ct. 820, B. & W. Cases, 417 (1902).

7 15 Wash. 170, 45 Pac. 748, 33 L. R. A. 116 (1896).

therefore the right to determine for itself with whom it would do business.

Mr. Justice Gordon founded his argument upon these propositions: "When wharves belonging to individuals are legally thrown open to the use of the public, they become affected with a public interest. We think that in determining the character of the appellant's wharf, regard should be had to the use to which it has been devoted rather than its private ownership, and that upon the facts found the position of the appellant cannot be maintained. As well might the proprietor of a stage coach claim the right to discriminate upon the ground that the property employed in his business was private property. The doctrine, if maintained, would tend to promote and further monopolies which it is not the policy of our law to favor." 8

66. General conclusions as to virtual monopolies.

A review of the instances which have been cited in the course of this discussion will show that this conception of virtual monopoly will cover everything. Nothing narrower will do, as for example the difference sometimes put forward between the

8 The following cases, among many others, consider docks and wharves as public in character:

United States-West Coast Co. v. Louisville & N. Ry., 121 Fed. 645, 57 C. C. A. 671 (1903).

Florida-Indian River S. S. Co. v. East Coast Transportation Co., 28 Fla. 387, 10 So. 480, 29 Am. St. Rep. 258 (1891).

Georgia-Robertson v. Wilder, 69 Ga. 340 (1882); Macon D. & S. R. R. Braham v. Ward, 117 Ga. 555, 43 S. E. 1000 (1903); District v. Johnson, 1 Mackey, 51 (1881).

Louisiana-Aiken v. Eagar, 35 La. Ann. 567 (1883).

Minnesota-Vega Steamship Co. v. Consol. Elevator Co., 75 Minn. 308, 77 N. W. 973, 74 Am. St. Rep. 484, 43 L. R. A. 843 (1899).

New York-Buffalo v. Delaware, L. & W. Ry., 39 N. Y. Supp. 4 (1895); Alexandria Bay S. S. Co. v. N. Y. C. & H. R. Ry., 18 N. Y. App. 527, 45 N. Y. Supp. 1091 (1897).

Pennsylvania—Rogers v. Stophel, 32 Pa. St. 111 (1858).

undertaking of a public service in contradistinction to the furnishing of a public supply. Now, it is true that most of the cases are cases of service the railway and the warehouse, for example; but other of the cases are of supply, the waterworks and gas works, for instance. Indeed, there is nothing in this distinction, either in economics or in law. It is submitted that any business is made out public calling where there is a virtual. monopoly inherent in the nature of things.

The conclusion seems to be forced upon us that virtual monopoly creates the necessity for public regulation and justifies it; and upon this our constitutional law turns. If virtual monopoly is made out as the permanent condition of affairs in a given business, then the law, it seems, will consider that calling public in its nature; on the other hand, if effective competition is proved as the regular course of things in a given industry, the law will hold all businesses within it as private in their character. Under our constitutional system a distinction is made upon this line. In the public calling regulation of service, facilities, prices and discriminations is possible to any extent. Monopolistic conditions demand such policy; and at no period in history has this been more apparent than now. In the private callings no such legislation should be permitted. Competitive conditions require freedom, and at no epoch in our industries has it been more important to insist upon this. But wherever there is virtual monopoly in a business of public importance at any time and from any cause, the protection of the law is requisite, requiring that all shall be served at reasonable

rates.

§ 67. Law governing all public employments the same.

A great variety of public employments have been enumerated in this chapter as illustrations of those characteristics which establish the public duty of the common carrier. When later in this volume the subject of rate regulation is reached

advantage will be taken of the fact that these various public callings have been enumerated. And throughout the main portion of this book in the discussion of railway rate regulation, cases involving the regulation of rates of all the public services will be discussed together in the text and cited together in the footnotes. This is justifiable if the common carrier has been shown to be simply one example of a class of public callings, all of which are governed by the same law. And it was therefore necessary to devote some space in these introductory chapters to establishing that this class of public callings does exist and has common characteristics which require general law for its regulation.

CHAPTER III.

REQUISITES OF COMMON CARRIAGE.

TOPIC A.-BY WHOM THE CARRIAGE IS UNDERTAKEN.

§ 71. Who are common carriers.

72. Carriage of goods by servant of a carrier.

73. Carriage of passengers by servant of a carrier.

74. Carrier must control the thing carried.

TOPIC B.- -WHETHER THERE HAS BEEN ACCEPTANCE OF PASSEN

GERS AND THEIR BELONGINGS.

75. Carriage in vehicle not intended for passengers.

76. Carriage on freight cars.

77. Carriage in a place not intended for passengers.

78. Whether there is acceptance in such cases.

79. Baggage carried in car with passenger.

80. American rule as to baggage carried by passenger.

TOPIC C. WHETHER THERE HAS BEEN BAILMENT MADE OF

GOODS.

§ 81. Owner accompanies the goods and retains possession.

82. Owner accompanies the goods without retaining possession.

83. Cattle carried with a drover furnished by the owner.

84. Goods taken across a ferry by the owner.

85. Goods carried across a bridge.

86. Issue of bill of lading without receipt of goods.

TOPIC D.-TRANSPORTATION NECESSARY FOR THE CONCEPTION

OF CARRIAGE.

§ 87. Carrier must undertake transportation.

88. Storage hulks not carriers.

89. Log drivers not carriers.

90. Drovers of cattle not carriers.

91. Vehicles leased for carriage.

92. Shipper furnishes servants to manage vehicle.