reduction from published rates by subterfuge." The Commission, however, has no jurisdiction over alleged unreasonable charges of a transfer company, where the railroad carrier does not undertake to make delivery of passenger baggage at residences for rate of fare stated in its tariffs.78

Topic C. Public Profession

§ 186. Who are common carriers.

In the earlier cases of public employment the profession to serve all that appear was spoken of as the assumption of a public trust in undertaking the business or as granting to the public of an interest in that business. The original rule was clearly expressed over two centuries ago by Lord Holt that, wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. Common carriage, as the cases have always pointed out, involves a certain kind of service performed under certain conditions. In order to determine whether a person is a common carrier, it must be determined first, whether his business is that of carrying, second, whether it is a public one. One who is transporting goods from place to place for hire as his principal occupation for all that see fit to employ him is a common carrier. A common or public carrier, whether of goods or of passengers, is one who is engaged in carrying as a public employment. "One who by virtue of his calling undertakes for compensation to transport personal property from one place to another for all such as may choose to employ him"-is one succinct definition."9 "A person who undertakes to transport from place to place for hire the goods of those who choose to employ

77 Gund & Co. v. C., B. & Q. R. R., 18 I. C. C. 364.

78 Cosby v. Richmond Transfer Co., 23 I. C. C. R. 72.

79 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 38, 52 N. E. 665, 70 Am. St. Rep. 432.

him"-is another.80

It is, therefore, recognized every

where, in the commissions as well as in the courts, that the test is whether service is rendered particular customers or whether there is service offered to every shipper who comes along.

§ 187. Commitment to public service.

When there has been general solicitation of the public, there can be little doubt of the public profession. Something, therefore, must be found to show that in the service in question there has been a commitment to the public service.81 But so long as a road holds itself out as a common carrier, and trunk lines make joint rates with it, innocent third parties have a right to assume that the road is what it purports to be.82 Incorporation is not a condition precedent to right to be a common carrier by rail, so far as interstate transportation is concerned.83 By the terms of the Act it makes no difference by whom the service is conducted; therefore holding under a trackage agreement will be considered to be tantamount to ownership of a line over which the trackage privilege exists.84 If a lessor company is chartered as a carrier, it appears to be subject to the Act, though the transportation is actually furnished by another.85 Where a city has constructed a railroad in order to reach a certain market, and leases the same to another railroad, questions of reasonableness of rates stand exactly as if the road had been built by private capital.86 A lessor may, therefore, be in such a position that the law will hold it ultimately responsible for the rendering of the service, as was pointed out in a recent case in the Supreme Court.87 And, as was 80 Elkins v. Boston & M. R. R., 23 N. H. 275.

81 Mfrs. Ry. Co. v. St. L., I. M. & S. Ry., 21 I. C. C. R. 304.

82 St. Louis, S. & P. R. R. v. P. & P. U. Ry., 26 I. C. C. 226.

83 Crescent Coal & Mining Co. v. C. & E. I. R. R., 24 I. C. C. 149.

84 Tap Line Case, 23 I. C. C. 277. 85 Heck v. East Tenn. & O. G. Ry., 1 Int. Com. Rep. 775, 1 I. C. C. 495.

86 Receivers' and Shippers' Ass'n of Cincinnati v. C., N. O. & T. P. Ry., 18 I. C. C. 440.

87 No. Carolina R. R. Co. v. Lackery, 232 U. S. 248, 34 Sup. Ct. 308.

said in another case at about the same time, any attempt to cloak the actual control of the interstate transportation by having a holding company will fail of its purpose.88

§ 188. Nature of public profession.

The plainest justification for the imposition of the extraordinary law which requires those who are in public callings to serve all that apply at reasonable rates, is that in initiation the service is voluntary. People are not forced into public service against their wills; it is only when they have held themselves out in some way as ready to accommodate all that apply that they are bound to serve indiscriminately. Such a case is that of the lighterman, as was decided in the leading case of Ingate v. Christie,89 where Baron Alderson delivered the following opinion: "Everybody who undertakes to carry for any one who asks him, is a common carrier. The criterion is, whether he carries for particular persons only, or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier; but if he does not do it for every one, but carries for you and me only, that is matter of special contract. Here we have a person with a counting-house, 'lighterman' painted at his door, and he offers to carry for every one." On the other hand, where the employment is casual only, and not a regular matter of business, the carrier is not a common carrier. As was said in the leading case of Allen v. Lackneles 90 by Mr. Justice Parker: "The only question in the case is, were the defendants common carriers? The facts

88 United States v. Union S. Y. & T. Co., 226 U. S. 286, 33 Sup. Ct. 83. 89 3 Car. & K. 61.

The Commission rejects the theory that a railroad is a common carrier only for those who have been accustomed to patronize it, and that it can favor its old customer at the expense of its new ones. In re Mine Ratings, 25 I. C. C. 286.

90 37 N. Y. 341.

But the Commission will not recognize as common carriers any lines that do not publish tariffs in lawful form, or concur properly in lawful tariffs of other lines, or that do not in all other respects comply with the law. Star Grain & L. Co. v. A., T. & S. F. Ry., 17 I. C. C. 338.

found by the referee do not, I think, make the defendants common carriers. They owned a sloop; but it does not appear that it was ever offered to the public or to individuals for use, or ever put to any use, except in the two trips which it made for the plaintiffs, at their special request. Nor does it appear that the defendants were engaged in the business of carrying goods, or that they held themselves out to the world as carriers, or had ever offered their services as such. This casual use of their sloop in transporting plaintiffs' property fails short of proof sufficient to show them common carriers."

§ 189. Extent of the power of regulation.

What would seem to be a constitutional limitation upon the regulating power should be noted. Regulation of this peculiar sort, going to the extent of compulsory service, should be confined to what may properly be considered public callings. Unless the business in question is one which is public in character it is not one which it would be due process of law to regulate to the extent of fixing its rates. And unless in the particular instance the business is being conducted upon a public basis, regulation to that extent of what is still a private affair would be equally improper. Thus although the Supreme Court has held in a principal case that the rates at grain elevators might be regulated, it has pointed out in a later case that this would not be applicable to a man who was simply storing his own grain in his own elevator.92 The business must be one in which the public has an interest, and at the same time one in which the proprietor has committed himself to serve the public. Those who conduct wharves as landings for the public must serve all at reasonable rates; 93 but at his private wharf one may discriminate as he pleases in

"1 Munn v. Illinois, 94 U. S. 213, 24 L. ed. 77.

92 Brass ex rel. v. Stoesser, 153 U. S. 391, 38 L. ed. 757, 12 Sup. Ct. 468.

93 Transportation Co. v. Parkersburg, 107 U. S. 691, 27 L. ed. 584, 2 Sup. Ct. 732.

the conduct of his business.94 For the legislature to make a general rule applicable to all concerns in certain businesses, or for a commission acting by its authority, to order that the public should be served by any particular company, unless both requisites are present, would seem to deprive the owners and proprietors of their liberty and property. When the proprietors have never taken anything but their own oil through these lines, or at all events never made any profession of taking oil for others, can they be said to have committed themselves to public service? The Supreme Court in the Pipe Line Cases 95 recognizes this as a general principle, perhaps, but points out that in the particular cases before them there were found such special circumstances of interdependent purchase and transportation as to justify the action taken by the Commission under the discretion of the Congress to prevent restriction of commerce by the monopoly created. Not long before in a case not altogether dissimilar, as it involved the effect of interrelations, the same court 96 had held that where a railroad system engaged in interstate commerce controls through stock ownership a wharf company which has been chartered for the purpose of furnishing terminal facilities, the conduct of such a terminal being public in character, is subject to the jurisdiction of the Interstate Commerce Commission.

$ 190. Public railroads.

A public railroad is one which holds itself out as ready to engage in transportation for hire as a public employment; and generally the rights of the liability of a common carrier do not attach to one who does not so hold itself out.97 But if a railroad offers its services to all the public who are in a position to avail themselves thereof, the

94 Weems Stb. Co. v. People's Stb. Co., 214 U. S. 345, 53 L. ed. 1024, 29 Sup. Ct. 661.

95 United States v. Ohio Oil Co., 234 U. S. 548, 34 Sup. Ct. 946.

96 Southern Pac. Terminal Co. v. Int. Com. Comm., 219 U. S. 498, 31 Sup. Ct. 279.

97 Kansas City v. K. C. V. & T. Ry., 24 I. C. C. 22.