there is no more than the plain recital of the present recognition of different aspects of public duty. The duty to serve the public is the fundamental principle from which all the rules of public service may be derived.39 In a true sense, therefore, the law governing public service is an entirety.

§ 199. Nature of the public duty.

The fundamental fact in public employment is the public duty which results in all cases from public profession of a public calling. 40 It is somewhat difficult to place this exceptional duty in our legal system. It is like the contractual obligation in that it is an affirmative duty to act for a certain person; but it is different in that it does not depend upon assent of the party charged. It is like the obligation in tort in that it is imposed by law; but it is not imposed upon anyone against his will as is the obligation in tort. In one sense the obligation to serve the public is voluntarily assumed; and therein the public duty to act differs from the typical duty not to commit a tort, which each person without his ever being consulted owes to all the world. And yet once this obligation is established by his undertaking, his duty extends to all within the profession, however unwilling he may be in a particular case to render service. Public duty is in this sense imposed by law upon those who put themselves into public service; and therein very plainly the situation differs from the typical contractual duty which one owes only in particular cases to the persons with whom he has voluntarily negotiated a previous agreement. If one may thus employ the two traditional phrases, the duty is absolute

39 Being a common carrier is a status existing as a matter of fact; but the Commission can decide by the tests accepted in law whether or not the condition exists. Cancellation of Joint Rates on C. Z. & G. R. R., 27 I. C. C. 353.

40 Every common carrier owes a duty to the entire public, and each owes a duty to serve the communities which it reaches with its lines. Aransas Pass C. & D. Co. v. G. H. & S. A. Ry., 27 I. C. C. 403.

41

rather than relative. For it is a duty imposed by law regardless of dissent in particular instances, not one for which the actual assent of the person obliged is necessary in every case. And yet it must be obvious that in public obligation we have an intermediate case in many respects. It is like a status which one is under no obligation to enter except by his own free will; but, once having committed himself to it, the duties pertaining to that status are devolved upon him by operation of law regardless of his own wishes. However, he is committed to it no further than the peculiar law governing the situation requires.

§ 200. Limitations upon the profession.

Public profession not only establishes public obligation, but it largely determines the extent of the public duty. Just as people cannot be forced to serve unless they have made public profession, so they cannot be forced to serve beyond what their profession covers. There is some authority in the English cases for the proposition that a carrier may limit his undertaking not only as to the nature of the goods carried, but also as to the points between which he will carry certain goods; so that, for instance, a railway having established three stations, and being a carrier of both coal and iron, might be a common carrier of iron between stations 1 and 2 only, and of coal between stations 2 and 3 only, refusing to receive for carriage iron at station 3 and coal at station 1. "He may limit his obligation to carrying from one place to another, as from Manchester to London, and then he would not be bound to carry to or from the intermediate places." 42

41 The obligation of the common carrier to serve is a broad one, and cannot always be performed on that basis which is most advantageous to the carrier. Rates from Walsenburg Coal Field, 26 I. C. C. 85.

42 Johnson v. Midland Ry., 4 Exch. 367.

Railroads should not be allowed to so divide and diversify themselves by contract and traffic agreements as to work a practical discrimination. Cedar Hill Coal & Coke Co. v. A., T. & S. F. Ry., 15 I. C. C. 73.

This is brought out, although in too extreme a form, by the way in which the question was introduced to the jury by a federal judge, in a recent case.43 "The questions put, therefore, resolve themselves into this: Who shall have control of the operation of the road, the company or its customers? Who shall determine what the railroad will transport, the company or the shippers? Who shall say to what points the company will transport goods,the company or its customers? Who shall say what the means and methods of transportation shall be, the company or its customers? In short, who shall determine what the business of the company shall be and how it shall be carried on? Solved by the principle of the common law and common sense, it must be the company, as all will agree that no railroad could be operated at all by those who patronize it."

§ 201. Public duty the basis.

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.44 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

43 Harp v. Choctaw, O. & G. Ry., 118 Fed. 169.

Rails of an interstate carrier must be open from one end to the other with no restriction whatever except such as naturally flows from the right of the carrier to demand and receive a reasonable compensation

for each particular service of transportation. Rates on Plaster and Gypsum Rock, 27 I. C. C. 76.

44 Equality of opportunity in the use of transportation facilities. In Re Wharfage Charges at Galveston, 23 I. C. C. 535.

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.45 Although it is commonly said that it is the duty of a public service company to serve all, that is a 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.

§ 202. Extent of the carrier's route.

A carrier cannot be compelled to receive goods, still less to send and get goods, at a point off his line. Upon this general theory a railroad's obligation to receive freight is for transportation over its own route only. The fact that it has connections with other routes makes no difference; it is not bound to provide any other mode of transportation than its own. Therefore, it need not furnish means to carry merchandise over other routes; 46 and certainly it need not send cars to fetch freight from other routes. Thus it need not even provide equipment for taking freight from the sidings of other railways very near to its route but not really upon it.47 Although the Commission recognizes, as it must, that fundamentally a carrier need not take any thought of service to points off its own rails, 48 it has been obliged to point out again

45 In sections 1, 2, 3, 4 and 5 is the substantive law and machinery for public regulation of interstate carriers. Commutation Rate Case, 21 I. C. C. R. 428.

46 Pittsburg, C. & St. L. Ry. v.

Morton, 61 Ind. 539, 28 Am. Rep. 682.

47 Hoyt v. Chicago, B. & Q. R. R., 93 Ill. 601.

48 Laning-Harris Coal & Grain Co. v. A., T. & S. F. R. Co., 12 I. C. C. 479.

and again that if a carrier enters into through arrangements with other roads it may be involved in service to points beyond its own lines. It is not essential that a carrier actually reach a point to engage in its traffic to discriminate against it.49 It has been repeatedly held that while a railroad cannot be compelled to accept and agree to carry goods to points beyond its line, yet it might do so. If the carrier contracts to convey beyond its line, it would be liable as a common carrier for the whole distance.

§ 203. Scope of the service.

A railroad company is bound to take goods only of the class which it has undertaken to carry, but it is obliged to take all freight similar in character to what it has made a practice of handling. Thus a railroad need not handle special trains for the service of construction gangs; and so can make such terms as it pleases. But a steamship line carrying general freight cannot refuse to handle lumber, or even to postpone it for other more profitable freight.50 And generally speaking what a railroad handles for some shippers it must take for others without discrimination. In accordance with these principles the Commission has often supported special limitations upon the receipt of particular articles. Thus a rule excluding from transportation benzine, gasoline, and naphtha when contained in wooden barrels was not held unjust. And there are rulings of the Commission to the effect that a common carrier may limit the character of the commodities it wishes to transport, if altogether different from the sort of thing the carrier would normally deal with.51 Of course,

49 Lagrange Chamber of Commerce v. A. & W. P. R. R. Co., 28 I. C. C. 178.

50 See particularly McIntosh V. Oregon Ry. & Nav. Co., 17 Idaho, 100, 105 Pac. 66; Ocean S. S. Co. v. Savannah L. W. & S. Co. (Ga.), 63 S. E. 577, 20 L. R. A. (N. S.) 867; Santa Fe P. & P. Ry. Co. v. Grant

Bros. C. Co. (Ariz.), 108 Pac. 467; and Memphis News Co. v. Southern Ry. Co., 110 Tenn. 684, 75 S. W. 941, 63 L. R. A. 150.

51 See particularly Red C. Oil Mfg. Co. v. A. & V. R. R., 21 I. C. C. 542; Flour City S. S. Co. v. L. B. R. R., 24 I. C. C. 179; In re Express Rates, 24 I. C. C. 380, and id. 28 I. C. C. 316.