Page:Harvard Law Review Volume 32.djvu/755

719 ii NOTES 719 statute," or by provision in the charter itself.^' Where, however, char- ters have been held permissive, the courts have generally agreed that the incorporators cannot against their will be compelled to continue the operation of the plant. ^^ The case of the unincorporated proprietor is distinct from that of the chartered corporation. The chartered corporation has a legal existence only as a public servant and as such can be subjected to more rigid re- quirements than the unincorporated proprietor who has an existence separate and distinct from his existence as a public servant. Accord- ingly the cases consistently hold that an individual cannot be compelled to continue the operation of a public service against his will.^'^ To hold otherwise would endanger his rights under the Thirteenth and Four- teenth Amendments.^* The law on this point has been thrown into confusion because the cases have failed to distinguish between cessation of operation on the one hand and dismantling of the plant on the other.^^ The latter works a much greater hardship on the public than the former. As the Maine Public Utilities Commission recently pointed out,^" "The public is en- titled to assurance that the present company shall not be permitted to stand in the way if interested parties wish to render such service." In other words, where a real public necessity for this or a similar service continues, a public utility should not be allowed to scrap its plant until a reasonable time has elapsed within which (i) a purchaser willing to render the same service may be found,^^ or (2) the parties being served by the utility may decide to guarantee it against further loss,^ or (3) a " Polk V. Mutual Reserve Fund Life Association, 207 U. S. 310 (1907); People ca; rel- V. Rose, 207 111. 352, 69 N. E. 762 (1904). " Supreme Council C. K. A. v. Logsdon, 183 Ind. 183, 108 N. E. 587 (1915); Ashuelot R. Co. V. EUiot, 58 N. H. 451 (1878). '^ East Ohio Gas Co. v. Akron, 81 Ohio St. ^Sj 9° N. E. 40 (1909); State ex rel. Knight V. Helena Power & Light Co., 22 Mont. 391, 56 Pac. 685 (1899); San Antonio Street Railway Co. v. State, 90 Texas, 520, 39 S. W. 926 (1897). See Booth, Street Railways, 2 ed., § 65. " In the early case of Rex v. Collins, Palmer, 373 (1623), the court said that "an innkeeper may at his pleasure demolish his sign and leave off innkeeping." Similarly as to a ferryman. Carter v. The Commonwealth, 2 Va. Cas. 354 (1823), and as to teamster, Satterlee v. Groat, i Wend. (N. Y.) 272 (1828). Since the bulk of public service work is to-day carried on by corporations rerent cases as to the right of an un- incorporated public service proprietor to withdraw from business at will are scarce. But see San Antonio Street Railway Co. v. State, 90 Texas, 520, 528, 39 S. W. 926, 930 (1897) where the court says, "Certainly carriers who are not corporations may at any time discontinue the business, if they elect to do so." See also State ex rel. Knight v. Helena Power & Light Co., 22 Mont. 391, 397, 56 Pac. 685, 687 (1899). 18 As to Thirteenth Amendment, see United States v. Reynolds, 235 U. S. 133 (1914), Ex parte Hollman, 79 S. C. 9, 60 S. E. 19 (1908). As to the Fourteenth Amendment, see Van Denman & Lewis Co. v. Rast, 214 Fed. 827 (1913); AUgeyer v. Louisiana, 165 U. S. 578, 589 (1897). " The proper distinction was, however, made in Rowland v. Saline River Railway Co., 119 Ark. 239, 246, 177 S. W. 896, 899 (1915) where the court said, "It does not follow that, because we have held that the order of the railroad commission was arbi- trary and oppressive, the railroad company has a right to take up its rails and dispose of them of its own motion." '«' Re St. Croix Gaslight Co., P. U. R. 1919 A, 487, 493 (Maine Pub. Util. Com.). ^ Re St. Croix Gaslight Co., supra, note 20. See Central Bank & Trust Corporation v. Cleveland, 252 Fed. 530; 534 (1918).