Page:The Green Bag (1889–1914), Volume 14.pdf/620

 A IVord More as to the Coal Mines. policy of which the particular doctrines are a part. It was this conviction which led the writer, in the opening pages of his pamphlet, to point out the many ways in which the law, in the protection of the public interest, regulates in varying degrees the enjoyment of private property. From a study of these examples it was sought to determine the general policy and spirit of the law, and the conclusion was suggested, that wherever the public needs require — not in an individual instance, but as a general rule — that cer tain rights affecting private property be rec ognized for the benefit of the public, the law has always been ready to recognize and en force those rights, applying for that purpose whatever technical doctrine has seemed most nearly suited to the need. This general principle, as an expression of the spirit and policy of the law, furnished a standpoint from which to examine par ticular doctrines, and it was constantly kept in mind in the discussion of Munn v. Illinois and of the rules of law involved in that case. Mr. Wyman seems to have confused these references to the fundamental attitude and tendency of the law, with statements of technical doctrine. It was contended in the pamphlet that, in a general sense, any business of importance to the public is liable to regulation in one form or another by courts or legislatures, and the decision in Munn v. Illinois was described (on p. 24) as a striking example of this general prin ciple. This passage — which is quoted by Mr. Wyman in another review of the same pamphlet, published in another legal peri odical — was evidently misread as an at tempted statement of the technical law of public callings. The sense in which it was intended has already been explained; and the writer is inclined to feel that a careful reading of the pamphlet up to that point ought to have prevented the misapprehen

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sion; but argument on that question would hardly be profitable. It may be added that, in the writer's opinion, the conclusions reached in the pam phlet are amply supported by the cases relat ing to public callings, without requiring addi tional support from general principles; but the broader treatment was adopted, because of the belief that only in that 'way could there be presented a fair and complete dis cussion and a reliable result. A similar course was followed by the Supreme Court in the opinion in Munn v. Illinois, upon which the writer modeled his discussion, and which Mr. Wyman very justly says must be the starting point of any proper treatment of the modern law of public call ings. We may turn now from the question of general principles, to the definite rules of law in which alone Mr. Wyman finds any thing of value. In what was said in specific reference to law of public callings, there was nothing which questioned in any way the importance of the element of virtual monopoly, which Mr. Wyman seeks to em phasize; and that element was discussed spe cifically as the one decisive of the question at issue (pages 26-28). But Mr. Wyman argues further that to bring a business within the class of public callings, not only must it be a business of vital importance to the public, and not only must there be present the element of virtual monopoly, but such monopoly must not be merely casual, as when there happens to be only one grocery store in a certain town, but must be in one way or another founded in the nature of things. It cannot be, says the critic, that a business will be a public calling one day and a private business the next, simply because a group of individuals control all the available supply on the first day and sell out on the second. How far