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THE GREEN BAG

THE PUBLIC DUTY OF THE COMMON CARRIER IN RELATION TO DEPENDENT SERVICES BY BRUCE WYMAN Of the Faculty of Law in Harvard University

SUCH control has the common carrier over modern commerce, so indispen sable is its service to the conduct of every business, that the efficient regulation of this public utility is more imperatively de manded by public opinion to-day than ever before. Indeed, it is not too much to say that the public temper is such that only if the law succeeds in thoroughly controlling the whole conduct of the common carrier in an adequate manner, in all contingencies, towards all men, will the furnishing of trans portation be left in private hands. To be thorough and efficient, the law and its ad ministration must be comprehensive and detailed; and it is proposed, therefore, to single out for discussion in this article one particular phase of the public duty of the common carrier, one which concerns many conflicting business interests of the greatest importance, and one that involves a bitter legal controversy as to fundamental prin ciples and their necessary corollaries. This particular problem proposed for discussion is whether in dealing with dependent services the common carrier is under the general obligations of the public service law or whether the common carrier is free to deal with them as it sees fit, consulting only its own interests. So close is the argument and so recent is its origin that there has been, and there remains, a square conflict of authority as to whether this law extends so far as to cover this situation. On one side are the jurisdictions conservative in attitude, which hold that there is no public duty involved and that therefore, the carrier may, for example, discriminate among expressmen. On the other hand, are the progressive jurisdictions which hold that there is a public obligation involved and that the carrier may not, therefore, admit

certain hackmen to its station while exclud ing others. And in various other subsidi ary businesses of the same sort, where those who offer a service to the public are de pendent to a considerable extent for oppor tunity to conduct their calling upon ob taining privileges from the carrier, there will be found the same issue and the same controversy. II The most important instance of this gen eral problem is whether the railways are bound to furnish facilities to all expressmen that apply without discrimination. There is, upon this matter, as upon all of these allied questions, a square conflict of author ity. Much is said upon both sides; and in a matter of such commercial consequence much of this is worth repeating. The dis cussion is carried on along the whole line; not only is the matter discussed from the point of view of the proper theory to be held, whether the general rules of public service govern or whether they are inappli cable; but the matter is also discussed with much heat from the point of view of public policy and business convenience. The leading case upon this subject is un doubtedly the Express Cases (117 U. S. i). This is the general heading covering several suits presenting substantially the same question, as they were all suits begun by expressmen against railways to compel them to give them respectively the express facilities on the several lines of railway which they had previously enjoyed by con tract and of which they had been dispos sessed by notice given in accordance with the terms of exclusive contracts made with favored companies. Judgments below had been rendered in favor of the express com panies from which the railroad companies appealed. The cases were elaborately ar