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exact location, are operated with peculiar advantage in particular areas, such as stockyards. 12
8. Limitation of available time. Another obvious restriction upon effective competition results from limitation of time. When the need of the applicant is immediate, the person from whom he asks service has an unfair advantage. It is this instant need which gives to those agencies established for the rapid transmission of intelligence that virtual monopoly which the earlier telegraph13 and the later telephone have always had. The very nature of their business is such that one must deal with the established plant upon whatever terms its owners are allowed to make. This is equally true of newsgathering agencies, such as the press bureau15 and the stock tickers.16 There are those who must have this service in their business or they cannot get on at all in competition with their rivals. Thus the law must step in and see to it that only reasonable rates are imposed. In these businesses public regulation of the service furnished is peculiarly necessary, or else public needs will not be met. There are other ways of sending communications—by mail or by messenger—but since time is of the essence here they are not effective substitutes. It is not accidental that the telephone cases and the associated press cases furnish the best discussion of the fundamental basis of the special law of public employment. Obviously this coercive law is imperatively required to meet the monopolistic conditions surrounding these peculiar services.
12 Ratcliff v. Wichita Union Stockyards Co., 74 Kans. 1, 86 Pac. 150.
13 Green v. Western Union Telegraph Co., 136 N. C. 489, 49 8. E. 165, LEADING ILLUSTRATIVE CASES.
14 State ex rel. v. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, LEADING ILLUSTRATIVE CASES.
15 Inter-Ocean Publishing Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822, LEADING ILLUSTRATIVE CASES.
18 Shepard v. Gold & Stock Telegraph Co., 38 Hun 338 (N. Y.).
9. Economic limitations create public employ. ment. The conditions which may produce virtual monopoly, such as natural sources of supply, restricted opportunities of access, limited time at disposal and difficulties in distribution have just been discussed. But of almost equal importance are other factors producing true economic monopoly by deterring effectual competition, such as the cost of the plant, the large scale upon which the business is done, the absence of effectual substitutes and the dependent position of the particular service. These elements in the general situation have doubtless already been taken into account unconsciously; but they are of such importance as to deserve mention. These economic forces of various sorts may, either singly or in combination with others, naturally result in a given business in a monopoly of a sort which bids fair to be permanently characteristic of that employment. In these businesses with which we are dealing, the larger the scale upon which the business is done, the lower the cost of performing the service. In such businesses there must be such great sums expended in construction of the plant that none would venture to sink an equal sum in a competing service at the risk of total loss in case of failure. The common fact therefore in all instances of public employment is virtual monopoly so established in the nature of things that society must reckon with it. And it matters not by what conditions this situation is established so that it has the elements of permanence.
10. Legal privileges accompanying public employment.—That legal privileges frequently accompany public employment is a coincidence that has struck many observers as a characteristic of the whole class. It is, indeed, common to find in the case of public employments of all sorts the enjoyment of an exclusive franchise, or the exercise of eminent domain, the use of the streets, or even a direct grant from the public treasury. The common argument is that because these businesses have been granted these privileges they have thereby acquired their public character. It is submitted, however, that under our constitutional system no special privileges can be granted except for a public purpose; for, unless there is public interest apparent, the grant is void. We have seen already that the conditions of virtual monopoly, however caused, may give rise to public calling, even when the state has had no hand in the establishment of the situation. There are extrinsic conditions by which it is to be determined what businesses are affected with a public interest; and the law must here as elsewhere deal with existing facts. Public privileges may be given only to a business public in character; and public regulation of such businesses only is justifiable. The power to recognize what those businesses are depends upon our experience and what our insight into the situation teaches us.
11. Public profession an essential.-It has been insisted upon from the earliest times that we must find public service voluntarily undertaken in order to hold one to the special obligations of this peculiar law. The early cases spoke of the profession of his trade for the public good which one made by publicly vesting an interest in himself in all that would employ him. An innkeeper who erected his sign, it was said, thereby charged himself to the commonwealth, and his property was therefore in effect dedicated to public use. The same principles still prevail, although our modern language is less picturesque. Even one who has acquired a virtual monopoly is not forced into public service against his will; it is only when he has committed himself to public service that he is bound thereafter to deal with all indiscriminately. There is no complete case of public employment made out even when the business is public in character, if there has been in that particular case no profession to serve the public. Thus a lumberman may have a railway upon his lands without being under any obligation to transport goods for others. The converse of this is true, that there is no case of public employment made out if the business is private in character, however much eagerness to deal with the public may have been evinced. No matter how flamboyant its advertisements, a dry goods store will not become thereby a public enterprise, subject to the peculiar obligations of public service, which our law imposes to prevent oppression.
12. Solicitation of the public.—When there has been general solicitation of the public there can be little doubt of the public profession. It is thus that a steamship line which advertises for freight indicates its character.17 And so a waterman who had the sign “lighterman” over his door was held to have professed public employment.18 The fundamental question here is whether the solicitor goes about making special contracts, or whether he lets people know generally that he is ready to deal with all comers as in regular course of business. Where a carter19 was soliciting business publicly in various ways, by signs upon his wagons and upon fences, by his cards and tags, it was held that these advertisements spoke for themselves, and unquestionably established the fact, independent of everything else in the case, that the truckman held himself out to the public. And where the proprietors of a hotel20 ran a coach to the station to induce guests to come to the house and had a public register for all to sign, the court had little doubt that it was a public inn. Indeed, business campaigns are common enough in public employment, as everyone who follows advertising affairs must know.
17 The Cape Charles, 198 Fed. 346. 18 Ingate v. Christie, 3 Car. & K. 61 (Eng.), LEADING ILLUSTRATIVE CASES. 19 Lloyd v. Haugh & K. S. & T. Co., 223 Pa. St. 148, 72 Atl. 516. 20 Fay v. Pacific Imp. Co., 93 Cal. 253, 26 Pac. 1099.