bound to do so, and it is therefore remiss in the performance of its undertaking if for any reason it fails to provide sufficient equipment. The fact that it is prevented from doing so by a strike of its employees is, therefore, no defense to it.88 The case would be otherwise where the strike is a sympathetic one with which the carrier is unable to cope, without failing in performance of its public duty. When, however, the carrier has provided sufficient vehicles and servants to carry, and is prevented from proceeding by the violence of a mob over which it has no control, it is excused from its duties for the time being.99 And this will be so although by meeting the demands of the strikers the carrier could purchase peace. Mob violence thus furnishes an excuse for delaying service, the obligation to render service being relative to do the best one can. And yet, as has been seen, if goods taken in charge are destroyed by a mob the carrier is liable absolutely by the peculiar law making it an insurer of all property entrusted to it for transportation.

115. Service disadvantageous to perform.-One must not be too nice in serving the public as a whole. Unkempt persons and those in unconventional dress must be taken, as well as loud people, and prize fighters.90 Militia men or sailors in uniform may not be refused entertainment, nor may scabs or strike breakers be refused.91 It is no excuse here that such

88 People v. New York Central & H. R. R. Co., 28 Hun 543 (N. Y.), LEADING ILLUSTRATIVE CASES.

89 Hall v. Pennsylvania R. R. Co., 14 Phila. 414 (Pa.).

90 Regina v. Sprague, 63 J. P. 233 (Eng.), LEADING ILLUSTRATIVE CASES. 91 Atwater v. Sawyer, 76 Me. 539.

service may hurt the business of the concern, or even may lead to actual damage. A carrier may not refuse to carry persons because of their color or race, whatever may be the prejudices current against them in the community.92 It must be admitted that this requirement may result in pecuniary loss. This is particularly true in the case of innkeeping; but the public duty is nevertheless imperative in this calling, as in all others. However, it would seem to be the plain right of the carrier, or indeed the innkeeper, to assign the different races to different accommodations, since the management of the business is left to the proprietor.93

116. Business policies inconsistent with public employment. Those who conduct a private business may adopt such policies as will produce the greatest profits; but those who profess a public employment must not do anything inconsistent with their public duty. Accordingly many policies for getting patrons away from others, or protecting an established custom from competition, which are legal enough in private business, must be held illegal in public business. Thus a carrier may not refuse to deal with those who will not deal with it exclusively, as one may in private business.94 Likewise one gas company may not agree with another not to serve those already served by the other.95 A railroad may not refuse to take, at the carload rate, car lots which for

92 Chicago & N. W. R. R. Co. v. Williams, 55 Ill. 185, LEADING ILLUSTRATIVE CASES.

93 Younger v. Judah, 111 Mo. App. 303, 19 S. W. 1109.

94 Chicago & A. R. R. Co. v. Suffern, 129 Ill. 274.

95 State ex rel. v. Portland Nat. Gas & Oil Co., 153 Ind. 483, 53 N. E. 1089.

96

warders have assembled together from various shippers. And a railroad may not carry coal, which it is selling from its own mines for itself, for less than its scheduled rate.97

96 Interstate Com. Com. v. Delaware L. & W. Ry. Co., 220 U. S. 235, 31 Sup. Ct. 392.

97 New York, N. H. & H. R. R. Co. v. Interstate Com. Com., 200 U. S. 361, 26 Sup. Ct. 272.

CHAPTER XII.

PROVISION OF ADEQUATE FACILITIES.

117. Basis of the duty.-It has been seen that the provision of adequate facilities in the conduct of the business which has been undertaken is one of the fundamental obligations resting upon those who undertake a public service. Without the recognition of this duty to provide proper facilities for carrying through the undertaking professed, the general requirement of service would be idle. The modern law goes to the extent of insisting that wherever there is found an undertaking to perform a general service for the community, facilities for performing that service must be provided, although this really means an expansion of the service. It must be plain to anyone familiar with the progress of the law as to the conduct of public employment that it is becoming more searching. Doubtless, as those who conduct these businesses maintain, it will be wise to leave to those responsible for their management a reasonable discretion in every respect. But this does not mean that the law should not arrive at working standards of proper management with sufficient detail to be really effective.

118. Proper equipment must be provided.-Regard must be had to circumstances and conditions under which the service is being rendered, the character and extent of the service, its reasonable

and proper requirements, and the means and methods best suited to such service in common use." 98 In a diversified business, such as common carriage, special equipments of various sorts must often be provided. In the case of the railroads very different cars, of course, are requisite for the transfer of passengers and of freight. And although many kinds of freight may be transported in open cars with safety, more kinds require box cars. Where the business which is being done requires it, the cases now hold that the railroad must equip itself with refrigerator cars, ventilator cars, stock cars and tank cars.99 These cases would seem to justify the generalization, that wherever the territory served by the railroad produces in sufficient quantities commodities which require special equipment for their proper shipment, such equipment should be provided. It should be added that the proprietors of the service are themselves responsible for the proper performance of the service they have professed. They must, therefore, see to it that they have proper equipment to render the service which they have undertaken. Thus, if a railroad bridge is built for a railroad company by reputable bridge builders, but is built so negligently that an accident results, nevertheless the railroad company itself is liable. It may not shift its responsibilities upon the bridge builders. And so a railroad may not, by having its passengers carried in sleeping cars belonging to an independent

98 State ex rel. v. Atlantic C. L. Ry. Co., 53 Fla. 650, 44 So. 213.

99 State v. Cincinnati N. O. & T. P. R. R. Co., 47 Oh. St. 130, 23 N. E. 928.

1 Louisville, N. A. & C. R. Co. v. Snider, 117 Ind. 435, 20 N. E. 284.