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13. Characteristics of public employment.-Indiscriminate dealing with the general public is the chief characteristic of public service. The criterion is whether service is rendered particular persons chosen, or whether there is service offered to every one who comes along. Thus one who is transporting goods from place to place for hire as his principal occupation, for all that see fit to employ him, is a common carrier.21 By the same token the establishment by the innkeeper of a regular price for his entertainment is proof that the house is being conducted as a public one. The test in all cases, as will have been seen, is whether the service is being performed upon the regular basis of public employment. So a water company which accepts a charter for the supply of certain territory thereby commits itself to serve that community.23 An irrigation company which has taken all applicants as they come along on the same terms has clearly put the enterprise upon a public basis.24 If the service is thus habitually performed upon a public basis, the community affected is led to rely upon its continued maintenance upon a public basis. There has been a profession made to serve the public when the evidence shows that the public would naturally get the impression that the service is offered to all.
14. Indications of private business.—The chief characteristic of private dealing is the usual necessity for special agreement with the proprietor, no regular course of business being followed. There is not the element of permanency in such dealing; it is generally regarded by all concerned as an incidental relation. Thus where a vessel is chartered for a special voyage, the charter being necessarily an isolated contract, the owner of the vessel is plainly not engaged in common carriage.25 So a farmer who occasionally takes in for the night travelers coming his way is not held liable as an innkeepereven if he usually accepts money therefor—since he plainly is not making tavern keeping his regular means of getting his livelihood.26 Electric power is not being supplied upon a public basis where the whole output is delivered to a few concerns by special arrangement.27 And telephone lines are commonly enough run through the neighborhood in rural districts as a private service for the particular subscribers.28 A casual undertaking is not public service, nor is an intermittent employment. There must be a regular course of dealing in order to give commonly the impression that the service is being offered to all comers. Only in such cases does the public rely upon the service as always at its disposal.
21 Robertson & Co. v. Kennedy, 2 Dana 430 (Ky.), LEADING ILLUSTRATIVE CASES.
22 Johnson v. Chadbourn Finance Co., 89 Minn, 310, 94 N. W. 874.
15. Extent of public profession.—Just as people cannot be forced to serve unless they have made public profession, so they cannot be forced to serve beyond what their profession covers. One by entering a public employment does not thereby undertake to perform every kind of service that may be asked of him; his obligation only extends to the sort of service that he has undertaken. Thus a carter need not take as a common carrier a great hogshead, much larger than the sort of thing he has facilities for carrying.29 And so an express company, never having professed to take glass, need not assume responsibility for its breakage.30 Railroads are undoubtedly created for the purpose of carrying all kinds of personal property; the American cases therefore hold that the railroad companies must take live stock upon a public basis.31 And if a railroad is carrying parcels upon passenger trains, it cannot while taking the newspapers of one publisher refuse those of another.32 It would follow that in every service of a public character the public generally may insist upon the performance of everything of the sort they would naturally expect to be done judged by what is being done. There is, indeed, a certain scope in every service so naturally expected that one undertaking the service commits himself to conducting the particular business according to its normal standard.
25 Allen v. Sackrider, 37 N. Y. 341, LEADING ILLUSTRATIVE CASES.
28 Cumberland Tel. & Tel. Co. v. Cartwright Creek Tel. Co., 128 Ky. 395, 108 S. W. 875.
16. The case of separable services.—One is thus not necessarily committed to going beyond the general class within which his usual services fall; but he obviously may if he chooses expand his business to cover other separable services. A railroad is not necessarily a carrier of both passengers and goods, it may confine its service to one or the other. Thus there are freight railroads which carry no passengers, just as street railways need carry no freight.33 But the innkeeper's business is held indivisible; he must supply both food and lodging, or he is not an innkeeper. Thus neither a lodging house nor a restaurant is an inn, notwithstanding there is in either case advertisement enough for general patronage.34 A water company supplying householders and shopkeepers for domestic uses need not supply manufacturers and farmers for their peculiar needs.35 And a gas company may confine its profession or be limited by its charter to the supply of gas either for illumination or for fuel.36 Of course where two services have been voluntarily undertaken, both services or either are at the disposal of the public. The public have a right to the service which has been professed, although without the profession such extension of the service would not be obligatory.
29 Tunnel & Short v. Pettijohn, 2 Harr. 48 (Del.).
82 Memphis News Publishing Co. v. Southern Ry. Co., 110 Tenn. 684, 75 S. W. 941, LEADING ILLUSTRATIVE CASES.
17. Profession limited to facilities devoted. One may set the exterior limits to the profession one is making; but one may not make interior limits. In other words, one is not bound to service outside of the profession which has been made, while one is bound to serve within the profession. This distinction may be illustrated by pointing out that a railroad is not bound to carry beyond the route which it has established.37 But it must have cars enough to handle all business along its lines. Similarly a water company need not supply applicants outside the city, even if its aqueducts pass their premises;#8 but certainly it could not within the city refuse to supply applicants in a district through which its pipes run. So, too, an innkeeper is not bound to serve beyond the capacity of his house; but until it is exhausted he ought to receive all without discrimination.39
33 Compare Wiggins Ferry Co. v. East St. Louis Union R. Co., 107 Ill. 450 (freight railroad) with Thompson Houston Electric Co. v. Simon, 20 Ore. 60, 25 Pac. 147 (passenger railway).
34 See Davis v. Gay, 141 Mass. 531 (a lodging house) and Block v. Sherry, 43 N. Y. Misc. 342 (eating house). 35 In re Barre Water Co., 62 Vt. 27, 20 Atl. 109. 36 State v. New Orleans Gas Light Co., 108 La. 67, 32 So. 179.
A power company is not liable for not supplying new applicants after the flow of the stream is exhausted, although bound to accept applicants in proper order up to its capacity.40 Perhaps in these last two instances it may also fairly be said that the extent of the innkeeper's profession is the dedication of his actual house to public service, and the whole profession of the power company is to divert the particular stream. Therefore, neither can be called upon to serve beyond its profession, while within its profession its public duty is plain.
18. Obligation of community service.-In various public services, however, the obligation assumed is obviously to serve the community as a whole. A gas plant or a waterworks, an electric
37 Pittsburg C. & St. L. Ry. Co. v. Morton, 61 Ind. 539.
39 See Browne v. Brandt, (1902) 1 K. B. 696 (Eng.), LEADING ILLUSTRATIVE CASES.
40 See Brown v. Gerald, 100 Me. 351, 61 Atl. 785.