plant or a telephone system, cannot confine its service to the original lines; it will be obliged to increase its plant to meet the increasing demands of its public. This extension of the profession depends on the intention of the proprietors, or rather upon the impression which they give their community. Their original franchise is taken upon the basis of a general obligation to serve the community. They really undertake to meet the needs of the community they are serving. Of course these companies must at least furnish service at all premises within the lines which mark the territorial limits of the established system." But it would be going too far to say, as one case did, that all within the municipal limits, however remote from the established mains, may demand service.42 The modern law, however, requires that the existing service must be extended with the expansion of the densely populated area.43 Probably the best rule for this matter is that contained in a recent decision suggesting that this expansion must keep pace with the reasonable expectation of eventual profit.**

19. Withdrawal of the profession. Since one comes into public service only by voluntarily engaging in the particular business upon a public basis, it would seem to follow that one could get out of public employment simply by publicly withdraw

41 Crouch v.

CASES.

Arnett, 71 Kans. 49, 79 Pac. 1086, LEADING ILLUSTRATIVE

42 Bothwell v. Consumers Co., 13 Idaho 568, 92 Pac. 533.

43 Birmingham Water Wks. v. Birmingham, 58 So. 204 (Ala.).

44 Public Service Corp. v. American Lighting Co., 67 N. J. Eq. 122, 57

Atl. 482.

ing his original profession. In a recent case in the Supreme Court it was assumed as unquestionable that a wharf which had once been a public landing could be turned back to private use.45 The existence of a charter seems to complicate the situation, although it is not apparent why it should. Where the charter is mandatory it must be obeyed and the whole service maintained even though at a loss, at least until the company is prepared to forfeit its charter. But where the charter is permissive it would seem that there is no obligation other than the general obligations which have just been discussed. Nevertheless there are many cases holding that railways must maintain their whole service; and they cannot according to these cases, therefore, abandon a branch line. It would seem, however, as the better authorities hold, that any separable part of the service may be abandoned, as for instance passenger service upon a railroad line.1 Surely where the business is now conducted upon a private basis, as a private pipe line system, for example, there should be no power to compel involuntary service.48

20. Reasonable notice of withdrawal.-The parallel between entering public service and quitting it is not quite perfect; for although one may enter upon public service on public notice without preparing the public for his advent, one may not,

45 Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 29 Sup. Ct. 661.

46 Colo. & So. Ry. Co. v. R. R. Commission, 54 Colo. 64, 129 Pac. 506.

47 Com. v. Fitchburg R. R., 12 Gray 180 (Mass).

48 Prairie O. & G. Co. v. United States, 204 Fed. 798.

it seems, abandon public service without notice to the public. The new element of a public duty now existing has supervened, which must be reckoned with when one who has assumed a public employment would lay it down. An innkeeper cannot without notice take down his sign at nightfall, nor a carrier abandon his schedule without warning to his public. This means that there is a public duty in the matter to give reasonable notice of the intention to abandon, which is owed the public, although after reasonable notice the public may be left to get service elsewhere. There are instances in the books of the granting of temporary orders to prevent a water company which had threatened cutting off an established service from taking sudden action.*9 And so a railroad will be enjoined from taking up a spur over which shipments are now being made.50 Where one service is substituted for another, however, as where a new line is built in place of an old, little notice need be given.51 And electric companies may divide territory between themselves without consulting their patrons.52

49 Bienville Water Supply Co. v. Mobile, 112 Ala. 260, 20 So. 742.

50 Durden v. Southern Ry. Co., 2 Ga. App. 66, 58 S. E. 299.

51 Whalen v. Baltimore & O. R. R., 108 Md. 11, 69 Atl. 390.

52 Weld v. Gas & Electric Light Commissioners, 197 Mass. 556, 84 N. E. 101, LEADING ILLUSTRATIVE Cases.

CHAPTER III.

PUBLIC DUTY.

21. Nature of public duty.-It has thus always been the law that some kinds of business were of special importance to the public, and that all persons engaged in such businesses owed the public peculiar duties. And, as has been seen, although no one can be compelled to enter upon the employment, if he chooses to do so, he thereby undertakes the performance of the public duties connected with it. The situation is one which the law must meet by imposing obligations corresponding to the necessities of the case. The law makes it clear that any one who decides to undertake a public employment thereby commits himself to performing that service in the way which the law says that the conditions demand for the protection of the public. This duty placed upon everyone exercising a public calling is primarily a duty to serve every man who is a member of the public needing that service. Implicit in this primary duty, necessarily involved in its full performance, are various requirements. Not only must all be served, they must have adequate service; not only must they not be charged extortionate rates, but there must be no discrimination practiced. In such an elaborated statement there is not more than the plain recital of the present recognition of different aspects of public duty. But it will

be noted that the duty to serve the public is the fundamental principle from which all the rules of public service may be derived.

22. Character of the obligation. It is somewhat difficult to place this exceptional duty in our legal system. It is like the contractual obligation in that it is an affirmative duty to act for a certain person; but it is different in that it does not depend upon assent of the party charged. It is like the obligation in tort in that it is imposed by law; but it is not cast upon anyone against his will as is the obligation in tort. In one sense the obligation to serve the public is voluntarily assumed; one is not committed to this service without his assent. But once this obligation is established by his undertaking, his duty extends to all within the profession, however unwilling he may be in a particular case to render service. A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it.53 Therefore injuries received in cases of this description are not violations of contracts between the parties, but are breaches of the duty imposed by law upon the carrier; they are torts. Thus one who is injured while being carried on Sunday can recover for the failure of the carrier in performing his undertaking, as he is not forced to make out his case by showing a contract.55

54

53 The language is that of Chief Justice Dallas in Bretherton v. Wood, 3 Brod. & Bing. 54 (Eng.), LEADING ILLUSTRATIVE CASES.

54 The language is that of Chief Justice Taney in Saltonstall v. Stockton, Taney 11 (U. S.).

55 Carroll v. Staten Is. R. R. Co., 58 N. Y. 126.