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1. Public employment distinguished from pri-
vate business.-From the beginnings of our law to
the present time the distinction between public em-
ployments and private business has been considered
fundamental. All businesses both public and pri-
vate are subject to that general police power of the
state whereby in any civilized society the effort is
made to promote the general welfare by positive
law. But any comparison of the large amount of
systematic coercion which it is considered proper
for the state to impose upon public services with the small extent of the regulating power over private businesses is in itself significant enough. Those in a public calling have always been under the extraordinary duty to serve all comers whether it was agreeable or not, while those in a private business may always refuse to serve if they choose. In public business one must serve all who apply without making unreasonable conditions, provide adequate facilities to meet indicated demands, exact only reasonable charges for services rendered, and between customers similarly circumstanced make no discriminätions. In private business, on the other hand, one may turn away whomsoever he chooses, manufacture such quantities as he pleases, demand any price which he can get, and give any rebates which are advantageous.

* Former Professor of Law, Harvard Law School. Author: "The Prin-

ciples of Administrative Law; “Control of the Market”; “Public Service

Corporations." Co-author: Beale and Wyman's “Railroad Rate Regula-

tion.” Editor: Cases on Public Service Companies; Cases on Restraint of

Trade. Contributor to legal journals. Consulting counsel for various rail-


2. History of the public employments. In the middle ages, as we view conditions through our earliest law reports, this distinction between public callings and private concerns was clearly made. Indeed, control of important employments went further then than it has ever gone since. The gild merchants controlled the sale of staples with a system of rules to protect the purchaser, just as the craft gilds saw to it that there was enough manufactured to supply the needs of the population. All this regulation of affairs by the state was felt to be for the benefit of the public as a whole, who could thus obtain, without favor at reasonable prices, proper service in accordance with their requirements. Thus the baker and the miller in the country villages were bound to serve all that applied or answer for it in the courts. Likewise the surgeon and the tailor in the towns had to answer to all calls upon their professions, or else subject themselves to the penalties of the law. Innkeeper and carrier then as now were at the service of the public, the innkeeper being subject to indictment if he turned away a weary wayfarer. Some of these employments are no longer on the list, and many others have been added. For it is the economic conditions of a given time which determine what businesses must be subjected to the coercive law of public service, and what employments can be left to the general regulation of natural forces. Times change, and the application of the law varies. At one time we are regulating canals and turnpikes, at a later time railroads and steamboats. At one time we are regulating the price of bread and boards, at another time of gas and electricity. But the fundamental principle remains, that, whenever in any employment the conditions give those who conduct it virtual control over their patrons in a matter necessary to their welfare, the law steps in and compels the performance of that service in accordance with the requirements of the public.

3. The public services of the present day.Whatever way we turn today we depend upon a service that is public in character. Not only in long travels but in short journeys we employ common carriers-railroads and steamships, coaches and cabs, street cars and omnibuses, the subway car and the elevated train. If we ship goods there

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