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grounds.' According to the progressive view, the whole law of public service applies to the situation and any discrimination between hackmen is therefore condemned.74 An exclusive contract with one express company for the use of passenger trains is held in many jurisdictions legal as a sufficient provision for express service." But in the radical courts such arrangements are condemned as fostering a monopoly which will inevitably exploit the public affected.76

28. Furnishing of incidental services.-The real truth of this difficult matter seems to be that while public duty is involved in regard to some dependent services to such an extent that the whole law of public service should apply, there are other incidental services as to which there is no public obligation to prevent the making of such exclusive arrangements. It seems that equal access to railroad wharves should be given to competing steamboat lines; but the decisions as to that are conflicting." Perhaps the private car business ought not to be turned over to favored concerns without competition, as it is under the favoring auspices of the conservative courts.78 To be sure there seems to be

73 New York, New Haven & H. R. R. Co. v. Scovill, 71 Conn. 136, 41 Atl. 246.

74 Montana Union Ry. Co. v. Langlois, 9 Mont. 419, 24 Pac. 209, LEADING ILLUSTRATIVE CASES.

75 The Express Cases, 117 U. S. 1, 6 Sup. Ct. 542, LEADING ILLUSTRATIVE CASES.

76 McDuffee v. Portland & R. R. R. Co., 52 N. H. 430.

77 See Louisville & N. R. R. v. West Coast Naval Stores Co., 198 U. S. 483,

25 Sup. Ct. 745.

78 Chicago St. L. & N. O. R. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 11 Sup. Ct. 490.

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no objection to giving exclusive privileges for bootblacks in hotels. But an inn must admit competing telephone companies to equal privileges.80 The difference between these two classes of cases is obvious enough. There is a public necessity subserved in one class, while in the other class there is no real need at all. Even in the case of services which are public, there are some matters which are not obligatory. A railroad need not permit all baggage men to go upon the trains to solicit business before the station is reached. An express company cannot demand a booth in a terminal station, even if competitors have one.

29. Rights of connecting services. The problem of connecting services cannot be dismissed by saying that for a carrier to make arrangements for interchange of business with one connection while refusing to do the same with another is illegal discrimination, for this is true only to the extent that public duty is involved. A railroad may not refuse altogether to have dealings with its connections to accept goods from them or to deliver goods to them. Obviously this will not do; it is the duty of the railroad as a common carrier to accept and deliver goods at every station on its route for all patrons alike.81 The patron may himself decide by what successive parties he wishes the service performed, and from these directions the carriers de

79 State v. Steele, 106 N. C. 766, 11 S. E. 478.

80 Central N. Y. Tel. & Tel. Co. v. Averill, 199 N. Y. 128, 92 N. E. 211. 81 A contract by a carrier not to receive goods destined beyond its own line is void. Seasongood v. Tennessee & O. Transp. Co., 21 Ky. Law Rep. 1142, 54 S. W. 193, LEADING ILLUSTRATIVE CASES.

viate at their peril. Thereupon the law necessarily throws upon each carrier in turn the duty of tendering the goods for further transportation to the succeeding carrier; and normally, until it effectuates such delivery, the original carrier remains liable as a common carrier.82 The traditional rule at common law has been that there is no obligation to permit physical connections between railroads." But if there is a sufficient amount of business that would usually be tendered at a junction should a station be opened, according to the more advanced views now held there ought to be a joint station established.84

✓ 30. Arrangements for through service. At common law one public service could not be compelled to enter into arrangements with another for continuous service as a single unit for a single rate. Through arrangements were left altogether to such private agreements as the parties should negotiate.85 So far as the common law was concerned either through service was undertaken voluntarily by the initial carrier solely, as the English cases presumed it was when nothing was said to the contrary, or it was a case of successive carriage where each carrier was liable in turn, as the American cases generally presume in the absence of evidence.86 It was

82 See Western Union Telegraph Co. v. Simmons, 93 S. W. 686 (Tex. Civ. App.), applying the same law to telegraph companies.

83 Atchison, T. & S. F. Ry. Co. v. Denver & N. O. Ry. Co., 110 U. S 667, 4 Sup. Ct. 185.

84 Concord & M. R. R. Co. v. Boston & Maine R. R. Co., 67 N. H. 464, 41 Atl. 263, LEADING ILLUSTRATIVE CASES.

85 Southern Ind. Exp. Co. v. United States Exp. Co., 92 Fed. 1022.

86 This point is discussed fully in Nutting v. Connecticut River R. R., 1 Gray 502 (Mass.).

possible for two carriers to establish through routes at joint rates; but there was no compulsion about it. It followed that a carrier could do as it pleased without being open to the charge of discrimination for choosing a certain carrier to be associated with it in through service under a joint rate with it.87 But by the modern statutes, the regulating commissions are given power to establish joint rates and even to dictate as to the division thereof,88 all of which is held constitutional on the ground of public interest in through service.

87 Southern Pacific Ry. Co. v. Interstate Commerce Commission, 200 U. S. 536, 26 Sup. Ct. 330, LEADING ILLUSTRATIVE CASES.

88 Interstate Commerce Commission v. Northern Pacific Ry., 216 U. S. 538, 30 Sup. Ct. 415.

CHAPTER IV.

CONDITIONS PRECEDENT.

31. Performance of conditions prerequisite.-It will be found, moreover, that there are many conditions precedent to the obligation of any particular public service company to serve any particular applicant. There is no obligation to render service to a particular applicant until he has put himself in a proper position to demand that service. It is the law again which determines under what conditions the service company may properly be held to respond to an application. In most services the law has made it plain what conditions there are as to time and place, method and manner. All these conditions must be performed by the particular applicant, though he be of the class to which the duty pertains, before a present duty is owed him, even though he wishes a service in respect to which there has been public profession of a general sort. Undoubtedly the most noteworthy example of these conditions which must be performed is the necessity of an offer of prepayment before any service will be due. Stated technically, the company rendering the service is therefore not in default until performance of the conditions precedent has been tendered. What conditions are thus insisted upon depend upon how the law has thought proper to safeguard all concerned.