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that the fare be paid in advance, or that a ticket shall be purchased and presented. By the same principles a telephone user must pay in advance the usual charge made for the regular period of billing prevailing, and a patron at a pay station must pay the charge for the connection as required.12 So tender of charges must accompany a demand for water service, especially where tap service is asked which can be computed in advance.13 Without going into more details at present, the general rule may be repeated, that in all cases the service company may refuse to act until payment is forthcoming. It would be intolerable to compel one to render service without securing to him his right to collect his pay.

38. Waiver of prepayment possible.—This necessity of tender may be waived in practice; and it generally is unnecessary to lay down the money before one is asked. Thus if the inn is open and the traveler enters and makes his desire to become a guest known to the innkeeper, the latter must request a tender if he means to insist upon it as a condition of receiving a guest.14 But in no case may payment for service be demanded on credit as a right, no matter how common such a practice may have been. Even in a case of a telephone company which for years had given patrons a month's credit

a by the system upon which its bills were rendered,

11 Dickerman v. St. Paul Union Depot Co., 44 Minn. 433, 46 N. W. 907, LEADING ILLUSTRATIVE CASES.

12 Ashley v. Rocky Mountain Bell Telephone Co., 25 Mont. 286, 64 Pac. 765. 13 Robbius v. Bangor R. & E. Co., 100 Me. 496, 62 Atl. 136.

14 Fell v. Knight, 8 M. & W. 269, 10 L. J. Ex. 277 (Eng.), LEADING ILLUSTRATIVE CASES.

it was held that it might by a mere notice require a particular customer to pay in advance.16 Where the waiver is plain in a particular case the full responsibilities of the undertaking will be held to have been begun without the performance of the condition. Thus where a carrier accepts goods for carriage without making demand for payment, it is liable as common carrier though the freight has not been paid.16 So if a telegram is taken with the understanding that the basis is that charges shall be collected from the sendee, the company is bound to forward it with all dispatch.17

39. The unit of service.-As a matter of convenience public service is usually offered in fixed units. The decision of the company as to the units in which it will provide service is conclusive unless its action is unreasonable. One who wishes to go a journey may not demand the right to pay mile by mile; but the company may insist that he pay for the whole journey as a unit.18 And one who wishes water for irrigation may not demand a day's supply; on the contrary it may be insisted that he shall take for the whole season.19 In these two instances the unit insisted upon by the company is the natural unit of service; but there are many instances in public service where there is no natural unit, and in such cases the matter must be left to the decision of the company unless it acts outrageously. Thus it would be entirely reasonable for the company to fix three months as the unit of water service.20 And a telephone company may fix a year for the initial service at the time of installation.21 Considered as an existing fact, the unit established is an entirety; payment of the whole unit must be tendered in order to be in a position to demand any service. And the fare for the whole journey must be paid whenever demand is made.

15 Malochee v. Gt. So. Tel. & Tel. Co., 49 La. Ann. 1690, 22 So. 922. 10 Porter v. Raleigh & G. R. Co., 132 N. C. 71, 43 S. E. 547. 17 Western Union Telegraph Co. v. Cunningham, 99 Ala. 314, 14 So. 579. 18 London & N. W. R. R. v. Hinchcliffe, (1903) 2 K. B. 32 (Eng.). 19 Wheeler v. No. Colo. Irr. Co., 10 Colo. 582, 17 Pac. 487.

40. Payment of arrearages demanded. It would seem that the applicant is entitled to present service upon payment for the present unit, regardless of whether he owes for past services. And it would seem to follow that to refuse future service when present payment is offered therefor until arrears shall be paid, is, for a public service company, illegal. But as to the legality of such a policy in the management of a public employment, there is a surprising conflict of authority. On one hand are the decisions which hold that in refusing to serve those who come with ready payment, the company in

question acts contrary to its public duty, which is to serve without discrimination all that apply.22 But there are other cases equally insistent in holding that, if the present applicant.owes for a supply given him, he is in no position to demand a further supply, even if ready money is tendered for it.23

20 Harbison v. Knoxville Water Co., 53 S. W. 993 (Tenn. Ch. App.), LEADING ILLUSTRATIVE CASES.

21 Buffalo County Telephone Co. v. Turner, 82 Neb. 841, 118 N. W. 1064. 22 Crow v. San Joaquin & K. R. C. & I. Co., 130 Cal. 309, 62 Pac. 562.

23 People v. Manhattan Gas Light Co., 45 Barb. 136 (N. Y.), LEADING ILLUSTRATIVE CASES.

Although this is clearly in the face of public duty, much is made in these cases of the argument of the convenience to the company in making its collections. It is agreed, however, that an applicant need not settle the unpaid bills of the previous tenant of the premises.24 Nor may disputed claims be enforced by refusing further service until settlement is made.?


24 Poole v. Paris Mountain Water Co., 81 S. C. 438, 62 S. E. 874. 25 Mansfield v. Humphreys Mfg. Co., 82 Oh. St. 216, 92 N. E. 233.





41. When service is begun.—The question is often raised whether in a particular case the regular relationship of the public sort has actually been established by the undertaking of the service asked. The modern railroad habitually receives passengers at stations, and so is liable from the time the traveler comes upon the premises. On the other hand, it does not commonly undertake to be liable for goods until some employee takes them in charge. The further question then arises, whether the transaction under examination is upon a public or a private basis. Suppose that one engaged in a public employment makes a special arrangement with one whom he would have been obliged to serve—is this service upon a public or private basis? Or suppose not being obliged to serve the particular applicant he actually receives him as though he were—is this service upon a public or private basis? These distinctions are shown plainly in the law of innkeeping. Although obliged to receive a traveler as a guest, the innkeeper may, by special arrangement

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