CHAPTER XX. REGULATION OF COMMON CARRIERS. § 102. Preliminary. 103. 104. 105. 106. Regulation based on public character of carrier. Charter of carriers as evidence of public policy. $ 102. Preliminary.-It is to be remembered that the German Alliance Insurance case,' decided in 1913, thirty-seven years after the ruling in the Munn case, found the principle, so far as rate making legislation was concerned, uncertain, save as it was based on the exercise of this right according to usage or practice at the common law. The reasoning in the Munn case was necessary only so far as Lord Hale's treatise, De Portitus, spoke of legal and virtual monopolies and their existence causing property to cease to be juris privati only. What was there said as to carriers was incidental. Referring to Lord Hale's treatise, De Jure Maris, ferries were alluded to and the principle of a legal monopoly arising out of franchise from the King or virtual monopoly out of "prescription time out of mind," and the raising of "a common charge" making private property "cease to be juris privati only, is rather to be inferred than expressly stated. It was said directly that a ferry, created by franchise or prescription "is become a thing of public interest or use." 2 1 German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915 C 1189. 2 I Harg. Law Tracts 6. As to charges of common carriers, it is merely recited, that the power to regulate them was exercised "in England as long ago as the third year of the reign of William and Mary and continued until within a comparatively recent period," when, by act of Parliament enacted in the nineteenth century, this practice was abandoned. As to this abandonment it was said: "In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendment, until 1827, when it was repealed and it has never been re-enacted. No one supposes that the power to restore its provisions has been lost. A change of circumstances seemed to render such a regulation no longer necessary and it was abandoned for the time. The power was not surrendered. ''3 The court seems here to assume that the statute of 1691 was so comprehensive in its terms “divers wagoners and other carriers"-who "have raised the prices of carriage of goods"—that it carried into our common law the principle, not only of regulating the charges of passenger carriers, but of instrumentalities or vehicles then wholly unknown. This gives an elasticity to the words "other carriers," under the rule ejusdem generis, quite unusual if not wholly unique. It is to be noticed, however, that Justice Field, in his dissent in the Munn case, while attacking what the majority opinion said as to warehouses, bakeries and mills, does not assail what was said as to carriers, nor does he dissent formally and without Chicago, etc., R. R. Co. v. Iowa, 94 U. S. 155, 162, 24 L. Ed. 94. opinion in all the carrier rate cases which follow immediately after the Munn case. But it was held very early in the history of the railroads as follows: "The introduction of railroads into the state has been followed by their construction over the great lines of travel, of passengers and transportation of merchandise; and the proprietors of these novel and important modes of travel and transportation, which have received so much public favor, have become the carriers of great amounts of merchandise. They advertise for freight; they make known the terms of carriage; they promise suitable vehicles, and select convenient places for receiving and delivering goods; and as a legal consequence of such acts they have become common carriers of merchandise, and are subject to the provisions of the common law which are applicable to common carriers."" Chief Justice Shaw said: "That railroad companies are authorized by law to make roads or public highways, to lay down tracks, place cars upon them and carry goods for hire, are circumstances which bring them within all the rules of common law and make them eminently common carriers. ''5 995 It is to be said that there was not any question of regulation of carriers either under police power or property affected with a public interest, but it well may be supposed that the words "other carriers" in the statute would be enlarged, as to their construction, by such views as the foregoing. That these views 4 Thomas v. Boston, etc., R. Corp., 10 Met. (Mass.) 472, 43 Am. Dec. 444. 5 Norway Plains Co. v. Boston, etc., R. Co., 1 Gray (Mass.) 263, 61 Am. Dec. 423. are indisputable law as showing responsibility to customers and in a general way as to the way carriers hold themselves out must be admitted, as see rulings in regard to carters, draymen, truckmen, lightermen and those employing messengers to deliver parcels. Similarly have been rulings as to carriers of passengers by stage coach, omnibus, boat and ferry. Thus as to a stage coach it was ruled in an early American case that the proprietor, just "as in the case of common carriers of goods, was bound to take all passengers who come, so long as he has convenient room for their safe carriage." From the duty to receive goods or passengers is deduced the public character of their business. This statement is not very remote from saying that they come under the police power and its covering the property therein as devoted to public use. 6 103.-Regulation Based on Public Character of Carrier. An early New York Case treats with very great fullness the duties and liabilities of common carriers as at the common law. The judge refers to English decision extending far back of the time of our separation from the mother country and since said time, and deduces the conclusion that a common carrier: "Shall not be privileged to make himself a common carrier for his own benefit, and a mandatary, or less, to his employer. He is a public servant with certain duties defined by law and he is bound to perform those duties." Then speaking of innkeepers • Bennett v. Dutton, 10 N. H. 481. 7 See Story on Bailments, 9th Ed., sec. 591, citing common law authority. Cole v. Goodwin, 19 Wend, 251, 32 Am. Dec. 470. and their duties it was said of the carrier that: "He is also a public servant and bound to perform the duties of his office." Lord Hale, himself, who stated the rule as to property being affected with a public interest, noted the stringent rule against carriers as insurers, and Lord Holt in 1795 placed their occupations on the list of public employments.10 This theory of public employment has been recognized in American decision ever since our government began. Thus our Supreme Court said in 1848 of a carrier that: "Admitting (for the sake of argument) the right to restrict his operation, it hy no means follows that he can do so by any act of his own. He is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned. And this is not to be implied or inferred from a general notice to the public limiting his obligation, which may or may not be assented to." In a later case this same court spoke of "the duties and responsibilities of public carriers" being "prescribed by public policy," and "the responsibilities of a common carrier may be reduced (by special contract) to those of an ordinary bailee for hire, while the nature of his business renders him a common carrier still.'"12 This case also said: "The carrier and his customer do not stand on a footing of equality. 9 Morse v. Slue, 1 Vent. 190, 238. 10 Lane v. Cotton, 1 Salk, 18. 11 New Jersey Steam Nav. Co. v. Merchants Bank, 47 U. S. (6 How.) 344, 382, 12 L. Ed. 465. 12 New York Cent. R. Co. v. Lockwood, 84 U. S. (17 Wall.) 357, 21 L. Ed. 627. |