CURRENT LEGAL ARTICLES.
Is the Harvard Law Review for January, Professor Bruce Wyman of the Harvard Law School, has an important article—the first of a series—on "The Law of the Public Callings as a Solution of the Trust Prob lem," in the course of which he says: The distinction between the private call ings—the rule—and the public callings—the exception—is the most consequential divi- • sion in the law governing our business rela tions. In private businesses, one may sell or not as one pleases, manufacture what qualities one chooses, demand any price that can be gotten and give any rebates that are advantageous. It is because the trusts are carrying on a predatory competition under the cover of this law that we have the trust problem. All this time in public businesses one must serve all that apply without exclu sive conditions, provide adequate facilities to meet all the demands of the consumer, ex act only reasonable charges for the services that are rendered, and between customers un der similar circumstances, make no discrimi nations. If this law might be enforced against the trusts, it is believed that a solu tion of the problem would be found. In this time of peril to our industrial organization faith in our common law may show the way out. It cannot be that this law has guided our destinies from age to age through the countless dangers of society, only to fail us now. . . . During the nineteenth century the com mon carrier has become of such consequence in the industrial organization, as the very condition of modern commerce, that the other public callings have been over shadowed and have been at times almost lost to sight; but in the fifteenth century bar ber and surgeon, smith and tailor, innkeeper and victualler, carrier and ferryman were of more or less equal concern to the law. That these callings were put into a class by them selves, that an unusual law was applied to them, that this was sternly enforced, and that it was elaborately worked out—all these things cannot be without their modern sig nificance. The common law like its English
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king never dies, it persists from age to age, and though the instance of its rules may be seen to change as old conditions pass away and new conditions arise, it» fundamental principles remain. The cases just under dis cussion are illustrations of the course of events. Barber, surgeon, smith, and tailor are no longer in common calling because the situation in the modern market does not call for it: but innkeeper, victualler, carrier, and ferryman are still in that classification, since even in modern trade the conditions require it. The essential thing in all this is the recog nition of the common calling as a thing apart from the private calling, presenting differ ent conditions, involving the necessitv there fore of further law than that which suffices to regulate ordinary businesses. ' In these earliest examples there are certain elements in the situation which arc so characteristic i hat the realization of them should lead to some conception of the nature of the public employment. It would be too much to ex pect to see the law settled in these times, to find modern aspects of the problem alto gether anticipated; but it is not too much to hope to discover some meaning in the group of allied cases, some definition of the first principles involved. Upon the whole the circumstances surrounding these cases sug gest this as the characterizing thing; that in the private calling the situation is that of virtual competition, while in the public call ing the situation is that of virtual monop oly. . . . Experience has shown that the. truth of the matter is that the imposition of an oc casional monopoly may be advantageous in the ordering of the industrial system. The policy of the grant of an exclusive franchise has appeared in various circumstances. More frequently than formerly this is the method taken by the modern State for dealing with the troublesome problem of the public utili ties, for experience has shown that in the nature of the case many of the public works can be conducted with advantage only upon the basis of exclusive franchise. The tele phone system is a conspicuous instance; for
