Page:The Green Bag (1889–1914), Volume 16.pdf/163

a single system of telephones can alone serve The positive law of the public calling is to satisfactorily bring together all the tele the only protection that the public have in a situation such as this, where there is no com phone users of a community. And in a less obvious case the waste by duplication of petition among the sellers to operate in its plants is so scandalous that the ultimate favor. So much has our law been permeated with the theory of laisses faire, which was benefit to the community from giving an ex clusive franchise, as to one gas company for > but lately so prominent in the policy of our example, must be admitted, when the futility State, that the admission has been made with of expecting any permanent competition has ' much hesitation that State control is ever been so long exposed. Indeed it is now (' necessary. But the modern conclusion, recognized by many advanced thinkers that after some bitter experience, is that freedom it is necessary for the perpetuity of competi can be allowed only where conditions of vir tive conditions in general, that, in the partic tual competition prevail, for in conditions ular instances of monopolistic conditions, the of virtual monopoly, without stern restric State should proceed to establish a legal mon tions, there is always great mischief. There opoly, and then apply to that situation such is now fortunately almost general assent to strict regulation as the exigency de State control of the public service companies, mands. . . since it is recognized that special situa i tion requires a special law. That law is based Wherever virtual monopoly is found the ¡ upon the conclusion that it is no inconsis situation demands this law that all who ap tency for the State to leave the generality of ply shall be served, with adequate facilities, business free from restrictions, while con for . reasonable compensation and without trolling with a strict code such lines of indus discrimination; otherwise in crucial instances try as are affected with a public interest. of oppression, inconvenience, extortion and The working out of this detailed law gov injustice there will be no legal remedies for erning public calling is now going on so rap these industrial wrongs. This is as true idly that it already is of real value in grap where the origin of this condition of mon pling with actual abuses, such as exclusive opoly is in natural limitations as where the demands, inadequate facilities, hidden over establishment of it is by fiat of the State. charges, and undue discriminations. At the Actual monopoly should be dealt with upon same time, as will be seen, new businesses are the same basis as legal monopoly; and in being put into the class of public employ deed is so treated by the inclusion of both ments, so that a greater variety of industries within the law of public employments. is now within the law. It seems only a ques No one can study the authorities upon this tion of time when the question will be raised subject without feeling that we are just now for determination whether these great indus entering upon an important development of trial trusts are public service companies. If the common law. It is at the present time ever a decision shall put them into that classi difficult to predict what branches of industry fication, it is submitted that the law of public will eventually be held of such public conse services will be found to have developed far quence as to be included in the category of enough to meet the exigencies raised by the public callings, because in the last few years complexity of their operations. the field has extended so widely before our very eyes. However we now have so much FROM the editorial columns of The Albany material for analogy and comparison that it LU'LV Journal we take the following apprecia ought to be possible to advance, in a tenta tive notice of the late Mr. Coudert: tive way at least, a series of tests that may The death of Frederick R. Coudert re indicate in a general way whether or not a moves a citizen of the highest character, a business has attained such control of its market as to become of the class of public man of profound learning and a lawyer who •employments. . . . had few peers. It has been well and truly