THE GREEN BAG before arrival, and of checking from houses of intending travelers? It would seem that these last privileges are truly matters of favor and not matters of right; and that the Georgia and Texas cases which allow exclusive priv ileges in these respects are to that extent, at least, unexceptionable decisions.1 It is obvious that the outside limits of this public duty which the common carrier owes in respect to dependent services have now been reached. So long as there was a question of the right of shippers in respect to the transportation of their goods, there was a public duty in the premises; and while it could be said that the service was one con cerning adequate facilities for passengers, the public duty existed. Within these lines there should be neither exploitation nor discrimination; but beyond these conditions the common carrier should remain free to carry on its own business in its own way. For example, as it owes no duty to passen gers to see to the provision of flowers, maga zines, cigars and souvenirs, it may grant exclusive privileges for the sale of these arti cles upon its trains; and so it may grant in a station exclusive rights to barbers and boot blacks. In street-cars, likewise, advertising rights may be given to one and refused to another, and certain newsboys may be al lowed to sell papers while others are not. All these are more than the adequate facili ties that the law requires to be provided by the common carrier, to its patrons. And this may be shown by the fact that none of these trades which have just been men tioned are so affected by a public interest as to be held public employments. XIII There have been brought forward now the principal arguments for the conserva tive view and the progressive view. The former ignores what the latter insists upon, 1 Kates v. Atlanta Baggage Co., 107 Ga. 636; Lewis v. W. W. & N. W. R. R., 81 S. W. in (Tex. Cir. App.)
that the inevitable consequences to the general public of holding that there is no public duty governing the dealings between the common carriers and the dependent services always may be, and often proves to be, extortion in a way which the law governing public calling, if thus limited can not reach. For if there is no duty upon the common carrier not to discriminate among those who wish to conduct dependent ser vices there is no duty not to overcharge for the special privileges; and whatever those that conduct the dependent service must pay for these facilities, they can charge against the public as a necessary expense of opera tion. It seems that this result, which is not at all improbable, must outweigh any con venience which sometimes may happen where there is an exclusive privilege granted. But even if the common carrier at times exercises his discretion by seeing to it that the dependent service is provided under fair conditions, the danger remains in leaving this important situation without law; for if there is abuse of discretion and those who need the dependent service are systemati cally exploited, then there will be no law in reserve by which redress is possible. And if experience in dealing with the public service companies is teaching anything, it is show ing that only the most comprehensive law will prove effectual; for if a way of escape is left, it will be found. Therefore, it is to be hoped that the progressive program in dealing with this special problem of the re lation between the principal service and the dependent service will be the one that will prevail; so that every one may appreciate that the universal rule is that the common carrier by the principles of public duty in all its dealings that affect shippers and passen gers, is bound to see to it that they are all served without discrimination, with ade quate facilities, and for reasonable compen sation. CAMBRIDGE, MASS., September, 1905.
